NOVEMBER 1995

COMMISSION DECISIONS AND ORDERS
11 -17-95
11-27 - 95
11-29-95
11-30-95

Sec. Labor on behalf of Charles Dixon
v. Pontiki Coal Corporation
Thomas Hale
Keystone Coal Mining Corp.
Majority opinion
Dissenting opinion
S & H Mining, Inc.

KENT 94-1274-D
WEST 90-283-M
PENN 91 - 451-R
Master 91-1
SE

93-9

Pg. 1813
Pg. 1815
Pg . 1819
Pg. 1883
Pg. 1918

ADMINISTRATIVE LAW JQDGE DECISIONS
11-03-95
11-06-95
11- 08-95
11-13-95
11-20-95
11 - 20-95
11-22-95
11-24-95
11-28-95
11-29-95
11-29-95
11-29- 95
11-29- 95
11-30-95
11-30- 95
11-30-95

Rock of Ages Corporation
Energy West Mining Co.
Beco Construction Company
E . C.C. International, Inc.
Cyprus Cumberland Resources
Consolidation Coal Company
Sec. Labor for William Kaxzmarczyk
v. Reading Anthracite
Willie Sizemore v. Andalex Resources
Sec. Labor for Gary Belveal v.
Western Fuels Utah, Inc.
Sedan Limestone Company, Inc.
Cyprus Emerald Resources Corp .
Kerry Coal Company
Jim Walter Resources, Inc.
L & J Energy Company, Inc.
Brown Brothers Sand Company
Debora Boyce & Viletta Moore v.
Consolidation Coal Company

YORK 94-76 - RM
WEST 92-216-R
WEST 95-420-M
SE
94-544-RM
PENN 95-181
WEVA 94 - 377

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

1925
1956
1958
1960
1969
1982

PENN 95-1-D
KENT 95 - 632 - D

Pg . 2065
Pg. 2070

WEST 95-147-D
CENT 95 - 139- M
PENN 94-23
PENN 94-530
SE
95 - 178
PENN 93-15
SE
95-331-M
WEVA 95-126-D
WEVA 95-127-D

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

LAKE 94 - 72
KENT 95-596
LAKE 95-323-'M

Pg. 2149
Pg. 2153
Pg . 2 1 62

2072
2083
2086
2110
2120
2133
2137

Pg. 2143

ADMINISTRATIVE LAW JUPGE ORDERS
11-24-95
11-28-95
11-30- 95

Buck Creek Coal Inc.
R B Coal Company, Inc.
Rohl Limestone Inc.

i

NOVEMBER

1995

Review was granted in the following cases dµring the month of Nove!Dber:

Secretary of Labor on behalf of Samuel Knotts v. Tanglewood Energy, Inc., et
al., Docket No. WEVA 94-375-D.
(Judge Maurer, September 26, 1995)
Secretary of Labor on behalf of Charles H. Dixon v. Pontiki Coal Corporation,
Interlocutory Review of two Orders of Judge Melick, Docket No. KENT 94-1274-D.

Review was not granted in the following cases during the month of November:

Secretary of Labor, MSHA v . Thomas Hale, Docket No. WEST 90 - 283-M.
Judge Merlin, unpublished Default issued March 12, 1991)

ii

(Chief

COMMISSION DECISIONS AND ORDERS

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

November 17, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTii
ADMINISTRATION, (MSHA),
CiN BEHALF OF CHARLES H. DIXON,
Docket No. KENf 94-1274-D

v.

PONTIKI COAL CORPORATION

ORDER

The unopposed Petition for Interlocutory Review of Administrative Law Judge Gary
Melick's September 29, 1995, Order filed by Pontiki Coal Corporation is hereby granted. The
unopposed Petition for Interlocutory Review of the judge's February 6, 1995, Order filed by the
Secretary of Labor is also hereby granted.
Briefs shall be filed on or before December 22, 1995. The proceedings before the judge
are stayed pending resolution of these appeals.

Mar'.c Lincoln Marks, Commissioner

1 813

Distribution:
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Brian Dougherty, Esq.
Office of the Solicitor
U.S. Department ofLabor
2002 Richard Jones Rd., Suite B-201
Nashville, TN 37215
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

1814

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

Novemrer 27, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 90-283-M

v.

THOMAS HALE,
employed by DAMON CORP.

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

ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). On Augu5t 13, 1990, the Secretary of Labor filed a
petition for assessment of civil penalty, pursuant to section l lO(c) of the Mine Act, 30 U.S.C.
§ 820(c), against Thomas Hale, general manager of the Valley Sand and Gravel Mine owned by
Damon Corporation, alleging that he knowingly authorized, ordered, or carried out five
violations of 30 C.F.R. § 56.14107(a). On March 12, 1991, Chief Administrative Law Judge
Paul Merlin issued an Order of Default to Hale for his failure to answer the Secretary's penalty
proposal or the judge's Order to Show Cause dated October 30, 1990. The judge assessed civil
penalties ·of $1,500.
On October 11, 1995, the Commission received a letter from Hale requesting that the case
be reopened for hearing. In his letter, Hale acknowledges that the citations had been properly
issued but asserts that he is not responsible for payment of the penalties because he had been told
by the company's controller that they would be paid. Letter at 1-2. Hale states that he was
unaware that the penalties had not been paid until he was contacted in 1991 by a collection
office. Id. at 3. Subsequently, he was contacted by the Department of Justice regarding the
matter. Id. Hale asserts that he "began to know how to handle" the situation only after
contacting the local director of the Mine Safety and Health Administration in Vacaville,
California, who suggested that he contact the Commission. Id. at 3-4.

1815

On October 31, 1995, the Commission received the Secretary's opposition to dale's
request for relief. The Secretary informs the Commission that the United States filed an action
pursuant to section 1100) of the Mine Act, 30 U.S.C. § 8200), in the United ·States District Court
for the Eastern District of California for recovery of the penalty owed by Hale, and that the
District Court granted summary judgment in favor of the United States on April 12, 1994. Opp'n
at 2-3. Hale filed a motion to set aside the summary judgment, which was denied, and final
judgment was entered on May 9, 1995. Id. at 3. The Secretary asserts that the t;me limitations
set forth in Fed. R. Civ. P. 60(b) preclude the Commission from considering tht; case. Id. at 912.
The judge's jurisdiction over this case terminated when his default order was issued on
March 12, 1991. 29 C.F.R. § 2700.69(b). Relief from ajudge's decision ma~· be sought by filing
a petition for discretionary review within 30 days of its issuance. 30 U.S.C. ~ 823(d)(2); 29
C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of a decision's
issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). Hale's letter
was received by the Commission on October 11, 1995, more than four years after the judge's
default order had become a final decision of the Commission.
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(I) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F .R.
§ 2700.l(b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of
applicable Commission rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991 ). A
motion requesting relief based on such reasons must be made "within a reas· ;nable time,
and ... not more than one year after the judgment, order, or proceeding was entered or taken."
Fed. R. Civ. P. 60(b).

1816

Hale's request for relief was filed more than four years after the judge's default order
became a final decision of the Commission, well beyond the one-year time limit set forth in Rule
60(b) for filing such requests. See Ravenna Gravel, 14 FMSHRC 738, 739 (May 1992).
Accordingly, the request for relief is denied.

Joyce A. Doyle, Commisskmer

Marc Lincoln

1817

Distribution:

Mr. Thomas Hale
4553 Hammonton Road
Marysville, CA 95901
Yoora Kim, Esq.,
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., 6th Floor
Washington, DC 20006

1818

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

November 29, 1995
IN RE: CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

Master Docket No. 91-1

KEYSTONE COAL 1'.1lNING CORPORATION

Docket Nos.

PENN 91 -451 R through
PENN 91-SO'J-R

Docket Nos.

PENN 91-1176-R through
PENN 91-1197-R

Docket Nos.

PENN 91-1264 through
PENN 91-1266

v.
SECRETARY OF LABOR.
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

and
v.

Docket No.
Docket No.

KEYSTONE COAL ~G CORPORATION

PENN92-182
PENN92-183

.Jilvf WALTER RESOURCES,
INC., et al.,
Intervenors

UNlTED 1v1INE WORKERS
OF A.MERICA (UMWA),
Representative of Miners

BEFORE: Doyle, Holen and Marks, Commissioners1
DECISION
BY: Doyle and Holen, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1988) ("Mine Act" or "Act"). Section 202(a) of the Mine Act requires coal mine
operators to take accurate samples of the respirable dust in the mine atmosphere to which each

1

Chairman Jordan has recused herself in this matter. Pursuant to section 113(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 823(c), we have designated ourselves a
panel of three Commissioners to exercise the powers of the Commission in this matter.

1819

mii:ier is exposed. 2 30 U.S.C. § 842(a). This proceeding involves 3,460 citations3 issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") to coal mine operators
across the country, each of which alleges a violation of30 C.F.R. §§ 70.209(b), 71.209(b), or
90.209(b) (collectively, "section 209(b)"), for tampering with and altering the weight of respirable
dust samples ("Dust Cases"). 4
The Dust Cases were assigned to Administrative Law Judge James A. Broderick, who
consolidated them for a trial of the issue common to all citations, i.e., whether the appearance of
an abnormal white center ("AWC") on a respirable dust sample filter establishes that the mine
operator had intentionally altered it. The judge found that the Secretary had failed to prove by a
preponderance of the evidence that an AWC on a filter establishes that the operator had altered
the weight or that deliberate conduct was the only reasonable cause of an AWC. In re: Contests
ofRespirab/e Dust Sample Alteration Citations, 15 FMSHRC 1456, 1521-22 (July 1993) (ALJ)
("Common Issues Decision"). The judge then ordered a trial on the citations issued to a single
mine, the Urling No. 1 Mine ("Urling"), operated by Keystone Coal Mining Corporation
("Keystone"). In that case, the judge held that the Secretary of Labor had failed to carry his
burden of proving by a preponderance of the evidence that the weight of the 75 cited filters had
been intentionally alt~red by the operator. Keystone Coal Mining Corp., 16 FMSHRC 857, 903
(April 1994) (ALJ) ("Keystone Decision"). 5
The Secretary filed with the Commission a petition for discretionary review ("PDR")
seeking review of the decisions and asserting 14 points of error by the judge. Among the
Secretary's assignments of error was his challenge to the judge's articulation and application of
the standard of proof in both the Common Issues Decision and in the Keystone Decision and his

2

The Mine Act and mandatory standards require each operator to maintain an average
concentration of respirable dust in the mine atmosphere at or below 2.0 milligrams of respirable
dust per cubic meter of air. 30 U.S.C. § 842(b); 30 C.F.R. §§ 70.100, 71.100. Under certain
circumstances, it must be maintained at or below 1.0 milligrams. See, e.g., 30 C.F.R. § 90.100.
3

An additional 110 contested citations are on stay pending resolution of the Common
Issues case. Approximately 5,000 citations were issued in total. Not all, however, were
contested and some were settled.
4

Section 209(b) of30 C.F.R. Parts 70, 71, and 90 provides:
The operator shall not open or tamper with the seal of any filter
cassette or alter the weight of any filter cassette before or after it is used to
fulfill the requirements of this part.

5

The United Mine Workers of America ("UMWA") participated in both proceedings as
representative of miners but did not submit briefs to the judge.

1820

claim that, if the proper standard had been used, the Secretary would have prevailed in both cases.
The Commission granted the Secretary's PDR and granted intervenor status to a number
of mine operators (the "Intervenors"). The parties and Intervenors submitted briefs and the
Commission heard oral argument. 6 After careful review of the record, and for the reasons that
follow, we affirm the judge's decisions.
I.
Background and Judge's Decisions
A. Factual and Procedural History in Common Issues

Coal mine operators are required to submit accurate dust samples on filter cassettes to
MSHA for measurement of the quantity of respirable coal dust in the mine atmosphere. 15
FMSHRC at 1457; 30 C.F.R. §§ 70.201-220, 71.201-220, and 90.201-220. These samples are
taken in a sampling unit, consisting of a pump, hose, cyclone assembly, and plastic cassette,
~anufactu~ed by the Mine Safety Appliance Corporation ("MSA"). 15 FMSHRC at 1457. The
pump draws air into the cyclone assembly, which separates out larger dust particles. Air
containing respirable dust particles is directed into the plastic cassette, which contains a capsule
consisting of an aluminum foil cone, a filter, and a backing pad. Id Airborne particles are
deposited on the filter face. Id. The cassette is removed from the sampling unit and sent to
MSHA's weighing laboratory along with a card providing information on the sample ("dust data
card"). Id At the weighing laboratory, MSHA technicians open the sealed cassette, remove and
desiccate the capsule, and then weigh it to determine whether the respirable dust concentration is
in compliance with the levels required by 30 C.F.R. §§ 70.100, 71.100, and 90.100. See id
In 1983, Mr. Robert Thaxton, then an industrial hygienist at MSHA's District Office in
Mt. Hope, West Virginia, subjected 25 to 50 dust filter cassettes to reverse air flow tests by
blowing or otherwise directing air into the outlet of the cassette to determine the potential for
removal of dust by tampering. Id at 1457-58; Tr. 108-10. The resulting filters exhibited white
circular areas in the center. 15 FMSHRC at 1458. In February 1989, a laboratory technician at
Mt. Hope noticed a protruding filter on a cassette submitted by Peabody Coal Company
("Peabody"). Id.; Tr. 327-28.7 When the foil was removed, a sharply defined circular white

6

The UMWA filed an appearance but did not submit briefs to the Commission or
participate in oral argument.
1

"Tr." refers to transcript of the Common Issues trial. "K. Tr." refers to the transcript of
the trial in Keystone. "R. Ex." refers to Respondent Exhibits and "Gov't Ex." to Government
Exhibits introduced at the Common Issues trial. "K. Ex." refers to Keystone Exhibits and "K.
Gov't Ex." to Government Exhibits introduced at the Keystone trial. "Oral Arg. Tr." refers to the
transcript of oral argument held before the Commission on March 29, 1995.

18 21

center that was aligned with the aluminum foil inlet opening of the filter capsule was visible on the
filter. Tr. 329, 336-37. Mr. Thaxton, the supervisory industrial hygienist at Mt. Hope, regarded
this filter appearance as abnormal and believed that the Peabody filter resembled some of his 1983
experimental filters. 15 FMSHRC at 1457-58; Tr. 108-10, 330-31. Filters with this abnormal
white center appearance were termed AWCs. 15 FMSHRC at 1458.
The Pittsburgh Health Technology Center ("PHTC"), MSHA's main laboratory, began to
examine all filters from that same Peabody mine and, later, from all Peabody mines. Id.; Tr. 33738. In August 1989, MSHA' s investigation expanded to include all filters submitted by coal mine
operators nationwide. 15 FMSHRC at 1458; Tr. 342. Filters were examined for abnormalities
and those with suspected AWCs were forwarded to Thaxton at the Mt. Hope facility. 15
FMSHRC at 1458; Tr. 128-29, 339.
On March 19, 1990, MSHA initiated an AWC "void code"8 and began rejecting respirable
dust samples that exhibited AWCs. 15 FMSHRC at 1460; R. Ex. 1400, at 12. On April 4 and
June 7, 1991, MSHA issued approximately 4,700 citations to approximately 847 mines and
proposed civil penalty assessments totaling about $6.5 million.9 See 15 FMSHRC at 1460; Tr. 3
(Prehr'g Conf June 19, 1991). The citations were issued by MSHA inspectors, but Thaxton
alone determined whether a particular filter was to be cited. 15 FMSHRC at 1460. Each
citation charged the mine operator with violating the provisions of section 209(b) and alleged that
"the weight of the respirable dust cassette .. . has been altered while the cassette was being
submitted to fulfill the sampling requirements ...." Id Each citation characterized the level of
the operator's negligence as "reckless disregard," and the Narrative Findings for a Special
Assessment ("Special Assessment Findings") attached to the citation stated that "[t]he violations
resulted from an intentional act of altering the dust samples." See, e.g., Citation dated April 4,
1991, and Special Assessment Findings dated June 12, 1991, issued to Keystone; see also 14
FMSHRC at 1512.
The cases in this proceeding arose from citations contested by operators and petitions for
assessment of penalty filed by MSHA. Extensive discovery was conducted and the parties twice
sought interlocutory Commission review of pretrial matters. In a pretrial order issued on
August 13, 1992 ("August 1992 Order" ), Judge Broderick, citing the time and expense of trying
each case separately and relying on the Manual for Complex Litigation, 10 consolidated the cases

8

A void code is a three-letter code indicating that MSHA will not accept the respirable
dust sample for use in determining compliance with the respirable dust standards. Tr. 848.
9

MSHA continued to cite operators for AWCs. By the time of the Common Issues trial,
approximately 370 additional citations had been issued. The last contested citation, now on stay,
was issued on April 6, 1993 .
10

"Actions pending in the same court involving common questions of law or fact may be
consolidated under Fed. R. Civ. P. 42(a) for trial or pretrial if it will avoid unnecessary cost or

1 822

for trial of the issue common to all cases and appointed a Lead Defense Counsel Committee to
participate in the trial on behalf of all operators. 14 FMSHRC 1510, 1511, 1516 (August 1992)
(ALJ). In the same order, the judge rejected the Secretary's argument that, if he proved that the
weight of a dust sample had been altered, he need not prove that the alteration was deliberate. Id.
at 1515. The judge concluded that the plain words of section 209(b) do not give rise to a ·
violation based on accidental or unintentional altering of the cassette's weight. Id. at 1515-16.
Rather, the judge found that a violation necessarily included an intentional action on the part of
the mine operator. Id. at 1515. The judge set forth the issue to be determined as: "[w]hether an
abnormal white center (AWC) on a cited filter cassette establishes that the operator intentionally
altered the weight of the filter?" Id at 1517. The judge stated, "the Secretary has the burden of
establishing [his] case by the preponderance of the evidence." Id.
B. Common Issues Trial

The Common Issues trial commenced on December 1, 1992, and concluded on
February 22, 1993. Mr. Thaxton testified for eight days on his.AWC classification and the
potential causes of AWC formation. Thaxton had developed ten "tamper codes" to describe the
various AWC appearances. 15 FMSHRC at 1460-62; Tr. 168-71; R. Ex. 1064. Approximately
97% of the cited filters were originally classified under tamper codes 1, 2 or 3.11 15 FMSHRC at
1462. Filters originally suspected of having AWCs, but which Thaxton decided should not be
cited, were termed "no-calls." Id. at 1460; Tr. 129-31. In March 1992, Thaxton reexamined the
cited filters and reclassified 464 filters; 95% of the cited filters remained as tamper code 1, 2 or 3.
15 FMSHRC at 1462. In his opinion, AWCs resulted from acts of intentional alteration by mine
operators, primarily by the application of reverse air through the filters. Tr. 183, 191, 209, 59899. Lewis Raymond, Chief of the Weighing Branch, Dust Division of the PHTC, testified on the
handling and screening practices of filters exhibiting AWCs. The Secretary offered the scientific
testimony of Dr. Virgil Marple and his colleague, Dr. Kenneth Rubow, who had conducted

delay." Manual for Complex Litigation § 21.631 (1995) (supplement to James W. Moore et al.;
Moore's Federal Practice (2d ed.)).
11

Filters classified under tamper code I , termed by Thaxton as "light cleaned," were
described as containing a white ring in the center of the filter, approximately 6 millimeters ("mm")
in diameter, directly aligned with the cassette inlet. The appearance of the center portion of the
ring was not markedly lighter. In Thaxton's opinion, tamper code 1 AWCs resulted from reverse
air flow. 15 FMSHRC at 1461; Tr. 179-181, 183; R. Ex. 1064. Filters classified under tamper
code 2, "cleaned," were described as exhibiting a markedly lighter dust deposit within the circular
area. Thaxton believed that tamper code 2 AWCs also resulted from reverse air flow. 15
FMSHRC at 1461; Tr. 184-85, 191, 193-98, 767-68, 776; R. Ex. 1064. Filters classified under
tamper code 3, "cleaned and coned," were described as similar to those classi£ed under tamper
code 2, but exhibiting a slight rise or cone in the center. Thaxton believed that tamper code 3
AWCs resulted from "forceful" reverse air flow. 15 FMSHRC at 1461; Tr. 198-201, 208-09,
1258; R. Ex. 1064.

18 23

e:- periments involving AWCs, including application of reverse air flow to filter cassettes and
dropping cassettes and pumps. 15 FMSHRC at 1474-83. Dr. Marple concluded that the most
probable cause of AWC dust dislodgment was the deliberate application ofreverse air flow. Id at
1469-70, 1481 ; Gov't Ex. 280, at 4-7, 57, 103-05; Gov't Ex. 282, at App. A; Tr. 2590, 2597-98.
The Secretary's statistical expert, Dr. John J. Miller, testified that AWCs were not random across
all coal mines. 15 FMSHRC at 1485, 1488; Tr. 3721-23 . According to Dr. Miller, there was a
marked decline in AWCs after MSHA' s initiation of the AWC void code on or about March 19,
1990. 15 FMSHRC at 1486, 1488; Tr. 3723-24. Miller also testified that the decrease in the rate
of cited AWCs was not explained by the dates on which filters were manufactured. 15 FMSHRC
at 1486-88.
The operators offered the scientific testimony of Dr. Richard J. Lee, who also classified
the cited filters into groups based on appearance. Id at 1470-71. Dr. Lee performed a series of
dust dislodgment tests and concluded that AWCs can result from accidental and incidental events.
Id at 1488-96; Tr. 6531-34. He testified that manufacturing variations in the sampling units, such
as a shorter filter-to-foil distance12 in the cassette and the pliability of the hose, increase
susceptibility to AWC formation. 15 FMSHRC at 1494-95; Tr. 6534-35. The operators' other
scientific experts, Dr. R. Larry Grayson, Dr. Andrew R. McFarland, and Dr. Morton Com,
similarly testified that AWCs can result from accidental and incidental events, such as dropping or
other impacts to sampling units and impacts to hoses of sampling units. 15 FMSHRC at 1497-99,
1505-06. Dr. McFarland conducted a courtroom demonstration in which he twice dropped a 31pound tool box on the hose of a sampling assembly, each time producing an AWC. Id at 1503.
The operators' statistical expert, Dr. H. Daniel Roth, testified that the AWC citation rate declined
continuously after September 1989 and that the void code date ofMarch 19, 1990, was not
statistically significant. Tr. 3983, 3987-88, 3994, 4001; R. Ex. 1041, at 4. Roth criticized
Miller's analysis of filter manufacturing dates. 15 FMSHRC at 1508.
The judge observed the filters presented ·at the hearing. Id. at 1467. The cited and
experimental filters are not in the record but, during discovery, the operators' expert witnesses
were pennitted to inspect the cited filters and each expert had the opportunity to review the
others, experimental filters. E.g., Tr. 5949, 7521; Gov' t Ex. 267, at 4-6. Photographs of the
cited filters and of many of the experimental filters are in the record. See, e.g., Gov't Exs.
photograph albums entitled Cited Filters, vols. 1-7, set 2. Evidence concerning the practices or
circumstances of any particular mine was excluded from the Common Issues trial. 15 FMSHRC at
1464; see also id at 1522; 16 FMSHRC at 896.
C. Common Issues Decision
The parties filed post-trial and reply briefs in April and May 1993, and the judge issued his
decision on July 20, 1993. 15 FMSHRC 1456. His findings and conclusions are as follows:
12

Filter-to-foil distance is the distance in the cassette between the filter surface and the
opening of the aluminum foil cone. Tr. 2279; R. Ex. 1001, at ii, B-8.7.

1 82 4

·. Burden of Proof
The judge held that the Secretary bore the burden of proving "by a preponderance of
evidence that (I) the term 'AWC' has a coherent meaning and was consistently applied; (2) the
cited AWCs can only have resulted from intentional acts; and (3) the AWCs resulted in weight
losses in the cited filters." 15 FMSHRC at 1463-64.
2. Mr. Thaxton's AWC Classifications
1 he judge found that the term "AWC" has a coherent meaning and refers to an "abnormal
filter appearance in a dust sample consisting of dust dislodgment from the central portion of the
filter." 15 FMSHRC at 1513. He found that the classification of AWCs by Thaxton under his
tamper-codes, although not perfectly consistent, was sufficiently consistent to require a
detennination of whether the existence of an AWC establishes a violation. Id at 1469, 1513.

3. Possible Causes of AWCs
The judge determined that "[t]he dust dislodgment patterns on the cited filters classified
under tamper codes 1, 2, 3, and 713 can have resulted from intentional acts: blowing by mouth
through the cassette outlet, otherwise directing a jet or pulse of air into the cassette outlet, or
introducing a vacuum source into the cassette inlet." 15 FMSHRC at 1513 (emphasis added). He
also found that the dust dislodgment patterns on filters classified under these tamper codes "can
have resulted from:
1.

impacts to the cassette from dropping or striking it;

2.

impacts to the hose from stepping on it, dropping an object on it,
striking it against a wall while the hose was wrapped around the
sampling assembly, closing a door or drawer on it, or sitting on it;

3.

snapping together the two halves of the filter cassette."

Id (emphasis added).
The judge explained that, although the experts differed as to the likelihood that AWC
dislodgment patterns would result from incidental events or accidents, "the experiments a~l show
that at least sometimes they do occur." Id at 151-3-14. He observed that dust dislodgtr:- .. ·t
patterns on many of the filters subjected to impact or snapping tests were indistinguish~ : .'.,.:Tom

13

The judge noted that Thaxton came to believe that filters classified under tamper code
7, known as "clean tool" and which he originally believed were created by a tool, were created by
reverse air flow. 15 FMSHRC at 1461-62, 1513; Tr. 259.

1825

cited A WCs. Id ai 1514. Tt ;e judge concluded that the AWCs did not result from handling by
the United States Postal Ser·ice or from the PIITC's handling or desiccation processes. Id
The judge determined that the manufacturing characteristics of filter-to-foil distance and
filter floppiness varied from filter to filter and mine to mine. Id at 1515, 1521. The judge found
that a filter cassette with a smaller filter-to-foil distance was more susceptible to an AWC
dislodgment pattern than one with a larger distance; that a floppy filter was more susceptible than
a taut one; and that AWC susceptibility also depended on the pliability of the sampling hose. Id
at 1515-17. He determmed that the cited filters came from a population of cassettes with shorter
filter-to-foil distances ~.han those manufactured subsequently. Id at 1515-16. The judge also
identified mine and dust variables that would affect dislodgm·ent, such as type of coal, humidity in
the mine environment, weight of dust on the filter, size and shape of dust particles, and quantity of
rock dust or diesel dust on the filter. Id. at 1516- 17, 1521.
4. S'.atistical Evidence
The judge found Miller's conclusion that the AWC rate was not random across the mining
industry was not "persuasive evidence of intentional tampering" because of the existence of many
other potential causes. 15 FMSHRC at 1519, 1522. The judge also rejected the Secretary's
claim that the sharp decline in cited AWCs beginning about March 19, 1990, "can only be
construed as showing intentional misconduct" that ceased when the operators became aware of
the void code. Id at 1519. He reasoned that AWC citations continued, at a reduced rate, long
after the void code was instituted and after significant publicity about the criminal investigation.
Id. at 1519-20. 14 Th'e judge stated that the statistical evidence showed cassettes manufactured
before January 1, 1990, had a much higher citation rate than those manufactured later, suggesting
manufacturing variables as a cause of AWC fonnation. Id at 1520. The judge discounted
Miller's opinion that there were no statistically significant relationships between dust dislodgment
and filter-to-foil distance.or floppiness of filters, concluding that the weight of the scientific
evidence showed that such factors did, in fact, affect susceptibility to AWC formation. Id.

14

At the time of MSHA' s investigation of operator samples, a large number of respirable
dust samples taken by MSHA inspectors were also found to exhibit AWCs. 15 FMSHRC at
1462. Thaxton classified these samples under his tamper codes and most, but not all, were
classified under one of' the reverse air flow tamper codes. Id The judge noted evidence
indicating that the number of inspector samples exhibiting AWCs declined at about the same rate
during the relevant periods as operator samples. Id. at 1519. The Office of Inspector General of
the Labor Department investigated whether the inspectors who submitted these samples were
guilty of misconduct. The investigation was closed with no finding of misconduct, apparently
based on the finding that AWCs can result from the two parts of a cassette being snapped
together. Id. at 1462

1826

5. Judge's Conclusions
Based on these findings, the judge concluded that ( 1) the Secretary "failed to carry his
burden of proving by a preponderance of the evidence that an AWC on a cited filter establishes
that th~ mine operator intentionally altered the weight of the fiiter," and (2) the Secretary "failed
to carry his burden of proving by a preponderance of the evidence that deliberate conduct on the
part of the cited mine operators is the only reasonable explanation for the cited AWCs." 15
FMSHRC at 1521. The judge emphasized that filter variables (filter-to-foil distance and
floppi_oess), pliability of the hose, and dust variables (type of coal, humidity, weight of dust on the
filter, size and shape of dust particle:>, and quantity of rock or diesel dust) affect susceptibility to
AWC formation and that Miller's statisticai analysis failed to adequately account :for these
variables. Id at 1521 -22. The judge concluded that Miller's analysis also failed to est1J.blish that
the cited AWCs were not the result of accidental occurrences or manufacturing variables. Id.
Noting that the expert testimony a':I to causes of AWCs was conflicting, the judge, in summary,
concluded that the record showed too many other potential causes "to accept the Secretary's
circumstantial evidence as sufficient to carry his burden of proof that the mine operators
intentionally altered the weight [of] the cited filters." Id
The judge ordered a mine specific hearing to address the 75 A WC citations issued to
Keystone's Urling mine. Id at 1522. He set forth the main issue as "whether the weight of the
filters cited as AWCs from ... Urling ... was intentionally altered by the mine operator" and
stated that the burden of proof remained with the Secretary. Id. The judge stayed all other Dust
Cases. Id at 1523.
D. Factual and Procedural History in Keystone
The Urling mine, in Indiana County, Pennsylvania, is operated by Keystone, a wholly
owned subsidiary of Rochester and Pittsburgh Coal Company ("R&P"). The du.st sampling
program for all 13 R&P mines, including Urling, was conducted by R&P's Environmental Safety
Department ("ESD"), also in Indiana, Pennsylvania. 16 FMSHRC at 858-59; Stipulations by
Secretary and Keystone, No. 14, filed November 30, 1993 ("Stip."). From 1970 until his
retirement in 1991 , Donald Eget, who was trained as an engineer, was the supervisor ofESD. 16
FMSHRC at 861; K. Tr. 2231-33. During 1989 and i990, Shawn Houck worked with Eget in
the ESD laboratory as a maintenance and calibration technician. 16 FMSHRC at 861-62.
Douglas Snyder was the dust technician responsible for Urling sampling; three other dust
technicians handled sampling for R&P's other mines. Id. at 862.
Pursuant to normal operating procedures at ESD during i 989 to 199 i, the dust
technicians picked up pumps and sampling assemblies in the morning and delivered them to
R&P's mines for use on that day's three shifts. Id Each morning, Eget drove to all 13 R&P
mines to retrieve pumps and samples from the previous afternoon and midnight shifts. Id The
dust technicians returned to the ESD after 4:00 p.m., delivering pumps used during the day shift.
Id at 863.

1827

While Eget collected pumps, Houck processed thnse from the previous day shift. Id at
862. Houck removed the sampling head 15 and the hose from each pump, filled out the dust data
cards, cleaned the sampling units, calibrated the pumps, reassembled the units, and inserted a new
filter cassette in each one for use the next day. 'Jd. at 862-63; K. Tr. 2103-04. When Eget
returned to the laboratory, Houck took the cassettes into Eget' s office. 16 FMSHR.C at 862.
Eget inspected the used cassettes, recorded their identification numbers, checked the dust data
cards against the cassette numbers, and looked into ;:he cassette inlets and recorded the filter
appearances in a logbook he kept for each mine. Id. at 862-63, 889. The cassettes were then
packaged for mailing to MSHA and taken to the R&P mailroom. Id. at 863; K. Tr. 2102-03,
2174.
D ust technician Snyder delivered pumps to Urling and distributed them to the miners or
section foremen on the day and afternoon shifts. 16 FMSHRC at 864. He left pumps for the
midnight shift. Id
On April 4, 1991, the Secretary issued 53 citations to Urling, and on June 7, 1991 , issued
22 additional citations, alleging violations of section 70.209(b). Id at 858. Three filters
forwarded to Thaxton were determined to be no-calls. Id. at 868, 870.

E. Keystone Trial
The trial in Keystone commenced on November 30, 1993, and concluded on January 6,
1994. 16 FMSHRC at 859. Robert Thaxton testified with respect to the appearance of the
75 cited and three no-call filters. Mr. Thaxton was of the opinion that the dust dislodgment
patterns of the cited filters resulted from deliberate acts, in most cases from air blown through the
filter cassette in a reverse direction. Id. at 868-72; K. Tr. 864-66, 911-15; see K. Gov't Ex. 505.
Dr. Marple, the Secretary' s scientific witness, also examined and classified the 78 filters. 16
FMSHRC at 872-7 4. Marple concluded that 71 or 72 resulted from reverse air flow, two or three
resulted from a vacuum source introduced into the cassette inlet, and one resulted from water
introduced into the filter (Marple was originally unable to ascribe a cause to that filter's
appearance). Id. at 873, 898-99. Marple further concluded that none of the dislodgment patterns
on the Urling filters resulted from impacts to the cassettes. Id. at 873-74, 899.
Dr. Miller, the Secretary's statistical expert, testified that, before March 26, 1990, the date
that MSHA alleges .Urling learned of the void code, Urling had a much higher citation rate than
other mines.16 Id at 878-79. He testified that Urling had a citation rate of 42.77% (74 cited

15

The sampling head includes the cyclone unit and filter cassette. Tr. 91-94.

16

Data from other mines consisted of data for all dust samples processed by MSHA from
August 8, 1989, through March 31 , 1992, except data from R&P mines, mines whose operators
pied guilty to tampering, and mines whose cassettes may not have been examined for AWCs. 16
FMSHRC at 878.

1 828

samples out of 173) in the period August 1989 through March 26, 1990. After March 26, the
rate fell to 0.18% (one cited out of 552). In contrast, other mines had 8 n average citation rate of
5.96% for the earlier period. Id at 878. Miller also testified that the date of cassette·manufacture
failed to explain the differences in citation rates between Urling and other mines because Urling' s
citation rate was eight times higher than that of other mines using cassettes manufactured on the
same dates. Id at 879.
Dr. Lee, Keystone's scientific expert, concluded that most of the cited filters showed
comparatively slight dust dislodgments from the central area, slightly larger diameters, no cones,
and only a slight indication of dimpling, ~II of which indicated lesser forces than would have
occurred with deliberate reverse air flow. Id at 876, 899. Lee testified that the appearance and
dimensions of the dislodgment patterns on the Urling filters were consistent with a mixed
mechanical pulse/reverse air pulse mode of occurrence ("mixed-mode" theory). Id. at 876-77. 17
He also testified that humidity in the mine atmosphere reduced the susceptibility to dislodgment of
dust on filters and that the introduction of water sprays and sc:ubbers at Urling beginning in 1989
and 1990 contributed to the decline in AWCs. K. Tr. 3891-97, 4042-44, 4087-89; see also 16
FMSHRC at 877; K. Ex. 2001, at 14.

Dr. Roth, the operators' statistical expert, testified that he examined the citation rates of
Urling and all R&P mines on a bimonthly basis and that the data showed a strong trend of
declining rates over the entire period from August 1989 to March 1992. 16 FMSHRC at 880.
Roth also testified that manufacturing variables may have been a factor in AWC formation
because the rate of cited AWCs was greater for cassettes manufactured on earlier dates compared
to later dates. Id He concluded that R&P' s high incidence rates "may be attributable to cassettes
manufactured on four consecutive dates, May 26, May 31, June 1, and June 2, 1989." Id. The
AWC citation rate ofR&P mines, including Urling, for cassettes manufactured on those dates was
49.6% compared to 5.8% for other dates. Id.
ESD personnel testified as to their involvement in the respirable dust sampling program at
Urling. Id at 888-93 .18 Eget, Houck, and Snyder denied tampering with the dust cassettes or
observing anyone else tamper with the cassettes. Id at 890-91 .

17

Under Lee' s mixed-mode theory, two impacts may occur almost simultaneously: an
impact to the cyclone that results in a mechanical pulse to the cassette and an impact to the hose
that results in a reverse air pulse to the cassette. A~cording to this theory, the mechanical pulse
tends to dislodge dust on the filter outside of the 6 mm ring, while the reverse air pulse tends to
dislodge dust inside the ring. See 16 FMSHRC at 876-77.
18

Thirty-three current and former Keystone and R&P employees, including miners,
section foremen, technicians, managers, and safety department personnel, testified at the trial. All
employees who worked at the ESD laboratory during 1989 and 1990 testified. 16 FMSHRC at
888.

1 8 29

F. Keystone Decision
The parties filed post-hearing briefs in March 1994 and the judge issued his decision on
April 20, 1994. His findings and conclusions are as follows:
1. Burden of Proof

The judge held that the Secretary bore the burden of proving "by a preponderance of the
evidence that the 75 cited Urling filters resulted from intentional tampering." 16 FMSHRC at
895. The judge noted that Keystone "d[id] not have the burden of establishing that the
appearances on the samples resulted from some other cause." Id. at 896. The judge reasoned
that the Secretary, as the party bearing the burden, must convince the trier of fact "that the
existence of a fact is more probable than its nonexistence .. . ." Id. at 8.95, quoting Concrete
Pipe and Products of Cal., Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S.
_ , 113 S. Ct.__, 124 L. Ed. 2d 539, 563 (1993). He explained that "[t}o preponderate, the
evidence must be sufficient to convince the trier of fact that the proposition asserted is more likely
true than not true." 16 FMSHRC at 895-96 (citations omitted). The judge also noted that "[a]ll
of the evidence must be given appropriate weight, whether it be direct or circumstantial" and that
"[c]ircumstantial evidence may prove an ultimate fact." Id. at 896.
2. Possible Causes ofUrling AWCs
Preliminarily, the judge reviewed the evidence pertaining to the handling of dust pumps
and cassettes at the Urling mine and ESD laboratory. He found that dust disiodgment patterns on
the cited filters could have resulted in whole or in part from the handling of the sampling
equipment by Urling miners or ESD personnel. 16 FMSHRC at 864, 868. The judge found that
AWCs "could have resulted wholly or partly" from incidental and accidental events occurring in
the mine, such as pumps falling to the mine floor and hoses being pinched by mantrips, snagged ·
on other objects, or wrapped around pumps, and from other contacts to hoses. 19 Id. at 868. The
judge also found that AWCs "could have resulted wholly or partly" from incidental and accidental
events occurring in the ESD laboratory or during transportation of the pumps, including multiple
pumps being carried by their hoses and boxes containing pumps being dropped to the floor of a
vehicle or onto a table. Id at 861-64.
19

Some miners attached the pumps to their clothing during sampling, while others
attached them to the continuous miners. 16 FM~HRC at 866. Urling used two types of
continuous miners, Lee-Norse and Joy. Id. The judge found that the dust dislodgment patterns
could have been caused or contributed to by attachment of the sampling head to the Lee-Norse
miners, which vibrated while cutting coal. Id at 882. However, he concluded that changes in the
dust deposition patterns on Urling filters after the void code date were not due to changes in
handling by section foremen or miner operators or helpers, although he noted that some Urling
foremen kept a closer eye on dust pumps after learning of the MSHA investigation. Id at 882,
898.

1830

The judge made findings regarding factors that could have contributed to the decline of
AWCs at Urling. Id at 882-87. He found that changes in handling practices ofESD personnel
during the spring of 1990 could have been a factor in the reduced incidence of AWCs. Id at 884.
He found that Eget, whose handling of the sampling equipment was rougher than that of the
others, did not handle samples fro·m April 9 to May 10, 1990, and that Snyder and the other
technicians exercised more care in their handling of the equipment, avoiding impacts to the hoses
because ofMSHA's investigation. Id The judge concluded that, because dust deposits were
damper and less susceptible to dislodgment when scrubbers were in use, the installation of
scrubber systems on the continuous miners at Urling beginning in 1989 could have been a fact.:>r
in the decline of AWCs. Id. at 882-83. With respect to sampling equipment, the judge founc. that
the Urling cassettes more probably than not had shorter filter-to-foil distances and this could have
been a factor in the decline of AWCs. Id at 885-86.20
On the basis of his Conunon Issues Decision, the judge determined that the dislodgment
patterns on the Urling filters could also have resulted from intentional tampering. Id. at 898. The
judge concluded that, if tampering occurred, it must have occurred at the ESD laboratory. Id In
resolving whether the AWCs resulted from intentional acts at ESD, the judge analyzed the
scientific and statistical evidence and evaluated the testimony arid credibility of ESD employees.

Id
3. Scientific Evidence
Based on Mr. Thaxton' s testimony, the judge concluded that the appearances of the cited
filters "did not result from normal sampling." 16 FMSHRC at 897 (emphasis added). The judge
was not persuaded, however, by Thaxton' s reports and testimony asserting that the Urling AWCs
had been caused by intentional tampering. Id. The judge discounted Thaxton' s analysis as to
causation because Thaxton's conclusions were "to a considerable extent subjective." Id. His
tests were not conducted according to a written protocol based on systematic testing that related
specific dislodgment patterns to types of tampering. Id. Additionally, the judge found that the
distinction Thaxton made between cited and no-call filters was " difficult to discern" and "tenuous
at best." Id. at 870-71, 897.

20

The judge determined that a number of other factors, such as changes in ·MSHA' s
AWC selection criteria and other mine conditions at Urling, including height of the coal seam,
roof stability, presence of a layer of rock in the coa,l seam, and changes in mantrips did not explain
the decline in Urling' s AWC rate. 16 FMSHRC at 882-87. The judge was unable to determine
whether_the section in the mine from which dust samples were taken affected the decline of
AWCs. Id. at 883. Although he found in the Common Issues Decision that pliability of dust
pump hoses may be related to AWC formation, the judge was unable to conclude whether this
was a factor in the decline in AWCs at Urling. Id. at 886. He also noted that equipment changes
at ESD were of questionable significance. Id. at 884.

1 8 31

The judge concluded, on the basis of the testimony of Dr. Marple and Dr. Lee, that 73 of
the Cited Urling filters "resulted in whole or in part from reverse air flow through the filter." Id. at
898-900. The judge credited Lee's testimony that those filters showed comparatively slight
dislodgments from the central area, had no cones at the time the citations were issued, and had
slightly larger areas of dust dislodgment. Id at 899. On that basis, he reasoned that the forces
responsible for the Urling AWCs were "relatively slight" and concluded that the reverse air forces
involved in the creation of those filters were "generally less" than the force associated with .
deliberate blowing through the filter cassette. Id at 899-900. The judge also concJuded that the
dust dislodgment patterns of the Urling filters "may have been influenced" by accidental and
incidental events involving impacts to the cassette and sampling assembly, as set forth in Dr. Lee's
mixed-mode theory. Id at 900; see id at 876-77.

As to the other two cited filters, the water stain filter No. 324842 and filter No. 325300,
the judge held that the Secretary's evidence was inconsistent and unconvincing and failed to
establish deliberate tampering. Id. at 900.
4 . Statistical Evidence
The judge noted that the statistical experts, Dr. Miller and Dr. Ro_th, reached different
conclusions using the same data. 16 FMSHRC at 900. The judge agreed with Miller that there
was a sharp decline in Urling's citation rate on or about March 26, 1990, the date used by Miller
in his analysis. Id. He concluded, however, that March 26, 1990, was not a logical cutoff date
for examining changes in behavior at Urling because the evidence showed that ESD personnel and
Keystone management had become aware much earlier, in February 1990, ofMSHA's
investigation of AWCs. Id He also found that there was an overall decline in Urling's citation
rate from September 1989 to April 1990. Id The judge agreed with Miller that dates of
manufacture of the cassettes "do not seem overall to explain all the differences" in the AWC rate.
Id. at 900. On the other hand, he agreed with Roth that manufacturing anomalies may have
affected AWC formation because, as Roth showed, 60% of the cited Urling cassettes were
manufactured on four consecutive work days in May and June 1989. Id at 900-01 .
The judge was unable to conclude on the basis of the statistical evidence that the reduction
in the rate of cited filters at Urling was related to MSHA' s investigation. Id at 90 I.
5. Testimony ofESD Personnel
Preliminarily, the judge recognized that a large number of mine operators and their agents
had pied guilty to criminal charges of tampering. 16 FMSHRC at 901. The judge summarized
the testimony of employees of the ESD laboratory during 1989 and 1990, all of whom were
witnesses. Id. at 888-893. He determined that only Eget and Houck had any substantial
opportunity to tamper with the samples. Id at 90 I. The judge was impressed by the
backgrounds of Eget and Houck and by their forthrightness on the witness stand. Id at 902. He
credited their statements that they had not tampered with the dust samples submitted to MSHA.

1832

Id. at 902-03. The judge found the Secretary,s proffered motives for tampering by Eget and
Houck (to avoid penalties and resampling and the enormous cost of non-compliance) to be very
weak. Neither employee paid the R&P penalties, resampling would not have been a substantial
burden on ESD, and neither was involved in coal production or reported to a production
supervisor. Id. at 902. He noted that they knew that tampering was illegal and that Eget, at least,
was aware that criminal sanctions could result from tampering. Id. For the same reasons, he also
accepted as true the statements of the other dust technicians that they did not tamper with the
dust cassettes and further noted that they had little opportunity to tamper. Id. at 901, 903.
Overall, the judge credited the testimony of BSD personnel, expressly taking into
consideration the evidence concerning handling of dust samples at the mine and the testimony of
Thaxton, the scientists, and the statisticians. Id. at 903 . He considered credibility determinations
with respect to BSD personnel to be of primary importance in his decision. Id
6. Judge' s Conclusions
Based on the records in the Common Issues and Keystone trials, the judge concluded that
the Secretary "failed to carry his burden of proving by a preponderance of the evidence that the
weight of the 75 cited Urling filters was intentionally altered by Keystone." 16 FMSHRC at 903.
Accordingly, he vacated"the Urling citations, denied the Secretary's petitions for civil penalties,
and dismissed the proceedings. Id. The judge stayed all other Dust Cases until further order of
the Commission. Id.

II.
Disposition
A. Introduction

In his PDR., the Secretary sets forth 14 points of error. He asserts that, in the Common
Issues trial, the judge imposed an improper burden of proof, which he also applied in Keystone.
In addition, he contends that the judge made incorrect scientific, statistical, and credibility
determinations as well as erroneous procedural rulings. The Secretary places the following issues
in contention and numbers them in the PDR as follows:
1. The judge misstated and misapplied the burden of proof in both proceedings. His use
of the wrong burden in the Common Issues Decision fatally tainted his analysis in Keystone. PDR
at 10-12 (addressed in section B., slip op. at 17). '
2. The judge erred in failing to credit the opinions of Mr. Thaxton and Dr. Marple that
AWCs were more consistent with deliberate application of reverse air flow through filters than
with accidental events. PDR at 12 (addressed in section C. 2., slip op. at 26).

1833

3. The judge erred in crediting Dr. Lee's opinion that AWCs were more consistent with
accidental impact forces than with tampering. PDR at 12-14 (addressed in section C. 3., slip op.
at 29).
4. The judge erred in admitting the testimony of Dr. Corn because his testimony was
improperiy \mthheld from the Secretary during discovery. PDR at 14 (addressed in section C. 4.,
slip op. at 34).
5. The judge erred in relying upon the conclusions of Dr. Corn as to accidental causation
of AWCs because they lacked scientific foundation. PDR at 14 (addressed in section C. 4., slip
op. at 34).

6. The judge erred in Keystone in failing to give weight to evidence regarding the optional
quartz sampling program. PDR at 14 (addressed in section F. 2., slip op. at 59).
7. The judge erred in failing to appreciate that the statistical evidence supported
intentional tampering as the likely cause of AWC formation. PDR at 15-16 (addressed in section
D., slip op. at 47).

8. The judge erred in rus analysis of the statistical evidence in Keystone in focusing on
bimonthly sampling periods instead of on March 26, 1990, as the pertinent date for evaluating the
rates of AWCs. PDR at 16 (addressed in section D. 2. b., slip op. at 55).

9. The judge erred in finding that "filter~to-foil" distance and other manufacturing
variables affected the likelihood of AWC formation. PDR at 16 (addressed in section C. 5., slip
op. at 37).

10. The judge erred in Keystone in admitting the testimony of Dr. Lee regarding water
sprays and scrnbber systems because it was improperly withheld from the Secretary during
discovery. PDR. at 17 (addressed in section C. 6., slip op. at 44).
l •, . The judge erred in Keystone in crediting the opinion of Dr. Lee over that of Dr.
Marple concerning the effects of water sprays and scrubber systems. PDR at 17 (addressed in
section C . 6., slip op. at 44).

12. The judge erred in concluding in Keystone that handling changes by the ESD
personnel explained a decline in AWCs on or about March 26, 1990. PDR at 18 (addressed in
section F. 1., siip op. at 58).
·
13. The judge erred in Keystone in his analysis of the credibility of the ESD witnesses.
PDR at 18-20 (addressed in section F. 3., slip op. at 60).

1834

14. The judge erred in excluding evidence of criminal tampering with dust samples by
other individuals and entities. PDR at 20-21 (addressed in section E., slip op. at 55).

B. Burden of Proot21
1. Judge's Conclusions

The judge, in the Common Issues Decision, set forth his conclusion that the Secretary had
failed to carry his burden of proving, by a preponderance of the evidence, that an AWC
established that the operator "had intentionally altered the weight of the filter" or that "deliberate
conduct on the part of the cited mine operators is the only reasonable explanation for the cited
AWCs." 15 FMSHRC at 1521.
In the Keystone Decision, the judge, noting that the burden of proof was the same as in the
Common Issues Decision, set forth his conclusion that the Secretary had the burden of proving,
by a preponderance of the evidence, that the Urling filters resulted from intentional tampering. 16
FMSHRC at 895.
2. Parties' Contentions
The Secretary contends that the judge imposed an improper burden of proof in both
proceedings. PDR at 10-12. He argues that the judge erred in the Common Issues Decision in
requiring him to prove that "deliberate conduct on the part of the cited mine operators is the only
reasonable explanation for the cited AWCs." 15 FMSHRC at 1521 (emphasis added); PDR at 7.
The Secretary asserts that this is a burden of proof greater than the preponderance of evidence
standard and that the judge required the Secretary to prove that there was no contradictory
evidence or explanation regarding the basic propositions the Secretary sought to establish. S. Br.
at 30-35.22 The Secretary asserts that, by using the "only reasonable cause" formulation, the
judge imposed a burden of proof that was greater than the burden in criminal cases. Id. at 31-32;
Oral Arg. Tr. 208-09. The Secretary argues that, under the preponderance standard, he should
have been required to show only that the propositions sought to be established were more likely
true than not. S. Br. at 32; S. Reply Br. at 2-3.

21

This section addresses Issue No. 1 in the'PDR.

22

"S. Br." refers to the Secretary's Brief, filed September 26, 1994. "S. Reply Br." refers
to the Secretary' s Reply Brief, filed December 23, 1994. "K. Br." refers to Keystone' s Brief, filed
November 14, 1994. "I. Br." refers to Respondent Intervenors' Brief, filed November 23, 1994.
"S. P.H. Br. (C.I.)" refers to the Secretary's Posthearing Brief, filed April 30, 1993, after the
Common Issues trial.

1835

:<eystone and the lntervenors respond that the judge explicitly adopted the preponderance
standard in his decisions and properly applied that standard. They argue that the Secretary has
confused the burden of proof with the issue to be decided in the Common Is~ues trial, i.e.,
whether AWCs could only have resulted from deliberate acts. They assert that the judge properly
found that the evidence did not support a finding that intentional tampering was the only
rea$onable explanation. K. Br. at 12-19~ I. Br. at 20-25.
3. Development of the Common Issue
On July 1, 1992, a group of operators moved for consolidation of all Dust Cases for
purposes of a separate trial on the issue of causation of AWCs. They asserted that the basic issue
common to all the citations was whether "the existence of an AWC dispositively prove[d] that an
operator intentionally altered the weight of a respirable dust sample." Contestants' Mot. for
Cons. and Separate Trial at 2. The Secretary opposed the consolidation as well as the operators'
statement of the issue. S. Statement in Opp'n to Contestants' Mot. for Cons. filed July 15, 1992
("S. Opp'n"), at 1-2.
At a pretrial conference on July 17, 1992, the Secretary's counsel requested a
"bellwether" trial involving a large company with a number of citations. Tr. 6, 11-12 (Prehr' g
Conf July 17, 1992). · The Secretary contended that it was imperative to resolve the standard of
proof and how "the issue is to be framed within that standard of proof" Id. at 33. The Secretary
argued that the major issue in the proceedings was whether the weight of a cited filter had been
· altered while in the custody or control of the operator and maintained that the issue of whether a
deliberate or accidental act caused the alteration was relevant only to the penalty. Id at 27-28.
The operntors responded that, in order to establish a violation under the cited regulatory
provisions, the Secretary had to establish a deliberate act by the operator. Id at 40.
The Secretary subsequently withdrew his opposition to a common issues trial. S.
Statement of the Issues and Trial Proposal filed Aug. 7, 1992 ("S. Statement") at 1. The
Secretary urged that, in order to be useful, the common issues trial must include all operators and
be binding on all parties. Id at 13. As before, the Secretary argued that, to prove a violation, he
was not required to prove that intentional tampering occurred but only that a weight alteration
occurred while the filter was within the operator' s control. 23 Id. at 3-10. The operators again
asserted that the issue to be detennined was whether an AWC proved that an operator
intentionally altered the weight of a respirable dust filter. Contestants' Br. in Resp. to Judge's
Prehr'g Conf filed Aug. 7, 1992, at 28.

23

The Secretary asserted that three issues should be determined: {l) whether it was
established, by a preponderance of the evidence, that the weight of the cited filters was altered;
(2) whether it was established, by a preponderance of the evidence, that the weight alteration
occurred while the samples were in the control of the operator; and (3) whether the proposed
penalty was appropriate in light of the level of negligence exhibited. S. Statement at 2.

1836

In the Augus· 1992 Order, the judge noted the sharp disagreement that had emerged
recently between the. parties as to the basic issue presented for resolution: 14 FMSHRC at 1511.
He also stated that "whatever [the Secretary's] position on what is necessary to .prove a violation
of the standard in the abstract, [he] has clearly taken the position . . . that the violations resulted
from deliberate acts."24 Id at 1513. Rejecting the Secretary's assertion that he should not be
required to prove intentional conduct, the judge found that, by the plain meaning of section
209(b), a violation was established by proving that an operator intentionally altered the dust on a
filter. Id at 1513-16. He held that, "as a matter oflaw the accidental, unintentional altering
(changing, reducing) the weight of a filter cassette while the cassette is in the custody of the mine
operator is not a violation ... ." Id. at 1515-16. Citing the burden of trying each case separately,
the judge consolidated the Dust Cases for the purpose of trying the issue common to all. Id at
1511. The judge delineated the issue to be determined as "[w]hether an abnormal white center
(AWC) on a dted filter cassette establishes that the operator intentionally altered the weight of
the filter," and further specified that "the Secretary has the burden of establishing [his] case by the
preponderance of the evidence." Id at 1517.
On August 24, 1992, the Secretary filed a Motion for Reconsideration and Clarification of
the August 1992 Order ("S. Mot. for Recons."), in which he challenged the judge's interpretation
of the Secretary's regulations to require proof of intentional conduct. S. Mot. for Recons. at 2-3,
6.

In a September 8, 1992, order ("September 1992 Order"), the judge denied the motion for
reconsideration and repeated his conclusion that "the accidental, unintentional altering (changing,

24

As support for this statement, the judge referenced the citations, in which the Secretary
uniformly alleged the operators' negligence level as "reckless disregard," and his proposed
penalties, which ranged from $1,000 to $1,800 for violations of sections 70.209(b) and 71.209(b)
and $10,000 for each violation of section 90.209(b). 14 FMSHRC at 1512. (In his closing
arguments in Keystone, the Secretary argued for a fine of $5,000 for each violation of section
70.209 (b). K. Tr. 4321.) The judge also noted that, in his Response to the First Set of
Interrogatories, dated January 10, 1992, propounded by Utah Power and Light Co. ("Resp. to
Interrog."), the Secretary responded affirmatively to the question: "State whether it is the
Secretary' s contention that the alleged AWC on the cited sample could not occur in any manner
other than by the intentional act of an individual." 14 FMSHRC at 1513, citing Resp. to Interrog.
No. 17(h) at 12. In addition, the judge relied on T~axton's deposition testimony:
Q.

Okay. So that you believe that the phenomenon described in those
citations resulted from deliberate dust removal; correct?

A.

It resulted from a deliberate act, yes.

14 FMSHRC at 1513~14, quoting Thaxton Deposition (July 25, 1991) at 310-12.

1 83 7

reducing) the weight of a filter cass. :tte while the cassette is in the custody of the mine operator is
not a violation . .. ." 14 FMSHRC 1675, 1676 (September 1992) (ALJ). The judge stated:
The purpose of the common issues trial is to receive evidence
concerning this allegation [so] that I may detennine whether or not
the AWCs on the cited filters can only have resulted from such
deliberate acts. (emphasis added).

Id. at 1677. At the outset of the Common Issues trial, the judge again stated that, to prevail, the
Secretary must prove, by a preponderance of the evidence, that an AWC establishes that the mine
operator intentionally altered the weight of the filter. Tr. 7.
The Secretary did not appeal, either in a petition for interlocutory review (29 C.F.R.

§ 2700.76) or in his PDR f:>iving rise to this proceeding, the judge' s ruling that, in order to prove a
violation, the Secretary w is required to prove deliberate acts. Section 113(d)(2)(A)(iii) provides:
"If [petitions for review are] granted, review shall be limited to the questions raised by the
petition." 30 U.S .C. § 823(d)(2)(A)(iii). Consequently, that determination is not in issue in this
proceeding.
.
.
4. Judge's Formulation and Application of the Burden of Proof

a. Applicable ~egal Principles
The Mine Act imp-Jses on the Secretary the burden of proving each alleged violation by a
preponderance of the credible evidence. Garden Creek Pocahontas Co., 11FMSHRC2148,
2152 (November 1989). The preponderance standard, in general, means proof that something is
more likely so than not so. See 3 Edward J. Devitt et al., Federal Jury Practice and Instructions
§ 72.01 (1987)~ 2 Kenneth S. Brown et al., McCormick On Evidence§ 339, at 439 (4th ed.
1992)~ Hopkins v. Price Waterhouse, 737 F. Supp. 1202, 1206 (D.D.C. 1990). The Supreme
Court, in Concrete Pipe, 124 L. Ed. 2d at 563, relied on by the judge, 16 FMSHRC at 895,
explained that " (t ]he burden of showing something by a 'preponderance of the evidence,' the most
common standard in the civil law, simply requires the trier of fact ' to believe that the existence of
a fact is more probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the Uudge] of the fact' s existence."' See also 2McCormick § 339, at 439
n. 12, citing Model Code of Evidence, Rules 1(3) & (5).
b. Burden of Proof in Common Issues Decision
The Common Issues Decision fuJly supports the judge' s application of the proper burden
of proof. We find that, in his rulings prior to and during the trial as well as in his decision, the
judge appropriately articulated the appropriate burden. Based on our review of the record, we

1838

conclude that the judge also properly applied the Lurden. Further, the judge's use of the phrase
"only reasonable explanation" addressed the Secretary's argument, not the burden of proof.
In the September 1992 Order, the judge ordered the Common Issues trial to receive
evidence on which to base a determination of whether AWCs can only have resulted from
deliberate conduct. 14 FMSHRC at 1677. At the commencement of the trial, the judge stated
that, in order to prevail, the Secretary must prove by a preponderance of the evidence that dust
cassettes with AWCs were caused by mine r1perators intentionally altering their weight. Tr. 7.
The Secretary, in his Posthearing Brief and .?roposed Findings of Fact, argued that he had
established that the "only reasonable explanation" for the AWCs was intentional tampering.
S.P.H. Br. (CJ.) at 1-2, 224.
In his decision, the judge reiterated that the "Secretary has the burden of proof' and that
this burden requires that the Secretary ptove by a "preponderance of the evidence that (1) the
term ' AWC ' has a coherent meaning and was consistently applied; (2) the cited AWCs can onJy
have resulted from intentional acts; and (3) the AWCs resulted in weight losses in the cited
filters." 15 FMSHRC at 1463-64. The judge addressed both the issue and the Secretary's "only
reasonable explanation" language in his decision:

1. The Secretary . . . failed to carry his burden of proving by a preponderance of the
evidence that an AWC on a cited filter establish[ed] that the mine operator intentionally
altered the weight of the filter.
2. The Secretary . . . failed to carry his burden of proving by a preponderance of the
evidence that deliberate conduct on the part of the cited mine operators [was] the onJy
reasonable explanation for the cited AWCs.

Id at 1521. The two-part holding reveals that, first, the judge addressed the issue being tried in
the Common Issues trial, i.e., whether the existence of an AWC established deliberate conduct,
and generally concluded that the Secretary had not shown that it was more likely than not that an
AWC established that a mine operator intentionally tampered with the filter.' Second, the judge
addressed the Secretary's argument that he had proven deliberate conduct was the only
reasonable explanation for AWCs and found that the Secretary had failed to prove such assertion
by a preponderance of the evidence. The Secretary now argues that we should reverse the judge
for addressing the issue being tried and for responding to the Secretary's argument as set forth in
his posthearing brief
In arguing that the judge's reference to the "only reasonable explanation" for AWCs was
reversible error, the Secretary has confused the burden of proof articulated by the judge with his
statement of tpe central issue to be determined in the Common Issues trial. The issue, as set forth
in the September .1992 Order, was whether the presence of an AWC, by itself, indicated that
tampering had occurred. 14 FMSHRC at 1677. As the judge explained: "[t]he basic issue to be
determined in the common issues trial is whether an AWC on a cit~d filter establishes per se that

1839

the mine operator intentionally altered the weight of the filter." 15 FMSHRC at 1464 (emphasis
added). We believe the judge appropriately exercised his discrcdon in setting forth that issue for
determinati.on in the Common Issues triaJ. Had per se violations been established, mine specific
trials could have been avoided, except as to issues other than the violation, e.g., negligence and
penalty. The determination sought by the Secretary in this review proceeding (that he had shown
by a preponderance of the evidence that it was more likely than not AWCs were the result of
deliberate conduct) would not have obviated the need for rn.ine specific trials on the issue of
whether each particular operator had intentionaUy altered the weight of a filter and, thus, violated
section 209(b). 2 s When he determined the issue to be decided in the Common Issues trial, in the
August 1992 Order, the judge was endeavoring to avoid such protracted litigation. See 14
FMSHRC at 1511 .
Contrary to the Secretary' s assertion, S. Br. at 31-33, the judge did not require that the
Secretary eliminate all other causes of AWCs. Application of the preponderance standard
necessarily required an examination of the evidence as to other possible causes of AWCs. The
judge weighed the evidence and concluded that the Secretary simply had not shown that it was
more likely than not that an AWC established that a mine operator had engaged in tampering. He
stated: "Weighing the conflicting opinions and considering all the evidence of record, especially
the systematic studies of the experts, I conclude that the evidence does not establish that the
AWCs resulted from deliberate mishandling." 15 FMSHRC at 1521.26 The judge found that the
Secretary failed to carry his burden of proof, which he correctly characterized as the
preponderance of the evidence standard, because "too many other potential causes for the dust
dislodgment patterns on the cited AWCs" existed. Id. at 1521-22. The judge thus determined
that the Secretary' s evidence did not have such "convi11cing force" that what he was required to
prove (that AWCs were the result of deliberate tampering) was "more likely true than not true."
See, e.g., Merzon v. County of Suffolk, 767 F. Supp. 432, 444-45 (E.D.N.Y. 1991); St. Paul Fire
& Marine Ins. Co. v. United States, 6 F.3d 763,769 (Fed. Cir. 1993)~ 16 FMSHRC at 896.
The Secretary also argues that, contrary to the judge's statement, his position early in the
case was that intentional tampering was the most likely, but not necessarily the only, cause of
AWCs. S. Reply Br. at 3 n.3; S. Letter to Comm'n dated April 4, 1995, at 2. Although the judge

25

In his Motion for Reconsideration of the August 1992 Order, the Secretary
acknowledged as much. He noted that a decision in the Common Issues trial establishing only a
presumption that AWCs are more likely than not the result of deliberate conduct would do little
to advance the litigation. S. Mot. for Recons. at 12.
26

The Secretary complains that the judge erred by failing to assign probability factors to
the possible causes of AWCs. See Oral Arg. Tr. 43-44, 48-49. It was not necessary for the judge
to determine the level of probability for each possible cause. Rather, the Secretary had
responsibility for proving that AWCs resulted from intentional tampering; the judge had only to
decide whether the Secretary succeeded in proving that by a preponderance of the evidence. The
judge determined the Secretary had not.

1840

referenced the Secretary's earlier allegations of deliberate conduct as evidenced by the allegations
set forth in the citations, the size of his penalty proposals, his responses to int~rrogatories, and
Mr. Thaxton' s deposition testimony, 27 the judge did not rely on those allegations in determining
that deliberate conduct must be shown in order to prove a violation. Rather, he relied on the plain
language of the regulation. 14 FMSHRC at 1513-16. Thus, irrespective of the Secretary's
position on whether deliberate conduct need be proven, the judge concluded, based on the plain
language of the regulation, that deliberate conduct was a necessary elemf;nt in proving a violation
of section 209(b). In view of that determination, the judge appropriately exercised his discretion
in seeking to determine, by way of the Common Issues trial, whether the existence of an AWC, in
itself, established deliberate conduct.
The Secretary did not appeal the judge' s determination that deliberate conduct must be
proven to establish a violation of section 209(b) and, consequently, that determination is not in
issue in this proceeding. 30 U.S.C. § 823(d)(2)(A)(iii). As noted, he did not seek interlocutory
review, pursuant to the Commission's Procedural Rules (29 C.F .R . § 2700.76), of the August
1992 Order or the September 1992 Order, which set forth the central issue and the burden of
proof for the Common Issues trial.
c\ Burden of Proof in Kevstone Decision
We disagree with the Secretary's assertion that the judge erred as to the burden of proof
in the Common Issues trial and that this error "fatally tainted his entire evaluation of the evidence"
in Keystone. S. Br. at 34. The judge used the phrase, "only reasonable explanation," in the
Keystone Decision solely in recounting his holdings in the Common Issues Decision. 16
FMSHRC at 861. 28 The judge did not require the Secretary to prove that the cited AWCs could
only have resulted from deliberate tampering. Rather, he expressly recognized that the Secretary
bore the burden of proving by a "preponderance of the evidence that Keystone tampered with the

27

We also note the Secretary's allegation of deliberate tampering set forth in the Special
Assessment Findings issued to all respondents when the penalties were proposed for the contested
violations. See 14 FMSHRC at 1512.
28

In Keystone, the judge stated:
On the basis of all the evidence introduced in the common
issues trial, I concluded that the Secretary failed to carry his burden
of proving by a preponderance of the evidence .. . that deliberate
conduct on the part of the cited mine operators is the only
reasonable explanation for the cited AWCs.

16 FMSHRC at 861.

18 41

cited samples." Id at 896. Relying on Concrete Pipe, the judge specificaUy discussed the
meaning of that term:
·
The burden of proving by a preponderance of the evidence requires
the party bearing the burden to convince the trier of fact "that the
existence of a fact is more probable than its nonexistence ...."

Id. at 895, quoting 124 L. Ed. 2d at 563. As noted, he also correctly explained that, in order to
preponderate, the evidence must be sufficient to convince a trier of fact that the proposition
asserted is more likely true than not true and that, where the evidence is equally balanced, the
plaintiff has failed to meet his burden. 16 FMSHRC at 895-96, citing Hopkins, 737 F. Supp.
1202; Merzon, 767 F. Supp. 432; Smith v. United States, 557 F. Supp. 42 (W.D. Ark. 1982),
afj'd, 726 F. 2d 428 (8th Cir. 1984). Thus, in Keystone, the judge clearly indicated that he
understood the preponderance standard and correctly construed that standard to m~an nothing
more than proof that a proposition is more probable than not. See 16 FMSHRC at 895-96.29
According to the Secretary, the judge's statement that the "same evidentiary burden"
applied in both the Keystone and Common Issues trial implies that a standard of proof higher than
preponderance was applied in Keystone. S. ·Br. at 34-35. In our opinion, the judge's language
merely indicates that In both cases he applied the preponderance of the evidence standard in
detennining whether the Secretary had proven that the AWCs resulted from intentional
tampering. Except where he repeated his conclusions from the Common Issues Decision, the
judge did not incorporate into Keystone the language articulating the issue disposed of in the
Common Issues Decision, i.e., whether an AWC establishes that an operator intentionally altered
the weight of the filter. See 16 FMSHRC at 861; 15 FMSHRC at 1464, 1521. References by the
judge in the Common Issues Decision to "only reasonable explanation" addressed the issue before
him and the Secretary's argument, and were not a departure from the preponderance of evidence
standard. We conclude that the judge correctly applied the preponderance standard in Keystone.
In sum, we conclude that the judge correctly applied the preponderance of the evidence
standard in both the Common Issues and Keystone Decisions.
C. Scientific Issues
1. Introduction
The judge considered the entire record before him in making factual findings and in
reaching conclusions in his Common Issues Decision and in his Keystone Decision. 15 FMSHRC
29

We note that the Secretary was in the same position at the commencement of the

Keystone trial as he would have been had the judge not cons'olidated the Dust Cases and held the
Common Issues trial. He was required to prove, by a preponderance of the evidence, that
Keystone's AWCs were caused by deliberate tampering.

1842

at 1456, 1521; 16 FMSHRC at 903. Many of his findings were drawn from the reports and
testimony of credited experts. On review the Secretary raises a number of issues concerning the
judge's admission and crediting of the scientific evidence presented by the expe_rt witnesses to
explain the causes of AWCs. Specifically, the Secretary contends that the judge erred in failing to
credit Mr. Thaxton's and Dr. Marple's opinions that the appearances of AWCs were consistent
with blowing air into the filters; in crediting Dr. Lee's opinion that AWCs were consistent with
accidental impacts; in admitting and relying on Dr. Corn's opinion that accidental events were the
likely cause of AWCs; in analyzing evidence of filter manufacturing variables; and in admitting
and crediting Dr. Lee's testimony on the effect of water sprays and scrubber systems on the
susceptibility of AWC formation. PDR Issues 2, 3, 4, 5, 9, 10, and 11.
In considering the issues raised by the Secretary's petition, we are guided by principles
established under Rule 702 of the Federal Rules of Evidence: "If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. § 702. "Expert
witnesses testify to offer their scientific opinions on technical matters to the trier of fact.,, Cyprus
TonopahMining Corp., 15 FMSHRC 367, 372 (March 1993), quoting Asarco, Inc., 14
FMSHRC 941, 949 (June 1992). "Unlike an ordinary witness, ... an expert is permitted wide
latitude to offer opinion's, including those that are not based on first-hand knowledge or
observation." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S._, 113 S. Ct. 2786,
125 L. Ed. 2d 469, 482 (1993).
All the witnesses who testified in technical or scientific areas were accepted by the judge
as experts in their respective fields. The qualification of experts and the admission of their
testimony are matters within the discretion of the trial judge. Coleman v. Parkline Corp., 844
F.2d 863, 866 (D.C. Cir. 1988); Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir. 1976), cert.
denied, 426 U.S. 907 (1976). "In the absence of clear error, as a matter oflaw, the trial judge's
decision [as to a witness's qualification to express an opinion] will not be reversed ." Payton v.
Abbott Labs, 780 F .2d 147, 155 (1st Cir. 1985), quoting A. Belanger & Sons, Inc. v. United
States, 275 F.2d 372, 376 (1st Cir. 1960). Under an abuse of discretion standard, "a trial court's
decision [to admit expert witness testimony] will not be disturbed unless the appellate court has a
definite and firm conviction that the lower court made a clear error ofjudgment or exceeded the
bounds of permissible choice in the circumstances." Post Office v. Portee, Inc., 913 F.2d 802,
807 (10th Cir. 1990), quoting United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986).
"[T]he resolution of conflicting testimony, including that of expert witnesses, is for the
trier offact." Jackson v. Hartford Accident and Indemnity Co., 422 F.2d 1272, 1275 (8th Cir.
1970) (citation omitted). If the opinions of expert witnesses in a proceeding conflict, the judge
must determine which opinion to credit, based on such factors as the credentials of the expert and
the scientific bases for the expert's opinion. Cyprus Tonopah, 15 FMSHRC at 372 (citation
omitted). "[A] trial judge must ensure that .. . scientific testimony or evidence admitted is not
only relevant, but reliable." Daubert, 125 L. Ed. 2d at 480. Further, the bias of an expert witness

1843

is a proper matter for the judge to consider in determining the weight to be given the expert' s
opinion. See United States v. Cutler, 58 F .3d 825, 836 (2d Cir. 1995). "[A]n ALJ has substantial
latitude in choosing between conflicting expert testimony." L & J Energy Co. v. Secretary of
Labor, 57 F.3d 1086, 1088 (D.C. Cir. 1995); accord Cyprus Tonopah, 15 FMSHRC at 373. The
judge's decision to credit the opinion of one expert over the opinion of another expert is
reviewable under an abuse of discretion standard. Chapman v. United States, 169 F .2d 641, 645
(9th Cir. 1948), cert. denied, 335 U.S. ·860 (1948) (citations omitted); see also Autoskill, Inc. v.
National Educ. Support Sys., 994 F.2d 1476, 1493 (10th Cir. 1993); An-Son Corp. v. Holland.America Ins. Co., 767 F .2d 700, 702-03 (10th Cir. 1985) (when "evidence consisted primarily of
a ' battle of experts,"' resolution was the appropriate province of the trial court and appellate
court was " loath to disturb" a finding based on such a resolution). Accord Cyprus Tonopah, 15
FMSHRC at 373.

In reviewing a judge's factual determinations drawn from credited testimony, including
expert testimony, the Commission is bound by the terms of the Mine Act to apply the substantial
evidence test. See 30 U .S.C. § 823(d)(2)(A)(ii)(I). The term "substantial evidence" means "such
relevant evidence as a reasonable mind might accept as adequate to support [the judge' s]
conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163 (November 1989),
quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). "Ilf an] ALJ provide[s] an
explanation ... for disregarding [other evidence], the expert testimony alone could have
constituted substantial evidence in support of the conclusion." L &J Energy, 57 F .3d at 1088.
2. Judge's Rejection ofMr. Thaxton' s Opinion on AWC Causation30

The judge concluded that Urling' s AWCs did not result from normal sampling; something
happened in the mine or thereafter to cause the abnormal appearances. 16 FMSHRC at 897. He
found Thaxton' s conclusions that the cause was- intentional tampering "to a considerable extent
subjective." He noted that Thaxton' s testing was unscientific and that his distinction between
cited and no-call filters was "tenuous at best." The judge was "not able to conclude on the basis
ofThaxton' s reports and testimony that the abnormal appearances on the Urling filters were
caused by intentional tampering." Id

In his PDR., the Secretary asserts that the judge erred in failing to credit the findings of
Mr. Thaxton and Dr. Marple31 that "the appearances of cited AWC filters at Urling wete more
consistent with appearances generated . . . by deliberately blowing reverse air . . . than by
appearances generated by simulated accidental events." PDR at 12. In support, the Secretary
argues that the judge's rejection of Thaxton's op~nion as to the cause of AWCs was based, in

30

This section addresses Issue No. 2 in the PDR.

31

The Secretary has offered no support in his briefs for his assertion that the judge erred
in failing to credit Dr. Marple' s opinion. Consequently, we do not address it. ASARCO Mining .
Co., 15 FMSHRC 1303, 1304 n.3 (July 1993).

1 84 4

critical part, on his no-call findings. Id; S. Br. at 55. He takes issue with the judge's
determination that Thaxton's reasons for citing no-call filters were "tenuous at best" and not "an
appropriate exercise of agency discretion." S. Br. at 55-56. The Secretary contends that the nocall designation was a reasonable way of handling a few questionable filters and that a decision
not to cite those filters was a reasonable exercise ofMSHA's discretion. Id. at 59. Keystone
counters that the judge rejected Thaxton's testimony in large part because of his failure to provide
a scientific basis for his conclusions and because of his bias. K. Br. at 64-69. According to
Keystone, the judge' s rejection ofThaxton's opinion was justified by the record. Id. at 64, 69,
112-18.
The judge did not err in declining to conclude, based on Thaxton's opinion, that
intentional tampering caused AWCs. He found Thaxton's testing to be subjective and nonsystematic, and not conducted with any scientific rigor. 16 FMSHRC at 897; 15 FMSHRC at
1473. The judge noted, in comparing Thaxton's background to the "impressive credentials" of
Lee and Marple, that Thaxton "is not a scientist ... ." 16 FMSHRC at 898. Thaxton did not use
written criteria to distinguish normal filters from those he considered abnormal, Tr. 133, nor did
he prepare a "comprehensive written protocol based on scientific testing relating specific
appearances to different kinds of tampering." 16 FMSHRC at 897. None of his tests were based
on a written protocol. Tr. 123. No written report of his 1983 or 1989 tests was introduced into
evidence. 32 He did not recall the number of filter cassettes he had tested in 1983, but estimated
that "between 25 to 50 filters ... were played with to see how they would behave." Tr. 110.
Nor did Thaxton subject the 1983 test filters to impact forces in an attempt to determine the
potential for dust dislodgment patterns as a result of accidental events. Tr. 119, 123. Thaxton
kept no records as to the particulars of his examinations, such as whether he reviewed the filters
from the reverse side or with a magnifying glass. Tr. 619-21 . He failed to note the characteristics
that initially caused him to cite a particular filter. Tr. 611, 628; see also Tr. 619-21. We conclude
that the judge did not abuse his discretion in determining, on the basis of this evidence, that
Thaxton's opinion on the causes of AWCs was not sufficiently grounded in reliable scientific
evidence to support a conclusion of deliberate tampering. "[A] trial judge must ensure that . ..
scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 125 L. Ed.
2d at 480; Cyprus Tonopah, 15 FMSHRC at 372 (in evaluating an expert's opinion, a judge may
properly focus on the scientific basis for that opinion).

32

Thaxton kept inadequate records of his tests. He maintained no data on the 1983
testing other than one page containing eight to ten of the actual filters with the weight recorded
before and after application ofreverse air flow. Tr. 110, 118-19. At trial, Thaxton was
questioned regarding photographs of some test filters he created in 1991, but he was unable to
identify the specific mechanism that caused the filter appearances in the photographs because he
kept no records of that testing. Tr. 109-10, 120-22.

184 5

The Secretary asserts that the judge erred in discounting Thaxton's testimony based on a
lack of distinction between cited and no-call filters.33 Denying that the similarity between cited
and no-call filters was the result of inconsistency on MSHA' s part, the Secretary claims
prosecutorial discretion and points to evidence of other factors that sometimes determined
Thaxton's decision on whether filters should be cited. S. Br. at 56-60. The Secretary states that
Thaxton considered whether the same operator had submitted other filters with AWCs and
whether those filters were submitted at or near the time of other AWC submissions. K. Tr: 117476. Thus, if a questionable filter was the only unusual filter submitted by an operator, Thaxton
was not likely to cite it. K. Tr. 1172-73. On the other hand, a questionable filter was cited if
similar fiJters had been submitted by that operator within a short time period. K. Tr. 1174-76. If
a questionable filter was submitted by an operator who had submitted a number of filters with
AWCs, Thaxton considered that filter to demonstrate tampering. K. Tr. 917-18. Thus, it appears
that, in evaluating marginal patterns of dust dislodgment, Thaxton's reliance on an operator's
other filters exaggerated differences in citation rates between operators and differences in citation
rates over time. Thaxton's procedure provides further evidence that the judge was well within his
discretion in finding Thaxton's determinations to be non-systematic and lacking in scientific rigor
and in discounting Thaxton's opinion as to the causes of AWCs.
The judge, in determining that Thaxton' s testimony was not sufficiently objective to
support a determination to cite an operator with deliberate conduct, also referenced
Thaxton's own testimony that: "[t]he no-call filters do not exhibit th[e] degree of dust removal
that I would feel comfortable ... saying that there is a citation.to be issued." Tr. 139; 15
FMSHRC at 1466; 16 FMSHRC at 897. This testimony reveals both the imprecision and
subjectivity in Thaxton's determinations and provides support for the judge' s decision to give
diminished weight to his opinion testimony as to the causes of AWCs. As noted by the judge,
decisions to charge operators with deliberate tampering must be based on "more objective
standards." 16 FMSHRC at 897.
The judge also gave diminished weight to Thaxton's determination as to causation of
AWCs because "he was not a disinterested witness." Id. at 872; 15 FMSHRC at 1473. He had
been employed by MSHA for 16 years as an industrial hygienist. 15 FMSHRC at 1473; Gov't
Ex. 344. Thaxton determined the issuance of each citation. 16 FMSHRC at 859. We conclude
that, in evaluating Thaxton's testimony, the judge properly considered the fact that Thaxton was
not disinterested. The bias of an expert witness is a proper matter for a court to consider in
weighing the expert's opinion. See Cutler, 58 F.3d at 836.

33

Dr. Lee testified that many of the Urling filters were indistinguishable from no-calls. 16
FMSHRC at 876; K. Ex. 2001, at 3. The judge himself observed filters at issue in both the
Common Issues and Keystone trials. 15 FMSHRC at 1468; 16 FMSHRC at 869.

18 46

We conclude that the judge did not abuse his discretion in determining that Thaxton' s
opinion was not sufficiently grounded in reliable scientific evidence nor sufficiently objective and
disinterested tO" support a determination of deliberate tampering.
3. Judge's Crediting ofDr. Lee's Opinion on AWC Causation34

In his Common Issues Decision, the judge found that AWCs could have resulted from
intentional acts. 15 FMSHR.C at 1513. Crediting the opinion testimony of Dr. Lee and other
operator experts, he also found that AWCs could have resulted from accidental and incidental
impacts to the cassette and hose. Id at 1513-14. He found that many of the filters subjected to
impact tests exhibited dust dislodgment patterns indistinguishable from cited filters. Id at 1514.

In his Keystone Decision, the judge concluded that 73 of the 75 cited filters resulted in
whole or in part from reverse air flow, but that the forces involved were "generally less than those
created by deliberate blowing through the filter cassette." 16 FMSHRC at 900. He found that
none of the Urling filters exhibited cones and that this indicated only slight impact forces had
created the dislodgments. Id at 899-900. The judge further concluded that the "dust
dislodgrnent patterns may have been influenced by impacts to the cassettes or sampling assemblies
as well as reverse air though the cassettes," as described in Dr. Lee's mixed-mode theory. Id. at
900.
In his PDR, the Secretary contends that the judge erred in crediting and relying on Lee's
opinion that AWCs were consistent with accidental impacts rather than intentional blowing
through filter cassettes. PDR at 12-13. In support, he argues that the relative degrees of force
involved in intentional blowing and accidental impacts had not been measured, that Lee's opinion
on his "coning theory" in the Keystone trial was inconsistent with his opinion in the Common
Issues trial, that his classification system was unreliable, and that the judge erred in crediting Lee's
opinion on causation of AWCs while rejecting his opinion on MSHA handling. Id at 13-14. The
Secretary further argues that Lee's mixed-mode theory, advanced in Keystone, was unreliable and
that the judge erred in failing to provide adequate reason for crediting Lee's opinions. S. Br. at
64-75.
In support of his position that the judge erred in crediting Lee's opinion that AWCs were
consistent with accidentally caused impacts, the Secretary argues that Dr. Marple's testimony
provided clear evidence that the cited AWCs were consistent with intentional tamp~ring and
inconsistent with accidental forces. S. Br. at 60. He points to Dr. Marple's testimony that his
experiments simulating accidental events produced few AWCs. Id. at 60 n.22.
Keystone counters that the record fully supports the judge's conclusions that the
dislodgment patterns on Urling filters may have been caused by impacts to the hoses, causing

34

This section addresses I~sue No. 3 in the PDR.

184 7

reverse air pn;ses, as well as impacts to the cyclones, causing mechanical pulses, as set forth in
Lee's mixed-mode theory, and that these forces, which were weaker than those caused by
deliberate blowing, resulted in the absence of cones on Urling filters and in djslodgment patterns
that were often larger and more diffilse than those caused by deliberate blowing. K. Br. at 74-79,
82-86.
Dr. Lee has a doctorate in solid state physics and is president and chief scientist of the
R. J. Lee Group, which had performed testing and research studies for numerous government
agencies and for private industry. 15 FMSHRC at 1470; Tr. 5923-48, 5935; R. Ex. IOOIA. He
was accepted as an expert witness in physics, materials characterization and analysis, and
environmental monitoring. 15 FMSHRC at 1488. His opinion that AWCs could be caused by
accidental means was based on his Conunon Issues experiments, in which he generated more than
3, 10( dust samples in the R. J. Lee Group dust tunnel, using coal from various seams and
particles of similar size, shape, and aerodynamic diameter as found in coal mines. Id at 1489.
His samples were collected under controlled temperature and humidity. Id He also obtained
more than 650 samples from mines across the country. Id. He then conducted a series of tests
involving impacts to the cyclones and hoses of dust sampling units, which produced filters with
AWCs. Id; R. Ex. 1001, at 11-13, R. Ex. 1002; see Tr. 6315-51. In addition to his reports and
testimony, Lee showed a videotape recording of three incidents of a pump being dropped on a
hose, two of which resulted in AWCs on the cassette filter. R. Ex. 1006. In the Keystone
proceeding, Lee refined his experiments and performed 55 tests in which carrying boxes were
dropped on sampling unit hoses; 40 AWC appearances, similar to those of the Urling filters,
resulted. K . Ex. 2002.
Lee's opinion as to accidental causation of AWCs was also corroborated by other experts,
Dr. McFarland and Dr. Grayson, who testified that they had produced AWCs through impacts.
(McFarland) Tr. 4759-60, 4915, 5)99-5200; (Grayson) R. Ex. 1014, at 16; Tr. 5551. McFarland
conducted a courtroom demonstration in which a 31-pound tool box was twice dropped on the
hose ofa sampling assembly and twice resulted in AWCs. 15 FMSHRC at 1503; Tr. 4877-80,
4887-88, 4891, 5187-90.
Moreover, the record shows that Dr. Marple, the Secretary' s expert, came to realize that
impacts to hoses could result in AWCs. His first report, Gov't Ex. 280, failed to address the
effects of hose impacts or the effect of filter-to-foil distance on susceptibility to AWCs and he
perfonned further studies only after he learned of these phenomena from the operators' experts.
Tr. 2277, 2282. After performing hose impact tests, Marple retracted the conclusion set forth in
his first report that AWCs "could only occur by an intentional act." Gov't Ex. 280, at 7. In his
supplemental report, Marple concluded that "extreme mishandling" could cause AWCs.35 Gov't
Ex. 282, at 14. Compare Gov't Ex. 280 with Gov't Ex. 282. Marple was able to replicate AWCs
by forcefully stepping on hoses. Tr. 2354-56; Gov' t Ex. 282, at 6-7; see also Gov' t Ex. 311. The

35

The changing nature ofMarple's opinions diminishes their weight. See, e.g.,
Kenbrooke Fabrics, Inc. v. Holland Fabrics, Inc., 602 F. Supp. 151, 154 (S.D. N .Y. 1984).

1 84 <1

Secretary, in his Reply Bric fto the Commission, concedes: "[A]s evidence was developed during
the course of discovery, tL~ Secretary's understanding of AWC fonnation also developed." S.
Reply Br. at 3 n.3.
Similarly, Mr. Thaxton reviewed Lee's experimental filters and determined that 105 had
AWCs. Tr. 439, 445. Of those 105 filters, 40 had been fonned by cassette drop, cyclone drop,
hose impact, hose tread, or hose wrap -- each a type of forceful contact. See Gov't Ex. 267,
Attach. 2; Tr. 7062-63. See also Tr. 577-78. Thaxton's testimony that 40 impact-caused AWCs
were citable also corroborates the evidence that accidental events could have caused the AWCs.
36

Thus, we conclude that the judge did not err in choosing to credit Lee's opinion over
Marple's to the contrary.
The Secretary also contends that Lee's testimony on coning in Keystone was inconsistent
with his testimony in the Common Issues trial. S. Br. at 61 .37 In the Common Issues proceeding,
Lee stated that coning is not necessarily associated with AWCs, R. Ex. 1003, at 2; Tr. 6418-37,
and that deliberate reverse air flow is not necessary for the creation of cones. R. Ex. 1003, at 5.
Lee noted that cones were present on the MSHA inspectors' sample filters. Id. In Keystone, he
. stated that "air blowing through filters using reverse air has a tendency to generate cones," K. Tr.
3879; K. Ex. 2001, at 7, and that, as a general proposi~ion, deliberate reverse air flow involves
more force than accidental events. K. Tr. 3988. Lee concluded that the slight dust dislodgment
on many of the Urling filters indicated causation by a much smaller force than that generated by
deliberate reverse air. K . Ex. 2001, at 5; see also 16 FMSHRC at 899. We find no discrepancy
between Lee's testimony in the Common Issues trial and his testimony in Keystone. In fact, Lee's
report in Keystone expressly hannonizes his conclusions with respect to the Urling filters with his
general observations in the Common Issues trial: "Results by all experts indicate that physically
blowing through the outlet creates a high percentage of cones although some dimples and cones
are observed under other conditions." K. Ex. 2001, at 7. Moreover, Thaxton corroborated Lee' s
view by acknowledging in both trials that cones indicated very forceful application of reverse air
to the filters. Tr. 209, 1258; K. Tr. 908, 1072. Thaxto~ testified that R&P filters had only slight
cones or dimples as compared to those of some other mines, in which 50 to 60% of the cited
filters had cones.38 K. Tr. 1072-73.

36

Thaxton did not review Lee's 3,877 filters under scientific, double-blind .conditions and,
therefore, knew that he was reviewing filters of the operators' expert. Gov't Ex. 267, at 4-6; Oral
Arg. Tr. 46.
The Secretary's Brief refers to Lee's Coning Report as R. Ex. " 1002" ~ that report was
admitted as R. Ex. "1003." Tr. 5996.
37

38

Although, in 1992, Thaxton had classified seven Urling filters as having cones, a year
later he detennined that none of the filters had cones and only one or two had dimples. K. Gov't
Ex. 505. Thaxton believed that cones relaxed with time. His belief was based not on systematic

1849

Consequently, we reject the Seer• .tary' s contention that Lee's testimony on coning was
inconsistent.
The Secretary further contends that the judge erred in accepting Lee' s opinion as to
accidental AWC causation while rejecting his opinion that MSHA' s handling of sample filters was
one cause of AWCs. PDR at 13-14; S. Br. at 74, citing Ona Corp. v. NLRB. 729 F.2d 713, 719
(11th Cir. 1984) ("ALJ's credibility finding will be disregarded if . . . inherently unreasonable or
self-contradictory"). We conclude ~hat it was not unreasonable or contradictory for the judge to
accept Lee' s opinion as to AWC formation in general, which was based on scientific experiments,
while rejecting other, less compelling, aspects of his opinion. See DeSamo v. Department of ·
Commerce, 761 F.2d 657, 661 (Fed. Cir. 1985); Hathaway v. Merit Systems Protection Bd., 981
F.2d 1237, 1241 (Fed. Cir. 1992). In our view, the judge closely examined Lee' s opinion,
including its underlying basis, anu properly chose to credit those aspects that he found persuasive.
The judge similarly credited cer!ain aspects ofThaxton' s opinion, concerning the classification of
filters, 15 FMSHRC at 1469, while rejecting other aspects, concerning causation. Id. at 1473-74,
1513, 1518, 1521.
The Secretary also asserts that the judge erred in accepting Lee's opinion as to causation
because his AWC classification system was unreliable. PDR at 13; S. Br. at 61-64. The judge
recognized that Lee's'-9lassification system was not applied without error. 15 FMSHRC at 1489.
Lee' s inconsistency, however, in categorizing filter appearances does not substantially detract
from his conclusion, drawn from his experiments, that accidental impacts to sampling equipment
can cause AWCs.
The Secretary also challenges, on the basis that the theory lacks scientific support, S. Br.
at 69, the judge's crediting of Lee' s mixed-mode theory, in which he attributed the appearance of
the Urling filters, which differed from those blown through deliberately, to a combination of
events involving both impacts to the hose (causing reverse air pu'lses) and impacts to the cyclone
(causing mechanical pulses). K. Ex. 2001, at 18; K. Tr. 3849-50, 3864-65, 3867-68.39 That
theory is supported by Lee' s experiments, involving mixed-mode events, by Marple's testimony
and videotape, Gov't. Ex. 286, and by Marple and Rubow's dust dislodgment studies. As noted,

experimentation but on his knowledge that filters are composed of a plastic material and plastics
flatten out with time, as well as on his observation of one coned filter. K. Tr. 888-891. Lee, in
his observations of numerous experimental filters, found no evidence that cones relaxed or
flattened over time. K. Tr. 3883.
39

We note that Marple testified to the contrary, that mixed-mode events failed to cause
filter appearances similar to those on the cited filters. K. Tr. 1472-81. Although Marple's tests of
40 mixed-mc;>de events, performed by subjecting dust sampling units to rough transportation in
trucks and tractors, resulted in only one AWC,_K. Gov't Ex. 509; K. Tr. 1509, Marple' s tests
were criticized by Lee because he failed to adequately compress the hoses under the carrying box.
K. Tr. 3848-49; K. Gov't Ex. 509, at 3-4.

1850

Lee performed 55 tests of box drops that resulted in 40 filters with AWCs similar to those on the
Urling filters. K. Tr. 3846; K. Ex. 2002, at 3. (Of the remaining 15 filters, Lee opined that eleven
had no dust dislodgment pattern and four had dislodgment patterns that were dissimilar to the
'Urling filters. K. Ex. 2002, at 3.) For his tests, Lee employed the actual carrying boxes used by
R&P and dropped them or firmly placed them down on hoses. K. Tr. 3833-36, 3843; K. Ex.
2002. Lee's theory was also based in part on his Common Issues experimental filters and on
Marple's videotape of AWC formation, Gov't Ex. 286, shown at the Common Issues trial. K. Tr.
3817, 3871, 3915-16.
Dr. Lee concluded that most of the cited filters showed comparatively little dust
dislodgment and had slightly larger dislodgment areas than AWCs created by deliberate blowing.
16 FMSHRC at 899. The Secretary criticizes Lee's mixed-mode theory in part by arguing that
the Urling filters do not have large and diffuse patterns of dislodgment. S. Br. at 71. The
Secretary recognizes, however, that the diame·. ers of the dislodgment area of the Urling filters
were somewhat larger than those of experimental filters subjected to deliberate blowing. S. Br. at
68. Marple acknowledged that the dislodgment areas of the Urling filters were, in fact, larger
than those of his experimental filters created by deliberate blowing. K. Tr. 1468; K. Gov't Ex.
508, at 13, 16. Marple as well as Lee found that the Urling filters had dislodgments with
diameters larger than 6 mm. K. Tr. 1468, 3849; K. Ex. 2002A; K. Gov't Ex. 508. Marple stated
his belief that the larger diameters resulted from deterioration as the filters aged, but he presented
no scientific research to support that view. K. Tr. 1468-69. Lee concluded that the larger
diameters showed that the filters were subjected to mechanical pulses due to impacts because, in
his experiments, such impacts caused larger disiodgment areas. K. Tr. 3849-50, 3856-58, 386365, 3911-18; K. Ex. 2002A. Marple acknowledged and his videotape showed that impacts to
cassettes result in dislodgments with a "wider, more diffuse ring," whereas reverse air flow caused
sharply defined 6 mm circular dislodgments. Tr. 2111-16, referencing Gov't Ex. 280, at 35; see
also Gov't Ex. 280, at 36. Lee relied on this videotape to explain his theory that the Urling
filters, which had dislodgment both inside and outside the 6 mm central area, exhibited
characteristics ofboth reverse air and mechanical pulses. K. Tr. 3817, 3870-71. Lee's theory is
further supported by Marple and Rubow's systematic dust dislodgment studies, in which 210 filter
cassettes subjected to three to six-foot drops resulted in a dislodgment pattern different from that
resulting from reverse air, "it was larger in diameter and less sharply defined." 15 FMSHRC at
1476-77.
Consequently, we reject the Secretary's assertion that the mixed-mode theory lacks
scientific support.
The Secretary also complains that Lee's mixed-mode theory was not developed until after
the Common Issues trial. S. Br. at 71-72. We do not find it inappropriate that Lee conducted
further research and produced a second report to address more specifically the particular
characteristics of the filters cited in the Keystone case.

1851

We also reject the Secretary's assertion that the judge failed tc, discuss the comparable
strengths and weaknesses of the opinions of Lee, Marple, and Thaxton or explain his reasons for
crediting Lee. In the Common Issues Decision, as well as in the Keystone Decision, the judge
described the scientific testimony in detail and carefully explained the basis for crediting Lee's
testimony. See 15 FMSHRC at 1473-84, 1488-96, 1513-18, 1521-22; 16 FMSHRC at 872-878,
898-900.
"[A]n [administrative law judge] has substantial latitude in choosing between conflicting
expert testimony." L&J Energy, 51 F.3d at 1088. Lee' s opinions had a scientific basis and the
judge was within his discretion in crediting it. We emphasize that, in evaluating Lee' s testimony,
the judge himself observed Urling filters. 16 FMSHRC at 869. We conclude that the judge did
not abuse his discretion in crediting Lee's testimony that AWCs were consistent with accidental
impacts over Marple' s testimony that they were not.
4. Judge's Admission of and Reliance on Dr. Com's Opinions40
The judge credited the opinion of Dr. Corn, along with that of Dr. Lee, Dr. Grayson, and
Dr. McFarlan_d, in determining that a filter cassette with a shorter filter-to-foil distance is more
prone to dust dislodgment than one with a greater distance. 15 FMSHRC at 1515. The judge
also credited Dr. Com's opinion that size and shape of the dust particles could be a factor in dust
dislodgment patterns. Id at 1517.
In his PDR, the Secretary asserts that the judge erred in admitting and relying on Com's
testimony to corroborate Lee' s opinion that accidental impacts cause AWCs.41 PDR at 14. The
Secretary argues that the judge erred in admitting portions of Corn's opinion at trial 42 and that the
testimony lacked a scientific foundation. S. Br. at 75-78. The Secretary relies on Rule
26(b)(4)(A), (e)(l), & (e)(2) of the Federal Rules of Civil Procedure, which provides that
discovery may be obtained of facts known and opinions held by experts and that a party has a duty

40

This section addresses Issues No. 4 and 5 in the PDR.

41

The Secretary, in his brief, asserts generally that "[t]he judge used Dr. Com's testimony
to corroborate Dr. Lee's opinion that accidental causes account for AWC patterns," but he
provides no supporting citation. S. Br. at 75. In'our opinion, the judge did not credit Corn in
areas other than the effect of filter-to-foil distance and dust particle size and shape. See 15
FMSHRC at 1512-13, 1515, 1517.
42

Apparently, the Secretary's objection to the admission of Com's testimony does not
extend to his testimony on filter-to-foil distances. At trial, in support of his objection, the
Secretary acknowledged that Corn's report, disclosed during discovery, contained the statement
that "he agreed with Dr. Lee on filter-to-foil distance ...." Tr. 7551-52.

1852

to supplement its disclosure of information provided by experts.43 Intervenors count er that the
judge's admission of and reliance on Com's testimony was within his discretion, w25 reasonable
given Com's background and credentials, and was justified because Com's opinions were
supported by the evidence. I. Br. at 72-77.
Com's report, disclosed during discovery, states: "[W]e reviewed data generated by the
R.J. Lee Group as a result of their experiments. We agree with their conclusions regarding filter
cassette susceptibility to [AWC] formation ... (e.g., 'filters-to-foil' distance) . ..." R. Ex. 1037,
at 7. At the Common Issues trial, the Secretary objected to the questioning of Com about Lee's
work, on the grounds that portions of his opinion had not been disclosed during discovery. Tr.
755 1-52. The judge overruled the objection because, at the pretrial conference, he had ruled that,
at trial, "expert witnesses ... should be able to respond to criticism by other experts" and he
considered Com's testimony to be a response to Dr. Marple's criticism ofDr. Lee. Tr. 7573; Tr.
23-24 (Prehr'g Conf Nov. 17, 1992). We conclude that, under Rule 26(a)(2){B),44 the judge
properly admitted Corn's expert report because he had "otherwise ... dirf'cted" in a pretrial
ruling that experts would be allowed at trial to respond to other experts' opinions.
Further, a judge's determination of a duty to supplement discovery under Rule 26(e) and
the exclusion of trial testimony are committed to his sound discretion. Phil Crowley Steel Corp.
v. Macomber, Inc., 601F.2d342, 344 (8th Cir. 1979). 45 Ajudge's decision to allow such

43

Commission Procedural Rule I(b), 29 C.F.R. § 2700.1(b), incorporates the Federal
Rules of Civil Procedure, so far as practicable, on any procedural questio11 not regulated by the ·
Mine Act, the Commission's Procedural Rules, or the Administrative Procedure Act, 5 U.S.C.
§ 500 et seq.
44

Rule 26(a)(2)(B) provides:

Except as othe1wise stipulated or directed by the court, . ..
[t ]he [expert] report shall contain a complete statement of
all opinions to be expressed and the basis and reasons
therefor; the data or other information considered by the
witness in forming the opinions . ...
Fed. R. Civ. P: 26(a)(2)(B) (emphasis added).
45

In support of the proposition that Com's testimony should have been excluded, the
Secretary relies on Freund v. Fleetwood Enterprises, Inc., 956 F.2d 354, 356-59 (1st Cir. 1992);
Jenkins v. Whittaker Corp., 785 F.2d 720, 728 (9th Cir. 1986), cert. denied, 419 U.S. 918
(1986); and Jefferson v. Davis, 131 F.R.D. 522, 528 (N.D. Ill. 1990). S. Br. at 77. These cases
emphasize the trial judge' s discretion in discovery-related matters. For example, Freund, which
involved the exclusion of expert testimony at trial, states that the judge' s discretion is not to be
disturbed absent manifest error. 956 F.2d at 356-59.

1853

evidence will usually not be disturbed unless it results in undue prejudice or fundamental
unfairness. Id The Secretary was not prejudiced by Corn's testimony. Corn had been deposed
by the Secretary concerning his work with Lee. Tr. 7552. Further, Corn's report, disclosed
during discovery, stated that he had reviewed the experimental data of the R. J. Lee Group and
that he agreed with their conclusions regarding filter susceptibility to AWC formation. We find
no abuse of the judge's discretion in his admission of Corn's testimony.
The Secretary specifically disputes the scientific foundation for Com's opinions that: (1) a
filter cassette with a smaller filter-to-foil distance was more prone to dust dislodgment than 'l filter
with a larger filter-to-foil distance; and (2) the size and shape of dust particles could be a fa..;tor in
dislodgment patterns. S. Br. at 75. We conclude that these two opinions were within Corn's area
of expertise.46 Corn has a doctorate in industrial hygiene and sanitary engineering and is professor
in, and division director of, the Department of Environmental Health Services, School of Hygiene
and Public Health at Johns Hopkins University. 15 FMSHRC at 1496. He was accepted as an
expert witness in the fields of aerosol and particle physics, including the adhesion and dislodgment
of particles, coal mine dust sampling technology, and federal occupational safety and health
regulation and enforcement systems. Tr. 7490; see also 15 FMSHRC at 1496-97. Corn studied
the adhesion forces of particles and concluded, based on his review of the scientific literature and
information received\from Lee, that Lee's dust particles were representative of dust in mines. Tr.
7553-55, 7570-71, 8025-26. Thus, Corn's testimony had a proper scientific foundation. In
addition, Com was directly involved with the measurements and tests on which he based his
opinion. Com visited Lee's research facility on a number of occasions and reviewed Lee's
equipment, protocols, and procedures. Tr. 7560, 7581-83, 7585, 8009, 8085-86. Com himself
measured filter-to-foil distances of cassettes and also examined 1,248 of the cited filters. 47 Tr.
7562, 7591; R. Ex. 1037, at 2. Corn requested that Lee examine the size of the airborne dust
particles used in his dust tunnel experiments. Tr. 7570-71. We conclude that the Secretary has
not demonstrated that the judge abused his discretion in crediting Dr. Com' s testimony.

46

The judge did not accept Corn as an expert in, nor rely on his conclusions as to, image
analysis. 15 FMSHRC at 1509-13. There is no inherent contradiction in a judge's accepting an
expert' s testimony in areas in which he is well qualified and rejecting his testimony in areas in
which he is less qualified. Cf Wilkinson v. Rosenthal & Co., 712 F. Supp. 474, 478 (E.D. Pa.
1989) (expert qualified to testify in areas in which he had appropriate education and experience
but was not qualified to testify in areas in which he lacked education or experience); Bass v. Spitz,
522 F. Supp. 1343, 1352-53 (E.D. Mich. 1981) (economist could not testify in areas beyond his
knowledge and expertise).
47

Corn's opinion that a shorter filter-to-foil distance makes a filter more prone to dust
dislodgment was one of several expert opinions to that effect. See 15 FMSHRC at 1515. Thus,
even if Corn's opinion had not been properly credited by the judge, other record evidence
supports the judge' s findings on filter-to-foil distance.

1854

5. Filter-to-foil Distance and Other Manufacturing Variables48
The judge determined that the distance between the filter and the aluminum foil cone of
dust sampling cassettes was variable and that casettes with shorter filter-to-foil distances were
more susceptible to AWC dust dislodgment patterns than those with greater distances. 15
FMSHRC at 1515, 1521. In the Common Issues Decision, the judge concluded that the cited
filters had "shorter filter-to-foil distances than those manufactured subsequently." Id at 1515- 16.
In the Keystone Decision, he concluded that the cited filters "more probably than not had shorter
filter-to-foil distances than those manufactured subsequently" and that this "could have been a
factor in the decline of cited AWCs [at Urling] in the Spring of 1990." 16 FMSHRC at 885-86
(emphasis added).
The Secretary asserts that the judge erred in several respects in his analysis of filter-to-foil
distances and other manufacturing variables of dust sampling cassettes in reaching his conclusion
that accidental and in~idental impacts could have caused Urling's AWCs. PDR at 16-17; S. Br. at
78-88. First, the Secretary argues that the judge's findings that filter-to-foil distance affects the
likelihood of AWCs and that the cited filters had shorter filter-to-foil distances are not supported
by substantial evidence. PDR at 16; S. Br. at 78-81. Second, he argues that, in Keystone, the
evidence does not show that filter-to-foil distances or other variables associated with the
manufacturing process changed over time. PDR at 16-17; S. Br. at 82-83. He also contends that
the statistical evidence in Keys.tone does not support a finding that manufacturing variables caused
Urling' s AWCs or a sudden decline in their rate of occurrence. PDR at 17; S. Br. at 87. In
response, Keystone and Intervenors contend that there was ample evidence that manufacturing
variables influenced the frequency of AWCs. I. Br. at 26; K. Br. at 80-81. Keystone further .
asserts that there is record support for the judge's crediting of Lee' s testimony that its cited filters
had shorter filter-to-foil distances and were more susceptible to accidental or incidental AWC
fonnation than filters manufactured Jater. K. Br. at 79. After reviewing these contentions and the
record evidence>we affinn the judge.
a. Filter-to-foil Distance and Susceptibility to AWCs

In the Common Issues Decision, the judge found that shorter filter-to-foil distance makes
a filter more prone to AWC formation. 15 FMSHRC at 1515. He credited.the testimony of the
48

This section addresses Issue No. 9 in the PDR. The Secretary's briefs fail to provide
support for the argument set forth in section (c) of that issue, dealing with changes in floppiness
of filters over time, and we do not address it. The judge found in his Common Issues Decision
that floppiness or tautness of the filters varied and that a floppy filter was more prone to AWC
fonnation than a taut one. 15 FMSHRC at 1515. In his Keystone Decision, the judge,
referencing Dr. Marple' s testimony that floppiness was "associated with smaller filter to foil
distances," stated that the "evidence related to the question whether the more recently
manufactured filters were floppier than the older ones is not sufficiently clear," thus precluding his
making a finding on this issue. 16 FMSHRC at 885 n.3.

1 855

operators' experts, Drs. Lee, Grayson, McFarland and Corn, that filter-to-foil distance was an
important characteristic of filter cassettes that varied with date of manufacture and that a shorter
filter-to-foil distance made a filter more susceptible to AWC formation. (Lee) R. Ex. 1001, at ii;
Tr. 6225, 6238-41; (Grayson) Tr. 5551, 5648; (McFarland) Tr. 5183-85, 5196, 5321; (Com) Tr.
7567, 7697-98.

As noted, Dr. Lee was accepted as an expert witness in physics, materials characterization
and analysis, and environmental monitoring. 15 FMSHRC at 1488. Using a stereo optical
microscope, Dr. Lee measured the filter-to-foil distance of the 3,100 samples generated in his dust
tunnel as well as 650 samples taken from coal mines across the country. Id at 1489; R. Ex. 1001,
at 1, 11. Based on his tests of subjecting cassettes to drops and hoses to impacts, Dr. Lee
concluded that filter-to-foil distance was the strongest factor influencing susceptibility to AWC
formation. 15 FMSHRC at 1491; Tr. 6238-39; R. Ex. 1001, at 11, 15. In tests of dropping
cassettes a distance of 4 feet, 33% of 30 filters with filter-to-foil distance of 1 mm or less had
potentially citable AWCs; 27% of 129 filters with a distance of 1 to 2 mm had potentially citable
AWCs; none of 43 filters with a distance of 2 to 3 mm had potentially citable AWCs; 4% of 52
filters with a distance of 3 to 4 mm and none of 5 filters with a distance of 4 to 5 mm had
potentially citable AWCs. 15 FMSHRC at 1491; R. Ex. 1001, at 11; App. B-4.3, B-4.7, B-8. In
tests of hose impacts using a one pound weight, 66% of 30 filters with a distance of 0 to 1 mm,
12% of 8 filters with a distance of 1 to 2 mm, none of 3 filters with a distance of 2 to 3 mm, 12%
of 3 0 filters with a distance of 3 to 4 mm, and none of 9 filters with a distance of 4 to 5 mm had
potentially citable AWCs. 15 FMSHRC at 1491; R. Ex. 1001, at B-5.2-5.3, B-5.6. Dr. Lee also
produced a video, R. Ex. 1006, which illustrated that, under the same conditions, it is easier to
produce an AWC with a short filter-to-foil distance than with a larger distance. Tr. 6241 -53. Dr.
Lee explained that, as a matter of basic physics, it is easier to dislodge dust on a filter that is
closer to the foil. Tr. 6241; See 15 FMSHRC at 1515.
D r. Grayson is dean of the College of Mineral and Energy Resources at West Virginia
University and has a doctorate in mining engineering. 15 FMSHRC at 1497; Tr. 5518-20; R. Ex.
10 l 4C. He was accepted as an expert witness in aerosol mechanics, fluid mechanics,
thermodynamics, aerosol filtration, and engineering statistics. 15 FMSHRC at _1499. In his
research on filter-to-foil distance, Dr. Grayson measured the distances of 178 samples from
various mines by inserting a millimeter scale into the cassette inlet. Id at 1498. Of those filters,
94 were drop tested and the remaining filters were examined for existing AWCs. Id; Tr. 564445; R. Ex. 1014, at 14-16. Dr. Grayson concluded that there was a strong relationship between
filter-to-foil distance and creation of AWCs. 15 FMSHRC at 1499; R Ex. 1014, at 18.
Dr. McFarland is a professor of mechanical engineering and was accepted as an expert in
the fields of aerosol mechanics, fluid mechanics, thermodynamics, aerosol filtration, and
engineering statistics. 15 FMSHRC at 1499; Tr. 4480, 4548. Dr. McFarland measured the filter-

1 8 56

to-foil distances of several hundred cassettes. 15 FMSHRC at 1502; Tr. 4730-38, 4752. Based
on his tests of applying varying degrees of pressure to cassettes with varying distances between
the filter and the foil, Dr. McFarland concluded that it was more difficult to form A WCs on filters
with larger filter-to-foil distances. 15 FMSHRC at 1502, 1505, 1515-16; Tr. 5004-05; R. Ex.
1018, at 37.
As noted, Dr. Com was qualified as an expert in aerosol and particle physics, including the
adhesion and disJodgment of particles and coal mine dust sampling technology. Tr. 7490; See
also 15 FMSHRC at 1496-97. Corn measured filter-to-foil distances and examined 1,248 of the
cited filters in reaching his opinion that a cassette with a shorter filter-to-foil distance is more
prone to dust dislodgment than one with a greater distance. Tr. 7562, 7591; R. Ex. 1037, at 2.

Thus, the operators' experts presented a scientific basis, not merely a "common sense"
view as alleged by the Secretary, S. Br. at 82, to support the effect of filter-to-foil distance on
susceptibility to dust dislodgment.
The testimony ofthe Secretary's experts, Drs. Marple and Rubow, was inconsistent on the
influence of filter-to-foil distance and filter floppiness. The judge recognized that, although
Marple and Rubow conclu~ed that manufacturing v~ables such as filter-to-foil distance and
floppiness were "not probably contributing factors" to dust dislodgment, Marple had also testified
that filter floppiness and the distance between the filter and foil influenced dust dislodgment
patterns. 15 FMSHRC at 1482-83; compare Tr. 2826, 9347-48; Gov'tEx. 282, at 13 andTr.
2692-93, 2803-04, 2820-21, 2841-42. The judge reasonably discounted the inconsistent
testimony of the Secretary's experts on the effect of filter-to-foil distance and credited the
scientifically supported, consistent, and corroborated testimony of the operators' experts. Thus,
his finding that filter-to-foil distance affects the likelihood of AWCs is supported by substantial
evidence and we affirm it. In Keystone, the judge reiterated his holding in the Common Issues
Decision, that shorter filter-to-foil distance increases susceptibility to AWC formation. 49 16
FMSHRC at 885.
The Secretary also takes issue with the judge's finding that the cited filters were from a
population of filters having short filter-to-foil distances. 15 FMSHRC at 1516; S. Br. at 78-79.
Lee testified, without contradiction, that 80% of the cited filters were from the series with

49

The Secretary also requests the Commission to accept Marple's uncontradicted
testimony identifying threshold velocity of dust particles, i.e., the air velocity that is required to
dislodge dust particles from the surface of filters, as the single most important factor in dust
disJodgment. S. Br. at 82. The judge found that both filter-to-foil distance and threshold velocity
were important factors in dislodgment. See 16 FMSHRC at 885, 899. There is no inconsistency
in the judge's determination that both factors, one having to do with the physical characteristics of
dust and the other with the physical characteristics of the filter cassette (filter-to-foil distance),
were causative.

1857

numbers 200,000 and 300,000.so See Tr. 6271. See also 15 FMSHR.C at 1515-16. Based on
certain graphs, the judge also found that, after the filters were loaded with dust, the filter-to-foil
distance for 80% of the series 200,000 and 95% of the series 300,000 filters was 2 mm or less.
15 FMSHRC at 1516; R. Exs. 1068-69.51
The Secretary asserts that the judge erred in relying on graphs that plotted filter-to-foil
distances for experimental filters in each series because the graphs were based on a small number
of filters with widely varying measurements. R. Exs. 1068-69; S. Br. at 79-81. He argues that
the judge made an "inherently weak assumption" that the very few experimental filters
manufactured before February 1990 were representative of all such filters. S. Br. at 80. The
Secretary also contends that the graphs " at best showed only a slight tendency over time toward
an increase in the relative percentages of filters with filter-to-foil distances of more than
2 mm ...." Id. He further argues that 50% of the filters manufactured between October 25,
1990, and February 15, 1992, seven months to almost two years after institution of the void code,
had short filter-to-foil distances, and that the rarity of AWCs in that filter group refutes an
association between filter-to-foil distance and AWCs. Id. at 80-81 .
The graphs in question were prepared by the Secretary and set forth the filter-to-foil
distances after dust loading for experimental filters manufactured between April 20, 1988, through
the time of the Common Issues trial; they were based on measurements by both the Secretary's
and the operators' experts. 15 FMSHR.C at 1516. In addition to showing that 80% ofthe series
200,000 and 95% of the series 300,000 filters had short filter-to-foil distances (2 mm or less) the
graphs showed that a lower percentage of filters in the later manufactured series had short filterto-foil distances: 45% in the 400,000 series; 50% in the 500,000 series; approximately 50% in the
600,000 series; and a little more tha~ 40% in the 700,000 series. Gov't Exs. 260A, 262A; R. Exs.
1070, 1071. Thus, the graphs support the judge's finding that the cited filters, more than 80% of
which were from the 200,000 and 300,000 series, came from a population of filters with
comparatively shorter filter-to-foil distances. 15 FMSHR.C at 1515-16. Dr. Rubow, Marple' s
colleague, acknowledged that the graphs showed a marked increase in the percentage of filters

so The series 200,000 filters were manufactured between April 20, 1988, and April 3,
1989, R. Ex. 1069; series 300,000 between April 3, 1989, and February 13, 1990, R. Ex. 1068;
series 400,000 between February 13, 1990, and October 25, 1990, R. Ex. 1070; series 500,000
between October 25, 1990, and August 5, 1991, Gov't Ex. 259A; series 600,000 between August
5, 1991, and February 15, 1992, Gov't Ex. 261A; series 700,000 between February 15, 1992, and
May 28, 1992, R. Ex. 1071; and series 800,000 from May 28, 1992, through the date of the
Common Issues trial, Gov't Ex. 265A.
51

The graphs provide filter-to-foil distance measurements under two conditions, before
dust was loaded onto the filter, and after dust had been loaded. See Tr. 2880-81 . The judge
analyzed both types of measurements and noted that the pre-loading values show a slight
tendency of filter-to-foil distance to increase in the later manufactured series. 15 FMSHR.C at
1516. See Gov' tExs. 253A, 255A, 257A, 259A, 261A, 263A.

1 85 8

with {ilter-to-foil distances greater than 2 mm in filters manufactured after February 1990. Tr.
9244-47.
Contrary to the thrust of the Secretary's argument, the judge was mindful of the
limitations of the graphs. 15 FMSHRC at 1516. He recognized that the number of filters
measured from each series varied considerably and that the measurements in each series were
made by different experts who used different methods. Id The judge noted, however, that,
because the cited cassettes had been disassembled without being measured, the graphs provided
the best available evidence of the filter-to-foil distance. Id
Based on the evidence of record, we conclude that the judge's finding in the Common
Issues Decis_ion, that the cited filters came from a population of cassettes with shorter filter-to-foil
distance, more susceptible to AWC formation than those manufactured subsequently, is supported
by substantial evidence. Id at 1515-16.
b. Filter-to-foil Distance and Decline of AWCs at Urling
In Keystone, the judge found that the cited filters probably had shorter filter-to-foil
distances than those manufactured subsequently. 16 FMSHRC at 886. He also found that the
decline in the number of cited AWCs in the spring of 1990 could be explained, in part, by this
manufacturing variable. Id.
The Secretary asserts that there was no evidence that filter-to-foil distance or other filter
characteristics, varying with date of manufacture, changed after March 26, 1990, or provide an
explanation for the decline in AWC rates after that date. S. Br. at 83; S. Reply Br. at 23 .
All the cited Urling filters were series 200,000 and 300,000 filters. 16 FMSHRC at 885;

see K. Ex. 2133, R. Exs. 1068-69. As discussed supra, the judge, in the Common Issues
Decision, found that filters from these two series tended to have shorter filter-to-foil distances.
15 FMSHRC at 1515-16. The judge noted that, according to Dr. Lee, the Urling filters exhibited
physical characteristics indicative of shorter filter-to-foil distances. 16 FMSHRC at 885. Lee
testified that the absence of 9 mm segmented ring standoff patterns on the Urling filters correlated
with shorter filter-to-foil distance.52 K. Tr. 3874-79; R. Ex. 1001, at 15; K. Ex. 2001, at 5-6.
Dr. Marple concluded that the absence of standoff patterns did not indicate shorter filter-to-foil
distance because his experiments for the Common Issues trial indicated that, even when filters
were resting on the standoff, only 50% had standoff patterns. 16 FMSHRC at 885; Tr. 2528-29.
Nonetheless, Marple agreed that the presence of the standoff pattern was associated with greater
filter-to-foil distance; he found that standoff ring patterns appeared only on filters with filter-tofoil distances greater than 3.7 mm. Tr. 2527-29, 9335-38, 9619-23; Gov't Ex. 327. Lee also
testified, without contradiction, that the presence of crimping or pinching on 20% of the Urling

52

The 9 mm ring standoff pattern is caused by the filter backing pad coming in contact
with the 9 mm plastic (standoff) supports on the cassette. Tr. 2526-27; Gov't Ex. 328.

1859

filters indicated sh01ter filter-to-foil distance. K. Tr. 3877-78; K. Ex. 2001, at 6. Lee noted that
the incidence of crimping on recently purchased filters was much lower, about 6%. Id; 16
FMSHRC at 885.
We conclude that substantial evidence, including the testimony of Dr. Lee, which was
properly credited, as well as the testimony of Dr. Marple, supports the judge's conclusion in
Keystone, 16 fMSHRC at 885-86, that the cited filters more probably than not had shorter filterto-foil distances than filters manufactured subsequently.
In arguing that the judge erred in finding that manufacturing variables provided an
explanation for a decline in AWC rates after March 26, 1990, S. Br. at 79, the Secretary
mischaracterizes the Keystone Decision. The judge merely considered filter-to-foil distance as
one of sevel al factors that could account for a decline in AWCs at Urling in the spring of 1990.
16 FMSHRC at 882-86. The failure of manufacturing variables to explain completely a decline in
AWCs in the spring of 1990 does not substantiate the Secretary's argument that the judge erred in
finding that such variables "could have been a factor" contributing to the decline. At oral
argument, the Secretary asserted that "the judge owed it to us to analyze those data and tell us
what he thought was the most likely cause of these appearances." Oral Arg. Tr. 48. The judge
was not required to find a complete explanation for the downward trend in AWCs. The
Secretary, to preponderate, was required to show that the trend was the result of deliberate
tampering.
c. Statistical Analysis of Manufacturing Variables
In the Common Issues Decision, the judge, relying on Dr. Roth's statistical analysis,
concluded that the evidence "does not establish ... but may point to" manufacturing variables as
affecting the decline in AWC formation. 15 FMSHRC at 1520.s3 In his Keystone Decision, the
judge noted that the statistical experts arrived at different conclusions on the effect of cassette
manufacturing date on AWC rate. 16 FMSHRC at 900. He found that manufacturing variability
may have played some role in AWC formation. Id at 886, 900-01.
The Secretary challenges the judge's analysis of manufacturing variables in Keystone,
asserting that "the statistical evidence does not support a finding that manufacturing variables
caused AWCs or the sudden ... change in AWC occurrences." PDR at 17. The Secretary
argues, based on Miller' s analysis, that, rather than the cassette manufacturing date. the most
significant date affecting the occurrence of AWCs was the sampling date and whether it was
before or after March 26, 1990, the date he alleges Keystone learned of the void code. S. Br. at
84-87. The Secretary further states that the judge failed to resolve conflicting testimony of Miller
and Roth on the relationship between manufacturing dates and AWC fonnation. Id. at 87-88. In
s3 The judge referred to Roth's testimony and report, which showed that cassettes
manufactured before 1990 had an AWC rate that was I 0 times higher than cassettes manufactured
after 1990. See Tr. 4128-30; R. Ex. 1041, at 3. See also Oral Arg. Tr. 168.

1860

response, Keystone argues that N..;Iler' s comparison of cassettes manufactured on certain dates
and used by R&P mines before aud after March 26, 1990, was faulty because he failed to use data
for the same mines in the two periods. K. Br. at 109-10. Keystone further asserts that a valid
comparison, based on cassette manufacturing date, between R&P mines including Urling and
mines of other operators could not be made because of handling and sampling differences. Id at
109.
Dr. Roth's analysis showed that the rate of AWCs at Urling was more than nine times
higher for cassettes manufactured on four consecutive key dates than on other manufacturing
dates, 46.9% as compared to 4.8% . ~ 4 K. Ex. 2004, at 6; 16 FMSHRC at 881, 900-01. Dr.
Miller's analysis showed that, for non-R&P mines sampled before March 26, 1990, the citation
rate for cassettes manufactured on the key dates was 2.5%, lower than that for cassettes
manufactured on other da~es, 6.2%. K. Gov't Ex. 527, at 2-3, Table lb; S. Br. at 85; 16
FMSHRC at 879. Miller also found , however, that, for all samples from R&P mines including
Urling that were taken b·~fore March 26, 1990, the citation rate for cassettes manufactured on the
key dates was 49.9%, higher than that for cassettes manufactured on other dates, 38.2%. 16
FMSHRC at 879; K. Tr. 760-61; K. Gov't Ex. 527, at Table la.
Miller' s analysis that manufacturing date does not account for changes in AWC rates was
countered by Roth's analysis that the rate of AWCs tended to be higher for cassettes
manufactured earlier. K. Ex. 2004, at 5-6; K. Tr. 3563, 3565. The judge explained that he saw
merit in both Miller' s and Roth's analyses, i.e., that manufacturing in general did not explain
citation rates, but that cassettes manufactured on four key dates accounted for 60% of the AWCs
at Urling, suggesting manufacturing anomalies. 16 FMSHRC at 900-01. There is record
evidence that the dust cassettes were plagued by manufacturing problems. In July 1990, MSA,
the manufacturer of the dust cassette assemblies, recognized that filter airflow resistance
exceeding the allowed level and incompatibility of the filter and backing pad had to be corrected.
R. Ex. 1124, at 2-4; Tr. 9211-13. On August 23, 1990, MSA recalled from its district offices and
destroyed all cassettes manufactured before August 1, 1990. R. Exs. 1134, 1144; Tr. 9221-22.
This recall included all filters in the 200,000 and 300,000 series and part of the 400,000 series.
See note 50, supra. Shortly thereafter, MSA began screening all cassettes to ensure proper
airtlow resistance. Tr. 9207-08, 9221-22; R. Ex. 1180. As the judge noted, 15 FMSHRC at
1481, Dr. Rubow, the Secretary's expert, conceded that a filter with a higher airflow resistance
would be more likely to flex (and thereby be more susceptible to AWC formation) when exposed
to a constant reverse airflow. Tr. 9147-48. Dr. Lee similarly testified that reverse air pulses of
low magnitude would be more likely to form A WCs on filters with higher airflow resistance. Tr.
6214-16. Dr. Com also testified as to his concemthat changes associated with achieving proper
airflow resistance influenced the formation of AWCs. Tr. 8050-51.

s4 The four key dates were: May 26, Ma~ 31, June 1, and June 2, 1989. Roth found that,
for all R&P mines including Urling, the rate of AWCs for cassettes manufactured on these dates
was 49.6% as compared to 5.8% for other dates of manufacture. K. Ex. 2004, at 6; 16 FMSHRC
at 880.

1861

We affinn the judge's refusal to infer ta!'npering from Miller's statistical analysis. Miller
used March 26, 1990, as the critical date in analyzing data on AWCs submitted by Keystone. The
judge determined that March 26, 1990, is not materially significant at Urling because R&P
personnel knew of the AWC investigation some six weeks prior to that date and Urling's AWC
citation data show a significant overall decline beginning in September of 1989. ss 16 FMSHRC at
900. Accordingly, the judge could reasonably diminish the weight accorded to Miller's statistical
analysis. Conversely; Roth's analysis of the four key dates of cassette manufacture was not tied
to March 26, 1990, was supported by record evidence of cassette manufacturing problems, and
could reasonably be considered more pro'Jative by the judge. See Id. at 900-01.
Given the conflicting analyses of the experts, the judge was within his discretion in
refusing to draw an inference of tampering from these statistics. We emphasize that the judge did
not hold that manufacturing variables, in themselves, explained the decline in AWCs; rather, he
considered them as a factor, among others, that could account for the decline in AWC rates at
Urling. Id at 885-86.
6. Judge's Admission and Crediting ofDr. Lee's Opinion on Scrubberss6

In Keystone, the judge found that, when the air was sampled in the vicinity of a continuous
miner with a scrubber, the dust deposits on filters were damper, had a higher threshold velocity,
and were more difficult to dislodge. 16 FMSHRC at 883. He noted that the experts e~pressed
conflicting opinions on the effect of scrubbers and their accompanying water sprays on dust
deposits.s7 The judge concluded that the introduction of scrubber systems on the continuous
miners at Urling in 1989 and 1990 cmiid have been a factor in the decline of AWCs during that
period. Id at 882-83.
The Secretary raises two issues related to the judge'' s findings and conclusion. First, citing
Rule 26 of the Federal Rules of Civil Procedure, the Secretary contends that the judge erred in
admitting Dr. Lee' s testimony on the effect of water sprays and scrubber systems because that
opinion had not been disclosed during discovery. PDR at 17; S. Br. at 89-90. Further, the
Secretary asserts that Lee lacked the scientific background to offer such an opinion. PDR at 17;
S. Br. at 90-96. Keystone responds that the judge properly admitted Lee's opinion because the
Secretary had notice of, and opportunity to rebut, the testimony. K. Br. at 87-88. Additionally,
Keystone argues that Lee was qualified to give an opinion on the effects of environmental
conditions and mining equipment. Id at 86-87. After review of the record, we find neither of the
Secretary's contentions well taken.

ss We have affinned that determination as discussed infra in section D . 2. a .
56

This section addresses Issues No. I 0 aqd 11 in the PDR.

57

The record shows that scrubbers were gradually introduced beginning in 1989 and early
1990. See K. Tr. 85-86, 2594, 2796-98.

1862

a. Admission ofDr. Lee's Opinion
Under Rule 46 of the Federal Rules of Civil Procedure, a party must make known to the
court the action that he seeks and the grounds therefor. Fed. R. Civ. P. 46; Jn Re Bi/disco, 682
F.2d 72, 82 (3d Cir. 1982), aff'd on other grounds, 465 U.S. 513 (1984); accord Browzin v.
Catholic Univ. ofAm., 527 F.2d 843, 850 & n.15 (D.C. Cir. 1975). See also section
l 13(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii). Here, the Secretary failed to do
that. Several times during the Keystone trial, the Secretary objected specifically to Lee's opinions
on other issues on the grounds that they had not been disclosed during discovery. K. Tr. 378183, 3865-66, 3883 . When Keystone questioned Lee as to whether an increase in the water
pressure of scrubbers, with an accompanying greater water spray, would affect the susceptibility
to dislodgment of dust samples, however, the Secretary raised no objection. K. Tr. 3891. The
judge then asked whether the increase in water pressure would increase or decrease the
susceptibility, and Lee answered that the pressure increase would decrease the susceptibility to
dislodgment. K. Tr. 3892. The Secretary again failed to object to Dr. Lee's testimony on the
effect of scrubbers on susceptibility of filters to dust dislodgment. Indeed, the Secretary
subsequently questioned Dr. Lee as to how he arrived at his opinion on the effect of scrubbers.
K. Tr. 4043-45.
The portion of the transcript that the Secretary cites in support of his contention, K. Tr.
3894, pertains to another matter. He has apparently confused questions to Dr. Lee related to
·whether "overall water levels and moisture levels in the Urling One Mine [that] increased between
1990 and 1993 11 affected the susceptibility of filters to dust dislodgment, to which he raised
objections, with earlier questions regarding the use rif scrubbers between 1989 and 1990 (see
Stips. 85, 93, and 94),58 which coincided with the general decline in AWCs, to which he raised no
objection.s9

In any event, even if the Secretary had timely objected to questions regarding the effect of
scrubbers, the testimony would have been properly admitted. As noted with respect to the
Secretary's Rule 26 objection to the testimony of Dr. Com, the judge stated at the Common
Issues pretrial conference that, at trial, "the expert witnesses should be able to testify in support of
their own conclusions, their own opinions and should be able to respond to criticism by other
experts and should be able to criticize and attack the reports of experts on the other side." Tr.
23-24 (Prehr'g Conf. Nov. 17, 1992). Dr. Lee's testimony falls squarely within the parameters of
the judge's ruling.

58

In their stipulations, the parties included facts relating to the use of scrubbers on

continuous miners at Urling and specifically identified those miners that had scrubbers. Stip. 94.

s9 The judge was unable to draw conclusions from the evidence before him concerning the
increased moisture levels in the mine in 1993 as compared to 1989 and 1990 and the decline in
AWCs in late 1989 and 1990. 16 FMSHR.C at 883.

1 86 3

Further, the primary report submitted by Dr. Lee in the Keystone pro,;eeding set forth his
opinion that lower relative humidity, in existence in the winter months, increases the susceptibility
of filters to dust dislodgment. K. Ex. 2001, at 14. In response to Dr. Lee's report, the
Secretary's expert, Dr. Marple, stated:
[T]he important parameter to consider is the moisture content
of the particles and not the relative humidity of the air outside
of the mine or even in the mining environment. When the coal
is mined, there are water sprays from the mining machine on the
coal face providing a very wet local atmosphere in the generated
dust, independent of the months identified in Dr. Lee's report.
K. Gov't Ex. 509, at 10. At the Keystone trial, Dr. Marple testified further on the effect of
scrubbers: "I think the wetness of the particles would have a major effect which would be related
back to water sprays." K. Tr. 1551. Dr. Lee's subsequent testimony regarding scrubbers was
made in response to Marple's report and testimony. See also K. Tr. 4042-44. Thus, under the
judge's pretrial ruling, which was within his discretion, Lee's testimony was admissible, even if
not disclosed during discovery.60 See Fed. R. Civ. P. 26(a)(2)(B); Phil Crowley, 601 F.2d at 344.
b. Crediting of Dr. Lee's Opinion
The Secretary challenges the expertise of Dr. Lee to give an opinion on the effect of
scrubber systems on dust deposits, arguing that the issue was outside the area in which he was
qualified, and that Dr. Marple's credentials were more directly rel~~ ed to this issue. S. Br. at 9091. In response, Keystone notes that Dr. Lee was the only expert· to research systematically the
effect of humidity and water on AWC formation and that his testimony on the effect of scrubbers
was consistent with his basic opinion that moisture content of coal was a factor that affected
susceptibility to AWCs. K. Br. at 86-87. Intervenors argue that Dr. Lee's opinion was consistent
with testimony of all experts at the Common Issues trial and that Dr. Marple' s testimony also
indicated that a variety of factors, including humidity, could affect the threshold velocity needed
to dislodge dust particles from filters. I. Br. at 50-52.
The Secretary failed to lodge an objection to Lee's testimony on this subject during the
trial. As with the Secretary's contention that the judge erred in admitting Lee's testimony
because it was not disclosed during discovery, the Secretary was obliged to lodge a timely
objection to the testimony in order that the judge could consider the issue of Lee's qualifications
to give an opinion on this issue. See Fed. R. Civ. l>. 46; Browzin, 527 F.2d at 850 & n.15; 30
U.S.C. § 823(d)(2)(A)(iii).

60

The cases on which the Secretary relies, S. Br. at 90, to support the proposition that his
testimony should have been excluded are inapposite. See Weiss v. Chrysler Motors Corp., 515
F.2d 449, 457-58 (2d Cir. 1975); Freund, 956 F.2d at 356-59.

1864

In any event, Lee was fully qualified to offer an opinion on this subject. As noted, he has a
doctorate in solid state physics and was accepted as an expert witness in physics, materiais
characterization and analysis, and environmental monitoring. 15 FMSHRC at 1488; see R. Ex.
lOOIA. The R. J. Lee Group, which Dr. Lee headed, was experienced in analyzing air samples
and particulate matter and had worked for numerous government agencies, as well as for private
industry. See Tr. 5923-48. A portion of his expert report dealt with the impact of humidity on
the susceptibility of filters to dislodgment. See K. Ex. 2001, at 14. Lee' s opinions were based on
his water spray experiments performed for the Common Issues trial. K. Tr. 3 893. The Secretary
offers no persuasive argument to support his contention that Dr. Lee's testimony was outside his
area of expertise. See S. Br. at 90-91 . Rather, he argues that Dr. Marple, who testified that
water sprays do not reduce the susceptibility of dust deposits to dislodgment, K. Tr. 4145-49, was
more qualified to testify in this area. S. Br. at 90-91. However, "the resolution of conflicting
testimony, including that of expert witnesses, is for the trier of fact." Jackson, 422 F .2d at 1275
(citations omitted); see also L &J Energy, 57 F.3d at 1088.
Here, the judge weighed partially conflicting testimony and determined that the use of
scrubbers and water sprays wouJd reduce the susceptibility of filters to dust dislodgment. 16
FMSHRC at 883. He noted inconsistencies in Marple's testimony regarding the effect of water
sprays. Id at 875. Marple testified that water sprays do not reduce the susceptibility of dust
deposits to dislodgment; K. Tr. 4145-50, but he also testified that wetness of coal dust caused by
scrubbers affects susceptibility to dust dislodgment, K. Tr. at 1551-52. We further note that
Marple testified in the Corrunon Issues trial, in response to a question from the judge, that wet
particles would be more resistant to dislodgment. Tr. 3103-05; see also Tr. 9498-9500. The
judge was well within his discretion in crediting Dr. Lee' s opinion over Dr. Marple' s.
Finally, the Secretary argues that the installation of scrubbers systems does not explain a
decline in AWCs after March 26, 1990. S. Br. at 93. As noted in section C. 5. b., supra, the
Secretary mischaracterizes the Keystone Decision. The judge me.rely considered the installation of
scrubbers as one of several factors that could account for the decline in AWCs at Urling in late
1989 and early 1990. 16 FMSHRC at 883.
D. Statistical lssues61
In the Common Issues trial, the Secretary attempted to establish, through the use of
statistics, that AWCs were not randomly distributed across the industry, that a sharp drop in the
rate of AWC citations across the industry occurred after institution of an AWC void code on
March 19, 1990, and that these factors, along with other evidence, established intentional

61

This section addresses Issues No. 7 and 8 in the PDR, which are set forth in terms of
the Keystone Decision. The Secretary "concurrently objected to" related findings and conclusions
in the Common Issues Decision. PDR at 10 n.1; S. Br. at 40 n.15.

186 5

tampering by the cited operators. 62 In support of his proposition that statistics can be used to
prove a causal relationship, the Secretary cited cases in which statistics were used to prove
discrimination in employment. The judge found that the susceptibility of filters to dust
dislodgment depended on a number of manufacturing and other variables and that the statistical
analysis of the Secretary's expert failed to take those variables into account. 15 FMSHRC at
1521. He noted that the operators' statistical evidence showed that AWCs were non-random
after the void code was instituted as well as before and that the decline in AWC citation rate
commenced in September 1989. Id. at 1507-08~ see also id. at 1485-86. The judge concluded
that, because of the existence of many other potential causes, the statistical evidence did not
establish that AWCs resulted from intentional tampering. Id at 1519-22.
In Keystone, the Secretary attempted to establish, through the use of statistics, that a sharp
drop in Urling' s AWC citation rate occurred after March 26, 1990, the date the Secretary alleges
ESD personnel became aware of the void code, 63 and that this drop established that Urling had
intentionally tampered. As noted in section C.5.c., supra, the judge refused to infer tampering
from the statistical evidence. He held that March 26, 1990, was not materially significant at
Urling and that the statistical evidence did not establish that a reduction in the mine's citation rate
resulted from MSHA's investigation of its dust sampling program. 16 FMSHRC at 900-01.
1. Common Issues Decision
In his PDR, the Secretary argues that the judge erred in failing to understand the
significance of the statistical evidence in supporting the conclusion that intentional tampering w<ts
the likely cause of AWCs because such conduct was highly consistent with a dramatic decline i~1
AWCs in the spring of 1990 and other explanations are inconsistent with that decline. PDR at 1516.

The Secretary states that his use of statistics in the Common Issues trial was designed to
enable the judge to draw inferences regarding the conduct of the cited operators and to
corroborate the Secretary's other evidence of intentional tampering. S. Br. at 36-37 n.12; S.
Reply Br. at 15. He asserts that the judge erred when he stated that "[s]tatistical evidence

62

The Secretary states: "The institution of the AWC void code was the first official
notification to the mining industry that samples with AWC characteristics were considered by
MSHA to be abnonnal and that some kind of government investigation into the AWC matter was
under way." S. Br. at 8-9.
63

In the Common Issues case, the Secretary used March 19, 1990, the date on which the
void code notices were issued by MSHA, asserting that this was the date on which operators were
advised of the voiding of filters with AWCs. 15 FMSHRC at 1460, 1486; S. Br. at 8-9. In
Keystone, he used March 26, 1990. 16 FMSHRC at 878.

186 6

alone ... cannot prove causal relationships." 64 S. Br. at 36-37 n.12, quoting 15 FMSHRC at
1484 n.4. He contends that the judge had "a legally erroneous understanding of what statistical
evidence can prove." S. Br. at 37 n.12. He submits that very significant weight should have been
given to the statistical evidence and cites discrimination cases, in which courts have determined
that statistics alone can constitute prima facie proof of employment or other discrimination. 6s Id.
at 36-37 n.12. He also argues that Intervenors' attempts to explain AWCs do not comport with
the Secretary's evidence that AWCs did not occur randomly over time and across the industry. S.
Reply Br. at 15-16.
lntervenors respond that the inference, if any, to be drawn from, and the weight to be
given to, the statistical evidence was within the judge's sound discretion. I. Br. at 56.
Intervenors and Keystone argue that the statistical evidence deserved little weight because the
underlying data were merely allegations of tampering, not objective evidence of such conduct.
Id. at 61-62, referencing 15 FMSHRC at 1465-66; K. Br. at 94. They distinguish the
discrimination cases as analyzing fundamentally different data, i.e., objective facts, and as
providing evidence of probable relationships between variables, not proof of causal relationships.
I. Br. at 57 & n.49. They note that MSHA first developed written protocols for AWC
identification in the spring of 1990 and that the criteria for identifying AWCs also became more
stringent then. Id at 63 . lntervenors argue that the continuing non-random distribution of AWCs
across mines after the void code undermines the Secretary's position. Id at 69. Intervenors
further argue that AWC rates had dramatically declined for five months before institution of the
void code and that the data reveal a continuous decline throughout the period in question. Id. at
66. They point out that any date selected during the period will result in a rate that is statistically
significantly higher before that date than after, and that the rate of decline was steeper before the
void code date than after. Id. at 67-68. Intervenors further note the Secretary's failure to explain
the comparable rate of decline in AWCs in the samples taken by MSHA inspectors before and
after institution of the void code. Id. at 68.
The statistical evidence on which the Secretary relies was based on cited filters submitted
to MSHA between August 8, 1989, and March 31, 1992. 15 FMSHRC at 1484. The data base

64

Dr. Miller conceded at the Common Issues trial, however, that none of his studies
allowed him to conclude that the presence of an AWC on a filter "establishes that the weight of
the coal dust on that filter was intentionally altered .. .. " Tr. 3740; see also Tr. 3806-07.
65

The Secretary relies on such discrimination cases as Hazelwood School District v.
United States, 433 U.S. 299, 307-08 (1977); International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 339-40 (1977); Barnett v. W.T. Grant Co., 518 F.2d 543, 549 (4th Cir.
1975); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 259 (3d Cir. 1975), cert. denied, 421
U.S. 1011 (1975); United States v. Jacksonville Terminal Co., 451F.2d418, 442 (5th Cir. 1971),
cert. denied, 406 U.S. 906 (1972); Alabama v. United States, 304 F.2d 583, 586 (5th Cir. 1962),
aff'dper curiam, 371 U.S. 37 (1962). S. Br. at 35-36.
·

1867

(the "Analysis Data Set") analyzed by Dr. Miller, the Secretary's statistical expert, contains a
record of all respirable dust compliance filters submitted to MSHA during that period except
those from operators who pied guilty to charges related to submitting fraudulent samples. Tr.
3201-07; Gov't Ex. 227, at 4-6. Miller concluded, on the basis of a chi-square analysis, that the
data were "inconsistent with the hypotheses that the phenomenon leading to cited cassettes is
random and that the likelihood of cited cassette generation is the same at each mine." Gov't Ex.
227, at 18. He also found "a trend to decreasing cited rate over time" and "a marked decrease in
the cited rate on or about 3/19/90." Id. at 21.
Preliminarily, we agree that the data here are not objective. The Secretary asserts that the
AWC citations constitute objective data because the judge found Thaxton' s AWC determinations
to be consistent for purposes of the Common Issues case. The judge found in his Common Issues
Decision that Thaxton's classifications were consistent and that his detenninations as to whether
filters should be cited under his tamper codes "were sufficiently consistent so that I must consider
whether an AWC establishes a violation." 15 FMSHRC at 1466-67, 1469. The judge declined,
however, to credit Thaxton' s opinion on AWC causation, finding that his opinion was not
supported by systematic scientific experiments. 16 FMSHRC at 897; see 15 FMSHRC at 1513,
1521 . We have affirmed that conclusion. Thus, the data analyzed by Dr. Miller were merely
allegations of tampering. 66
We find no error in the judge's determination that the statistical evidence on nonrandomness was not persuasive of intentional tampering. Differences in AWC rates across mines
do not necessarily prove tampering.
Further, the drop in citation rate for the industry as a whole on March 19, 1990, derives
from data as to two different groups of mines. The data were analyzed based on certain "before"
and "after" periods. The "before" period included mines that submitted filters with AWCs before
March 20, 1990, and the "after" period included mines that submitted filters with AWCs after
March 19, 1990. See Gov't Ex. 241, at 1. The "before" data included filters from 300 mines that
did not submit filters during the "after" period. 15 FMSHRC at 1507~ Tr. 4036-38. The "after"
period contained data on 762 mines that were not considered in the "before" period. Id Of the

66

The judge was correct in detennining that this case is not analogous to a discrimination
case. 15 FMSHRC at 1464. Use of data derived from Thaxton's decisions, even if consistent as
to which filters to cite, stands in marked contrast to the use of statistical data in employment
discrimination cases, where statistics are generally used to compare objective data as to two
groups. See, e.g., Teamsters, 431 U.S . at 336-42. For example, the racial makeup of a particular
category of a company's workers is compared to the racial makeup of the qualified and available
labor pool. Absent discrimination, the percentages should be similar. The data used by the
Secretary in this case are not objective and, moreover, they are not compared to a second, control
group.

1868

2,677 mines in the Secretary's analysis, more than 1,000 were incJuded in only one period, not
both. 15 FMSHRC at 1507-08; Tr. 4036-38. Thus, the data can prove nothing as to a change
over time for one group of mines or the other.
Moreover, the drop in the citation rate for the coal mining industry does not prove a drop
in the citation rate for all operators in the Common Issues proceeding. Some operators had
submitted their only cited sample soqie months before the void code date. 67 Others received their
only citation for a sample taken many months after that date. 68 In fact, many operators who
received multiple citations had not yet taken their first cited sample as of that date. 69 The
statistical evidence presen~ed by the Secretary in the Common Issues trial did not even prove that
many cited operators experienced a drop in citation rates at or near the void code date.
The Secretary has not alleged that the operators in this consolidated case were engaged in
a conspiracy or were in any way acting in concert to violate the Mine Act. Yet he has attempted
to use statistics on the citation rate for the coal mining industry as a whole not only to prove a
drop in the citation rate for all operators but to prove that the drop occurred because operators
learned of the AWC void code and, as a result, ceased deliberate tampering. The Secretary is
essentially asserting that a drop in the rate of allegations against coal mine operators as a group
provides legal support for the underlying allegations against particular operators. We conclude
that, absent a conspiracy charge, a drop in the citation rate for the industry as a whole cannot, as a
matter oflaw, be used to draw inferences regarding the conduct of all operators or to support a
finding of deliberate misconduct on the part of any. Based on that determination, we conclude
that the judge did not err in finding that the statistical evidence did not establish that A WCs
resulted from intentional tampering. See 15 FMSHRC at 1520.

67

For example, Big Fork Coal Co., Mine ID# 4401969, received its only citation for a
sample taken on September 22, 1989; C&N Coal Co., Mine ID# 1516336, received its only
citation for a sample taken on November 17, 1989; and Big Hill Coal Co., Mine ID# 1513300,
received its only citation for a sample taken on October 4, 1989. See Gov't Ex. 272.
68

For example, Bullion Hollow Enterprise, Inc., Mine ID# 4404871, received its only
citation for a sample taken on April 2, 1991; LJ's Coal Corp., Mine ID# 1516637,. received its
only citation for a sample taken on October 25, 1990; and Wampler Brothers Coal, Inc., Mine ID
# 1516722, received its only citation for a sample taken on September 25, 1990. See Gov' t Ex.
272.
69

For example, Trojan Mining, Mine ID# 1502091, received its first of 12 citations for a
sample taken on July 11, 1990; Double M. Coal Co., Mine ID# 4405661 , received its first of five
citations for a sample taken on October 22, 1991 ; and Soldier Creek Coal Co., Mine ID
# 4200077, received its first of three citations for a sample taken on June 11, 1990. See Gov't
Ex. 272.

186 9

:".

2. Kevstone Decision
The judge, refusing to infer tampering from the statistical evidence, held that March 26,
1990, was not materially significant at Urling. He was unable to conclude on the basis of the
statistical evidence that the reduction in the citation rate at Urling was related to MSHA' s
investigation of the dust sampling program at the mine. 16 FMSHRC at 901 .

In his PDR, the Secretary argues that the judge erred in failing to understand the
significance of the statistica] evidence in supporting the conclusion that intentional tampering was
the likely cause of AWC formation because such conduct was highly consistent with a sharp
decline in AWCs on March 26, 1990, and other explanations are inconsistent with that decline.
PDR at 15-16. Further, the Secretary asserts that the judge erred in his analysis of the statistical
evidence "by focusing, inter a/ia, on the bimonthly sampling period rather than recognizing the
self-evident and paramount importance of March 26, 1990, as a discrete and most logical date for
evaluating rates of AWCs." Id at 16.
In support of the petition, the Secretary argues that the record establishes that Urling ,
submitted 74 filters with AWCs during the seven months preceding March 26, 1990, but only one
AWC after that date, and that AWC rates for other R&P mines were similar. S. Br. at 37-38.
The Secretary asserts that whatever was causing the AWCs effectively ceased on March 26, 1990,
and the most likely explanation was the response ofR&P employees to the AWC void code. Id.
at 37-40. The Secretary further argues that, even assuming R&P employees had sufficient
knowledge of the MSHA investigation to consider altering their conduct prior to March 26, 1990,
that date is of critical importance because it is when they learned that tampering would no longer
yield positive results for R&P. Id. at 45-46. He also argues that the analysis of AWCs on a
bimonthly basis masks a dramatic decline after March 26, 1990. Id. at 46-48. Finally, the
Secretary asserts that Keystone's attempts to explain the occurrences of AWCs are unsatisfactory.
S. Reply Br. at 15-16; see also id at 20, 26, 27.
Keystone responds that substantial evidence supports the judge' s decision. It asserts that
the Secretary's analysis is flawed. It states that the date on which Keystone was alleged to have
gained knowledge of the void code, March 26, 1990, is irrelevant because their personnel were
aware almost two months prior to that date of a criminal investigation into dust sampling
conducted by MSHA. K. Br. at 94-99. Keystone also argues that, even if these flaws in the
Secretary's analysis are ignored, the statistical evidence does not establish that AWCs resulted
from tampering. Id. at 94.

a Significance of March 26. 1990
The judge concluded that March 26, 1990, was not the most logical cutoff point for
comparing AWC rates. 16 FMSHRC at 900. He found that "the evidence shows that the ESD
personnel and Keystone management were aware of the investigation ... 6 weeks or more before
the notification of the void code .. .." Id.

18 70

In ·~arly February 1990, Dennis Hellgren, the Director of Safety for R&P mines, learned
that MSHA was investigating R&P' s dust sampling program. 16 FMSHRC at 888. He had
received a telephone call from the superintendent of the Florence No. 2 mine, who related that
two foremen, Charlie McGinnis and Norm Thompson, had been contacted by MSHA special
investigators, who were looking into R&P' s dust sampling program. Both foremen had taken
notes of their interviews with the MSHA investigators, and those notes were sent to Hellgren. 70
Hellg:.·en knew that special investigators normally handled criminal investigations. K. Tr. 249091. From his review of the notes, Hellgren knew that the investigators were asking questions
concerning cassettes with white centers and tampering. K. Tr. 2476-78, 2492-97; see 16
FMSHRC at 888. He called the superintendents of other R&P mines to find out whether MSHA
investigators had contacted their foremen about the dust sampling program and asked them to
report back to him. K. Tr. 2477-78, 2486-88; K. Ex. 2073; see 16 FMSHRC at 888.
. Hellgren called but was unable to reach the MSHA agent in charge of special
investigations at the local district office; instead, he spoke to an investigator, who confirmed that
MSHA was collecting information but who refused to explain the reason. K. Tr. 2478-79. On
February 2, while Hellgren was present, Edward Onuscheck, a former vice-president of safety and
a consultant to R&P, had a telephone conversation with Jerry Spicer, an MSHA supervisor.
Spicer s'aid that a preliminary inquiry, on a nationwide basis, was being made into respirable dust
sampling. K. Tr. 2479-84; K. Ex. 2073; see 16 FMSHRC at 888.
On or about February 3, after reviewing Thompson's and McGinnis's notes, HelJgren
sh..>wed them to Donald Eget, supervisor ofR&P's ESD laboratory, and asked Eget what he
thought the investigators were seeking. K. Tr. 2299-2300, 2497-98; see 16 FMSHRC at 888.
Other employees of the ESD laboratory also learned of the MSHA investigation. Dust technician,
Robert Bollinger, Sr., knew about the investigation because MSHA investigators came to his
home looking for his son, who was a foreman at an R&P mine. K. Tr. 3016-19. Shawn Houck,
who worked under Eget' s supervision, learned of an MSHA investigation from Bollinger. K. Tr.
2120-21. Foreman McGinnis told Thomas Hollern, a dust technician in the R&P laboratory,
about the MSHA investigation in early February. K. Tr. 3256-58, 3294. Douglas Snyder and
Herbert Gleditsch, other dust technicians, also learned of the MSHA investigation and knew that
investigators were talking to foremen. K. Tr. 1908-11, 2677-78, 2728.
On February 20, 1990, an MSHA investigator, Joe Totorio, telephoned Hellgren to set up
a meeting with R&P officials., Totorio indicated to Hellgren that MSHA was working with the
U.S. Attorney' s office in investigating dust cassettes with white spots in the centers. HelJgren
asked Totorio which of the R&P mines were being investigated and was told that Urling was one.
In a second telephone conversation that day, Totorlo identified the lawyer from the U.S .

70

Thompson' s notes are dated January 25, 1990, K. Ex. 2075, while McGinnis's are
dated February 1, 1990, K. Ex. 2076. McGinnis' s notes indicate that he was interviewed at his
home and shown dust filters with AWCs. Id ; see K. Tr. 2496-97. Neither Thompson nor
McGinnis testified at trial.

1 871

Att~mey's office with wt·om he was working. K. Tr. 2499-2507; K. Ex. 2074; see 16 FMSHRC

at 888. Following these ·;onversations, Hellgren told R&P's legal department that the company
was "under investigation by the U.S. Attorney." K. Tr. 2507-08. Hellgren also told Eget about
the conversation with Totorio. K. Tr. 2300-01, 2508-09; see 16 FMSHRC at 888.
To summarize, beginning in early February 1990, officials at R&P, from its top
management to its first-line supervisors, ~ad knowledge ofMSHA's investigation into dust
cassette tampering. A mine superintendent first telephoned R&P' s safety director to report
MSHA's efforts to interview foremen, and he in tum put every R&P mine superintendent on
notice to report ar..y MSHA contacts with foremen. The safety director' s February 20 telephone
conversation with an MSHA investigator confirmed that the investigation involved allegations of
criminal misconduct. In early February and again on the 20th, details of the investigation were
·passed along to nonald Eget, whom the judge found had an opportunity to tamper with dust
cassettes. 16 FMSHRC at 888-89, 901; K. Tr. 2495-98, 2508-09. These communications
diffused knowledge of the investigation among R&P managers. ESD laboratory employees,
including dust technicians, also became aware of the investigation. 16 FMSHRC at 890-92; K.
Tr. 1908-11, 3016-19, 3355-59.
Substantial evidence in the record supports the judge' s finding that R&P employees were
aware of MSHA' s criminal investigation some six to seven weeks prior to MSHA' s notification
that dust sample filters with AWCs would be voided. 16 FMSHRC at 900. Further, we reject the
Secretary's argument that, even ifR&P employees knew of the investigation earlier, March 26,
1990, is critical because they learned on that date that tampering would no longer be beneficial.
The Secretary h ;s p~esented us with no evidence of why, ifR&P personnel had been tampering
with dust cassettes, they would have been more likely discouraged by the institution of the void
code thari by the special investigation and the prospect of criminal prosecution. We also note
that, from early February 1990, the time the judge found R&P's employees had knowledge of the
investigation, until March 26, 1990, Urling's citation rate actually rose sharply, from zero in the
sampling weeks of February 5, 12 and 26, to 50% in the week of March 19, 1990. K. Gov't Ex.
501.
Significant to the judge's rejection ofMiller' s analysis ofthe rate of AWCs at Urling
before and after March 26, 1990, was the unexplained overall decline in the rate of AWCs from
September of 1989 through April of 1990. 16 FMSHRC at 900. Indeed, in other periods prior to
March 1990, the rate of AWCs also decreased, sometimes more sharply than it did after March
26. See 16 FMSHRC at 905 (App. A); K Ex. 2129B; K. Gov't Ex. 500, at Attach. Al.
Although the Secretary states in his brief that "the data picked the date," S. Reply Br. at 21, Dr.
Miller testified that the date March 26, 1990, was given to him by the Secretary's trial counsel for
use in his analysis. K. Tr. 788-789. The Secretary offered no explanation, see Oral Arg. Tr. 11617, to distinguish earlier declines in the rate of AWCs from the decline that occurred after March
26, 1990, which he asserts is indicative of the cessation of intentional tampering.

1872

We affirm the judge' s conclusic ., that the date March 26, 1990, is not materially
significant in the Keystone proceeding .md that the drop after that date in Urling' s citation rate
does not establish intentional tampering.
b. Use of Bimonthly Data71
The Secretary challenges the statistical analysis of the rate of AWCs by Keystone' s expert,
Dr. Roth, because it was based on bimonthly data, which the Secretary alleges masks the decline
after March 26, 1990.72 S. Br. at 46-48. The judge accepted Roth's approach in using bimonthly
data because operators carry out dust sampling on a bimonthly basis. 16 FMSHRC at 900; see 30
C.F.R. §§ 70.207(a) & 70.208(a) (1994).
Miller conceded that, oi'lce March 26, 1990, loses its significance as the date on which
R&P employees became aware of the MSHA investigation, as the judge held and we have
affirmed, there was nothing "necessarily wrong" with using a two-month period to analyze the
rate of AWCs. K. Tr. 845-47. It is also apparent, from the judge's consideration ofUrling's
AWC rate before and after March 26, 1990, that he also examined weekly data and did not rely
exclusively on Roth's bimonthly analysis. 16 FMSHRC at 900, 905 (App. A) . Thus, we conclude
that the judge did not err in relying in part on Dr. Roth's analysis based on bimonthly data.
E. Exclusion of Third-Party Criminal Evidence73
Prior to the Common Issues trial, the operators sought to exclude the testimony of five
individuals on the Secretary's witness list who were expected to testify about methods by which
dust could be deliberately dislodged from filters or fraudulent samples created. Mot. to Exclude
S. Case-Specific Witnesses from th.e Common Issues Trial, filed Nov. 12, 1992; Tr. 79-80, 85-88
(Prehr'g Conf Nov. 17, 1992). Those individuals included Randy Thomas, a former R&P
employee, and a principal and an employee of Triangle Research Corporation ("Triangle").
S. Witness List filed Oct. 30, 1992. At the pretrial hearing, the judge granted the operators'
motion, excluding the testimony because it was not relevant to the issue to be determined in the
Common Issues trial, i.e., whether "an AWC on a cited filter cassette . .. establishes that the
operator intentionally altered the weight." Tr. 82-83, 89 (Prehr'g Conf Nov. 17, 1992).

71

Bimonthly analysis has the effect of smoothing the data over time. 16 FMSHRC at
880. Compare 16 FMSHRC at 905· (App. A) with Id. at 906 (App. B).
72

In the Common Issues proceeding, Dr. Roth analyzed weekly data. See R. Ex. 1041,
Attachs. B & C. In that case, Dr. MiHer used March 19, 1990, rather than March 26, 1990, as the
pivotal time in his analysis. 15 FMSHRC at 1485. We note that both experts tailored their
analyses to the issues before the judge in the respective cases.
73

This section addresses Issue No. 14 of the PDR.

1 8 73

At the Common Issues trial, the Secretary, in ·!xamining Mr. Thaxton on filters classified
as tamper code 10, sought to question him regarding Triangle and offered exhibits involving guilty
pleas of individuals and entities in criminal cases involving Triangle and its employees and other
operators. 74 Tr. 294-96. He offered the evidence to show "the accuracy of Mr. Thaxton being
able to discern which cassettes [had] been deliberately altered," and "also discern the method by
which they were altered." Tr. 296-97. The Secretary asserted that evidence of those guilty pleas
would show that, at least as to tamper code 10, \fr. Thaxton was very accurate. Tr. 296-97. The
judge sustained the operators' objection and exduded the evidence. Tr. 307. He let stand
Thaxton' s testimony that tamper code 10 filten came from a particular geographical area
(Kentucky, Virginia, and West Virginia) and were largely submitted by Triangle. Tr. 305. During
redirect examination of Thaxton, the Secretary renewed his request that the evidence be admitted,
again urging that it would show Thaxton' s ability to identify filters that had been deliberately
altered. Tr. 1115-20. Again, the judge sustained the operators' objection, finding the evidence
irrelevant and not necessary to rehabilitate Thaxton as a witness. Tr. 1119-20. The Secretary
made offers of proof regarding the five indh·iduals whose testimony was excluded at the pretrial
hearing as well as several other documents involving criminal pleas. Excluded Exs. 330-34; Tr.
307-11, 1120; S. Statement and Intro. to Offers of Proof Reg. Potential Testimony of Pysher,
Murray, Thomas, Ellis, and White, filed Jan. 7, 1993 .

In the PDR, the Secretary asserts that the judge erred in the Cominon Issues trial in
excluding evidence of criminal tampering and evidence from those who .had witnessed or
participated in tampering because it would have played a substantial role, when weighed with
other evidence, in establishing that intentional tampering was the most likely cause of AWCs and
was "clearly relevant to the general question of motive in tampering .. . ." PDR at 20-21. He
further contends that the evidence of criminal conduct was relevant to showing the opportunity
and the incentive to tamper by R&P personnel, S. Br. at 101, S. Reply Br. at 49-50, and that the
judge's ruling precluded "the possibility of consideration of most of this evidence at the
[Keystone] hearing." S. Br. at 100.
Intervenors argue that the evidence was properly excluded under the terms of the
September 1992 Order, which provided that evidence of intent by individual mine operators was
not an issue in the Common Issues proceeding. I. Br. at 53-54. Keystone and lntervenors also
argue that the evidence was properly excluded at the Common Issues trial because it was neither
relevant nor probative and because evidence concerning operators who were criminally liable
could not be used to establish that other operators acted in a similar manner. Oral Arg. Tr. 19899~ K. Br. at 52; I. Br. at 54.
We conclude that the judge did not err in excluding the evidence at the Common Issues
trial. As noted in section B. 3., supra, the judge, in the September 1992 Order, set forth the

74

Tamper code 10 was developed in the fall of 1990, after initiation of the void code.
Filters classified under this code had a slightly darker center, less than 6mm in diameter,
surrounded by a broad lighter ring. 15 FMSHRC at 1462; Tr. 292-93, 8264-65.

1874

issue to be detennined in the Common Issues trial as whether an AWC "establishes that the
operator intentionally altered the weight of the filter." 14 FMSHRC at 1677. "The intent of a
particular mine operator or group of operators [was] not an issue in the common .issues trial . . .."
Id. Moreover, evidence that some AWCs were caused by deliberate conduct would not have
established that all or even most AWCs were caused by deliberate conduct. We conclude that the
judge's evidentiary ruling is consistent with the September 1992 Order and was not an abuse of
discretion.
. We also agree with Keystone and Intervenors that the evidence concerning guilty pleas by
several operators could not properly be used to establish motive, opportunity, incentive, or the
likelihood of intentional tampering as to others because such evidence does not prove that
operators, in general, had acted similarly.
Further, it is not apparent that, if the testimony regarding Triangle and the challenged
exhibits had been admitted into evidence, the judge would have analyzed tamper code 10 filters
differently. The evidence was proffered for the purpose of confinning Mr. Thaxton's ability to
identify and categorize AWCs, particularly those in tamper code 10. The judge found the
evidence neither relevant to the case nor "necessary to rehabilitate Mr. Thaxton as a witness." Tr.
1119-20. In fact, the judge found that "classificatio~ of AWCs by Thaxton under his tamper
codes was consistently applied ...." 15 FMSHRC at 1513. Moreover, the judge allowed
testimony from Thaxton that the vast majority of tamper code 10 filters came from mines serviced
by Triangle, whose principal and employee were parties to a criminal plea agreement. Tr. 295,
305. Thus, the judge had before him evidence of criminal activity with respect to tamper code 10
filters and referred to the criminal convictions in the Common Issues Decision. 15 FMSHRC at
1520.
Contrary to the Secretary' s argument, S. Br. at 100-101, Oral Arg. Tr. 205, the judge' s
exclusion of the proffered evidence in the Common Issues trial did not preclude its consideration
in Keystone. Randy Thomas, one of the individuals whose testimony was excluded from the
Common Issues trial, testified as the Secretary' s witness in Keystone. K. Tr. 1307; 16 FMSHR.C
at 892, 902. Further, at trial, after Keystone had cross-examined Thaxton using exhibits relating
to the criminal pleas involving Rushton Mining Company and Peabody Coal Company, those
exhibits were accepted into evidence on the Secretary' s motion. K. Tr. 1212-16, 1295-97; K.
Exs. 2117, 2118. Keystone Exhibit 2118 included criminal indictments and plea agreements
relating to Peabody and made up a portion of the Secretary' s Exhibit 334, which was offered and
excluded at the Common Issues trial. The Secretary did not offer into evidence any other
testimony or exhibits on this issue that were excludecj. from the Common Issues trial. Thus, the
Secretary' s argument on review, that the judge' s exclusion of this evidence in the Common Issues .
proceeding precluded its consideration in Keystone, is without merit.

1 875

F. Other Kevstone Issues
1. Handling of Sampling Equipment at ESD75
The judge found that changes in the handling of sampling equipment at ESD could have
been a factor in the decrease of AWCs at Urling in the spring of 1990. 16 FMSHRC at 884. He
found that ESD supervisor Donald Eget, who handled the equipment more r0ughly than other
ESD personnel, did not handle samples or sampling equipment from April 9 until May I 0, 1990,
and that dust technician Douglas Snyder and the other technicians were mo:·e careful in their
handling of the equipment as a result ofMSHA's investigation. Id
The Secretary contends that substantial evidence does not support a finding by the judge
that changes occurring on or about March 26, 1990, in handling of dust sampling equipment at
ESD explained the decline in AWCs after that date. PDR at 18; S. Br. at 96-100. To support his
argument, the Secretary states that both Eget and his laboratory assistant Shawn Houck admitted
that they had not modified their handling practices after March 26, 1990. S. Br. at 97. He also
argues that Snyder could not identify the time at which he made changes in his handling of the
sampling units. Id Keystone counters that the judge found handling changes in the spring of
1990 to be only one of many possible explanations for the decline. K. Br. at 103-07.
In asserting that the judge relied on changes in handling to explain the decline of AWCs
after March 26, 1990, the Secretary mischaracterizes the Keystone Decision. The judge found
that handling changes by ESD personnel, in addition to other phenomena at Urling, "could have
been factors in the decrease in the number of cited AWCs in the Spring of 1990." 16 FMSHRC
at 884; see also id. at 882-86. Substantial evidence supports that finding.

Eget, Houck, and Snyder testified that the sampling units had been subjected to rough
handling by ESD personnel. For example, Snyder testified that, in transporting pumps, he
dropped the pumps, caught protruding hoses on door latches, and slammed hoses in doors. K.
Tr. 1838, 1849-51. Houck testified that the dust technicians often left the pumps in disarray at
the ESD with pumps piled on top of each other and hoses tangled together. K. Tr. 2084-86,
2159-60. Eget was rough in his treatment of the pumps; for example, he carelessly threw pumps
into his vehicle when transporting them and swung pumps onto the table at the ESD laboratory.
K. Tr. 2178-80, 2244-48, 2250-52.
Houck testified that, although he did not know of any changes in the conduct of the
respirable dust program and that it was hard to.reduce the rate of accidentally dropped cassettes,
he thought everyone, including the technicians, became "a little bit more careful of the handling of
the pumps." K. Tr. 2179, 2203, 2214-15. Although Eget did testify that he had not changed his
behavior after March 26, 1990, he did not handle pumps from early April until May 10, 1990. K.
Tr. 2319-20, 2362, 2384. Snyder could not pinpoint exactly when his behavior changed, but he
15

This section addresses Issue No. 12 in the PDR.

1876

testified that he became more careful in his pump handling. See K. Tr. 1921 . Other ESD dust
technicians also testified to using greater care. Dust technician Herbert Gleditsch, who at time~.
sampled at Urling, testified that he handled pumps more carefully. K. Tr. 2713-14, 2733-34.
Dust technician Thomas Hollern, who sampled at R&P' s Heshbon mine, testified that he became
more careful after the AWC investigation. K. Tr. 3272-76, 3283-84.
We concJude that substantial evidence supports the judge's finding that changes in the
handling practices ofESD personnel did occur and we affirm that finding. We also affirm the
judge's conclusion that these changes "could have been factors" causing the decrease in cited
AWCs in the spring of 1990.
2. Optional Quartz Samples76
The judge drew no conclusions with respect to the fact that no AWCs were noted or cited
by MSHA on the "optional quartz samples"77 concurrently submitted by Urling and other R&P
mines. 16 FMSHRC at 887-88. The Secretary asserts that the judge erred in failing to accord
weight to this evidence. PDR at 14-15; S. Br. at 48-55. He contends that the Urling and R&P
quartz sample filters did not display AWCs even though they were taken in the same manner,
under the same conditions, and at the same time as the respirable coal dust samples that exhibited
AWCs. Id. The Secretary asserts that the absence of AWCs on the quartz samples indicates
tampering because, for a quartz sample to be accepted as valid by MSHA, it must be sufficiently
heavy and, thus, R&P would not have had the same incentive to remove dust from a quartz
sample as from a compliance sample. S. Br. at 49-51 ; see K. Tr. 1109, 1122-24. Keystone
responds that the judge properly rejected the Secretary's evidence on optional quartz ~amples
because the appearances of those filters could not be evaluated. K. Br. at 90-92.
Paul Parobeck, chief of the instrumentation and analytical branch at the PHTC laboratory
and overseer of quartz sampling and the Secretary's only witness on this issue, testified that none
of the quartz sample filters submitted by Urling and other R&P mines from August 1989 through
March 31, 1991, had AWCs. K. Tr. 1124-30. Parobeck' s testimony was based on computer
records, not on his personal examination of the filters. K. Tr. 1124-30, 1140; K. Gov't Ex. 506.
The PHTC employees who had reviewed the filters were not called as witnesses. 16 FMSHRC at

76

This section addresses Issue No. 6 in the PDR.

77

If a mine's atmosphere contains more than 5% quartz, the maximum level ofrespirable
dust permitted is reduced below 2.0 milligrams per cubic meter. K. Tr. 1104-05; 30 C.F.R. §§
70. 101, 71.101, 90.101 (below 1.0 milligrams per cubic meter where a Part 90 miner is exposed).
If more than 5% of quartz is detected in a sample drawn by an inspector, an operator is given the
option of submitting additional samples for evaluation. K. Tr. 1119. The results of the optional
quartz samples drawn by the operator are then averaged with the results of the inspector samples
to determine the mine' s respirable dust standard. K. Tr. 1119.

1 87 7

887-88; see K. Tr. 1140-42. Moreover, the filters were no longer in existence78 and no
photographs of them were introduced at the trial or made available for examination prior to the
trial. 16 FMSHRC at 887; see K. Tr. 1128-30, 1140-41; K. Gov't Ex. 506: Thus, the operators'
experts did not have an opportunity to examine the filters and compare them with cited filters or
form opinions about them. We conclude that the judge did not err in according no weight to the
Secretary's evidence regarding Urling's quartz sample filters or in refusing to infer from such
evidence that Keystone or R&P personnel had engaged in tampering.
3. Credibility ofESD Personnel79

Keystone, unlike the Common Issues case, involved allegations of tampering by the
employees of a specific operator. The judge' s evaluation of the credibility of employee witnesses
was critical and properly assumed a significant role in his decision. See 16 FMSHRC at 903 . The
judge heard the testimony of33 witnesses from Keystone and the ESD laboratory; all employees
ofESD during 1989 and 1990 testified. 16 FMSHRC at 859, 888, 901; see generallyK. Tr. The
judge accepted as truthful the testimony of these employees that they did not tamper with dust
samples. 16 FMSHRC at 903.
The S.ecretary argues that the judge erred in several respects in his credibility
determinations as to ESD personnel. PDR at 18-19. He asserts that the judge gave undue weight
to the testimony and credibility ofESD witnesses and contends that the judge's credibility
determinations are undermined because that testimony conflicts. He objects to the judge's finding
that ESD personnel lacked incentive to tamper and he objects to the judge's failure to credit the
testimony of Randy Thomas and Jack Szentmiklosi. Id. at 19. He also asserts that the judge's
credibili~y determinations conflict with the overwhelming weight of the other evidence. Id at 1920. Keystone responds that the judge's credibility determinations are fuJJy substantiated by the
record and, in accordance with longstanding precedent, are entitled to significant weight. See K.
Br. at 36-45, 53-57.
The Commission has long held that a judge's credibility determinations are not to be
overturned lightly and are entitled to great weight. Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1541(September1992); Quin/and Coals, Inc., 9 FMSHRC 1614, 1618
(September 1987); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (December 1981); Hollis v.
Consolidation Coal Co., 6 FMSHRC 21, 25 (January 1984). "Since the ALJ has an opportunity
to hear the testimony and view the witnesses he is ordinarily in the best position to make a
credibility determination." Ona, 729 F.2d at 719. The Ona court observed that, "as a general
rule courts are bound by the credibility choices of the ALJ, even if they 'might have made
different findings had the matter been before [them] ... de novo."' Id. at 719, citing Gulf States
Mfrs., Inc. v. NLRB, 519 F.2d 1298, 1329 (5th Cir. 1978).

78

The quartz evaluation process itself destroys the quartz sample filters. K. Tr. 1112-13 .

79

This section addresses Issue No. 13 in the PDR.

1878

The judge, noting several elements of demeanor that must be considered in determining
credibility, also recognized that his credibility determinations must take into account the extensive
factual, scientific, and statistical evidence and the witnesses' prior knowledge of sanctions for
tampering. 16 FMSHRC at 901. His analysis focused on Eget and Houck because he determined
that only they, among ESD personnel, had substantial opportunity to tamper. Id. In evaluating
their testimony, the judge stated that he was "impressed [with] the backgrounds of Eget and
Houck and their forthrightness on the witness stand" and that he "carefully considered their
testimony." Id at 902. We conclude from our review of this record that the judge did not make
these credibility resolutions lightly. The judge found these individuals to be truthful witnesses and
his acceptance of their denials of tampering is linked to his careful consideration of the other
evidence. See id. at 903. Thus, the judge properly based his credibility determinations on his
evaluation of the witnesses and their demeanor and did so in the context of the record before him.
The Secretary argues that, in crediting ESD personnel, the judge overlooked a number of
inconsistencies in their testimony. S. Br. at 109-11 & n.38. The Secretary identifies two points
on which Eget and Houck differed: Eget did not regard his handling as rough, whereas Houck
did; Houck recalled performing a dust removal experiment that Eget did not remember. See PDR
at 18, citing 16 FMSHRC at 862, 890; S. Br. at 109-10. Neither of these differences provide
reason to discredit the witnesses or overturn the judge' s determination. The perception of one's
own behavior frequently differs from how it is perceived by others. Eget' s failure to recall one
experiment does not make his testimony that he had not tampered unworthy of belief by the judge,
who had the opportunity to listen to his testimony and observe his demeanor. We conclude that
such insignificant differences in testimony do not provide sufficient basis to overturn the judge's
credibility determinations.
The Secretary also argues that the judge erred in basing his decision to credit ESD
personnel on their lack of incentive to engage in tampering because they knew that tampering
could subject them to punishment. S. Br. at 106-07. Specifically, the Secretary contends that the
judge erred by: (1) failing to recognize that, on both "an economic plane" and "a psychological
plane," employees have an incentive to help their employer; and (2) by stating that R&P' s small
number of respirable dust violations indicates a lack of incentive. Id. at I 07-09. The judge
expressly recognized that mine operators and agents had pied guilty to criminal tampering. 16
FMSHRC at 901. The judge's statement as to lack ofincentives responded to the Secretary's
asserted motivation for ESD personnel to engage in tampering, i.e., to avoid penalties, to avoid
resampling, and to avoid the enormous potential costs of non-compliance. Id. at 902. The judge
rejected these asserted incentives as very weak and, when considered with R&P's relatively small
history of dust violations, to be almost non-existent. .Id It was in this cc;mtext that the judge
referenced the employees' knowledge of criminal sanctions and found, on balance, that the
evidence showed a lack of incentive rather than an incentive to tamper, as argued by the
Secretary. Id.
In addition, the record reveals that ESD supervisor Eget had a strong concern relating to
MSHA investigations into tampering and possible sanctions. See K. Tr. 2322-26. In 1982, Eget

1879

wrote a memo cautioning safety personnel of the possibility of criminal investigations and advising
them to conduct themselves "in a responsible manner and beyond reproach." K. Ex. 2036.
Because of an earlier MSHA investigation, Eget kept a logbook to record the appearance of every
sample sent to MSHA. K. Tr. 2260-61, 2377-80. Eget's logbook noted that two of the filters
(369468 and 294719) submitted to MSHA and later cited would be voided for having been taken
on a low production shift. K. Ex. 2006A; K. Tr. 2279-80. We find no apparent incentive for
Eget to remove dust from filters that he knew were going to be routinely voided by MSHA.
Thus, the judge's finding of lack of incentive is supported as to Eget.

As to other ESD personnel, dust technician Robert Bollinger, Sr. testified that he and
others who worked under Eget's supervision had nothing to gain from tampering. K. Tr. 303536. Dennis Hellgren, R&P's Director of Safety, testified that he knew of no incentive for
personnel to tamper. K. Tr. at 2540. Hellgren also stated that Eget would not have put up with
tampering and that Hellgren would have fired Eget if he had tampered with filters. K. Tr. at 2541.
Further, a review of the record indicates that, before the judge, the Secretary neither
offered evidence on, nor argued his theory regarding, employees' incentive to help their
employers. We do not accept the Secretary's theory as true on its face because even if, in much
of their behavior, employees have an incentive to help their employers, it_ is not evident that, in
general, they would engage in tampering or other illegal behavior to help their employers.
Consequently, we reject the Secretary's theory as a basis for reversing the judge.
The Secretary argues that the judge's reasoning with regard to the effect on incentives of
R&P's small history of respirable dust violations is circular in nature, because the small history
itself may have resulted from tampering. S. Br. at 107-08. In deciding to credit denials of
tampering by ESD witnesses, the judge relied primarily on his evaluation of their truthfulness and
their demeanor in the context of the other evidence. 16 FMSHRC at 901-03 . Before taking into
consideration R&P's small history of dust violations, he found the Secretary's asserted incentives
to be minimal. Id. at 902. Moreover, his determination as to ESD employees' credibility was
based only marginally on their lack of incentive. Thus, any error by the judge in relying on R&P's
violation history is harmless.
We also reject the Secretary's assertion that the judge failed to give his reason for
discounting the testimony of Jack Szentmiklosi, that he had heard a conversation between
BoUinger and R&P's then Vice-President of Operations, Robert Anderson, on the subject of the
tampering investigation. S. Br. at 110 n.39. As the judge explained, both Anderson and Bollinger
testified that they did not recall such a conversation. 16 FMSHRC at 891, 893. In choosing to
credit Bollinger and Anderson, the judge referenced the same reasons he had set forth earlier for
crediting Eget and Houck. Id at 903. The PDR further takes issue with the judge's discounting
of the testimony of Randy Thomas, who testified to alleged tampering at ESD some 15 years
earlier, PDR at 19; K. Tr. 1316-19, but the Secretary offers no support in his briefs for this
objection. We conclude that the judge did not abuse his discretion in weighing Thomas's
testimony against that of Gary Foehrenbach and in determining that Thomas misunderstood what
he saw or that his recollection was dimmed by the passage of time. 16 FMSHRC at 902.

1880

Finally, we reject the Secretary's assertion that the judge's credibility detenninations "are
entitled to no deference" because they are irreconcilable with the weight of the evidence. S. Br.
at 103. The contrary evidence of tampering referenced by the Secretary, which ·he characterizes
as "overwhelming," i.e., "that nothing explains the sudden and dramatic decline in AWCs except
the fact that on March 26, 1990, R&P learned that MSHA believed that the existence of AWCs
indicated.tampering," id., provides no basis on which to overturn the judge's credibility
detenninations. We have affinned the judge's findings and conclusions as to the scientific and
statistical evidence as well as the handling of sampling equipment at ESD. Thus, in our view, the
judge' s crediting ofESD employees' testimony that they did not engage in tampering is not
irreconcilable with the record evidence but is in accord with it.
The Secretary' s contentions do not compel the extraordinary step of overturning the
judge' s credibility detenninations. 80 See Hollis, 6 FMSHRC at 25.

Ill.
Conclusion
We have concluded that the judge articulated and applied the appropriate burden
of proof in both the Common Issues Decision and in the Keystone Decision. We have
detennined that the judge did not abuse his discretion in rejecting Mr. Thaxton's opinion on AWC
causation, in crediting Dr. Lee' s opinion on AWC causation, in admitting and crediting Dr. Com's
opinions on the effect of filter-to-foil distance and the size and shape of dust particles, and in
admitting and crediting Dr. Lee' s opinion on the effect of scrubbers. We have found that

80

We have considered the cases on which the Secretary relies for extending diminished
weight to the judge's credibility determinations. S. Br. at 28-30, 102-05, 110. Those cases offer
no support for the Secretary's position; they recognize the general rule that, absent exceptional
circumstances, appellate courts do not overturn findings based on credibility resolutions. Medline
Industries, Inc. v, NLRB., 593 F.2d 788, 795 (7th Cir. 1979); Breeden v. Weinberger, 493 F.2d
1002, 1010 (4th Cir. 1974) (administrative law judge has unique advantage in ma)dng credibility
detenninations); NLRB v. Brooks Cameras, Inc., 691 F.2d 912, 915 (9th Cir. 1982) (weight is
given to the administrative law judge's determinations.of credibility for obvious reasons). None
of the exceptions to the general rule on review of credibility resolutions presented in those cases
apply here. The judge' s determinations were not self-contradictory (Ona Corp. , 729 F.2d at
719), were not based on irrational criteria (Breeden, 493 F.2d at 1010), and did not contradict the·
evidence (Medline, 593 F.2d at 795; NLRB v. Huntington Hospital, Inc., 550 F.2d 921, 924 (4th
Cir. 1977)). Unlike many of the Secretary' s proffered cases, see, e.g., NLRB v. lnterboro
Contractors, Inc., 388 F.2d 495, 501 (2d Cir. 1967) (credibility detenninations not supported by
record); Victor Products Corp. v. NLRB, 208 F.2d 834, 839 (D.C. Cir. 1953) (sense of record did
not support finding), the judge's credibility determinations are supported by the record.

18 81

...

substantial evidence supports the judge's findings that manufacturing variables affect the
su$;ceptibility of filters to AWC formation and could have been a factor, among others, in the
decline of AWCs.
We have also affirmed the judge's conclusion that the statistical evidence did not estabJish
tha~ AWCs resulted from intentional tampering or that, in Keystone, a reduction in the mine's

citation rate resulted from MSHA's investigation of its dust sampling program. We have
concluded that the judge did not err in excluding evidence of criminal tampering from the
Common Issues trial and that its exclusion did not preclude its consideration at the Keystone trial.

As to Keystone, we have found that substantial evidence supports the judge' s finding that
changes in the handling of sampling equipment occurred at Urling and that those changes could
have been factors in the decrease in cited AWCs. We have also concluded that the judge did not
err in according no weight to the Secretary's evidence as to quartz samples and have declined to
overturn the judge's credibility determinations as to ESD personnel.
Accordingly, we affirm both the Common Issues Decision and the Keystone Decision.
The 75 citations at issue in Keystone are vacated.
The judge's determination in the Common Issues Decision., i.e., that the presence of an
A WC on a filter does not, in itself, prove deliberate conduct and a violation of section 209(b),
applies to all citations in Master Docket 91 -1. It serves as precedent on that issue in other dust
cases, not on the Master Docket, that have been stayed pending the outcome of this case.
Within 45 days after issuance of this decision, the Chief Administrative Law Judge shall
issue an order in the cases on stay, setting forth a schedule for submissions from the parties as to
disposition of those cases.

Arlene Holen, Conunissioner

Conunissioner Marks dissents and will file his opinion later.

188 2

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

December 6, 1995
IN RE: CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

Master Docket No. 91-1

KEYSTONE COAL MINING CORPORATION

Docket Nos.

PENN 91-451-R through
PENN9l-503-R

V.

Docket Nos.

PENN 91-1176-R through

PENN 91-1197-R

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

Docket Nos.

PENN 91-1264 through
PENN 91-1266

and
V.

Docket No.
Docket No.

KEYSTONE COAL MINING CORPORATION

PENN 92-182
PENN92-183

JIM WALTER RESOURCES,
INC., et al.,
Intervenors

UNITED MINE WORKERS
OF AMERICA (UMWA),
Representative of Miners

BEFORE: Marks, Doyle, and Holen, Commissioners

BY: Marc Lincoln Marks, Commissioner

I vigorously dissent. 1

1

I wish to acknowledge with deep appreciation the extraordinary professionalism that
was shown during the preparation of this dissent by my personal Counsel, Cluistopher Yost. In
addition, I mention as well, the long hours of tedious work that were performed by the
Commission's General Counsel, Joseph Ferrara and his staff, particularly, Elizabeth Ebner and
Beverly Bryce who from the inception of this very lc;>ng effort on the part of the Commission, in a

1883

I. Introduction
The history of these so called dust cases may seem at first to begin when the then
Secretary of Labor, the Honorable Lynn Martin, ordered citations issued against approximately
one-third of the entire coal industry (847 operators) for violating 30 C.F.R §§ 70.209(b),
7 I .209(b); or 90 .209(b) (collectively "section 209(b)") by illegally altering the dust cassettes that
they submitted to the Pittsburgh Health Technology Center in Pittsburgh, Pennsylvania. Section
209(b) was promulgated to verify and ensure that the respirable dust levels in the mines subject to
the standard were maintained at no greater than an average concentration of 2. 0 milligrams of
respirable dust per cubic meter of air or, under extraordinary conditions, maintained at or below
1.0 milligram ofrespirable dust per cubic meter of air. However, I suggest that these cases did
not begin when the Honorable Lynn Martin ordered the instant citations issued, but rather, these
cases have their beginning prior to that date, when the United States Government brought the
Peabody Coal Company to the bar of justice for, among other things, illegally altering dust
cassettes. Interestingly enough, the altering, which the Peabody Coal Company admitted to,
consisted of, inter alia, forcing air into the dust cassette and causing the filter to display an
abnormal white center or an AWC. It was this very AWC appearance that caused the dedicated
employees of the United States Government, sometime later, to become suspicious of the
thousands of AWCs that the cited operators were submitting to the Pittsburgh Health Technology
Center.
There is, however, a dramatic difference between what happened in the Peabody Coal
Company case and what happened in the dust cases before us now. In 1987, the management of
the Peabody Coal Company had the decency and courage to admit their wrongdoing: they plead
guilty and took their medicine (and a pretty strong medicine it was)-~ a fine of one half a million
dollars! Unfortunately, that was not the case with the defendants in these dust cases. Rather,
defendants in these cases got together, hired counsel, and came up with a defense. Although
defendants and their counsel's imaginative defense and arguments convinced the Administrative
Law Judge, as reading his decisions confirm, those decision lack legal significance. Not only was
the ALJ obviously susceptible to the defendants' arguments, but the ALJ enhanced them and
committed fundamental error in doing so! As a result, the Administrative Law Judge's decisions
must be reversed.
Although the body of this opinion will set out the ALJ> s errors in detail, I believe it is
incumbent upon me to briefly highlight his errors at this point. The history of these dust cases
establishes that August 13, 1992 was a disastrous date for the United States Government's case.
On that date the Administrative Law Judge issued an order interpreting section 209(b), the section

most professional manner, put before all the Commissioners involved in this case the necessary
tools to render both its majority and dissenting opinion. I wish to acknowledge also the hard
work and professionalism of the majority's Counsel, James Callear, who though on the opposite
side of the issue from that which I took, at all times was willing to discuss the issues which were
so pertinent to the decision in this case.

1884

that all 847 operators in these dust cases were charged with violating, resulting in the issuance of
approximately 5,000 citations against those operators.
Section 209(b) states:
The operators shall not open or tamper with the seal of any filter cassette or alter
the weight of any filter cassette before or after it is used to fulfill the requirements
of this part.
The judge interpreted section 209(b) to require the United States Government to prove that the
cited cassettes were intentionally altered. Taking on himself the mantle of"Noah Webster," the
Administrative Law Judge had this to say about the meaning of section 209(b):
If the weight of a filter cassette is "altered, 11 the alteration can only be caused in
one of two ways: either some person or persons actively caused it, or it resulted
accidentally. The words of the standard in Section 209(b) according to their plain
meaning refer to an action, proscribe conduct, include the concept of intention, and
exclude an accidental occurrence.
14 FMSHRC 1510, 1513 (August 1992) (emphasis added).
Obviously, if"altered" can have two meanings its meaning is not "plain[!]" Id.
In spite of the law requiring an ALJ to give weight to the Secretary's reasonable
interpretation of section 209(b), the judge did just the opposite and made the defendants' day!
The Secretary of Labor, the Honorable Lynn Martin, interpreted section 209(b) to require the
United States Government to prove that the weight of the cited cassettes was changed or altered
while in the operator' s control and that the issue of whether the section was violated in no way
hinged on operator intent. The Administrative Law Judge rejected the Secretary's reasonable
interpretation of section 209(b). The Administrative Law Judge forced the United States
Government to prove that the alteration in the weight of a cited filter was caused by intentional
and deliberate operator misconduct. In Re: Contest ofRespirable Dust Sample Alteration
Citations, 14 FMSHRC 1510, 1517 (August 1992). Once the Trial Judge made the
aforementioned ruling, (playing "Noah Webster" with the word "alter") he affirme4 that ruling on
September 8, 1992, after the United States Government requested he reconsider his August 13,
1992 ruling. Jn Re: Contest ofRespirable Dust Sample Alteration Citations, 14 FMSHRC 1675,
1677 (September 1992). To add insult to injury, the Administrative Law Judge later placed a
burden of proof on the Government that required it to exclude all possible, potential. and
reasonable nonintentional causes of AWCs.
I now stop the reel and frame the still picture of what the United States Government faced
as these cases proceeded to trial.
·

1 885

First the trial judge insisted that two trials take place. The first trial he calJed the
common-issues trial. The second trial he called the mine-specific trial. In the first trial, the
Government knew that the judge would force them to prove that the AWCs on the cited filters
were caused by the operators' intentional and deliberate misconduct and that the judge would (as
he did) carry over to the second trial his rulings in the first trial on the evidence and the law.
However, what the Government could not have anticipated was that the judge was going
to force the Government -- if you can believe this -- to exclude all potential. possible. and
reasonable nonintentional causes of AWCs appearances. Even in criminal cases, where the burden
of proof is beyond a reasonable doubt, the case law is well settled that the prosecution does not
have to exclude every other reasonable hypothesis to convict the charged party of violating the
cited law. Likewise, in a civil case, the party carrying the burden of proof does not have to
exclude every other potential, possible, and reasonable cause of the acts charged. However, as
the first case went to trial, and as the second case proceeded, that is exactly what this trial judge
forced the Government to do. As I will expand on in depth in section V.A. supra, the judge ·
again and again and again and again stated that there were too many other possible explanations
for the appearance of the AWCs and, consequently, the Government failed to prove that the
ONLY reason for the appearance of the AWC was the intentional and deliberate operator
misconduct.
Not only did the trial judge place a burden of proof on the Government that was
impossible to shoulder, but, as both of his opinions indicate, he rejected the testimony of each and
every expert witness that the Government put forth and turned a blind eye towards the mountain
of extraordinary statistical evidence presented by the Government.
Under these circumstances, could there be any doubt that the judge would hold, as he did,
in favor of the defendants in both of these cases.
II. The Judge Erred in Failing to Give Weight to the Secretary's Interpretation of Section 209(b)

A. Legislative Background of Section 209(b)
The defendants in these cases were cited for violating section 209(b), which provides:
The operator shall not open or tamper with the seal of any filter cassette or
alter the weight of any filter cassette before or after it is used to fulfill the
requirements of this part.
Section 209(b) (emphasis added). Section 209(b) is an important part of a regulatory scheme
designed to protect miners from silicosis. Silicosis has been recognized for a long time as a
disease associated with coal miners. The inhalation of silica-bearing dust has been causally linked
to the disease. See Coal Mine Health and Safety: Hearings Before the Subcommittee on Labor of

1886

the Committee on Labor and Public Welfare, United States Senate, 9lst Cong., 1st Sess., 764
(1969); Coal Mine Health and Safety: Hearings Before the Committee on Education and Labor,
House ofRepresentative, 91st Cong., lst Sess., 119, 309, 310, 337 (1969). Recognizing this
hazard, section 102(a)(l) of the Senate bill which became the 1969 Coal Act, and which was
carried over into the Mine Act of 1977, required that the respirable dust standard be reduced
when coal dust contains more than 5 percent quartz and that the applicable dust standard "be
determined in accordance with a formula prescribed by the Surgeon General. " 2 The Senate
Committee report stated, "Since high quartz content in coal dust ... presents a greater health
hazard, the Surgeon General is directed to prescribe the formula to be used in arriving at a dust
standard for dust containing more than 5 percent quartz which offers comparable protection to
the statutory standards for dust containing 5 percent or less quartz." S. Rep. No. 410, 9lst
Cong., 1st Sess. 46 (1969) reprinted in Senate Subcommittee on Labor, Committee on Labor and
Public Welfare, 94th Cong., 1st. Sess., Part I Legislative History of the Federal Coal Mine Health
and Safety Act of 1969, at l 72 ( 197 5). It was in complying with this requirement of section 205
of the 1969 Coal Act, that the Secretary of Health, Education, and Welfare prescribed, and the
Secretary of the Interior adopted, the formula set forth in 30 C.F.R. § 70.101. The formula was
developed by the National Institute for Occupational Safety and Health and was based upon
Public Health Service studies evaluating the effects of free silica on respiratory health. See 36
Fed. Reg. 4981(March16, 1971); U.S. Steel Mining Co. Inc., 5 FMSHRC 46, 50-51 (January
l 983)(ALJ).
.
Silicosis is a pulmonary disease caused by silica-bearing (quartz) dust retained by the lungs
following respiration. 3 The retained dust causes a scarring process, known as fibrosis. If the
fibrosis occurs in the most distal portions of the lungs, the alveoli, nodes of scar tissue develop
which compromise the air exchange capacity of the lungs. Damage caused by the scarring is
irreversible and there is no known treatment for the disease! Silicosis can develop into a
life-threatening respiratory condition known as progressive massive fibrosis. (Such a condition
can develop also as the result of coal workers' pneumoconiosis.) Progressive massive fibrosis can
develop long after an individual's exposure to quartz-bearing dust has ceased. The more silica
dust an individual is exposed to, the greater the probability of developing silicosis. Based upon
the data presently available, however, it is impossible to quantify the physiological effect of
infrequent, low-level exposures to silica-bearing dust. However, it is known that there is, in any
event, a cumulative dose-response effect from repeated exposures. An increased frequency of

2

A companion bill introduced in the House of Representatives contained the same
provision but required the Secretary of Health, Education, and Welfare to prescribe the formula.
The House provision was adopted at Conference and carried over, without substantive change, to
the 1977 Mine Act as section 205. Section 205 of the 1977 Mine Act was subsequently amended
to transfer this function to the Secretary of Health and Human Services.
3

Quartz is a form of silica described as 11 A crystallized silicon dioxide. 11 Bureau of
Mines, U.S. Department of the Interior, Dictionary of Mining, Mineral, and Related Terms 884
(1968).

188 7

exposure and/or an increased concentration of dust increases the risk of developing silicosis. U.S.

Mining Co., Inc., 8 FMSHRC 1274 (September 1986).
When Congress delegated to the Secretary of Health, Education, and Welfare the authority to
prescribe the applicable limit of respirable dust when the quartz content exceeds 5 percent, it
intended that exposure level to be the maximum level allowed to achieve its stated goal of
preventing disabling respiratory disease. Section 201(b), 30 U.S .C. § 84I(b). Further, as stated
by the Commission in Consolidation Coal Co., 8 FMSHRC 890 (June 1986), "Congress clearly
intended the full use of the panoply of the Act's enforcement mechanisms to effectuate this
Congressional goal .. . . 11 Consolidation Coal Co., 8 FMSHRC at 897. Section 209(b) plays a
critical role in effectuating this Congressional goal by seeking to ensure that dust samples
accurately reflect the respirable dust levels in the mines in order to protect miners from silicosis to
the maximum extent possible under the law.
B. The Secretary's interpretation of section 209(b)
Against this background of Congress' clear intent to prevent respirable diseases induced by
silica-bearing dust, it is critical that section 209(b) be interpreted to protect miners from silicosis
to the maximum extent possible under the law. According to the Secretary's interpretation of this
provision, an operator violates section 209(b) when the weight of a cited filter is altered while the
filter is in the operator's control. See Secretary of Labor's Motion for Reconsideration and for
Clarification ("Motion for Reconsideration") at 2-3; see also Secretary ofLabor's Statement in
Opposition to Contestants' Motion for ConsoHdation and Trial at 2-4; Secretary of Labor's
Statement of the Issues and Trial Proposal at 2-5; see generally In Re: Contest ofRespirable
Dust Sample Alteration Citations, 14 FMSHRC 1510, 1513 (August 1992); In Re: Contest of
Respirable Dust Sample Alteration Citations, 14 FMSHRC 1675 (September 1992). The
Senate's committee report on the Mine Act of 1977 states that because the Secretary "is charged
with responsibility for implementing this Act, it is the intention of the Committee, consistent with
generally accepted precedent, that the Secretary's interpretations of the law and regulations shall
be given weight by both the Commission and the courts." S. Rep.No. 181, 95th Cong., 1st Sess.
49 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act of 1977, at 637
(1978) (emphasis added). It is, of course, well-settled that an agency's interpretation of its own
regulation is "of controlling weight unless it is plainly erroneous or inconsistent -yvith the
regulation. 11 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Indeed, where the
Secretary presents a plausible reading of his own regulation, an appellate body must give weight
to the Secretary's interpretation. The Secretary is emphatically due this respect when he
interprets his own regulations. United States v. Larionoff, 431 U.S. 864, 872-73 (1977) (if an
agency's interpretation is not plainly inconsistent with the wording of the regulation, it is due
weight even though the regulation may contain "a number of ambiguities"); Udall v. Tallman, 380
U.S. 1, 4 (1965) ( 11 The Secretary's interpretation may not be the only one permitted by the
language of the orders, but it is quite clearly a reasonable interpretation; courts must therefore
respect it."); Federal Labor Relations Authority v. United States Department of Treasury, 884

1888

F.2d 1446, 1454 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990); Hispanic Information &
Telecommunications Network, Inc. v. FCC, 865 F.2d 1289, 1296 (D.C. Cir. 1989) ("An agencis
interpretation of its own regulations will be accepted unless it is plainly wrong."). When faced
with a problem of regulatory construction, the Conunission gives great weight to the Secretary' s
reasonable interpretation.
Prior to the judge's decision interpreting section 209(b), the Secretary asserted that
section 209(b) is clear on its face. Motion for Reconsideration at 3. Alternatively, the Secretary
asserted that in the event the language of section 209(b) is ambiguous his interpretation is
reasonable and, thus, entitled to deference. Id. at 3-5. According to the Secretary, the tenns
" open", "tamper", and "alter" should be read in the "context in which they appear, rather than
interchangeably." Id. at 2. According to the Secretary, the tenn "alter" means change.
Consequently, a violation of section 209(b) "occurs whenever there is a change, or alteration, of
the weight of the dust filter. The fact of the violation in no way hinges on operator intent." Id. at
2-3 (emphasis added). The Secretary contended that questions of intentional or deliberate
conduct are relevant only in the penalty assessment phase and are not relevant to the question of
whether the standard has been violated. Secretary of Labor's Statement in Opposition to
Contestants' Motion for Consolidation and Trial at 4.
The tenns "alter" and "tamper" can not be read as synonyms. Elementary principles of
regulatory construction dictate that one part of a regulation should not be construed as to make
another part superfluous or redundant and, thus, "emasculate" that part. See United States v.
Menasche, 348 U.S. 528, 538-39 (1955); Nat'/ Wildlife Federation v. Sec. ofInterior, 839 F.2d
694, 752 (D.C. Cir. 1988); Motor & Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, 1108 (D.C.
Cir. 1979), cert. denied, 446 U.S . 952 (1980). The Secretary interprets "tamper" to connote
intentional or deliberate conduct and "alter" to connote mere change, unoccasioned by intentional
or deliberate conduct. Motion for Reconsideration at 2-3.
To sustain the Secretary's interpretation of section 209(b), and of the tenns "alter" and
"tamper," the Commission need not find that the Secretary' s construction is the only reasonable
one, or even that it is the interpretation it would have reached. Unemployment Comp. Comm'n v.
Aragon, 329 U.S. 143, 153 (1946). See also, e.g., Gray v. Powell, 314 U.S. 402, 412 (1941);
Universal Battery Co. v. United States, 281 U.S. 580, 583 (1929). Rather, to have his
interpretation sustained, the Secretary need only present a plausible, reasonable inte.rpretation that
is not plainly inconsistent with the wording of section 209(b). The Secretary's interpretation is
reasonable and consistent with the language of section 209(b). Consequently, because this
Commission accords weight to such interpretations 'of the Mine Act and the regulations
promulgated under it, the Secretary's interpretation of section 209(b) must be sustained!

18 89

C. Judge Broderick's orders and decisions regarding the interpretation of section 209(b)
Judge Broderick4 rejected the Secretary's reasonable interpretation of section 209(b)
twice. In Re: Contest of Respirable Dust Sample Alteration Citations, 14 FMSH.RC 1510
(August 1992); In Re: Contest ofRespirable Dust Sample Alteration Citations, 14 FMSHRC
1675 (September 1992). The judge, interpreting "alter" and "tamper" as synonymous tenns,
emasculated the term "alter" and, thus, violated a basic tenet of statutory construction. In doing
this, judge Broderick erred. This error infected every aspect of the trial and the decisions that
followed.
In framing the issue for the common issues trials, Judge Broderick rejected the Secretary's
interpretation and stated the following:
The basic common issue for the trial of which these cases are consolidated
and which will be resolved in the trial is: Whether an abnormal white center
(AWC) on a cited filter cassette establishes that the operator intentionally altered
the weight of the filter?
14 FMSHRC 1510, 1517 (August 1992). In ruling on the Secretary's motion for clarification,
Judge Broderick again' rejected the Secretary's interpretation and stated the following:
The issue is whether an AWC on a cited filter cassette establishes that the
operator intentionally altered the weight of the filter.
14 FMSHRC 1675, 1677 (September 1992) (emphasis added).
At the outset of his decision on common issues, Judge Broderick set forth the following
issues:
1. What is an AWC?
2. Does an AWC on a cited filter establish that the mine operator intentionally
altered the weight of the filter?
The Secretary has the bµrden of proof on these issues. The burden
requires that the Secretary show by a preponderance of evidence that (1) the term
"AWC" has a coherent meaning and was consistently applied; (2) the cited AWCs
can only have resulted from intentional acts; (3) the AWCs resulted in weight
losses in the cited filters.
15 FMSHRC 1456, 1463-64 (July 1993) (footnote omitted) (emphasis added). In determining
4

Judge Broderick retired upon the issuance of his decisions in the dust cases.

1890

whether the Secretary's witness, Mr. Thaxton' s classification of citeable filters -- those exhibiting
Abnormal White Centers ("AWCs") -- was coherent and consistent, Judge Broderick noted the
following:
The basic issue to be determined in the common issues trial is whether an
A WC on a cited filter establishes per se that the mine operator intentionally altered
the weight of the filter.

Id at 1464 (emphasis added). In setting forth his conclusions oflaw, Judge Broderick concluded
that the Secretary failed to prove that an "AWC on a cited filter establishes that the mine operator
intentionally altered the weight of the filter." Id at 1521 (emphasis added). Judge Broderick
also concluded that the Secretary failed to prove that "deliberate conduct on the part of the cited
mine operators is the only reasonable explanation for the cited AWCs." Id. (emphasis added).
Judge Broderick concluded that:
the record shows too many other potential causes for the dust dislodgement patterns on
the cited AWCs for me to accept the Secretary's circumstantial evidence as sufficient to
carry his burden of proof that the mine operators intentionally altered the weight on the
cited filters.

Id. at 1522 (emphasis added).
In forecasting the issue for the mine-specific trial, Judge Broderick stated the issue would
be as follows:
[W]hether the weight of the filters cited as AWCs from the Urling No. 1 Mine
was intentionally altered by the mine operator, considering the findings made as a
result of the common issues trial, and the evidence which may be introduced concerning
the dust sampling and handling practices at the mine.

Id. (emphasis added). In the mine-specific decision, Judge Broderick further stated that, "[o]n the
basis ofall the evidence introduced in the common issues trial[,]" the Secretary had failed to
prove in the common-issues trial that an AWC on a cited filter " establishes" that the cited
operator "intentionally altered the weight of the filter[.]" Keystone Coal Mining Corporation, 16
FMSHRC 857, 861 (April 1994) (emphasis added). Judge Broderick further stated that the
Secretary had failed to prove in the common-issues trial that "deliberate conduct on the part of
the cited mine operators is the only reasonable explanation for the cited A WCs." Id. In
discussing his ultimate findings and conclusions oflaw, Judge Broderick held that the same
evidentiary burden that was applicable in the common issues trial was applicable in the Keystone
mine-specific case: the Secretary must prove "that the 75 cited Urling filters resulted from
intentional tampering." Id. at 895 (emphasis added).

1891

Quite clearly, the judge rejected the Secretary's reasonable interpretation of section 209(b)
and substituted his own interpretation, which he subsequently applied through the two trials and
in his decisions.
D. Fundamental Error

In the interest ofjustice and upon consideration of public policy, I conclude that the judge
committed fundamental error in rejecting the Secretary's reasonable interpretation of section
209(b). The judge erred in his most important detennination in this case: ruling on the
Secretary's interpretation of section 209(b). The majority's failure to consider the judge' s
rejection of the Secretary' s reasonable interpretation of section 209(b) as fundamental error has
resulted in an unjust resolution of these proceedings.
As noted above in section II.A., in enacting the Coal Act of 1969 and the Mine Act of
1977, Congress clearly intended to prevent respirable diseases induced by silica-bearing dust.
Consequently, it was critical that the Secretary's reasonable interpretation of section 209(b) be
sustained in order ~o protect miners from silicosis to the maximum extent possible under the law.
Although the Secretary did not appeal the judge's rejection of his reasonable interpretation of
section 209(b) to the Commission, in the interest ofjustice and based on considerations of public
policy, the judge's interpretation of section 209(b) must be reviewed and ultimately set aside and
the Secretary's interpretation sustained in order to effectuate the purposes of the Coal Act of
1969, as amended by the Mine Act of 1977.
There is "no rigid and undeviating judicially declared practice under which courts of
review invariably and under all circumstances decline to consider all questions which have not
previously been specifically urged." Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir. 1961)
("Nuelsen"), see also McDougall v. Dunn, 468 F.2d 468, 476 (4th Cir. 1972) ("McDougalf').
And for good reason! Indeed, both the Federal Rules of Appellate Procedure and the
Commission's own procedural rules require the "just" detennination of all cases. 28 U.S.C.A. §
2106 and 29 C.F.R. 2700.1( c) (emphasis added). Specifically, the Nue/sen court stated that there
could not be an inflexible practice whereby appellate bodies decline to consider any and all
questions which had not been specifically raised to the appellate body without doing violence to
the statutes which gave them appellate power to modify, reverse or remand decisions "as may be
just under the circumstances." Nuelsen, 293 F.2d at 462, quoting 28 U.S.C.A. § 2106. In
McDougall the court stated the following:
Appellate Courts are not ... powerless te correct errors in the trial, even if not
raised by appeal, ''where injustice might otherwise result * * *. Rules of practice
are devised to promote justice, not to defeat them. . . . Orderly rules of procedure
do not require sacrifice of the rules of fundamental justice." Washington Gas
Light Co. v. Virginia Electric & Pow. Co. (4th Cir. 1971) 438 F.2d 248, 250-251,
quoting from Hormel v. Helvering (1941) 312 U.S. 552 . . . . See also Dudley v.
Inland Mutual Insurance Co. (4th Cir. 1962) 299 F.2d 637, 641-642. Indeed,

1892

"Exceptional case or particular circumstances may prompt a reviewing court,
where injustice might otherwise result or where public policy requires, to consider
questions neither pressed nor passed upon below." Nuelson . . . at 462 ~.

Washington Gas Light Co. v. Virginia Electric & Pow. Co., supra.
McDougall v. Dunn, 468 F.2d at 476. The Federal Rules of Appellate Procedure have been
incorporated by the Commission's regulations for the purpose of guiding the Commission on
matters of procedure. 30 C.F.R. 2700. l(b). Moreover, just as the Federal Rules of Appellate
Procedure give Federal appellate courts the power to take such actions "as may be just under the
circumstances[,]" 28 U.S.C.A. § 2106, the Commission's own regulations instruct the
Commission to construe its rules to "secure the just ... determination of all proceedings[.]" 30
C.F.R. 2700. l(c) (emphasis added).
Reading 30 C.F.R. 2700. l(b) & (c) and 28 U.S.C.A. § 2106 together, I conclude that the
Commission is empowered, indeed obligated, to review the judge's rejection of the Secretary's
reasonable interpretation of section 209(b). In agreement with the rationale of the Ninth Circuit
Court of Appeals in Nuelsen and the Fourth Circuit Court of Appeals in McDougall, I conclude
that in light of30 C.F.R. 2700.l(c) our procedural rules can not be read to prevent review of this
issue without doing violence to the mandate of our rules to "secure the just ... determination of
all proceedings[.]" 30 C.F.R. 2700. l(c). Failure to address this issue has resulted in an unjust
decision being rendered by the majority. This is contrary to the dictates of30 C.F.R. 2700. l(b) &
(c) and 28 U.S.C.A. § 2106. The judge's rejection of the Secretary's reasonable interpretation of
section 209(b) presents exceptional circumstances and, as such, the Commission is required to
consider this issue. Indeed, if there was ever a case that fit the bill of an "[e]xceptional case ...
where injustice might otherwise result" the "dust cases" are such cases. Nuelsen, 293 F.2d at
462.
Moreover, "public policy requires" that this issue be reviewed. See Nuelsen, 293 F.2d at
462. Public policy demands that the Coal Act of 1969, as amended by the Mine Act of 1977, be
read so as to protect miners to the maximum extent permitted by law. As set forth above at II.B.,
the Secretary's interpretation serves to best protect miners from silicosis, the disabling condition
discussed supra at II.A. The judge's interpretation, discussed supra at II.C., diminishes the ability
of the Government to protect miners from silicosis. Consequently, because the judge's
interpretation of section 209(b) does not serve to best protect miners from silicosis and the
Secretary's interpretation does serve to best protect miners from silicosis, public policy requires
that the judge's interpretation to be set aside and the Secretary's interpretation be given weight.
Thus, both public policy and the interest of justice require that the Commission not only
review this issue, they also require that the judge's rejection of the Secretary's reasonable
interpretation of section 209(b) be overturned and the Secretary's reasonable interpretation of
section 209(b) be given full force and affect. Again, rules of practice are devised to promote
justice, not to defeat them. . . . Orderly rules of procedure do not require sacrifice of the rules of
fundamental justice." Washington Gas Light Co. v. Virginia Electric & Pow. Co. (4th Cir. 1971).

1893

.:

E. The Secretary prevails in these cases under his interpretation of section 209(b)
According to the Secretary's reasonable interpretation of section 209(b), an operator
violates section 209(b) when the weight of a submitted filter is reduced or changed while the filter
is in the operator's control. See In re Respirable Dust Sample Alteration Citations, 14 FMSHRC
1510, 1511. As stated by the trial judge:
each of the citations contested herein charges the mine operator with violating the
provisions of Section 209(b) of Part 70, Part 71, or Part 90. All the citations
allege a violation of the cited standard in virtually identical language:
The weight of the respirable dust cassette no. _ __
coliected on [date] from a sampling entity at this mine has been
altered while the cassette was being submitte<l to fulfill sampling
requirements of Title 30 C.F.R. Parts 70, 71 or 90.

Id at 1512 (emphasis added).
Consequently, to prevail in these cases under the Secretary's interpretation of section
209(b), it was incumbent upon the Secretary to establish that there was a change in, or alteration
of, the weight of the cited dust filter while the filter was in an operator's control.
That the occurrence of an AWC is accompanied by a change in the weight on a given filter
is axiomatic. The judge found that AWC dust dislodgment patterns result in a weight change. Id.
at 1517.
The only question that remains is who had control of the filter when it developed the
AWC appearance and its accompanying change in weight.
The Secretary's witnesses, Dr. Marple and Dr. Rubow, concluded that "[t]he operation of
the desiccator at [Pittsburgh Health Technology Center] is not a source of dust dislodgment
patterns [and] [t]he shipment of compliance samples by airplane is not a probable cause of dust
dislodgment patterns on filters. " 15 FMSHRC at 1481. In Dr. Miller's opinion, another witness
for the Secretary, the results of his tests excluded mailing as a cause of the cited AWCs and also
ruled out handling in the Pittsburgh Health Technology Center ("PHTC") as the cause of AWCs.
Id at 1485.
The trial judge stated the following in his findings of fact:
D. The dust dislodgment patterns on the cited filters classified under tamper
codes 1, 2, 3, and 7 cannot have resulted from:
1. a rapid decrease in air pressure such as might occur when the cassettes

1894

were transferred by airplane, or the handling of the cassettes by the Post Office.
The results of Dr. Marple's rapid decrease in air pressure experiment and the
experience of Dr. Grayson who received a number of dust laden filters by air and
postal delivery establish that air transport and Post Office handling do not cause
AWC patterns on filters.

2. desiccation of the filter capsules in the PHTC weighing laboratory.
Dr. Lee's desiccator tests which produced what he termed AWCs are of limited
evidentiary value because of the differences in the desiccator used by MSHA and
that used by Lee. Moreover, most of the photographs of the filters which
underwent the test do not show dust dislodgment patterns similar to cited
AWCs. Dr. Marple's experiment using the MSHA desiccator establishes that
proper operation of the desiccator (and there is no evidence that it was not
used properly by MSHA) does not cause dust particle dislodgment.
3. handling of the cassettes and capsules in the PHTC. Dr. Lee was of the
opinion based on his observation of the handling practices in the PHTC and on the
results of his stack and chuck tests and rapid disassembly tests that 5 to 15 percent
of the cited AWCs resulted from PHTC handling and 30 to 50 percent were
contributed to by PHTC handling. He did not provide the rationale for these
percentage estimates. The photographs of the filters after the stack and chuck and
rapid disassembly tests for the most part do not resemble the cited filters. Based
upon my consideration of G-170 showing the operation of the PHTC and of the
various tests and experiments which produced AWC-like dust dislodgment
patterns, I conclude that the PHTC handling, including the stack and chuck
procedures and the rapid disassembly procedures, did not cause the cited
AWCs.
Id. at 1514-1515 (emphasis added). Thus, it is a fortiori that the cited filters were in the control
of the respondents when the filters developed the AWC appearance and their accompanying
change in weight.

In fact, the main thrust of the defendants' arguments in these cases has been that AWCs
are caused by nonintentional conduct, such as rough handling by employees. See, e.g. id. at 148993, 1495-96 (discussion ofDr. Lee's opinions on nonintentional causes of AWCs and factors that
made certain filters more susceptible to the nonintentional formation of AWCs); 1497-99
(discussion of Dr. Grayson's opinions on nonintentional causes of AWCs and factors that made
certain filters more susceptible to the nonintentional formation of AWCs); 1499-1507 (discussion
of Dr. McFarland's opinions on nonintentional causes of AWCs and factors that made certain
filters more susceptible to the nonintentional formation of AWCs); 16 FMSHRC at 861-868
(discussion of the testimony regarding the rough handling of sampling equipment by

1895

Environmental Safety Department ("ESD") 5 personnel and Urling miners); Brief of Keystone Coal
Mining Corporation at 22-32 (arguments concerning nonintentional causes of AWCs at Urling).
Thus. out of their own mouths. the defendants have proven the Secretary's case!
Moreover, even the judge concluded that, in addition to intentional causes, AWCS can
have resulted from:
1. impacts to the cassette from dropping or striking it;
2. impacts to the hose from stepping on it, dropping an object on it, striking it
against a wall while the hose was wrapped around the sampling assembly, closing a
door or drawer on it, or sitting on it;
3. snapping together the two halves of the filter cassette.
15 FMSHRC at 1513. In this connection, the judge further found that "[a]lthough the expert
witnesses for the Secretary and the mine operators differ as to the likelihood that a dust
dislodgment pattern similar to the cited AWCs would result from incidents described in numbers 1
and 2 above, the expl'.riments all show that at least sometimes they do occur." Id. Further, in the
mine specific case, the.judge found that:
the dust dislodgment patterns on the cited filters could have resulted wholly or
partly from the handling of the sampling assemblies by the miners being sampled.
Specifically, they could have resulted from pumps falling to the mine floor from the
remote box or from miners' belts, from pumps being detached from the hoses and
falling to the floor, from hoses being snagged on objects in the mine, from hoses
being pinched on the mantrip, from hoses being impacted by other pumps on the
lampman's counter or the mechanic's box, or from hoses being wrapped around
pumps.
16 FMSHRC at 868 (emphasis added). And again, the judge found that:
the dust dislodgment patterns on the cited Urling filters could have resulted wholly
or partly from the handling of the sampling assemblies by the ESD personnel
described in this section. Specifically, they could have resulted from the canying
of multiple pumps by their hoses, dropping carrying boxes with pumps to the floor
of a vehicle or onto a table, stepping on hoses, placing pumps on hoses, catching
hoses in car doors or the office door, dropping pumps and sampling assemblies on
the ground or on the floor, dropping dust laden cassettes on the floor, or otherwise
5

The Environmental Safety Department ("ESD") is where Rochester and Pittsburgh
conducts its respirable dust sampling program for the Urling Mine, as well as all other Rochester
and Pittsburgh mines.

1896

impacting the hose as previously described.
Id. at 864 (emphasis added).

Based on the record evidence, the defendants' own experts, witnesses, and briefs, as well
as the judge's findings, the record supports only one conclusion: that the cited filters developed
their AWC appearances and accompanying weight change while in the defendant-operators
possession. Or, in other words, the defendant-operators' altered the cited filters in violation of
section 209(b). I would therefore reverse the judge' s decisions.
V. Other Errors Made By The Judge

Although I conclude that the above fundamental error committed by the judge is more
than sufficient to reverse his decisions, I nevertheless wish to comment on a number of other
reversible errors made by the judge which would provide separate, independent grounds for
overturning his decisions.
A. Burden of Proof

The judge erred in his application of the burden of proof in the common-issues case. That
error infected both his common-issues decision and his decision in the mine-specific case.
In the common-issues case not only did the judge erroneously reject the Secretary's
interpretation of section 209(b), he also applied a burden of proof standard that was impossible
for the Secretary to meet under the judge's interpretation requiring the Secretary to prove AWCs
were the result of intentional conduct. While using the term preponderance of the evidence, the
judge's formulation of that standard bears little, if any, resemblance to that standard as it is
understood at common law. At common law, preponderance of the evidence means that amount
of credible evidence which is most persuasive on a particular point. 11 Herman & Maclean v.
Huddleston, 459 U.S. 375, 390 (1983). The preponderance of the evidence standard has also
been defined at common law as '.'[t]he greater weight of evidence, evidence which is more
convincing than the evidence which is proffered in opposition to it. 11 St. Paul Fire & Marine
Insurance Company v. U.S., 6 F.3d 763, 769 (Fed. Cir. 1993), reh. denied. In general,
preponderance of the evidence is such evidence as, when weighed against that opposed to it, has
the more convincing force that something is more likely so than not so. Merzon v: County of
Suffolk, 767 F. Supp. 432, 444 - 445 (E.D. N.Y. 1991); see Standard Civil Jury Instruction for
the District of Columbia§ 2-8 (revised ed. 1985); see also, Bazemore v. Friday 478 U.S. 385,
400 (1986); Smith v. U.S., 726 F.2d 428, 430 (8th Cir. 1984); Nissho-Iwai Co., Ltd v. MIT Stolt
Lion, 719 F.2d 34, 38 (2nd Cir. 1983); and Hopkins v. Price Waterhouse, 737 F. Supp. 1202,
1204 n. 3 (D. D.C. 1990).
11

11

11

The preponderance standard is satisfied when the party bearing the burden has shown that
"the existence of a fact is more probable than its non-existence. . . ." Concrete Pipe and Products

189 7

....

of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S.
_ at ~ 113 S. Ct. 2264, 2279 (1993) (citations omitted). Thus, ifthe evidence presented by
the Government establishes that intentional tampering is more likely than not the cause of the
AWC appearances, the Secretary has sustained his burden of proof. See Hopkins v. Price
Waterhouse, 737 F. Supp. 1202, 1204 n.3 (D. D.C. 1990).
The judge in his decision on common issues applied the following standard of proof:
The Secretary has the burden of proof on these issues. The burden requires
that the Secretary show by a preponderance of evidence that . . . the cited AWCs can
only have resulted from intentional acts[.]
15 FMSHRC at 1463-64 (emphasis added). This is a burden of proof that the Secretary could not
have satisfied. By using the term "only" the judge, in essence, required the Secretary to eliminate
all other possible causes of, and reasonable explanations for, AWCs in order to prevail. This
point is highlighted by the judge's own conclusions oflaw. Specifically, Judge Broderick
concluded that:
The Secretary has failed to carry his burden of proving by a preponderance of
the evidence that deliberate conduct on the part of the cited mine operators is the only
reasonable explanation for the cited AWCs.

Id. at 1521 (emphasis added). Over and over again the judge required the Secretary to prove that
the cited AWCs can only have resulted from intentional acts and deliberate conduct. Specifically,
the judge required the Secretary to prove AWCs could only have resulted from intentional acts as
follows:
The Secretary has the burden of proof on these issues.
The burden requires that the Secretary show by a preponderance of evidence that
(1) the term "AWC" has a coherent meaning and was consistently applied; (2) the
cited AWCs can only have resulted from intentional acts; (3) the AWCs resulted in
weight loses in the cited filters.
15 FMSHRC at 1463-64.
No matter how many times he intoned the phrase "preponderance of the evidence," the
simple fact remains that the judge required the Government to prove that the only cause of the
AWCs was intent ional conduct, to the exclusion of all other causes!
Under the correct burden of proof the Secretary need not eliminate all other possible,
potential, or even reasonable causes of AWC in order to satisfy the preponderance of the evidence
standard. As long as the weight of credible evidence shows that other possible or reasonable

1 89 8

explanations are less likely to be the cause of the AWCs than intentional tampering, the Secretary
must prevail. Even in criminal proceedings the Government is not required to exclude every other
reasonable hypothesis so long as the evidence as a whole supports the allegation.of misconduct
"beyond a reasonable doubt." See U.S. v. Rivera Rodriquez, 808 F. 2d 886, 890 (1st Cir. 1986).
In essence, the judge held the Secretary to an even higher burden of proof than the criminal
standard, "beyond a reasonable doubt," by requiring him to eliminate all other possible, potential,
and even reasonable causes of A WC in order to prevail. This fact is revealed through the judge' s
analysis leading up to his conclusion that the Secretary failed to prove that deliberate tampering
was "the only reasonable explanation for the cited AWCs." 15 FMSHRC at 1521 (emphasis
added). Specifically, Judge Broderick concluded that:
the record shows too many other potential causes for the dust dislodgement patterns on
the cited A WCs for me to accept the Secretary's circumstantial evidence as sufficient to
carry his burden of proof that the mine operators intentionally altered the weight on the
cited filters.

Id at 1522 (emphasis added).6 Over and over again the judge stated that AWCs could possibly
have resulted from unintentional conduct. Specifically, the judge stated:
... Findings ofFact II.C.1, 2, and 3 indicate that the appearances of the
filters cited under tamper codes I, 2, 3, and 7 can have resulted from
many different incidents or accidents unrelated to intentional tampering.
15 FMSHRC at 1521 (emphasis added). Again the judge stated:
C. The dust dislodgment patterns on the cited filters classified under
tamper codes 1, 2, 3, and 7 can have resulted from:
1.

impacts to the cassette from dropping or striking it;

2.
impacts to the hose from stepping on it, dropping an object on it,
striking it against a wall while the hose was wrapped around the sampling assembly,

6

The judge appears to minimize the potency of circumstantial evidence in this passage.
The Commission has often relied on such evidence, particularly where intentional conduct is an
essential element of the case. Northwestern Resow:ces Co., 8 FMSHRC 883, 886 (June 1986);
Lizza Industries, Inc. , 6 FMSHRC 8, 15 (January 1986)~ Phelps Dodge Corp. , 3 FMSHRC 2508,
2510 (November 1981) rev 'd on other grounds, 709 F.2d 86 (D.C. cir. 1983). Moreover, direct
evidence of intentional or deliberate conduct is rarely encountered. Phelps Dodge Corp., 3
FMSHRC at 2510. It is entirely appropriate for a judge to draw reasonable inferences of
intentional or deliberate conduct from circumstantial evidence. Id Adding to the judge' s
inappropriate belittling of circumstantial evidence, in this case there were two eyewitnesses to
intentional tampering in the mine-specific trial. 16 FMSHRC at 891 and 892.

1899

.·:

closing a door or drawer on it, or sitting on it;
3.

snapping together the two halves of the filter cassette.

15 FMSHRC at 1513 (emphasis added). Again, the judge stated:
Dust dislodgment patterns on the cited filters classified under tamper code
5 can have resulted from someone inserting a cotton swab into the cassette
inlet and rubbing or twisting it on the filter.
1.

Dust dislodgment patterns on the cited filters classified under tamper
code 5 can have resulted from someone inserting a cotton swab into the cassette inlet
and rubbing or twisting it on the filter.

2.

Dust dislodgment patterns on the cited filters classified under tamper code 5 can have
resulted from dropping the filter cassettes.

The dust dislodgment patterns on the cited filters classified under
D.
tamper code 9 can have resulted from someone intentionally inserting
something in the cassette inlet.
15 FMSHRC at 1518 (emphasis added). Yet again, the judge stated:
Findings of Fact II.C.1, 2, and 3 indicate that the appearances of the filters
cited under tamper codes 1, 2, 3, and 7 can have resulted from many
different incidents or accidents unrelated to intentional tampering.
15 FMSHRC at 1521 (emphasis added). And again, the judge stated:

In summary, the record shows too many other potential causes for the
dust dislodgment patterns on the cited A WCs for me to accept the
Secretary's circumstantial evidence as sufficient to carry his burden of
proof that the mine operators intentionally altered the weight on the cited
filters.
15 FMSHRC at 1522 (emphasis added). Also, the judge stated that all of the following could
have contributed to AWCs:
F.

Sampling assembly variables

***
3.

A filter cassette with a smaller filter-to-foil distances is more prone to

1900

an AWC dust dislodgment pattern than one with a larger filter-to-foil
distance.
4.

A floppy filter is more prone to an AWC dust dislodgment pattern
than a more taut filter.

***
6.

The firmness or softness of the sampling assembly hose may be
related to the formation of an AWC.

15 FMSHRC at 1515 and 1516. Yet again, the judge stated:
. . . filters with a shorter filter-to-foil distance or which are floppy are more
susceptible to reverse air AWC formation.
15 FMSHRC at 1520.
By requiring the S~cretary to prove that the cited AWCs can only have resulted from
intentional acts and deliberate conduct to the exclusion of any other potential cause, the judge
committed reversible error.
Contrary to the assertions of my coJleagues, the judge's decision does not support the
conclusion that his use of the term "only" was merely made in reference to the issue presented.
As set forth above, in delineating the burden of proof, the judge clearly required that the Secretary
prove that the cited AWCs can only have resulted from intentional acts. He then found that the
Secretary failed to carry that burden because there were too many other "could haves" and "can
haves." ONLY means ONLY! It does not mean more likely than not, there is a quantitative
difference!
The judge's failure to apply the correct standard of proof infected his entire evaluation of the
evidence, not only in the common-issues proceedings, but also in the mine-specific proceedings.
In the mine-specific proceedings, the judge utilized the same incorrect standard of proof that he
used in the common-issues proceeding. In discussing his ultimate findings and conclusions of law,
Judge Broderick made the following comments regarding the standard of proof:
The same evidentiary burden is applicable in the Keystone minespecific case as was applicable in the common issues trial[.]
16 FMSHRC at 895 (emphasis added). Judge Broderick explicitly "incorporated" into "any
decision following the mine-specific trial" the findings and conclusions in his corrunon-issues
decision. 15 FMSHRC at 1522~ see also 16 FMSHRC at 861. Moreover, the judge stated that
"[t]he same evidentiary burden [was] applicable in the Keystone mine specific case as was

1901

applicable in the corrunon issues trial .... " 16 FMSHRC at 895.
The judge repeatedly held in his mine-specific decision that non-intentional conduct could
have caused the AWCs. Specifically, the judge stated the following:
My decision on the common issues trial made certain findings of fact. I
found that reverse air AWCs could have resulted from intentional acts,
such as blowing or otherwise directing a pulse of air into the cassette
outlet or introducing a vacuum source into the cassette inlet. I found that
such AWCs could also have resulted from impacts to the cassette or the
sampling hose, which might have occurred accidentally during nonnal
handling of the sampling equipment at the mines, or from snapping
together the two halves of the cassette. I further found that the reverse air
AWC dislodgment patterns could not have resulted from mailing the
cassettes from the mines to the PHTC, or the desiccation of the filter
capsules or other handling of the cassettes and capsules at the PHTC. I
found that the filter-to-foil distance in the cassettes and the floppiness of
the filters were factors in the susceptibility of filters to AWC dislodgments;
and that the firmness or softness of the sampling assembly hose, and
variables in the dust on the filter may have affected the susceptibility to
AWCs. . . . With respect to filters cited under tamper codes other
than those considered the result of reverse air, I found that those classified
under tamper codes 5 and 9 could have resulted from intentional
tampering, but those classified under codes 8 and l 0 were not consistently
classified or were not shown to have been likely caused by intentional acts.
16 FMSHRC at 861 (emphasis added). And again:
I find as facts that the dust dislodgment patterns on the cited Urling
filters could have resulted wholly or partly from the handling of the
sampling assemblies by the ESD persorutel described in this section.
Specifically, they could have resulted from the carrying of multiple pumps
by their hoses; dropping carrying boxes with pumps to the floor of a
vehicle or onto a table, stepping on hoses, placing pumps on hoses,
catching hoses in car doors or the office door, dropping pumps and
sampling assemblies on the ground or on the floor, dropping dust laden
cassettes on the floor, or otherwise impac.ting the hose as previously
described.
16 FMSHRC at 864 (emphasis added). And again:
I find as facts that the dust dislodgment patterns on the cited filters could
have resulted wholly or partly from the handling of the sampling

1902

assemblies by the miners being sampled. Specifically, they could have
resulted from pumps falling to the mine floor from the remote box or from
miners' belts, from pumps being detached from the hoses and falling to the
floor, from hoses being snagged on objects in the mine, from hoses being
pinched on the mantrip, from hoses being impacted by other pumps on the
lampman' s counter or the mechanic's box, or from hoses being wrapped
around pumps.
16 FMSHRC at 868 (emphasis added). And again:
During the period from August 1, 1989 to May 31, 1990, two kinds
of continuous miners were used at Urling: the Lee-Norse miners operated
from controls on the machine, and the Joy miners operated from a remote
control box (some Joy miners could be operated from a remote control
box (some Joy miners could be operated from the remote control box or
from controls on the miner). The Lee-Norse miner vibrated when cutting
coal, so that the sampling head attached to the canopy swayed back and
forth and contacted the canopy post. I find that this could have caused or
contributed to abnonnal dust patterns on Urling filters.
16 FMSHRC at 882 (emphasis added). And again:
I find as facts that there were changes in the handling practices of end
personnel beginning in the spring of 1990. Specifically, Eget, who handled
the sampling equipment in a rougher manner than the others, did not pick
up pumps and samples from April 9 to May 10, 1990. Snyder and the
other dust technicians were more careful in their handling and carrying of
pumps and hoses, and, in particular, were careful to avoid hose impacts
because of the MSHA dust sample investigation. These changes could
have been factors in the decrease in the number of cited A WCs in the
Spring of 1990.
16 FMSHRC at 884 (emphasis added). And again:
I conclude that the reverse air dust dislodgment patterns on the cited
Urging filters could have resulted from accidental impacts to the sampling
equipment, particularly the hoses, in the Urling mine during sampling or
after the samples were taken. I conclude that the dust dislodgment
patterns did not result from intentional tampering . . . . On the basis of my
findings on page 8, supra, I conclude that the reverse air dust dislodgment
patterns on the cited Urling filters could have resulted from accidental
impacts to the sampling equipment, particularly the hoses, while the
samples were being handled by R & P ' s ESD lab personnel. Also, on the

19 0 3

basis of my common issues decision, I conclude that reverse air dust
dislodgment patterns on the cited Urling filters could have resulted from
intentional tampering including blowing by mouth or otherwise directing
air into the cassette outlet or introducing a vacuum source into the cassette
inlet.
16 FMSHRC at 898 (emphasis added).
As noted above, the Government need not eliminate all other possible or potential causes of
AWCs. The judge, under his erroneous interpretation of section 209(b), was not called upon to
discover how many possible explanations there could be for A WCs but, rather, to determine if
intentional tampering was more likely than not the cause of the AWCs. The Secretary must
prevail under the judge's erroneous interpretation of section 209(b), regardless of the number of
could haves and can haves, so long as the Secretary establishes that intentional tampering is more
likely than not the cause of AWCs.
In his own words, the judge carried over his contaminated formulation of the burden of
proof from the common issues trial into the mine specific trial. This is evidenced by his continued
mantra "could have"/ "can have" in connection with possible, non-intentional causes of AWCs.
15 FMSHR.C at 1513 1 1514, 1515, 1516, 1518, and 1521; 16 FMSHR.C at 861, 864, 868, 882,
884, and 898. Consequently, neither decision can be allowed to stand inasmuch as each one
contains the exact same fatal flaw: the judge's pronouncement and application of an erroneous
burden of proof Both decisions, on this ground alone, must be set aside because this error made
it impossible for the Secretary to prove his case under the judge's erroneous interpretation of
section 209(b).
Although such a.legal error would normally result in a remand order, the facts of this case,
as discussed below, support only one conclusion: that the Secretary established that A WCs were
more likely than not the result of intentional conduct. I would therefore reverse the judge's
decisions.
B. Under the Correct Standard of Proof, the Secretary Presented Sufficient Evidence to
Satisfy the Preponderance of the Evidence Standard and the Judge's Conclusions to the Contrary
are not Supported by Substantial Evidence.

In spite of the fact that the trial-judge erroneously forced the Government to prove its case
by showing that AWCs were the result of intentional misconduct, in fact the Government did
prove by a preponderance of the evidence that AWCs were caused by intentional misconduct.
The judge's conclusion, to the contrary, is not supported by substantial evidence. Based on the
substantial evidence test, I would reverse the judge's decision in both the common-issues case and
in the mine-specific case.
The Commission is bound by the terms of the Mine Act to apply the substantial evidence

190 4

test when reviewing an administrative law judge's factual determinations. 30 U.S.C. §
823(d)(2)(A)(ii)(I); Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994). That standard
of review requires that a fact finder weigh all probative record evidence and that a reviewing body
examine the fact finder's rationale in arriving at his decision. Wyoming Fuel, 16 FMSHRC at
1627; see also, Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994), citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951). A judge must analyze and
weigh the relevant testimony, make appropriate findings, and explain the reasons for his decision.
Wyoming Fuel, 16 FMSHRC at 1627; Mid-Continent, 16 FMSHRC at 1222, citing The
Anaconda Co., 3 FMSHRC 299, 299-300 (February 1981). An appellate body reviewing a
judge's factual findings will not affirm his findings if they are unreasonable, incredible or if there is
dubious evidence to support them. See e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d
1288, 1293 (6th Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th
Cir. 1980).
As outlined below, under the correct burden ofproof -- which the judge did not apply7 -the Government presented sufficient evidence during the course of the common-issues trial and
the mine-specific trial to establish its case, even under the judge's erroneous interpretation of
section 209(b).
1. Expert Witnesses
(i). The judge erred in failing to credit Mr. Thaxton.
I find that the Government, through Mr. Thaxton, presented compelling testimony that
AWCs were not the result of normal handling conditions but, rather, were more likely than not the
result of deliberate and intentional misconduct. The judge erred in failing to credit Mr. Thaxton's
testimony on several fronts.
Interestingly enough, the ALJ accepted Mr. Thaxton as an expert in the common-issues trial
and the mine-specific trial in the fields of respirable dust sampling and in determining normal and
abnormal patterns on filters. 16 FMSHRC at 872; 15 FMSHRC at 1473 . The judge accepted
Mr. Thaxton' s opinion that the A WCs at Urling "did not result from normal sampling[.]" 16
FMSHRC at 897 (emphasis added). These two findings have led to a conclusion that Mr.
Thaxton's ultimate opinion on the causes of AWCs was persuasive. However, the judge
inexplicably made a finding contrary to Mr. Thaxton's opinion. Specifically, the judge held that
deliberate and intentional conduct was not the most likely cause of AWCs. 16 FMSHRC at 897;
15 FMSHRC at 1521. This finding was inconsistent with his above cited conclusions and can not
be sustained under the substantial evidence test. Further, the judge concluded that Mr. Thaxton's
reasons for not citing filters designated as "no calls" were tenuous and not appropriate exercises
ofMSHA's discretion. The judge's conclusions in this connection constitute an intrusion on

7

See supra pages 15-22 and accompanying notes (discussion of the judge's erroneous
formulation and application of the burden of proof).

19 0 5

MSHA's prosecutorial discretion. Contrary to the judge's conclusion, Mr. Thaxton's decision
not to cite the 400 no-call filters -- which only amounted to less than ten percent of the 5,000
cited AWCs and less than five percent of the 75 cited AWCs at Urling-- did not affect the
coherence or consistency ofMSHA's citation criteria. In fact, it is impossible to reconcile this
adverse finding by the judge with his determination that Mr. Thaxton's classification system was
coherent and consistent. See 15 FMSHRC at 1469 and 16 FMSHRC at 897. The judge's finding
that Mr. Thaxton's reasons for not citing filters designated as "no calls" was tenuous and not an
appropriate exercise of the MSHA' s discretion is inconsistent with his twice stated finding that
Mr. Thaxton' s classifications of AWCs were coherent and consistent. His findings; therefore, are
not supported by substantial evidence and can not be sustained.
(ii). The judge erred in crediting Dr. Lee's opinions over Mr. Thaxton's opinions
There is not substantial evidence to support the judge's acceptance of Dr. Lee's opinions
over Mr. Thaxton's opinions. Many of Dr. Lee's opinions were speculative and not supported by
experimental evidence. Specifically, Dr. Lee's opinion concerning the degree of force necessary
to produce dust dislodgement on the cited filters being less than that caused by deliberate blowing
in a reverse direction is without any experimental or scientific support. Consequently, the judge
erred in crediting and relying on Dr. Lee's opinion in this connection.
Moreover, Dr. Lee's system of classification is as unreliable as his ability to apply that
system during the course of the trial. Specifically, Dr. Lee was only minimally successful in
correctly classifying cited filters under his systems of classification during the trial. The evidence
reveals in this connection that under his Richard J. Lee Group type-system ("RLJG"), Dr. Lee
could replicate his classifications less than 50% of the time. In connection with his Feature Code
Classifications, he was able to replicate his classifications only 10 out of35 times. 15 FMSHRC
at 1489. In connection with his mixed mode classifications system, Dr. Lee was unable to
identify: which mode occurred first; the characteristics of a reverse air pulse on his group D; or
the characteristics of a impact on most of his group A. Moreover, Dr. Lee could not always
identify both of the events in his mixed mode classifications or say for sure that there was a mixed
mode appearance on many of the filters. In addition, Dr. Lee could not identify whether a pattern
was caused by a mixed mode event or by a single event, nor could he rule out that the pattern was
caused by reverse air flow.
Dr. Lee's opinions were riddled with inadequacies and inconsistencies. It'is
incomprehensible that the ALJ could rely on such facially flawed testimony or that the majority
could sustain the judge. The judge erred in relying on Dr. Lee's opinion and, consequently, his
findings in this connection cannot be sustained on the basis of substantial evidence.
(iii). The judge erred in relying on certain expert testimony that was withheld from
the Secretary during discovery

Neither the opinion of Dr. Com regarding accidental causes of AWCs nor the opinion of

1906

Dr. Lee regarding the affect of sprays and scrubber systems on the formation of AWCs were
stated during the discovery phase of this litigation. Although expressly asked by the Secretary
during the discovery phase of this litigation, Dr. Corn and Dr. Lee responses concerning these
matters were either not forthcoming or very cursory. At trial, on direct examination by their
counsel, Dr. Corn and Dr. Lee gave in depth testimony concerning these matters. In spite of the
Secretary's objection that he was surprised by their testimony and, consequently, prejudiced
because he could not adequately cross examine or offer rebuttal evidence, the judge allowed into
the record Dr. Com's testimony regarding accidental causes of AWCs and Dr. Lee's testimony
regarding the affect of sprays and scrubber systems on the formation of AWCs.
The discretion of an ALJ to permit the introduction of evidence which is not shared during
discovery and to exclude the introduction of evidence which is not shared during discovery is not
without limits. Defendant' s failure to meet the requirements ofRule 26 should have resulted in
the exclusion of the proffered evidence when the Government objected. See Wright & Miller
Federal Practice and Procedure Civil 2d § 2050 (1994); see also, Freund v. Fleetwood
Enterprises, Inc., 956 F .2d 354, 356-59 (1st Cir. 1992); Jenkins v. Whittaker Corp., 785 F.2d
720, 728 (9th Cir. 1986); Weiss v. Chrysler Motors Corp., 515 F.2d 449, 454-57 (2d Cir. 1975);
Allreadv. City of Grenada, 988 F .2d 1425, 1435-36 (5th Cir. 1993). Under the circumstances,
as set forth above, it is clear that neither the opinion of Dr. Corn regarding accidental causes of
AWCs nor the opinion of Dr. Lee regarding the affect of sprays and scrubber systems on the
formation of AWCs was properly disclosed during discovery, in spite of the Secretary' s best
efforts to ascertain these opinions during the that phase ofthis litigation. It is equa1ly clear that
the Secretary was prejudiced by the surprised he encountered and the accompanying impact that
surprise had on his ability to effectively cross examine Dr. Corn and Dr. Lee and to present
rebuttal evidence. Permitting Dr. Com and Dr. Lee's testimony to go into the record when it
should have been excluded under Rule 26 was improper. Had Dr. Corn's testimony been
excluded, the respondent' s suggestion that unintentional conduct affects the occurrence of AWCs
would have been, at the very least, significantly weakened. Had Dr. Lee's testimony been
excluded, the respondent would not have presented any evidence on the affect of sprays and
scrubber systems on the formation of AWCs. To the extent that the judge relied on this testimony
in reaching his final conclusion, that conclusion is not properly supported by substantial evidence.

·~

(iv). The judge erred in relying on Dr. Corn's conclusions on accidental causes of
AWCs because they lacked scientific foundation
The assertion of Dr. Morton Com, the respondent's witness, that events associated with
collection, handling, and analysis provided a more plausible explanation for AWCs than tampering
was not only improperly admitted, it was not made on the basis of scientific experimentation.
Further, in connection with Dr. Corn' s digital image analysis study, the judge found it was
"complex, confusing, and contradictory[.]" 15 FMSHRC at 1512 (emphasis added).
Consequently, to the extent the judge relied Dr. Corn' s opinion in this connection to support Dr.
Lee' s opinions, he erred. For the judge to have relied on Dr. Com's opinion in this connection to
support Dr. Lee's opinions was inconsistent with his rejection of Dr. Com' s digital image analysis

.~·

.-.
.:·:

1 9 07

study, upon which Dr. Com relied in supporting Dr. Lee. Thus, the judge's detennination in this
connection was not supported by substantial evidence.
(v). The judge erred in accepting the opinion of Dr. Lee over the opinion of Dr.
Marple on the effect of sprays and scrubber systems on the formation of AWCs
Initially, the judge erred in accepting Dr. Lee's opinion without adequately articulating his
reasons for doing so. A reviewing court "is not compelled to respect" credibility choices "based
on an inadequate reason or no reason at all." Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir.
1984), quoting NLRB v. Moore Business Forms, Inc., 514 F.2d 835, 843 (5th Cir. 1978). The
judge's crediting of Dr. Lee over Dr. Marple was in error. The judge failed to adequately
articulate his reasons for crediting Dr. Lee over Dr. Marple and, therefore, his crediting of Dr.
Lee can not be sustained. Particularly in light of the serious inconsistencies between Dr. Lee' s
testimony on the affect of sprays and scrubber systems on the formation of AWCs and the actual
affect, as outlined below. Ona Corp. v. NLRB, 729 F.2d at 719.
Dr. Lee's testimony regarding the affect of sprays and scrubber systems on the formation of
AWCs is unreliable because of his lack of expertise, his failure to make factual observations, and
the lack of scientific support for his opinions. Further, the scrubber systems can not explain the
sudden decline in AWC appearances on or about March 26 at the Urling mine. On March 19,
1990, MSHA instituted an AWC void code. The void code was issued in response to MSHA' s
discovery that operators were submitting filters exhibiting white circular areas in the center of the
filters -- abnormally white centers -- a phenomenon that was both abnormal and suspicious. The
void code was a three-letter code {AWC) which indicated to an operator submitting a respirable
dust sample that MSHA would not accept its submitted respirable dust sample to determine
whether the operator met the respirable dust standard. In other words, MSHA informed
operators that submitted samples were voided because of AWC appearances. Thereafter, MSHA
began rejecting submitted respirable dust samples that displayed an abnormally white center.
Over all, MSHA issued approximately 5,000 citations to 847 mines and assessed more than $6.5
million in penalties. Once word of the void code spread throughout the industry, filters with
AWCs all but vanished. For example, in the eight months preceding the void code notification
date, 58% (36 out of 68) of the samples from three continuous mining units which were not
equipped with scrubbers had AWCs while during the eight month period following March 26 of
the 65 samples submitted from the same three machines -- which were still not equipped with
scrubbers systems -- none exh;bited AWC appearances. K Stip. No. 94; K Exs. G-544; R2006A. In light of this uncontradicted evidence it is astonishing that the judge still found that
sprays and scrubber systems had an affect on the·formation of AWCs. Moreover, this evidence
provides compelling proof that it was the institution of the void code and not the sprays and
scrubber systems that affected the dramatic reduction in the formation of AWCs. The judge' s
determination in this regard is unsupported by substantial evidence.
Moreover, the judge' s conclusion that Dr. Marple's testimony was inconsistent
demonstrates that he did not fully understand Dr. Marple's testimony. In this connection, Dr.

1 90 8

Marple testified that moisture within and on the face of the coal seam could affect the adhesion of
the dust particles to the filter. However, Dr. Marple testified that once coal dust was airborne and
carried to the filter the dust was not moist and, thus, water scrubbers had no affect on the
adhesion of the dust particles to the filter. The judge failed to recognize this important aspect of
the testimony and, consequently, his conclusion that Dr. Marple's testimony was inconsistent is
simply erroneous and can not be sustained under the substantial evidence test. Dr. Marple' s
opinions should have been credited over Dr. Lee' s opinions, and not doing so was error.
2. The judge erred in failing to consider the optional quartz sampling program
Initially, I reject the judge's conclusion that because the "persons at the [Pittsburgh Health
Technology Center] who examined the quartz samples for AWC appearances were not called to
testify" it was " impossible" for him to "draw any conclusions from the fact that no appearances on
quartz samples were noted or cited by MSHA." 16 FMSHRC at 888. The witness called by the
Secretary to present testimony on the results of the optional quartz sampling program at the
Pittsburgh Health Technology Center, was Paul Parobeck. Since 1984, Mr. Parobeck had
supervised the two individuals at the Pittsburgh Health Technology Center who examined the
quartz samples for AWC appearances. Mr. Parobeck observed and reviewed the work of these
two individuals, as well as all of the relevant Rochester and Pittsburgh's records.8 Therefore, Mr.
Parobeck was competent to offer testimony in connection with the results of the optional quartz
sampling program at the Pittsburgh Health Technology Center. The judge's determination to the
contrary is erroneous.
The judge erred in failing and refusing to consider the results of the optional quartz
sampling program at the Urling mine. It is logical to assume that if AWCs were produced on
respirable dust samples by inadvertent or unintentional conduct at a given rate, AWCs would also
be produced on quartz samples by those same events at a comparable rate. This is so because the
quartz samples were collected in the exact same manner and under the exact same circumstances
as the respirable dust samples. The critical difference between respirable dust samples and quartz
samples is that it was in Rochester and Pittsburgh's interest to achieve low dust levels in the
respirable dust sampling program while it was in R&P' s interest to achieve high dust levels in the
quartz sampling program. Contrary to what one would expect to see if the AWCs were being
caused by inadvertent or unintentional conduct, the evidence submitted by the Government
established that none of the 75 quartz samples taken by R&P exhibited an abnormal appearance
while 40% of the respirable dust samples exhibited an abnormal appearance. This is astonishing
evidence and strongly suggests that the respirable dust samples were altered. That the levels of
abnormal appearances in the quartz samples were not exhibited at a rate comparable to the levels
of abnormal appearances in the repairable dust samples powerfully suggests that the AWCs on the
respirable dust samples were not produced by inadvertent or unintentional conduct.

8

R&P is the sole owner of Keystone, the operator of the Urling mine. 16 FMSHRC at

858.

190 9

The judge reasoned that because the actual quartz samples no longer exist (as a result of the
testing process which destroys them) he could not rely on them. While it is true that the actual
filters no longer existed because the process of testing the quartz samples destroys them, this fact
is insufficient to exclude perhaps the single most powerful piece of evidence of deliberate and
intentional conduct in the mine-specific trial. This evidence, enriched by the other evidence and
expert testimony, was sufficient to satisfy the Secretary's burden of proof and to establish that the
cited AWCs were more likely than not the result of Urling's deliberate and intentional conduct.
Urling did not set forth any believable or credible explanation to rebut, counter or explain away
this extraordinary evidence.
3. Statistical Evidence

(i). The significance of the void code
On March 19, 1990, MSHA instituted an AWC void code. The void code was issued
in response to MSHA' s discovery that operators were submitting filters exhibiting white circular
areas in the center of the filters -- abnormally white centers -- a phenomenon that was both
abnormal and suspicious. The void code was a three-letter code (AWC) which indicated to an
operator submitting a respirable dust sample that MSHA would not accept its submitted respirable
dust sample to determine whether the operator met the respirable dust standard. In other words,
MSHA informed operators that submitted samples were voided because of AWC appearances.
Thereafter, MSHA began rejecting submitted respirable dust samples that displayed an abnormally
white center. Over all, MSHA issued approximately 5,000 citations to 847 mines and assessed
more than $6.5 million in penalties.
(ii). The judge's determination that the statistical evidence does not establish that
AWCs resulted from intentional tampering which ceased after the institution of the void code is
not supported by substantial evidence
The mountain of statistical evidence in this case, when combined with the other evidence
and the testimony of expert witnesses, points to one inevitable and unavoidable conclusion, and
the Secretary's brief put it best when it stated: "Something dramatic happened on or about
March 26, 1990" and it "defies human credulity and common sense to conclude, as the judge did,
that [the statistical evidence does] not constitute compelling support for the Secretary's
explanation of why AWCs routinely occurred and then abruptly ceased to occur." Id. at 39.
In brief, the statistical evidence establishes 'that after the institution of the void code the
number of voided filters plummeted. Specifically, the evidence demonstrates that after the
institution of the void code the number of voided filters sent on to Mr. Thaxton from the
Government's Pittsburgh Health Technology Center dropped from an average of 6.5% to an
average ofless than 1%. Further, the evidence shows that the drop in the rate of samples
exhibiting AWCs submitted by all of Rochester and Pittsburgh's mines was even more dramatic:
cassettes submitted before March 26, 1990, and manufactured during a nine day period,

1910

manifested AWCs at a rate of 29% while cassettes manufactured during that same period but
submitted after March 26, 1990, manifested AWCs at a rate of 1%. The most dramatic drop in
the rate of samples exhibiting AWCs, however, was at the Urling mine: cassettes submitted
before March 26, 1990, and manufactured during a nine day period, manifested A WCs at a rate of
25% while cassettes manufactured during that same period but submitted after March 26, 1990,
manifested AWCs at a rate of0%. Moreover, R&P's logbooks established that: (I) when Urling
used cassettes from the 300,000 series before March 26, 1990, approximately 40% (66of165)
had AWCs; and (2) when Urling used cassettes from the 300,000 series after March 26, 1990,
less than 2% (1 of 59) had AWCs. This brief sampling of the evidence demonstrates quite clearly
that it was the void code, and not a miraculous convergence of unrelated natural and unnatural
phenomenon that caused the precipitous drop in the rate of AWCs. It stretches the bounds of the
human imagination to suggest, as the respondents and intervenors have, that changes in the mine
environments; changes in the filter manufacturing process, and changes in the handing of filter
cassettes all occurred on or about the third week of March 1990 and this strange and miraculous
convergence of events is what caused the AWC rate to plummet. To ask us to believe that is to
ask us to believe that elephants fly. The judge erred in discounting the significance of the
statistical evidence and, consequently, his decisions are not supported by substantial evidence.
(iii). Contrary to the judge's determination. bimonthly sampling does not merely
reflect how operators cany out dust sampling
The evidence established that the samples from the Urling mine were submitted at varying
time intervals and were not submitted on a strict and regular bimonthly interval. Consequently,
contrary to the judge's determination, bimonthly sampling does not merely reflect how operators
carry out dust sampling. Further, the manipulation of the evidence into bimonthly groupings by
the respondents, especially the March 1 to April 30, 1990 grouping, masks the significance of the
March 26 date by smoothing out the variations in the AWCs rates during that critical time period.
Thus the judge's erroneous determination that the samples at Urling were submitted on a strict
and regular bimonthly interval is unsupported by substantial evidence. Further, viewing the
statistics in a bimonthly format caused the judge to erroneously discount the statistical evidence.
As set forth above, the sudden drop in the occurrences of AWCs at the Urling mine was simply
astonishing. Obviously what happened here was that the defendant, having been caught, saw to it
that the illegal acts were stopped. The judge's discounting of this evidence is similarly mind
boggling. Moreover, the judge's determination is simply not supported by substantial evidence.
Contrary to the judge's determination, the evidence shows that March 26, 1990, is the date
that Rochester and Pittsburgh's Environmental Safety Department personnel became aware ofthe
void code. Specifically, Mr. Donald Eget, supervisor of the Environmental Safety Department
("ESD"), testified that he knew little concerning the details ofMSHA's investigation in February
and March of 1990. All of Mr. Eget's information was second hand and he did not recall
receiving any details in connection with MSHA and the United States Attorney' s investigation of
tampering at Rochester and Pittsburgh ("R&P"). Mr. Eget was unfamiliar with the concept of
AWCs prior to the void code notification. Upon receipt of the void code Mr. Eget called MSHA

1 91 1

for an explanation of the code. Mr. Eget's assistant, Mr. Houck, had less information than Mr.
Eget. Most importantly, after Mr. Eget called MSHA for an explanation of the code, the flow of
AWCs from ESD came to an abrupt halt.
4. The judge erred in his conclusions regarding filter-to-foil distances
The judge's conclusion that the filters produced before February 13, 1990, were more likely
to have a short filter-to-foil distances of 2mm, or less than those produced after February 13,
1990, was based on a woefully inadequate sample size. The evidence establishes that fewer than
100 measurements (out of200,000 filters) for the before period were taken and more than 1,700
measurements (out of200,000 filters) for the after group were taken. Further, within each group
there were widely varying measurements, with a substantial percentage of short filter-to-foil
distances measured in the "before" group. Moreover, the comparisons between the two groups
were compromised by data from the more than 4,000 measurements of filter-to-foil distance of
filters that were manufactured between October 25, 1990, and February 15, 1992, a period well
after the institution of AWC void code. Even so, those 4,000 measurements indicated that 50%
of the filters being manufactured during that period had short filter-to-foil distances yet there were
almost no AWCs from those groups of filters, not what should be expected if filter-to-foil
distances affected the formation of AWCs.
Moreover, Dr. Marple testified that some taunt filters might not move even if they had a
short filter-to-foil distance. Further, Dr. Marple found that filter-to-foil distance and floppiness
were not likely to affect the formation of AWCs because of the overriding affect of the threshold
velocity of the dust on each filter. The only basis provided by respondents' experts for the
assertion that filter-to-foil distance affected the probability of AWCs occurring was "common
sense." CI 4756, 5004, 5273,6222,6831, 7697, and 7897. To the contrary, if anything, common
sense leads to an opposite conclusion. Specifically, as noted above, out of the 4,000
measurements of filter-to-foil distance of filters that were manufactured between October 25,
1990, and February 15, 1992, 50% had short foil-to-filter distances. However, overall only 2% of
cited AWCs came from this group of filters. If filter-to-foil distance affects the occurrence rate of
AWCs common sense would dictate that AWCs would occur at a higher rate than that which
occurred. The only fact that would explain why the actual occurrence rate was not at the
expected rate is the institution of the void code. Consequently, the judge erred in relying on the
"common sense" theory posited by respondents' experts. Using "common sense" is a laudatory
thing to do; however, in these cases, along with common sense, legal principles must prevail. The
defendants, rather than using common sense used common illegality to iii.feet we know not how
many miners with silicosis.
Moreover, and perhaps most importantly, Rochester and Pittsburgh's ("R&P") logbooks
established that: (1) when Urling used cassettes from the 300,000 series before March 26, 1990,
approximately 40% (66of165) had AWCs~ and (2) when Urling used cassettes from the 300,000
series after March 26, 1990, less than 2% ( 1 of 59) had AWCs. The AWC rate for the cassettes
the judge held were more susceptible to AWC because of manufacturing anomalies was actually

1912

lower than it was for cassettes manufacture on other dates -- again, the exact opposite of that
expected if manufacturing anomalies accounted for AWC susceptibility. The overwhelming
evidence demonstrates that cassettes submitted before March 26, 1990, and manufactured during
a nine day period manifested AWCs at a rate of25% at Urling and 29% at other R&P mines while
cassettes manufactured during that same period but submitted after March 26, 1990, manifested
AWCs at a rate of l % at Rochester and Pittsburgh mines and 0% at the U rling mine!
Again, the only fact that would explain this phenomenon is the institution of the void code and
that the offending companies were caught. Therefore, the judge's determination that filter-to-foil
distances were likely factors in the occurrences of AWCs is not supported by substantial evidence
and cannot be sustained.
5. The judge's determination that handling variables affected the AWCs occurrence rate is
not supported by substantial evidence
The evidence on "handling variables" does not support the judge's conclusions that the
rough handling of the equipment contributed to the occurrence of AWCs. The evidence reflects
that only three individuals at R&P's Environmental Safety Department ("ESD") handled Urling
dust filters -- Messrs. Eget, Houck, and Snyder. Both Mr. Eget and Mr. Houck admitted that
they did not change their handling practices immediately after the void code was instituted.
Although Mr. Snyder testified that he made a few changes in the manner in which he handled the
sampling units, he could not identify the point in time at which he made the changes. However,
he stated that he did not make any changes in the manner in which he transported the sampling
devices until after January 1992, 21 months after the institution of the void code! Mr. Snyder
testified further that he first received instructions on specific modifications he should make in his
handling practices after January 1992. Consequently, no reasonable inference can be drawn from
this evidence to support a finding that "handling variables" contributed to the precipitous fall in
AWCs after the institution of the void code. In fact, ·the evidence demonstrates that handling
practices did not change until almost two years after the institution of the void code.
The judge also relies on the fact that Mr. Eget, admittedly the roughest handler of the
sampling devices, was absent between April 9, 1990 and May 10, 1990. However, Mr. Eget
handled the devices as roughly after May JO, 1990 as he had before April 9, 1990. K 2179,
2362, and 2993. Consequently, the virtual cessation of AWCs after March 26, 1990, can not be
explained by the absence of Mr. Eget because he continued to handle them in this same manner
until his retirement in January 1992 -- 21 months after the dramatic decline in the A WCs rate.
The findings by the judge in this connection are not supported by substantial evidence and, thus,
can not stand.
6. The judge's credibility findings in connection with the ESD personnel can not be
sustained.

~;

·:'

Where a judge's credibility determinations are based in essence not upon the demeanor of
the witnesses, but rather upon an analysis of their testimony and other record evidence, as here,

1913

....-

such determinations are not entitled to special deference. Consolidation Coal Co. v. NLRB, 669
F.2d 482, 488 (7th Cir. 1982). Further, material evidence cannot, as the judge did here, be
disregarded or eliminated by the causal expedient of crediting or discrediting witnesses. Medline
Industries v. NLRB, 593 F.2d 788, 795 (7th Cir. 1979). Moreover, the judge's credibility
determinations are based on an illogical assumption -- that people do not violate the law because
they are aware of criminal and civil penalties. As extraordinary as it may seem, this is what the
ALJ said in his opinion speaking of the credibility of Eget and Houck:
Both Eget and Houck knew that tampering was illegal. Eget at least was
aware that such acts could result (and had resulted) in criminal sanctions
. . . . Relying on the absence of any adequate motive for tampering, and
the strong disincentive provided by their knowledge of possible sanctions
for tampering, I accept as truthful the statements of each of them that he
did not tamper with compliance respirable dust samples submitted to
MSHA. . .. I consider these credibility determinations to be of
overriding importance in this decision.

16 FMSHRC at 902-903 (emphasis added).
Jails are full of people who are "aware that [their] acts could result (and had resulted) in criminal
sanctions." Id. at 902. The judge's credibility determinations are not entitled to weight because
he based them on unfounded considerations. Ona Corp., 729 F.2d at 719; Omni International
Hotels v. NLRB, 606 F.2d 570 573; Breeden, 493 F.2d at 1010; Victor Products Corp v. NLRB.,
208 F.2d 834 839 (D.C. Cir. 1953). As a result, the judge's credibility determinations are not
legally sustainable. In my 40 years as a member of the bar I have never come across as ludicrous
a statement as this trial judge made when he said:
Both Eget and Houck knew that tampering was illegal. Eget at least was
aware that such acts could result (and had resulted) in criminal sanctions
. . . . Relying on the absence of any adequate motive for tampering, and
the strong disincentive provided by their knowledge of possible sanctions
for tampering, I accept as truthful the statements of each of them that he
did not tamper with compliance respirable dust samples submitted to
MSHA... . I consider these credibility determinations to be of
overriding importance in this decision.

Id. (emphasis added).

7. The judge erred in refusing to admit criminal evidence in the common-issues trial

In the Secretary's Statement and Introduction to Offers of Proof Regarding Potential
Testimony of Pysher, et al., he offered evidence of criminal tampering by other operators to
demonstrate that tampering was a quick and easy way to remove dust; that tampering had

1 91 4

occurred; and that tampering was not an isolated event. Specifically, the Secretary stated:
Attached are Offers of Proof with regard to five witnesses who have
observed or participated in tampering with respirable dust samples. These
Offers set forth the testimony these witnesses would present if they were
allowed to testify at trial.
With respect to the five proposed witnesses, they would be expected
to testify that deliberate tampering and falsification of samples were, in
fact, activities engaged in by mine operators who submitted AWCs. These
witnesses could establish that deliberate behavior was used to mislead
MSHA or misrepresent the actual level of dust concentration at mines and
they could describe such deliberate acts either in which they participated or
which they personally observed. These witnesses could testify as to why
samples were deliberately altered or fraudulently manufactured and they
could testify how easily such acts were carried out. These witnesses can
rebut the operators' experts' testimony of possible or speculatively
potential causes of AWCs by showing what actually did occur at many
mines. This testimony is not intended to impute criminal conduct to all
operators; rather, it is to establish that such behavior was not isolated,
inconsequential or remote. This testimony and related documentary
evidence would prove that deliberate tampering is a reasonably likely cause
of AWCs and that such likelihood must be weighed against the
explanations offered by the operators in this proceeding. These people
participated in or observed deliberate attempts to create altered or
fraudulent samples at mines which submitted more than 400 of the cited
AWCs. Furthermore, the testimony and exhibits related to these witnesses
will corroborate the opinions of Robert Thaxton and Dr. Virgil Marple that
deliberate behavior created altered samples.
Statement and Introduction to Offers of Proof Regarding Potential Testimony of Pysher, et al.
The excluded criminal evidence was clearly relevant in the dust cases. Its probative value was
directly related to the issue of how AWCs could occur and, in fact, that they had occurred in the
past. In light of the limited purpose for which the evidence was introduced the evidence posed
little, if any, potential for any prejudicial impact. This is particularly so given that these
proceedings were held before a trial judge.
Because the probative value of the proffered evidence outweighed any potential prejudicial
impact it should have been admitted. Respondent complained that the evidence was character
evidence -- i.e. offered to show that mine operators were predisposed to intentionally tamper
because they had done so in the past. I reject this assertion even though it is a well known fact
that such was done in the past (and unfortunately continues from time to time even today) . As set
forth above, the evidence was patently not offered for this purpose. Further, while the proffered

1915

criminal evidence was also relevant to issues of motive and opportunity to tamper, evidence
submitted for these two purpose come under the exceptions to the exclusion of character evidence
contained in Rule 404(b). Thus, submitted for this limited purpose, the evidence was clearly
relevant to the ultimate question of whether AWCs were more likely than not the result of
intentional conduct.
Finally, inasmuch as the Secretary specifically stated that the evidence was not submitted for
the purpose of proving that because one operator tampered the respondents tampered and it was
heard by an experience trial judge, its probative value outweighed any potential prejudicial effect.
Inasmuch as it was offered into evidence for this limited purpose, it was improperly excluded and
the judge erred in not considering this evidence. As such, the judge's decisions are not supported
by substantial evidence because he failed to admit and weigh this probative evidence. Wyoming
Fuel, 16 FMSHRC at 1627; see also, Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222
(June 1994), citing Universal Camera Corp. v. NLRB, 340 U.S . 474, 487-89 (1951). As set forth
above, a judge must analyze and weigh the relevant testimony, make appropriate findings, and
explain the reasons for his decision. Wyoming Fuel, 16 FMSHRC at 1627; Mid-Continent, 16
FMSHRC at 1222, citing The Anaconda Co., 3 FMSHRC 299, 299-300 (February 1981). The
judge failed to do this and, as a result, his findings cannot be affirmed.
VI. Conclusion
Unfortunately, we can not tell and will never know how many men and women were
infected with black lung disease as a result of the illegal actions of the company defendants in
these cases. Considering the length of time their illegal actions went on, the number could well be
in the many thousands. Hopefully, the Government of the United States will in the end prevail, in
spite of the insensitive majority decision in this case and for whatever little satisfaction th~t gives
those thousands of people who have been harmed by the defendants' illegal acts, the right thing
will have been done by them.

. ·Marc Lincoln Marks, Commissioner

1916

::·

Distribution

Jerald S. Feingold, Esq.
Stephen D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
R. Henry Mor;re, Esq.
Buchanan Ingersoll
USX Tower, 57th Floor
600 Grant Street
Pittsburgh, PA 15219
Barry A. V,.oodbrey, Jr., Esq.
United Mi.1e Workers of America
900 15th Street, N.W.
Washington, D.C. 20005
Laura E. Beverage, Esq.
Jackson & Kelly
1660 Lincoln St.
Denver, CO 80264
Timothy M. Biddle, Esq.
Crowell & · .ioring
1001 Penn3yJvaniaAve., N.W.
Washington, D.C. 20004
Michael T. Heenan, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N.W.
Washington, D.C. 20005
John Palmer, Esq.
Robinson & McElweee
P.O. Box 1791
Charleston, WV 25326
H. Thomas Wells, Esq.
Maynard, Cooper, Frierson & Gale
1901 6th Avenue, N.W.
Suite 2400 AmSouth/Harbert Plaz.a
Birmingham, AL 35203

1917

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

November 30, 1995

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

Docket Nos. SE 93-9
SE 93-10
SE 93-98

S&H MINING, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. ( 1988) ("Mine Act" or "Act"), involve two roof control plan
violations. Administrative Law Judge Jerold Feldman concluded that the first violation was not
significant and substantial ("S&S") and that the second violation was not the result of
unwarrantable failure. 15 FMSHRC 2 196, 2198-99(October1993) (ALJ). The Commission
granted the Secretary of Labor's petition for discretionary review, which challenges those
determinations. For the reasons that fo llow, we vacate and remand.

I.
Factual and Procedural Background
During an inspection at the No. 7 underground coal mine of S&H Mining, Inc. ("S&H"),
an inspector of the Department of Labor's Mine Safety and Health Administration ("MSHA")
issued two withdrawal orders pursuant to secti ~n 104(d) of the Mine Act, 30 U.S.C. § 814(d),
alleging violations of 30 C.F.R. § 75.220 for failure to comply with the approved roof control
plan. 1 The inspector designated the alleged violations to be S&S and the result of unwarrantable

1

Section 75.220 states in relevant part:
(a)(l) Each mine operator shall develop and follow a roof control
plan ....
1918

failure. The operator stipulated to the occurrence of both violations but contested the S&S and
unwarrantable failure designations.
A. Order No. 3382962
On July 22, 1992, MSHA Inspector Don McDaniel, accompanied by Charles White,
superintendent of S&H mines, observed a coal pillar that had not been mined in conformity with
the roof control plan. 15 FMSHRC at 2199. Although the plan limited initial pillar cuts to a
width of 13 feet, the initial cut of the pillar had been made about 20 feet wide. 2 Id.; Tr. JI 67-68. 3
White told Inspector McDaniel that the pillar had not been mined according to the plan because
the continuous mining machine was too large to be maneuvered to cut the pillar according to the
plan's cut sequence. 15 FMSHRC at 2199; Tr. I 187, 192-93. Following McDaniel's issuance
of a section 104(d) order, S&H's roof control plan was revised to permit it to round off a comer
of the pillar and then make an initial pillar cut 15 feet wide. 15 FMSHRC at 2199; Tr. II 77-78.
The judge concluded that this violation was not S&S. 15 FMSHRC at 2199.
B. Order No. 3382964
On the following day, Inspector McDaniel, again accompanied by White, noticed section
foreman Steve Phillips operating a continuous miner to clean up loose waste material (''gob") in
an entry. 15 FMSHRC at 2198; Tr. I 199. Phillips loaded a shuttle car with gob and, as another
shuttle car arrived, positioned the miner against the side of a pillar and began cutting coal
without having first installed roof support timbers. Tr. I 199-200. Before Phillips was stopped,
he had made a 12-foot-wide, 38-inch-deep, wedge-shaped cut in the pillar. 15 FMSHRC at
2198; Tr. I 200, 204. Phillips told McDaniel that he was still cleaning up gob and had cut the
pillar unintentionally. Tr. I 205. The judge concluded that this violation was not the result of
unwarrantable failure. 15 FMSHRC at 2198.

II.
Disposition
A. Whether the violation cited in Order No. 3382962 was S&S

The judge concluded that the violation was not S&S because the roof control plan was
subsequently modified to "essentially confom1" to the operator's method of initial pillar cut, thus
precluding him from finding that the cited "mining ... was structurally unsound." 15 FMSHRC

2

The pillars are approximately 35 feet square. Tr. I 182, 205.

3

The hearing was conducted on September 28 and 29, 1993. "Tr. I" refers to the
September 28 hearing and "Tr. II" refers to the September 29 hearing.

1919

at 2199. He also found the evidence did not show that miners were exposed to unsupported roof.

Id.
The Secretary argues that the judge's S&S determination is not supported by substantial
evidence and is contrary to precedent. S. Br. at 9-12. He asserts that the judge failed to address
McDaniel's testimony regarding the danger of roof fall and the exposure to hazards of miners
who traveled in this area. Id. at 10-11. He also contends that, contrary to the judge's impression,
15 FMSHRC at 2199, the subsequently revised roof control plan would not have allowed the
operator to make the pillar cut for which it was cited. Id. at 11-12.
S&H responds that substantial evidence supports the judge's S&S determination. S&H
Br. at 8-9. It points out that, although Inspector McDaniel testified generally that the violation
would expose miners to the hazard of roof fall, he responded negatively when the judge asked
him whether there was exposure to unsupported roof in connection with the violation. Id. at 8.
S&H further asserts that the 20-foot-wide cut would not have violated the modified roof control
plan. Id at 9.
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the haz.ard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Div., Nat'/ Gypsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995), affg 16 FMSHRC 540, 541-43 (March 1994) (ALJ); Austin Power, Inc. v. Secretary
ofLabor, 861F.2d99, 103 (5th Cir. 1988), affg9 FMSHRC 2015, 2021(December1987)
(approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be
made assuming continued normal mining operations. US. Steel Mining Co., 7 FMSHRC 1125,
1130 (August 1985).
We conclude that the judge's S&S determination is contrary to law. The judge failed to
set forth or apply the Mathies criteria and failed to examine the likelihood of injury in the context

1920

3

of continued mining operations as set forth in US. Steel. Further, his findings are not supported
by substantial evidence. 4
The first and second Mathies elements are established: S&H concedes the violation of its
roof control plan and the record contains unrebutted evidence that the violation created a roof fall
hazard. Tr. I 8-9, 207. With respect to the fourth Mathies element, the undisputed evidence
clearly establishes that injury resulting from a roof fall would be serious in nature. Tr. I 207;
Gov't Ex. 14.
The only issue in dispute, therefore, is the third element of the Mathies criteria, whether
there was a reasonable likelihood that the hazard contributed to will result in an injury. The
judge found that the operator's use of an initial 20-foot pillar cut was not structurally Wlsound
because the roof control plan was subsequently modified to "essentially conform" to that method
of cutting. 15 FMSHRC at 2199. McDaniel testified without contradiction, however, that the
modified roof control plan requires the operator to limit the initial cut to a width of 15 feet. Tr. II
77-78. Thus, the record does not support the judge's implied finding that a 20-foot-wide cut was
permitted under the modified roof control plan and, hence, that the operator's mining method did
not compromise roof support.
The judge's finding that miners were not exposed to Wlsupported roof is also without
evidentiary support. 15 FMSHRC at 2199. McDaniel testified that the area where the violation
occurred was a travelway and that miners in the area were exposed to the hazard of roof fall. Tr.
I 188, 207, Tr. II 61-62. He explained, without contradiction, that failure to follow the cut
sequence in the roof control plan could cause a roof fall. Tr. I 207. Subsequently, the judge
asked McDaniel, "Do you have an opinion whether or not there was any exposure of unsupported
roof for the [order] ... at issue?" Tr. II 80. McDaniel answered ''No." Id. The judge continued:
"They were not under unsupported roof?" Id. McDaniel answered "No, sir." Id. These
questions apparently referenced exposure to WlSupported roof at the time McDaniel issued the
order. The judge's determination that there was no evidence of exposure is based on McDaniel's
responses to his questions, even though McDaniel's earlier testimony made clear his opinion that
the overcutting posed a continuing hazard to miners using the affected travelway. Commission
precedent requires that the likelihood of injury be examined in the context of continued normal

4

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(l). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163
(November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We
are guided by the settled principle that, in reviewing the whole record, an appellate tribunal must
also consider anything in the record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

1921

mmmg operations. US. Steel, 7 FMSHRC at 1130. The judge's decision does not indicate that
he considered the likelihood of such exposure during continued operations.
Accordingly, we vacate the judge's determination that the violation was not S&S and
remand for further analysis of the third Mathies element in light of Commission precedent and
the record evidence.
B. Whether the violation cited in Order No. 3382964 resulted from unwarrantable failure
The judge concluded that the violation was not the result of unwarrantable failure because
he found it "inconceivable" that the continuous miner operator, knowing that the inspector was
present, would intentionally mine a pillar without setting timbers. 15 FMSHRC at 2198. He
also determined that, in view of the "angle and size of the cut (38 inches in width),"5 the
Secretary failed to prove the violation was "a willful rather than a negligent act." Id.
The Secretary argues that the judge's finding that it was inconceivable Phillips, knowing
McDaniel was present, would mine a pillar without setting timbers has no support in the record.
S. Br. at 7-8. The Secretary also contends that the judge drew an unreasonable inference in
finding the angle of the cut indicated that the operator's mining was unintentional. Id. at 5-6 n.3.
The Secretary points out that the judge failed to discuss the 12-foot width of the cut, and that the
cut was made by a foreman in the presence of a mine supervisor. Id at 5-7. He asserts that the
judge erred as a matter of law in assuming a violation can be found unwarrantable only if it is
"intentional." Id. at 8-9.
S&H responds that the judge properly reasoned that Phillips would not intentionally
violate the roof control plan knowing of the inspector's presence. S&H Br. at 7-8. It also argues
that no proof was presented regarding the angle for making cuts under the roof control plan. Id.
at 7. S&H maintains the violation was an accident, indicative of nothing more than ordinary
negligence. Id at 6.
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. This determination was derived, in part, from the plain meaning of"unwarrantable" ("not
justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected or appropriate
action"), and "negligence" (the failure to use such care as a reasonably prudent and careful
person would use, characterized by "inadvertence," "thoughtlessness," and "inattention"). Id.
Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional

5 Notwithstanding the judge's use of the term "width," the record indicates that he was

referring to the depth of the cut. See Tr. I 200, 204-05.

1922

misconduct," "indifference" or a "serious lack ofreasonable care." Id. at 2003-04; Rochester &
Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94 (February 1991); see also Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d at 136, aff'g 16 FMSHRC at 543-47 (approving Commission's
unwarrantable failure test). This determination was also based on the purpose of unwarrantable
failure sanctions in the Mine Act, the Act's legislative history, and j udicial precedent. Emery, 9
FMSHRC at 2002-03.
The judge's unwarrantable failure determination turned on whether the operator's
conduct was "willful" rather than negligent. 15 FMSHRC at 2198. The Commission has held
that conduct that is not intentional may nevertheless be aggravated and, thus, constitute
unwarrantable failure. Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December
1987). As noted, the Commission has held that conduct characterized by indifference, serious
lack of reasonable care, or reckless disregard may support a finding of unwarrantable failure.
Because the judge did not analyze the evidence in light of this precedent, he erred.
Further, the judge's findings are not supported by substantial evidence. His finding that it
was "inconceivable" that the continuous miner operator, knowing the inspector was present,
would intentionally mine a pillar without setting timbers, 15 FMSHRC at 2198, lacks record
support. There is no evi4ence that Phillips knew McDaniel was watching him at the time he
committed the violation.
The judge's reliance on the angle and depth of the cut in detennining that unwarrantable
failure had not been established is also misplaced. Inspector McDaniel testified that Phillips
could not have traveled 12 feet by accigent. Tr. I 206-07. The judge did not indicate why he
rejected the inspector's conclusion that, given the width of the pillar cut, it could not have been
accidental. In addition, the j udge did not discuss the fact that the cut was made by a section
foreman and observed by a mine superintendent. A heightened standard of care is required of
such individuals. See Youghiogheny & Ohio, 9 FMSHRC at 2011 (in overseeing compliance
with the roof control plan, the section foreman is held to a demanding standard of care). On
remand, the judge shall address these issues.
Accordingly, we vacate the judge's determination that the violation was not the result of
unwarrantable failure and remand for further analysis in light of Commission precedent and the
record evidence.

1923

III.
Conclusion
For the foregoing reasons, we vacate the judge's determinations that the violation in
Order No. 3382962 was not S&S and that the violation in Order No. 3382964 was not the result
of unwarrantable failure. We remand for analysis consistent with this opinion.

oyce A. Doyl,~, Commissioner

Marc Lincoln Marks, Commissioner
Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Imogene A. King, Esq.
Frantz, McConnell & Seymour

P.0.Box39
Knoxville, 1N 37901
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1924

ADMINISTRATIVE LAW JUDGE DECISIONS

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

NOV

3 1995

ROCK OF AGES CORPORATION,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. YORK 94-76-RM
Citation No. 4282251i 5/20/94

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

Docket No. YORK 94 - 77 - RM
Order No. 4282252; 5/20/94

I

Docket No . YORK 94-78-RM
Order No. 4282253; 5/20/94
Docket No. YORK 94-79-RM
Order No. 4282254; 5/20/94
Docket No. YORK 94-80-RM
Order No. 4282255; 5/20/94
Docket No . YORK 94-81-RM
Order No. 4282256; 5/20/94
Docket No. YORK 94-82-RM
Order No. 4282257; 5/20/94
Docket No. YORK 94-83-RM
Order No. 4282258; 5/20/94
Rock Of Ages Lite Side
Mine ID 43-00024
CIVIL PEN.ALTY PROCEEDING

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

Docket No . YORK 95 - 55-M
A . C . No . 43-00024-05518
Rock of Ages Lite Side

ROCK OF AGES QUARRIES, INC.,
A/K/A ROCK OF AGES CORP.,
Respondent
1925

DECISION
Appearances:

Henry Chajet, Esq., Patton Boggs, L.L.P.,
Washington, D.C., and M. Shane Edgington, Esq.,
Patton Boggs, L.L.P., · Denver, Colorado, for the
Contestant/Respondent;
David L . Baskin, Esq., Office of the Solicitor,
U.S. Department of Labor, Boston, Massachusetts,
for the Respondent/Petitioner.

Before:

Judge Feldman

These consolidated contest and civil penalty proceedings are
before me as a result of a petition for civil penalty filed by
the Secretary of Labor pursuant to section lOS(d) of the
Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C.
§ 801 et seq.
These proceedings concern a 104{d) (1) citation
and seven 104(d ) (1) orders that were issued as a result of the
Mine Safety and Health Administration's (MSHA's) accident
investigation of the May 20, 1994, death of Michael Bassett, a
Rock of Ages (ROA) quarryman. Bassett, a channel burner operator
at ROA's Smith Quarry in Graniteville, Vermont, was killed when
his torch ignited pyrodex blasting material . 1
Prior to the hearing, the Secretary moved to vacate
Order Nos. 4282252, 4282253, 4282254 and 4282258. The petition
seeks a total civil penalty of $135,000 for remaining 104(d) {1)
Citation No. 4282251 and 104(d) (1) Orders Nos. 4282255, 4282256
and 4282257.
The hearing was conducted from January 10 through
January 13, 1995, in Boston, Massachusetts, and, from April 25
through April 28, 1995, in Montpelier, Vermont . On July 28 and
October 19, 1995, ROA filed unopposed Motions to Correct a total
of approximately 540 errors in the transcript of these
proceedings. However, ROA has not alleged any significant

The Smith Quarry is a component of Rock of Ages' Lite Side
Quarry which is the subject mine site in this proceeding .
1

1 9 26

substantive tra.n script errors in its post-trial brief . I find
the transcript to be substantially accurate, particularly with
respect to the transcript pages referenced in this decision.
Accordingly, ROA's Motions to Correct are granted with the
exception of any requested corrections that are substantively
inconsistent with the transcript pages discussed and cited
her.~in.

ROA is a granite manufacturing company that is subject to
the Act. ROA is a large operator in that it has approximately
300 employees and annually produces approximately 1 . 2 million
cubic feet of granite.
(Tr.II at 453-55; ROA Proposed Findins at
2
p.2) .
The parties' post-hearing briefs and replies are of
record.
Statement of the Case
ROA's Smith Quarry is a solid massive granite formation
where blocks of stone, called benches, are removed by quarrying
in a downward, fairly cubicle fashion. Thus, the base of a
quarried (removed} bench becomes the top of the bench to be
quarried below. A typical bench is approximately 40 feet wide,
35 feet deep and 16 feet high.
Benches are separated by a channel burner operator who
proceeds with a torch up one side of the bench, along the back ,
and then down the other side to create the bench. After channels
are burned to separate the bench on the sides and in the rear,
the bench is separated from the quarry floor by blasting material
that is loaded into lift holes drilled every six inches along the
base of the bench at its face.
Typical lift holes are 1-7/8 inches in diameter and
approximately 32 feet long . When a lift (blast} is cl~an, the
top half of the lift hole becomes part of the lifted bench, while
the lower half of the hole remains at the surf ace at the top of
the next bench to be quarried. if the lift is not clean, caprock
may remain in place at the surface after the bench is removed

Transcript references are cited as "Tr.I" and "Tr.II" for
the first and second phases of the trial, respectively.
2

192 7

with the lift hole intact and the possibility of explosives
inside.
ROA routinely used a continuous charge of primacord or
seismic cord as its lift hole blasting agent prior to 1993.
Beginning in February 1993, ROA departed from its usual blasting
procedure and substituted pyrodex bags for blasting cord in
several shots in February through July 1993. The pyrodex bags
were separated at the front, middle and rear of the loaded lift
holes without any connecting ignition or detonating agents. The
blast procedure contemplated that the flame and heat from each of
the pyrodex bags at the mouth (front or collar) of each loaded
lift hole would ignite the center and rear bags in sequence.
On Friday, May 20, 1994, channel burner operator Bassett
was killed when his torch ignited pyrodex concealed in caprock
as a result of misfires that occurred in June 1993. Bassett had
been burning a channel at the rear of the bench being quarried.
Quarry operations were suspended immediately after Bassett's
death, at which time the post-accident investigation revealed,
in addition to the fatal charge, two bags of unexploded pyrodex
within two feet of Bassett's torch path. Ultimately, MSHA
determined there were a total of 22 bags of unexploded pyrodex in
the vicinity of the previously quarried June 22, 1993, \\death
bench." A total of 40 unexploded pyrodex bags, including those
found in the \\death bench," were found in ROA's Adams and Smith
Quarries which are in the Barre complex.
MSHA Inspector Edward Blow arrived at the Smith Quarry on
the afternoon of May 20, 1994, to secure the scene and open the
investigation. Steven Luzik, who is the Chief of MSHA's
Engineering and Testing Division at the Technical Support Center
in Tridelphia, West Virginia, Supervisory Inspectors Donald
Fowler ~. nd Michael Music, and Inspector Guy . Constant conducted
the accident investigation from Monday, May 23, 1994, through the
closeout conference on June 29, 1994.
As a result of MSHA's accident investigation, the Secretary
seeks to impose penalties on ROA for four alleged violations of
mandatory safety standards in Subpart E of Part 56, 30 C.F.R.
Part 56, which govern hazards associated with explosives.
Namely, ROA was cited for an inadequate June 22, 1993, post-blast
inspection in violation of 30 C.F.R. § 56.6306(g); permitting

1928

work other than work necessary to remove a misfire in the
affected blast area in violation of 30 C.F.R. § 56.63ll(b);
permitting an open flame within 50 feet of explosive material in
violation of 30 C.F . R. § 56.6904; and inadequately trained
blasting personnel in violation of 30 C. F.R. § 56.6300(a).
At the hearing the Secretary called Glenn Dean Barrett of
the Hodgdon Powder Company, ROA's pyrodex supplier, and
investigating officials Blow, Luzik, Fowler and Music. ROA
relied upon the testimony of its Chief Engineer, Donald Murray,
and ROA employees David Gomo, a channel burner operator, and
Arnold Bolio, a front-end loader operator . ROA also called
Dr. Chapman Young, a specialist in Geophysics and Material
Science Engineering, as an expert witness. However, ROA did
not call Earnest Batchelder, the derrick ope:rator who found
the critical four pyrodex misfires on or about July 1, 1993,
Richard "Bud" Reynolds, the powderman who loaded those misfires,
and Earl Kelty, the foreman who supervised Reynolds.
Background
ROA is a granite quarry manufacturing company with
approximately 300 employees. The Smith Quarry, the site of the
accident, is a solid massive formation in the Barre complex and
has approximately SO to 75 quarrymen. Quarrying proceeds in a
fairly cubical fashion. The walls stay fairly straight. The
quarry size remains relatively constant as the process proceeds
downward, it does not taper. There are typically from five to
seven levels of operation at the quarry. At these levels, a
total of approximately a dozen benches (individual blocks of
stone) are being worked at any given time.
The first step in the stone removal process is the channel
burning operation. Ti1e channel burner operates the channel
burning torch which creates thermal stresses causing the stone to
break off. The channel burner proceeds up one side of the bench,
along the back and then down the other side to create a channel,
approximately six inches wide, on the sides and rear of the
bench. Benches vary in size. A typical bench is approximately
40 feet wide, 35 feet in depth and 16 feet in height. {Ex. C-2).
The channel burning process is completed in approximately
15 days.

1929

After channel burning, lift holes are drilled at the base of
the bench. The lift holes are about 1-7/8 inches in diameter,
are drilled approximately six inches on center, and proceed from
the base of the open face back into the bench, stopping about one
foot from the channel in the back of the bench. The drill holes
are approximately one foot from the base of the quarry floor.
The . lift hole drilling process is completed by the 26th day of
the bench quarrying process.
After the lift holes are drilled, a line of vertical holes
are drilled every 5-~ feet in the top of the bench to create
vertical slabs of stone. The vertical holes are drilled four
inches apart and are drilled down to within a foot of the lift
holes, but they do not intersect. The vertical drill holes
eventually create slabs that are about 5-~ feet in width . The
vertical holes are completed approximately 34 days into the
process.
After all the holes are drilled, some, but not all, of the
lift holes in the bench are loaded by the powderman and his
assistant using various loading patterns. For example, every
third or fot.~.rth lift hole may be loaded with explosives. With
the exception of approximately seven pyrodex shots that occurred
from February to July 1993, ROA used seismic cord which is
continuous detonating cord placed in various lift holes connected
by a trunk line ignited by blasting caps. Following the blast,
the powderman, his assistant and the foreman go to the face of
the bench to conduct an examination for a successful lift and to
look for any evidence of a misfire.
In conducting a post-blast examination, the powdermen look
for: (1) proper cracking from lift hole to lift hole; (2) signs
of discoloration from blast residue on loaded holes; and
(3) any indication of non-initiated blasting materials or other
abnormalities. They also observe the top of the bench to see if
the bench shifted in the blast. The blasting process is
completed approximately 35 days 'into the process.
After blasting, the bench is quarried by separating slabs
approximately 5-~ feet in width, by jack hammering a series of
shims and wedges into the vertical holes in the top of the bench .
The 5-~ foot slabs are then split from the bench by a front-end
loader with a tipping boom used to topple each line down. As

19 30

each line is toppled, fresh stone is exposed beneath and behind
the line. The powdermen and quarrymen then examine this newly
exposed stone in the same manner they examined the face .
The toppled slabs are split into smaller blocks 5 1 6 11 by 5 1 6 11
by the height of the bench. These smaller blocks are then
transported by the front-end loader to an area underneath one of
the derricks where the block is hoisted out of the quarry . The
process of splitting off slabs and reducing the slabs to smaller
blocks is repeated until the entire bench is quarried. During
this 10 to 12 day period following blasting during which the
stone is removed, i.e., the post-blast inspection period, the
quarrymen continue to examine the freshly exposed stone for
misfires or other safety hazards.
(See Tr.II at 15-16). The
entire bench is removed approximately 10 to 12 days after the
blast and 47 days after the initiation of channel burning work on
the bench.
Findings of Fact and Conclusions
As noted above, ROA routinely used primacord or seismic cord
as the blasting agent at the Smith Quarry. Seismic cord is
unlikely to misfire if the blasting caps and trunk line ignite at
the mouth of the loaded lift holes and detonate the cord because
it is a cont i nuous cord of blasting material . The greatest
concern is the potential for a break in the seismic cord by a
sharp piece of rock when the cord is unrolled and shoved into the
lift hole. A break in the cord can usually be detected by the
powderman because the cord would stop unrolling before it
approached the rear of the bench.
(Tr.I at 233).
The Hodgdon Powder Company is a manufacturer of pyrodex.
Pyrodex is often referred to "as a replica of black powder" and
is similar to black powder in ingredients.
(Tr. I at 128) .
Black powder is a mi xture of charcoal, sulfur and potassium
nitrate . Pyrodex has all of the ingredients of black powder
plus potassium perchlorate and binders and burning rate
modifiers.
Pyrodex is a propellant explosive as contra sted with black
powder which is a detonating explosive. A propellant explosive
burns generating gas and energy . A detonating explosive
generates gas and energy as well as shock energy through

1931

detonation.
(Tr . I at 132). The Department of Transportation
(DOT) classifies black powder as a Class A Explosive and pyrodex
as a Class B Explosive.
(Tr.I at 128).
In 1986, ROA was contacted by Glenn Dean Barrett,
Vice-President of the Hodgdon Powder Company. Barrett encouraged
ROA . to use pyrodex as an alternative to seismic cord or other
black powder blasting agents. Barrett stressed that pyrodex
would have rock fracturing properties that were beneficial to the
quarrying process because it could split dimensional stone
without radial fracture.
(Tr. I at 144) . Barrett visited ROA' s
Adams, Smith, and Rock of Ages quarries, where he performed a
total of four pyrodex test shots with Ernie Silly (phonetic) of
the Rock of Ages Quarry, Jumbo Harris, foreman of the Adams
Quarry, and an individual identified as 11 JR 11 , foreman of the
Smith Quarry. Barrett did not recall meeting Richard 11 Bud 11
Reynolds or Earl Kelty, the powderman and foreman, respectively,
who conducted pyrodex shots in 1993 at the Smith Quarry .
{Tr.I
at 136, 149).
Barrett testified that he stressed the need for stemming
lift hole collars with paper or rags to ensure the holes were
pressurized and gas tight. Pressurization would ensure proper
lift because there would be no loss of gas energy.
(Tr.I at 141,
147). Although the pyrodex bag placed at the mouth of the lift
hole is ignited by an electric squib, pressure creating a flow
channel is also essential to ignition of bags placed in the
middle and rear of the lift holes as these bags are not
connected by any fuse or other ignition device.
(Tr.I at 142).
Ultimately, ROA Quarry Superintendent Larry Beede informed
Barrett that ROA was not interested in pyrodex because the
stemming process required to pressurize the lift holes was too
labor intensive.
(Tr.I at 147-48).
Barrett participated in a subsequent pyrodex test shot at
the Smith Quarry in 1987, at which time he also did not recall
meeting Reynolds or Kelty .
(Tr.l at 149). This shot was used to
demonstrate a mechanical plug that addressed ROA's concerns about
manual stemming . However, the test shot did not adequately split
the rock.
Consequently, Beede informed Barrett that ROA was no
longer interested in using pyrodex.
(Tr.I at 149-50).

19 32

In January 1993, Barrett was advised by Beede and
Controller Paul Hutchins that ROA was interested in resuming
their experimentation with pyrodex.
{Tr.I at 150). Barrett sent
ROA information concerning the proper pyrodex pre-blast, blasting
and post-blasting procedures. The information addressed hole
cleaning and testing, loading patterns, blast initiation and
hyg~oscopicity (pyrodex's water absorption qualities that
interferes with ignition) .
With respect to his views on proper loading, at trial,
Barrett was reluctant to admit that he had recommended that the
pyrodex bags be spaced in the lift holes, claiming that bags were
touching each other in the 1987 test shot.
(Tr.I at 171-72).
However, Barrett ultimately conceded on cross-examination that he
believed pyrodex bags spaced throughout a 30 to 40 foot lift hole
could be ignited by a single squib at the outermost bag, provided
there were no obstructions in the lift hole.
(Tr.I at 174-77,
186).
In fact, Barrett stated he has not advised pyrodex users
to cease spacing pyrodex bags in lift holes despite Bassett's
fatality.
(Tr.I at 176). Finally, Barrett's paper on "Splitting
Granite Using Pyrodex" presented to the Society of Explosive
Engineers in February 1987, and provided to ROA in January 1993,
notes that "powder had to be placed in more than one section of
the hole."
(Ex. R-4, at p.3)
In summary, the evidence reflects
Barrett's recommended blasting procedure involved the placement
of separated pyrodex bags in pressurized lift holes that were
unconnected by any detonating cord or other ignition device.
During the period February through July 1993 , ROA used
separated bags of pyrodex in several blasts at its Smith and
Adams Quarries by using an electric squib to ignite the outermost
bag in each loaded lift hole.
(Tr.I at 593-94) . ROA had been
operating the quarry for over 90 years.
(Tr.II at 458).
However, these were the only production uses of pyrodex as a
blasting agent.
Consequently, ROA Chief Engineer Donald Murray,
Engineer Doug Goldsmith and Foreman Kelty informed MSHA accident
investigators Fowler and Constant· that pyrodex blasting reports
were kept because these pyrodex shots were experimental rather
··.

1933

than routine.
{Tr. I at 564, 569, 593) . The blasting reports
detailed the bench's quarry section location and dimensions, and
i de ntified the loading pattern by identifying the lift hole
l oading pattern and the number and spacing of pyrodex b ags in
each loaded hole.
(See Ex. R-7}.
Although blasting reports were made for each p yrodex shot,
ROA Chief Engineer Donald Murray claimed blasting reports for
three pyrodex shots at the Smith Quarry could not be located.
Murray has characterized these "missing report" pyrodex blast
sites as "possible pyrodex shots" based on witness recollections,
none of whom were called by ROA at the hearing.
(Ex. C-10 at
p.4; see also n.4, infra). The existing reports detail pyrodex
shots on February 5, 1993 at the U-1 Sectio~ of the Smith Quarry,
shots on May 7, May 10 (or May 12), and Jun~ 22, 1993, at the
U-13 Section of the Smith Quarry (where Bassett was ultimately
killed), and a shot on July 29, 1993, at the Adams Quarry.
(Exs . R-7, R-24, Tr.II at 638-50).
The June 22, 1993, blasting report reflects that 80 lift
holes, 37 feet in length , were drilled approximately 6 inches
apart at the base of the bench's 42 foot face .
(Ex. R-7). The
report further reflects powderman Richard "Bud" Reynolds, under
the supervision of Foreman Earl Kelty, loaded a total of 52
pounds of pyrodex in 84 bags by placing four bags in each of
21 holes.
(Tr.1 at 567-68). The four bags in each loaded hole
consisted of one bag at the mouth of the hole, one bag in the
center of the hole, and two bags at the rear . The rear bags were
placed approximately 32 to 37 feet from the hole's mouth. The
loading pattern was every fourth hole, i.e., holes 1-4-8-12-1620-24-28-32-36-4 0-44 -48-52-56-60-64 -68-72-76-80) .
(Exs. R-7,
R-10; Tr.I at 569, 577-78).
Kelty and Reynolds examined the bench after the blast . They
noted the bench was "tight in front" and that the "back lifted
good. ''
(Ex. R- 7) . Fowler testified that "tight in front" meant
the bench did not separate or move as anticipated.
(Tr.I at 582,
638}. On or about July 1, 1993, approximately seven to t~n days
f ollowing the June 22, 1993, shot, derrick operator Earnest
Batchelder found three or four bags of pyrodex that had
shaken loose from blocks of granite lifted from t h e quarry

1934

floor .
(Ex. C-10 at p.5). Batchelder did not observe any
matches or detonators with the bags.
(Ex. R-19). The pyrodex
misfires were reported to Kelty. Foreman Kelty noted that
"4 bags [of] powder did not go off" on the June 22, 1993,
blasting report . (Ex . R-7; Tr.I at 579-80).
: Murray testified for ROA that Kelty ordered Reynolds to
wash out the lift holes after Batchelder•s find. However, on
cross-examination, Murray admitted he did not know whether the
holes were first washed in July 1993, after the bags were found
by Batchelder, or after Bassett's fatality.
(Tr.II at 544-45,
564-65). Inspector Fowler also testified on the extent of
Kelty's efforts to find more misfires. Fowler testified he
interviewed Kelty on June 1, 1994, shortly after Bassett's death,
in the presence of Murray and ROA Engineer Doug Goldsmith.
Fowler testified:
Q:

Did you ask [Kelty] whether four bags of powder had
been found?

A:

Yes.

Q:

And did he respond?

A:

Yes, he did .

Q:

What did he say?

A:

He said yes, that he was aware of four bags that
had been found .

Q:

And what did you say to him then?

A: Wel l , the question was to Mr. Kelty is, if he .was
aware of four bags of explosives that was not detonated
in the 6/22/93 shot, why didn't you follow up on those
four bags, the bags that was · (sic) not detonated.
.·.

Q:

And did he respond?

A:

He did.

Q:

And what did he say?

.~:

....

19 3 5
~:-

A:

He shrugged his shoulders and said, I forgot .

Q:

And what did Mr. Goldsmith do at that point?

A:

Dropped his pencil. He was sitting directly across
from him .
(Tr.I at 586-87).

Fowler also testified that Quarry Superintendent Larry Beed~
apparently was also aware, prior to Bassett's death, that pyrodex
misfires had been found.
(Tr.I at 601-04). Neither Kelty,
Reynolds, Goldsmith nor Beede were called by ROA as witnesses.
Murray testified but he did not rebut Fowler's testimony
concerning Fowler's June 1 Kelty interview. While the evidence
concerning the washing of holes is equivocal, ROA presented no
evidence of any significant efforts to find additional misfires,
such as probing under caprock, following the discovery of the
June 22, 1993, misfires. However, Murray testified ROA was able
to find a total of 40 pyrodex misfires shortly after Bassett's
May 20, 1994, death.
(Tr.II at 526, 562).
The temperature of a channel burner torch is approximately
4,200 to 4,400 degrees Fahrenheit.
(Tr.I at 208}. The ignition
temperature of pyrodex is between 750 and 800 degrees Fahrenheit.
(Tr.I at 187). On May 22, 1994, Bassett was channel burning a
bench in the U-13 Section. The bench was approximately 30 feet
wide by 35 feet in depth by 18 feet in height. Channels had been
cut on the east and west sides of the bench. The channel on the
north (rear) side of the bench had been cut approximately 16 feet
in length. At approximately 10:58 a.m. witnesses stated Bassett
was thrown approximately 10 feet in the air and killed instantly
when his channel burner apparently intersected pyrodex bags at
the rear of the bench approximately 16 feet from the northwest
corner.
(Tr.I at 624, 625) . ROA stipulated, for the purposes of
these proceedings, "that its more likely than not that the cause
of the fatality was ignition of Pyrodex bag(s) causing a fatal
injury to Mr. Bassett . "
(Tr.I a~ 428). In any event, as noted
below, Bassett's torch passed within two feet, but missed, two
misfired bags of pyrodex just minutes before he was killed.
As indicated, MSHA Investigator Luzik determined Bassett's
torch passed within two feet of two bags of unexploded pyrodex
encapsulated in caprock only minutes before Bassett's torch tip
came within one foot of the fatal explosive material. (Tr.I at

1936

433-34, 541, 688). The proximity of the channel burned by
Bassett to these unexploded bags is clearly depicted in
photographs proffered by the Secretary.
(See Ex . RS-C, RS-D,
and RS-E) . There were three unloaded holes between the
fatal lift hole and the two misfired bags, as depicted in
photograph RS-D. At trial, Luzik explained he arbitrarily
labeled these lift holes as Hole Nos. 1 through 5 in photograph
RS-D, with the fatal hole as Hole No. 1, intervening unloaded
holes as Hole Nos. 2, 3 and 4, and, the hole containing the two
misfires as Hole No. 5. 3 {Tr.I at 455-56, 681) . Luzik testified
the J u ne 22, 1993, blasting report was the only report that
corresponded to the three unloaded holes between every loaded
hole loading pattern found at the death scene.
(Tr.I at 68889). The two bags found in the rear of the hole also conformed
to the June 22, 1993, loading pattern.
{Ex . R-7).
Further investigation of the fatal U-13 bench site revealed
14 additiona l bags of unexploded pyrodex comprised of two bags in
the rear of each of seven lift holes. It is undisputed that
several of the seven misfired holes had three unloaded holes
between them entirely consistent with the June 22, 1993, loading
pattern.
(See Ex. R-10) . These 14 misfires, when combined with
the four misfires found by Batchelder, the two misfires
discovered by Luzik near the explosion, and the two bags believed
to have caused the explosion, resulted in a total of 22 misfires.
Thus, the 22 misfires of the 84 pyrodex bags loaded in the
June 22, 1993, shot represent a misfire rate of 26 percent.

ROA misstates Luzik's testimony "that he found pyrodex in
the fifth hole at the accident site . "
(ROA br. at p.14). The
rear channel had been burned 16 feet when Bassett was killed.
Luzik testified he arbitrarily labeled the fatal blast lift
hole as Hole No. 1, followed by three intervening unloaded
Hole Nos. 2, 3 and 4, and two misfires in the next loaded hole
labeled Hole No. 5. This is the equivalent of Hole No . 16 being
loaded, with intervening Holes Nos . 17, 18 and 19 unloaded, and
Hole No. 20 the next loaded hole, which is consistent with the
June 22, 1993, loading pattern .
3

1937

Further Findings of Fact
and Conclusions of Law
a. Pyrodex Misfires are Governed
by Section 56. Subpart E

As a threshold matter, in an exercise in futility, ROA
argues that pyrodex is not an explosive .regulated by Part 56,
Subpart E, because it is a propellant that ignites or
deflagrates, as distinguished from blasting agents such as black
powder, or seismic cord, that detonate. In this regard ROA
relies on the definition of "misfire" in section 56.6000:
The complete or partial failure of explosive material
to detonate as planned. The term also is used to ·
de.s cribe the explosive material itself that has failed
to detonate (emphasis added ) .
The plain language of the definition section of 56.6000
defines "an explosive" or "explosive material" as any substance
classified as an explosive by the Department of Transportation
(DOT) in DOT regulations 49 C.F.R . §§ 173.53, 173.88 and 173.100.
Section 173.88 of the DOT regulations defines liquid or solid
propellant explosives that function by rapid combustion rather
than detonation as Class B Explosives . Thus, it is indisputable
that propellants such as pyrodex are "explosives" and "explosive
material" under section 56.6000.
Regulations and statutes must be interpreted to harmonize
rather than conflict with their intended p urpose. See Emery
Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414
(10th Cir . 1984). Here, it is obvious the word "misfire" in
section 56.6000 refers to any explosive material that has failed
to perform and thereby remains hazardous. Consequently, this
provision must reasonably be interpreted to include a misfire of
any explosive that has failed to .detonate or ignite . Thus, it is
clear the 40 bags of unignited pyrodex found at the Smith and
Adams Quarries immediately after Bassett's death are properly
characterized as section 56.6000 misfires . Any other
interpretation is ludicrous for it would exempt pyrodex misfires
from Part 56 even though pyrodex is a Part 56 explosive.

19 38

b. The June 22. 1993. Blast Site
is the Site of the Fatality
The appearance of a quarry changes as benches are removed
and quarrying progresses to lower levels. Therefore, ROA
contends "it [is] difficult to determine each location where
pyrodex had been used and to correlate that location with a
written shot report."
(Ex . C-10 at p.3) . Thus, ROA argues that
the Secretary has not established that the June 22, 1993, pyrodex
blast was the site of Bassett's fatal accident. 4 While, as
discussed below , the Secretary has satisfied his burden of proof
that June 22, 1993, misfires were the proximate cause of
Bassett's death, resolution of this issue is not material to the
disposition of important issues in this case, such as the
adequacy of ROA's efforts to find and remove misfires. For if
ROA had exercised reasonable prudence following the discovery of
four misfires shortly after the last documented Section U-13
pyrodex shot on June 22, 1993, regardless of whether this
blast was the site of Bassett's fatality one year later, at
least 22 misfires would have been found. Discovery of these
22 misfires would have alerted ROA, given the potential use of
torches in a virtual mine field, to thoroughly inspect the Smith
and Adams Quarries for the additional 18 misfires that were
found.
In so doing, Bassett would probably be alive today .
Turning to the issue of the accident site location, the
June 22, 1993, blasting report conclusively establishes that
Bassett was killed by a June 22, 1993, misfire. At the ~utset,
this conclusion is consistent with ROA's own initial accident

4

ROA, in its brief, at p.3, n.6, citing Tr . II at 308-310,
alleges it was denied due process because the Court placed the
burden on ROA to demonstrate the June 22, 1993, pyrodex shot was
not the site of the fatal accident. A fair reading of these
transcript pages reflects that, given the overwhelming evidence
presented by the Secretary demonstrating the June 22, 1993,
pyrodex shot as the site of Bassett's fatality, the Court ruled
the burden would shift to ROA to show where the accident
occurred, particularly if ROA, despite its previous admissions,
was now relying on purported blasting reports that no longer
exist . It is fundamental that the burden to rebut shifts to the
operator when the Secretary presents prima facie evidence.

19 39

•:

investigation .
(See R-8). However, in an effort to refute its
own initial accident findings to minimize the significance of the
discovered misfires, ROA now attempts to change the facts by
portraying the plain meaning of the 1-4-8-12 loading pattern on
the June 22, 1993, blasting report as indicative of a 1-4-8-1215-19-23-27-30-etc., loading pattern (repeating the pattern of
only two unloaded holes between Hole Nos. 1 and 4).
(See Tr . I at
1050-1051, 1057).
ROA's interpretation of the June 22, 1993, loading pattern
is frivolous because:
(1) ROA's claim was rejected by
Investigators Luzik, Fowler and Constant, who concluded, based on
information provided by ROA, that the June 22, 1993, blasting
report established loaded holes 16-20-24-etc., followed loaded
hole 12 (see, e.g . , Tr.II at 105-07); (2) ROA's purported
irregular loading pattern of alternating configurations of two or
three unloaded holes defeats the purpose of pyrodex's intended
goal of creating even splitting and avoiding radial cracking;
(3) ROA 1 s claim of different numbers of unloaded holes at the
same blast site is inconsistent with all other blast reports
which show a constant number of unloaded holes between loaded
holes at each pyrodex shot (Ex . R-7); (4) ROA's purported loading
pattern as illustrated in Ex. R-lOA results in Hole No. 75,
rather than Hole No. 80, as the last loaded hole; and (5) ROA's
alleged exculpatory loading pattern is belied by ROA's own
May 25, 1994, initial accident report wherein it concluded
that," [the fatal] undetonated explosive material must have been
remaining from [the) lift blast conducted in June of 1993 .... "
(Ex R-8, p . 2 ).

As if this were not enough, the 14 bags found at the rear
of seven different lift holes at the ''death bench" included
several loaded holes separated by three unloaded holes, which
is entirely consistent with the June 22, 1993, loading pattern
and inconsistent with all other blasting reports.
(See Ex. R-10;
See also n.4, supra).
In this ~egard, Murray could not explain
why Kelty, who supervised the loading of the June 22, 1993, blast
site, would draw the diagram, admitted as Ex . R-10, reflecting a

1940

June 22 loading pattern of every forth hole at the fatal accident
site. 5
(See Ex. R-10; Tr.II 663-66). Thus, the purported
loading pattern advanced by ROA at trial is insupportable as it
is inconsistent with all of the information and documentation
concerning the June 22, 1993, loading pattern provided to MSHA
officials by ROA during the course of the accident investigation.
ROA's assertion that the pressure of the explosion in each
lift hole makes it difficult to determine the original location
of misfired bags found at the rear of lift holes is unconvincing.
Since the pyrodex bags are spaced to ignite in sequence in
extremely small lift holes approximately 1-7/8 inches in
diameter, bags found at the rear of holes must have been loaded
the furthest distance from the mouth of the lift hole.
Therefore, the sets of two bags found at the rear of eight lift
holes at the accident site {seven lift holes plus the presumed
ignition of two bags at the blast lift hole) are consistent with
the June 22, 1993, loading pattern.
ROA's contention that the bags discovered by Batchelder were
in intact lift holes indicating underbreak (lift with intact lift
holes) that was not present at the accident site is equally
unconvincing. Luzik's accident scene photographs depict pyrodex
concealed under caprock. Given the 40 misfires found after the
fatal accident, it is apparent that many of the misfires remained
in intact lift holes on the surface. ROA's assertion that the
entire June 22, 1993, bench lifted with intact lift holes is
speculative and unsupported by the facts.

5

Ex . R-10 is a diagram prepared by Kelty depicting the
accident bench as the June 22, 1993, blast site showing the
location of the 14 misfired pyrodex bags and a loading pattern of
every fourth hole corresponding tq 11 (the] holes loaded in 6/93. 11
This diagram was given to Inspector Fowler by ROA Engineer
Goldsmith who obtained it from Murray .
(Tr.I at 827-28). This
exhibit was marked for identification on January 12 , 1995, at
which time ROA 1 s counsel requested postponement of admission
until Murray could authenticate the document.
(Tr.I at 829-30) .
Murray authenticated the exhibit on April 27, 1995.
{Tr.II 65657, 663-66). However, Ex. R-10 was never formally admitted.

1941

Finally, an admission is any oral or written statement,
or conduct, of a party, or his representative, which is
incorisistent with respect to the claim of that party with
respect to some fact relevant to the issues at trial.
Jerome Prince, Richardson On Evidence, § 218 (10th ed. 1973).
Admissions are entitled to great weight if they were made
understandably and deliberately; if they are of pure fact within
the knowledge of the party; if they were made under conditions
and circumstances conducive to veracity; and if they are not
overborne by other facts in evidence. Id. at § 229.
ROA 1 s May 25, 1994, accident report finding that Bassett's
fatality occurred at the site of the June 22, 1993, misfires is a
probative admission worthy of great weight. This finding was
based on ROA's own blasting reports as well as facts personally
known to ROA blasting perso~~el. This finding is presumptively
truthful because ROA would have no reason to lie given this
admission's damaging nature. As a final matter, this admission
is supported by the accident investigators' observations of the
two misfires near Bassett's body as well as the 14 additional
misfires subsequently found by ROA nearby in seven lift holes.
ROA now seeks to distance itself from the admissions made in
its initial May 25, 1994, accident report. Thus, ROA has issued
a "revised" February 17, 1995, accident report in which ROA
attempts to move the fatal accident site from the June 22, 1993,
blast location to some other unspecified location in the U-13
section of the Smith Quarry, based on blasting reports that no
longer exist for "possible pyrodex shots" that might have
occurred. (Ex. C-10). ROA ' s revised accident report is
self-serving, speculative, undocumented, and of little probative
value .
(See Exs. R-8, C-10 at p.4; and n.4, supra) . It is also
noteworthy this revised accident report was first provided to
MSHA on February 27, 1995, more ·than one month after ·t lle initial
trial phase in these proceedings . (Tr . 561-62).
While I am mindful that MSHA's investigation revealed the
accident bench is 10 feet shorter in width than the June 22,
1993, bench, the accident bench is only two feet shorter,

1942

35 feet as compared to 37 feet, in depth.
(Tr . I at 685-87).
With respect to the relatively small difference in depth, Murray
conceded on cross-examination the dimensions of benches change
slightly with depth.
(See Ex. R-6, p.3; Tr.II at 566). With
respect to the 10 foot variation in width, it must be noted that
the MSHA investigators had no reason to take precise measurements
as ROA officials Kelty, Murray, and Goldsmith, as well as union
representative Price Lewis, had all agreed the fatal site was the
June 22, 1993, blast . (See, e.g., Tr.I at 816-19) . Therefore,
the apparent variation in bench width is far outweighed by the
other evidence of record. Thus, the Secretary has established
the June 22, 1993, blast site was the scene of Bassett's May 2 0 ,
1994, fatality.
(See Ex . R-8, p.2 ) .
c.

The Applicable Significant and Substantial
and Unwarrantable Failure Standards

A violation is properly designated as significant and
substantial if there is "a reasonable likelihood that the hazard
contributed to will result in an event in which there is
[a serious) injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 {August 1984). In addressing the significant and
substantial question, the Commission has noted the likelihood of
injury must be evaluated in the context of an individual's
continued exposure during the course of continued normal mining
operations to the hazard created by the violation. Halfway,
Inc., 8 FMSHRC 8, 12 (August 1986); U. S. Steel Mining Co.,
7 FMSHRC 1125, 1130 (August 1985); U.S . Steel Mining Company,
6 FMSHRC 1573, 1574 (July 1984).
Here, continued normal mining operations involved the
routine channel burning process. I t is evident, as illustrated
by the tragic events of this case, that the hazard contributed to
by the alleged violations, i . e., a flame in close proximity Lo
misfires, resulted in a fatal event, i.e., an explosion.
Consequently, the alleged violations in these proceedings, if
established by the Secretary, were ' properly characterized as
significant and substantial in nature.

194 3

Unwarrantable failure is "aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to
a violation of the Act." Emery Mining Corporation; 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988) . In distinguishing aggravated conduct
from ordinary negligence, in Youghiogheny & Ohio the Commission
stated:
We stated that whereas [ordinary] negligence is conduct
that is 'inadvertent,' 'thoughtless,' or 'inattentive,'
unwarrantable conduct is conduct that is described as
'not justifiable' or 'inexcusable.' Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more than ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
9 FMSHRC at 2010.
Ultimate Findings and Conclusions
In addressing the matters in issue, there is one relevant
and crucial fact concerning the quarry process. Blasting
material is always placed in or near the first and last lift
hole, as well as near the rear of all loaded lift holes, to
ensure separation of the bench from the granite formation. The
channel burner operator tracks the placement of the previously
positioned blasting material when he torches the sides and rear
of the next lower bench. Consequently, it is of paramount
importance to make every reasonable effort to discover and remove
all potential misfires in order to minimize, if not avoid, the
catastrophic events that occurred in this case. If the likelihood
of misfired pyrodex was apparent, but overlooked or ignored, the
Secretary must prevail.
ROA, in its brief, argues that negligence is not relevant to
the question of fact of the violation. Therefore, ROA asserts
•substantial errors of law" were committed when the Court stated
at trial that a fundamental issue in these proceedings was
whether ROA knew or should have known misfires were present at

1944

the accident site. 6 (ROA br. at p.8, n.2). ROA misses the
point. Although operators are strictly liable for their
violative conduct, the requisite precautions necessary to satisfy
the mandatory safety standards pertaining to post-blast hazards
are dependent upon whether there were any signs of potential
misfires at the blast site. ROA's apparent failure to take any
meaningful action to find additional misfires after four misfires
were discovered is material to the fact of occurrence of each of
the cited standards, i.e., inadequate examination for misfires,
resumption of work in a blast site, open flames near explosive
material, and, inadequate training.
a. Citation No. 4282251
30 C.F.R. § 56.6311{b)
As a result of MSHA's accident investigation, ROA was
issued 104 (d) (1 ) Citation No. 4282251 for an alleged violation
of the mandatory safety standard in section 56.63ll(b), 30 C.F.R.
§ 56. 6311 (b ) .
S·e ction 56 : 6311 provides:
§

56.6311

Handling of misfires

(a) Faces and muck piles shall be examined for misfires
after each blasting operation.

ROA also contends the Court interfered with its right t o
present its case because the Court refused to allow "relevant
cross-examination intended to rebut MSHA's case."
(ROA br. at
p.8, n.2). While the extensive eight day transcript in this
proceeding reflects ROA was given every opportunity to present
its case, this allegation must be briefly addressed. As stated
on the record, ROA 1 s right to present its case must be balanced
by the Court's responsibility to regulate the course of the
hearing under Commission Rule 55, ,29 C.F.R. § 2700.55, in order
to ensure a fair and accurate record.
(See Tr.I at 970-75; see
also Tr.I at 963, Tr.II at 247). In this regard, the Court
stated, although it "repeatedly permitted the [contestant) to
pursue lines of questioning [it) deem[ed] to be irrelevant, there
comes a time when the Court must limit the cross-examination to
issues that are pertinent to this proceedin~."
(Tr.I at 972-73 ) .
6

1945

(b) Only work necessary to remove a misfire and protect
the safety of miners engaged in the removal shall be
permitted in the affected area until the misfire is
disposed of in a safe manner.
(c) When a misfire cannot . be disposed of safely, each
approach to the area affected by the misfire shall be
posted with a warning sign at a conspicuous location to
prohibit entry, and the condition shall be reported
immediately to mine management.

(d) Misfires occurring during the shift shall be
reported to mine management not later than the end of
the shift.
ROA argues that it properly disposed of the four misfired
bags of pyrodex found by Batchelder and noted by Kelty on the
June 22, 1993, blasting report. Consequently, ROA asserts the
Secretary has failed to demonstrate a violation of this cited
mandatory standard. However, this mandatory standard, when read
in its entirety and in conjunction with subsection (a), requires
adeg.uate post-blast inspection procedures for the purpose of
finding and disposing of misfires. Surely, a perfunctory
post-blast inspection that results in the discovery and proper
disposal of one misfire, while overlooking numerous other
misfires, would not satisfy this mandatory safety standard.
In applying the provisions of section 56.6311, it is
important to note the Commission has recognized that mandatory
safety standards must be broadly adaptable t~ .. a myriad
of circumstances. Kerr McGee Corp., 3 FMSHRC 2496, 2497
(November 1981). Consequently, resolution of the fact of
occurrence issue requires an analysis of whether an adequate
post-blast granite g.uarry inspection occurred. Thus, . the
adequacy of ROA's efforts to find and remove misfires at the
June 22, 1993, shot must be viewed in the context of
distinguishing granite quarry operations from blasts at muck
piles or blasts for the purpose of extracting crushed stone.
(Tr.II at 15-16).
ROA's assertion that the plain meaning of section 56.6306(g)
"clearly requires a single post blast examination" for granite
quarry operations is mindless, and, inconsistent with ROA's

1946

.

.

,

proposed findings and conclusions.
(ROA br. at 19). Granite
quarrying involves the removal, during an approximate ten day
period, of multi-ton benches with potential explosives concealed
in the middle and rear of lift holes. Even ROA, in its findings
and conclusions, admits the post-blast inspection period
consists of a series of examinations by powdermen and quarrymen
for. misfires, just as they examined the face, as new stone is
exposed after each line in the bench is toppled and removed
during the ten day bench removal period.
(See ROA Proposed
Findings at p.4, Finding Nos. 24, 30, and 31; Tr.II at 15-16).
Thus, Batchelder's discovery, seven to ten days after the
June 22, 1993, shot, when the face of the bench was retreating as
each slab line was toppled by the front-end loader and hoisted by
the derrick operator, occurred during the post-blast inspection
period.
Having determined ROA had an obligation to seek and remove
misfires throughout the bench removal process, we turn to the
dispositive question of whether ROA knew or should have known,
through the exercise of reasonable prudence, of the undisputed
systematic incomplete ignition (40 unexploded bags) of its nonroutine, experimental pyrodex shots performed from February
through July 1993. 7 Assuming, arguendo, that ROA had no cause
for concern after viewing and examining the pyrodex blasted
benches prior to Batchelder's discovery, ROA certainly was on
notice one week after the June 22, 1993, blast when four pyrodex
misfires were noted by Kelty .
To determine the significance of these four misfires, it is
helpful to revisit the pyrodex blasting procedures. These
procedures called for sequential ignition of spaced bags of
pyrodex, without any connecting ignition sources, from bags with
electric squibs placed in the mouth of lift holes. Batchelder,
in a written statement, reported he did not find any electric
matches or squibs in the bags he discovered during the removal of
the June 22, 1993, bench. Thus, i~ is reasonable to assume that

7

ROA objects to the characterization of these five
documented (by blasting reports) pyrodex shots as non-routine or
experimental. However, these blasts are the only documented
production uses of pyrodex by ROA in its 90 year history . (See
Tr.I at 592-94).
1947

these bags were not front lift hole bags. Therefore, they could
have come from the center of the hole if they were from four
separate holes. This would reflect eight additional misfires
{two bags in the rear of each of these four holes) .
Alternatively, the four discovered bags could have come from
the rear of two holes . The failure of these two pair of rear
bags to be ignited by the middle bags should have alerted a
reasonably prudent person familiar with pyrodex blasting of a
potential for systematic failure of rear bag ignition as well as
a possible failure of middle bag ignition.
Thus, it is clear that the discovery of four pyrodex
misfires either ensured the existence of additional misfires, or,
at the very least, was a significant indication of the potential
for a systematic failure of rear bag ignition. With respect to
washing of lift holes, ROA failed to call Kelty or Reynolds to
testify regarding whether they had washed down the lift holes.
In any event, even ROA expert witness Chapman Young opined that
washing holes after bags had been found is not an adequate
response when misfires are suspected but the exact location of
the misfires is unknown. In such instances, Young stated it is
prudent to "probe [the holes] in some fashion to investigate
them" if the misfire locations are unknown.
(Tr.II 972-73).
In the absence of any meaningful efforts to search for and
remove additional misfires prior to Bassett's death, ROA failed
to perform the "work necessary to remove misfires" as required by
section 56.63ll(b). The Secretary, therefore, has established
the fact of occurrence of the cited significant and substantial
violation.
With respect to the question of unwarrantable failure, it is
important to note any potential misfires would not harmlessly
remain under tons of rock. On the contrary, these misfires
would be exposed on the surface as the bench is removed.
Significantly, 40 misfired bags .were found after Bassett's death.
Kelty 1 s failure to take any meaningful action to probe caprock in
search of the apparent likelihood of additional misfires,
particularly in view of the channel burning quarrying process,
evidenced a callous disregard for the hazards associated
with misfires in the presence torch flames. Such conduct is
imputable to ROA and clearly constitutes the requisite aggravated
conduct to sustain the Secretary's unwarrantable failure charge.

1948

See Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-98
(February 1991).
Finally, ROA's attempt to mitigate its negligence by
asserting Bassett did not adequately clean and check the vicinity
of the accident prior to channel burning is unavailing.
(See,
e.g., Tr.II at 893-94). In this regard, the Commission has
stated that a requirement that employees work cautiously "does
not lessen the responsibility of operators under the Mine Act, to
prevent unsafe conditions." Eagle Nest Incorporated, 14 FMSHRC
1119 (July 1992).
Accordingly, 104(d) (1) Citation No. 4282251 is affirmed.
Given the large size of the operator, the extremely high degree
of negligence, the grave consequences of the violation, and, the
absence of any significant mitigating factors, the maximum civil
penalty of $50,000 is assessed for Citation No. 4282251.
b. Order No. 4282255
30 C.F.R. § 56.6306(bl
The accident investigation resulted in the issuance
of 104(d) (1) Order No. 4282255 for an alleged significant
and substantial violation of section 56.6306(g), 30 C.F.R .
§ 56.6306(9).
The effective date of this mandatory standard was
January 31, 1994. 58 Fed. Reg. 69596 (1993). Section 56.6306(g)
provides:
§

56 .6 306

Loading and blasting

* * * * * *
(g) No work shall resume in the blast area until a
post-blast examination addressing potential blast-·
related hazards has been conducted by a person having
abilities and experience tha~ fully qualify the person
to perform the duty assigned (emphasis added) .
The violation of section 56.6311 for failing to adequately
perform a post-blast inspection and remove misfires is
distinguishable from a violation of 56.6306(g). Section 56.6311
concerns creating a hazardous condition by failing to adequately
search for and remove misfires. Section 56.6306(g) concerns

1949

exposing personnel to t.he hazardous condition created by the
violation of 56.6311. Basset t would not have died had he not
resumed work on May 20, 1994, at the June 22, 1993, U-13 blast
site.
ROA argues that Order No. 4282255 must be vacated because it
is an impermissible retroactive application of a standard that
became effective at least seven months after ROA's last pyrodex
shot in July 1993. In response, the Secretary asserts the cited
violation occurred on May 20, 1994, when Bassett was assigned to
continue channel burning operations in the absence of an adequate
post-blast examination that addressed potential blasting hazards.
The essence of ROA's contention is that the resumption of
work prohibition in potentially unsafe blasting areas does not
apply to areas that were blasted prior to January, 31, 1994, the
effective date of section 56.6306. The limited applicability of
this important mandatory standard would result in the anomalous
situation where a channel burner operator's life could be put at
risk with impunity simply because of the date of the hazardous
misfire. Such an interpretation cannot be reconciled with the
intent of the mandatory safety standard.
In addition, ROA argues that it already resumed work at the
blast site when it continued to quarry the June 22, 1993, bench.
However, the concept of resumption of work is a continuing
process. An operator cannot escape liability under section
56.6306(g) simply because it "resumed work" prior to the
implementation of this standard.
Nor is ROA prejudiced by the obligation to ensure a safe
workplace, particularly one in which torches are used near
potential misfires. Rather, ROA is responsible for knowing about
and implementing this mandatory safety precaution as of :i.ts
effective date on January 31, 1994. Thus, when ROA assigned
Bassett to channel burn on May 2,0, 1994, it did so at its own
risk. Accordingly, 104(d) (l) Order No. 4282255 is affirmed.
In view of the extremely high negligence and serious gravity
associated with this violation as discussed above, a civil
penalty of $40,000 is imposed for violation of this mandatory
safety standard.

1950

c. Order No. 4282256
30 C.F.R. § 56.6904

As a result of Bassett's fatality, ROA was cited for
violation of section 56.6904, 30 C.F.R. § 56.6904. This safety
sta~dard provides:
I 56.6904

Smoke and open flames

Smoking and use of open flames shall not be permitted
within 50 feet of explosive material except when
separated by permanent noncombustible barriers. This
standard does not apply to devices designed to ignite
safety fuse or to heating devices which do not create a
fire or explosion hazard.
ROA argues the application of this standard requires actual
knowledge of ~ the location and existence of explosive
material.
(ROA br. at 26} It is clear this mandatory standard
requires actual knowledge of the location of the explosive
material because it prohibits conduct, i.e., use of an open
flame, within a defined 50 foot area. It is also clear that ROA
had actual knowledge of the exact location of the pyrodex
explosive material by lift hole number, and placement location
within each loaded lift hole. In fact, ROA's blasting reports
were "road maps" documenting the location of each pyrodex bag.
Finally, it is evident that ROA had actual knowledge that
the channel burner operator would be burning in close proximity
to the area where pyrodex bags had been placed at the rear of
lift holes. In fact, ROA 1 s own witness, channel burner operator
David Gomo, admitted the greatest danger is channel burning the
rear channel, which intersects the previously loaded lift holes,
because pyrodex bags were always placed near the back of these
holes to ensure bench separation in the rear.
(Tr.II at 832-34) .

.

Having actual knowledge of the placement of this explosive
material and the fact that a torch flame would ultimately be used
within several feet of its placement, ROA now seeks to escape
liability because it ignored the signs of a potential systematic
ignition failure in the rear of the lift holes. However, the
misfires, discovered by Batchelder and noted by Kelty, provided
ROA with constructive knowledge of the likelihood of the

1951

continued existence of the loaded explosive material . Thus,
ROA's actual knowledge of the location of the subject explosives
and the use of torch flames nearby, coupled with it·s constructive
knowledge of the explosive's continued existence provides a basis
for liability under section 56.6904 .
. ·. Simply put, having closed its eyes to this potentially
extremely hazardous condition, ROA cannot hide behind its lack of
awareness. Accordingly, Order No. 4282256 is affirmed. The
extremely high negligence and serious gravity associated with
this violation warrants the imposition of a $40,000 civil
penalty.
d. Order No. 4282257
30 C.F.R. § 56.6300(al
Finally, ROA was cited for a violation of the mandatory
standard in section 56.6300(a), 30 C.F.R. § S6.6300(a), which
provides:
§

56.6300(a) Control of blasting operations

(a ) Only persons trained and experienced in
the handling and use of explosive material
shall direct blasting operations and related
activities.

(b) Trainees and inexperienced persons shall
work only in the immediate presence of
persons trained and experienced in the
handling and use of explosive material
(emphasis added) .
As a threshold matter, ROA seeks to have it both ways. ~ On
the one hand, ROA argues that propellant explosives such as
pyrodex should not be governed ~y Part 56 because they are
different from detonating explosives. On the other hand, ROA
asserts Kelty and Reynolds' experience with detonating explosives
qualifies them to use propellant explosives. Obviously, the
•experienced in the handling and use of explosive material"
language contained in section 56.6000(a) must not be broadly
construed. Rather, the standard requires blasting personnel to
be trained and experienced in the particular explosive being

1 952

.•

··:

used. One need look no further than ROA's 26 percent June 22,
1993, misfire rate to conclude that Kelty and Reynolds were not
properly trained in the use of pyrodex.
Significantly, in addition to requiring expertise in
ttblasting operations", the 56.6000(a) standard also requires
training in "related activities" such as post-blast inspections
a nd misfire removal. Kelty's failure to take any meaningful
action to determine if other misfires occurred after the four
bags were found by Batchelder, given the sequential ignition
process, alone establishes inadequate training in "related" postblast activities . Consequently, the evidence clearly supports
the fact of occurrence of a significant and substantial violation
of the cited mandatory safety standard .
With respect to whether this training violation is
attributaple to ROA's unwarrantable failure, ROA blames its
numerous misfires on the instructions provided to it by Barrett
of the Hodgdon Powder Company during his four test shots in 1986
and one test shot in 1987. For example, ROA geophysics expert,
Chapman Young, maintains Barrett's spaced loading procedure was
flawed because microscopic moisture in a lift hole would prevent
sequential ignition. Consequently, ROA argues Barrett did not
adequately warn it about the effects of moisture on the ignition
process. In contrast, Barrett attributes the systematic ignition
failure to ROA's improper use of stemming to pressurize the
holes.
Resolution of whether Barrett's pyrodex loading procedure
was flawed is unnecessary for disposition of the unwarrantable
failure issue. Regardless of the efficacy of Barrett's
instructions, there is evidence that Barrett's instructions were
not followed. Inspector Fowler testified that he questioned both
Kelty and Reynolds in the presence of Murray about whether the
June 22, 1993, lift holes were pressurized . Neither Kelty nor
Reynolds recal l ed pressurizing the holes.
(Tr . I at 588- 89) .
Moreover, it is not clear whether Kelty or Reynolds were
trained by Barrett . Barrett did not recall ever meeting them.
Neither Kelty nor Reynolds testified. What is clear is that
ROA personnel received no meaningful training in the use of
pyrodex during the approximate six year period between Barrett's
last 1987 test shot and ROA's use of pyrodex beginning in

1953

February 1993 .. ROA seeks to minimize this six year hiatus in
pyrodex training as unnecessary "refresher training." (Tr.II at
346; ROA br. at p.15). I view this six year lack of interim
training as ·evidence of an inexcusable and cavalier use of
pyrodex explosives by inexperienced and inadequately trained
individuals.
Finally, Kelty ' s failure to order any meaningful searches
for additional rnisf ires after four pyrodex bags were found during
the bench removal process, given the separated charge sequential
ignition blasting procedure, is further evidence of a grievous
lack of training justifying the Secretary's unwarrantable
failure charge. Significantly, despite the efficacy of Barrett's
loading procedure, Bassett's death could have been prevented if
post-blast inspection procedures had been competently conducted.
Accordingly, 104 (d} (l) Order No. 4282257 is affirmed. The
extremely high negligence exhibited by ROA's failure to properly
train its blasting personnel in the use of pyrodex and the
significance of sequential misfires, as well as the serious
gravity that resulted from this lack of training, justifies the
imposition of the maximum statutory - ~ivil penalty of $50,000.

ORPER

In view of the above, the Secretary's motion to vacate
104(d ) (1) Order Nos. 4282252, 4282253, 4282254 and 4282258
IS GRANTED. Consequently, Rock of Age's contests in related
Docket Nos. YORK 94-77-RM, YORK 94-78-RM, YORK 94-79-RM and
YORK 94-83-RM, ARE GRANTED.
IT IS ORDERED that 104(d) (1) Citation No. 4282251, and,
104(d) (1) Order Nos. 4282255, 4282256 and 4282257 ARE AFFIRMED.
Consequently, Rock of Ages Corporation's contests in .related
Docket Nos. YORK 94-76-RM, YORK 94-80-RM, YORK 94-81-RM and
YORK 94-82-RM, ARE DENIED.

195 4

I T IS FURTHER ORDERED that Rock of Ages Corporation pay a
total civil penalty of $180,000 within 30 days of the date of
t his decision in satisfaction of the 104(d) (1) Citation and
Or ders affirmed herein . Upon timely r eceipt o f payment, the
civ i l penalty matter in Docket No. York 95-55-M IS DISMISSED.

Jerold Feldman
Administrative Law J udge

Distribution:
Henry Chajet, Esq., Patton Boggs, L.L . P., 2550 M Str.eet, N.W.,
Washington, D. C., 20037-1350 (Certified Mail)
M. Shane Edgington, Esq., Patton Boggs, L.L.P . , 1660 Lincoln
Street, Suite 1975 , Denver, CO 80264 (Certified Mail}
David L. Baskin, Esq . , Office of the Solicitor, U.S. Department
of Labor, One Congress Street, 11th Floor, P.O. Box 8396 ,
Boston, MA 02114 (Certified Mail )
/rb

19 55

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, co 80204-3582
303-844-3577/FAX 303-844-5268

NOV

6 1995
CONTEST PROCEEDING

ENERGY WEST MINING COMPANY,
Contestant

Docket No. WEST 92-216-R
Citation 3583185; 12/26/91

v.

Deer Creek Mine

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

Mine I.D. 42-00121

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-421
A.C. 42-00121-03763

v.
Deer Creek Mine
ENERGY WEST MINING COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Manning

These cases are before me following a remand from the
Commission .
17 FMSHRC 1313, 1319 (August 1995). The Secretary
of Labor has filed a motion to vacate these proceedings on the
grounds that the cases concern the interpretation of a safety
standard that has been superseded by a new standard. The motion
states that the new standard "takes care of the issues presented"
in the present cases.
Energy West Mining company supports the
Secretary's motion.
For good cause shown, the motion is GRANTED,
and the se proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge
1 956

Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
Thomas c. Means, Esq., CROWELL & MORING, 1001 Pennsylvania
Avenue, NW, Washington, DC 20004-2595
RWM

195 7

FEDERAL MINE SAfETY AND HEALTH UVIEW COMMISSION
1730 I( Sill£T, N.W., 6TH FlOOR
WASHTNCTON, D.C. 20006

November 8, 1995
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 95-420-M
A . C. No . 10-01907-05505

v.
Portable Crusher No . 2
BECO CONSTRUCTION COMPANY,
Respondent
ORDER ACCEPTING RESPONSE
DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
·:··

This case is before me upon a petition for assessment of a
civil penalty under section lOS(d) of the Federal Mine Safety and
Health Act of 1977 .
The parties had filed a joint motion to approve settlement for
the one violation in this case. On September 11, 1995, the parties
were ordered to submit additional information to support their
motion for the violation in this case. On October 11 , 1995, the
Solicitor submitted a letter in response to the September 11 order .
Citation No. 4343823 was issued for a violation of 30 C.F.R.

§ 56 . 1000 because the operator did not notify MSHA when the crusher
was moved.
The violation was designated non-significant and
substantial but negligence was evaluated as high.
The originally
assessed penalty was $1,000 . In the settlement motion the parties
reqUested that the citation be modified to reduce negligence from
high to moderate and that the proposed penalty be reduce to $700.
According to the parties, the operator mistakenly believed that
notification of the commencement of operations at the new location
was sufficient to comply with the standard .
In the September 11
order I accepted the parties . request to modify the citation but
expressed concern with respect to the proposed settlement amount
which I stated appeared excessive.
The Solicitor in his letter further advises that the operator
had been pr~viously cited for violation of the same standard on
August 30, 1994, which is six months prior to the violation in this
case. The original assessment for that citation was $1,000 but was
subsequently settled for a reduction of the penalty to $300 which
1958

was approved by
Administrative Law Judge Arthur Amchan.
The
Solicitor states that the .operator had promised to notify MSHA of
the opening of the mine in the future .
Finally, the Solicitor
advises that he has conferred with the operator, and requests that
the proposed settlement amount be reduced to $500 .
I accept the Solicitor's representations and conclude that the
settlement is appropriate under the six criteria set forth in
section llO(i) of the Act.
In light of the foregoing, it is ORDERED that the letter
filed October 11 is ACCEPTED as a response to the September 11
order .
It is further ORDERED that the recommended settlement for this
case be APPROVED.
It is further ORDERED that Citation No. 4343823 be MODIFIED to
reduce negligence from high to moderate.
It is further ORDERED that the operator PAY $500 within 30
days of the date of this decision .

=--___.....\~\~
Paul Merlin
Chief Administrative Law Judge
Oistribution:

(Certified Mail)

Matthew L. Vadnal, Esq . , Office of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA
98101
Merrily Munther, Esq., Penland, Munther, Boardman, 350 North 9th,
suite 500, P. o. Box 199, Boise, 1D 83701
/g').

19 5 9

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

NOV 1 3 1995
E.C.C. INTERNATIONAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent

CONTEST PROCEEDING
Docket No. SE 94-544-RM
Citation No. 4360565; 6/29/94
Buffalo China Clay Co.
Mine I.D. No. 09-01059

W. F. JACKSON CONSTRUCTION
COMPANY, INC.
Contestant
v.

CONTEST PROCEEDING

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

Buffalo China Clay Co.
Mine I.D. No. 09-01059

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

CIVIL PENALTY PROCEEDING

I

Docket No. SE 94-545-RM
Citation No. 4360567; 6/29/94

Docket No. SE 95-412-M
A.C. No. 09-01059-05503 Z46

v.

Buffalo China Clay ·Co.
W. F. JACKSON CONSTRUCTION
COMPANY INC.
Respondent
I

I

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

CIVIL PENALTY PROCEEDING
Docket No. SE 95-450-M
A. C. No. 09-01059-05507
Buffalo China Clay Co.

E.C.C. INTERNATIONAL, INC.,
Respondent

1960

DECISION

Appearances:

Ann G. Paschall, Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia,
for the Secretary of Labor;
Christopher Hagy, Esq . , Sutherland, Asbill &
Brennan, Atlanta, Georgia, and John A. Dana,
Esq., Sandersvill~, Georgia, for
W. F. Jackson Construction Company, Inc.;
Elizabeth W. Boswell, Esq., Sutherland,
Asbill & Brennan, Atlanta, Georgia, for
E.C.C. International, Inc.

Before :

Judge Amchan
Findings of Facts

E.C.C. International, Incorporated (ECCI} owns and operates
the Buffalo China. Clay Mine in Washington County , Georgia. This
is a surface mine' at which kaolin, a mineral used primarily in
coating paper is extracted. W. F. Jackson Construction Company
is employed by ECCI as an independent contractor hauling and
dumping clay overburden (Tr. 7-8).
On June 21, 1994, employees of W. F . Jackson Construction
Company were dumping overburden into the "E" dump pit at the
mine . This pit had two levels. The top level and primary dump
site was 40 to 50 feet above the slurry or sludge material into
which overburden was being dropped (Tr. 25-26).
Several drivers were operating dump trucks at this pit on
June 21. After having dumped several loads, driver Keith Johnson
backed his 50-ton Aveling Barford dump truck through the berm at
the edge of the pit. The truck overturned and fell int~ the
sludge below. Johnson was asphyxiated (Tr. 8-9, 25-26, 247 - 48 ) .
The next day this fatal accident was investigated by MSHA
r epresentatives Danny Wriston and Merle Slayton. They determined
that nothing was wrong with either the steering mechanism or the
brakes of Mr. Johnson's truck. The inspectors were told that
Johnson had not applied the brakes of his truck until he was
through the berm (Tr. 116, 121-23, 182).

...-.

196 1

:-·

The berm in the area which Mr. Johnson had backed his truck
had been destroyed in attempts to rescue him the day before
(Tr. 26) . Thus! the inspectors were unable to det·e rmine its
height. However, the berm immediately adjacent to this point was
between 30 and 48 inches in height (Tr. 95, 162, 230, Exh. G-9).
It consisted of the same clay material that was being dumped into
the pit (Tr . 26, 228).
Inspectors Wriston and Slayton asked W. F. Jackson Construction Company management personnel to see a representative
berm . They were taken to an inactive site and observed a berm
averaging 2 0 inches in height (Tr. 150-51, Exh. G-7). This
conforms to Jackson's general practice in erecting berms at
dump sites (Tr. 232-33).
On the basis of their investigation of the accident the
inspectors issued Citation No. 4360567 to W. F. Jackson
Construction Company and Citation No. 43650565 to ECCI. Both
citations allege a violation of section 104(d) (1) of the Act
and 30 C.F . R. §56.9301. Both allege that the violation was
due to "high" negligence. The citation issued to W. F. Jackson
Construction Company describes the violation as follows:
accident resulting in a fatality occurred on
June 21, 1994, when an employee, in preparation
to dump, backed the truck he was driving over the
edge of the overburden embankment. The victim
asphyxiated when the truck overturned, submerging
the cab by approximately 10 feet of sludge. An
adequate berm at the dump site was not provided
to impede overtravel and overturning.

An

The citation i~sued to ECCI was virtually identical. It
alleged further that "[t]he mine operator [ECCI] visited the
site periodically and should have known of the unsafe condition

1962

and the unsafe practice of dumping over the edge." Subsequently
a $35,000 civil penalty was proposed for W. F. Jackson and
$15,000 for ECCI 1 •
The cited standard and the issue presented in this case
Section 56.9301 provides:
Dump site restraints.
Berms, bumper blocks, safety hooks, or similar
impeding devices shall be provided at dumping
locations where there is a hazard of overtravel
or overturning.
Inspector Wriston interprets this standard in conjunction
with §56.9300, entitled Berms or Guardrails. Subsections (a)
and (b) of section 56.9300 require that berms or guardrails on
the banks of elevated roadways be at least mid-axle height of
the largest vehicle that travels the roadway.
The tires of the SO-ton Aveling-Barford dump truck driven
by Mr. Johnson are approximately 78 inches in height. Thus,
Inspector Wriston concludes that Jackson was required to maintain berms of at least 39 inches at the dump-site at which the
accident occurred (Tr. 35, 47}.
Inspector Slayton, on the other hand, does not read the
mid-axle height requirement into section 56.9301, the dump site
standard (Tr. 179). He concludes that the cited standard
requires a berm that will impede travel and that a 20-inch berm
will not do so (Tr. 150-51, 160).
W. F. Jackson, Presid~nt of W. F. Jackson Construction
Company, contends that a 20-inch clay berm will impede a SO-ton
Aveling-Barford dump truck and therefore his reliance on such
berms at dump sites satisfies the' requirements of the standard.

Apparently civil penalties of $7,500 and $5,500 have been
proposed under section llO(c) of the Act for W. F. Jackson,
President of W. F. Jackson Construction Company, and his
foreman, George Phillips.
1

1963

His opinion regarding the impediment is predicated on 37 years
experience in hauling and dumping overburden (Tr. 215) and tests
his company did after the accident using 20-inch, 30-inch and
40-inch clay berms {Tr. 244-50, 260-78).
On his first test on July 1, 1994, Mr. Jackson's son backed
a SO-ton Aveling-Barford into the 20-inch berm and "could feel
the impediment" (Tr. 244) . It took more of an effort to drive
through a 30-inch berm than a 20-inch berm (Tr. 245).
Jackson tested his berms again in August 1995 (Tr . 260,
Exh. R-3). The clay was drier than at the time of the accident
which made it more solid but provided less resistance to the
truck (Tr. 264). Nevertheless, Jackson contends that the test
establishes that a 20-inch clay berm does provide resistance to
the truck and therefore impedes its motion (Tr. 267) . While he
concedes that a 40-inch berm impedes more than a 20-inch berm,
he argues that if the driver backs up at a speed greater than
one mph he is likely to go through the 40-inch berm, as well
as the 20-inch berm (Tr . 274, 277-78) .
I conclude, on the basis of Mr. Jackson's testimony and
the fact that the Secretary did no testing of berms, that
the Secretary has not established that the berms used by
W. F. Jackson Construction Company on the day of the accident,
or used generally at this mine, do not impede the backward
motion of a dump truck driven at speeds of 1 mph or less2 •

2

Ironically, the Secretary's evidence fails to show that
the berms near the accident site were of a insufficient height
to comply with the standard, even according to its theory of
the case. Nobody knows the height of the berm through which
Mr. Johnson drove. The Secretary has not shown that the berm
adjacent to this point was not mid-axle height (Tr. 95-97, 18182) •

I feel compelled, however, to discuss the broader issue of
whether W. J . Jackson's general practice in constructing berms
complies with the standard. The parties clearly tried this issue
and I believe it would be unfair to Jackson to ignore it. If
this issue is not decided, Jackson would be subject to citation
and possibly withdrawal orders in the future if it continues to
rely on 20-inch berms .

1964

"Impede" is defined by Webster as "to interfere with the
progress of." The standard gives no indication as to the
extent to which the progress of a dump truck must be impeded.
Respondent's President views a dump site restraint
essentially as a warning to put the truck in neutral gear and
to apply the dump brakes (Tr . 249-251). MSHA, in promulgating
section 56.9301, has been unclear as to the purpose of the dump
site restraint. If it wishes to require a device that will stop
a truck under certain conditions it must be more specific. This
record establishes that even a berm which is mid-axle height will
not stop a truck that is backing up too fast.
Does Section 56.9301 re1J,Uire that dump site berms be
mid-axle height?
In Buffalo Crushed Stone. Inc., 15 FMSHRC 1641, 1644-1646
(ALJ August 1993), Judge Weisberger affirmed a section 56.9301
violation on the grounds that a dump site berm did not reach
the mid-axle point of the operator's front-end loader3 • Judge
Broderick reached a similar result in Target Construction. Inc.,
12 FMSHRC 159 {ALJ January 1990). However, I conclude that a
dump site berm need not be mid-axle height to comply with
§56.9301.
The cited regulation was promulgated on August 25, 1988,
53 Fed. Reg. 32496 et seg. In the old standard, the provision
requiring berms on elevated roadways, 30 C.F.R. §56.9022 had no
particular relationship to that requiring berms or similar
devices to prevent overturning at dumping locations (§56.9054).
There was no mid-axle height requirement in either standard.

The Commission reversed the Judge's finding that the
violation was not significant and substantial, 16 FMSHRC 2043
(October 1994 ) . The issue of whether the standard requires dump
site berms to be mid-axle height was not before the Commission on
review.
3

1965

Revisions to these rules were proposed in December 1984,
49 Fed. Reg. 49202 {December 18, 1984}. In the proposal,
Subpart H, entitled Loading, Hauling and Dumping, had five
subsections. One subsection, entitled Self-Propelled Equipment, contained the proposed §56.9203. This proposal was
identical in relevant part to the final rule which now appears
at §56. 9300 {a) and {b} .
Another subsection entitled "Dumping Locations and
Facilities" included a proposed §56.9402, entitled "Restraining
Devices." The proposal provided that, "[b)erms, bumper blocks,
safety hooks, or similar restraining devices shall be provided
at dumping locations to prevent overtravel or overturning," BNA
Mine Safety and Health Reporter, December 26, 1984 at page 306.
There is no indication in the proposed standards or the preamble
to the proposal that the mid-axle requirement applies to dumping
site restraints.
When the final rule was published, the standard for dump
site restraints appeared immediately after the provision for
berms or guardrails on roadways. The preamble does not indicate
that this was a deliberate attempt to link the two provisions or
make the mid-axle height requirement applicable to dump site ·
restraints.
The preamble to the final rule does not suggest that the
mid-axle height requirement applied to dump-site restraints .
It merely explains that the wording of the proposal had been
modified to .reflect MSHA's recognition that dump site restraints
may not prevent equipment from overturning in all cases:
MSHA agrees that these devices may not provide
an absolute barrier . . They do, however, provide
a restraint or impedance in the form of a physical
obstruction to overtravel at the dump site. The
final rule clarifies that these devices are
intended to impede overtravel or overturning.
53 Fed . Reg. 32496 at 32501.
If MSHA intended to apply the mid-axle height requirement to dump site restraints, it was required to do so more
explicitly. Given the rearrangement of the various provisions,

1966

such a relationship between the dump site provision and roadway
berm provision is not self - evident . Moreover , such an interpretation of the dump site provision is not reasonable given
t he lack of opportunity for affected operators to comment on it
during the rulemaking process4 •
Finally , ''berm" is defined in §57. 9700 as "[a] pile or mound
of material along an elevated roadway capable of moderating or
limiting the force of a vehicle in order to impede the vehicle's
passage over the bank of the roadway." A pile or mound does not
have to be mid-axle· height to constitute a "berm." Thus, this
record does not establish that a "berm" was not provided at the
location at which Keith Johnson backed over the edge of the pit.
A violation of §57 . 9301 has not been established .
CONCLUS I QN
I conclude that the Secretary has not established that a
"berm" was not provided by W. F. Jackson Construction Company
on the day of the fatal accident. I therefore vacate Citation
No. 4360567 and the proposed civil penalty5 • Since Citation
No. 4360565, issued to ECCI, is dependent on the validity of
the citation issued to Jackson, it is vacated as well.

There is no indication for example, that MSHA considered
the contention made by Jackson in this case that the mid-axle
height requirement contributes little to safety when applied to
dump sites. Similarly, there is nothing that suggests the agency
considered the possibility that the mid-axle requirement might
unduly interfere with dumping, which was also raised by Jackson.
If there were evidence that MSHA had considered these issues, I
would be obligated to defer to its resolution of the various
arguments made during the rulemaking process.
4

5

The Secretary also suggests that foreman George Phillips
failed to adequately train , supervise or discipline Keith
Johnson . The day before the fatal accident Johnson got stuck due
to improper driving and possibly backing up at an excessive speed
(Tr. 136-141). However, this allegation is not covered by the
terms of the citation. Moreover, I find that the evidence does
not establish an insufficiency of supervision.

1967

ORDER

Citation No. 4360567 and the penalty proposed therefor
are VACATED.
Citation No . 4360565 and the penalty proposed therefor
are VACATED.

~¢' {>r
11..u,!-.

\F

Arthur J. Arnchan
Administrative Law Judge
Distribution:
C. Christopher Hagy, Esq., Elizabeth W. Boswell, Esq.,
Sutherland, Asbill & Brennan, 999 Peachtree Street, N.E.,
Atlanta, GA 30309-3996 (Certified Mail)
John A. Dana, Esq., 119 West Haynes Street, P.O. Box 29,
Sandersville, GA 31082 (Certified Mail)
Ann G. Paschall, Esq., Office of the Solicitor,
U.S. Department of Labor, 1371 Peachtree Street, N.E.,
Room 339, Atlanta, GA 30367 (Certified Mail)
\lh

1968

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

NOV 2 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 95-181
A.C. No. 36-05018-04053
Cumberland Mine

CYPRUS CUMBERLAND RESOURCES
CORPORATION,
Respondent

DECISION
Appearances:

Maureen A. Russo, Esq . , Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Feldman

This matter is before me as a result of a petition for
civil penalty filed by the Secretary of Labor pursuant to
section 105 (d) of the ~ederal Mine Safety and Health Act of 1977,
30 U.S . C. § 801 et seq., (the Act). The Secretary seeks to
impose a civil penalty of $3,200 on Cyprus Cumberland Resources
Corporation (Cumberland) for 104 (d) (2) Order No. 366.8716. The
Order was isJued for an alleged significant and substantial
violation , attributable to Cumber l and's unwarrantable failure, of
the mandatory safety standard in section 75.220(a) (1), 30 C . F . R.
§ 75.220(a) (1 ) .
This standard requires operators to follow the
mine specific roof control plan developed by the operator and
approved by the Mine Safety and Health Administration (MSHA ) .

1969

This case was heard on August 8 and August 9, 199S, in
Washington , Pennsylvania. 1 The Secreta ry relied on the testimony
of MSHA Inspectors Robert Santee and William Wi l son, as well as
George Hazuza, an MSHA supervisory roof control safety and
health specialist. Cumberland called its Safety Manager ,
Gary Klinefelter, its General Manager, Charles Zabrosky, and
employees Patrick Maher and Michael Konosky. Syd Peng, Ph. D.,
also testified for the respondent as an expert witness. Dr. Peng
is the Chairman of West Virginia University's Mining and
.Engineering Department. Cumberland stipulated it is a large
operator that is affiliated with the Cyprus Amax Coal Company.
Cumberland also stipulated that it is subject to the jurisdiction
of the Act, and, that the proposed penalty will not adversely
affect its ability to continue in business. The parties'
post-hearing filings are of record.

Fi ndings of Pact

This case involves the tailgate entry of the proposed SA
longwall panel at the Cumberland Mine. The SA panel was to be
the thirty-first panel Cumberland had mined since it started
longwall mining in 1980. The SA longwall panel is located
adjacent and parallel to the 4A longwall panel , the panel being
mined on August 2, 1994, when 104(d) (2) Order No . 3668716 was
issued . As illustrated by the mine map, the initial faces of the
4A and SA panels were slightly offset, with the start of the SA
panel located outby the start of the 4A panel.
(Exs. P-2, R-17).
This offset was unusual in that the initial face of a subsequent
panel is ordinarily even with the start of the previous panel.
Adjacent longwall panels are separated by three development
entries. Thus, the SA and 4A panels were s eparat ed by entry
Nos. 1, 2 and 3. The No. 1 entry, the entry closest to the SA
panel, was to serve as the SA tailgate entry once mining began on
the SA longwall . The No. 2 entry was the track entry for the
active 4A panel. The No . 3 entr}r was the 4A headgate that
contained the 4A belt conveyor.

All transcript references in this decision relate to
testimony provided on August 8, 199S.
1

1970

Although the Cumberland Mine roof control plan had undergone
revisions, the longstanding operative provisions pertinent to
this proceeding provide:
SAFETY PROCEDURES FOR LONGWALL TAILGATE TRAVELWAYS
A. 1. Typical tailgate roof support will be installed
in the longwall tailgate as shown by drawings Nos. 7,
8, or 9. These plans provide a safe travelway out of
the longwall section through the tailgate side.
2. Typical tailgate roof support will be
installed in the entire length of the tailgate entry of
the first longwall panel prior to any mining.
To control frontal abutment stresses, typical
tailgate support will be installed a minimum of 50 feet
in advance of the longwall face in the proposed
tailgate entry of each subsequent panel ... (emphasis
added) . 2 (Ex. P-4, p. 14).
3.

Considering the roof control plan in its entirety, it
is clear the term "typical tailgate support" referenced in
Paragraph A3 means the installation of a single row of cribs in
addition to routine roof bolting.
(Tr. 60-61, 96; Ex. P-4 at
38A-41A) . Consistent with the plan's provisions, Cumberland Mine
entries were routinely supported with cribs.
(Tr . 56, 87-88,
199, Ex. R-13). With respect to the cited area, Safety Manager
Klinefelter admitted he was aware the roof control plan required
the installation of cribs in the proposed tailgate entry 50 feet
in advance of the active face.
(Tr . 238) . Although this area
was not supported by cribs, extra supplemental support in the
form of 20 super roof bolts and T2 channels were installed at the
intersection of the proposed SA longwall and the proposed
longwall tailgate.
(Tr. 91, 214; Exs. P-4, R-13) .
On August 2, 1994, Inspector Santee traveled the track
haulage to the SA section. Santee was accompanied by

2

There are two exceptions to the provisions of
Paragraph A3 of the roof control plan. These exceptions are
not applicable in this proceeding .
(Tr . 61).

1971

Mike Konosky, Cumberland's safety escort, and Jerry Mccombs, a
union local president. At that time, the face of the proposed
SA panel was approximately 4,000 feet inby the actively
retreating 4A longwall face.
(Tr. 37, 67-68, 130; Exs. P- 1, 2,
3). The face of the 4A panel had been adjacent to the initial
proposed SA face on or about May 6, 1994.
(Tr . 37, 67; Ex. P-1,
2/

3) •

Upon arriving at the SA section, Santee took ventilation
readings prior to proceeding towards the proposed SA tailgate
section . As Santee approached this entry near the SA face, he
noticed that cribs had not been installed in accordance with the
approved roof control plan. Consequently, Santee issued
104(d ) (2) Order No. 3668716 for an alleged violation of section
7S.220(a) (1) . The following condition was noted in the Order:
The operator failed to install the required typical
tailgate support, in the proposed tailgate of the
future SA longwall section, for a distance of S9 feet
outby the face . The present 4A (Ol2 ) longwall face,
according to the mine map as well as information
o btained from Company officials, was mined on or about
May 6, 1994 . The operator's roof control plan (Page
14 ) , "Safety procedures for longwall tailgate
travelways," Item A3 requires, "to control frontal
abutment stresses, typical tailgate support will be
installed a minimum of 50 feet in advance of the
longwall face in the proposed tailgate entry of each
subsequent panel." This area is required to be
pre-shifted as well as traveled weekly by certified
persons who are acting as agents of the operator.
There were 5 violations issued during the last
inspection period from April 1, 1994, to June 30, 1994,
of 30 C.F.R. § 75.220 (a} (1 ) .
(Tr. 40; Ex. P-1)
Santee modified Order No. 3668716 on August 4, 1994, to
reflect cribbing was not install~d 49 feet rather than S9 feet
outby the SA face.
Santee testified he recalculated this
distance by measuring outby the SA face rather than using a
crosscut intersection inby that existed as a result of the offset
configuration of the 4A and SA panels.
(Tr . 38-39}. Santee also
terminated the Order on August 4, 1994, after a single row of
cribs was installed in the SA tailgate outby the SA panel.

19 72

(Tr. 38-39, 94-95). Santee did not require the installation of
cribs in the No. 1 entry inby the proposed face to abate the
Order.
(Tr. 201-02; Ex. R-13).
On balance, the testimony reflects the uncribbed roof cited
by Santee was not significantly compromised by the abutment
pressures from the 4A panel. Cumberland witnesses Klinefelter,
Zabrosky, Konosky and Peng testified they did not observe any
signs of roof stress or deterioration upon inspection of the area
in the days and months following Santee's Order. Even Santee
conceded he did not consider the roof condition to be bad in that
it did not pose any danger.
(Tr. 78-79).
Despite roof control provisions to the contrary,
Klinefelter testified Cumberland unilaterally decided to stop
cribbing the first 50 feet of the tailgate entry outby the
proposed face for more than half of its developed longwall
panels.
(Tr . 203-04, 223; Ex. R-17). This practice began in
1988 to improve ventilation to the active longwall faces by
preventing loss of air to those faces .
(Tr. 203, 223, 238) .
Cumberland explained why it decided not to crib the subject
tailgate areas during the last seven years. At the beginning of
each longwall panel air is directed to the face by stoppings in
entries behind the face.
{Tr. 203-04, Exs. R-14, R-15).
In the
initial stages of longwall mining, it becomes difficult to
maintain proper airflow to the face because of the void left by
removal of the coal.
(Tr. 86-87, 203, 208, 212). The stoppings
behind the longwall may also become compromised by roof falls as
the longwall retreats .
(Tr.213).
Prior to the initial fall in
the longwall gob, air can flow to the bleeder entries through the
stopping location behind the gob rather than flowing across the
face into the tailgate.
(Tr. 86-87, 227-28). This can cause
high methane concentration in the tailgate or ac the face, or,
make it difficult to control respirable dust on the face.
(Tr.
87, 208, 227) .
Cumberland concluded its ventilation problems could be
remedied if the area consisting of the first 50 feet of the
proposed tailgate entry was not cribbed.
(Tr. 213-14, 227). A
lack of cribs would cause the area to fall at an earlier time
after mining of the proposed panel began. This would enable
Cumberland to maintain ventilation on the face by adding

1973

..
.:

:.:~

resistance and restricting airflow through the gob.
{Tr. 212-14,
229). Klinefelter testified Cumberland's approved ventilation
p lan recognizes the problems associated with longwall start up
and permits Cumberland to mine 100 feet before it must satisfy
the full ventilation requirements for the face .
(Tr. 208-09) .

Further Findings and Conc lus i o n s

A. Fact of Occurrence
Evidence is immaterial if it is relevant to establish or
disprove a proposition that is neither in issue or probative of a
fact in issue. Jerome Prince, Richardson On Evidence, § 4
(10th ed. 1973 ) . The propriety, as a ventilation measure, of
Cumberland's lack of cribbing of the first SO feet of each of its
proposed tailgate entries is not in issue. Nor is it probative
of the issue of whether Cumberland's failure to crib constitutes
a failure to follow its approved roof control plan in violation
of section 75 . 220(a) (1). Thus, Cumberland's reasons for not
cribbing are not material with respect to the issue of the fact
of occurrence of the cited violation . Similarly, as discussed
below, having elected not to inform MSHA of its decision to
modify its tailgate cribbing procedures, the rationale for its
unilateral modification is not a material mitigating factor with
respect to the issue of unwarrantable failure.
Generally, the Secretary's interpretation of a mandatory
safety requirement is afforded weight when it is reasonable and
consistent with statutory intent. Wester n Fuels - Utah, Inc., 11
FMSHRC 278, 284 (March 1989) . Here, the Secretary contends
Paragraph A3 of Cumberland's roof control plan requires tailgate
cribbing in the proposed tailgate SO feet in advance of the
adjacent active longwall face.
In response, Cumberland argues
the roof control language in Paragraphs A2 and A3 is ambiguous .
Cumberland points to Paragraph A2 which requires the
"entire length" of the tailgate entry of the "first longwall
panel" to be cribbed prior to the initiation of mining in 1980.
By comparison, Paragraph A3, which applies to all subsequent
longwall panels, does specify the "entire length" of e ach
p roposed tailgate . Rather, Paragraph A3 states :

1974

To control frontal abutment stresses, typical tailgate
support will be installed a minimum of 50 feet in
advance of the longwall face in the proposed tailgate
of each subsequent panel ... (emphasis added)
Cumberland argues the phrase "a minimum of 50 feet in advance" is
ambiguous because it is unclear whether it requires typical
tailgate support 50 feet inby or outby the proposed panel or 50
feet ahead of the advancing face.
As a threshold matter, it is significant that Cumberland did
not view these roof control provisions as ambiguous from 1980
through 1988 when it adhered to proposed tailgate cribbing
50 feet in advance of the active face. Moreover, taking
Cumberland at its word, the departure from this procedure in 1988
was motivated by Cumberland's ventilation concerns, rather than
its realization of the purported ambiguity in the roof control
provisions .
Finally, although resolution of ambiguity requires
clarification, Cumberland never sought guidance from MSHA.
Notwithstanding the fact that Cumberland's claimed confusion
is belied by its own past conduct and testimony, the plain
language of Paragraph A3 concerns the "control of frontal
abutment stresses." Dr. Peng testified that abutment pressure is
caused by the removal of coal from the retreating longwall when
the overhanging unsupported gob transfers pressure to the edges
of the gob, both in front of the advancing face and to the sides .
(Tr. 278). Although Peng opined that abutment pressures are
minor at the beginning of the longwall panel and increase as the
panel is mined, it is evident that "control of abutment stresses"
referenced in Paragraph A3 can only be accomplished with roof
support in advance of the active longwall.
(Tr. 286) .
It is also apparent the operative language in Paragraph A3
requiring cribbing in the "proposed tailgate entry" contemplates
roof support installation as the adjacent panel advances. For
the tailgate entry ceases to be a "proposed" entry once mining of
the proposed panel begins. Thus, when Cumberland advanced the 4A
panel when it was adjacent to the SA face on or about May 6,
1994, without supporting the proposed SA tailgate 50 feet in
advance of the active 4A panel, it did so in contravention of the
approved roof control provisions . Consequently, the Secretary

1975

has established the fact of occurrence of the cited mandatory
safety standard in section 75.220(a) (1).
B . Significant and Substantial Issue
A violation is properly designated as being significant and
substantial (S&S) in nature 11 if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to [by the violation] will result in
an injury or an illness of a reasonably serious nature." Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC 1 (January 1984) the Commission
explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of 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 [by the violation] will result in an
injury; and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious nature.
6 FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104~05
(5th Cir . 1988), aff 'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria). The question of whether any
particular violation is significant and substantial must be
viewed in the context of the continued existence of the cited
violation during the course of continued normal mining
operations.
Halfway Incorporated, 4 FMSHRC 8, 12-13 (Ja.nuary
1986) .
In applying the Mathies and Halfway criteria in this case,
identification of the particular violation that contributes to
the discrete safety hazard, i.e. roof fall, is essential.
Significantly, Santee testified Cumberland was not cited for a

19 76

violation of section 7~.202(a), 30 C.F.R . § 75.202(a), which
prohibits persons from working or traveling under unsupported
roof, because Santee did not consider the roof condition to be
bad . 3 (See Tr. 79). Therefore, Cumberland's extensive testimony
by Dr. Peng and its other witnesses that the roof area cited by
Santee was in good condition, while credited, is not dispositive
and does not preclude a significant and substantial finding in
this matter.
Rather, the subject mandatory standard in this proceeding is
section 75.220(a) (1) . This mandatory standard provides:
Each mine operator shall develop and follow a roof
control plan, approved by the [MSHA] District Manager,
that is suitable to the prevailing geological
conditions, and the mining system to be used at the
mine. Additional measures shall be taken to protect
persons if unusual hazards are encountered.
(Emphasis
added) .
Therefore, an evaluation of the likelihood of serious
injury must be accomplished by analyzing the degree of hazard
contributed to by Cumberland's longstanding failure to
"follow its roof control plan." With respect to the first
element in Mathies, as noted above, Cumberland violated
section 75.220(a) (1). With respect to the second element, the
failure to follow an approved roof control plan that is suitable
to the specific conditions at the Cumberland Mine contributes to
the danger of a roof fall. See, e.g., Jim Walter Resources, and
case cited therein, 9 FMSHRC 903, 907 (May 1987) . The fourth
element is also satisfied in that mine roofs are inherently
dangerous and roof falls are a leading cause of death in
underground mines. Consolidation Coal Company, 6 FMSHRC 34, 37
(January 1984) .

Section 75.202(a) provides:
The roof, face and ribs of areas where persons work or
travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of the
rock, face or ribs and coal or rock bursts.
3

19 77

Turning to the remaining question, the Commission has held
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., Inc., 6 FMSHRC 1834, 1836
(August 1984 ) . This third element must be viewed in the context
of Halfway to determine if there is a reasonable likelihood that
Cumberland's continued failure to crib in accordance with the
requirements of its roof control plan will result in an event,
i.e., a roof fall, that will cause serious injury .
This is no t a matter in which Cumberland, on one occasion,
inadvertently failed to crib a proposed tailgate in violation of
its roof control plan. On the contrary, Cumberland admittedly
stopped cribbing the first 50 feet outby the initial face of each
proposed tailgate since 1988 (approximately 15 tailgates) .
Moreover, but for Santee's Order, Cumberland undoubtedly would
have continued not to crib future proposed tailgates within
50 feet of their proposed longwall faces. With the exception of
the SA tailgate, all previous uncribbed tailgate areas at the
initial faces have fallen into the gob . Therefore, it is
impossible to determine the condition of these areas after they
were exposed to abutment pressures from the active adjacent
longwall panels. 4
Although no one travels the uncribbed tailgate area outby
the proposed face once mining on this face begins, Santee
testified that, during the mining of the adjacent longwall panel,
the weekly mine examiner is required to travel the uncribbed
proposed tailgate area once every seven days and pre-shift
examiners must examine this area three times each day.
(Tr . 64 65, 210-11, 248 ) . If this area is not pre-shifted, then the
on-shift examiner would be exposed.
(Tr. 64-65}.

Cumberland argues the Secretary is estopped from citing
this practice because MSHA inspectors have failed to cite this
condition since 1988. Whether inspectors previously observed
this condition is unclear . However, the lack of previous
enforcement of a mandatory safety requirement does not constitute
a defense to a violation. See U.S. Steel Mining Company, Inc . ,
15 FMSHRC 1541, 1546-47 (August 1993).
4

19 78

Under these circumstances, for several years, mine examiner
personnel were exposed to areas of roof that were intended to
rapidly collapse into the gob once mining at each proposed panel
began because these areas "lacked supplemental roof support.
These facts demonstrate there was a reasonable likelihood of a
roof fall that would result in serious or fatal injuries to mine
personnel traversing the uncribbed areas in issue. Accordingly,
the third Mathies element has been satisfied. Thus, Cumberland's
failure to crib the tailgate areas immediately outby the proposed
longwall faces was properly characterized as significant and
substantial .
C. Unwarrantable Failure
Finally, we arrive at the question of unwarrantable failure.
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the
Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected, or appropriate action"), and
"negligence'' (the failure to use such care as a reasonably
prudent and careful person would use ... characterized by
'inadvertence, ' 1 thoughtlessness,' and 1 inattention 1 11 ) • .I..d..... at
2001. Unwarrantable failure is characterized by such conduct as
"reckless disregard, 11 "intentional misconduct," 11 indifference 11 or
a "serious lack of reasonable care." .I.ct..... at 2003-04; Rochester &
Pittsburgh Coal Co . , 13 FMSHRC 189, 193-94 (February 1991) .
Resolution of whether Cumberland's unilateral disregard
of the provisions of its roof control plan manifests an
unwarrantable failure requires a review of the plan approval
process. Pursuant to section 101 of the Act, 30 U.S . C. § 811,
mandatory safety standards are promulgated through the rulemaking
process and apply to all similarly situated mines. However, such
general industry standards are frequently ineffective when
applied to mining practices or conditions unique to a particular
mine .
Consequently, Congress, in section 302 of the Act, 30 U.S.C.
§ 862, provided for MSHA to require mine operators to adopt
comprehensive plans tailored to each mine to ensure the most
effective measures of roof control . The roof control plan must

1979

be submitted by the operator for the MSHA District Manager's
approval . The plan approval process contemplates negotiations in
good faith between operators and MSHA over the plan's provisions.
Jim Walter Resources, Inc . , 9 FMSHRC at 907 .
If an agreement
cannot be reached, the parties may seek resolution of their
disputes in enforcement proceedings before this Commission.
Id.
The plan approval system would frustrate Congressional
intent if operators could selectively follow only those
provisions they like while ignoring other provisions. Such
conduct eviscerates the plan approval process, compromises
safety, and, must not be condoned.
See S & H Mining, Inc . ,
15 FMSHRC 2196, 2199 (October 1993).
If Cumberland had an
alternative method of roof control without any diminution in
safety, it should have sought MSHA's approval. Having failed
to do so, Cumberland's unabashed failure to follow its roof
control plan since 1988 constitutes intentional and inexcusable
misconduct . Such aggravated conduct supports the Secretary's
unwarrantable failure charge.
Accordingly, 104(d) (2) Order No. 3668716 is affirmed. Given
Cumberland's large operator status, its longstanding failure to
follow its roof control plan, the degree of negligence manifest
by its intentional misconduct, and, the gravity associated with a
potential roof fall, the $3,200 civil penalty proposed by the
Secretary is likewise affirmed.

ORPER

As noted above, 104(d) (2) Order No . 3668716 IS AFFIRMED .
Consequently, IT IS ORDERED that the respondent pay a total civil
penalty of $3,200 in satisfaction of the cited violation in this
matter.
Payment is to be made to the Mine Safety and Health
Administration within 30 days of the date of this decision.
Upon timely receipt of the $3,2~0 payment, Docket No. PENN 95-181
IS DISMI SSED.

_Jco~

~ Jerold Feldman

Administrative Law Judge

19 80

Distribution:
Maureen A. Russo, Esq . , Office of the Solicitor, U. S. Department
of Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre,
301 Grant Street, 20th Floor, Pittsburgh, PA 15219-1410
/rb

1981

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

NOV 2 0 1995

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-377
A.C. No. 46-04421-03721

I

v.
Amonate #31 or #32
CONSOLIDATION COAL COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-379
A. C. No . 46-04421-03722-A

v.
Amonate #31 or #31
ROBERT G. WYATT,
Employed by
CONSOLIDATION COAL COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Peti ti or.er
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-380
A.C. No. 46-04421-03723-A
Amonate #31 or #31

DANNY E. CRUTCHFIELD,
Employed by
CONSOLIDATION COAL COMPANY ,
Respondent

19 82

DECISIONS

Appearances:

Robert S. Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
David J. Hardy, Esq., John Bonham, Esq.,
Jackson and Kelly, Charleston, West Virginia;
for the Respondent Consolidation Coal Company;
Robert B. Allen, Esq., King, Allen and Arnold,
Charleston, West Virginia, for the Respondent
Robert G. Wyatt;
Ricklin Brown , Esq ., Bowles, Rice, McDavid, Graff
and Love, Charleston, West Virginia, for the
Respondent Danny E. Crutchfield.

Before:

Judge Koutras
Stat~meot

of the Proceedinss

These consolidated proceedings concern proposals for
assessment of civil penalties filed by the petitioner against
the respondents pursuant to the Federal Mine Safety and Health
Act of 1977, seeking penalty assessments for alleged violations
of certain mandatory safety standards found in Part 75, Title 30,
Code of Federal Regulations.
Docket No. WEVA 94-377 concerns two alleged violations and
proposed civil penalty assessments of $100,000, filed against the
corporate respondent Consolidation Coal Company (Consol) pursuant
to section llO (a ) of the Act.
Docket No . WEVA 94-379 concerns a civil penalty assessment
proposal of $9,000 against the individual respondent Mine Superintendent Robert G. Wyatt pursuant to section llO(c) of the Act.
Mr. Wyatt is charged as an agent of Consol with "knowingly
authorizing, ordering, or carrying, out" one of the violations
filed against Consol (Order No. 2724034).
Docket No. WEVA 94-380 concerns a civil penalty assessment
proposal of $8,000 against the individual respondent Mine
Foreman Danny E. Crutchfield pursuant to section llO(c) of

1983

the Act. Mr. Crutchfield is charged as a Consol agent with
"knowingly authorizing, ordering, or carrying out" one of the
violations filed against Consol (Order No. 2724034).
A consolidated hearing was conducted in these cases in
Beckley and Charleston, West Virginia, and the parties submitted
posthearing briefs that I have reviewed and considered in the
course of my adjudication of these matters .
Applicable Statutory and Regulatory Proyisions
1.

The Federal Mine Safety and Health Act of 1977,

30 u.s.c. § 8 01 ~ ~·
2.

Commission Rules, 3 0 C. F.R.

§ 2700.1 ~ Jie..Q.

3.
Sections llO(a) and llO(c) of the Act. Section llO(a)
provides for assessment of civil penalties against mine operators
for violation ~ of any mandatory safety or health standards, and
section llO (c) provides as follows:

Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or
fails or refuses to comply with any order issued
under this Act or any order incorporated in a final
decision issued under this Act, except an order
incorporated in a decision issued under subsection (a)
or section lOS(c}, any director. officer. or asent of
such corporation who knowingly authorized. ordered. or
carried out such violation, failure or refusal shall
be subject to the same ciyil penalties, fines, and
imprisonment that may be imposed upon a person under
subsections (a) and (d ) . (Emphasis added}
4.
An 11 agent 11 is defined in Section 3(e} of the Act
(30 U. S . C. § 802(e}) to mean 11 a~y person charged with responsibility for the operation of all or part of a coal mine or other
mine or the supervision of the miners in a coal or other mine."
S•

3 o c . F . R . 7 s . 3 3 4 ( b) ( 1 ) and 7 5 . 3 6 4 (a) ( 2) .

19 84

Issues
In Docket No. WEVA 94-377, the issues include (1) whether
Consol violated the cited mandatory safety standards, (2) whether
the violations were "significant and substantial" (S&S),
(3) whether the violations resulted from an unwarrantable failure
to comply with the cited standards; and (4) the appropriate civil
penalties to be assessed, taking into a ccount the civil penalty
assessment criteria found in section llO(I) of the Act.
In the two individual section llO(c) cases, the principal
issue is whether or not the named respondents knowingly a uthorized, ordered, or carried out the alleged violation, a nd if so,
the appropriate civil penalties that should be assessed for the
violation . Additional issues raised by the parties a re
identified and disposed of in the course of these decisions.
The parties stipulated, in relevant part, to the following
(Tr. 11-12; Exhibit ALJ-1):
l.

Consol is the corporate owner and operator
of the Amonate No. 31 Mine, and the mine
operations are subject to the jurisdiction
of the Act.

2.

In 1993, the Amonate No. 31 Mine produced
614,339 tons of coal and Consol produced
approximately 39 . 7 million tons of coal in
all of its operations.

3.

The maximum penalty which could be assessed
for the violations against Consol pursuant to
30 U.S.C. § 820(a) will not affect its ability
to remain in business.

4.

Robert G. Wyatt was employed by Consol as
Superintendent of the Affionate No . 31 Mine on
December 29, 1992, and was an "agent" of the
operator within the meaning of Section 3(e)
of the Mine Act.

5.

Danny E. Crutchfield was employed by Consol
as Mine Foreman of the Amonate No. 31 Mine on

1985

December 29, 1992, and was an. "agent ir of the
operator within the meaning of Section 3{e)
of the Mine Act.
6.

Copies of section 104(d) (1) Order Nos.· 2724034
and 2724035 may be admitted into evidence for
the purpose of establishing their issuance and
not for the purpose of establishing the accuracy
of the statements asserted therein.

7.

MSHA Inspector William Uhl, Jr., was acting in
his official capacity as an authorized representative of the Secretary of Labor when he issued
the subject orders.

8.

True copies of the orders were served upon Consol
or its agent as required by the Act.
Background

On Tuesday, December 29, 1992, at approximately 2:00 p.m.,
on the day shift, a methane explosion occurred on the
2-1/2 (MMU 015) section.
{MSHA has characterized the incident
as an "explosion," and the respondent has characterized it as
an "ignition.") Although there were no fatalities, five miners
suffered serious burns and have not returned to work.
According to MSHA's Report of Investigation (Exhibit G-2),
the min~ was ventilated by three exhausting main fans, one gob
fan, three intake shafts, and one intake drift. The Greasy Creek
shaft and Dunford shaft were utilized for both intake and return
air courses. There were four mechanized mining units on retreat
at the time of the incide~t, and coal was extracted from the
working sections by remote-controlled continuous-mining machines.
Coal was transported by shuttle cars to the section dumping
points and then carried by belt conveyor to two underground
track loadout areas. Haulage continued along the track to the
surface. The mine employed 128 underground miners and eight
surface miners. Production averaged 3,482 clean tons of coal
per 24 hours, on three shifts per day, 5 to 6 days a week. The
mine liberated approximately 3,800,000 cubic feet of methane
per 24-hour period. A regular MSHA AAA inspection was on-going
on December 29, 1992. Respondent Robert G. Wyatt was the general

19 86

mine superintendent, and respondent Danny Crutchfield was the
general mine foreman.
MSHA initiated an accident investigation on December 30,
1992, and it continued in January and February 1993. Spot
inspections were also conducted concurrently with the investigation, and several l04(a} citations, a section 104(d} (1)
citation, and several section 104(d} (1) orders were issued for
alleged violations of certain mandatory safety and health
standards. Two of the orders are the subject of these
proceedings.
Section 104(d) (1) "S&S" Order No. 2724034, March 3, 1993,
cites an alleged violation of 30 C.F.R. 75.334(b) (1), and the
cited condition or practice is described as follows:
An adequate bleeder system was not provided to

control the air passing through the worked-out
area of the 2-1/2 section, MMU 015, to continuously
dilute and move away methane-air mixtures from the
active workings and into a return aircourse. Air
measurements taken by MSHA ventilation specialists
indicated that only 2,037 cubic feet per minute of
air was passing through the bleeder regulator. This
condition was revealed during an MSHA AFB accident
investigation after a methane explosion had occurred.
Section 104 (d) (1) 11 S&S 11 Order No. 274035, March 3, 1993,
cites an alleged violation of 30 C.F.R. 75.364(a) (2), and the
cited condition or practice is described as follows:
Based on evidence obtained during this accident
investigation, it is determined that adequate
weekly examinations were not being made to determine
the effectiveness of the 2-1/2 section bleeder s·y stem .
Statements given by company officials, Bob Wyatt,
superintendent, and Danny Crutchfield, mine foreman,
were that no one was examining the bleeder regulator
and the area was inaccessible. The approved
ventilation map indicates that the back side of the
2-1/2 section, MMU 015, can be examined. This is a
contributing factor to the methane explosion which
occurred on 2-1/2 section, MMU 015, December 29, 1992.

19 87

MSHA presented the testimony of five miners who were working
when the December 29, 1992, ignition occurred. Continuous miner
operator and helper Jackson M. Whitaker_, who suffered injuries
and has a pending law suit against Consol, testified that drill
holes were used as a bleeder and he was aware of regulators on
other sections, but was not aware of other drill holes that were
used as bleeders. He stated that the roof in the gob area "was
falling good,n and that three or four pillar rooms were pulled,
but he could not see back to the drill holes at the back of the
section.
Mr . Whitaker stated that he could not recall exactly what
was going on the day of the ignition . He stated that mining
began at the No. 4 entry and the methane monitor on the miner
machine "gassed off 11 the machine when the monitor showed
1.5 percent methane . It was not common to find that much methane
on the section. Section foreman Bill Bandy came to the area and
made gas checks while waiting for an electrician, and he checked
the monitor. The problem was cleared up by the existing air and
a mechanic certified that the monitor was functioning properly.
Mine foreman Crutchfield came to the area after he was notified
of the incident.
Mr. Whitaker stated that he made methane checks after the
machine stopped and he found none. He proceeded to the No . 5
entry and timbers were installed and curtains were hung before
mining continued. He confirmed that he was in the No. 5 entry
when the explosion occurred and he had just completed mining a
lift. Before the explosion, the roof was dripping and he
observed one crack of three or four inches and it was "not out
of the ordinary." He loaded out one car and the roof started
cracking again. He backed out and decided to take one more load
with no problem. The roof "started working a little bit" and
started "acting up pretty good and dropping. Things got loud
in the gob" and the roof felt like it was going to fall and he
started to run down the No. 5 entry. He believed he would be
covered up and he looked back and saw 11 a ball of fire" coming
out of the middle of the gob in the roof that had not fallen
and he started burning and was picked up and thrown down. He
described the injuries he received . He stated that the roof
crack was "hairline" before the ignition, but that it kept
increasing.

19 88

On cross-examination, Mr. Whitaker confirmed that Foreman
Billy Bandy instructed him to make ventilation adjustments before
the explosion occurred in order to force more air t o the r eturn.
He confirmed that the check curtains at the No. 3 and 4 e ntries
were properly installed.
Mr . Whitaker stated that ten shuttle cars of coal were
loaded out of the Nos. 4 and 5 entries on December 29, prior
to the ignition. He confirmed that there were three or four
miner "gas-offs," and it was believed that something was wrong
with the miner because .1 and .2 percent methane was detected
when checked with methane detectors. He confirmed that
Mr. Bandy was not consulted about all of the "gas offs" and
that Mr. Crutchfield was not present all of the time when these
occurred (Tr. 180-254).
Clifford A. Payne testified that he was working on the
2-1/2 section day shift on December 29 as a roof bolter, and
the section was in retreat and had been in that mode for more
than a week. He stated that he was not familiar or involved
with the drill holes on the section. He was aware that drilling
was taking place, but has never seen regulators that had been
drilled through solid coal blocks .
Mr. Payne stated that he was in the crosscut between the
No. 4 and 5 entries when the methane explosion occurred. He
described what he observed and heard and stated that he saw "a
big ball of flame" that covered the entry. He confirmed that
he walked off the section together with two other miners who
were in the area (Tr . 30).
On cross-examination, Mr. Payne stated that at the time of
the explosion, he had no reason to withdraw himself because he
was not aware of any gas in the area, and had no ctr.er reason to
withdraw because of any hazardous conditions on the section. He
stated that when he was at the area where the miner was operating
prior to the explosion, the roof "was working hard" and the miner
was backed out. The roof started "rumbling" again approximately
20 minutes prior to the ignition (Tr. 30-41).

.·:5.

Worley Whitt testified that he was working on the
2-l/2 section on December 28, 1992, as a scoop oper ator on
the evening 4:00 p.m . to midnight shift, and that he wa s not

...:·
1989

involved in the explosion that occurred on the day shift the
next day. The section was engaged in retreat mining and was
advancing and retreating for approximately two weeks prior to
the explosion. He stated that he helped drill some of the
holes at the back of the section. He explained that the holes
were initially drilled with two inch diameters and they were
re-drilled to three inch diameters and he drilled five of the
holes. He was told the holes were used for ventilation, and
in his mining experience he had never seen drill holes used as
·ventilation regulators (Tr. 41-56).
On cross-examination, Mr. Whitt stated that he had a general
understanding of his safety rights under the BCOA agreement and
was aware of his right to withdraw from unsafe areas. He stated
that in December 1992, the section was taking weight, including
broken timbers, blocks that were split, and increased rib
sloughage. He confirmed that there were no methane problems on
the section and that it had "good air."
In response to further questions, Mr. Whitt stated that
when he returned to the section on December 30, 1992, the .area
from the track to the dinner hole appeared different in color.
It appeared grey in color and darker than it did before the
ignition. He confirmed that he has exercised his safety rights
in the past without any problems {Tr. 56-73).
Joseph M. Curry testified that he worked on the
2-1/2 section as a day shift shuttle car operator on December 29,
1992, and was injured in the methane explosion that day and has

not returned to work. He was engaged in retreat mining at that
time, and this mining had taken place for approximately a month
prior to the explosion. He was not familiar with the drill holes
at the back of the section, but knew they were there and believed
they were being used as a regulator. Regulators are ~ormally
constructed with cinder blocks or non-combustible materials.
Mr. Curry marked the location of a regulator on a diagram
of the 2-1/2 section and explained that it was cut through where
there was a lot of air and four or five ventilation curtains were
installed to control the air. He explained that it took two or
three days to construct the regulator.

1 9 90

Mr. Curry could not recall how many pillars were pulled
on December 29, 1992, and he stated that the miner machine was
two breaks back from the gob and that the roof had fallen close
to where he was working. The roof had also fallen in the drill
area. He confirmed that on December 29, 1992, it was not
possible to look back to the drill holes from the pillar line
and he could not see back into the gob area. He would be about
50 feet from the gob while loading the shuttle car.
Mr. Curry stated that he arrived on the section at
8:40 a.m . , on December 29, 1992, and after a brief safety meeting
he proceeded to begin loading. He stated that the miner machine
"gassed off" three times that day. On the first occasion, the
operator ·believed the methane monitor had malfunctioned. He
parked the machine and waited for an electrician. However, the
methane cleared up and none was detected when checked with hand
held detectors. The electrician checked the monitor later and
found that it was functioning properly. Foreman Bandy stated
that he had found methane in the No. s entry, and foreman
Crutchfield came to the area and some ventilation curtains were
changed and tightened up outby the No. 5 entry. Three curtains
were tightened and Mr. Curry marked their location on the
diagram. He confirmed that it was not common to find methane
on the section.
Mr. Curry stated that he never heard Mr . Crutchfield say
anything about methane when he came to the section and that
he was there for about 15 minutes. After the curtains were
tightened, Mr. Curry proceeded to the No. 5 entry and 20 shuttle
cars were loaded out. He was at the feeder dumping a load when
the explosion occurred . He stated he saw "blue light fire" go
down the belt line and come back and that it was hot. He dropped
to the ground and went to the breaker by the intake. It was
dusty and smoky and he walked out of the area with other miners
(Tr. 74-112) .
On cross-examination , Mr. Curry described his injuries
and confirmed that he has a pending law suit against Consol.
He stated that when the miner "gassed out" the second time,
electrician Harold Perry checked it out and he did not know
if foreman Bandy was notified. When the machine gassed out
the third time, Mr. Perry was not needed. Mr. curry saw
Mr . Crutchfield speaking with Mr. Bandy but could not recall

..

'

'·

1991

observing Mr. Crutchfield making any methane checks. However,
he was not with him all of the time and could not recall telling the MSHA investigator that Mr. Crutchfield was present for
30 minutes. Mr. Curry stated that there was a lot of air
pressure between the gob and the regulator and that he was not
familiar with any mine map that shows an additional drill hole
regulator in the mine.
Mr. Curry confirmed that he was at the No. 5 entry for three
minutes before the ignition and that the roof "was working" at
that time. The miner operator had backed the machine out and was
waiting for the roof to quiet down, and stated that he would
load only one more load before pinning the roof (Tr. 112-149).
Eugene Dawson testified that he worked on the 2-1/2 section
for approximately a year prior to the methane explosion on
December 29, 1992. He has not worked since that time. He was
a roof bolter, but worked as a shuttle car operator on the day
shift on the day of the explosion. The section had been on
retreat for at least a month or two prior to that event. He
could not recall complaining to anyone about the conditions,
and could not recall the conditions on the section when he
arrived at 8:00 a.m., on December 29, 1992. He operated the
off-standard shuttle car that day and loaded out ten car loads
on the No. 4 entry before his lights went off. He took the
car out of service approximately an hour before the explosion.
He had little knowledge about the drill holes being used as a
regulator and had never seen this in the past. He had no
knowledge of the gob roof conditions on December 29, 1992.
Mr. Dawson believed the miner "gassed out" one time on
December 29, 1992, and that Mr. Dean, the operator, asked ·for a
merhanic. He had no knowledge of the two subsequent occasions
when the machine quit. He recalled roof falls in the .gob area
prior to December 29, but was never concerned about them.
Mr. Dawson stated that he was in the belt entry with a
shuttle car waiting for the electrician when the ignition
occurred. He described what occurred and thought it was a roof
fall. He smelled heat and felt like his hair and clothes were
on fire. After the explosion, he walked off the section to the
man bus with Mr. Dean, Mr. Curry, Mr. Payne, and Mr. Whitaker
(Tr. 157-170).

1992

On cross-examinat ; on, Mr. Dawson confirmed that he has a
pending law suit against Consol. He stated that the cut-through
on the left side of the section where curtains were installed was
made out of concern for the ventilation. There were no methane
problems on the sectiop and he was not aware of any other drill
holes in the mine {Tr. 171-190 ) .
Franklin M. Walls has been employed by MSHA since August
1970, at the Princeton District No. 4 Field Office. He was hired
as an electrical inspector, and in 1986 worked as a refuse and
impoundment inspector. He also reviewed and processed mine
ventilation plans from 1987 through 1994, and he explained how
this was done {Tr. 193-196 ) . He was familiar with the Amonate
No. 31 Mine, and since 1990 has been involved in reviewing the
mine ventilation plan supplements submitted to MSHA and his usual
Consol contact was mine engineer Frank Underwood {Tr. 197).
Mr. Walls was familiar with the 2-1/2 mine section and was
involved in the approval of the ventilation plan supplement and
map relating to that section {Tr. 198). On voir dire by Consol's
counsel, Mr. Walls stated that he reviewed and compared a diagram
of the section prepared by MSHA and the original mine ventilation
map projections and found them to be consistent. He confirmed
that mining was authorized to be conducted anywhere within the
areas depicted in the red or pink hash marks shown on the map
(Tr. 199-210). Mr . Wal l s explained the lines, markings, and
projections shown on the diagram . He stated that the projections
indicate how Consol intended to mine and they are used to develop
the ventilation plan. Once they are placed on the ventilation
map they become part of the mining plan (Tr. 208-209 ) . However ,
MSHA can only cite a violation of the plan and not the
projections (Tr. 209 ) .
Mr. Walls described the entries that were previously first
mined and developed on the section during an earlier time. He
explained that Consol intended to mine through the previously
mined areas to the back of the section and then come out again
during second mining. Once mining is completed, the roof falls
and the area is then considered a worked-out gob area (Tr. 213214) .

Mr. Walls confirmed that he was involved in the review and
approval of the section ventilation plan and he met and discussed

1 99 3

it with mine superintendent Wyatt and company engineer Frank
Underwood. He explained the plan that was to be followed, and
it included cutting through two places at the back of the section
that were to serve as the main bleeder system. He explained as
follows (Tr. 215 ) :
We had two projections on the map. We would cut
through and put controls in them. One of them wouid
be a stopping. The other would be a regulator . And
we would cut through that block of coal out into the
old, existing mine works which was part of the mine
bleeder system that went to the fan.
After that was accomplished, we would start retreat
mining, retreat back out of this area, with the ventilation basically coming from behind, across the mine,
going through the gob and out the back end, which our
belief was that was a good way to carry the methane
that may be released or any other toxic substances that
may be released . It would be carried away from the
miners, out the back end of the block, to the fan, to
the outside.
Mr. Walls stated that the original mine map had a handwritten notation that stated, "(t]his area can be examined,"
and it is represented on the diagram that he referred to
(Tr. 219 ) . He stated that Mr. Underwood placed the notation
on the map to facilitate the plan approval process without the
need for an additional cut through drilling plan that would
normally be required if an area that is to be cut through
cannot be examined (Tr . 220-222).
Mr . Walls stated that there was no discussion as to how
the regulator would be constructed because, "we understood what
a regulator is when we talk about a plan," and "we basically
know what we're going to do" when building a regulator (Tr. 222).
He explained that in building a 'regulator after cutting an entry
through, "we take our cinder blocks or cement blocks, some form
of incombustible material, and we reduce the size opening to the
size that it takes to . . . whatever amount of ventilation we
decide is going to go through it. It's normally built out of
cinder blocks with a certain size opening in it 11 (Tr. 222-223).

1994

Mr. Walls confirmed that the September 15, 1994, ventilation
plan was the twenty-first plan review that he was involved in
processing, and that it was still in effect in 1992, subject to
any subsequent supplements that may have been submitted and made
a part of the plan (Tr. 224; Exhibit G-39). He confirmed that
the plan described how regulators and other ventilation controls
are to be constructed (Tr . 224-225).
Mr. Walls stated that he has reviewed an average of fifty
ventilation plans a year from 1986 or 1987 through 1994, and that
he has never seen a proposal to use drill holes as a regulator
(Tr. 226). He confirmed that when he discussed the first plan
supplement with Mr. Wyatt and Mr . Underwood, it was felt that
there should be a minimum of 10,000 cfrn of air going through the
regulator (Tr. 229).
Mr. Walls further explained the discussion concerning how
the bleeder would be evaluated on retreat mining pursuant to the
plan supplement (Exhibit G-40), as follows (Tr. 229-230):
Q.
Now, was there any discussion as to how
the bleeder would be evaluated on retreat mining?

A.

Yes.

Q.

Would you explain how that would be done?

A.
Yes. We were going to -- the air that
passed through that regulator would be back into a
bleeder system that had air movement from other areas
of the mine, to evaluate what was going across the
gob and out that hole, we would take cross-sectional
readings across the entries of the section, itself,
and reduce the air that was traveling normal returns,
the air that was traveling back out of the belt·s, ·a ir
corning into the section.
And we would deduct all that was leaving the
section by those returns outby and the belt outby
f rorn what was corning through the section and make
the assumption that the remainder was going out the
regulator we put in the back end of the section.

1995

Mr. Walls confirmed that the March 6 letter to him from
Mr. Underwood concerning proposed ventilation changes and new
projections, when read together with the ventilation map and
diagram, constitutes the first supplemental ventilation approval
(Tr. 236) .
Mr. Walls stated that a lat er additional plan supplement
and map were submitted with a limited number of changes to the
section ventilation and he rev iewed the map and diagram and
confirmed that they are accurately depicted on the approval map
(Tr. 245) . He also confirmed that the second plan supplement and
August 31, 19 92 , map was received by MSHA on September 2, 199 2 ,
in the Princeton, West Virginia Office (Tr . 246; Exhibit G-57 ) .
(The first suppl ement is Exhibit G-56; Tr. 247 ) . None of these
plan supplemen t changes affect the requirement for a regulator at
the back side of the section (Tr. 248 ) . Mr . Walls stated that he
did not discuss the use of drill holes as the regulator, and no
one from t he mine ever asked him if drill holes were acceptable
as a regulator (Tr . 249 ) .
Mr. Wa l ls further explained the cross-sectional readings for
evaluating the bleeder system with only one regulator where the
air would be leaving the gob and going into the return. Under
the proposed changes as reflected in Exhibit G-57, additional
regulators would be in the gob . He did not believe there was
any way of determining by cross-sectional readings where the air
was going once it entered the gob if there was more than one
regulator. The additional regulators had to be measured in order
to accurately determine what the ventilation was doing, but he
did not know when additional regulators were established. The
face plan tha t was with the plan showing how the regulator would
be evaluated by cross-sectional readings only showed the one
regulator at the back end of the section (Tr. 250 ). However, if
one could travel into the return entries to those reg~laLors,
actual air measurements could have been made to determine how
much air was coming out (Tr. 250-251).
Mr. Walls stated that if the additional regulators were
accessible , cross-sectional readings could be combined with
readings of the air leaving those regulators . However, he did
not know if the regulators were accessible. He believed those
regulators would provide a better overall means of evaluating
the overall ventilation (Tr. 254 ) . He confirmed that he was not

19 96

involved in issuing the violation, but believed it was issued
because the additional regulators were inaccessible and did not
provide a means for evaluating the gob (Tr. 255).
On cross-examination, Mr. Walls stated he has a high school
education and no formal college or engineering training (Tr. 9) .
He could not comment on whether Consol provided an adequate
bleeder system, "because I was not involved in any of that," and
that he only knew about what the ventilation plan called for and
was not involved in the MSHl~ accident investigation (Tr. 9).
Mr. walls stated that the approved written plan, rather
than any conversations leading to plan approval, is controlling
and he agreed that conversations are not incorporated as part
of the plan (Tr. 11). He confirmed that the twenty-first plan
review approved in 1989 was the base plan applicable to the
section, and the first supplement was approved in approximately
March and April 1992 (Tr . 13-14) . There were two meetings
concerning this supplement, and Mr. Wyatt and Mr. Underwood were
at the first meeting, but Mr. Wyatt was not at the second one
(Tr. 18-19). Mr . walls stated that the notation on the ventilation plan indicating that the place at the back section where
the holes were drilled was accessible was made by Mr. Underwood
at his (Walls) instruction in order to avoid the filing of a cutthrough plan (Tr. 21).
Mr. walls stated that a face ventilation plan, which was
part of the plan approved during March/April 1992, showed the
holes being developed at the back of the section, and a notation
on the plan indicated that the air going through the holes "could
be evaluated by cross-sectional readings, something to that
effect" (Exhibit G-40; Tr. 2) . He confirmed that BEP Ten, the
bleeder evaluation point shown on the plan, is the evaluation
point that waG in place for the air from other mine areas coming
through the area where the drill hole cut through was iocated
(Tr . 2 4 - 2 S) .
Mr. walls agreed that Consol was free to mine anywhere on
the section within the hash marks shown on Exhibit G-56. He
also agreed that when the plan supplement modified projections
of August 31, 1992, were submitted, the projections for the
five entries shown on Exhibit G-57 had not been driven all the
way to the back of the section (Tr. 29). He confirmed that the

199 7

additional plan ventilation controls are only proposed controls
and Consol could install them as needed (Tr. 31). The three
proposed regulators shown in pink on Exhibit G-57, and the one
regulator at the back of the section as shown on Exhibit G-56,
could have been installed at Consol's discretion (Tr. 31). He
explained that these ventilation controls were "additional
controls that would be added. Everything is proposed. There
is no time limit on it. He puts the controls as he needs to
as he goes" (Tr. 35). MSHA's counsel conceded that Consol was
free to choose the sequence and· direction of mining within the
section area, but stated that Consol was "always required to
have an adequate bleeder system on that section" (Tr. 39).
Mr. Walls stated that he has had many contacts with
Mr. Wyatt over the years in connection with reviewing ventilation plans and considers him to be a good mine superintendent
who took an interest in his mine. He stated that, "I think a
lot of him in that respect" (Tr. 39). Mr. Walls stated that he
also had a high regard for Mr. Underwood and considered him to
be a good engineer (Tr. 40). He did not believe that Mr. Wyatt
would engage in any "knowing" violations or aggravated conduct
(Tr. 40) .
Mr. Walls stated that on December 29, 1992, BEP 10 was
not an approved evaluation point for the section. The face
test plan simply indicated that the section air was going in
the direction of BEP 10 and was blended with air coming from
other mine areas, but the approved evaluation method on retreat
mining was the cross-sectional readings as shown on the plan
(Tr. 41-48). Mr. Walls agreed that regulators not designated
as BEP points do not have to be accessible and there are many
of those all over the mine (Tr. 49).
Mark D. Hrovatic ~estified that he formerly served as
the assistant mine superintendent for three years and was so
employed on December 29, 1992. He is currently employed by
the Commonwealth of Virginia as ·a safety and training technical
specialist and has been so employed for two years (Tr. 65). He
conf irrned that he visited the section once or twice a week and
he was familiar with the submitted ventilation plan supplements.
The original development plans called for driving entries to
the back of the section and cutting through one entry into an
existing return air course and establishing a regulator. At a

1998

certain point, however, mining deviated from the original plan
and pillar mining proceeded to the left hand side of the section,
and mining then continued developing the original projected
five entries {Tr. 67-68).
Mr. Hrovatic stated that regulators are normally constructed
with concrete and cinder blocks with some of the blocks removed
for air passage. A similar type regulator was discussed for the
back of the section, but a series of holes were drilled instead,
ten feet from the back return entry out of concern that the
stopping would crush out allowing more air to go through the
section, robbing other mine areas of air {Tr. 71). He discussed
this with Mr. Wyatt, Mr. Crutchfield, and Chief Engineer Mike
Delgrande. Mr. Hrovatic stated that he was concerned about the
possibility of the drill holes crushing out, but did not express
these concerns (Tr. 73).
Mr. Hrovatic stated that Mr. Crutchfield informed him of the
decision to drill the holes, but did not indicate who made the
decision and simply pointed to Mr. Wyatt's office (Tr. 74). He
stated that while driving the No. 5 entry, drilling was taking
place ahead of the mining to avoid cutting through the return
entry, and because the back side of the entry was not accessible.
At that time, he was not aware that the ventilation plan indicated that the back area could be examined and only became aware
of this after the ignition occurred. He was not aware that anyone
had been in that area prior to the cut-through and the roof
conditions there were adverse (Tr. 75).
Mr. Hrovatic stated that he "probably" spoke with
Mr. Wyatt and Mr. Crutchfield about having 10,000 to 12,000 cfm
of air going through the drill holes that were functioning as a
regulator. He observed that twenty holes, an inch-and-one half
in diameter were drilled and he took an air reading of 6,000 cfm
through the holes. An additional five holes were drilled and
he decided that the holes should be enlarged. Mr. Wyatt then
instructed him to enlarge the five holes to three inches and
Mr. Hrovatic instructed the evening shift to do this. After
the five holes were enlarged, Mr. Hrovatic measured 6,000 or
7,000 cfm of air passing throught he holes. He then ordered
the day shift foreman to ream out the rest of the holes with a
scoop to assure the passage of 10 to 12,000 cfm of air through
the holes. The scoop batteries were low, and he then told the

1999

evening shift crew to ream out the remaining 20 holes. However,
he learned the evening after the ignition that the holes were
never enlarged.
Mr. Hrovatic stated that he was told that there was approximately 50,000 cfm of air on the section, with 10,000 cfm going
through one regulator, and 15,000 cfm through the other three
regulators (Tr. 84-86). He stated that after he told Mr. Wyatt
that he was going to enlarge the drill holes to three inches,
Mr. Wyatt never inquired as to whether or not the holes were
redrilled (Tr. 87). He confirmed that methane was never a
problem while developing the section and driving the entry, and
he occasionally found .2 to .4, but no more than that (Tr. 88).
He was aware of other drill holes in the mine that were used as a
regulator in the past, but these were not on an active section
(Tr. 8 9) .
Qn cross~examination, Mr. Hrovatic stated that his intake
readings on tne section would fluctuate between 50,000 and
57 , 000 cfm's of air and he marked a map with the locations of
these readings (Tr. 92-93). He confirmed that after reaming
out five of the drill holes there were 6,000 cfm's coming
through the holes (Tr. 93). He made the decision to ream out
the 25 holes to three inches and he was satisfied that this
would provide the desired 10,000 cfm at the back of the section.
He agreed that if the holes were drilled out, Mr. Wyatt would be
left with the clear impression that there would be 10,000 to
12,00 cfm of air going through the holes (Tr. 94). He further
agreed that Mr. Wyatt was conscientious about safety and the
welfare of the miners and that he would never engage in any
aggravated conduct or a knowing violation of any MSHA regulations (Tr. 95).
Mr. Hrovatic confirmed that he was Mr. Crutchfield's
immediate supervisor and that he never told him that enlarging
the holes would increase the air flow to 10,000 to 12,000 cfm
through the holes. He did not khow if Mr. Crutchfield was at
any meetings subsequent to the discussions about the advantages
and disadvantages of a traditional regulator and the drill hole
regulator. He considered Mr. Crutchfield to be a competent
supervisor who had the best safety interests of the people
working for him at heart and he believed that Mr. Crutchfield
would not knowingly authorize, order, or carry out a violation of

2000

the Mine Act (Tr. 98). Mr. Hrovatic stated that Mr. Crutchfield
would have been aware of the original projections for the
supplemental plan for the section and that he was aware of the
drill holes at the back of the section .
Billy T. Bandy testified that prior to his retirement in
March 1993, he was employed at the mine as a section foreman and
was in charge of the day shift on December 29, 1992 , filling in
for the regular foreman who was on vacation. He arrived on the
section at 8:25 a.m., and found no problems in the No. 4 entry
or on the section (Tr. 100-103 ) . He performed pre-shift and
on-shift examinations, including methane checks along the gob
line. He detected one percent methane coming out of the gob at
the breaker timbers at the No. 5 heading and this occurred around
the same time the continuous miner gassed off in the No. 4 entry.
He believed the methane monitor on the miner machine was set to
shut off at one and one-half percent methane. He then called
Mr. Crutchfield to come to the section and informed him about
the methane he found and the machine gassing off (Tr. 106-107).
Mr. Bandy stated that Mr. Crutchfield came to the section
and stayed there about a half an hour . No ventilation changes
were made until the miner was moved to the No. 5 entry a hour
and a half later. He described the ventilation changes that
pushed the air over the miner machine . He confirmed that
Mr. Crutchfield came to the section after these changes were
made, and that he did not immediately notify Mr. Crutchfield
about the miner gassing out (Tr. 111).
Mr . Bandy stated that Mr. Crutchfield was summoned to the
section after the miner had cleared up, and that the ventilation
changes that were made were routine changes when mining moved to
the No . S entry and they were not made in response to the miner
machine gassing off (Tr . 114). He confirmed that he had no
knowledge of the drill holes at the back of the section and
could not remember any drill holes used as a regulator. He
made no ventilation changes after 'the machine gassed off
because he and Mr. Crutchfield believed that "everything had
cleared up" (Tr. 116).
Mr. Bandy stated that his on-shift examination included
an evaluation to determine if the section bleeder wa s operating properly, and he stated that "any time I can get

200 1

seventeen thousand feet of air into a bleeder line, I know the
bleeder is operating properly" (Tr. 116). H~ confirmed that
he measured 17,000 cfm of air going into the gob right over the
miner machine and he measured this with an anemometer at the
last pillar block going into the gob line from rib to rib. He
recalled that some roof was hanging inby the No. S entry into
the gob, but did not know how much (Tr. 118). He stated that
the bleeder was working and he determined this by checking the
amount of air and observing the air pressure on the ventilation
curtains (Tr. 120-121 ) .
On cross-examination, Mr . Bandy stated that when he called

Mr. Crutchfield to come to the section, he told him he would be
right down and arrived 20 to 25 minutes later. He stated that
Mr. Crutchfield proceeded to check out the section and he
observed him taking readings in the No. 4 and 5 work areas.
Mr. Crutchfield then informed him that the section was 11 okay 11
(Tr. 123) .
Mr. Bandy stated that he has worked with Mr. Crutchfield
for more than 20 years and considered him to be a knowledgeable
and sensitive person about his job, and absolutely concerned
with safety on the job. He stated that Mr. Crutchfield never
asked him to perform any unsafe act that would endanger his
safety or the safety of miners (Tr. 125). He also worked with
Mr. Wyatt for four or five years a~d agreed that he was concerned
with the welfare and safety of everyone in the mine, and that he
would never knowingly violate any MSHA regulations or ask anyone
else to do so (Tr. 126 ).
Mr. Bandy f urther explained the ventilation adjustments
that he made and he believed he had good positive air flow across
the gob (Tr. 128-132). He confirmed that company policy required
~re-operational checks to be made on the equipment while he
conducted his fire boss or on-shift checks, and clean up is done
all of the time when there is no.loading taking place (Tr. 137).
MSBA Inspector Donald White testified that he partft.cipated
in the accident investigation by conducting a rock dust survey
after the explosion occurred, but had no input into the issuance
of any of the violations. He confirmed that Appendix C to the
accident report is a map of the locations where the rock dust
samples .were to be taken. The map was plotted prior to his visit

2002

to the section and not all of the requested sample areas were
accessible. He identified Appendix Das the results of his
sampling (Tr. 166-170).
On cross-examination, Mr . White confirmed that the sample
results show the incombustible percentages at the time the survey
was taken, and he agreed that samples taken immediately prior to
or close to the ignition would be a better indication of the
conditions that existed at the time of the ignition, as opposed
to the samples taken six or seven days later (Tr. 172, 176-177).
He agreed that an ignition or explosion would have an effect on
his sample readings (Tr. 178). He also agreed that the combustibility level of an area cannot be determined by "eyeballing
it," and that any citations he issues must be verified by samples
(Tr. 179). He confirmed that he has read a Bureau of Mines
report by Mr. Don Mitchell, where it was stated that the percent
of incombustible content was greater after an explosion than
before (Tr. 180).
Clete R. Stephan, principal engineer, MSHA Ventilation
Division, Pittsburgh, Pennsylvania, testified that he is a
registered professional engineer, holds a B.S. degree in civil
engineering from the University of Pittsburgh (1976), and has
worked for MSHA since 1977 conducting accident investigations
(Exhibit G-50 , Tr. 182-185). He was qualified and accepted as
an expert in explosions and mine fires, and he confirmed that
he participated in the accident investigation in question, and
authored pages 23, 25-31 of the report, and Appendix E and J
(Exhibit G-1, Tr. 189).
Mr. Stephan confirmed that he concluded that "the
ignition that occurred was the result of frictional heating
or piezoelectric discharges that occurred during the fall of
the roof ln the gob" (Tr. 197). Although other potential
ignition sources were identified, Mr. Stephan stated that
they were eliminated because of the direction of the ignition
sources with respect to where the 'explosion occurred (Tr. 198).
Mr. Stephan explained frictional heating and discharges,
the elements necessary for a methane explosion, and the extent
and area covered by the explosion (Tr. 199-206). He confirmed
that page 27 of the report reflects that the original methane
accumulation probably averaged 5.5 to 6.5 percent and he

2003

explained that this was based on "the extent of the flame and
the magnitude of the forces'' (Tr. 207) .
In response to a bench comment concerning any opinion by
Mr. Stephan concerning any inadequacies with respect to the
cited bleeder, petitioner's counsel responded as follows
(Tr. 214-215):
JUDGE KOUTRAS: Is there some way we can speed
this up so we can get into his opinion as to why
the bleeders were inadequate?
Your Honor, Mr. Stephan is not a
MR. WILSON:
ventilation expert.
JUDGE KOUTRAS:
MR. WILSON:

He is not going to get into that?

No, he is not going to get into that.

On cross-examination, Mr. Stephan stated that he did not
interview any of the miner eyewitnesses who were on the section
at the time of the explosion, including Mr. Wayne Dean. He
confirmed that he did not review Mr. Dean's statements to MSHA
and State of West Virginia investigators with respect to what he
saw when the ignition occurred. He further confirmed that he
was not aware of any eyewitness testimony prior to writing his
report (Tr. 219). Mr. Stephan expressed several opinions based
on the statements of witnesses during the hearing concerning a
roof crack previously described by Mr. Dean and the source and
location of the ignition (Tr. 220-226).
Mr. Stephan confirmed that he was in the mine only one time
on January 4, 1993, for less than one shift, for approximately
three hours (Tr. ~34). He stated that he was satisfi~d that he
had enough information through his personal inspection or as
provided by others involved in the investigation to render an
opinion (Tr. 238-239).
Gary G. Wirth, MSHA Mining Engineer, Technical Support
Group, Bruceton, Pennsylvania, stated that he has been employed
by MSHA since 1989, and previously worked for a construction
company and as a mining engineer for U.S. Steel Mining Company.
He received a B.S. degree in mining engineering in 1984, from the

200 4

University of Pittsburgh, and is enrolled in a master's program
at West Virginia University (Exhibit G-49). He is a registered
professional engineer and conducts mine ventilation surveys at
the request of MSHA's district managers. He was accepted as a
mine ventilation expert {Tr. 13, 19}. He confirmed that he spent
three days at the mine on January 4, 5 and 26, 1993, conducting a
ventilation survey of the 2-1/2 section (Tr. 14-19}.
Mr. Wirth stated that the survey was conducted by two teams.
One person conducted the survey in the outby area or mouth of
the section, and he covered the inby face areas, and the drill
hole area. He also observed the roof conditions in the gob. He
conf irrned that he prepared the ventilation part of the accident
report, at pages 13 to 19, and Appendix L. He was not involved
in the drafting or review of any of the violations issued in
these proceedings, or in the investigation and special penalty
assessments concerning the individual respondents (Tr. 20-22}.
Mr. Wirth stated that a ventilation survey is conducted to
determine the extent of the ventilation system, including air
flow amounts and directions, and the pressure differentials
associated with the air flow. His survey of the 2-1/2 section
was intended to encompass the air flow entering and leaving the
section. In view of the inaccessibility of several exit points
for the section gob, he could not conclusively determine where
all of the air flow was going (Tr. 23-24). He confirmed that he
visited the drill hole area on January 5, to try and determine
the air quantity exiting the holes. He did this by taking
anemometer readings inby and outby the holes that exited into a
bleeder entry designated as a return on a mine map, and pitot
tube and magnahelic gauge readings at each individual drill hole.
The pitot tube readings are reflected on Appendix L to the
report, but the anemometer readings are not in the report
(Tr. 24-32).
Mr. Wirth stated that his calculations reflect that 447 cfm
of air would pass through all of ~he drill holes at a certain
pressure differential of water gauge inches, and that regardless
of the existence of the gob, he believed that the maximum air
flow that could pass through the drill holes was 2,828 cfm of
air, regardless of any changes in the conditions (Tr. 37-38).
He denied that his inability to reach the regulators on the left
hand side of the section had any impact on his evaluation of the
drill holes (Tr. 41-42).

2005

Mr. Wirth stated that on January 4, 1993, he measured
1 0,000 cfm in the No . 5 entry, and 7,000 to 8,000 through all
of the curtains. He had no particular reason to question
Mr. Bandy's air measurement of 16,000 to 17,000 cfm going into
the gob, but did not believe that Mr. Bandy could determine
the adequacy of the bleeder system from that one measurement .
Measurement of air entering a gob area is only one component
of the bleeder system, and one needs to know how much air is
entering the gob at different locations, the air distribution
within the gob, how much air is leaving the gob, and the methane /
oxygen concentrations within the gob and at the gob exit points
(Tr. 44 ) .
Mr. Wirth stated that with 17,000 cfm of air going into the
gob, and less than 3,000 cfm going through the drill holes, some
of the air would return, some would have gone back to the drill
holes, and the rest would have gone to the two regulators on the
left-side or down the left side return. In short, the difference
between the a ±r going through the drill holes and circulating
through the gob would eventually work its way back and go out
of the regulators (Tr. 46) . He confirmed that all of this air
circulation constitutes an air bleeder system within the meaning
of section 75.334 (b) (1) (Tr . 47 ) .
Mr. Wirth was of the opinion that the requirements of
section 75.334(b) were not being met on December 29, 1992,
because the methane that is usually present at any gob area would
migrate to the high right side of the section and would not be
diluted because of the limited air quantity and insufficient air
velocity in the gob. Given the fact that the section had very
little methane in the past, the one percent detected in the
No . 5 return, and the gas-off of the machine in the No . 4 push
was an "alarming factor" that led Mr. Wirth to conclude that
"they were having some sore of problem" (Tr. 52-54).
Referring to Map Exhibits G-58, G-59, and diagram
Exhibit G-60, Mr. Wirth further 'discussed what he believed
to be the air flow patterns on the section. He stated that
the one percent methane found by Mr. Bandy was in the r eturn
air entry taking the air out of the mine (Tr. 59). He believed
that methane that had accumulated in the gob due to the low
air flow toward the drill holes had migrated . to the No. 4 entry

2006

causing the miner machine to gas out. This indicated to him
that the bleeder system was not working properly. He agreed
that the air flow pattern was sweeping the gob gas and reducing
it to one percent in the return and that the remaining air was
exiting through the left side regulators (Tr. 61) . Mr. Wirth
believed that after moving into the No. 5 entry and making
ventilation changes, the body of gas that exited was pushed away
from the face and back into the gob area (Tr. 62, 64-65).
Mr. Wirth believed that after the miner machine gassed out,
air was then available to dissipate the methane detected by the
machine monitor, but that the air was again pushed back into
the gob. When asked if the foreman knew that, he responded
"apparently they didn't" (Tr. 65 ) .
Conceding that the air was sweeping the gob area and had
diluted and dissipated the methane that caused the machine to
gas out , Mr. Wirth was still of the opinion that the bleeder
system did not do what it was supposed to do because the methane
was not completel y removed from the gob area and was only
contained there. Under the circumstances, he concluded that
"this was an indication that they had a problem and that the
bleeder was not working effectively" (Tr. 66). He did not
believe that the gassing out of the machine was an indication of
a pocket of methane because methane higher than . 3 or .4 percent
was never previously encountered on the section. He stated,
"that is why it should have alerted them, and in fact it did.
Mr. Bandy called for help" (Tr. 67 ) .
Mr. Wirth explained his understanding of cross-sectional
readings for evaluating the bleeder system, and he agreed that
this would have been an effective way of evaluating the
2-1/2 section pursuant to the initial ventilation plan and map
projections where five entries were to be driven to the back of
the section and one regulator was to be installed at the location
where the drill holes were made. He agreed that the initial
plan that showed air exiting the gbb at one location a t the
back of the section was an acceptable method for evaluating
how much air was flowing into the bleeder and how much was
exiting. However, he did not believe this was an effective
bleeder evaluation method on December 29, 1992, because mining
had taken place to the left side of the section and additional
regulators were installed. Upon pulling back from the back end

2 00 7

of the section, there w~re three outlets from the gob area into
the bleeder sy~tem and cross-sectional air readings would not
indicate the air flow distribution within the gob ~ It would
only indicate how much air was entering the gob, and would not
indicate where it was exiting or how much air was exiting at
each gob location. He believed that any prudent experienced
mining person would know this (Tr. 69-70).
Mr. Wirth testified that the April 1992, ventilation plan
supplement testified to by Inspector Walls was the initial plan
that provided for cross-section air readings for evaluating the
bleeder system as stated by the notation that appeared in the
upper right hand corner of the plan (Exhibit G-40) . The notation states that "upon retreat mining the bleeder system will
be evaluated by the difference in intake and return readings
on the section."
Mr. Wirth stated that the April plan notation constituted
a projection "given to MSHA as to the bleeder evaluation method,
but that a subsequent pl-an supplement submitted in August or
September 1992, did not contain the notation in question
(Exhibit G- 42; Tr. 73-75 ) . He did not believe that crosssectional readings were a valid bleeder evaluation method
after mining started to the left side of the section and
two new regulators were added because no one was travelling
to the three regulator locations as required by the regulations,
and management had no idea where the air was going (Tr . 77-79).
Mr. Wirth further explained that the three regulator
locations were inaccessible and could not be traveled. Weekly
examination measurements of the methane, oxygen, and air flow
direction where air enters the bleeder were required as part
of the bleeder evaluation, but this was not being done because
t:t.e regulator.s were not accessible, and 11 MSHA was told they
could travel to this area" (Tr. 79).
Mr. Wirth gave his opinion as to where he believed the
"body of methane'' was located in the gob area prior to the
explosion, and what he believed to be the air pattern that
was ventilating the gob area (Tr. 85-87). He stated that
approximately 2,000 to 3,000 cfm of air would have been going
back toward the drill holes (Tr. 87). He confirmed that in
all of his ventilation surveys he has never seen drill holes

2008

used as a regulator. The location of bleeder evaluation point
BEP 10 has always been unclear to him and he was unsure as to
whether he had ever traveled there (Tr. 90).
On cross-examination, Mr. Wirth stated that at the time
of his ventilation evaluation on January 4 and 5, 1993, it was
his intent to evaluate the section as it was at the time of
the ignition, but he was told that there were some differences .
The right return regulator had been blown out and some of the
right side stoppings were damaged and leaking (Tr. 92). He was
told that an attempt had been made to restore the section to the
condition it was in at the time of the ignition, and he was under
the impression that "they attempted to do that, and when they got
finished, that was the best they could do" (Tr. 95) .
Mr. Wirth stated that he was aware of conflicting accounts
about the accuracy of the ventilation schematic of the section
at the time of the ignition, as depicted in Appendix G to MSHA's
accident report, and he denied that this schematic was the
foundation of his opinion concerning the adequacy of the bleeder
system (Tr. 97, 105). He explained the conflicting information
(Tr . 97).
Mr. Wirth did not believe that a pocket of methane released
from the strata in the number 4 entry caused the mining machine
to gas off, but agreed that this was a possibility (Tr. 107).
If this occurred, he further agreed that the pocket of methane
"would be ventilated out," and some would go into the gob and
some would go out the return in the No. 5 entry (Tr. 108).
However, in light of no prior encounters with methane on the
section, he believed that the existence of a strata methane
pocket would be an abnormality (Tr. 109).
Mr. Wirth agreed that assuming the one percent methane
detected by Mr. Bandy in the No. 5 entry occurred at the time the
machine gassed off in the No . 4 en~ry, this would be consistent
with the possibility that sufficient methane was released in the
No. 4 entry to gas off the machine and that part of that methane
went into the gob and part went to the return as it was supposed
to do (Tr. 109-110). This would indicate that "t he r eturn is
doing its job as far as taking return air from the face. It
doesn't say anything about the gob" (Tr . 110).

2009

Mr. Wirth could not state whether the "body of methane"
reached into the No. 5 entry. He explained that equipment
movement could affect the air flow patterns, and he· agreed that
the methane body was being diluted down to one percent in the
No. 5 entry, but that the concentration of any methane body is
indeterminable and could vary within seconds in different areas.
He believed that changed air flow patterns moved the body of
methane, and he stated that his opinion in this regard "is
speculation, but it is also ventilation engineering knowledge"
(Tr. 114) .
Mr. Wirth believed that all of the machine gas offs occurred
in the No. 4 entry before mining moved to the No. S entry, and
he did not dispute Mr. Bandy's air measurement of 17,000 cfm of
air (Tr. 116). He stated that the adequacy of the bleeder system
is dependent on whether it is moving methane out of the gob area
into the return, and this should be determined by methane tests
at the gob exit points (Tr. 117).
Mr. Wirth confirmed that he took a series of bottle samples
on January 5, to determine the methane and oxygen content of the
air exiting the gob area, and he believed that one to two percent
methane was detected in the samples. He stated that this "would
indicate that methane was coming from the gob exiting the drill
holes" (Tr. 120 ) . He did not believe his test results are in his
report (Tr. 119 ). Referring to an MSHA report concerning air
test samples collected on January 5, 1993 by Inspector George
Martin (Exhibit R-63), Mr. Wirth could not recall if Mr. Martin
took those samples and he had not previously seen that particular
report (Tr. 123, 125).
Mr. Wirth believed that the methane in the gob on
December 29, 1992, would have been consumed by the ignition, and
the process would have had to start over again on Dec~mber 30,
and whether or not an inactive bleeder on that day would have
resulted in very high methane readings at the drill holes would
be speculative . However, it was his opinion that high methane
readings probably would have occurred at the drill holes on
December 29. He concluded that the methane would have been
discoverable by the weekly examinations which he claimed were not
conducted, and although he was_ of the opinion that it accumulated
over a period longer than a week, he also stated that he did not
know how long it took to accumulate (Tr. 131-132, 135).

2 0 10

..

r!

Mr. Wirth was of the opinion that under the conditions
present on December 29, 1992, no reasonably prudent mining person
would have evaluated the section gob or bleeder system based on
cross-sectional readings (Tr. 136) . He learned through hearsay
that the conditions were abated when personnel "went back to the
drill hole regulators and picked and shoveled a hole through the
block of coal" (Tr. 143 ) .
Mr. Wirth recalled a note he gave to his supervisory
accident investigator, "Skip'' Castanon, at his deposition stating
that it was impossible to completely evaluate the section gob
because he could not access the two left side regulators . He
believed that his inability to reach those regulators would not
affect his opinion about the bleeder system. However, he conceded that it was not possible for him to perform and develop a
complete air quantity balance of the entire system (Tr. 146-147).
Mr . Wirth confirmed that he never reviewed the section
weekly examination books, or the section pre-shift or on-shift
books for the days preceding the ignition to determine whether
air readings were taken at the air intake because he did not
believe they were relevant to his evaluation of the section
(Tr . 15 0 - 151 ) .
Mr. Wirth agreed with his prior deposition testimony that
it was possible that methane could be released and ignited by
a two-inch crack or fall of roof, with a possible release of
methane and ignition source from a piezoelectric spark (Tr. 151153 ) .

Mr. Wirth believed that he had sufficient general information to render his opinion as to the situation that existed on
the section at the time of the ignition (Tr. 169). He also
believe that he was able to evaluate the ventilation system and
the gob air flow, but conceded that he could not determine the
exact amount of air exiting the go~ (Tr. 170).
Mr. Wirth stated that he has never seen pipes in stoppings
used as a regulator. He agreed that at the time of the ignition,
pillar recovery was taking place, and a bleeder system existed on
the section and it was being used to control the air passing
through the area. He did not believe that the air was diluting
the methane air mixtures (Tr. 172-173). However, he agreed

2011

that the air bottle samples taken on January 5, 1993, showing
1.38 percent methane at one of the regulator drill holes indicated less methane than was being liberated in the gob area,
a nd that it was diluted with the air and carried out through
the drill holes and into the bleeder entry return air course
(Tr . l 7 6 - 178 ) .
Mr . Wirth agreed that falling rock was the explosion
ignition point, and he did not totally discount the crack in
the roof as the origin of the ignition, or that methane could
have been liberated from that crack. Even if he were to accept
the eyewitness account of Mr. Dean, he would still conclude that
the flame traveled back into the gob and ignited the methane in
the gob. He did not believe there was a body of methane in the
No . 5 entry beneath the crack because there was sufficient
ventilation at that location and the crack would not have
liberated a body of methane that would have exploded in that
entry (Tr. 183-184) . Mr. Wirth was aware of no evidence that
Mr. Wyatt knew about the miner machine gas offs (Tr. 185).
MSHA Inspector William M. Uhl. Jr., testified that he also
serves as a special investigator, was familiar with the subject
mine, and was the resident inspector there for 12 to 18 months
in 1988 and 1989. He was "more or less" the lead coordinator in
the accident investigation conducted in this case, working under
the direct supervision of "Skip" Castanon. He confirmed that the
only injured miner he interviewed was Mr. Dean. He stated that
he based his conclusion that an explosive range of methane was
present in the gob area on the fact that 11 • • • it was obviously
there. An explosion occurred which resulted in the burns, the
men being burnt" (Tr. 200) .

Referring to Map Exhibits G-40 and G-42, Mr. Uhl explained
what was required and intended in the two mine ventilation
plans in question (Tr . 204-210). He further explained why he
believed the cited bleeder syst~m was inadequate. He stated
that Inspector Walls accepted a plan that would .allow the
development of five entries to the back side of the section.
The a ir was to be passed through the regulator that was proj e cted on the plans, but it was never established, a nd Mr. Walls
"gave the company an alternative means of eva luati ng this system"
(Tr. 213). Mr . Uhl believed that the only way to effecti vely
evaluate the bleeder was to absolutely follow the projections

20 12

and "use this regulator, determine the intake, determine the
return air, find the difference, which will automatically tel l
you that the rest of it is going here" (Tr. 213). However,
Consol deviated from its projections, and when it decided to
pillar the area, it lost access to the two regulators that had
previously been established, and the bleeder was no longer
effective (Tr. 214 ) .
Mr . Uhl acknowledged that MSHA was aware of violations of
the ventilation plan, but elected not to cite the violations
"because of a grace period and some other confusion that entered
in" (Tr. 212). He further explained that when an effective
evaluation cannot be done, mining must stop and the area
re-ventilated or sealed . In the instant case, the mining
sequence established by Inspector Wall was not followed through
and the weekly examinations indicate only air intake and belt
readings, with no return readings (Tr. 215).
Mr. Uh l acknowledged that the 2,000 cfm of air exiting the
gob may have been constantly diluting the methane, but the law
requires it to be rendered harmless. He believed that the
machine gas off should have alerted someone that something was
wrong with the functioning of the bleeder and that it was not
continuously diluting and carrying away the buildup of methane.
He stated that, "Mr. Wyatt may have previously experienced
similar situations and I know Mr . Wyatt would not have accepted
anything less than ten thousand at that point" (Tr. 218). He
further indicated that Mr . Wyatt was given "assumptions,"
accurate measurements were never taken, and he was never given
the actual amount of air that was passing through the drill holes
(Tr. 218) .
With regard to whether Mr. Wyatt and Mr. Crutchfield acted
reasonably and prudently, Mr . Uhl stated that "Mr. Wyatt's plan
for the drill holes themselves it not the issue. The issue is the
air that he wanted back there and .never got there . I think he
talked ten to twelve thousand, ... and to me, that would be
reasonable" (Tr. 230 ) . Mr . Uhl stated that as the mine superintendent and mine foreman, Mr. Wyatt and Mr. Crutchfield dir ect
e verything that goes on at the mine (Tr . 231}.
Mr. Uhl stated that the manner in which Mr. Wyatt and
Mr. Crutchfield initiall y intended to mine the s e ction "was

201 3

great" and that "they can drive anywhere they want to within
these boundaries provided it does not subject these people to
an unsafe condition." However, he concluded that when they
deviated from the initial planne.d projections and destroyed
access to the regulators as a means of measuring the air
leaving the gob "they started destroying the ventilation plan,
as it was originally designed for this section 11 (Tr. 232).
Mr. Uhl believed all of this was taking place over a period
of "about a month or so" (Tr. 232).
When asked about the 2,000 cfm's of air exiting the back of
the gob, Mr . Uhl stated that based on his experience in working
with Mr. Wyatt, 11 he just would not accept two thousand at this
area" (Tr. 235). Mr. Uhl agreed that Mr. Wyatt was seeking an
amount of air that he believed would be adequate to ventilate the
area (Tr. 236). In response to a question as to why Mr. Wyatt
was charged with a "knowing" violation, Mr. Uhl responded that
"he has knowledge of what took place on this section. He has
knowledge that · .he can not get to these areas and he directed this
to be pulled back, and Mr. Wyatt is a knowledgeable man, he knows
what needs to be done" (Tr. 236).
Mr. Uhl concluded that it was impossible to evaluate the
bleeder "other than the way these experts came in and used
complicated equipment to determine where the air was going, ...
common sense tells us that the air is not going to flush the
gob, it is simply going to skirt the gob ... " (Tr. 236). He
also believed that Mr. Crutchfield and Mr. Watt should have
conducted a bleeder evaluation to insure that the system was
operating and functioning properly (Tr. 237). When asked when
Mr. Crutchfield and Mr. Wyatt began discussing the drill holes,
Mr. Uhl responded, "I had no knowledge of -- and MSHA had no
knowledge of the drill holes" (Tr. 238).
Mr. Uhl testified to his gravity and negligence findings
concerning the inadequate bleede.r citation, No. 2724034, and
he stated that he based his "high negligence" unwarrantable
failure finding on the following (Tr. 239-240):
A.
Well, we determined the high negligence
because of the knowledge that both Mr. Wyatt and
Mr. Crutchfield would have had. This is their plan.
They hand carried this through. They were fully aware

2014

.•.
v

•.

of the stipulation and the direction and where all of
the regulatory measures going to be maintained on the
section. They had first-hand knowledge of that.
Mr. Uhl testified to the abatement actions taken and he
stated that the violations were verbally issued to Consol
Vice President Ron Wooten during the first part of the investi gation, with "conversations" with the superintendent and mine
foreman, and then reduced to writing in March, 1993. The
violations were intended to ref er back to the day of the
ignition on December 29, 1992 (Tr. 241-242).
Mr. Uhl explained the notation he made on the order that
Mr. Wyatt and Mr. Crutchfield stated that "no one was examining
the bleeder regulator and that the area was inaccessible"
(Tr. 244). He believed that if the bleeder evaluation had been
properly made, Mr. Wyatt and Mr . Crutchfield would have been
aware of the worsening situation and would have been able to take
corrective action. He believed that the mine examiners were not
doing anything wro~g and falsely believed that the bleeder was
working effectively (Tr. 245).
Mr. Uhl stated that Mr. Wyatt and Mr. Crutchfield verbally
stated that the one regulator was not being examined, but had
indicated on the map that the area was accessible (Tr. 246).
When asked about Mr. Walls' testimony about how the map notation
was made, Mr. Uhl responded, "that as far as he was concerned,
that was to speed up the administrative work as far as the map"
(Tr. 247). If the regulator was inaccessible, Consol would have
to file for relief not to travel the area. It must otherwise
follow its projected mining sequence, and if it decides to
deviate from that it must comply with whatever ventilation
adjustments are required (Tr. 249).
Mr. Uhl explained some photographs that he took depicting
the condition of the gob area (Ex~ibits G-45; Tr. 251-256).
He stated that he based his unwarrantable failure finding for
failure to conduct adequate weekly examinations, No. 2724035,
on the following (Tr. 256):
THE WITNESS :
Well, because of knowledge that
management would have of the overall conditions which
would tell a person, a prudent person, you know, that

201 5

it would be impossible to make that evaluation the
way it was being done.
Mr. Uhl did not know whether any air evaluations were being
made when mining was taking place on the left side of the section
prior to the start of the pillaring from the back of the section,
and when asked if there was any evidence that no evaluations were
made while mining to the left, he responded, "I don't recall
looking at that" (Tr. 258). He agreed that for the week prior
to the ignition two evaluations were made with reg~rd to how
much air was coming on the section and how much was coming down
from the belt.
On cross-examination, Mr. Uhl stated that he was not a
mining engineer and has a high school education, with no degree
in anything related to mining or mining ventilation. He last
worked in the coal mining industry for a coal company in 1975.
He served as an assistant mine foreman, but was never involved
in any ventila~ion plan submissions to MSHA {Tr. 261).
Mr. Uhl confirmed that he was familiar with BEP 10, and
upon review of an August 31, 1992, map, he noted a seven-inch
diameter drill hole reference on the map, but had no knowledge
of the hole and could not explain what it was used for (Tr. 264).
He acknowledged that if the air was going through the drill
hole, it would be routed to BEP 10, as shown by the map arrows
{Tr. 266).
Mr. Uhl stated that pursuant to section 75.364(a} (2) (iii),
the entire bleeder system must be traveled in its entirety at
least once each week, QI: to other approved locations in the
ventilation plan for the purpose of measuring the methane and
oxygen to determine if the air is moving in its proper direction
(Tr. 270). He stattd that Inspector Walls would accept an
evaluation of the bleeder by taking a cross-sectional reading,
provided the projected regulate~ was installed and the mining
projections followed as stated and approved in the plan (Tr. 72).
Mr. Uhl confirmed that the area mined to the left was being
evaluated by cross-sectional readings, and that once the
regulators became inaccessible, cross-sectional readings would
be made (Tr. 276}. Mr. Uhl stated that Mr. Wyatt would not
willfully violate the law, and that he never accused Mr. Wyatt
of acting recklessly or deliberately (Tr. 282).

2016

Mr. Uhl confirmed taking bottle air samples on January 12,
1993, and that they show that almost one percent methane was
coming through the drill holes at the back of the section, and
he acknowledged that with 2,000 cfm of air going through the
holes on December 29, 1992, methane was exiting through those
holes (Exhibit R-64; Tr. 284-287). He acknowledged that he was
the primary author of the MSHA investigative report, and that
the sample results were not included in the report, but he did
not believe they were relevant (Tr. 288).
Mr. Uhl stated that he interviewed Mr. Dean in March, 1993,
and again in preparation for the instant hearing, and on both
occasions Mr. Dean stated that immediately prior to the ignition
he was looking at the roof crack and saw blue flame come out
(Tr. 292-298 ) . Mr. Uhl identified photographic Exhibit G-45-G
as the area where Mr. Dean and Mr . Whitaker said the roof was
shifting and where he saw the crack (Tr. 300-301).
Mr. Uhl believed that retreat mining in the area of the
drill holes probably began approximately less than two full weeks
prior to the ignition, and the last inspector was there about
November 15, 1992 (Tr. 303). He confirmed that no re-evaluation
of the gob area was made on December 30, 1992, when Consol was
permitted to move its equipment out of the section (Tr, 312).
Mr. Uhl reviewed the weekly examination records for methane
and hazardous conditions on the section on December 21, 1992, and
confirmed that readings were made and recorded on the main intake
and belt (Exhibit G-47; Tr. 313). He also confirmed that the
weekly records for December 9, 1992 ,· show a full cross-sectional
reading for the left and right return, the intake to the pillar,
and a belt reading {Tr. 314). He agreed that full and partial
cross-sectional readings were made on the section, but was of the
opinion that they were not ielevant to the evaluation of the
bleeder (Tr. 315).
Mr. Uhl stated that he has known Mr. Crutchfield for
20 years and attended mine foreman school with him. He has not
alleged that Mr. Crutchfield willfully violated the law, but he
believed that Mr. Crutchfield is responsible "to know the
activities within the mine properties that he is working at ...
and if anybody had reason to know, Mr. Crutchfield would have
known. 11 He further stated that, "I am saying he had knowledge

2017

of this ventilation system there, and that there was more than
a normal negligence shown in this activity herei• (Tr. 318).
Mr. Uhl believed that it was reasonable to expect that
Mr. Crutchfield knew and understood the ventilation plan, but
he had no information that Mr. Crutchfield delivered the plan
to Mr. Walls (Tr . 319). He further believed that any reasonable
mine foreman "would look at this situation and have all the
reason in the world to know that this is not an effective way of
ventilating this section, and that it is not an effective means
of evaluating the bleeder system" (Tr. 319).
Mr. Uhl confirmed that Mr. Crutchfield voluntarily gave
him testimony, and that he knew that Mr. Crutchfield responded
to Mr. Sandy's call to come to the section, and that he stayed
there at least 30 minutes conducting methane tests (Tr. 320).
Mr. Uhl responded as follows when asked to eXplain the meaning
of "aggravated conduct" in the context of a section llO(c)
knowing violation (Tr. 323):
THE WITNESS:
Aggravated conduct, he had . more
than the normal reason to know. He had -- I just drew
a blank for the word I am trying to come up with. More
than normal negligence. You know, it would take a
reasonable man with blinders on not to see this condition
with the experience these people had.
And (Tr . 324-325):

JUDGE KOUTRAS:
Do you think that a reasonable -well, let me try it -- that a reasonable .mine foreman
would normally go into a mine with his eyes wide open,
walking into a situation where he knows the bleeder
system is not being properly cal.ried out, subjec_ting not
only himself, but the rest of his people to a hazard?
THE WITNESS:
I believe that he believed exactly
what his section foreman told him; that there was not any
hazard up there at that time, and his findings convinced
him of that, also.

2018

BY MR. BROWN:
Q.
His findings he testified to in your .
investigation indicated he found no methane after
he went to the section and specifically tested for
methane, right?

A.

Yes, sir.

Q.
Now do you believe a reasonable mine inspector
in November of 1992, would go into that section of the
mine with any knowledge of the ventilation plan that you
have testified to?

THE WITNESS:
I don't think anyone with any knowledge
of this here would have found anything different. If they
didn't have any knowledge of this, then they would have
found the same thing that the section boss found right
there.
Mr. Uhl believed that Mr. Crutchfield was a reasonable
and competent foreman who was concerned with the safety and
welfare of his workers and who would never engage in any
intentional act that would endanger their lives (Tr. 326).
Mr. Uhl confirmed that Mr. Hrovatic was Mr. Crutchfield's
supervisor, and that Mr. Hrovatic was responsible for overseeing
the drilling of the holes at the drill hole regulator {Tr. 328 ) .
In response to his understanding of Mr. Wall's testimony
concerning the map notation regarding the accessibility of the
drill holes, Mr. Uhl stated as follows (Tr. 329):
A.
I think what he said was that if that is
an accessible area and that you put that on the map,
that when Mount Hope or the ventilation people se·e
that, there would not be a holdup as to them looking
for a cut-through plan.
That is exactly right. And he testified
that the sole purpose of that language being placed
on that map was to preclude the necessity of the
preparation of the cut-through plan, right?
Q.

2019

A.

That is what I heard him say.

Mr. Uhl stated that the drill hole area was ac.cessible to
him after some additional supports were installed, but that
during the investigation Mr. Wyatt and Mr. Crutchfield told him
the area was not accessible and no one was traveling there .
Mr. Uhl stated that he had no reason to doubt Mr. Wyatt's
belief that approximately 10,000 cfm of air was going through
the drill holes, and that Mr. Hrovatic confirmed this. Mr . Uhl
stated that his investigation confirmed that the drill holes
were put in because Mr. Hrovatic considered it would be safer
than cutting through in light of the excessive pressure and
the closeness and proximity of that area to the Dunford fan
{Tr. 334) .
Mr . Uhl confirmed that the violation was abated by enlarging
the drill holes and MSHA accepted this as part of the abatement
{Tr. 335). He confirmed that he was aware of no evidence that
Mr . Wyatt knew anything about the gas offs or gas problem on the
section on December 29, 1992 (Tr. 335).
Mr. Uhl stated that he has worked with Mr. Wyatt for many
years and that Mr. Wyatt has always been "truthful and up front
and candid" with him, is very safety conscious, and would not
"willfully hurt anybody" (Tr. 337). When asked if Mr. Wyatt
would "knowingly" endanger anyone, Mr. Uhl responded as follows
(Tr. 3 3 8- 3 3 9) :
A.
In the context you are using it, it i s
the same as willfully, and I am saying he would
not willfully endanger someone.
Q.

Or knowingly?

A.

No, sir.

Can you use that word?

You can't use that word.
use that word?
Q.

Why can't you

A.
Because that would be saying -- to me, t hat
would be saying that he willfully did this . Someone
had brought it to his attention, he decided wel l, no

2020

I know what you are saying and I know that is against
the law, I am going to go ahead and do it my way anyhow. He is not that kind of an operator.
Respondent's Testimony and Evidence
Cecil W. Dean, formerly employed by Consol, stated that he
was working as a miner helper when the ignition of December 29,
1992, occurred and that he was an eye witness to that event.
He stated that he gave a taped interview to MSHA Inspector Uhl
in March, 1992, and was again recently interviewed by Mr . Uhl,
Mr. Castanon, and MSHA counsel Wilson (Tr. 27). Mr . Dean
explained where he was located and what he was doing when the
ignition occurred (Tr. 27-30) .
Mr. Dean confirmed that he initially told the MSHA
investigator that the ignition occurred instantaneously when
the roof dropped down {Tr. 30). He explained that after taking
a 40-foot lift to the right, the miner was backed out, and "the
top cracked and set down about one to two inches . . . there was
a bluish flame coming out of the gob line, looked like an atomic
bomb rolling out from under -- coming out of the roof crack, and
stated that "it came out of the gob line" {Tr. 33). He confirmed
that in his more recent interview with the aforementioned MSHA
officials, he told them that he observed a blue flame, but denied
telling them it came from the roof crack (Tr. 33).
Mr. Dean stated that when he was interviewed in March, 1993,
he had been out of the hospital for less than a week and had been
unconscious for 21 days (Tr. 35) . {The tape of the interview was
played in open court (Tr. 38) .) Mr. Dean stated again that he
could not remember telling Mr. Uhl that the flame came from the
roof crack {Tr. 39-41) .
On cross-examination, Mr. Dean stated that he was aware of
the drill holes and foreman Larry Brewster told him they were to
be used as a regulator . Mr. Dean · stated that he helped drill the
holes, but was concerned that they would crush out with the
weight of the coal (Tr. 47). He stated that on December 29,
1992, one could not look through the gob and see the drill holes
while standing in the No. 4 entry (Tr. 48). He confirmed that he
has a law suit pending against Consol as a result of the ignition
(Tr. 52) .

2021

Danny E. Crutchfield, mine foreman, stated that he has
27 years underground mining experience and has never previously
been cited individually by the State of West Virginia or MSHA.
He served as mine foreman at the subject mine for 10 years, and
spent approximately six hours of each shift underground. He
stated that he was on vacation a week prior to the December 29,
1992, ignition, and had returned the day before that incident
(Tr . 5 3 - 5 9 ) .
Mr. Crutchfield identified a mine ventilation map associated
with the April 1992 ventilation plan, and discussed the location
of several regulators and BEP points (Tr. 59-63; Exhibit RCR-1).
He identified two inaccessible regulator locations outside the
cited section and indicated that the ventilation passing through
those areas would be determined by BEP points and cross-sectional
air readings (Tr. 64-65). He identified one other drill hole
location and stated that MSHA inspectors never questioned or
cited it (Tr. 65).
Mr. Crutchfield confirmed that he attended a preliminary
meeting with Inspector Walls, company mine engineer Underwood,
and superintendent Wyatt to discuss the section ventilation and
mining projections. He explained that the initial projection
was to drive to the back of the panel and establish a regulator
and use cross-sectional air readings with BEP-10 as the evaluation point. In view of falls in the old works, a decision was
later made to mine to the left of the initial projected area,
and two regulators were installed. After that area was mined,
retreat mining commenced and pillars were pulled from the back
of the section, as initially projected, and the retreat
operations were inspected by MSHA (Tr. 68-70, 71-72).
Mr . Crutchfield stated that the drill holes in question were
established because the area was subject to crushing and no one
ever mentioned that anyone would travel to that area (Tr. 74).
He stated that assistant mine superintendent Hrovatic was
assigned to drill 25 holes, and Mr. Crutchfield stated he only
saw one test hole. Mr. Hrovatic informed Mr. Wyatt of the
progress of the drilling, including enlarging the holes from
1-1/2 inches to 2 to 3 inches, and testing the air passing
through the holes. Mr. Hrovatic reported that he had 2,000 to
4,000 cfm of air, and Mr. Wyatt told him that he needed 10,000
to 12,000 passing through the holes (Tr. 76).

2022

Mr. Crutchfield stated that Mr. Wyatt did not tell
Mr. Hrovatic how many holes to drill, and when there was a
problem with the drill bit, Mr. Hrovatic assigned the evening
shift maintenance foreman the job of repairing the bit.
Mr. Crutchfield heard nothing further about the matter and
the last thing he heard Mr. Hrovatic say after drilling
five holes was that the bit needed to be repaired and the
drilling finished (Tr. 77). Mr. Hrovatic never reported back
to him and Mr. Crutchfield had no reason to go to the area to
examine the work because Mr. Hrovatic was assigned to take care
of it {Tr.78 ).
Mr. Crutchfield explained the underground work he performed
on December 29, 1992. He received a message from Mr. Bandy to go
to the 2-1/2 panel, and Mr. Bandy informed him that he had some
methane in the right-hand return. Mr. Crutchfield proceeded to
the section and Mr. Bandy informed him that he found one percent
methane at the No. 5 breaker timbers. Mr. Dean informed him that
the miner machine gassed off in the No. 4 entry . Referring to a
diagram, Mr. Crutchfield explained what transpired next (Exhibit
RCR-2; Tr. 78-83). He confirmed that he made several methane
checks at the breaker timbers and found none. The largest amount
he found was .2 percent in the left-hand return, and none in the
other areas he tested (Tr. 86-87). He observed no problems with
the ventilation on the section and explained where he checked the
ventilation curtains, and the other areas that he examined before
leaving. The curtains "were in good shape," and they had air
ventilation pressure, and he saw no ventilation hazards on the
section (Tr . 89-90). He confirmed that it was unusual to find
methane on the section (Tr. 94 ) .
Mr. Crutchfield stated that in the 27 years he has been
mining coal, he could not recall receiving a section l04(d)
citation or ~rder. He had no reason to know that the ventilation
was inadequate on the day of the ignition because all of the
plans had been approved, he assumed there was 10,000 to
12,000 cfm of air going through the drill hole regulator, and
he had never experienced any prior ventilation problems on the
section (Tr. 97-98).
Mr. Crutchfield stated that the cited bleeder system was
evaluated by cross-sectional readings and BEP 10, which was
visited every 24 hours by the fire boss. When the methane would

2023

rise, it would be checked and monitored every shift. He had no
indication of any methane buildup in the gob on December 29, and
if he had, he would have shut the section down (Tr. 101).
Mr. Crutchfield stated that the mine · map was up-dated each
shift to reflect the areas that were mined and it is available
in the mine office for anyone to review (Exhibit R-17; Tr. 104).
He also identified a working mine map kept at his desk and he
discussed it with each boss every morning (Exhibit R-18;
Tr . 1 0 7 - 1 0 9 ) .

On cross-examination, Mr. Crutchfield stated that he did
not know how much air was going from the 2-1/2 section to BEP 10,
but that approximately 180,000 to 186,000 cfm of air was at
BEP 10, and .approximately 64,000 cfm was going into the section.
This section air would eventually go to BEP 10, and he explained
how the air would be monitored at BEP 10 (Tr. 114-115).
Mr. Crutchfield explained the ventilation cross-sectional
readings evaluation system as follows (Tr . 116-117):
A.
You take the return. You take the intake.
You take the air going off the belt and you take your
other return. You add what air is going off, take it
away from what is going up on the intake.

Q.

And that tells you what?

A.

That tells you what is going out your bleeder

taps.
It doesn't tell you, though, how much air is
going out each individual outlet, does it?
Q.

No, it does not. But it tells you that you
do have air going into the gob.
A.

And that is all it tells you, · is how much air
you have going into the gob, right?
Q.

A.

The same way it would with the rest of them,

yes.

2024

Mr. Crutchfield stated that cross-sectional readings would
not indicate how much of the air is going to the drill hole
regulator or of the other regulators on the left side of the
s ection. One of those regulators was accessible, but t hree
we re not, and on December 29, 1992, he wou1d have no way of
knowing how much air was going to any of those three regulators
(Tr. 117).

Mr. Crutchfield reviewed weekly examination records for
December 21, 1992, and confirmed that he countersigned them
when he returned from vacation and that Mr. Hrovatic was acting
in his place while he was absent that week. He agreed that the
two recorded readings do not reflect how much air was going into
the gob, and no return readings are recorded (Tr. 118).
Mr. Crutchfield confirmed that Mr. Hrovatic left his
employment with Consol two months after the ignition, after
20 years of employment, but did not know if his departure
had anything to do with this case (Tr. 123). He stated that
Mr. Hrovatic's wife is an MSHA inspector at the Richland's
office (Tr. 131).
Mr. Crutchfield confirmed that the section examination
book reflects that BEP 10 was eyaluated on a daily basis; and
that it was the checkpoint for the panel (Exhibit R-2; Tr . 135,
139-140). He explained some of the entries, including the
recorded methane levels. He stated that BEP 10 was used to
evaluate the gob, and that it was an MSHA approved point for
evaluating the section (Tr . 141-146). He stated that the BEP 10
location is marked on the map with directional arrows showing
air being coursed to that location, and he considered that to
be the evaluation checkpoint for the section, just as he has
other similar locations shown on the map for other mine areas
(Tr . 14 7 - 14 9 ) .
Mr. Crutchfield stated that he was surprised to learn
that the drill holes had not been' drilled to allow more air
to pass through. He believed the holes had been drilled after
Mr. Hrovatic was assigned that project, and stated, "I thought
a ll the time there was ten to twelve thousand feet of air
passing through there because that is what Bob wanted through
t here" (Tr. 158) .

2025

..
~=·

Mr. Crutchfield was recalled by the Court and stated that
he was interviewed at the mine after the ignition and could not
recall discussing the BEP-10 evaluation location with the MSHA
investigators. He did not believe that the section examination
records (Exhibit R-2) were given to the investigators, but
believed that they looked at them (Tr. 10) .
Mr. Crutchfield stated that the purpose of the drill holes
in question was to ventilate the gob area that would be created
after driving the projections and pillaring back (Tr . 13-14).
The air ventilating the gob would be monitored by taking crosssectional readings and monitoring BEP-10 (Tr. 14). He confirmed
that BEP-10 was established before the section was developed and
that air from at least one other section was also being monitored
at that location (Tr. 15).
Robert G. Wyatt testified that he has worked in the mines
for 40 years, has a tenth grade education, and was the general
mine superint endent for six or seven years beginning in May,
1987. Prior to that he served as general superintendent at
another Consol mine for 12 years . He stated that prior to this
case, none of his mines received a (d) order or citation, and he
has never been charged personally for any violations (Tr. 18-21).
Mr . Wyatt stated that in mid-November 1992, he had a medical
problem resulting in his hospitalization in intensive care, and
returned to work at the end of that month. He had not been
underground from November 4 to the day of the ignition, and
Mr . Hrovatic served as assistant superintendent and was assigned
to work for him. Mr. Hrovatic was a mining engineer, and had
full authority other than any major changes or policy matters.
Mr. Wyatt stated that he had weekly meetings with
Mr. Hrovatic, Mr . Crutchfield , and Mik~ Delgrade, t.he _chief
electrician, to discuss the conditions on the section, and
ventilation plans were handled by Frank Underwood, the mine
engineer (Tr. 26-27). He confirmed that the decision to mine
and pillar the section was his and he explained how the
development plans were formulated, including a meeting with
Mr. Crutchfield, Mr. Walls, Mr. Underwood, and a UMWA s a fety
committeeman (Tr. 29-36) . He explained how a ventilation plan
is developed and discussed and . he described the mine ventilation
system (Tr. 37-42) .

20 2 6

Mr. Wyatt confirmed that BEP - 10 was intended to be used to
test any methane coming through the gob and to evaluate the
section bleeder system (Tr. 45-49).
He believed this was a
safe method for evaluating the bleeder air, and he explained
how the areas with excessive methane liberation were monitored.
He confirmed that BEP-10 was monitored on a daily basis for the
B-right section, and the same procedure was used to monitor the
2-1/2 section where all of the air was routed to BEP-10 {Tr. 5160) .
Mr. Wyatt stated that he was not aware of the notation
that the drill-hole regulator area could be examined "for quite
some time," and it was not discussed during the meeting he
attended with Mr. Walls . Mr. Wyatt believed that Roy Smiley,
a draftsman working for Mr. Underwood at Consol's Bluefield
office, made the notation (Tr. 62 ) .
Mr . Wyatt stated that all of the ventilation plans that were
submitted before the 2-1/2 section was mined showing multiple
areas going into the BEP-10 were approved by MSHA, and he
confirmed that the March 6, 1992, submission (Exhibit G-40),
for the 2-1/2 section was approved by MSHA on April 21, 1992
(Tr . 63-64 ) . He explained why changes had to be made in the
original mining projections, including mining to the left, and
providing for ventilation changes and bleeder controls, and
all of this was handled by Mr. Underwood in consultation with
Mr. Walls . The ventilation changes are reflected in the letters
of September 1 and 30, 1993, with Mr. Underwood (Exhibit G-42;
Tr. 65-73) .
Mr. Wyatt further explained how the air on the section would
be controlled through four regulators, and he believed it was a
safe and efficient plan. All of the air would eventually sweep
the section and would eventually be directed to BEP-10 {Tr . 7982) •

Mr . Wyatt stated that he has ·had occasion in the past to
use drill-hole regulators. He confirmed that two stopping cutthroughs were initially projected for the back of the s ection,
but out of concern for safety, and the fact that it was not
uncommon for such stoppings to crush out, thereby robbing other
areas of air, he decided to use something other than a standard
stopping and regulator and instructed the drilling of the holes,
and Mr. Hrovatic was put in charge of the drilling (Tr. 91).

20 2 7

Mr. Wyatt stated that Mr . Hrovatic i nformed him of the
p rogress of the drilling and that he informed Mr. Hrovatic
that he wanted 10,000 cfm air through the holes. He l ater
i nformed Mr. Hrovatic to "go ahead and put 12,000 through,"
a nd Mr. Hrovatic informed him that he had 12,000 to 14,000 cfm
of air going through the holes . Mr. Wyatt stated that "I was
well pleased with it, with the whole systemn (Tr. 95) .
Mr. Wyat t explained the use of cross-sectional readings
to evaluate the bleeder air on the section (Tr . 96 ). He
believed the use of a drill hole regulator would be safer than
a standard type stopping or regulator, and tht it was not a
matter of convenience and supplies were available to construct
a standard size of · regulator (Tr. 98-100)
Mr . Wyatt stated that he would never knowingly violate the
law, and that he has in the past shut down mines and withdrawn
miners out of safety concerns. He would have done so in this
case if he believed there was a potential problem on the section
(Tr. 101). With respect to Mr. Crutchfield, whom he has known
for six years, Mr . Wyatt stated that he operated the mine in a
safe manner, and would never cut corners (Tr. 104-105):
On cross-examination, Mr. Wyatt confirmed that he was not
at the meeting with Mr . Walls when the second ventilation plan
supplement was submitted and it did not show any projections for
driving the left side of the section (Tr. 110-112) . He was aware
of the ventilation plan requirement for constructing drill holes
out of non-combustible materials, and reite rated that he wanted
10,000 cfm of air passing through the drill holes (Tr. 112-113).
He did not confer with engineer Underwood or MSHA about the use
of drill holes (Tr. 114) . He still believes today that he had an
adequate bleeder syst~m, and he would never accept 2,600 cfm of
air through the drill holes (Tr . 117) .
Mr. Wyatt further explained his understanding of the face
ventilation diagrams (Tr. 120 ) . · He explained that after the
ignition occurred, Mr. Hrovatic informed him that the drill
holes had been redrilled to three inches, and that 12,000 to
14,000 cfm of air was going through the holes before the ignition
(Tr. 122-123). Mr. Hrovatic also informed him that 6,000 cfm
of air was going through the holes when they were drilled with

2028

the 1-1/2 inch diameters, and that he had 6,000 to 8 , 000 cfm of
air when five of the holes were re-drilled to three inch
diameters (Tr. 123). He then instructed Mr . Hrovatic to put
12 , 000 cfm through the holes, but did not specifically tell him
how many additional holes should be drilled. Mr. Hrovatic
assured him that this had been done (Tr. 124-125).
Mr. Wyatt stated that while he was in the hospital in
November 1992, Mr . Hrovatic served as acting mine superintendent {Tr. 132 ) . When asked if he ever asked Mr. Hrovatic how
he measured the air going through the holes, Mr. Wyatt stated
as follows (Tr. 133):
A.
No, sir, I don't recall questioning him.
You know, he is an engineer. I've got a tenth grade
education. You know, I wouldn't question the boy on
the numbers . I'm sure he is qualified to take the air
readings. Or the man . Excuse me . I didn't mean to
call him a boy.
Mr. Wyatt stated that he was not aware of the gob roof
conditions on December 29, 1992, and he described the conditions
as they appeared to him the next day (Tr . 134-137). In response
to further questions, he confirmed that he had no knowledge of
the mining machine gas-offs prior to the ignition (Tr. 137).
He believed that the ignition was caused by a major crack in the
roof that released methane gas under pressure and ~our bleeder
system got overrode,
and we've had some kind of an ignition
source in there that you don't normally expect to have"
(Tr. 141) .
Mr. Wyatt stated that in his years of mining experience
prior to the ignition he has never known of methane ignitions or
explosions originating in the gob area. He believed that the
failure of the bleeder results in a loss of pressure going in the
gob that releases methane on to the active section where there
are ignition sources. He has always been trained to keep gas
away from the working place and to keep a positive pressure on
the gob (Tr. 142-145).
Donald w. Mitchell, consulting mining engineer specializing
in ventilation, mine fires, and explosions, was accepted as an
expert witness. His resume reflects that he has a B.S. degree in

2 02 9

mining engineering from Penn State, and an MS degree in mining
engineering from Columbia University. He has authored approximately 100 publications and a book on mine fires that will soon
be published as a third edition. Mr. Mitchell was previously
employed by the U.S. Bureau of Mines, MESA, and MSHA, from 1951
until July, 1978, was involved in the passage of the 1969 Coal
Act, and served as an assistant chairperson of a task force that
drafted the regulations that were promulgated in March, 1970.
The task force responsible for writing the ventilation regulations worked under his direction. He has also worked as an
international consultant in Nova Scotia, Australia, Columbia,
Great Britain, India, and China in matters concerning mine
fires and explosions (Tr. 151-156; Exhibit R-6).
Mr. Mitchell stated that he became involved in the analysis
of the December 19, 1992, ignition in August, 1993, and has
worked on that project as a consultant "off and on" to the
present time. He considered a number of documents that are part
of the record as hearing exhibits, including preshift, on-shift,
and daily reports, records of methane readings, roof control
plans, photographs, locations of core drill holes, weather data,
a 1990 ventilation survey he con-ducted at the mine, a January,
1993 ventilation survey, ventilation fan data, equipment location
data, ventilation maps, and schematics showing the ventilation
as of August, 1990, ventilation plan supplement of October 30,
1990, additional plan supplements, several drawings that he made,
computer analysis of the mine and section ventilation, computerized ventilation simulations, recent studies of frictional
ignitions, and various research papers concerning massive roof
falls and wind blasts and ignitions, coking, shock waves, reports
of methane ignitions caused by roof falls in the gob areas,
methane ignitions caused by sandstone roof and equipment
frictional sources, and reports and papers concerning frictional
ignitions in several foreign mines {Tr. 157-213).
Mr. Mitchell was of the opinion that the ignition in
question was "a result of a fall ' of roof igniting methane
associated with the rock that was falling" (Tr. 206). He
confirmed that he reviewed all of the aforementioned written
information and approximately 29 interviews taken during the
investigation in making his analysis of the ignition (Tr. 213).
Mr. Mitchell stated that occluded methane in rock is usually
not affected or dissipated by the ventilation system because

2030

there is no way to dissipate it and it does not release until the
rock breaks (Tr . 215). He confirmed that he went underground as
part of his analysis and visited all five headings up to the gob
line in the 2-l/2 section. He looked back toward the gob drill
hole area in each of the headings, but was unable to see the
drill holes (Tr. 218).
Mr. Mitchell acknowledged that he misspoke when he gave his
deposition indicating that he could see all the way back toward
the drill holes when he was underground and that he could see the
barrier pillar . He stated that "there was no way I could see at
least a distance of 100 to 150 feet at minimum" (Tr. 222).
Referring to two drawings that he made, Mr. Mitchell
explained his opinion as to the cause of the ignition.
Referring to the testimony of miner witness Whittaker and Curry
that they could hear the roof cracking and working "high up,"
Mr. Mitchell stated that the centilever roof structure started
to fail, and a tension crack started forming close to the edge
of the pillar. Since there is nothing holding up the weakened
roof, it falls.
Based on his best estimation, he believed that
there was a fall of a 30 foot block of sandstone roof from the
No. 5 heading to the No. 4 heading, four to six feet on the edge
of the gob (Tr. 222-224}.
Mr. Mitchell stated that based on his miner discussions, the
term "from the gob" means inby the breaker posts. He described
two locations on his drawings as the point of ignition. He
believed the No. 1 crack location was the point of ignition
because it is more consistent with the testimony of flame coming
from the gob, than location No. 2, but stated that "both could be
or either could be" (Tr. 227}. He further explained as follows
(Tr. 2 2 8 - 2 2 9) :
I take the position that it is not reasonable· to
assume that we had many or more then one simultaneous
fall of a large block of stressed rock at the same
instant. And therefore, I am taking this as a point
that in my opinion, the most probably point of ignition was the fall -- was the breaking up, the forming
of the crack one and the forming of the crack two.

* * * *
2 0 31

Q.
Mr. Mitchell, do you agree with MSHA's
conclusion that the ignition source was a frictional
ignition?

A.
Yes, I agree with that conclusion. That is
my opinion and finding as the most probable source.
Q.

From where did the methane gas come?

It is my opinion that the methane, the great
A.
majority, if not all of the methane that was involved
in this ignition, came from the fractional planes
propagated and came out, was liberated through the
fracture planes in that sandstone, as indicated by
lines one and t~o on that exhibit.
Mr. Mitchell stated that the fact that the ignition occurred
does not indicate that the gob was poorly or improperly ventilated. He explained as follows (Tr . 230-231):
A.
This major outflow of methane -- there is
no gob in the United States, no ventilation system
in the United States that is capable of handling
sudden outbursts. In fact, we're not even able -in most mines where we have outbursts of methane in
active workings, we have no means to militate against
these even where we have positive, strong ventilating
currents.
With regard to Citation No. 2724034, Mr. Mitchell stated
that the air measurement of 2,037 cfm of air passing through
the bleeder regulator had no relation to the ignition because
it was only one of four regulators that were controlling the
air flow from the active working faces and through the gases
contained within the gob, into the bleeder. He believed the
rest of the air circulating through the gob was keeping methane
within the gob from coming out oh the working face and directing that methane and other contaminants within the gob to the
four regulators that intersect the bleeder system for the
2-1/2 section (Tr. 232).
Mr. Mitchell stated that he was involved in the drafting
of the original regulation in 1970 concerning the ventilation

2032

of the gob and the bleeder system, and that the intent of the
standard "was to keep the methane that was normally associated
with the gob away from the working faces where it could be
ignited by the equipment and by the people in the active workings." He further stated that at the time the regulation was
promulgated, "none of us considered any possible outbursts of
gas in the gob. This was something alien to our knowledge"
(Tr. 233) .
Mr. Mitchell was of the opinion that the violation was
issued because there was an ignition (Tr. 235). He was of
the further opinion that the drill hole regulator did not
contribute to the alleged violation because that particular
cited location was only one of four exit points that allowed
methane/air mixtures to move from the worked out area into a
return air course as required by the regulation (Tr. 241).
Based on his experience and understanding of section
75 . 334(b) (1), he did not believe that Citation No. 2724034
described a valid violation (Tr. 242) .
In response to questions as to whether he believed there
was a "proper and good bleeder system" on the section prior to
the December 29, 1992, ignition, Mr. Mitchell stated that given
the pressure against the curtains and the flow of air in the
November 5 heading, "there was a good bleeder system in action"
(Tr. 242). With regard to the No . 4 entry, he believed that
the gas-offs indicated that the bleeder system was working
(Tr. 243) . He concluded that the bleeder system "did the job
intended'' (Tr. 242), and he disagreed with Mr . Wirth's "body of
methane" in the gob testimony, notwithstanding his original
perception that the probable source of the ignition fuel . was a
body of methane in the gob (Tr. 246-248).
Mr . Mitcbell stated that based on his review of his pressure
differential calculations from the No. 4 and No. 5 active faces
to the back of the bleeder and the four regulators, and the gas
bottle sample readings obtained by Mr. Wirth and by Mr . Uhl, he
concluded that as of January 5, 1993, the drill hole regulator
was regulating the flow of air from the active workings through
the worked-out area, and into the return air entry {Tr . 250).
Mr. Mitchell was of the opinion that the drill hole regulator in question met the definitional test of "non-combustible

20 33

..

;:

material" as stated in regulatory section 75.301, but does not
meet the ventilation plan requirement that it be constructed of
~incombustible" material, because coal is capable of being burned
{Tr. 250-253).
Mr. Mitchell stated that he has questioned mining personnel
at other mines in the area and found that they were ignorant of
the phenomenon of a sudden inundation of methane and an ignition
resulting from friction (Tr. 254 ) . He believed that the event in
question was an ignition and not an explosion, and he explained
his conclusion in this regard (Tr. 255-262).
Qn cross-examination, Mr. Mitchell expressed agreement with
Mr. Wirth's calculations concerning the amount of air going
through the drill hole regulator {Tr. 264}. He was aware that
Mr. Wirth took additional readings of the air passing through the
regulator when he returned on January 26, 1993, and that Consol
engineers did not measure the air, but relied on a balance
analysis. He ~greed that his 1990 ventilation survey was made
when the 2-1/2 section was not in existence, and that he took a
later survey of that section more than a year after the ignition,
but never went to the drill holes (Tr. 267}. He agreed that he
may have stated that it would have been desirable to go to the
drill holes when he gave his deposition and, in any event, agreed
that it would have been a good thing to do. He did not go to the
drill holes because he was tired (Tr. 268-269).
Mr. Mitchell confirmed that he was in error when he stated
in his prior deposition that the roof was hanging all the way
back to the drill holes, and that he has corrected his prior
statements (Tr. 270-273). He conceded that he changed his prior
testimony that he could see back to the gob where the coal
barrier was during the earlier hearing in this matter and after
Mr. Wyatt c0rrected him and indicated that they could . only see
150 feet (Tr. 276).
Mr. Mitchell stated his judgment that at one point in time
on December 29, 1992, the bleeder system was inadequate and this
was when the 15,000 or more cubic feet of air was returning down
the No. 5 heading into the main return, rather than into the gob.
He would have preferred a positive ventilation at that entry,
rather than a return. However, he believed this was corrected
when the No. 5 entry ventilation was changed and it became an

2034

intake (Tr. 280-281). He then, "in retrospect," corrected his
prior opinion as to the inadequacy of the bleeder, and indicated
that his opinion had nothing to do with the bleeder system, but
rather, the available air being directed into the gob (Tr. 281282) .
MSliA's Arguments
Fact of Violation
Order No. 2724034. 30 C.F.R. 75.334(b) (1)
MSHA asserts that after an exhaustive investigation, it
determined that the explosion that injured five miners resulted
from an inadequate bleeder system which allowed methane to
accumulate in the gob in the explosive range. MSHA concludes
that the body of methane was ignited in the gob by frictional
heating or piezoelectric discharges during a roof fall, and it
rejects Consol's position that the explosion was the result of
a sudden and unpredictable release and inundation of methane
from the overlying roof strata.
MSHA argues that the clear intent of section 75.334(b) (l)
is to prevent an accumulation of methane which could result in
an explosion, and it maintains that the evidence is overwhelming
that the 2-1/2 section bleeder system was not in compliance with
the requirements of section 75.334(b) (1) on December 29, 1992,
when the explosion occurred.
In support of its theory that a body of explosive methane
in the gob caused the explosion, MSHA asserts that the credible
eyewitness testimony of Mr. Whitaker and Mr. Dean reflect that
the flames came out of the gob. MSHA further relies on the fact
that the gassing off of the miner machine prior to the . explosion
was an indication that the bleeder system was failing and allowing methane to accumulate in the gob. Since the section had not
previously encountered significan't amounts of methane, MSHA
concludes that it was unlikely that pockets of methane would be
encountered in quantities that were encountered when the miner
gassed off, particularly since the miner gassed off at least
three times a few hours prior to the explosion. MSHA rejects
Consol's arguments that it was purely coincidental that these
events occurred so close in time, and takes the position that

20 35

.:

:·

such a coincidence is highly improbable and completely
unsupported by any credible evidence.
MSHA argues that the only evidence to support Consol's
theory is the testimony of its expert witness Donald Mitchell.
However, MSHA asserts that the evidence relied on by Mr. Mitchell
is not credible, and his opinions and conclusions are likewise
not credible. MSHA points out that Mr. Mitchell based his
opinion upon a ventilation survey done two years prior to
the existence of the 2-1/2 section, a partial survey by Consol
engineers after the explosion which Mr. Mitchell admits contained
errors, non-existent eyewitness statements that the explosive
flame came from the roof, and his own observations when he
visited the section more than a year after the explosion.
In further support of its case, MSHA states that
Mr. Mitchell's observations are not credible. MSHA argues
that in his deposition, Mr. Mitchell stated that when he went
to the section he was able to see through the gob from the No. 3
and 4 entries and was able to see the drill holes at the back
side· of the gob. However, MSHA points out that these statements
were contradicted by every witness, including Mr. Hrovatic and
Mr. Crutchfield who testified it was impossible to see to the
drill holes from where Mr. Mitchell was because a cap lamp would
not shine that far and because the roof in the gob had caved in.
MSHA notes that Mr. Mitchell changed his testimony on this point
at the hearing after hearing the other witnesses contradict his
deposition statements.
MSHA takes issue with the accuracy of Mr. Mitchell's statements and observations about the gob roof conditions and the
source of the flame at the time of the explosion in. a paper that
he published on wind blasts caused by rock falls . MSHA maintains
that Mr. Mitchell's theory that the explosion was the . result of a
sudden release of methane from the roof is not plausible, and it
concludes that his testimony was designed to justify Consol's
theory regarding the cause of the explosion. In this regard,
MSHA points to a report submitted by Consol pursuant to Part SO
of the regulations explaining the cause of the accident which
states that "the methane gas was liberated from the Pocahontas
# s seam with the pillar fall. Amonate # 31 Mine produces coal
from the # 4 seam, which lies below the # 5 seam." MSHA
concludes that it is clear that rather than reviewing the facts

2036

and then drawing conclusions from those facts, Mr. Mitchell
developed a theory which would substantiate a conclusion which
had already been reached months earlier by Consol. Under the
circumstances, MSHA believes that Mr. Mitchell's ~onclusions and
opinions in this matter should be given no weight.
MSHA argues that the evidence supports a finding that the
explosion resulted from an ignition of a body of methane in the
gob, and that the methane was allowed to a~cumulate because the
bleeder system was inadequate. MSHA asserts that the manner in
which the bleeder system was set up, and because it was not being
properly evaluated, allowed the methane to accumulate in the gob.
MSHA points to the testimony of Mr. Wirth and Mr. Uhl that the
bleeder system was not adequately ventilating the worked-out area
between the pillar line and the drill holes because the drill
holes were not allowing enough air to exit through that location
and because the other regulators on the left side of the section
caused the air going into the gob to go directly to where those
regulators were located and to simply sweep the fringe area of
the gob.
MSHA further argues that all of the testimony presented by
both sides indicates that a minimum of 10,000 to 12,000 cubic
feet per minute of air was considered to be the amount of air
flow necessary at the drill hole regulator on the back side
of the section to adequately ventilate the gob. MSHA cites
Mr. Wirth's testimony that at the time of the explosion slightly
more than 2,000 cfm of air was going through the drill holes, and
that at no time was more than 2,828 cfm going through the holes.
With regard to Mr. Hrovatic's testimony that he measured a
greater amount of air flow at the drill holes, MSHA concludes
that these measurements were not reliable because Mr. Hrovatic
improperly used an anemometer to make the measurements. Further,
MSHA emphasizes the fact that no other witness contrad~cted
Mr. Wirth's testimony concerning the amount of air going through
the drill holes, and that Mr. Mitchell agreed that Mr . Wirth's
calculations were consistent with ' the ~best engineering
principles."
MSHA asserts that an additional factor contributing to the
inadequacy of the bleeder was the fact that the regulators on
the left side of the section were drawing the air along the
pillar line. MSHA relies on the testimony of Mr. Wirth and

2037

Mr. Uhl that the air flow pattern in the gob was such that as
the air entered the gob from the section, and it followed the
path of least resistance, and split toward the left hand side
of the section, skirting the fringe of the gob, and traveled to
the left side regulators. Since the air between the pillar
line and the drill holes was a path of relatively high resistance
because the roof in the gob had caved in, and because only
slightly more than 2,000 cfm was exiting the drill holes, MSHA
believes that the rest of the 17,000 cfm that was measured going
into the gob must have been going to the regulators on the left
side of the section.
In response to Consol's argument that because the section
foreman measured 17,000 cfm of air going up the No. 5 entry into
the gob, there was adequate ventilation of the gob, MSHA points
out that, as explained by Mr. Wirth, measuring the amount of air
entering the gob gives only one component of the bleeder system,
and that in order to effectively evaluate the entire bleeder
system Consol needed to determine the air flow patterns or
distribution of air throughout the gob, where the air was exiting
the gob, and the methane and oxygen concentrations at the points
where the air exited the gob into the return entry.
MSHA concludes that it has proved by much more than a
preponderance of the credible evidence that there was a body of
methane in the gob which was ignited and that the body of methane
was able to accumulate because there was an insufficient amount
of air going through the worked out areas of the gob to dilute
and render harmless that methane, and that even superintendent
Wyatt did not seriously dispute that the bleeder system, as it
was set up on December 29, 1992, was unacceptable. Accordingly,
MSHA believes that the order should be affirmed.
Order No. 2724034. 30 C.F.R. 75.364(a) (2)
MSHA argues that section 75.364(a} (2) requires Consol to
evaluate the effectiveness of bleeder systems every seven days.
It points out that the order states that mine superintendent
Wyatt and mine foreman Crutchfield indicated that no one was
examining the bleeder regulator and that the area was
inaccessible. MSHA asserts that the evidence establishes that
the only evaluation of the bleeder that Consol was doing was
taking air readings on the active section and at BEP 10, and

20 38

that there is no dispute that persons were not traveling the
return entry to where any of the regulators were prior to the
explosion on December 29, 1992. In response to Consol's position
that the approved ventilation plan allowed them to evaluate the
bleeder system by using cross-sectional readings taken on the
section, MSHA maintains that given how the section was developed,
cross-sectional readings were not an effective method for
evaluating the bleeder system.
In support of the violation, MSHA argues that even assuming
that cross-sectional readings was an approved and effective
method for evaluating the bleeder, Consol was not even taking
proper cross-sectional readings in that such air readings must
be taken in the intake, return, and belt entries. In this case,
MSHA states that the most recent entry in the weekly examination book, dated December 21, 1992, shows that readings were
taken only in an intake entry and in the belt entry, and that
Mr. Crutchfield testified that these readings alone do not
provide the necessary information for determining how much air
was entering the gob. Further, MSHA points out that as explained
by Mr. Wirth, although cross-sectional readings would have been
an effective means of evaluating the bleeder when the section was
initially intended to be developed, with one exit point in the
gob for the air to enter the bleeder entry, once Consol deviated
from its initial projections and installed the other regulators
on the left side of the section, cross-sectional readings would
not enable Consol to determine where the air was going once it
entered the gob.
MSHA takes the position that Consol's mining of the section
out of sequence is not, in and of itself, a violation of anything, so long as the actual mining sequence does not create a
hazardous condition. Conceding that the original ventilation
plan supplement allowed for cross-sectional readings as an
acceptable method for evaluating the bleeder under the scenario
presented to Mr. Walls, MSHA maintains that there is no question
that the scenario presented to Mr .' Walls is not what was present
on the section on December 29, 1992 and that any reasonably
prudent mining person would know that cross-sectional readings
were not an effective method of evaluating the bleeder system.
Since there was more then one bleeder outlet where the air exited
the gob into the bleeder entry, MSHA concludes that there was no
way for Consol to know where the air was going in the gob. Under

2039

these circumstances, MSHA concludes that the only information
that Consol could obtain from cross-sectional readings was
limited to · only one component of a bleeder system, · namely, how
much air was going into the gob.
MSHA argues that Consol did not follow the original mining
plan in that the intended projections were not followed,
additional regulators were installed, a proper regulator was
not e stablished on the back side of the section, the agreed upon
amount of air at that proposed regulator was not provided, the
left side of the gob was not ventilated with intake air, and the
regulators at the back side of the gob were all inaccessible,
despite Mr. Wyatt's representation to Mr. Walls that the area
near the drill holes could be examined .
In response to Consol's assertion that BEP 10 was the
bleeder evaluation point for the section, MSHA agrees that the
air was going to that location, but disagrees that this establishes that it was the section evaluation point. MSHA points
out that air in excess of 200,000 cfm was going to BEP 10,
including, at most, 64,000 cfm that was from the 2-1/2 section .
Therefore, MSHA concludes that readings at BEP 10 would not have
been an effective way to evaluate the section bleeder system,
and the weekly examination entries for the section do not list
readings taken at BEP 10 .
In response to Consol's suggestion that any inadequacy
resulting from cross-sectional readings was Mr. Wall's responsibility because he approved that method of evaluating the
bleeder, MSHA states that it is clear that cross-sectional
readings were approved on the basis of conditions quite different
from those present on December 29, 1992. MSHA poipts out that
there was a myriad of conditions and circumstances which could
not possibly have been anticipated by Mr. Walls, s uch as Consol
altering its projections for developing the section, or not
installing a regulator where one was proposed. In any event,
MSHA believes that Consol must be held responsible for ensuring
that an adequate bleeder system is provided where one is
required, and that the results of not doing s o a re gravely
obvious from the events that occurred giving rise to this case.
MSHA .believes that Consol failed in this obligation, and that
the order should be affirmed .

2 0 40

Consol's Arguments
With regard to the inadequate bleeder system violation,
Consol asserts that in order to prove a violation, MSHA must
establish by a preponderance of the evidence that the bleeder
system did not move the methane-air mixtures away from the
section and into a return air course. Consol believes that MSHA
has failed to carry its burden because the evidence established
that the ventilation on the section at all relevant times moved
methane-air mixtures from the working areas, through the gob, and
into the return .
Consol argues that its theory regarding the cause of the
ignition is supported by expert witness Mitchell's analysis
based on the existing evidence and well known scientific
principles. Consol concludes that MSHA's investigators and
experts ignored key evidence that should have cast doubt on
their theory that the "explosion" resulted from the ignition
of accumulated gob gases . In this regard, Consol asserts that
MSHA's characterization of the ignition as an explosion is not in
accordance with the definitions of those phenomena developed at
the Bureau of Mine's experimental mine as testified to by
Mr . Mitchell in a paper he co-authored distinguishing the
damaging forces of "explosions" and "ignitions."
In support of its theory that the ignition was caused by a
spontaneous outburst of methane from the type of sandstone roof
found on the section, Consol relies on the eyewitness testimony
of Wayne Dean that he observed the roof "set down" one to
two inches, followed by a blue flame coming from the roof crack,
and Mr. Mitchell's explanation that the existence of a blue flame
is associated with higher concentrations of methane such as would
be released in spontaneous outbursts from the sandstone roof.
Consol further relies on Mr. Mitchell's testimony that the
observation of a return flame by the miners, and the lack of
flame damage in all directions, is consistent with a spontaneous
methane outburst from the roof, and supports his conclusion that
the methane ignition did not originate in the gob.
Consol asserts that MSHA's theory regarding an accumulation
of gob gases appears to be based upon a misunderstood notation
on the approved section ventilation plan. Consol points out that
the inspector noted in the order that ~[t]he approved ventilation

2041

map indicates that the back side of 2-1/l section, MMU 015, can
be examined." Given that mine superintendent Robert Wyatt and
mine foreman Danny Crutchfield had informed investigators that
the area at issue was inaccessible and could not be examined,
Consol suggests that the investigator apparently concluded that
the bleeder system must have been inadequate, and must have been
the cause of the ignition.
Consol maintains that MSHA's theory is full of unexplained
holes and significant omissions. As one example, Consol points
out that while Mr. Mitchell relied upon personal observations
and accounts of witnesses who gave a precise indication of the
point of ignition, MSHA's expert witness, Clete Stephan, did not
consider any witness accounts, and could only state that the
ignition point was somewhere inby the continuous miner at an
undetermined point somewhere along the gob fringe area. Further,
Consol asserts that Mr. Stephan and MSHA expert Wirth contradicted each other with respect to the origin of the ignition, and
that Mr. Wirth theorized that it occurred at the crack viewed by
Mr . Dean, and that the flame traveled back into the gob and
ignited accumulated methane . Contrasted with this is Consol's
assertion that Mr. Mitchell supported his theory with an analysis
of the rock fall and seams involved, and pertinent scientific
literature regarding stress fractures, the methane holding
ability and incentive properties of different types of rock.
Consol cited further examples of ·omissions by MSHA,
including the omission from its accident report of bottle sample
methane readings taken by Mr. Wirth at the drill hole regulator.
Consol believes that the samples showed that the gob ventilation
was sufficient to move air and gases through the bleeder drill
holes in quantities and at velocities sufficient to dilute and
render harmless methane contained in the gob.
Consol cites the failure of Mr. Wirth to recognize the
significance of the 2 . 2 inch water gauge reading he obtained
from the bleeder system, and his ' lack of understanding of the
relation of pressure differentials and air flow in evaluating
the effectiveness of the bleeder system. Mr. Mitchell, on the
other hand, made it clear that such water gauge readings are a
key element in evaluating blee~er systems, and that a 2.2 reading
is considered "outstanding."

2042

Consol points out that while Mr. Wirth indicated that a fall
in barometric pressure caused methane from an unventilated gob
area to flow out into the No. 4 push, leading to the gas-offs in
that push, and eventually, to the ignition, he failed to include
this analysis or information regarding the barometric pressure
readings in his report. Mr. Mitchell, however, presented weather
data for the month of December, 1992, demonstrating that the slow
decrease in barometric pressure occurred too close to the time of
the ignition to have any effect on gob gases .
Consol asserts that Mr. Wirth contradicted his own theory
regarding the outflow of methane from the gob and indicated that
the more likely explanation for the miner machine gas-off was
that it hit a pocket of methane, and not that methane was flowing
out from the gob. On the other hand, Mr. Mitchell stated that
Mr. Bandy's finding of methane in the No. 5 entry return at the
time of the gas-offs showed that the bleeder system was working
to sweep air away from the active workings into the gob, and then
to the return. Mr. Mitchell further opined that the · methane that
caused the gas-offs emanated from lesser cracks in the sandstone
roof of the No . 4 entry, which led to short-lived outflows of
methane that were swept away by the ventilating air.
Consol argues that MSHA's experts and investigators have
proceeded in this case on the theory that a violation of section
75.334(b) (1) IIU.Ul.t. have occurred because an ignition occurred.
Consol asserts that this is contrary to MSHA's own pronounced
acknowledgment in Secretary v. Ozark. Inc., 14 FMSHRC 941
(June 1992). Consol further argues that the occurrence of an
accident or fatality is insufficient to establish a violation,
especially when eyewitness testimony demonstrates that no
hazardous conditions or violations existed prior to the accident.
~ ~:
Secretahy v. Ideal Cement Co., 11 FMSHRC 1776, 1783
(September 1989), Donoyan v. Federal Clearing Die Casting Co.,
655 F.2d 793, 797 (7th Cir. 1981), cited by Consol.
Consol argues that unsubstantiated assertions that a bleeder
system is inadequate are insufficient to support a finding of
a violation. Beckley Coal Mining Co. v . Secretary of Labor,
3 FMSHRC 2593 (November 1981) . Relying on several Commission
decisions dealing with comparable provisions of the former
ventilation regulations, Consol asserts that a bleeder system
is considered adequa.te if air is moving away from the working

2043

area, through the gob, into the bleeder and out to a return.
If these ventilation facts are established, Consol asserts that
a bleeder system will be considered in compliance, even though
high levels of methane are located in the gob itself. Itman
Coal Co., 2 FMSHRC 1986 (July 1980); Island Creek Coal Co.,
15 FMSHRC 339 (March 1993); Y-P Mining Co., 15 FMSHRC 1531
(August 1993 ) . Consol concludes that these cases make clear
that the test for whether a bleeder system is adequate is whether
air is moving through the gob and into the bleeder, and whether
methane is being diluted as it travels from the gob, through the
bleeders, and into a return.
Consol emphasizes the fact that it was not cited for any
violation of its mine ventilation p l an, or for failing to
construct regu l ators in a manner pref erred by MSH.A. Under the
circumstances, Consol concludes that MSH.A's arguments regarding
whether it had air flowing in the appropriate directions in
various entries on the section, whether drill holes can be used
as regulators , and whether such drill holes are "non-combustible"
are irrelevant to determin ing liability in this case, except to
the extent, if any, they relate to the adequacy of bleeder system
ventilation on the 2-1/2 section.
Consol maintains that the cited section was "one well ventilated section," typically intaking between 50,000 and 57,000 cfm
of air . Consol points out that methane was rarely found on the
section, and, when found, concentrations were usually well below
one percent, with methane readings of .1 and .2 percent recorded
in the Preshift/Onshift Daily Report book for December 28 and 29,
1992, and well within the range of methane readings that former
assistant superintendent Hrovatic testified were found on the
section .
In response to Mr . Wirth's belief that the presence vf even
minimal methane, and the occurrence of a gas-off on a section
which typically had no methane problems, should have alerted
management that methane was accumulating in the gob and backing
up onto the section, Consol relies on the conclusions by the
miners and supervisors who investigated the cause of the gas-offs
that the machine had hit a pocket of methane, the absence of
methane at the gob line across the entire section when examined
by Mr. Crutchfield, and the appearance of the gob line curtains
demonstrating that positive pressure existed into the gob.

2 0 44

Consol emphasizes several deficiencies in MSHA's theories
that the bleeder ventilation was insufficient at the time of
the ignition. Consol points out that Mr. Wirth did not dispute
the fact that 16,000 to 17,000 cfm of air was flowing over the
mining machine into the gob at the No. 5 entry at the time of
the ignition, and he failed to take any smoke tests to support
his conjecture that the air would skirt the edge of the gob
because of the manner in which the bleeder was set up. Consol
further concludes that Mr. Wirth's own testimony established
that air was entering the gob at numerous points, and some of it
was sweeping to the left and entering the bleeder system through
the two left regulators, while other air swept to the back of
the gob entering the bleeder system and right returns through
the drill holes. Finally, Consol points out that none of MSHA's
witnesses offered an opinion as to what quantity of air is
necessary to "adequately" ventilate a gob, and Mr. Uhl stated
that no regulation exists specifying any particular air quantity.
With regard to the alleged failure to perform adequate
weekly examinations of the bleeder system to determine the
effectiveness of the system, Consol asserts that in order to
prove a violation, MSHA must establish that Consol failed to
take methane and oxygen measurements and air direction tests
at "locations approved in the ventilation plan." Consol
concludes that MSHA has not met its burden, since the preponderance of the evidence established that the locations for
methane and oxygen measurements were approved in the ventilation plan in lieu of traveling the bleeder, the required
measurements and tests were conducted not only weekly, but at
least daily and, if necessary, more frequently at locations
approved in the ventilation plan.
In response to Mr. Wirth's assertion that Consol failed to
conduct weekly examinations that could have detected the preigni tion body of methane that flowed from the gob, Consol points
out that Mr. Wirth admitted that h~ never reviewed the weekly
pre-shift or on-shift books before determining that the alleged
methane body could have been detected through such examinations,
but instead supposedly relied upon verbal reports by unidentified
others that the examinations were not performed properly. Consol
concludes that had Mr. Wirth consulted the examination books, he
would have learned that excessive levels of methane had not been
detected on the section in the days or weeks preceding the
ignition.
20 45

Consol asserts that the real dispute in this matter
centers on an interpretation of the requirement in 30 C.F.R.
§ 75.364(a) (2) (iii) that bleeder systems be traveled weekly in
their entirety "or to locations approved in the yentilation plan
where measurements of methane and oxygen concentrations and a
test to determine if the air is moving in its proper direction
cab be made." Consol contends that this regulatory option allows
the required tests to be made at MSHA approved bleeder evaluation
points (BEPS) that are typically designated when travel through a
bleeder entry would subject an examiner to hazards caused by
deteriorating roof and ground conditions.
Consol states that the allegation by Mr. Wirth and Mr. Uhl
that the bleeder evaluation was inadequate was based in part on
the inaccessibility of the drill hole regulator and the two left
side regulators, and Consol's ability to take the required
methane and air readings at those locations. Consol concludes
that based on a ventilation map notion stating, "[t]his area can
be examined," MSHA assumed that at least the bleeder drill hole
regulator was required to be accessible, despite testimony by
Mr. Walls that the notation was one of convenience placed on the
map to avoid the necessity of filing a cut-through plan.
Consol argues that MSHA offered conflicting testimony as to
whether regulators are required to be accessible. Consol points
out that Mr. Walls stated that regulators not designated as BEP's
are not required to be accessible, while Mr. Wirth testified
that a specific regulation requires the operator to travel to
regulators. However, Mr. Wirth neither cited any such regulation, nor indicated that Consol had been cited for violating
the alleged specific requirement. Consol further points out that
MSHA's argument that the bleeder system could not be adequately
evaluated on December 29, 1992, unless the regulators were
accessible, is called into doubt by Mr. Wirth, who testified that
he was able to develop an effective and reliable ventilation
·
survey for the section, notwiths~anding his inability to access
the left regulators.
In response to MSHA's contention that Consol invalidated the
bleeder evaluation methane approved by Mr. Walls when it deviated
from the ventilation plan approved mining sequence by first
driving to the left, rather than straight to the back of the

2046

.,

section, Consol maintains that an approved and adopted plan must
provide it with notice as to what is required for compliance.
Based on all of the testimony, Consol concludes that Mr. Wyatt
and Mr. Crutchfield had absolutely no indication that Mr. Walls
was requiring that the section be driven first directly to the
back, that driving to the left first would invalidate the use of
cross-sectional readings for bleeder evaluation, or that BEP-10
was not the designated BEP for the section.
Consol asserts that both Mr. Walls and Mr. Wyatt relied on
the ventilation map markings as a means of understanding the
ventilation plan requirements, and that Mr. Walls initially
testified that markings on the face of the ventilation map
indicated to him that cross-sectional readings were t~ be used
as the approved bleeder evaluation method, and that air on
the section must pass through BEP-10 to get to the fan. Though
Mr. Walls later contradicted himself, arguing that air from the
section did not directly pass through BEP-10, Consol concludes
that his original testimony lends support and credence to the
argument of Mr. Wyatt and Mr. Crutchfield that their understanding was that the bleeder system was to be evaluated by
taking cross-sectional readings and conducting the required
measurements and tests at BEP-10. Consol further concludes
that its interpretation of the MSHA approved ventilation map
and plan as permitting the use of cross-sectional readings and
evaluations at BEP-10 was not only reasonable, but supported by
Mr. Wyatt's past dealings with Mr. Walls and MSHA.
Findings and Conclusions
Fact of Violation - Order No. 2724034
Consol is charged with a violation of mandatory safety
standard 30 C.F.R. 75.334(b) (1), because of its alleged .failure
to provide an adequate bleeder system for the cited 2-1/2 section
on December 29, 1992. The order, on its face, states that the
bleeder system did not control the 'air passing through the
worked-out area to continuously dilute and move away methane airmixtures from the active workings and into a return air course.
MSHA has the burden of proving these allegations by a preponderance of the credible evidence. Section 75 . 334(b) (1) provides
as follows:

2047

During the pillar recovery a bleeder system
shall be used to control the air passing through
the area and to continuously dilute and move
methane-air mixtures and other gases, dusts, and
fumes from the worked-out area away from active
workings and into a return air course or to the
surface of the mine.
As noted earlier, the event which resulted in these penalty
proceedings occurred on December 29, 1992, nearly three years
ago . Following a rather extensive accident investigation which
began the day after the incident, and continued into January
and February, 1993, MSHA concluded that the explosion occurred
as a result of methane accumulations in the gob area of the
2-1/2 section due to an inadeQ)late bleeder system and management's failure to properly examine the bleeder to determine its
effectiveness.
In the course of the hearing, the parties went to great
lengths in examining the cause and effect of the "ignition" or
"explosion." MSHA believes that the "explosion" occurred after
an explosive body of methane that was allowed to accumulate in
the gob was ignited during a roof fall in the gob. Consol
believes that the "ignition" did not originate in the gob, and
that it was caused by a spontaneous and unpredictable outburst
from a sandstone roof crack that had suddenly developed in the
roof area where the continuous miner was mining immediately
before the incident.
After careful review and consideration of the entire record
in these proceedings, I cannot conclude that MSHA or Consol has,
with any reasonable degree of evidentiary certainty, established
the cause of the ignition or explosion. In my view, both parties
presented speculative causation theories based on aft.er-the-fact
"best guesstimates," assumptions, and opinions based on information that I find conjectural, contradictory, or unreliable.
Under the circumstances, I can only conclude that the cause of
the accident remains unknown.
MSHA Inspector Frank Walls conf irrned that he has no formal
college or engineering training, but nonetheless has been
involved with the review and approval of mine ventilation plans
since 1990, and was directly involved in the plan approval

2048

process for the cited sec tion. The testimony by Mr . Walls is
primarily directed to the plan provisions. He was not involved
in the accident investigation or the issuance of the violations ,
and he could not comment on whether or not the section bleeder
system was adeguate . With regard to the violation, he believed
it was issued because the additional regulators that were
installed were inaccessibl e and di d not provide a means for
evaluating the gob area .
Although Mr . Walls believed that accessible additional regulators in the gob area would provide a better means of evaluating
t he overall ven t ilation , he agreed that the installation of any
projected ventilation controls are discretionary and not
mandatory, and t hat Consol could have installed them "as needed.u
With regard to the accessibility of the additional regulators
that were on the section at the time of the ignition, Mr. Walls
confirmed that he had no knowledge as to whether they were in
fact accessible. With respect to the map notation indicating
that the drill hole regulator was accessible, I am convinced
that the notation was made as a matter of convenience to avoid
undue delay in the processing of the supplemental ventilation
plan and that Mr. Walls was aware that this was the case.
Further, with respect to any conversations that may have taken
place between Mr. Walls and mine officials during the ventilation
plan approval process, MSHA suggests that they were part of the
understanding as to how the section would be developed and
ventilated {Tr. 237). However, Mr. Walls testified that any
such discussions, D.Qt. incorporated as part of the approved
plan are not controlling (Tr. 11 ).
Retired section foreman Billy Bandy, who was called by
MSHA as a witness, and who was the foreman at the time of the
ignition, testified that his on-shift examination included a
determination as to whether the bl~eder was operating properly,
and he was of the opinion that the 17,000 cfm of air going over
the mining machine and into the g~b, and his air checks and
observations of air pressure against the ventilation curtains ,
indicated to h i m that the bleeder was operating properly and that
there was good positive air flow across the gob . Mr. Bandy's
testimony regarding the air flow into the gob stands unrebutted .

2 049

MSHA Inspector Donald White, whose participation in the
post-ignition accident investigation was limited to a rock-dust
survey, confirmed that he had no input into the issuance of the
violations. The record reflects that he collected his samples on
January 4-5, 1993, and he was of the opinion that samples taken
immediately prior to or close to the day of the ignition would
better indicate the conditions that existed on the day of the
ignition, as opposed to samples taken six or seven days later,
and that an ignition or an explosion would have some effect on
his sample results.
MSHA principal engineer Clete R. Stephan, who was qualified
and accepted as an expert in explosions and mine fires, tendered
opinion testimony concerning the probable cause and effect of the
explosion. With regard to Mr. Stephan's discussions concerning
the "Extent of Flame Forces,''. at page .25 of MSHA' s Accident
Investigation Report, I take note of his statement that part
of the information in support for his conclusions "was gathered
during the und'~rground investigation from discussions with
persons who are knowledgeable of the facts surrounding the
explosions," and from "reports on the condition of the surviving
victims after the explosion." However, during the hearing,
Mr. Stephan testified that he was not aware of any eye witness
testimony prior to writing his report, that he did not interview
any of the miner eye witnesses who were on the section at the
time of the explosion, and that he had not reviewed Mr. Dean's
statement to MSHA or State investigators with respect to what
he saw when the ignition occurred.
Mr. Stephan further confirmed that he was in the mine only
one time on January 4, 1993, for less than one shift. With
regard to any opinion on his part as to whether the bleeder
system was adequate, MSHA's counsel stated that Mr. Stephan~
not a ventilation expert and that such an opinion was . beyond
his ex;pertise (see Mr. Stephan's previously cited testimony
(Tr . .214 - .215 ) ) .
MSHA mining engineer Gary Wirth, who was accepted as a
ventilation expert, testified that he was not involyed in the
review or drafting of the yiolatioils issued in these proceedings,
that he was "somewhat" familiar with this case (Tr. 18.2),
and that he was "in general" able to render an opinion with
regard to the gob air flow that existed oh the day of the

2050

ignition, and that he had sufficient information "in general"
on which to base that opinion (Tr . 169) . His testimony is based
on a three-day post - ignition ventilation survey that was made
on the section on January 4, S, and 26, 1993. After careful
scrutiny of Mr . Wirth's testimony, I have serious reservations
and doubts concerning the accuracy , consistency, and credibility
of the information he relied on in support of his opinions and
conclusions concerning the inadequacy of the bleeder, and my
reasons in this regard follow.
Mr. Wirth stated that the intent of his January 4 and s,
1993, ventilation survey was to. evaluate the section as it was
at the time of the December 29, 1992, ignition, and that an
"attempt" had been made to restore the section to is pre-ignition
condition. However, he confirmed that he was advised prior to
going underground that the section conditions were not the same
when the survey was made and that a return regulator was blown
out and some of the right side stoppings were damaged and
leaking . Although Mr. Wirth subsequently took additional air
readings on January 26, 1993, he still relied on his January 4
and 5, 1993, survey information based on conditions that were
different from those that existed on the day of the ignition .
I take note of the fact that Appendix G to MSHA's accident
report is a ventilation schematic diagram that is labeled
Ventilation Schematic Immediately Prior to Explosion and
Locations of Ewiipment, and the report at page 14, authored by
Mr. Wirth states that the schematic "is a face-ventilation
diagram showing the face ventilation at the time of the
explosion," followed by a discussion and conclusions concerning
the ventilation based on that diagram. Although Mr. Wirth denied
that his diagram was at the foundation of his opinion concerning
the adequacy of the bleeder system, he acknowledged that he was
aware of the conflicting hearing testimony of the miner crew with
respect to the accuracy of the information on the diagram.
Although Mr. Wirth was of the opinion that no reasonably
prudent mining person would have used cross-section readings
to evaluate the bleeder system on December 29, 1992, the
MSHA- approved supplemental plan of April 21, 1992 , permitted
cross-sectional readings. When asked if this were true,
Mr. Wirth stated that he was not familiar with the entire
ventilation plan and could not state whether the plan a llowed

2051

or prohibited cross-sectional readings at that time. He also
' he did not review the plan in formulating
acknowledged that
his opinion (Tr. 137-138).
In its post-hearing brief, at page 45, MSHA asserts that
mine superintendent Wyatt did not seriously dispute that the
bleeder system on December 29, 1992, was unacceptable (Tr. 117 ) .
I have reviewed Mr. Wyatt's testimony in context during his
cross-examination (Tr, 112-117) and find that it is not a
clear-cut admission as suggested by MSHA. In fact, Mr. Wyatt
explained that no one has convinced him that the bleeder system
was inadequate, and he believed , and still believes, that the
bleeder was adequate, notwithstanding 2,500 cfm of air passing
through the regulator. Further, Mr. Wyatt clarified his response
to the question posed, and stated that he would not accept
2,600 cfm of air for that entire panel or for the entire section
within the "hack" lines shown on the mine map (Tr. 113, 117).
Mr. Wirth testified that the adequacy of a bleeder system
is based on several ventilation components, and not solely on
the amount of air entering the gob area. He stated that his
survey was intended to encompass the air flow entering and
leaving the section. However, he confirmed that because of
the inaccessibility of several gob exit points, he could not
conclusively determine where all of the air flow was going,
or the exact amount of air exiting the gob. Further, although
anemometer and pitot tube readings were made at the drill holes,
the anemometer readings are not included as part of the accident
report. He also confirmed that he took a series of bottle
samples on January 5 to determine the methane and oxygen content
of the air exiting the gob area, but did not believe the test
results are included in the accident report. He also believed
that one to two percent methane was detected in the samples, and
that this would indicate that methane was exiting the ,gob through
the drill holes.
Although Mr. Wirth denied that his inability to reach the
left side regulators impacted on his evaluation of the drill hole
regulator, he acknowledged his prior deposition statement to
accident investigation supervisor Castenon that it was impossible
to completely evaluate the section gob area because he could not
reach those regulators, and he conceded that it was not possible

20 52

for him to perform and develop a complete air quantity balance
of the bleeder system. This contradictory and conflicting testimony casts doubts on the accuracy and credibility of Mr. Wirth's
survey, and its relevance to the alleged inadequate bleeder
system.
Although Mr. Wirth was of the opinion that high methane
readings "probably" would have occurred at the drill holes on
the day of the ignition, and that the presence of high methane
at the drill holes would have been discoverable by the weekly
examinations , he confirmed tha t he never reviewed the section
weekly examination books or the pre-shift or on-shift books for
the days preceding the ignition to determine whether air readings
were taken at the intake because he did not believe they were
relevant. Since Mr . Wirth acknowledge that intake air is a
component of a bleeder system, I fail to understand why such air
readings would not be relevant to a survey taken to evaluate such
a system.
Mr. Wirth 's opinion that the requirements of section
75.334(b) were not being met on December 29, 1993, was based on
his belief that the limited air quantity and insufficient air
velocity in the gob area failed to dilute the methane that had
migrated to the high right side gob area. He further believed
that the absence of methane on the section in the past, coupled
with the one percent methane reading in the No. 5 return, and the
gas-off of the miner machine in the No. 4 push with the methane
monitor set at 2.5 percent, indicated a problem and an
ineffective bleeder system.
With regard to the one percent methane found by Mr. Bandy in
the return, Mr. Wirth agreed that the air flow pattern was sweeping the gob gas and reducing it to one percent with the return
air leaving the mine, and that the remaining air was exiting
through the left side regulators. With regard to the machine
gas-off, Mr. Wirth conceded that the air sweeping the gob area
diluted and dissipated the methane that caused the gas-off.
Although he was of the initial opinion that the machine gas-off
was not the result of a methane "pocket," he later testified that
assuming the one percent found by Mr. bandy occurred with the
machine gas-off, a release of me.thane was possible. He agreed
that the return was doing the job of sweeping and diluting the
return air away from the working face.

2 053

With regard to his "body of methane" theory, Mr. Wirth
initially could not state whether it reached the No. 5 entry,
but in fact later expressed his belief that it did not appear
in that entry because there was sufficient ventilation at that
location. He also agreed that the concentration of any methane
body is indeterminable and could vary within seconds in different
mine areas. I believe this lends some credence to Consol's
theory of a sudden release of methane from the roof strata,
rather than a gob build-up resulting from an ineffective bleeder
system.
Even though he believed that the bleeder system was
inadequate, Mr. Wirth acknowledged that based on his bottle
sampling on January 5, 1993, the methane percentage exiting one
of the drill holes was less than it probably was when it entered
the gob, and that this would indicate that it was being diluted
and mixing with the air before exiting into the bleeder return
air course. With regard to his opinion that changed air flow
patterns moved ·"the body of methane" back into the gob area,
Mr. Wirth acknowledged that his opinion was "speculative," but
also stated it was based on ventilation engineering knowledge."
I cannot reconcile this inconsistent and contradictory testimony,
nor can I accept it as reasonable evidentiary support for any
conclusion that there was in fact a lack of sufficient air in
the gob to dilute and carry away methane through the return.
Indeed, the evidence, including Mr. Wirth's testimony,
establishes otherwise.
MSHA Inspector Uhl confirmed that he has a high school
education, is not a mining engineer, has no degree in anything
related to mining or mine ventilation, and his past experience
in the mining industry does not include ventilation plan
submissions to MSHA. Mr . Uhl testified that the only injured
miner he interviewed was Mr. Dean, and the record refl.e cts that
Mr. Dean was not called as a witness in this case by MSHA because
his credibility was in doubt. Mr. Uhl further testified that his
conclusion that an explosive range of methane was present in
the gob area was based on the fact that \\it was obyiously there"
since \\an explosion occurred." However, as correctly argued
by Consol in its post-hearing brief, the occurrence of an accident or an injury does not ~ factor establish a violation,
or a violative condition, particularly in the absence of any
reliable evidence establishing the cause of the accident with

20 5 4

any reasonable degree of certainty. Consol's expert witness
Mitchell was also of the opinion that the occurrence of any
ignition does not establish a poorly or improperly ventilated
gob area (Tr. 230).
Mr. Uhl believed that the bleeder system began to fail
earlier than December 29, 1992, and he confirmed that even
though MSHA was aware of violations of the ventilation plan,
no violations were issued because, as stated by Mr. Uhl, "we
elected not to because of a grace period and some other
confusion" (Tr. 212). It seems to me that if MSHA believed that
Consol was in violation of its approved plan, it should have
cited the particular violative conditions, rather than attempting
to establish an inadequate bleeder system through post-ignition
investigative assumptions, theories, and conclusions based on
conjecture, speculation, and contradictory information and
testimony that I find lacking in credible evidentiary support.
Mr. Uhl testified that one of the reasons he believed the
bleeder system was inadequate was because Consol failed to
follow the initial mining projections, particularly with respect
to the projected regulators. However, Mr. Walls testified that
projections are not enforceable as violations until they are
specifically incorporated as part of the MSHA-approved ventilation plan (Tr . 209). He also confirmed that Consol was free
to mine in any direction and sequence within the "pink hash
marks" shown on the mine map.
Although Mr. Uhl believed that the bleeder system was no
longer effective when Consol deviated from its projections and
"lost access" to the two previously established regulators when
it began pillaring the section, he admitted that he was aware
of no evidence that ventilation evaluations were not being made
while mining was conducted to the left side of the sec~ion
because he did not recall looking into that and did not consider
or evaluate this activity. He indicated that the scope of his
investigation consisted of looking "at the overall picture as to
what occurred here and what led up to it" (Tr. 258) . Mr. Uhl
later testified that the area mined to the left was being
evaluated by cross-sectional ventilation readings, and once the
regulators became inaccessible, cross-sectional ventilation
readings could be made. I find Mr. Uhl's testimony to be
confusing and contradictory. On the one hand, he believed

205 5

that the bleeder was no longer effective when access to the
regulators was lost, and on the other hand, he stated that
notwithstanding the loss of access to the regulators,
cross-sectional ventilation evaluations would be permissible.
As a matter of fact, he confirmed that full and partial crosssectional ventilation readings were made on the section, but
he did not believe they were relevant to any evaluation of the
bleeder.
1 am convinced that MSHA's post-ignition investigatory
conclusion that the bleeder system was inadequate was based on
two principal factors, namely, the occurrence of the _ignition,
and the assumption that ther.e was insufficient air flow through
the drill hole regulator to dilute and render harmless the "body
of methane" that MSHA assumed was accumulating in the gob area.

As noted earlier, the occurrence of the ignition is not,
in of itself, evidentiary proof of an inadequate bleeder system.
With regard to ·the amount of air that may have been passing
through the regulator immediately prior to the ignition,
Mr. Walls testified that there was no way of pinpointing the
amount of air going out of the regulator (Tr. 55) . He confirmed
that any discussions concerning the ventilation requirements are
not binding unless reduced to writing and incorporated as part
of the approved ventilation plan. I find nothing in any of ·
the ventilation plans approved by MSHA requiring 10,000 cfm of
air through the drill hole regulator, and Mr. Walls confirmed
that "we did not write that on anything," and that none of the
relevant ventilation plans contain any such notation (Tr. 61).
Mr. Uhl confirmed that there is no regulatory requirement for
any specific amount of air through a regulator.
Mr. Walls further clarified his testimony concerning the
requirement for a minimum of 9,000 cfm of air at the pillar
intake. He explained that this is the amount of air going into
the gob area as a whole, and not what is required through the
regulator (Tr. 58). Further, MSHA's counsel confirmed that
although there is no regulatory requirement for any specific
amount of air passing through the regulator, Consol would be held
•to a standard of adeQYacy yentilating the system" (Tr. 60).
When asked if the reported 2,360 cfm's air exiting the regulator
was relevant to that key issue, counsel responded, •we will let
the experts discuss that" (Tr. 60).

2 0 56

Mr. Wirth's post-accident air measurements of January s,
1993, at the drill hole regulator showed 2,037 cfm of air passing
through the holes, and re-measurements made at Consol's request
on January 27, 1993, showed just over 2,000 cfm. Using these
readings, Mr. Wirth concluded that at no time prior to the
explosion was there more than 2,828 cfm of air going through
the drill holes.
Mr. Hrovatic testified that he measured 5,000 to 6,000 cfm
of air passing through the regulator when the holes were drilled
at 1-1/2 inch diameters, and he described the measuring instrument as a standard, three or four inch anemometer larger than the
measured holes. After the holes were enlarged to three inches,
Mr. Hrovatic calculated 6,000 to 7,000 cfm's of air passing
through the holes, using the same type anemometer and following
the same procedures as his prior calculations. Mr. Wyatt testified credibly that Mr. Hrovatic informed him that 6,000 cfm of
air was going through the 1-1/2 inch diameter holes, and when
five of the holes were enlarged to three inches, 6,000 to
8,000 cfm was passing through the regulator (Tr. 123).
Although Mr. Wirth believed that Mr. Hrovatic's use of an
anemometer was improper, I note that he too used such an
instrument in making his survey.
Mr. Uhl believed that with only 2,000 cfm of air passing
through the regulator, a methane-air mixture was exiting through
the regulator holes and into the return air course. Mr. Wirth
believed that methane was exiting the gob through the regulator,
and, as noted earlier, he acknowledged that the air flow pattern
was sweeping the gob gas and reducing it to one percent and
diluting it with the air leaving the mine, and that the air
sweeping the gob was diluting and dissipating the methane that
caus~d the miner machine to gas-off.
This is precisely what a
bleeder system is designed to do, as required by cited ~ection
75.334(b) (1). Under all of these circumstances, I remain
unconvinced that the amount of air that MSHA assumed was passing
through the regulator, a factor that is bpt one component of the
total bleeder system, supports a conclusion that the bleeder was
inadequate and failed to provide a means for controlling the air
passing through the cited gob area to continuously dilute and
move away methane-air mixtures from the active workings and into
a return air course. Accordingly, I conclude and find that MSHA
has failed to establish a violation of section 75.334(b) (1), and
the contested order IS VACATED.
2057

Fact of violation - Order No. 274035
Consol is charged with a violation of mandatory safety
standard 30 C.F.R. 75.364(a) (2), because of its alleged failure
to perform adequate weekly examinations to determine the
effectiveness of the 2-1/2 section bleeder system. Section
75. 364 (a) (2) provides as follows:
At least every 7 days, a certified person
shall evaluate the effectiveness of bleeder systems
used under§ 75.334(b) and (c) as follows:
(i) Measurements of methane and oxygen
concentrations and a test to determine if the
air is moving in its proper direction shall be
made where air enters the worked-out area.
(ii) Measurements of methane and oxygen
concentrations and a test to determine if the
air is moving in its proper direction shall be
made immediately before the air enters a return
split of air.
(iii) At least once each week, bleeder entries
used as a part of a bleeder system under § 75.334,
shall be traveled in their entirety, or to locations
approved in the ventilation plan where measurements
of methane and oxygen concentrations and a test to
determine if the air is moving in its proper direction
can be made.
The initial mine ventilation plan approved by MSHA pursuant
to 30 C.F.R. 75.316, on September 15, 1989, prior to the development of the 2-1/2 section, provided for the evaluation of
bleeders when travel to those areas was unsafe.
(Item 14,
'· this provision,
at page 4 of the plan, Exhibit G-39) . Under
a bleeder evaluation wa~ requir~d "at least once each week,"
and the evaluation method was left to the discretion of Consol
pursuant to section 75.316-2(f) (2), which simply required an
"'adeQ)late" evaluation.

2058

The first supplement to the approved ventilation plan was
submitted to Mr. Walls on March 16, 1992, by Consol's mining
engineer Frank Underwood, and it included a diagram of projections for the 2-l/2 panel, which contains a hand-written
notation indicating that "upon retreat mining the bleeder system
will be evaluated by the difference in the intake and return
readings on the section." The plan supplement, including this
cross-sectional bleeder evaluation method, was approved by MSHA
on April 21, 1992 (Exhibit G-40).
A subsequent ventilation plan supplement was submitted to
Mr. Walls by Mr. Underwood on September 1, 1992, covering the
pillar line and bleeder controls for the 2-1/2 panel. A mine
map was included as part of the submission, and it contains the
notation, "[t]his area can be examined," at the approximate
location of the drill hole regulator (Exhibits G-41 and R-28).
It would appear to me from the foregoing plan approvals
that Consol was permitted to generally conduct an "adequate"
evaluation of its bleeders, and this was to be done at least
once a week. During retreat mining, Consol was permitted to
evaluate the bleeder system by cross-sectional readings. 1The
subsequent approved supplemental plan, which contained the mine
map notation indicating that the bleeder area could be examined,
did not specifically revoke or otherwise affect MSHA's prior
approval of cross-sectional readings as an adequate method for
evaluating the bleeder. In short, it was still in effect on
December 29, 1992.
The essence of the alleged violation is found in subsection
2(iii ) of section 75.364(a ) , which requires weekly examinations
of the effectiveness of a bleeder system by traveling to a
bleeder entry used as part of a bleeder system, .QJ:: to other
locations approved in the ventilation plan, and making measurements of the methane and oxygen concentrations and testing to
determine whether the air is moving in its proper direction. My
interpretation of this evaluation 'requirement is that Consol had
two option for insuring the effectiveness of the bleeder
regulator in question. The first option was to travel to the
regulator area and make the required tests. If this could not
be done, Consol could make the tests at another location
approved in the ventilation plan.

2 0 59

Mr. Wirth, who confirmed that the location of BEP-10 was
never clear to him, and that he was not sure that he ever
traveled to that area, believed that a violation occurred because
no one was traveling to the inaccessible regulators to test for
methane, air, and air direction.
I find MSHA's testimony concerning the accessibility of the
cited regulator to be confusing and contradictory. Mr. Wirth
testified that the regulator was required to be examined weekly
"by law,H but this was not done because it was inaccessible
(Tr . 78-79 ). However, Mr. Walls confirmed that a regulator that
is IlQt. designated as a BEP point was not required to be accessible (Tr. 48-49). Since the regulator in question was not a
designated BEP point, I conclude that Consol was not obliged to
keep it accessible as long as it provided an alter-nate plan
approved location where methane a nd air readings could be made.
Consol asserts that this location was BEP-10 . Mr. Uhl testified
that once the regulator became inaccessible, cross-sectional
readings to evaluate the bleeder could be used (Tr. 276) . This
lends support to Consol's assertion that cross-sectional
readings, coupled with the recorded BEP-10 air and methane
reading~, complied with the cited standard.
In view of the MSHA approved cross-sectional readings
evaluation method during retreat mining, it would appear to
me that this evaluation method was still available to Consol,
notwithstanding the notation that the bleeder was accessible
when in fact it could not be traveled .
MSHA concedes that Consol was not prohibited from mining
out of sequence within the established parameters of the
2-1/2 section, and agrees that air readings were taken on the
section and at BEP-10. MSHA further agrees that cross-sectional
readings were an effective means of evaluating the bl~eder
regulator when the section was initially developed. The crux
of MSHA's case is that once Consol deviated from its initial
mining projections and installed' additional regulators, it
could no longer rely on cross-sectional readings because
access to those regulators was lost when the area was mined
out, and there was no effective way of monitoring or evaluating the air ventilating the gob . MSHA also disputes Consol's
claim that BEP- 10 was the bleeder evaluation point for the
section.

206 0

Consol's pre-shift and on-shift daily inspection reports
for the 2-1/2 section reflect that daily inspections for
hazardous conditions, methane in the working places, and methane
in the returns were being made immediately prior to December 29,
1992, in the gob line, pillars, returns, intake, and haulage
areas (Exhibit G-46). The weekly examination reports of full
sectional air and methane readings reflect air readings for
October, air readings for November, and air readings in the
left and right return entries for December, 1992 (Tr. G-47).
The daily reports of examinations for hazardous conditions
and methane include notations for daily tests made at BEP 10
and other intake and return locations for the period October
through December 30, 1992 (Exhibit R-2).
Mine foreman Crutchfield, a man with 27 years of underground
mining experience, testified credibly that during a preliminary
meeting with Mr. Walls concerning the initial mining projections
for the section, it was his understanding from the approved
ventilation plan that cross-sectional air readings on the
section could be used to evaluate the drill hole regulator area,
and that BEP-10 would be the section evaluation point (Tr. 67).
With regard to the violation in question, Mr. Crutchfield
stated that the bleeder system was evaluated by taking crosssectional readings, and visits to BEP-10 every 24 hours by the
fire boss to monitor any methane (Tr. 100-101). He believed
that BEP-10 was the check point for the 2-1/2 panel (Tr. 135},
and he identified the weekly examination book records showing
the daily examinations of BEP-10 {Tr. 140; Exhibit R-2). He
further testified that the ventilation plan print showing the
flow of air toward the direction of BEP-10, coupled with these
locations shown on the mine map, led him to conclude ~hat BEP-10
was an approved checkpoint for evaluating the bleeder system on
the 2-1/2 section, and that this was no different from similar
BEP locations in other mine areas (Tr. 147-148).
Mine Superintendent Wyatt, a man with over 40 years of
mining experience, including 18 years as a superintendent,
and a credible witness, confirmed that during the initial
meeting with Mr. Walls, the projected mining and evaluation
of the section was discussed. Mr. Wyatt stated that once
retreat mining began, the regulator at the back of the section
was established to allow air from the gob to pass through the

2061

regulator and be routed into the return to BEP-10. Even though
air from other areas was routed to BEP-10, Mr. Wyatt was not
concerned and believed that this was a safe method ·for evaluating
the 2-1/2 section, and he confirmed that it was normal procedure
to use a bleeder evaluation point covering different mine areas
(Tr. 49-52). He explained that BEP-10 was monitored daily, and
if there was an unusual rise in the methane readings ,the working
section would be monitored every shift to determine if there was
a problem. He believed that Mr. Walls was well aware of the
section ventilation system (Tr . 53-60).
Mr. Walls confirmed his discussions with Mr. Wyatt and
Mr. Underwood concerning bleeder evaluation during retreat
mining. Although he denied that BEP-10 was an approved bleeder
evaluation point for the section, Mr. Walls agreed that it was
the evaluation point for air corning from other mine .areas
through the same drill hole regulator area where air was routed
into the return fan area and out the mine (Tr. 215). He agreed
that a ventilation plan sketch indic~ted that the air ventilating the gob area would be routed through the regulator and
to BEP-10, which was located near the fan drawing air from the
section after it passed through the regulator (Tr. 230, 24).
Mr. Walls testified that all of the aforementioned air from
the section routed to BEP-10, "has to go through BEP-10 to get to
the fan,n and he confirmed that once.mining started, with the
regulator in place, "that would be the way it would be evaluated." Further, if the regulator was accessible, cross-sectional
readings could be combined with the readings of the air passing
the regulator (Tr. 25, 225). This testimony, in my view, lends
support to Mr. Crutchfield's and Mr. Wyatt's belief, which I find
reasonably plausible and credible, that cross-sectional readings
and the daily air and methane evaluatioPs at the BEP-10 location
was an acceptable method for evaluating the cited bleeder.
After careful review and consideration of all of the
testimony and evidence with respect to this alleged violation,
I conclude and find that MSHA has failed to establish by a
preponderance of the credible evidence that Consol's weekly
examinations of its section bleeder system was less than
adequate. To the contrary, I conclude and find that Consol
was in substantial compliance with the requirements of the
cited standard by using cross-sectional readings and daily

2 0 62

monitoring at the BEP-10 location as a reasonably proper method
for evaluating the cited bleeder in question. Accordingly, the
contested order IS VACATED.
Docket Nos. WEYA 94-379 and WEYA 94-380
Mr. Crutchfield and Mr. Wyatt were only cited in these
section llO(c) proceedings with allegedly "knowingly" violating
mandatory safety standard 30 C.F.R . 75.334(b) (1), as stated in
contested section 104(d) (1) Order No. 2724034. Since I have
vacated that order, the section llO(c) proceedings filed against
these respondents, including the proposed civil penalty assessments, should be dismissed. In this regard, even if I were to
find a violation of the cited standard, I would not conclude that
the evidence adduced by MSHA established a "knowing" violation by
Mr. Crutchfield or Mr. Wyatt, within the intent and meaning of
section llO(c) of the Act.
ORDER
In view of the foregoing findings and conclusions,
IT IS ORDERED as follows:
1.

Section 104 (d) (l) "S&S" Order No. 2724034,
March 3, 1993,, 30 C.F.R. 75.334(b) (1), IS
VACATED, and the propos~d civil penalty
assessment IS DENIED AND DISMISSED.

2.

Section 104 (d) (1) "S&S" Order No. 274035,
March 3, 1993, 30 C.F.R. 75.354(a) (2), IS
VACATED, and the proposed civil penalty
assessment IS DENIED AND DISMISSED.

3.

The proposed civil penalty assessments
filed against the section llO(c) respondents,
Robert G. Wyatt and Danny E. Crutchfield,
ARE DENIED AND DISMISSED, and these proceedings
ARE DISMISSED.

~~~
Administrative Law Judge
206 3

Distribution:
Robert S. Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 516,
Arlington, VA 22203 (Certified Mail)
David J. Hardy, Esq., John Bonham, Esq., Jackson & Kelly,
1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322
(Certified Mail)
Robert B . Allen, Esq., King, Allen & Arnold, 1300 Bank One
Center , 707 Virginia Street, East, P.O. Box 3394, Charleston,
WV 25333-3394 (Certified Mail)
Ricklin Brown, Esq., Bowles, Rice, McDavid, Graff & Love,
16th Floor Commerce Square Lee Street, P.O. Box 1386,
Charleston, WV 25325-1386 (Certified Mail)
/lh

20 6 4

FEDERA L M INE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 2 2 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
WILLIAM KACZMARCZYK,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 95-1 - D
MSHA Case WILK CD 94-01
Ellangowan Refuse Bank
No. 45

v.

READING ANTHRACITE COMPANY,
Respondent
DECISION ON DAMAGES ; ASSESSMENT OF CIYIL PENALTY

Appearances:

Stephen D. Turow, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant;
Martin J. Cerullo, Esq . , Cerullo, Datte &
Wallbillich, P.C., Pottsville, Pennsylvania,
for Respondent .

Before :

Judge Amchan
Background

On October 15, 1993, Complainant, William Kaczmarczyk, was
transferred from a light duty position at Respondent's . mine to
workers compensation status. He filed a complaint with the
U.S. Department of Labor alleging · that this action was taken in
retaliation for his activities as a walkaround representative
during an MSHA inspection that was completed on October 14, 1993.
The Secretary of Labor filed a complaint with the Commission
on Mr . Kaczmarczyk's behalf and an application for his temporary
r einstatement to his light duty position. After a hearing on
the application I found the complaint "not frivolous" and ordered
Compl ainan t temporarily reinstated on September 12, 1994.

2065

On May 24, 1995, after a second hearing, I found that
Complainant's transfer to light duty violated §lOS(c) of the Act.
One month before that decision the Secretary filed a motion to
enforce the temporary reinstatement order, alleging that
Respondent had "constructively suspended" Complainant by
repeatedly pressuring him to do tasks that were beyond his
physical limitations between April 17, and 20, 19951 • After
a third hearing, I ruled on June 21, 1995, that Respondent
had violated the terms of the order, but that it had not
"constructively suspended" Mr. Kaczmarczyk.
The May 24, 1995 decision on liability directed the parties
to inform me within thirty days whether they could stipulate
as to the amount of damages and an appropriate civil penalty .
After an enlargement of that period, the parties advised that
they could not reach agreement on these issues. Thereafter a
fourth hearing was held on September 28, 1995, on the issue of
damages. That hearing primarily concerned Mr. Kaczmarczyk's
claim that he was unable to refinance his mortgage loan due to
the discriminatory transfer to workers compensation. However,
in its post-hearing brief, Complainant and the Secretary withdrew
their claim in this regard.
Stipulated Damages
The parties have stipulated that Mr . Kaczmarczyk is entitled
to the following. amounts to compensate for economic loss suffered
as the result of his discriminatory transfer:
Lost Compensation and Benefits, Lost Overtime and Workers'
Compensation Payments: $4,342.42 (Jt. Exh. DH-1 & DH-1A) 2 •
Interest: $600 (Letter of Secretary's counsel dated
November 13, 1995).

The temporary reinstatement order stated that Respondent
could not require Complainant to perform tasks that he was
incapable of doing .
1

Respondent has agreed to reimburse the unemployment
compensation fund for the $14,539.00 paid to Mr. Kaczmarczyk.
2

2066

Disputed Amounts
The Secretary contends that Complainant is also entitled
to interest on the amount of unemployment compensation benefits
received.
I reiterate the holding of my order of August 16,
1995, that Mr. Kaczmarczyk is not entitled to such payments
since he had the use of these· funds while he was on workers
compensation.
Complainant seeks $156.00 for travel expenses incurred as
the result of his search for alternative employment while he
was on workers compensation. Respondent contends it should be
required to reimburse him for $87, because those expenses
incurred in trips not required by its compensation carrier
should be excluded.
I conclude that Complainant is entitled to the $156
claimed because he would not have taken these trips but for the
discriminatory transfer.
Moreover, I believ~ Mr. Kaczmarczyk
was not acting unreasonably in going beyond what was required
of him in seeking alternative employment.
Assessment of A Ciyil Penalty
The Secretary seeks assessment of an $8,000 civil penalty
for Respondent's violation of §lOS(c). However, the Commission
assesses penalties without regard to the Secretary's proposal in
accordance with six factors specified in section llO(i) of the
Act.
I assess a penalty of $2,000.
The parties have stipulated with regard to three of the
six statutory factors.
They have agreed that MSHA properly
considered Respondent's size and previous history of violations
in proposing an $8,000 penalty. The parties also stipulated that
such a penalty would not affect Reading Anthracite's ability to
stay in business. My assessment of the other three factors is
as follows:
·
Gravity of the Violation: As Respondent points out,
Mr. Kaczmarczyk suffered a rather modest economic loss as the
result of his transfer on October 15, 1993. Indeed, much of

2067

the money due him is for additional workers compensation benefits
that he should have been paid even if the transfer had not
occurred or had not been discriminatory.
Nevertheless, a section lOS(c) violation is a serious
matter, even if the economic loss to the miner is small. Such
violations, if not discouraged, inhibit miners from exercising
their rights under the Act, and are likely to adversely affect
safety.
Ironically, the civil penalty may be somewhat more important
in deterring violations of section lOS(c) in cases where the
economic loss to the miner is small than it is in cases where
the loss is large. A large backpay award is itself a powerful
deterrent. Thus, the rather modest economic loss suffered by
Mr. Kaczmarczyk cuts both ways in assessing an appropriate civil
penalty.
In assessing a lower penalty than that proposed by the
Secretary I am influenced in large part by my conclusion that
the nexus between Complainant's protected activity and his
transfer was far from overwhelming. I concluded that such a
nexus existed largely due to statements made by Safety Director
David Wolfe during and after the October 1993 MSHA inspection.
Complainant served as a walkaround representative. However,
as previously noted, nothing Mr. Kaczmarczyk did during this
inspection would suggest a reason for retaliation. There appears
to be a considerable degree of animus towards Mr. Kaczmarczyk
that may arise from other issues with management.
Negligence: Respondent did not accidently transfer
Mr. Kaczmarczyk to workers compensation, it did so intentionally.
Nevertheless, there is little in the record to suggest that
Respondent intended to discourage Complainant or other miners,
from exercising their rights under the Act. Mr. Wolfe's statement that citations issued to Re73pondent were "another reason"
for the transfer was made in the course of a heated exchange
concerning other issues as well. I am not convinced that Wolfe
sought to discourage the exercise of miners' rights under the
Ac.t .

206 8

Faith In Attempting to Achieve Rapid Compliance:
Respondent did reinstate Complainant as ordered. However, over
the course of four days in April 1995, Respondent repeatedly
pressured him to do tasks beyond his physical limitations in
contravention of the temporary reinstatement order.
~ood

On the other hand, Respondent believed, and I ultimately
found, that Complainant was not justified in leaving work without
permission on April 20, 1995, and staying home until May 1, 1995.
Nevertheless, Respondent agreed to his reinstatement on May 1,
1995, ·without discipline. I believe this should be considered
in assessing a civil penalty, as well as the violation of the
temporary reinstatement order.
ORDER

Respondent is hereby ordered within thirty days of this
decision to:
1.

Pay to Mr. Kaczmarczyk the amount of damages specified

herein;
2.

Pay to the Secretary of Labor a $2, 000 civil pen_a lty.

A(!jJ~

Administrative Law Judge
Distribution:
Stephen D. Turow, Esq., Office of the Solicitor,
U.S. Department of ~abor, 4015 Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified Mail)
Martin J. Cerullo, Esq., Cerullo, ' oatte & Wallbillich,
P.C., Second Street & Laurel Blvd., P.O. Box 450, Pottsville,
PA 17901 (Certified Mail)

/lh

2 069

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

NOV 2 4 1995
WILLIE SIZEMORE,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 95-632-D
MSHA Case No. MADI CD 95-02

ANDALEX RESOURCES, INC.,
Respondent
~ECISION

Before:

Island Mine No. 3

APPROVING SETTLEMENT

Judge Fauver

The parties have moved for approval of a settlement
agreement based upon the terms stated to the judge in a
conference call on November 9, 1995.
The settlement agreement is approved.

ORPER
WHEREFORE IT IS ORDERED that:
1. The motion to approve the settlement is GRANTED.
2. The parties are directed to comply with the terms of the
settlement agreement.

3. The hearing scheduled for November 14, 1995, is CANCELED.
4. Pursuant to the approved. settlement agreement this
proceeding is DISMISSED with prejudice.

w;.a,,;_ =;-,,,,.,.,,

J.i

William Fauver
Administrative Law Judge

2070

Distribution:
Neville Smith, Esq. Smith & Wells, 110 Lawyer St., P . O. Box 447,
Manchester, KY 40962
G. Christopher Van Bever, Esq., Andalex Resources, Inc.,
9300 Shelbyville Rd., Suite 1200, Louisville, KY 40222

/lt

2071

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

NOV 2 8 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF GARY BELVEAL,
Petitioner
v.

DISCRIMINATION PROCEEDING
Docket No. WEST 95-147-D
DENV CD 94-03

I

Deserado Mine
Mine ID 05-03505

WESTERN FUELS UTAH, INC.,
Respondent
DECI SION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Complainant;
J. Keith Killian, Esq., Keith Killian &
Associates, P.C., Grand Junction, Colorado, for
Respondent.

Before:

Judge Hodgdon

This case is before me on a complaint of discrimination
brought by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA) , on behalf of Gary Belveal
against Western Fuels Utah, Inc., under Section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S . C. § 815(c).
For the reasons set forth below, I find that, while Mr. Belveal
engaged in activities protected under the Act, the Respondent was
not motivated in any part by that activity when Mr. Belveal was
placed on temporary total disability or repri manded.
A hearing was held on July 24 and 25, 1995, in Grand
Junction, Colorado. MSHA Inspectors Art C. Gore, Jr., and Gary
W. Jones, miners Charles Cudo, John J . Jones, Curtis Roy and
Bradley K. Allen, and the Complainant testified in support of his
case. Western Fuels employees Roland Heath , Terry Gunderson and

2072

Gelean H. Bell, and David F. Hamilton testified for the
Respondent.
In addit ion, deposition testimony of Paul w. Miller,
M.D., (Govt. Ex. 1), and Ronald C . Pinson, M.D., (Resp. Ex. A),
was presented. The parties also submitted briefs which I have
considered in my disposition of this case.
FACTUAL SETTING

The basic facts are not disputed. As of the hearing, Gary
Belveal had been employed by Western Fuels for nine and one-half
years.
Most of that time, and specifically during the fall of
1993 that is significant to this case, he worked as a roof
bolter.
Throughout his employment with Western Fuels he was an
active member of the union. During the period when t he
activities resulting in this case occurred, he was the chairman
of the union safety committee.
On September 28, 1993, Mr. Belveal injured his right knee
stepping off of his roof bolting machine. He reported the
incident to his immediate supervisor, but did not seek medical
attention and continued performing his job as a roof bolter.
Prior to, and during, this period, Mr. Belveal had been
participating in discussions between the union and management
concerning the company's Accident, Violation, Reduction Program
(AVRP) which had apparently resulted in some miners being
reprimanded by the company for accidents that they reported.
It
was the union's position that this program was similar to one
which Consolidation Coal Company had in effect at its Dilworth
Mine and which a Commission judge had determined to be facially
discriminatory in violation of Section lOS(c) of the Act. 1
Unable to reach an accord about the implementation of the
AVRP, the Complainant, with other union members, filed a lOS(c)
complaint concerning the program with the local MSHA off ice on
October 6, 1993. On or about October 8, Mr. Belveal informed
mine management that the complaint had been filed.

1

Swift et al v . Consolidation Coal Co., 14 FMSHRC 361

(Judge Melick, February 1992). This decision was subsequently
reversed by the Commission.
Swift et al v. Consolidation Coal
Co., 16 FMSHRC 201 (February 1994).
2073

In the meantime, Mr. Belveal's knee had not shown any signs
of improvement and he decided to go to the doctor. On
October 11, he told Gelean Bell, a safety specialist who handled
workman's compensation claims for the company, that he wanted to
see a doctor the next day. She told him to tell his supervisor
when he was going so that his supervisor could accompany him to
the appointment.
Mr. Belveal made an appointment with Dr. Miller for 9:00
a.m. on October 12. He worked the midnight shift on October 1112, getting off of work at 7:00 a.m. He did not tell his
supervisor that he had a doctor's appointment, although he did
mention it to Ed Daniels of the safety off ice in the course of
discussing some non-related safety issues with him prior to
leaving for the appointment.
Mr. Belveal went to his appointment with Dr. Miller
unaccompanied by anyone from the mine. Dr . Miller diagnosed that
the Complainant had a strained anterior cruciate ligament and
prescribed a knee brace and Relafen, an anti-inflammatory
medication. He also instructed Mr . Belveal not to do a lot of
bending, stooping or lifting, to work only on flat surfaces and
to return to see him in a week.
During the visit, Dr. Miller had a telephone conversation
with Roland Heath, the mine superintendent, concerning what Mr.
Belveal would do on his return to work. While all agreed that he
would return to full time work, but not full duty, i.e. that he
would be working full time but not performing all of the
functions required of a roof bolter, there was confusion as to
exactly what type of job he would be performing. Notwithstanding, Mr. Belveal returned to work as a roof bolter . His
partner, Brad Allen, tried to do as much as he could to help him .
Other than initally discussing it with Mr. Gunderson, . Mr. Belveal
made no further attempts to be placed in some other type of work.
Mr. Belveal returned to see Dr. Miller on October 19, as
scheduled. Dr. Miller concluded that his knee had not improved
and referred him to an orthopedic specialist . When the doctor
called Gelean Bell to tell her what he was doing, she told him to
tell Mr. Belveal that he was on disability. In his chart, Dr.
Miller indicated that Mr. Belveal could return to work the next
day, subject to the findings of the orthopedist .

2074

The Complainant saw Dr. Pinson, the orthopedist, the next
day, October 20. Dr . Pinson determined that Mr. Belveal should
not return to work until he saw him again on October ·20. When
Dr. Pinson examined Mr. Belveal on October 28, he concluded that
the Complainant could return to work. During the period from
October 20 to October 28 that he did not work, the Complainant
received workers' compensation wage loss benefits for total
temporary disability.
Because he had not been given duties driving a tractor as
had fellow roof bolters Chuck Cudo, when he injured his hand, and
John Jones, when he injured his left knee, Mr . Belveal began
inquiring into the mine's practices concerning injuries . He
concluded that the company was not properly reporting injuries to
MSHA and discussed the matter with Bob Hanson, the safety
director.
Concurrently, he filed the instant lOS(c) complaint on
November 15, 1993. He also filed a 103(g) complaint 2 concerning
injury reporting with MSHA on November 24, 1993. As a result of
the 103(g) complaint, MSHA investigated the matter and issued two
citations to the company for improperly reporting injuries.
(Govt. Exs. 3A and 3B.)
Sometime during the last week of November and the first week
of December 1993, Mr. Belveal and Mr. Allen brought to the
attention of their foreman a concern that some of the entries in
the mine were in excess of the permitted width. Not receiving

2

Section 103 (g) (1) of the Act, 30 U. S.C. § 813 (g) (1),
provides, in pertinent part:
Whenever a representative of the miners . . . . has
reasonable grounds to believe that a violation of this
Act or a mandatory health or safety standard exists, or
an imminent danger exists, su'ch . . . representative
shall have a right to obtain an immediate inspection by
giving notice to the Secretary . . . of such violation
or danger. Any such notice shall be reduced to
writing, signed by the representative . . . and a copy
shall be provided the operator or his agent no later
than at the time of the inspection . . . . The name of
the person giving such notice and the names of
individual miners referred to therein shall not appear
in such copy or notification . .
2075

satisfaction from him, they took the matter to their shift
foreman, Mr. Gunderson. He proposed a solution that they found
reasonable.
The matter apparently would have e n ded there, except that in
a discussion with Bob Hanson about safety matters in general,
Belveal and Allen used the entries as an example of safety
problems in the mine. Evidently not aware that they were
satisfied with Gunderson's solution, Hanson called Mr. Heath into
the meeting and apprised him of the situation .
Mr. Heath, believing that the two miners had taken the
specific problem from Gunderson to the Safety Director, rather
than to him, gave the miners oral reprimands on December 3, 1993,
for not following the chain of command. Although the reprimands
were oral, they were noted in the miners's personnel files as
disciplinary letters .
On December 5, the two miners mailed a lOS(c) complaint to
MSHA concerning the reprimands. On December 6, Belveal and Allen
informed Mr . Heath that they did not agree with the reprimands
and were invoking the grievance procedures to have them removed.
After several steps in the grievance procedure, the letters were
removed from Belveal's and Allen's files on January 20, 1994. In
February 1995, Belveal and Allen wrote to MSHA stating that they
wished to drop the lOS(c) action.
FINDINGS OF FACT AND CONCLUS I ONS OF LAW

In order to establish a prima facie case of discrimination
under Section lOS(c) of the Act, 3 a complaining miner bears the
3

Section 105(c) of the Act provides that a miner cannot be
discharged, discriminated against or interfered with in the
exercise of his statutory rights because: (1) he "has filed or
made a complaint under or relate·d to this Act, including a
complaint . . . of an alleged danger or safety or health
violation;" (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101;" (3) he "has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding ; " or, (4) he has
exercised "on behalf of himself or others . . . any statutory
right afforded by this Act."
20 76

burden of establishing (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in
any part by that activity.
Secretary on behalf of Fasula v.
Consolidation Coal Co., 2 FMSHRC 2768 (1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (2d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (1981); Secretary on behalf of
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (1984); Secretary
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981),

rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C . Cir. 1983).
The operator may rebut the prima f acie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity .
Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone.
Id. at 2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Const. Co . , 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Fasula-Robinette test) .
In the Amended Complaint of Discrimination filed by the
Secretary on behalf of Mr. Belveal it was alleged that he
suffered the following acts of discrimination: (1) As a result of
filing a lOS(c) complaint on October 6, 1993, he was placed on
temporary total disability on October 19, 1993, for a knee injury
received on September 28, 1993, rather than being placed on light
duty like other miners; and (2) As a result bringing a safety
problem to the attention of th~ mine manager, he received
disciplinary action on December 3, 1993.
The allegations of discrimination are phrased somewhat
differently in his post-hearing brief. There he argues:
When Mr. Belveal injured his knee and subsequently saw
Dr . Miller, he was to be placed on alternate duty, as
Cudo and Jones had been.
Instead, Belveal was returned
to his original job of roof bolting and saw no
improvement in his knee . As a result of being refused

2077

modified duty, Mr. Belveal was forced to be placed on
temporary disability which resulted in an economic
loss.
In addition to the denial of light duty, Belveal
received a reprimand in a situation where a reprimand
was certainly not justified.
(Br. at 17.)
There is no doubt that filing 105{c) complaints, 103(g)
investigation requests and raising safety concerns with
management, either as a representative of miners or individually,
is activity protected under the Act. Therefore, I find that Mr .
Belveal engaged in protected activity. However, I conclude that,
with respect to his knee injury, Mr. Belveal did not suffer any
adverse action and that, even if he did, it was not related to
his protected activity.
I further conclude, with respect to the
reprimand, that it was not in any part motivated by his engaging
in protected activity.
The Complainant waited two weeks to decide that he needed
medical attention for his knee. When he did decide to go, he
failed to follow company policy and notify his supervisor, even
though he knew he was supposed to do that, he had been reminded
the day before that he was supposed to do that and he knew that
someone from management was supposed to accompany him to the
doctor.
Consequently, I find that any confusion over his work
status after his first visit to the doctor was caused by him.
The two other instances of roof bolters being assigned to
drive a tractor are distinguishable from his.
In the first
place, a supervisor had accompanied both miners to the doctor so
that both management and the miner were aware of the limitations
established by the doctor.
In the second place, both miners
specifically asked for other assignments when they returned to
work. 4
On the other hand, since no one from the company went to the
doctor's with Mr. Belveal, the evidence is confused, although not
necessarily contradictory, as to what Mr. Belveal could do on his
return. Dr. Miller testified that "[i]t was my understanding

4

Mr. Cudo's amputated finger obviously left no doubt that
he could not return to roof bolting, even if he had not requested
other work.
2078

that he ·woulP. ;no.t be .. doipg .·hi.s regular . job . "
12.)
Mr. Heath testiffecf: t.~_at. :

{Govt.

Ex.

1,

p.

. . . I s\igg~sti.Q to . the doctor th~t, you know, as a
roof bolter that·· h~ woJ;ks ··on a platform, and I
explained .to him. how the bolter was laid out and
basically what he could do, and as we discussed that
more and more the doctor felt, or my understanding of
the conversation, was tpat the platform would be the
best pla,c~ for him, and I reached the same thought.
.

. .

(Tr. 416 . } Mr . l{eatb- f.pr~h~r st.fiited "I tpld him (Dr . Miller]
that other j.o:bs th~t. ·li.e. nQ.rm~ily wo~ld do ~long with the roof
bolter, that we . would
.see
(Tr .
.
..
. that
. . . someone ·elqe ·aid that."
419.}
Finally , the Compl~~nant t:est~fiEld that "I was under the
impression I ~as to return to. something other than my regular
job, which was
not ·roof l:?ol.ting."
(';t'r. ~4. o. )
.
.
.
~

When Mr. Belveal ~etu~~ed ~o work that night, he questioned
Terry Gunderson apout ~et~~ning to .roof bolting. ije testified
that:
I talked
to him. a . little
.
.
. . bit about it, indicated that I
didn ~ t think tb9-°t •th~ q9.ctor was - - you know/ going
back an.d 'r\lnnin~ t;he.· h~ite~ wa.s ·really what the doctor
had in mind ~s ~ar a~ taking care of my .knee, and he
indicated to me that ·he had talked with Mr. Heath about
that, and he h~d. beeri . to.10. · tl].at everyt~ing was okay and
that I was basically to take care of it.

{Tr . 248.) . H~ .fµ;rther t~Ejt:i,fieg_ that lie dJd not recall Mr.
Gunderson off~ring . ~Jjy · otn~r ~ype of work in the mine.
On the other ·n and, ' 'l'er~y GtJ.nderson testified as follows
concerning Mr. B·e lve.a l.' s retu;rn to .work:
Did ·you have a conversation with Gary Belveal
on Octobe.r · 12 .at t.lf~ hegi~ning of the swing shift about
his tr.ip to the.· tj.09to+?

Q.

A.

Yes, ·:t .d~d . .

Q. Did he ~dy~se yq~ a,bout what .he understood had
occurred .a:s . . f··~r . a&. t.lj~·, do<?t.o~ .visit? .
.:..,.

2079

A . No. Somehow I knew, and I believe Roland had said
something to the effect of climbing and walking up a
grade.
Q.

Okay.

A.

Yes.

That would be problems that he would have?

Q. Okay. Did you discuss with Gary Belveal the fact that
you understood he had some limitations?

A.
I went out and I told Gary that I had other work
available.
Q.

Okay.

A.

~-

Did you discuss what these other jobs were?

Q. Okay. You told Gary that he could do work other than ·
roof bolting for you?
A.

That I had other work available, yes.

Q. Okay. And did Gary Belveal ask to be assigned to some
job other than a roof bolter?
A.

~-

(Tr. 460-61.)
There is no doubt that on his release, Dr. Miller only
limited Mr. Belveal to working on level surfaces. This is
certainly consistent with Mr. Heath's recounting of his
discussion with Dr. Miller that a roof bolter worked on a level
platform and is not refuted by the doctor's deposition .

own

More significantly, by his
account, Mr. Belveal made no
complaint or request not to return to roof bolting after his
initial discussion with Mr. Gunderson. Furthermore, Mr.
Belveal's failure to recall whether Mr. Gunderson offered him
other work is particularly consequential in view of the fact that
Mr. Belveal went to great lengths to document his case as
evidenced by the three file folders of notes he brought with him
to the hearing and one would not expect him to be unable to
recall so crucial a matter.
2080

Finally, while there is evidence that Mr. Belveal's knee
injury was not aggravated by his return to roof bolting, the
record is silent as to whether the extra week prevented the knee
from healing and, therefore, caused him to be placed on temporary
total disability. There is no doubt that Dr. Pinson's taking the
Complainant off of work for eight days was purely a medical
decision in no way influenced by the company.
Accordingly, I conclude that Mr . Belveal's return to roof
bolting was not an adverse action by the company, but was mainly
the result of his actions. I further find that, based on the
evidence in this record, Mr. Belveal would have been put on
temporary disability the next week even if he had been given
other work, so that even if returning him to roof bolting was an
adverse action, it did not result in his being placed on
disability . Lastly, even if returning the Complainant to his job
was an adverse action which did cause him to be placed on
temporary disability, there is nothing, other than a closeness in
time, to connect his filing of the lOS(c) complaint on behalf of
all miners with the adverse action of which he complains.
Nor is there any evidence that the reprimand received by Mr.
Belveal for not following the chain of command was related to any
of his complaints or safety questions. Viewing the matter two
years after it occurred, it is apparent that Mr. Heath
misunderstood the situation when he issued the reprimand.
However, there is no evidence that he deliberately misunderstood
or that the reprimand was merely a subterfuge to get back at Mr.
Belveal for his complaints and investigation requests.
In addition, I do not find it significant that at the first
step grievance proceeding Mr. Heath suggested that the lOS (c)
complaints over the reprimands be withdrawn if he removed the
reprimands from Messrs. Belveal's and Allen's files. That seems
to be a reasonable quid pro quo. Furthermore, it appears that
the only reason that the complaints were not withdrawn until over
a year later was so that the miners could use them as leverage in
negotiating with the company over exactly what the chain of
command would be .
OEDER

I conclude that Mr. Belveal engaged in protected activity
but that he either was not discriminated against by the company
2081

for engaging in that activity, or ': ±f he ' was . treated adve rsely, it
was not because he engaged in the protected activit~y but because
of his own real or perceived misconduct. · Accordingly, it is
ORDERED that the complaint of the Secret~ry filed on behalf of
Gary Belveal against Western Fuels Utah, Inc., under Section
lOS(c) of the Act, is DISMISSED.

Adtnin.ts.trati ye Law
Distribution :
Margaret A. Miller, .Esq. ·, . Of.fice o~ the .:s;olic":itor, U.S.
Department of ·Labor, 1·9 9·9 Broadway, · ~_tiite 1:60.0 ; .. Denver,
co 80202-5716 (Certifi·e d f'1ail) · .. :. ·
J . Keith Killian, Esq~, Keith ·Killian· & Assoc.iateS?, ·P.C., , Western

Fuels Utah, Inc.' 225 North .Fifth, suite . io.:t'o '. p ;O . . Box 4·848'
Grand Junction, co 81502 (Certi.t ied "Mai],.)
:: . ·. .,· ...
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2082

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

NOV 2 9 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Pe t itioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-139-M
A. C. No. 14-01480-05515

v.

Plant No. 1
SEDAN LIMESTONE COMPANY, INC.,
Respondent

DEC I SION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U. S . Department of Labor, Denver, Colorado, for
the Secretary;
Richard E . Blake, President, Sedan Limestone
Company, Inc., Sedan, Kansas, for Respondent.

Before:

Judge Maurer

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section lOS(d) of the
Federal Mine Safety and Health Act of 1977, 30 U. S . C. § 801
.et.~., the "Act," charging Sedan Limestone Company, Inc., with
two violations of the regulatory standards found in Part 56,
Title 30, Code of. Federal Regulations. The gex:ieral issues before
me are whether the respondent violated the cited regulatory
s tandards and, if so, the appropriate civil penalty to be
asse ssed in accordance with section llO(i) of the Act.
Pursuant to notice, the case has heard at Sedan, Kansas, on
September 19, 1995. At the hearing, Inspector Chrystal Ann Dye
t estified for the Secretary of Labor. Mr. Richard E. Blake, the
owner/operator of Sedan Limestone Company, Inc., and Mr. Mike
Roberts, the Superintendent, testified for respondent.

20 83

Inspector Dye testified concerning the two non-"S&S"
section 104(a) citations that were issued to the respondent on
July 27, 1994, one for a nonfunctioning horn and the other for a
nonfunctioning windshield wiper on the same 980C Caterpillar
front-end loader . The respondent was given 2 days to abate the
violations, but when the inspector returned on September 20,
1994, the wipers and horn still had not been repaired. The
Superintendent, Mr. Roberts, had no particularly good reason why
they were not fixed, it was just not done. Since there was no
reason to extend the time for abatement, the inspector issued
section 104(b) orders to shut down the equipment. Up to that
time, the equipment had not been tagged out and was sitting with
the rest of the company's equipment .
On September 26, 1994, Mr. Blake called the MSHA office to
inform them the windshield wipers and horn had been repaired . On
September 27, 1994, the equipment was inspected and everything
worked. At this point, the citations were finally abated, but
the damage had been done as far as the civil penalty assessment
was concerned. The respondent was assessed a $3500 civil penalty
for these relatively picayune violations, which would normally
have been assessed a civil penalty of $50 each .
The operator, for his part, readily admits the two
regulatory violations. The respondent's defense against the
enhanced penalties is that the equipment was parked after the
original citations were issued and not used until it was fixed .
The cited front-end loader was not needed during this time frame
because there were six loaders on the job site and not all of
them were needed to operate the plant.
I accept the parties representations including the gravity
and negligence factors included in the citations themselves. I
also find the abatement to have been untimely. However, a $3500
penalty for two non-"S&S" and nonserious violations with only
moderate negligence on the part 9f an operator of this size
appears excessive using the criteria contained in section llO(i)
of the Act.
Considering the relevant criteria under section 110(i), I
find that a civil penalty of $100 per violation, or a $200 total
civil penalty is appropriate for the violations charged.

2084

ORDER

1.

Citation Nos. 4408967 and 4408968 ARE Al"FIRMED .

2. The Sedan Limestone Company, Inc. IS ORDERED TO PAY the
Secretary of Labor a civil penalty of $200 wi t hin 30 days of the
d ate of this decision.

Maurer
t r ative Law J udge
Dist r ibut i on:
Margaret A. Miller, Esq., Of fice of the Solicitor,
U. S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Ce r tified Mail)
Richard E. Blake, Presiden t, Sedan Limestone Company, Inc.,
Drawer J, Sedan, KS 67361 (Certified Mail)
dcp

.2085

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

NOV 2 9 \995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA )
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No . PENN 94-23
A . C. No . 36-05466-03980
Docket No. PENN 94-166
A.C. No. 36-05466-03990

CYPRUS EMERALD RESOURCES,
CORPORATION,
Respondent

Emerald No. 1 Mine
DECISION

Appearances :

Before:

Myrna A . Butkovitz, Esq., Office of the Solicitor,
U . S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll Corp . ,
Pittsburgh, Pennsylvania, for Respon dent .

Judge Fauver

These are civil penalty cases under§ 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S . C. § 801 ~ ~ The principal issues are whether Respondent's placement of
coal refuse was a "refuse pile" under 30 C . F.R. § 7 7.215, whether
the accident - reporting and investigating standard in § 50.10 and
§ 50.11 applied to a collapse of coal refuse on December 27,
1992, and, if violations are found, whether t h ey we r e significant
and substantial and due to an unwarrantable failure to comply.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the following Findings of Fact
and further findings in the Discussion below:

2086

FINDINGS OF FACT

1 . Respondent owns and operates Emerald Mine No. 1, which
produces coal for sales in or affecting interstate commerce.
2. On April 2, 1993, MSHA received a§ 103(g) 1 complaint
alleging dangers involved in a partial collapse of a refuse pile
on that date.
3. On April 5, 1993, Federal Mine Inspector Walter Daniel
investigated the complaint and issued an imminent danger order
and three citations alleging safety violations.
4. During the investigation on April 5, 1993, Inspector
Daniel received another§ 103(g) complaint alleging that there
had been a failure of the same refuse pile on December 27, 1992.
After investigating the complaint, Inspector Daniel issued five
citations and orders alleging safety violations.
Impoundment Plan

5. Respondent has an MSHA-approved plan for disposing of the
refuse from its coal preparation plant . Known as the Impoundment
Plan (short for "Slurry Impoundment Coal Refuse Disposal
Facility"), it calls for four stages of construction of an
impoundment embankment built up from refuse material. Stages II
and III involve upstream construction, whereby refuse material is
systematically placed over a slurry pond in compacted lifts
according to certain construction standards. Stage IV involves
downstream construction as well as upstream construction as the
slurry pond is finally filled in and covered over. Stage IV is
to be constructed to a final crest elevation of 1310 feet.
6. The Impoundment Plan provides that each layer of the
impounding embankment:

Section 103 (g) of the Act provides in part: "Wh_e never a
representative of the miners or a miner in the case of a coal or
1

other mine where there is no such representative has reasonable
grounds to believe that a violation of this Act or a mandatory
health or safety standard exists, or an imminent danger exists,
such miner or representative shall have a right to obtain an
immediate inspection by giving notice to the Secretary or his
authorized representative of such violation or danger."
2087

should be compacted by either a sheepsfoot roller, rubbertired construction equipment, or approved comp~ction
equipment exerting a force of 10 tons or more. For
uniformity of compaction, a minimum of two passes of the
roller should be made for each layer. A complete roller
pass is defined as the passing of a specified roller over
the entire surface of the layer once, with a minimum overlap
of one foot between successive trips of the roller.
Subsequent lifts should not be placed until the layer under
construction has been thoroughly compacted.
7. The Impoundment Plan provides specific lift limitations
for upstream construction in Stages II and III:
for upstream construction, the initial lift of coarse refuse
over the settled fines of the previous stage should be
approximately five to six feet thick to provide a working
pad for earth-moving equipment. Subsequent lifts should be
two feet thick or less.
8. Under the Impoundment Plan, Stage IV development is
expected to be completed in the year 2002.
Respondent's Practice of Piling Refuse Materia·l
9. Coal and refuse material were brought up from the mine to
the preparation plant where the coal was washed and separated.
The refuse was then moved by conveyor belt to a 500-ton refuse
storage bin.
10. At the bin, refuse was loaded onto 35-ton dump trucks
and under the Impoundment Plan the refuse was to be taken to the
impoundment embankment for use in its construction.
11. At the time of the inspection in April 1993, th~ regular
lay down area for the impoundment . embankment was approximately
southeast of the 500-ton bin and was at a crest elevation of
about 1255 feet.
12. Coarse refuse deposited at the impoundment embankment is
required to be placed in lifts and compacted pursuant to the
Impoundment Plan. The Impoundment Plan provides specific lift
limitations for upstream construction in Stages II and III:

2088

for upstream construction, the initial lift of coarse refuse
over the settled fines of the previous stage should be
approximately five to six feet thick to provide a working
pad for earth-moving equipment. Subsequent lifts should be
two feet thick or less.
13. At the time of the inspection in April 1993, a practice
had existed for the last 18 years of depositing coal refuse on a
refuse pile located southwest of the 500-ton bin.
The refuse
pile, which abutted the shore line of a large part of the slurry
pond, was commonly referred to as the "short haul area.u In
inclement weather, or when the road to the impoundment embankment
was considered to be too muddy, icy, or dusty to travel, refuse
was hauled to the refuse pile rather than to the impoundment
embankment. Thirty-five ton dump trucks were used to haul refuse
from the 500-ton bin and dump loads along the edge of the refuse
pile. Bulldozers spread the piles and pushed refuse over the
edge of the refuse pile toward the slurry pond to make room for
more refuse. This practice was followed for years before
December 1992, and continued from December 1992 until a failure
of the refuse pile on April 2, 1993. By the time of the
inspection in April 1993, the practice of depositing coal refuse
in the area southwest of the 500-ton bin had created a large
refuse pile that was about 1,000 feet long, 60-80 feet high, and
300 feet wide.
14. The practice of pushing coal refuse over the edge of the
refuse pile toward the slurry pond caused the toe of the refuse
pile to extend over the slurry pond. The refuse pile lacked
compaction. As more coal refuse was pushed over the edge, the
weight of the refuse pile over the slurry pond increased and the
angle of the slope became very steep. These conditions caused
the refuse pile to be unstable.
15. The refuse pi l e was not part of the impoundment
embankment and was not designed, constructed, or maintained in
accordance with the requirements of the Impoundment Plan or the
requirements of the refuse pile standards in 30 C . F . R . § 77 . 215 .
16. The refuse pile was not intended to be an impoundment
embankment, nor was it intended to be a temporary stockpile.
Although a small part of the refuse on the refuse pile was used
at times to build up the impoundment embankment, the great
majority of the refuse deposited on the refuse pile was pushed

2089

over the edge toward the slurry pond to make room for more refuse
material.
17 . Under the Irnpoundment Plan , as Stage IV construction
advances, some of the area adjacent to the 500-ton bin is to be
developed as part of the impoundment embankment . Any part of the
refuse pile that will be affected by the growing impoundment
embankment under Stage IV construction will have to be removed or
regraded into two foot lifts before it can be incorporated into
the impoundment embankment. The reason for this is that the
refuse pile does not meet the standards for the impoundment
embankment under the Impoundment Plan.
December 27. 1992, Incident

18. On December 27, 1992, there was a failure of part of the
refuse pile. A 35 foot-wide section of coarse refuse material
broke off, caved in, and slid down toward the slurry pond. An
employee was operating a bulldozer on the part of the refuse pile
that failed. The bulldozer slid about 30 feet down the refuse
pile toward the slurry pond and was partially buried in refuse
material . Ropes were thrown down to the employee to help him
climb up the steep slope of the refuse pile.
19. The bulldozer that slid down the refuse pile was covered
by coarse refuse material midway up the cabin and the blade was
buried in the coarse refuse .
20. Respondent knew that the refuse pile had collapsed and
the bulldozer and driver slid down the refuse pile on
December 27, 1992.
21. After the accident Respondent did not rope off or danger
off the area where the refuse pile had collapsed .
April 2. 1993, Incident

22. On April 2, 1993, there was another failure of the
refuse pile . An area about 350 feet long, 60 feet high, and 40
feet wide broke off, caved in, and slid into the slurry pond.

23 . The steepness of the refuse pile slope, the instability
of the refuse pile material, and the slurry foundation's
inability to support the weight of the coarse refuse deposited on

2090

the refuse pile were the primary causes for the refuse failures
in December 1992 and April 1993.
24 . Over the years, including the period from December 1992
through April 2, 1993, coarse coal refuse was hauled by 35-ton
trucks from the 500-ton bin to the refuse pile . The dump trucks
deposited piles of coarse refuse along the land-side edge of the
refuse pile. Bulldozers were used to spread the piles of coarse
refuse and to push refuse over the pond-side edge of the refuse
pile.
25. The coarse refuse piled on the refuse pile was not
compacted or deposited in layers two feet or less.
26. The operator was aware of the fact that miners were
bulldozing the coarse refuse material over the edge of the refuse
pile toward the slurry pond.
27. The ope·~ator was aware of the fact that coal deposited
on the ref use pile was not being compacted and was not being
placed in lifts two feet or less. The operator knew that this
practice had been in existence before December 1992, and
continued through April 2, 1993.
28. From December 1992 through April 2, 1993, the majority
of the coarse refuse hauled from the 500-ton bin was deposited on
the refuse pile.
29. The lack of compaction of the refuse material deposited
on the refuse pile and the failure to deposit the refuse material
in lifts two feet or less contributed to the failures of the
refuse pile in December 1992 and in April 1993.
30 . Slope instability was one of the primary facto.rs causing
the failures of the refuse pile in December 1992 and April 1993 .
31. The slope instability was caused, in major part, by the
fact that the refuse pile was developed over the years by coarse
coal refuse being dumped on the refuse pile, pushed over the
edge, and allowed to settle on the fines of the slurry pond.
32. Over time, the foundation of the fines of the slurry
pond could not bear the weight of the heavy coarse refuse
deposited on the refuse pile.

2091

33 . The refuse pile was not constructed in a way to prevent
the refuse material from shifting and ultimately sliding off.
34. The coarse refuse deposited on the refuse pile was not
placed pursuant to any engineering plan and did not meet the
engineering principles and requirements of either Respondent's
Impoundment Plan or the refuse pile standards in 30 C.F.R.
§ 77.215.
MSHA ' s Invest i g a tion of
December 27. 1 992 . I ncident

35. During the inspection in April 1993, Inspector Daniel
received a§ 103(g) complaint concerning a failure of the refuse
pile on December 27, 1992. After investigating the complaint, he
found that a 35-foot wide section of the refuse pile had broken
away, caved in, and slid down toward the slurry pond. A miner
was operating a bulldozer on top of the refuse section that broke
away, caved in; and slid down toward the slurry pond . · He and the
bulldozer slid down the slope and came to rest near the slurry
pond.
36. At the time of the refuse pile failure on December 27,
the operator of the bulldozer was pushing coarse refuse material
over the edge of the refuse pile toward the slurry pond .
37. Dump trucks traveled on the refuse pile, including the
area that failed, in order to deposit loads of coarse refuse
along the edge of the refuse pile.
38. Respondent knew that dump trucks were hauling coarse
refuse from the 500-ton bin to the refuse pile and bulldozers
were pushing material over the edge of the refuse pile .
Respondent also knew that the trucks and bulldozers were
operating on a refuse pile that was not stable and presented a
serious risk of collapse.
39. Before the failure in December 1992, a report from the
Pennsylvania Department of Environmental Resources noted that
refuse material was being deposited on the refuse pile.
40. Before and after December 27, 1992 (until April 2,
1993), Respondent failed to take reasonable steps to prevent
vehicles from depositing coarse refuse material on the refuse
pile and pushing it over the edge toward the slurry pond. After

2092

the December 27 incident, Respondent continued the same practice
that led to a second failure of the refuse pile on April 2, 1993.
ISSUES

1. Whether the incident on December 27, 1992, was an
"accidentn as defined in 30 C.F.R. § 50.2 so that it had to be
reported under 30 C.F.R. § 50.10 and investigated under 30 C.F.R.
§ 50 .11 (b} .
2. Whether Respondent violated§§ 50.10 and 50.ll(b) and if
a violation of 30 C . F . R . § 50.ll(b) occurred, whether it was
properly designated "significant and substantial.n
3. Whether 30 C.F.R. §§ 77 . 215(f) and (h) applied to
Respondent's placement of refuse material southwest of the 500ton bin and whether Respondent violated those standards.
4. If violations of§§ 77.215(f) and (h) occurred, whether
they were significant and substantial and due to an unwarrantable
failure to comply.

5. If violations of § 77 . 1608(b) occurred, whether they
were significant and substantial and due to an unwarrantable
failure to comply.

6. Whether the proposed penalties are appropriate under the
criteria for penalties in §llO{i) of the Act.
DISCUSSION WITH FURTHER FINPINGS. CONCLUSIONS

As a result of it s investigation of both the December 27,
1992, and the April 2, 1993, failures of the refuse pile, MSHA
issued an imminent danger order and eight citations and orders
alleging violations.
Order No. 3658637

Order No. 3658637 was issued under § 107(a) on April 5,
1993 , alleging an imminent danger due to the April 2 failure of
the refuse pile.
The order states in part:
[A] section of the lay down area sheared off into the
slurry pond.
(Approximately 40 feet of material). The area

209 3

that sheared off has been an area in which mobile equipment
has been operating .
Citation No . 3 6586 82

Citation No. 3658682 was issued under§ 104(a) on April 7,
1993, alleging a violation of 30 C.F.R. § 50.10, concerning the
December 27, 1992, incident as follows :

An accident occurred at the Emerald Mine No . 1, and the
operator did not immediately contact the MSHA District or
Subdistrict off ice having jurisdiction over its mine, in
that, an unstable condition in the mine refuse pile in by
the 500-ton bin at the edge toward the slurry pond f ailed
causing approximately 35 feet of material to slide along
with the bulldozer and the operator . The bulldozer slid
down the material approximately 34 feet. There was 1
violation issued during the last inspection period 10 - 1 - 92
through 12-31-1992 of C.F.R. 50.10.
As modified, the citation alleges a non-significant and nonsubstantial violation with high negligence. The proposed penalty
is $400 .
Section 50.10 provides:
If an accident occurs , an operator shall immediately contact
the MSHA District of Subdistrict Off ice having jurisdiction
over its mine.
If an operator cannot contact the
appropriate MSHA District of Subdi~tr i ct Office, it shall
immediately contact the MSHA Headquarters Off ice in
Arlington, Virginia by telephone, at (800) 746-1553 .
The term "accident" in§ 50.10 is defined in§ 50.2(h) .
Subpart (10) of § 50.2(h) states that an "accident" includes:

An unstable condition at an ' irnpoundment, refuse pile, or
culm bank which requires emergency action in order to
prevent failure, or which causes individuals to evacuate an
area; or, failure of an impoundment, refuse pile, or culm
bank.
The Secretary contends that the event on December 27, 1992,
was a "failu re of a refuse pile" and was therefore a reportable
accident. Respondent contends that the incident was not a

2094

reportable accident because the collapsed refuse was in a
temporary stockpile, not a refuse pile, and the incident did not
jeopardize the integrity of the impoundment embankment and
residents downstream of the imp6undment
I find that the failure of refuse material was in a refuse
pile, not a temporary stockpile. The refuse pile was built up
over many years and the great majority of the refuse was left as
refuse or was pushed over the edge toward the slurry pond to make
room for more refuse.
The definition of a reportable accident includes "failure of
a refuse pile." It also includes an "unstable condition at ...
(a] refuse pile . . . which requires emergency action in order to
prevent failure ... " § 50.2(h) (10). There is no requirement that
the condition must cause individuals to be evacuated, or that it
must also affect the integrity of an impoundment. This is clear
from a comparison with§ 77.215(e) which prohibits using a refuse
pile to impound water. If§ 50.2(h) (10) were intended to cover
only failures that affect an impounding s~ructure, then failure
of a refuse pile, which may not be used to impound water, would
not be included in the definition of a reportable accident
without words connecting a refuse pile failure to the integrity
of an impoundment.
I therefore hold that the failure of the refuse pile on
December 27, 1992, was a reportable accident .
Failure to notify MSHA immediately after an accident is a
clear violation of the regulation. In JBA Industrial Fuel. Inc . ,
16 FMSHRC 1778 (1994), the "operator delayed almost 12 hours"
before notifying MSHA of the accident. The judge found that "the
operator could have called MSHA's 24-hour phone number to comply
with this regulation" and upheld a violation of § 50 . 10, stating
that "the requirement that an operator immediately report certain
types of accidents to MSHA is an important part of mine safety
and enforcement in terms of both accident investigation and
assistance to injured or trapped miners . " .I.d.... at 1780.
Respondent knew that part of the refuse pile failed on
December 27, 1992, and that a bulldozer, with its driver, slid
down the refuse pile toward the slurry pond and was partially
buried. Respondent did not contact MSHA.

2095

Respondent's failure to call MSHA cannot be dismissed as a
mere difference of opinion as to what is a reportab_l e accident .
No witness for Respondent testified that at the time a reasoned
decision was made that, in his or her best judgment, the failure
of the refuse pile in December 1992 was not a reportable
accident. John Meyers, preparation plant foreman, knew about the
failure and did not noti f y MSHA. He presented no testimony
indicating that he consulted with management or Respondent's
safety director and received an opinion that contacting MSHA was
not required under the regulations. Gary Bochna, Respondent's
safety director, testified that although it was his
responsibility to conduct accident investigations and complete
accident reports, management never consulted him about whether
the December 1992 failure was a ''reportable accident" and he was
not informed of the December 1992 failure until April 1993.
Mr. Bochna acknowledged that under Respondent's policies, the
December 1992 incident should have been reported to him.
I find that Respondent's failure to report the December 27
accident was due to high negligence and that the violation was
serious. Considering a l l the criteria for civil penalties in
§ llO(i), I find that a penalty of $400 is appropriate for this
violation.
Citation No . 3658 6 96

Citation No. 3658696 was issued under§ 104(a) on May 26,
1993, alleging a violation of 30 CF . R. § 50.ll(b) concerning the
December 27, 1992, incident as follows:
accident occurred at the Emerald Mine No . l, and the
operator did not investigate the accident, in that, an
unstable condition in the mine refuse pile inby the 500-ton
bin at the edge toward the slurry pond failed causing
approximately 35 feet of material to slide along with the
bulldozer and the operator . . The bulldozer and the operator
slid down the material approximately 34 feet. There was O
violations issued during the last inspection period 10-01-92
through 12-31-92 of C.F.R. 50.ll(b).

An

The citation alleges a significant and substantial violation
with high negligence. The proposed penalty is $3,000.
Section 50.ll(b) provides:

2096

Each operator of a mine shall investigate each accident
and each occupational injury at the mine. Each operator of
a mine shall develop a report of each investigation. No
operator may use Form 7000-1 as a report, except that an
operator of a mine at which fewer than twenty miners are
employed may, with respect to that mine, use Form 7000-1 as
an investigation report respecting an occupational injury
not related to an accident. No operator may use an
investigation or an investigation report conducted or
prepared by MSHA to comply with this paragraph . An operator
shall submit a copy of any investigation report to MSHA at
its request. Each report prepared by the operator shall
include,
(1) The date and hour of occurrence;
(2) The date the investigation began;
(3) The names of individuals participating in the
investigation;
(4) A description of the site;
(5) An explanation of the accident or injury, including a .
description of any equipment involved and relevant events
before and after the occurrence, and any explanation of the
cause of any injury, the cause of any accident or cause of
any other event which caused an injury;
(6) The name, occupation, and experience of any miner
involved;
(7) A sketch, where pertinent, including dimensions
depicting the occurrence;
(8) A description of steps taken to prevent a similar
occurrence in the future; and
(9) Identification of any report submitted under § 50.20 of
this part.
On December 27, 1992, part of the refuse pile failed. About
35 feet of refuse material broke off, caved in, and slid down
toward the slurry pond. A bulldozer was operating on the part of
the refuse pile that failed.
The · bulldozer, along with the
driver, slid down with the fallen material about 30 feet toward
the slurry pond, and was partially buried. Respondent, through
management personnel, including Ron Stotka and Jim Graznak, knew
of the failure of the refuse pile shortly after it occurred. The
foreman, John Meyers, participated in the efforts to assist the
operator of the bulldozer in climbing up the steep slope .

2097

Despite its knowledge of the failure of the refuse pile,
Respondent did not investigate anq develop a report of the
failure and measures needed to· ·pr~·vent a recurrence until after
MSHA's investigation, four months after the accident.
Soon after the failure, the only "investigation" into the
failure was initiated by the miner representative for the United
Mine Workers, not the Respondent. Tim Brown, acting safety
committeeman, was asked by Mr. Prodan, UMW safety committee
chairman, to look into the failure of December 27, 1992. In
response, Mr. Brown asked Mr. Meyers, preparation plant foreman,
to accompany him to the area of the failure.
In the failure area, Tim Brown expressed his concern for the
safety of the miners. Mr. Brown did not participate in the
writing of an investigative report of the failure. Mr. Brown
relied upon the oral comments of John Meyers that the practice of
pushing piles over the edge would be stopped. However, the
practice of pushing piles over the edge continued. The evidence
shows an indifferent attitude by management, demonstrated by its
failure to properly investigate the December accident, to develop
a report, and to take reasonable measures to prevent future
similar accidents. When as~ed whether he took preventive
measures after the December 27, 1992, accident, Mr. Meyers, the
preparation plant foreman, testified:
If my memory serves me right, I believe everyone was
instructed here that there would be no more pushing over the
side of the impoundment. In fact, I believe that there were
- - I wouldn't want to swear to this, but it sticks in my
mind that there were piles dumped along the haul road, more
or less to barricade, to keep people out of there, but it
didn't work . [Emphasis added.]
If Respondent had conducted a reasonable investigation with
a report of steps to prevent future similar accidents, the
failure of the refuse pile on April 2, 1993, could have been
prevented and employees would not have continued the dangerous
practice of operating trucks and bulldozers on an unstable refuse
pile.
Respondent's accident report was not prepared until April
1993, and was prompted not by the accident but by MSHA's
investigation on April 5, 1993 .

2098

The importance of the investigation and report required by
§ 50.ll(b) was addressed by the Commission in Steele Branch
Mining, 15 FMSHRC 597 (1993) . The Commission noted that
§ 50.ll(b) "requires operators to investigate all accidents and
to 'develop a report' of each investigation . " Id at p. 601. The
Commission took note of "the purpose of the regulation which is
to ensure that operators are in fact investigating accidents and
injuries and are engaged in constant upgrading of health and
safety practices. 42 Fed. Reg 65534 (December 30, 1977) ."
l..d.. at 602.
Respondent violated the regulation by not investigating and
developing a report of the December 1992 failure of the refuse
pile including measures needed to prevent a recurrence, until
prompted by MSHA four months after the accident. Respondent
introduced into evidence a report of investigation dated
April 23, 1993. This report was prepared about four months after
the accident occurred. The portion dealing with preventive steps
was not completed until April 30, 1993. Respondent's delay
demonstrates not only a violation of the regulation, but a high
degree of negligence regarding the violation .
Respondent challenges the "significant and substantial"
finding in Citation No . 3658696 on the ground that § 50 . ll(b} is
not a mandatory safety or health standard and therefore not
within the scope of§ 104(d} (1). However, the citation was
issued under§ 104(a), not§ 104(d). An allegation of a
"significant and substantial" violation in a§ 104(a} citation is
an allegation of gravity, not an assertion of jurisdiction to
apply the sanctions of§ 104(d) . Accordingly, I do not reach the
issue whether the sanctions of § 104(d) apply to a violation of
Part 50 .
I find that Respondent's violation of§ 50.ll(b) ~as
significant and substantial. Continued operations without
investigating the causes of a failure of a refuse pile and the
measures needed to prevent a recurrence could contribute
significantly and substantially to another failure of the refuse
pile with a risk of serious injury. In fact, another failure
occurred little more than three months after the December
failure.
I also find that the violation was due to high negligence.
There was a serious failure of the refuse pile on December 27.
An employee was operating a bulldozer on the refuse material that

2099

failed.
The bulldozer, along with the driver, slid down a steep
slope toward the slurry pond. The operator of the bulldozer was
frightened by this accident. This was a serious accident . A
reasonably prudent operator would have thoroughly investigated it
and prepared a report of measures needed to prevent another
failure of the refuse pile. Respondent did neither.
Considering all the criteria for civil penalties in
§ llO(i} of the Act, I find that a penalty of $3,000 is
appropriate for Respondent's violation of § 50.ll(b}.
Order No . 3768690

Order No. 3768690 was issued under§ 104(d} (1) on April 26,
1993, alleging a violation of § 77.215(f) concerning the
December 27, 1992, incident as follows:
The refuse being deposited on the mine refuse pile was not
constructed in such a manner as to prevent accidental
sliding and shifting of the material, in that, a section of
the lay down area sheared off at the edge toward the slurry
pond . The mine refuse failed causing approximately 35 feet
of material to slide along with the bulldozer and the
operator. The bulldozer slid down the material
approximately 34 feet. There were O violations issued
during the last inspection period 01-01-93 through 3-31-93
of C.F.R. 77.215(f).
The order was initially issued as a§ 104(a) citation with "high"
negligence, which was modified to "moderate" negligence and then
back to "high." The citation was modified to a§ 104(d) (1)
order. The proposed penalty is $8,000.
Section 77.215(f) provides:
Refuse piles shall be constructed in such a manner as to
prevent accidental sliding and shifting of materials.
On December 27, 1992, part of the refuse pile failed. The
shifting and sliding of the refuse material resulted from the
unsafe manner in which the refuse pile was constructed. Over the
years, refuse material was dumped on the pile and pushed over the
edge toward the slurry pond. This was done without an
engineering plan and without adherence to accepted engineering
practices to prevent accidental sliding and shifting of

2100

materials . Accordingly, the refuse pile was plainly in violation
of § 77.215(f).
For the reasons stated here and in the discussion of
Citation No. 3658639,
below, I find that the violation was
significant and substantial and was due to high negligence and
therefore unwarrantable within the meaning of§ 104(d) (1) of the
Act.
Respondent knew that the refuse pile was developed without
an engineering plan to prevent accidental sliding and shifting of
refuse materials.
Its risk-taking in this regard was more than
ordinary negligence.
Continued operations without abatement of
the violation was reasonably likely to result in serious injury .
Considering all the criteria for civil penalties in
§ llO(i), I find that a penalty of $8,000 is appropriate for this
violation.
Citation No. 3658639

Citation No. 3658639 was issued under§ 104(a), on April 5,
1993, alleging a violation of 30 C.F.R. § 77.215(f) concerning
the April 2, 1993, incident as follows:
The refuse being deposited on the mine refuse pile was not
constructed in such a manner as to prevent accidental
sliding and shifting of the material, in that, a section of
they lay down area sheared off into the slurry pond. The
area that sheared off has been an area in which mobile
equipment has been operating. This citation was one of the
factors that contributed to the issuance of imminent danger
order No. 3658637 dated 04-02-93. There was 0 violations
issued during the last inspection period 10-01-92 through
12-31-92 of C.F.R . 77.215(f).
The citation initially alleged "m6deraten negligence but was
modified first to allege "highn negligence and then "reckless
disregard.n The proposed penalty is $8,500.
Slope instability was one of the primary factors causing the
failure of the refuse pile. This was caused, in major part, by
the fact that the refuse pile was developed over the years by
coarse coal refuse being dumped on the refuse pile, pushed over
the edge, and allowed to settle on the fines of the slurry pond.

2101

Over time, the foundation of the f ine.s of the slurry pond could
not bear the weight of the heavy coarse refuse deposited on the
refuse pile.
On April 2, 1993, a substantial amount of refuse material
shifted, caved in, and slid into the slurry pond . The area that
failed was about 350 long, 60 feet high, and 40 feet wide. The
refuse pile had been constructed over the years without an
engineering plan to prevent the refuse material from shifting and
sliding. This was plainly a violation of § 77 . 215(f).
I find that the violation was significant and substantial in
that continued use of vehicles on the unstable refuse pile was
reasonably likely to result in a failure of the pile with serious
injuries.
I also find that the violation was due to high negligence .
Respondent knew that the refuse pile was not being constructed in
accordance with the engineering requirements for an impoundment
embankment, i . e·., in its Impoundment Plan . This is clear from
Respondent's acknowledgment that before the refuse pile could be
incorporated into the impoundment embankment, the refuse material
would have to be regraded and compacted. The regrading and
compacting would not be necessary if the material had been
properly graded and compacted in the first instance . Respondent
also knew from the December 27 failure of the refuse pile that
the refuse pile was not being "constructed in such manner as to
prevent accidental sliding and shifting of materials" as required
by§ 77.215(f). After the December incident, Respondent
continued the same practice of depositing refuse on the pile and
pushing it over the edge toward the slurry pond.
I find that its
continued violation was due to high negligence. However, I do
not find that its conduct amounts to "reckless disregard" for the
safety of its employees as alleged in the citation. rhe citation
will be modified to change "reckless disregard" to "high
negligence."
Considering all the criteria for a civil penalty in
§ llO(i), I find that a penalty of $8,500 is appropriate for this
violation.

2102

Citation No . 3658640

Citation No . 3658640 as amended was issued under§ 104(d) (1)
on April 5, 1993, alleging a violation of 30 C.F . R. § 77.215(h)
concerning the April 2, 1993, failure as follows :
The refuse being deposited on the mine refuse pile was
not constructed in compacted layers and not exceeding 2 feet
in thickness and shall not have any slope exceeding 2
horizontal to 1 vertical (approximately 270) in that, the
refuse was not constructed in compacted layers and did
exceed the 2 feet in thickness, and the slope exceeded 2
horizontal to 1 vertical approximately 270 . This citation
was one of the factors that contributed to the issuance of
Imminent Danger Order No. 3658637 dated 04-02-93. There was
O violations issued during the last inspection period 10-0192 through 12-31-93 of CFR 77.215(h).
The regulation requires that refuse piles "shall be
constructed in compacted layers not exceeding 2 feet in thickness
and shall not have any slope exceeding 2 horizontal to 1 vertical
(approximately 270) . . . . " The evidence plainly shows a
violation of this regulation.
The citation alleges a substantial and significant violation
due to high negligence, and therefore an unwarrantable violation.
The proposed civil penalty is $8,500.
The refuse material hauled from the 500-ton bin to the
refuse pile was routinely dumped on the refuse pile.
It was not
compacted and was not constructed in lifts two feet or less.
Most of the ref use was simply pushed by bulldozers over the edge
of the refuse pile to make room for more refuse. The refuse pile
was not compacted and constructed in lifts so as not to exceed a
27 degree slope. The slope was much steeper.
I find that the violation of § 77.215(h) was significant and
substantial. The safety hazard contributed to was a failure of
the refuse pile. Continued use of vehicles on the unstable
refuse pile was reasonably likely to result in a failure of the
pile with serious injuries .
I also find that the violation was due to high negligence,
and therefore was unwarrantable under§ 104(d) (1) of the Act.
Respondent knew that the ref use pile was not being constructed

2103

properly and that it posed a high risk to the miners working on
it.
Its conduct was aggravated and showed a serious disregard
for safety.
Considering all of the criteria for civil penalties in
§ llO(i), I find that a penalty of $8,500 is appropriate for this
violation.
Citation No. 3658683

Citation No. 3658683 as amended was issued under
§ 104 (a) (d) (1) on April 7, 1993, alleging a violation of
§ 77 . 215(h) concerning the December 27, 1992, incident as
fo llows:
The refuse being deposited in the mine refuse pile was not
constructed in compacted layers and did exceed 2 feet in
thickness and also the slope exceeding horizontal to 1
vertical approximately 27° resulting in an unstable
condition in the mine refuse pile inby the 500-ton bin at
the edge toward the slurry pond. The mine refuse failed
causing approximately 35 feet of material to slide along
with the bulldozer and the operator. The bulldozer slid
down the material approximately 34 feet.
There was 0
violations issued during the last inspection period 10-01-92
through 12-31-92 of C.F.R. 77.215(h). This citation will be
terminated when the 107(a) Order no. 3658637 is terminated.
The citation was initially issued under§ 104(a), alleging a
significant and substantial violation with "highn negligence .
The negligence was modified to "moderaten and then back to
''high." The citation was modified to a § 104 (d) (l) citation.
The . proposed penalty is $7,000.
For the reasons stated as to Citation No. 3658640, above , I
find that Respondent violated § 77.215(h) as to its manner of
developing the refuse pile. The violation concerning the
December 27 failure of the refuse pile was significant and
substantial, due to high negligence, and was therefore an
unwarrantable violation .
Considering all the criteria in§ llO(i), I find that a
civil penalty of $7,000 is appropriate for this violation .

2104

Order No . 3658698
Order No. 3658698 was issued under§ 104(d) (1) on May 26,
1993, alleging a violation of § 77.1608(b) concerning the
December 27, 1992, incident as follows:
The ground where refuse dump trucks were dumping failed and
the trucks did not start dumping a safe distance back from
the edge of the refuse bin, in that, an area of the mine
refuse pile inby the 500-ton bin at the edge toward the
slurry pond failed causing approximately 35 feet of material
to slide along with the bulldozer and the operator . The
bulldozer and the operator slid down the mate.rial
approximately 34 feet.
There was O violations issued during
the last inspection for 10-01-92 through 12-31-92 of C . F . R.
77 .1608 (b) .
The order alleges a significant and substantial violation due to
high negligence and an unwarrantable failure to comply. The
proposed penalty is $9,500.
Section 77.1608(b} provides:
Where the ground at a dumping place may fail to support the
weight of a loaded dump truck, trucks shall be dumped a safe
distance back from the edge of the bank .
During the investigation in April 1993, Inspector Walter
Daniel received a§ 103(g) complaint alleging a failure of the
refuse pile on December 27, 1992. His investigation revealed
that on December 27 a part of the refuse pile, about 35 feet
wide, had broken away, caved in and slid down toward the slurry
pond.
A miner was operating a bulldozer on the part of the
refuse pile that failed.
The bulldozer was pushing coarse refuse
material over the edge of the refuse pile . When the refuse pile
failed, the bulldozer slid with the collapsed material about
35 feet down the slope and was partially buried. The driver was
pulled up the slope with a rope.
As found above as to violations of§ 77.215(f), the refuse
pile was unstable and constructed in violation of § 77.215(f),
which requires that refuse piles be "constructed in such manner
as to prevent accidental sliding and shifting of materials . ... "

2105

Dump trucks traveled on unstable parts of the refuse pile,
including the area that failed, in order to deposit coarse
refuse.
Before the failure in December 1992, a report from the
Pennsylvania Department of Environmental Resources noted that
refuse material was being deposited on the refuse pile.
I find that Respondent violated§ 77 . 1608(b) by having dump
trucks drive on a refuse pile that might fail to support the
weight of a loaded dump truck.
I also find that the violation
was significant and substantial in that it was reasonably likely
that, if unabated, the violation would resu l t in serious injury .
I also find that the violation was "unwarrantable" under
§ 104(d) (1) of the Act . An "unwarrantable" violation has been
determined by the Commission to be aggravated conduct
constituting more than ordinary negligence. This may be
established by showing that the violative condition or practice
was due to "reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable care." Emery
Mining Corp., 9 FMSHRC 1997, 2203-2204 (1987); Rochester &
Pittsburgh Coa l Co., 13 FMSHRC 189, 193-194 (1989); Virginia
Crews Coal Co., 15 FMSHRC 2103, 2106-2107 (1993) .
Respondent knew of the longstanding practice of dump trucks
dumping coarse refuse on the refuse pile . Statements made by
management that they attempted to "encourage" operators to dump
the material closer to the 500-bin is a plain indication of their
awareness of the danger of dumping on the refuse pile. Despite
awareness of this danger, no reasonable steps were taken to
prevent dump trucks from dumping on an unstable refuse pile. The
fact that Respondent was aware of the practice, anticipated the
danger, and took no reasonable steps to prevent danger to the
miners constitutes high negligence and therefore an unwarrantable
violation.
Considering all the criteria in§ llO(i), I find that a
penalty of $9,500 is appropriate for this violation.
Ci tation No. 3658700

Citation No. 3658700 was issued under§ 104(a) on June 1,
1993, alleging a violation of 30 C.F.R . § 77 . 1608(b) concerning
the April 2, 1993, incident as follows:

2106

The ground where refuse dump trucks were dumping failed, and
the trucks did not start dumping a safe distance back room
the edge of the refuse bank, in that, an area of the mine
refuse pile inby the 500-ton bin at the edge toward the
slurry pond failed causing approximately 40 feet of material
to slide, the area sheared off has been an area in which
mobile equipment has been operating. There was O violation
issued during the last inspection period 10-01-92 through
12-31-92 of C.F.R. § 77.1608(b).
The citation alleges a significant and substantial violation
due to reckless disregard for safety.
The proposed penalty is
$9,500.
The regulation requires that "where the ground at a dumping
place may fail to support the weight of a loaded dump truck,
trucks shall be dumped at a safe distance back from the edge of
the bank."
Dump trucks were dumping loads of coarse coal refuse along
the edge of the refuse pile. The refuse pile was not stable .
The trucks were driven on the part of the refuse pile that failed
on April 2.
Photographs of the slide area show the presence of
tire tracks to the edge of the area that broke away. An area
about 350 long, 50 feet high, and 40 feet wide broke off, caved
in, and slid into the slurry pond.
I find that loaded dump trucks were operated in an area that
might fail to support the weight of a loaded dump truck .
Therefore, there was a violation of the standard.

Because of the instability of the refuse pile, it was
reasonably likely that a failure of the refuse pile would occur
and cause a dump truck to roll over or fall with collapsed refuse
material, resulting in serious injury. The violation was
therefore significant and substant~al .
Respondent knew in December 1992 that part of the refuse
pile had failed and caused a bulldozer and driver to slide down
the slope, partially burying the bulldozer. However, Respondent
took no reasonable steps to prevent dump trucks from dumping on
the unstable refuse pile. By failing to take corrective action
after the December incident, the operator demonstrated high
negligence. The violation was therefore "unwarrantable" within
the meaning of§ 104(d) (1). However, I do not find that the

2107

facts sustain a finding of "reckless disregard" for safety.
Accordingly, the citation will be modified to change "reckless
disregard" to "high negligence."
Considering all the criteria for civil penalties in
llO(i) of the Act, I find that a penalty of $9,500 is
appropriate for this violation.
§

Imminent Danger
The immediate dangers presented by the violations found as
to Citation No. 3658639, Citation No . 3658640, Citation No.
3658700, and Order No . 3658698 combined to create an imminent
danger within the meaning of § 107(a) of the Act on April 5,
1993.
CONCLUSIONS OF LAW

1. The judge has jurisdiction in these proceedings.
2. Respondent violated the safety standards as alleged in
the following citations and o rders (Citation Nos. 3658639 and
3658700 being modified to delete "reckless disregard" and
substitute therefor "high negligence"):
30 C.F .R .

Citation or Order
Citation No. 3658682

§

50.10

Citation No . 3658696

§

50.ll(b)

Order No.

3768690

§

77 . 215(f)

Citation No. 3658639

§

77.21.S(f)

Citation No. 3658640

§

77.215(h)

Order No.

3658683

§

77. 215 (h)

Order No .

3658698

§

77.1608(b)

Citation No. 3658700

§

77.1608(b)

2108

ORDER
WHEREFORE IT IS ORDERED tha t:

1 . The term "reckless disregard" in Citation Nos. 3658639
and 3658700 is deleted and the term "high negligence" is
substituted therefor. With the modifications, all citations and
orders are AFFIRMED .
2. Within 30 days of the date of this Decision and Order,
Respondent shall pay civil penalties of $54,4 00 .

cdL?.4.~~foA V~
· william Fauver
Administrative Law Judge
Distribution :
Myrna A. Butkovitz, Esq., Office of the Solicitor, U. S.
Department of Labor , 3535 Market St., 14480 Gateway Bldg.,
Philadelphia PA 19104 (Certified Mail)
R. Henry Moore, Esq ., Buchanan Ing ersoll Corp . , On e Oxford
Centre, 301 Grant St., 20th Floor, Pittsburgh, PA 15219-1410
(Certified Mai l )
/lt

2109

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

NOV 2 9 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 94-530
A.C. No. 36-00830-03556
Kerry Coal Strips

KERRY COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Pamela W. McKee, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Bruno A. Muscatello, Esq., Kerry Coal Co., Butler,
Pennsyl vania, for Respondent.

Judge Fauver

This civil penalty case concerns two citations and a related
imminent danger order issued under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq,
Order No. 3663273 alleges that :
The 988-B front end loader s/n [serial number] 50w2486 was
observed working under a working overhang in the · Lower
Kittanning pit at pit 034.
The loader was working under a 45-foot spoil bank and due to
mining operations a[n] overhang was created which was
actively working, sending rocks and spoil material down
around the machine .
[Language added on February 18, 1994:]
The following conditions, which collectively constitute an
imminent danger, were observed in the lower Kittanning pit
of Pit 034 . 30 C. F.R. 77.1002 [N]ecessary precautions to
minimize spoil material from rolling into the pit were not
taken . 30 C.F.R. ?7.1004{b) [C]orrective action to remove
an overhang in the spoil bank [was) not taken. Men and
equipment were permitted to work under these conditions.
2110

The crux of the controversy is whether an overhang existed
at the time of the inspection, whether proper sloping precautions
were taken with respect to the left spoil bank and box end spoil
bank, and whether these conditions constituted an imminent danger
and violations of the cited safety standards.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINPINGS OF FACT

1. On February 17, 1994, Federal Mine Inspector Randy
P. Myers inspected the Kerry Coal Strips Mine, which produces
coal for sale or use in or affecting interstate commerce.
2. Upon arrival Inspector Myers went to the Lower Kittanning
034 coal pit, where the mine operator was using the box end
method of surface mining.
3. At the end of the box cut was a spoil bank, described as
the "box end spoil bank." Perpendicular to the box end spoil
bank were the right side highwall and the left side spoil bank.
4. The box end spoil bank was 90 feet long, 45 feet high.

The left side spoil bank was 94 feet long, 25 feet high.
right side highwall was 45 feet long, 35 feet high.

The

5. Inspector Myers observed that the toe of the left spoil
bank and the box end spoil bank had been substantially removed
and the two spoil banks were not sloped at a 60 degree angle, as
required by the operator's ground control plan. Instead, they
were cut close to a 90 degree angle.
6. The operator did not measure the slope of the left spoil
bank or the box end spoil bank.
7. In the pit, the inspector observed an employee, Robert
Jeffries, operating a front-end lo~der at the right hand corner
of the box end spoil bank.
8. The front-end loader was removing spoil from the toe of
the box end spoil bank to expose the coal seam, while extending
the bucket of the machine to about 20 feet . In the process, rock

2111

and debris were falling towards the front-end loader from a
height of about 45 feet. The material falling included two to
three-foot rocks and other unconsolidated spoil material .
9. Enough material was falling that Mr. Jeffries leaned over
the steering wheel in an effort to look up and see where the
material was coming from.
10. While removing material from the toe of the box end
spoil bank, the front-end loader was cutting into the wall of the
spoil bank. Through the spoil removal operations, the front-end
loader and other equipment had created an overhang extending
about two to four feet from the wall. The overhang was about
30 feet long, 20 feet high. At the time of the inspection, the
overhang was \\working," i.e., dropping loose rocks and other
spoil material.
11. When the equipment operator backed away from the box end
spoil bank to lpad a rock truck, Inspector Myers issued an order
§ 107(a) withdrawal order and directed that Mr. Jeffries and the
front-end loader be removed from the pit.
12. The inspector then went to the top of the spoil banks,
where he observed three large cracks: two on top of the box end
spoil bank and one on top of the left side spoil bank.
13. The dimensions of the two cracks on top of the box end
spoil bank were as follows: the first crack averaged about six
inches wide and was about four feet back from the edge of the
spoil bank. It extended from the corner of the spoil bank about
25 feet toward the center of the bank. The second crack averaged
about seven inches wide and was about 30 feet long.
14. When Inspector Myers stood behind the first crack, he

could look trrough the crack into the pit where the front-end
loader had been operating.
15. While Inspector Myers observed the crack on the top of
the box end spoil bank, material was falling into the pit in the
area in which the front-end had been operating. He could see the
two cracks settling toward the pit.
16. Inspector Myers measured the third crack on top of the
left side spoil bank. This crack ranged from 7 to 12 feet wide,
about 34 feet long.
2112

17. The cracks on top of the box end spoil bank and the left
side spoil bank indicated to the inspector that the banks were
unstable and improperly sloped.

18. Between the time that Inspector Myers issued the
imminent danger order and the time that Respondent took
photographs of conditions in the pit, one of the box end spoil
bank cracks and the overhang apparently had either fallen into
the pit or were taken down by ·the operator. It is more probable
that they fell into the pit since a large amount of spoil
material was falling into the pit during Inspector Myers'
inspection.
19. At the time of the inspection, miners had been working

in the pit over several shifts.
~ISCOSSION

WITH FURTHER PINPINGS. CQNCLUSIONS
Citation No. 3663274

Citation No. 3663274 alleges a violation of 30 C.F.R.
based on the following condition or practice:

§ 77.1002

[T]he operator ... failed to take the necessary
precautions to minimize spoil material from rolling
into the pit. The operator was utilizing the box cut
mining method and removed the toe of the spoil on the
left spoil bank and box end spoil bank .
Section 77.1002 provides that:
When box cuts are made, necessary precautions shall be taken
to minimize the possibility of spoil material rolling into
the pit.
As the front-end loader remoyed spoil material from the toe
of the box end spoil bank, large quantities of spoil material
fell into the pit from a 45 foot height in the bank. The falling
material included two to three-foot rocks and other spoil
material. The presence of large cracks in the spoil bank
indicated that the bank was unstable and that it had not been
properly sloped. The cracks permitted material to fall into the
pit. The inspector could see through one crack down into the
pit. He could also see other evidence of subsidence of the spoil
bank.
21 1 3

The unstable condition of the spoil banks, with substantial
quantities of rocks and other spoil material falling into the pit
during the inspection, demonstrated that the operator had not
taken "necessary precautions to minimize the possibility of spoil
material rolling into the pit." This was a violation of
§ 77.1002.
In addition, Respondent was operating under an MSHA-approved
ground control plan that specified that spoil banks were to be
maintained at an angle of 60 degrees or less. The angle of the
operator's spoil banks greatly exceeded the 60 degree limit in
its ground control plan . The MSHA-approved ground control limit
was plainly a "precaution" that the operator was required to
observe under § 77.1002 . By failing to maintain the slopes at an
angle of 60 degrees or less, Respondent violated both its ground
control plan and§ 77.1002.
The citation alleges that the violation was "significant and
substantial . " The Commission has held that this requires the
Secretary to prove:
(1) [T]he 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 injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature .

Mathies Coal Company, 6 FMSHRC 1, 3-4 (1984). See also Cement
Division. National Gypsum, 3 FMSHRC 822, 825 (1981); Southern
Ohio Coal Company, 13 FMSHRC 912 (1991); Consolidation Coal Co . ,
6 FMSHRC 34, 36 (1984)
I

I find that the four elements of the Commission's test were
present. First, the operator violated a mandatory safety
standard when it failed to take pecessary precautions to minimize
the possibility of spoil material rolling into the pit. Its lack
of precautions included removing the toe of spoil from both spoil
banks and its failure to maintain a 60 degree slope as required
by the ground control plan.
Second, the violation contributed to a discrete safety
hazard -- falling material that could injure miners working in
the pit . Jeffries was operating a front-end loader under the box
end spoil bank as rocks and other material fell near his machine.

211~

Continued operations without abatement of the violation were
reasonably likely to result in an accident.
Third and fourth , there was a reasonable likelihood that the
hazard contributed to would result in serious injury. When the
inspector arrived, material was falling from a height of 45 feet
and landing near the front-end loader. The material falling
included two to three-foot rocks and other unconsol idated
material. Cont inued operations without abating the violation was
reasonably likely t o result in an accident causing serious
injury. Given the amount of subsidence along the 30 foot crack
in the box end spoil bank, there was a potential for a great deal
of material to fall on the front-end loader and seriously injure
the operator .
The citation alleges high negligence. I find that the
evidence sustains this charge. The operator had a major role in
formulating its ground control plan and therefore knew or should
have known of the sloping requirements of the spoil bank. The
dangerous angle o f the walls was obvious and failure to correct
this condition was due to high negligence .
Considering all the criteria for a civil penalty in§ llO(i)
of the Act, I find that a penalty of $5,100 is appropriate for
this violation.
Ci ta tion No . 3663275

§

Citation No . 3663275 alleges a violation of 30 C.F . R.
77.1004(b) based on the following condition or practice:
The operator at the Lower Kittaning Pit at Pit 034
failed to take corrective action to remove an overhang
in the spoil Bank while permitting men and equipment to
work under· the hazardous condition . No abatement time
is given because this condit~on is part of imminent
danger order number 3663273.
Section 77 . 1004(b) provides:
Overhanging highwalls and banks shall be taken d own and
other unsafe ground conditions shall be corrected
promptly, or the area shall be posted.

211 5

The inspector observed an overhang of loose spoil above the
front-end loader. The overhang was about 30 feet long, 20 feet
high, on the box end spoil bank. The front-end loader was
removing spoil from the right hand corner of the box end. The
process of removing the spoil had created the overhang.
The inspector observed that the overhang was "working,"
i.e., dropping loose rocks and other spoil material that were
bouncing off the spoil bank toward the machine.
During the hearing the judge asked Inspector Myers to look
through his notes and point out any references to an "overhang."
The inspector testified that he used the term "overhang" in the
imminent danger order and in Citation No. 3663275 but "I did not
use the word overhang in my notes, but I did say that the bucket
was inserted into the spoil bank." Tr. 232. The inspector
apparently was limiting his reply to only a part of his notes,
since his notes (Exhibit G-4) refer to "overhang" in a number of
places. For example, at pp 32-34 his notes state that "the
overhang was created during mining operations of' a DlO dozer side
cutting the spoil bank down the level where a 988 front-end
loader could load the overburden on to a RSO Euclid rock truck to
expose the coal seam. In an effort to remove the toe of the
spoil, the dozer operation had side cut the spoil and aided in
the creation of the condition. As the loader worked below the
wall the vibrations dislodged the loose material from the wall
creating the overhang."
I find that Inspector Myers' notes are explicit and reflect
careful observations and attention to detail. His testimony and
notes provide reliable evidence of the conditions he observed.
The inspector rated the operator's negligence as high
because men had been working in the area for several shifts and
the operator had made no effort to correct the hazards or to post
the hazardous areas. The failur~ to remove the overhang or to
post it so employees would not work in proximity to it
constituted aggravated conduct beyond ordinary negligence. The
condition of the two spoil banks presented an imminent danger and
the violations in Citation Nos. 3663273 and 3663274 combined to
create an imminent danger. The failure to prevent violations
that combine to create an imminent danger reflects high
negligence.

2116

Considering all the criteria for civil penalties in § llO(i)
of the Act, I find that a penalty of $5,100 is appropriate for
this violation .
I mminent Danger Or der No . 3663273

Section 107(a) of the Mine Act provides:
If, upon any inspection or investigation of a coal or other
mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent
danger exists, such representative shall determine the
extent of the area of such mine throughout which the danger
exists, and issue an order requiring the operator of such
mine to cause all persons, except those referred to in
section 104(c), to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative
of the Secretary determines that such imminent danger and
the conditions or practices which caused such imminent
danger no longer exist . . .
Section 3(j) of the Mine Act defines "imminent danger" as
follows :
"Imminent danger" means the existence of any condition or
practice in a coal or other mine which could reasonably be
expected to cause death or serious physical harm before such
condition or practice can be abated. . . .
The Commission and the courts have recognized that an
inspector must act quickly when he or she perceives a condition
to be dangerous and that the inspector's decision should be
supported unless there was an abuse of discretion or authority.
For example, in Old Ben Coal Corp. V. Interior Board of Mine
Qperations Appeals, 523 F . 2d 25, the Court of Appeals for ~he
Seventh Circuit stated:
Clearly, the inspector is in a precarious position. He is
entrusted with the safety of miners' lives, and he must
ensure that the statute is enforced for the protection of
these lives. His total concern is the safety o f life and
limb. . . . We must support the findings and the decisions
of the inspector unless there is evidence that he has abused
his discretion or authority.

2117

Similarly, in Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2164 (1989), the Commission stated: "Since he must act
immediately, an inspector must have considerable discretion in
determining whether an imminent danger exists." This principle
was re-affirmed by the Commission in Utah Power & Light Co., 13
FMSHRC 1617, 1627 (1991) and I sland Creek Coal Company, 15 FMSHRC
339, 345 (1993).
The Commission held in Rochester & Pittsburgh. supra, that:
an imminent danger is not to be defined "in terms of a
percentage of probability that an accident will happen."
* * * Instead, the focus is on the "potential of the risk to
cause serious physical harm at any time" [quoting the
legislative history of the Mine Act). The [Senate]
Committee stated its intention to give inspectors "the
necessary authority for the taking of action to remove
miners from risk . "
In Utah Power & Light, the Commission stated that "imminent
danger" means the "hazard to be protected against must be
impending so as to require the immediate withdrawal of miners."
13 FMSHRC at 1621 .
"Where an injury is likely to occur at any
moment, and an abatement period, even of a brief duration, would
expose miners to risk of death or serious injury, the immediate
withdrawal of miners is required." 13 FMSHRC at 1622.
In the litigation of a§ 107(a) order, the judge must
determine whether a preponderance of the evidence shows that "the
conditions or practices, as observed by the inspectors, could
reasonably be expected to cause death or serious physical harm
before the conditions or practices could be eliminated." Island
Creek 15 FMSHRC at 346, Wyoming Fuel Co., 14 FMSHRC 1282, 1291
(1992). The fundamental issue is whether "the inspector made a
reasonable investigation of the facts, under the circumstances,
and whether the facts known to him, or reasonably available to
him, supported issuance of the imminent danger order." Island
Creek 15 FMSHRC at 346; Wyoming Fuel, 14 FMSHRC at 1292.
The inspector observed rocks and other spoil material
falling into the pit near a front-end loader that wa s operating
c l ose to a dangerous overhang and an improperly sloped spoil
bank.
I find that the inspector made a reasonable i nvest i gation
of the facts and that the facts known to him or reasonably
avai l able to him supported issuance of an imminent danger order .

2118

His finding was confirmed by conditions he observed on top
of the spoil banks. Large cracks indicated that the spoil banks
were unstable and too steeply sloped.
CQNCLUSI QNS OF LAW

1. The judge has jurisdiction.

2. Respondent violated the safety standards as alleged in
Citation Nos. 3663274 and 3663275.
ORDER
WHEREFORE IT IS ORDERED that:
1 . Citation Nos. 3663274 and 3663275 and Order No . 3663273

are AFFIRMED .
2. Within 30 days of this Decision, Respondent shall pay
civil penalties of $10,200.

William Fauver
Administrative Law Judge
Distribution:
Pamela W. McKee, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail}
Bruno A. Muscatello, Esq., Kerry . Coal Co., 228 S. Main St.,
Butler, PA 16001 (Certified Mail)
/lt

2119

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

NOV 2 9 1995

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

CIVIL PENALTY PROCEEDINGS
Docket No. SE 95-178
A.C. No. 01-01247-04185

v.
Docket No. SE 95-185
A.C. No. 01-01247-04159

JIM WALTERS RESOURCES, INC.,
Respondent

No. 4 Mine
Docket No . SE 95-256
A.C. No . 01-01401-04071
No. 7 Mine
DECISION
Appearances:

Carla J . Gunnin, Esq . , Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for the Petitioner;
R. Stanley Morrow, Esq., Jim Wa l ter Resources,
Inc., Brookwood, Al abama, fo r the Respondent.

Before :

Judge Feldman

These matters are before me as a result of petit~ons for
civil penalties 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. § ·soi ~ ~, (the Act}. The hearing in these
proceedings was conducted on October 18, 1995, in Hoover,
Alabama. Pertinent stipulations concerning jurisdiction and
statutory civil penalty criteria are of record .

2120

At the hearing, the parties moved to settle the citations
associated with Docket Nos. SE 95-178 1 and SE 95-185 in their
entirety. Remaining Docket No. SE 95-256 concerns 18 citations
issued under 104(a) of the Act, and, 104(d) (2) Order No. 3184069.
The parties moved to settle all 18 of the citations issued in
Docket No . SE 95-256. However, the parties failed to reach
agreement on Order No. 3184069.
(Tr. 10-19).
The parties' settlement motions were presented and approved
on the record after the settlement terms were determined to be
consistent with the civil penalty criteria in section llO{i) of
the Act, 30 U.S.C. § 820(i). A summary of the approved
settlement terms is incorporated in this decision.
The only matter heard was 104(d) (2) Order No. 3184069. At
the conclusion of the hearing, the parties elected to make
closing statements in lieu of filing post-hearing briefs . This
decision formalizes the bench decision issued at the conclusion
of the parties' closing presentations.
Order No . 3184069 was issued on August 31, 1994,
by Mine Safety and Health Administration (MSHA) Inspector
John Terpo. Terpo issued the Order as a result of a 103(g)
complaint by Keith Plylar who is the UMWA Chairman of the Health
and Safety Committee at the respondent's No. 7 Mine. 2 The Order
was issued after Terpo, consistent with Plylar 1 s complaint,

Docket No. SE 95-178 only concerns 104(d) {2) Order
No. 3183836 . Two other unrelated citations were erroneously
included in the proposed assessment and were subsequently
deleted.
1

2

Section 103 (g) (2)of the Act, 30 U.S.C. § 813 (g) (2),
authorizes any miner, or, a miner's representative, to provide
written notification of an alleged violation of a mandatory
safety standard to · an MSHA inspector prior to or during an
inspection.

2121

observed extensive coal dust accumulations at the West B belt
header extending inby approximately 7,000 feet in violation of
the mandatory safety standard in section 75.400, 30 C . F.R.
§ 75.400.
This mandatory standard provides:
Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials , sha l l be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
At t ria l , the respondent stipulated to the fact of
occurrence o f the cited section 75.400 violation.
(Tr. 100 - 01) .
Therefore, the outstanding issues are whether the violative
condition was properl y designated as significant and substantial,
and, whether the violation was attributable to the respondent's
unwarrantable failure.
The essential facts are not in dispute and can be
briefly stated. For approximate l y one month prior to the
August 31, 1994, issuance of the subject Order, Plylar
complained to mine officials including foreman Larry Morgan,
and deputy manager Charlie Beasley, about malfunctions in the
West B belt. The malfunctions consisted of misalignments in the
beltline that caused the belt to cut into the belt structure
resulting in significant coal dust accumulations and float coal
dust.
Plylar testified mine management ignored his verbal
complaints despite acknowledging that the beltline was defective.
The safety committee subsequently performed its bi-monthl y
inspection on August 18, 1994, at which time committee members
provided each shift foreman and the deputy mine manager with a
written inspection report that noted the West B belt malfunctions
and coal dust accumulations.
Plylar's testimony was corroborated by the preshift
examination book.
Pertinent coal dust accumulations were
repeatedly noted in the preshift examination book prior to
Terpo's inspection during the period from August 25 through
August 31, 1994.
(Ex. R-1).
For example, the preshift book
reflects the following number of people were assigned to clean
the West B belt on the days preceding Terpo's inspection: two
people on August 25, 1994; five people on August 26, 1994; five
people on August 28, 1994; four people on August 30, 1994; and

2122

five people on August 31, 1994. The evening preshift notation
reflects 39 people were assigned to clean the West B belt for
eight hours on August 31, 1994, after Terpo issued Order
No. 3184069.
Id.
On the morning of August 31, 1994, Terpo arrived at the
respondent's No. 7 mine to conduct a routine inspection. Terpo
was approached by Plylar and given a written complaint concerning
hazardous accumulations along the West B belt. Terpo provided
copies of Plylar's complaint to mine management and proceeded to
inspect the subject area in the presence of Plylar, day shift
foreman Paul Phillips and deputy mine manager Beasley.
They began at the West B belt discharge point and walked the
entire 7,000 feet length of the belt from the header to the tail.
The West B belt is located in the No. 3 entry. The
No . 3 entry is 24 feet wide from the left to right rib. The
West B belt is 54 inches wide and runs on lower rollers that vary
in height from four to 12 inches form the surf ace depending upon
the pitch of the mine floor . The back side of the West B belt is
between 24 and 36 inches away from the left rib. The front side
of the belt is approximately four feet from the No. 3 track and
10 to 12 feet from the right rib.
(Joint Ex. 1). Thus, dust
accumulations are more accessible, for cleaning purposes, on the
front side rather than the back side of the belt.
In this
regard, accumulations can be shoveled from the front side without
deenergizing the belt.
In contrast, cleanup of accumulations
under the back side of the belt requires deenergizing the belt.
As a general proposition, Terpo testified the majority of
the cited accumulations were located under the back side of the
belt.
Terpo observed coal dust and float coal dust accumulations
approximately 24 inches in depth at the discharge point. Terpo
also observed airborne float coal dust traveling approximately
350 feet downwind (in intake air) from the discharge point . The
airborne float coal dust was· created by bottom rows of rollers at
the discharge point that were turning in coal dust. Terpo noted
this float coal dust was accumulating on the belt drive motor and
transmission case . The transmission case was extremely hot to
the touch.
Terpo proceeded inby and at the No . 59 brattice where he
observed two bottom rollers in coal dust 12 inches deep for a

2123

distance of 20 feet . These accumulations were under the back
side of the belt. These rollers created very fine airborne float
coal dust transported inby via the intake air. Terpo continued
down the bel t and noted four bottom rollers in accumulations 16
inches deep for 40 feet at the 11 F" track location between the
59th and 75th brattice.
Further along the beltline, at the 75th
brattice, Terpo observed four rollers in accumulations 14 inches
in depth. One of these rollers was locked up which generated
significant heat from the friction of the belt sliding on the
stationary roller .
(Tr. 130-31 ) .
Terpo continued down the belt and observed four bottom
ro l lers turning in 12 inches of accumulations for a distance of
40 feet at the G drop belt area; three bottom rollers turning in
coal dust between the 80th and 81st brattices; two bad
(stationary) rollers in coal dust 12 inches in depth for a
distance of 60 feet between the 82nd and 83rd brattices; four
rollers turning in ten inch deep coal dust for a distance of 40
feet at the 84th brattice; three rol lers in 12 inches of coal for
30 feet at the 87th brattice; four rollers in 14 inches of coal
dust for a distance of 100 feet at the 88th brattice; three
rollers in 12 inches of coal for 20 feet at the 93rd brattice;
and nine rollers in ten to 16 inches of coal dust for 100 feet
two crosscuts inby the No . 2 belt discharge point .
Terpo testified that he considered the hot transmission box,
and the locked up rollers, as significant ignition sources.
Terpo also stated the numerous rollers turning in coal dust
ground the coal dust into very fine particles which became
airborne by the intake air. The suspension of float coal dust
traveled down the entire length of the belt along the air course
as it split to the working sections. Terpo characterized the
violative coal dust accumulations as significant and substantial
in nature because of the like l ihood of combustion due . to the
suspended float coal dust and combu stible accumulations in the
presence of multiple ignition so~rces along the entire length of
the intake belt entry.
In the event of fire, Terpo opined that
the 21 persons who worked in the two working sections ventilated
by the West B belt entry would be exposed to significant fire or
smoke inhalation hazards .

2124

Terpo issued 104(d) (2) Order No . 3184069 for the loose coal,
coal dust and float coal dust accumulations that were present
from the West B belt header inby approximately 7,000 feet.
The
Order noted these accumulations were previously noted in the
preshift examination book.
Day shift assistant mine foreman Paul Phillips, who
accompanied Terpo during his inspection, estimated coal
accumulations over a total length of between 800 and 900 feet
along the West B belt in addition to approximately 20 rollers
that were turning in coal.
(Tr. 196-97). Phillips and Terpo
stated the accumulations were located primarily under back
rollers and along the back side of the belt.
Phillips testified
25 or 26 people were assigned to clean the West B belt from
8:50 a . m. until 11:00 p.m. on August 31, 1994, to abate Order
No. 3184069. As noted above, the preshift examination book
reflects 39 people were assigned to clean the West B belt for
eight hours on August 31, 1994. The cleanup occurred while the
belt was deenergized.
Based upon the testimony and exhibits in this matter,
I issued the following bench decision which is edited with
non-substantive changes :
The issues in this proceeding concern a violation of
section 75 . 400 which prohibits the accumulation of
combustible coal dust. Section 75.400 provides: "Coal
dust, including float coal dust deposited on rock
dusted surfaces, loose coal dust and other combustible
materials shall be cleaned up and not be permitted to
accumulate in active workings or on electrical
equipment therein."
Thus, the dispositive issue is whether the respondent
permitted the coal dust to accumulate. Mr . Morrow has
stipulated to the fact of oc~urrence of the section
75.400 violation. Thus, the remaining questions are
whether the violation was significant and substantial
in nature, whether it was attributable to Jim Walter
Resources' unwarrantable failure, and, the appropriate
civil penalty to be assessed.

2125

Addressing the first issue, to prevail on the
significant and substantial question, the Commission 1 s
decision in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984), requires the Secretary to establish a reasonable
likelihood that the hazard contributed to by the
violation will result in an event in which there is a
serious injury. This issue must be viewed in the
context of continued mining operations in the face of
these continued violative accumulations. Halfway
Incorporated, 8 FMSHRC 8, 13 (January 1986). Viewing
this i ssue in its component parts, the hazard
contributed to by the violation is the danger of
combustion and the event is explosion and fire.
The
initial question is whether there was a reasonable
likelihood that the violation would result in the
event, i.e., fire.
The elements of combustion are suspension, fuel, oxygen
and an ignition source. Here, there was significant
airborne float coal dust (suspension) created by a
combination of the numerous rollers operating in coal
dust accumulations (fuel) and the intake air (oxygen)
carrying the float coal dust suspension along the
West B belt entry. With respect to the remaining
element of an ignition source, the evidence reflects
the coal suspensions and accumulated coal were in close
proximity to heat generated from the belt cutting into
the structure, as well as heat generated from the
transmission box and tailpiece motor.
In addition,
these accumulations were also present near heat caused
by belt movement over locked up rollers and heat
resulting from completely worn bearings in inoperable
rollers. When viewed in the context of continued
mining operations, there was a reasonable likelihood
that the presence of combustible fuel in contact with
sources of heat along the .West B beltline would result
in an explosion or fire.

2126

Having determined there was a reasonable likelihood of
the occurrence of an explosion or fire as a result of
this violation , we turn to whether it was reas·o nably
likely that this event would cause serious injury.
I
credit Inspector Terpo's testimony that, in the event
of fire, considering the amount of accumulations along
the entire belt and the significant amounts of airborne
float coal dust, the fire would spread very rapidly,
particularly because it would be fed with high velocity
intake air. The flames and smoke would follow the
intake air path down the beltline and then split to the
continuous mining and longwall working sections.
\
In such an event, it is reasonably likely that
\
personnel in these working sections would sustain
serious smoke inhalation or burn injuries.
Consequently, the evidence demonstrates that the cited
violation was properly characterized as significant and
substantial.
With regard to the next issue, an unwarrantable failure
is evidenced by aggravated conduct that is
unjustifiable or inexcusable, as distinguished from
ordinary negligence which is characterized by
inattentiveness or carel essness. Youg hiogheny & Ohio
Coal Company, 9 FMSHRC 2007, 2010 (December 1987). The
Commission' s leading ·c ase on the question of
unwarrantable failure as it applies to a section 75.400
infraction for violative coal dust accumulations is
Peabody Coal Company, 14 FMSHRC 1258 (August 1992).
In Peabody, the Commission set forth four tests for
resolving the unwarrantable failure issue. These tests
are : (1) the extent of the violative condition; (2) the
length of time that it has existed; (3) whether the
operator had been placed on notice that greater efforts
were necessary for complian~e ; and (4) the adequacy of
the operator's efforts in abating the violative
condition after the operator's awareness of the
problem . 14 FMSHRC at 1261.

2127

It is evident that all of the Peabody criteria
establish an unwarrantable failure in this case. With
respect to the · first element, while denying
accumulations existed along the entire 7,000 foot
beltline, even assistant mine foreman Phillips, who
accompanied Terpo during the inspection, admitted the
accumulations totaled a distance of approximately 900
feet along the beltline in addition to 20 rollers that
were turning in coal. Such accumulations can only be
described as extensive.
The second test in Peabody addresses the length of time
the accumulations existed. The preshift examination
book reflects notations of this condition at the
West B belt for the six days that preceded Terpo's
August 31, 1994, inspection. These preshift entries
confirm the testimony of safety committeeman Plylar
that he provided written notice of the condition to
mine management on August 18, 1994, during his
bimonthly safety inspection. These facts, as well as
the extent of the accumulations, manifest by the 25 to
39 people required to clean for up to 14 hours in order
to abate the 104(d) (2) Order, support Plylar's
testimony that the condition existed for at least one
month.
The third Peabody element concerns whether the operator
had notice of the violation . Once again, the evidence
supports Plylar's reported repeated complaints to mine
management over a period of at least one month. The
respondent's awareness of the problem is further
demonstrated by its inadequate efforts to clean the
area by assigning only several people to clean the
track side of the belt while beltline operations ·
continued. Thus, the third test in Peabody is clearly
satisfied.

2128

Having been aware of the condition, the final Peabody
criterion relates to the respondent's efforts to remedy
the problem. As previously noted, mine management
responded by assigning an inadequate number of people
to address the problem by cleaning only the track side
of the belt while the beltline continued to operate.
For example, the preshift entries reflect that several
peop l e were assigned to clean the West B belt on
several occasions during the period August 25 through
August 30, 1994. This cleaning did not address the
accumulations under the back side of the belt, between
the belt and the rib, that could only be accessed if
mine production was interrupted and the beltline was
deenergized. The inadequacy of the respondent's
efforts is reflected by the 25 people reported by
Phillips, or, the 39 people noted in the preshift book,
that were required to work approximately 14 hours,
while the beltline was inoperable, to clean the cited
violative accumulations. There was also unrefuted
testimony from Plylar that the West B belt structure
was ultimately repaired to correct the alignment of the
be l t.
Thus, it is obvious that the respondent's efforts to
address the problem were woefully inadequate.
Consequent l y, applying the Peabody criteria, it is
clear that the respondent's conduct in this matter was
aggravated in nature justifying the Secretary's
assertion that the cited condition was attributable to
the respondent's unwarrantable failure. Accordingly
104(d) (2) Order No. 3184069 is affirmed.
Finally, with respect to the appropriate penalty to be
assessed, the Secretary seeks to impose a civil penalty
of $9,500.
In considering the appropriate penalty, I
note that even Inspector Terp~ conceded the respondent
was conscientious enough to adequately clean the more

2129

readily accessible front side of the belt. This .is a
mitigating factor in favor of the respondent. On the
other hand, the respondent was not diligent enough to
shut down the belt to clean under the back rollers
which would result in an interruption of production.
This is an unfavorable factor in considering the
penalty.
I am also mindful that this 7,000 foot beltline is
approximately 1 1/2 miles long with very large numbers
of rollers. Thus, the accumulations in this matter,
while clearly extensive, must be kept in perspective.
Accordingly, on balance, I have concluded that $6,500
is the appropriate penalty considering the degree of
negligence, gravity and other pertinent statutory
penalty criteria in section llO(i) of the Act.
(Tr. 252-68) .
The penalty assessment decided on the merits for
Order No. 3184069 as well as the civil penalties provided
in the parties' settlement of the other citations in these
proceedings are as follows:
DOCKET NO. SE 95-178
Citation Or
Order No.

Proposed
Assessment

Settlement

Modification

3183836

$5,500.00

$3,500.00

Citation Or
Order No.

Proposed
Assessment

Settlement

Modification

3184179

$8,000.00

$1,000.00

104(d) to 104(a)

DOCKET NO. SE 95-185

2130

DOCKET NO. SE 95-256
~itg,t i Qn

Or

Settlement

Order No.

Pro;gosed
Assessment

3184069
3184051
3183877
4484467
3194259
4484542
4484301
4484275
4484737
4484738
4484739
4484280
4476181
4476182
4476183
4476185
4476187
4476189
280751"9
Subtotal

$9,500.00
$1,155.00
$ 362.00
50.00
$
50.00
$
$ 903.00
$ 362.00
$ 362.00
$ 506.00
50 . 00
$
50 . 00
$
506.00
$
$ 309 . 00
50.00
$
$ 362 . 00
$ 362.00
$ 309.00
50.00
$
235.00
$15,533.00

$6,500.00 3
$ 150.00
$ 150.00
50.00
$
50.00
$
$ Vacated
$ 362 . 00
$ 362.00
$ 506.00
50.00
$
50 . 00
$
125.00
$
$ 309.00
50.00
$
$ 362.00
$ 100 . 00
$ 309.00
50.00
$
235.0Q
$
$9,770.00

Total

$29,033.00

$14,270 . 00

s

ModifiQg,t;iQn

Delete S&S
Delete S&S

Delete S&S

Delete S&S

ORDER

This decision formalizes the bench decision with respect to
Order No. 3184069 and constitutes the approval of the parties•
settlement motions with respect to the remaining citations and
orders in issue. Accordingly, 104(d) (2) Order No . 3184069
IS AFFIRMED . The respondent SHAL~ PAY a total civil penalty of
$14,270 within 30 days of the date of this decision. This total

3

As reflected in this decision, 104 (d) (2) Order No. 3184069
was affirmed and assessed a civil penalty of $6,500. All other
penalties noted above are the settlement amounts agreed upon by
the parties.

2131

penalty consists of the $6,500 pena l ty for Order No . 3184069, in
addition to the $7,770 agreed upon total settlement for all of
the other matters in issue. Upon timely receipt of payment,
Docket Nos. SE 95-178, SE 95-185, and SE 95-256 ARE DISMISSED .

~ ~~~">

~old

Feldman
Admi nistrative Law Judge

Distribution:
Carla J . Gunnin, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 150, Chambers Building, Highpoint Office Center,
100 Centerview Drive, Birmingham, AL 35216

R . Stanley Morrow, Esq., Jim Walter Resources, Inc.,
Post Office Box 133, Brookwood, AL 35444
/rb

2132

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

NOV 3 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-15
A. C. No. 36-07270-03526
L & J Energy Company

L & J ENERGY COMPANY, INC.,
Respondent

DECISION ON REMAND
Before:

Judge Weisberger

On February 24, 1994, I issued a decision in this civil
penalty proceeding sustaining six of the seven violations
charged. L & J Energy Company. Inc., 16 FMSHRC 424 (February
1994). L & J Energy Company, Inc. ( L & J) filed a petition for
discretionary review and/or motion for remand for correction of
the record, arguing, inter .a.li.g, that a stipulation which was
recounted in my decision did not reflect the parties' agreement.
The Secretary also moved for remand. The Commission denied the
' motion, but granted the petition for review, and remanded the
matter to determine whether the stipulation in question correctly
represented the agreement of the parties, and to reconsider the
decision, if necessary. On remand, I took cognizance of the
parties' agreement, but declined to reconsider the initial
decision. The Commission denied L & J's petition for review.
Subsequently, L & J filed its' appeal in the U.S. Court of
Appeals for the District of Columbia Circuit. On June 6, 1995,
the Court issued its decision remanding the case to the
Commission "for a new determination based on the full record."
L & J Energy Co .. Inc. v. Secretary of Labor, 57 F.3d 1086
(D.C. Cir. 1995). The Court determined that my legal conclusion
"disclaiming reliance on anything but expert testimony," rendered
"irrelevant" my statement that I reviewed the testimony of other
witnesses . 57 F.3d, supra, at 1087, citing 16 FMSHRC at 441.

2133

The Court further stated that if, on remand, the Commission
reaches the same conclusion, "it must simply explain why the
eyewitness [i . e., non-expert] testimony is discredited or
disconnected in whole or in part." Id., at 1087 . Finally, the
Court held that the Commission should address each of the six
statutory criteria for determining civil penalties "before
assessing a fine." Id., at 1088, citing Sellersburg Stone Co.,
5 FMSHRC 287, 292-93 (March 1983); 30 U. S.C. § 820(i). On
August 8, 1995, the Court issued its Mandate and Judgment in
this matter, returning the case to the Commission's jurisdiction.
On September 5, 1995, the Commission issued an order remanding
this matter to me, " . .. for a new determination based on the
entire record . "
(L & J Energy Co . . Inc., 17 FMSHRC 1515, 1517
(September 1955)) . On November 1, 1995, the parties each filed
a Brief on Remand . l
Following the dictates of the Court of Appeals, as referred
to by the Commission in its remand order, I make the following
further explanations:
l .

Why eyewitness testimony was discounted

In evaluating the issue of whether dangerous conditions
existed on the highwall prior to the accident, I discount the
testimony of the eyewitnesses who testified on behalf of L & J,
and instead rely upon the expert testimony due to the experience
and expertise of the experts who testified. An evaluation of the
experts' testimony is set forth in my initial decision, 16 FMSHRC
supra, at 443. In addition, as set forth in my initial decision,
16 FMSHRC, supra, at 443, the testimony of L & J's witnesses is
discredited because the inspector's testimony that on February 6,
l oose material covered at least 75 percent of the highwall, was
not contradicted or impeached. Also, L & J ' s expert witness
Scovazzo, and lay witnesses Todd and Woods recognized . the
depiction of some loose materials in photographs taken the
morning of February 6.

1To

the extent that the arguments in the parties briefs are
i nconsistent with this decision, or are beyond the scope of the
r emand order, they are rejected .

2134

2.

The six statutory criteria

Upon reconsideration of the entire record, I r eaffirm the
findings and discussion relating to the statutory crit eri a of the
gravity of the violations, the negligence of L & J , and the
effect of a penalty on L & J's ability to continue in business.
accept the Secretary statements in his brief that
L & J demonstrated good faith in attempting to achieve compliance
after notification of the violations, and that there is no
history of prior violations. L & J has not challenged the
assertions by the Secretary that the size of its business is
evidenced by the fact that it employs 15 miners, and has an
annual revenue of one million dollars.
I

In evaluating the statutory criteria in determining the
proper penalty to be assessed, I consider most significant the
very high level of gravity of the violations found herein, and
the more than moderate level of L & J's negligence. I reiterate
herein the reasoning set forth in the original decision 16 FMSHRC
supra. I further reaffirm my findings and reasoning set forth in
the initial decision, 16 FMSHRC, supra, at 449-450, that L & J
did not establish that the imposition of penalties would
significantly impair its ability to continue in business .
I further reaffirm my initial findings regarding the proper
penalties for the violations found to have been established.
ORPER
It is ORDERED as follows:
1.

Order No. 3490035 be sustained.

2.

Order No. 3490201 be dismissed.

3 . If L & J has not paid the civil penal ty pursuant to the
initial decision in this matter, then it shall, within 30 days of
this decision, pay a civil penalty of $87,500.00 .

~eis~

Administrative Law Judge

2135

Distributi on:
Linda M. Henry, Esq . , Office of the Solicitor, U.S ; Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Henry Chajet, Esq., Patton Boggs , L. L.P., 2550 M Street, N.W . ,
Washington, D. C. 20037 {Certified Mail )
/ml

21 36

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

NOV 3 0 1995'
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 95-331-M
A.C. No. 09-00265-05521

I

Junction City Mine
BROWN BROTHERS SAND COMPANY,
Respondent
DECISION

Appearances:

Terry E. Phillips, Conference and Litigation
Representative, Mine Safety and Health
Administration, U.S. Department of Labor,
Birmingham, Alabama, for the Petitioner;
Steve Brown, Partner, Brown Brothers Sand Company,
Howard, Georgia, for the Respondent.

Before:

Judge Feldman

This matter is before me as a result of a 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). The petition seeks a civil
penalty of $50 .00 for each of two alleged nonsignificant and
substantial violations of mandatory safety standards in Part 56,
30 C.F.R. Part 56. This matter was heard in Macon, Georgia, on
October 24, 1995. Th~ parties stipulated that Brown Brothers
Sand Company is a small operator subject to the jurisdiction of
the Act.
(Tr. 13-15; Joint Ex. 1 ) . At the culmination of the
hearing the parties waived the filing of post-hearing briefs.
This decision formalizes the bench decision made at the
conclusion of the hearing .
Ci tation No. 4302160
The essential facts are not in dispute. As of January 31,
1994, the Mine Safety and Health Administration changed its
policy concerning the enforcement of the mandatory safety

2137

standard in section 56.12028, 30 C.F . R. § 56.12028 .
standard provides:

This

Continuity and resistance of grounding systems shall be
tested immediately after installation, repair, and
modification; and annually thereafter. A record of the
resistance measured during the most recent tests shall
be made available on a request by the Secretary or his
duly authorized representative.
On January 31, 1994, Program Policy Letter No. P94-IV-1 was
distributed to all mine operators advising them of the
requirements of section 56.12028.
(Ex. P-4). The policy
st~tement noted that conductors in fixed installations, such as
rigid conduit, armored cable, raceways and cable trays, that are
not subject to vibration, flexing or corrosive environments, may
be examined annually by visual observation to check for damage in
lieu of an annual resistance test. All other installations,
including power cables that supply power to tools and portable
equipment must be tested by a resistance meter. Records of all
testing, whether by observation or meter, must be kept by the
operator . .ill...
In March 1994, Mine Safety and Health Administration (MSHA)
Electrical Inspector Donald Collier and Metal/Nonmetal Mine
Inspector Kenneth Pruitt reminded Greg Brown, a partner of Brown
Brothers Sand Company, of the recent Policy Letter requiring
annua l continuity and resistance testing for all existing
electrical installations. This testing will alert the operator
if a problem exists in the grounding system which may not allow
the circuit protective devices to quickly operate when faults
occur. The inspectors advised Greg Brown to conduct such testing
immediately.
Inspector Pruitt returned to the respondent's Junction City
facility on September 13, 1994 . .Pruitt asked Greg Brown if he
had conducted the requisite resistance testing of the mine site
grounding systems. Greg Brown replied that he had not yet
performed the testing because he was waiting for his cousin, who
had been unavailable, to perform the tests. The testing requires
a multi-tester ohms resistance meter that measures the resistance
of the ground field at various intervals between the disconnect
boxes, circuit breakers and motors.
(Tr. 33).

2138

As a result of Brown's failure to perform any visual or
metered continuity and resistance testing, Pruitt issued 104(a}
Citation No. 4302160 for a violation of section 56.12028. Pruitt
characterized the vio l ation as nonsignif icant and substantial
because he concluded that the failure to perform the testing
alone, in the absence of an intervening ground fault, would not
contribute to the likelihood of an injury.
(Tr. 20). The
citation was abated on February 27, 1995, after the required
testing had been performed.
(Tr. 63-66).

Citation No. 4300 5 57
On March 14, 1995, MSHA Inspector Ronald Grabner observed
that a ground wire about one-half to three quarters of an inch in
length had broken off on the 110-volt pump for the portable
diesel storage tank.
(Tr. 74, 109-110}. The ground wire was not
readily visible in that it was very short in length and located
at the rear of the pump.
{Tr. 110}. Grabner issued Citation
No. 4300557 citing a violation o f the mandatory standard in
section 56.12025, 30 C.F . R. § 56.12025. This safety standard
requires all electrical circuits to be grounded, or, to be
provided with equivalent protection . Grabner considered the
violation to be nonsignif icant and substantial because, with the
exception of the ground wire, there was no evidence of frayed or
broken wires indicative of a potential short .
(Tr . 82).
At the conclusion of the hearing I issued the following
bench decision which is edited with non-substantive changes:
This proceeding concerns two 104 (a) citations issued
for violations characterized as nonsignif icant and
substant i al. The first citation, Citation No . 4302160,
was issued for a failure to perform the required
annual continuity and resistance testing as required
by section 56.12028 of the r~gulations. The
uncontroverted testimony is that Collier and Pruitt
informed Greg Brown of the section 56 . 12028 testing
requirements during an inspection on or about March 22,
1994.
Pruitt returned to the mine site on September 13, 1994,
and determined that the requisite testing had not been

2139

performed. Consequently, Pruitt issued the subject
citation. The only issues before me are the fact of
occurrence of the violation and the appropriate
penalty, if any, to be assessed . While there may be a
legitimate difference of opinion concerning whether a
particular electrical circuit requires visual or meter
resistance testing, the respondent has admitted that it
had performed neither procedure when Pruitt returned to
the mine site on September 13, 1994. Consequently, the
Secretary has established the fact of the occurrence of
the cited violation.
With respect to the appropriate penalty to be assessed,
I note that Pruitt has testified that MSHA had
postponed the enforcement of section 56 . 12028 on
several occasions prior to its January 31, 1994,
Policy Letter advising operators that this mandatory
standard would now be enforced.
In addition, Grabner
testified that the continuity and resistance test
results obtained during the course of abating the
citation revealed all grounding systems in the
electrical circuits were functioning properly.
I view
these two factors as mitigating circumstances.
Accordingly, I am assessing a civil penalty Of $25 . 00
for Citation No. 4302160.
Remaining Citation No . 4300557 was issued for a broken
ground wire on the diesel pump motor . Greg Brown, who
accompanied Grabner on his March 14, 1995, inspection
was not called to testify to confirm or deny the
condition cited by Grabner.
In the absence of any
contradictory testimony, I have no reason to question
Grabner's credibility . Consequently, the evidence
reflects the cited portable pump did not have the .
ground protection required by section 56.12025 .
However, I find the degree of negligence attributable
to this nonsignif icant and substantial violation to be
minimal . The broken ground wire was less than one inch
in length and it was not readily visible as it was
located behind the pump motor. There is also no
evidence that this condition had existed and gone
undetected for any significant period of time .

2140

Consequently, I am assessing a civil penalty of $15.00
for Citation No. 4300557.
As a final matter, a previous proceeding before me in
Docket No. SE 94-417-M, concerned three separate
citations issued to Brown Brothers on March 22, 1 994,
for three n onsignif icant and substantial grounding
violations of section 56.12025 . See Brown Brothers
Sand Company, 17 FMSHRC 578, 582-584 (April 1995).
When there is a general grounding problem at a
particular mine site, particularly at a mine of a small
operator as in the current case, there comes a point
when similar violations should be consolidated into the
same citation rather than the issuance of cumulative
citations .
For example, as an extreme illustration,
there comes a time when $50.00 penalties for each of
1,000 pieces of ungrounded equipment, become
disproportionate to the gravity of nonsignif icant and
substantial violative conditions. While I recognize
that section 104(a) of the Act authorizes an inspector
to issue a citation for each violation of a mandatory
safety standard, and, the grounding citations issued to
Brown Brothers are not so numerous as to constitute an
abuse of discretion, MSHA should consider the propriety
of consolidating similar violations in the same
citation in instances where such consolidation is
consistent with the penalty criteria in section llO(i)
of the Act.
(Tr. 135-144) .

ORDER
In view of the above, Citation Nos. 4302160 and 4300557
ARE AFFIRMED . Brown Brothers Sand Company SHALL PAY a total
civil penalty of $40.00 in satisfaction of these citations within
30 days of the date of this decis~on. Upon timely receipt of
payment, Docket No . SE 95-331-M IS DISMISSED .

(}__0J --§C)

~;old

·-,

Feldman
Administrative Law Judge

214 1

Distribution:
Terry E. Phillips, Conference and Litigation Representative,
Mine Safety and Health Administration, U. S . Department of Labor,
135 Gemini Circle, Suite 212, Birmingham, AL 35209
(Certified Mail)
Steve Brown, Brown Brothers Sand Company, Highway 90, Box 82,
Howard, GA 31029 (Certified Mail)
/rb

2142

FEDERAL KINE SAFETY AND HEALTH RBVIEW COMMISSION
OfflC£ Of ADMINISTRATIVE LAW Jl.OGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 3 0 1995
DEBORA BOYCE,

v.

Complainant

CONSOLIDATION COAL COMPANY AND
SUPERIOR SECURITY, INC. ,
Respondents

. DISCRIMINATION PROCEEDINGS
No . WEVA 95-126-D
. Docket
MORG CO 95-01
. Robinson Run #95 Mine
.. Docket No. WEVA 95-127-D
. MORG CO 95-01

VILETTA M. MOORE,
Complainant

Robinson Run #95 Mine

v.

.
CONSOLIDATION COAL COMPANY AND .
SUPERIOR SECURITY, INC.,
Respondents

DECISION
Appearances:

Debora Boyce and Viletta M. Moore, Mannington,
West Virginia, pro se ;
Elizabeth Chamberlin, Esq . , Pittsburgh,
Pennsylvania for Consolidation Coal Company;
James B. Zimarowski, Esq., Morgantown ,
West Virginia for Superior Security .

Before :

Judge Melick

These cases are before me upon the complaints by
Debora Boyce and Viletta M. Moore under Section lOS(c) (3)
of the Federal Mine Safety and Health Act of 1977, JO u.s.c.
S 801 et seq., the •Act, • alleging 'discrimination in violation
of Section 105(c) (1} of the Act. 1

1

Section 105(c) (1) of the Act provides as follows :

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners
2143

In complaints of discrimination filed with the Department of
Labor's Mine Safety and Health Administration (MSHA) on
November a, 1994, Boyce and Moore both allege in relevant part as
follows:
During the past year, I have worked as a security guard
at various facilities owned by Consolidation Coal Company .
During that time I was exposed to various hazards which I
believe were life threatening . At various times I
complained about the hazards I encountered to my supervisor,
Tom Davis. Because of my complaints, my time was reduced
and what work I did receive was only at remote locations
with no communications or sanitary facilities provided.
When I questioned Tom Davis in regard to the lack of
sanitary facilities at the job site, I was told that I could
go to the woods, that it was my problem .
Brenda Fluharty is in charge of scheduling personnel for
work at the various sites. After I made complaints
regarding my health and safety to her (particularly
regarding the lack of communications at remote locations),
Mrs. Fluh~rty began reducing my work time. As the result,
my time was diminished approximately 60% from what it was
prior to my making health and safety related complaints.
Gary Fluharty, Superintendent for Consolidation Coal
Company, who is the husband of Brenda Fluharty, was

Footnote 1 Continued
or applicant for employment in any coal or other mine
subject to this Act because such miner, representative
of miners or applicant for employment has filed or made
a complaint under or related to this Act, including a
complaint notifying the operator or the operator's
agent, or the representative of the miners at the coal
or other mine of an alleged danger or safety or health
violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is
the subject of medical evaluations and potential transfer
under a standard published pursuant to Section 101 or
because such miner, representative of miners or applicant
for employment has instituted or caused to be instituted
any proceeding under or related to this Act or has testified
or is about to testify in any such proceeding, or because
of the exercise by such miner, representative of miners or
applicant for employment on behalf of himself or others of
any statutory right afforded by this Act.

2144

aware of the safety hazards at the various sites. I
believe that Brenda informed Gary and visa [sic) versa of
the hazards that were reported in our complaint~.
The Commission has long held that a miner seeking to
establish a prima facie case of discrimination under
Section 105(c} of the Mine Act bears the burden of persuasion
that he engaged in protected activity and that he suffered
adverse action which was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC
2786 , 2797-2800 (1980) , rev'd on grounds, sub. nom.
Consolidation coal co . v. Marshall, 663 F.2d 1211 (3rd Cir .
1981); and Secretary on behalf of Robinette v. United Castle Coal
co., 3 FMSHRC 803 , 817-18 (1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
the protected activity. If an operator cannot rebut the prima
facie case in this manner, it may nevertheless defend
affirmatively by proving that it would have taken the adverse
action in any event on the basis of· the miner's unprotected
activity alone . Fasula, supra; Robinette, supra. See also
Eastern Assoc, Coal Corp . v. FMSHRC, 813 F. 2d 639, 642 (4th Cir.
1987); Donovan v . Stafford Construction Co., 732 F.2d 954, 958-59
(O.C . Cir, 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir.
1983) (specifically approving the Commission's Fasula-Robinette
test). cf • • NLRB v. Transportation Management corp., 462 u.s.
393, 397-413 (1983) (approving nearly identical test under
National Labor Relations Act . )
Respondent Superior Security, Inc. is in the business of
providing security guards on a contractual basis. During the
period of time at issue it was under contract to provide security
guards at various Consolidation Coal Company (Consol) mines and,
specifically, at remote pump sites to protect equipment while not
in use. According to Thomas Davis, secretary/Treasurer of
Superior Security, Inc. they utilize both full-time and part-time
or •on-call" guards . The complainants were hired as part-time
·on-call" guards who were called for work only periodically and
for short term assignments, usually for only one or two days but
occasionally for up to two weeks when providing security at
various remote pump sites. Ordinarily superior Security received
calls from Consol each day they determined that security
personnel were needed at various pump sites. These sites are
generally at more remote and less desirable locations than where
the permanent full-time staff work. According to Davis Superior
Security mai ntains a seniority list of part-time employees and
when a request for a part-time security guard is made by Consol
they proceed down the list in order of seniority, passing on
those who cannot be reached or who are unavailable.

2145

In their complaints in these cases Boyce and Moore allege
that they suffered discrimination in the year preceding the
filing of their complaint with MSHA on November 8, 1994, in that
after they made their complaints of •1ife threatening" hazards to
Tom Davis, presumably those complaints associated with their
being required to work as security guards at •very remote
locations with no communication or sanitary facilities", their
work time was reduced and the work that they did receive was only
at •very remote locations with no communications or sanitary
facilities" . They also complain that when their supervisor at
Superi or Security, Tom Davis, was questioned in regard to the
l ack of sanitary facilities at the job sites, they suffered
discr i mination when he purportedly told them that they "could go
to the woods" . They maintain that the Consolidation Coal Company
(Consol) was also responsible for the discrimination they
suffered in that Gary Fluharty, alleged to be a Consol
superintendent, was the husband of Brenda Fluharty who was an
employee of Superior Security and who they claim informed her
husband of their complaints .
Even assuming, arguendo, however, that the complainants had
engaged in protected activity as alleged, they have failed to
sustain their burden of proving that they suffered adverse action
as a result of such activity. The undisputed evidence shows that
both Moore and Boyce had always, from the beginning of their
employment as part-time "on-call" security guards for Superior
Security, been assigned to remote worksites primarily to guard
pump equipment at various Consol mine properties. The
communication facilities at some of these locations had always
been limited to the voluntary use of "walkie talkies" and some
apparently never had on-site bathrooms. 2 There is moreover no
evidence that the conditions at these worksites were worse after
the alleged health and safety complaints. Moreover, there is no
record evidence to indicate that the complainants were assigned
more often to these remote worksites after their alleged
complaints.
In addi tion, while Boyce and Moore further allege that they
suffered diminished work time "approximately 60% from what it was
prior to . • . making health and safety related complaints",
Moore conceded at hearing that, upon its investigation, MSHA, in
fact, found no significant reduction in their work time. Moore
further acknowledged at hearing that she had no evidence to
dispute MSHA ' s finding in this regard. Indeed neither
complainant produced any credible evidence at hearing to show

2

It is not disputed that Moore and Boyce had access to
vehicles which they were permitted to use to transport themselves
to sanitary facilities available near the remote locations.

2146

that their work time had, in fact, been reduced following their
purported safety and health complaints.
Under the circumstances, wherein the complainants have
failed to sustain their burden of proving that they suffered any
adverse action, there is no need to pursue any further legal
analysis. Those complaints must accordingly be dismissed.
ORDER

The complaints of discrimination by Debora Boyce and
Viletta M. Moore in the captioned proceedings are hereby
dismissed as against both Consolidation Coal Company and
Superior Security, Inc.

}i\'
._,

,/

Iv
I /\/\·· _,,\
l,,

: v

w

Gary M(\lick

Adminis~rative

l_,

..

~

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..

\ /.

\

\
\

Law Judge

703-756~6261

\

Distribution:

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
.

James B. Zimarowski, Esq., 265 High Street, Suite 501,
Morgantown, WV 26505 (Certified Mail)
Ms. Debora Boyce, Route 1, Box 243, Mannington, WV
{Certified Mail)

26582

Ms. Viletta M. Moore, Route 1, Box 302, Mannington, WV
(Certified Mail)
/jf

214 7

26582

2148

ADMINISTRATIVE LAW JUDGE ORDERS

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

November 24, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket Nos. LAKE 94-72, etc.

v.

Buck Creek Mine

BUCK CREEK COAL INC.,
Respondent
OBDER GBANTIHG CONTINUED STAY
OF CIVIL PROCEEDINGS
On July 17, 1995, a 90 day stay of 80 orders and citations
from among the more than 500 orders and citations in these cases
was granted. Buck Creek Coal, Inc ., 17 FMSHRC 1294 {Judge
Hodgdon, July 1995). On October 16, 1995, the Secretary filed a
motion requesting a continuance of the stay for 45 of the orders
and citations. Buck Creek opposes the motion. For the reasons
set forth below, the motion is granted.
In support of the motion, the Secretary asserts that the 45
orders and citations, which are found in 14 civil penalty
dockets, are "subject to and within the scope of an ongoing
criminal investigation into possible willful violations of
federal law and mine safety standards at the Buck Creek Mine."
The motion goes on to state that at least the ~ first phase of the
criminal investigation is expected to be completed "shortly . " As
in its previous motion, the Secretary maintains that "[t]he
violations which the Secretary seeks to have continued as stayed
are either directly involved in the courses of conduct under
[criminal] investigation or are of the same type , location and
hazards as the core conduct and are considered possibly motivated
by the same concerted course of action." In further support of
the motion, the Secretary has submitted another affidavit of the
Assistant U.S . Attorney for in camera consideration.

2149

In opposing the motion, Buck Creek argues that the Secretary
has not shown a commonality of evidence between the orders and
citations he wishes to have stayed and the criminal
investigation. The Respondent further argues that a ·continuance
of the stay would extend "the unending denial of Buck Creek's
rights to an expeditious and fair disposition of the citations
and orders contested in this matter," would "disrupt Buck Creek's
discovery efforts" and would not conserve judicial resources .
Finally, Buck Creek contends that consideration of the affidavit
in camera violates its right to due process and, therefore,
should not be done.
In a prior decision in these cases, the Commission set out
five factors to be considered in determining whether to grant a
stay of civil proceedings when a related criminal proceeding
exists . Buck Creek Coal Inc., 17 FMSHRC 500, 503 (April 1995).
I t further stated that the first factor, "commonality of
evidence" between the two proceedings, was a "key threshold
factor" that had to be established in the record before the other
four factors could be considered. Id.
The Commission did not discuss what types of evidence would
be sufficient to establish a nexus between the civil and criminal
matters. While the decision stated that an "assertion that a
stay would be 'beneficial' to the Government falls short of the
demonstration required," no additional guidance is provided. Id.
Presumably, however, more than an assertion by the Secretary that
the matters are related is necessary.
When charges have been drafted and indictments returned, it
would seem to be a simple matter to compare the charges with the
civil matters. Even then, the U.S. attorney may be reluctant to
reveal to the defendant his evidence before trial . When the
criminal proceeding is just in the investigative stage·, as here,
there are numerous reasons why the government would not want to
make public what the investigati~n involves . See e.g. 17 FMSHRC
at 1295 . Accordingly, if the Secretary's claim that there is a
commonality between the civil and criminal matters is not
sufficient, it appears that the only way to resolve the issue
without compromising the criminal investigation is to review the
Secretary's in camera submission . See In Re John Doe, Inc., 13
F.3d 633, 636 (2d Cir. 1994).

2150

Having reviewed the Assistant U.S. Attorney's submission, I
conclude that a commonality of evidence and issues has been
demonstrated. 1 Buck Creek argues that the test "requires
commonality of evidence - - not of 'issues'." That misreads the
Commission's decision. Although the Commission only mentioned
commonality of evidence in enumerating the five factors, it
clearly stated in its conclusion that "we vacate the February 15
Order Continuing Stay without prejudice to the imposition by the
judge, upon request, of a limited stay covering particular
proceedings based on the criteria set forth herein, including the
commonality of issues and evidence between the civil and criminal
matters . " Buck Creek at 505 (emphasis added). Consequently, in
reaching this decision, I have considered commonality of both
evidence and issues.
I also conclude that the remaining considerations for
granting a stay are as they were in my previous grant and,
accordingly, find that a continuance of the stay is appropriate.
With regard to Buck Creek's allegation that it is being denied an
expeditious disposition of these cases, I note that so far there
has been no request to begin hearing any of the cases that have
not been stayed since the Commission's April 25 decision. With
his latest motion the Secretary has added 35 orders and citations
to the already large number available for hearing. 2
Accordingly, it is ORDERED that proceedings in Order Nos.
3843374, 3843376 and 3843377 in Docket No . LAKE 94-21; Order No.
3843511 in Docket No. LAKE 94-42; Citation Nos. 3843532, 4055892
and 4055893 in Docket No. LAKE 94-50; Order No. 3843667 in Docket
No . LAKE 94-72; Order No. 4055899 in Docket No. LAKE 94-81;
Citation Nos. 4262051 and 4262257 in Docket No. LAKE 94-600;
Citation Nos. 4259169, 4259170, 4262070, 4262307, 4262308,
The current submission provides little in the way of new
information and incorporates by reference the previous
submission, therefore, I am essentially finding that the previous
submission suffices to continue the stay.
1

It would be impractical, if not impossible, to hear all of
these cases at one hearing, but there does not appear to be any
reason why hearings in 'rnanageable groupings of cases could not
begin to be scheduled. In this connection, it would appear that
such hearings will be taking place long after the instant stay
has been lifted or expires.
2

2151

4262 313 and 4262314 in Docket No . LAKE 94-602; Citation Nos .
4262128 and 4259175 in Docket No. LAKE 94 - 669; Order Nos.
4259813, 4259814, 4262068, 4262080 and 4262275 and· Citation Nos.
3843968, 4261879, 4262303, 426304, 4262305 and 4262334 in Docket
No. LAKE 94-708; Order Nos. 4259171, 4261728, 4262075 and 4262317
in Docket No. LAKE 94-709; Order No . 4262078 in Docket No . LAKE
94-746; Order Nos. 4259848, 4262374 and 4262375
and Citation
Nos . 4262277, 4262278 and 4262279 in Docket No. LAKE 95-49i Order
No. 3843970 in Docket No. LAKE 95-94; and Citation No. 4259854 in
Docket No. LAKE 95-173 are STAYED for 60 days from the date of

this order . 3

1:~~

Administrative Law Judge

Distribution :
Henry Chajet, Esq., Fiti A. Sunia, Esq . , Patton Boggs, L.L.P.,
2550 M Street, N.W., Washington, DC 20037-1350 (Certified Mail)
Rafael Alvarez, Esq., Office of the Solicitor, U.S . Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified
Mail }
Thomas A. Mascolino, Esq . , Deputy Associate Solicitor, Office of
the Solicitor, Mine Safety and Health, U.S. Department of Labor,
4015 Wilson Blvd . , Arlington, VA 22203 (Certified Mail )
/lt

The dockets listed are civil penalty dockets. In those
cases where a notice of contest was filed concerning one of the
orders or citations listed, the contest docket is a l so stayed.
3

215 2

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASMii.CGTON, 0 .C. 20006

November 28, 1995

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

CIVIL PENALTY PROCEEDING
Docket No. I<ENT 95-596
A. C. No . 15-17077-03543
RB No. 5

Mine

RB COAL COMPANY,
INCORPORATED,
Respondent
DECISION TO REOPEN
0RDER TO FILE PENALTY PETITION
Appearances:

Mork Malecki, Esq . , Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Richard D. Cohelia, RB Coal Company Inc.,
Pathfork, Kentucky, for Respondent.

Before:

Judge Merlin

The issue presented is whether the operator may be allowed
to proceed to a hearing on the merits of its claim or whether the
case should be di~missed because the operator did not request a
hearing within the period allowed by the Mine Act and Conunission
regulations.
On November 28, 1994, an inspector of the Mine Safety and
Health Administration issued to the operator Citation No. 4247308
under section 104(d) of the Act, 30 u.s.c. § 814(d). On the same
date the operator was also issued Order No. 4247309 under section
104(d) . Thereafter, on March 23, 1995, the Mine Safety and
Health Administration issued a Notice of Proposed Assessment for
the subject citation and order as well as for a citation issued
under section 104(a). 1 The notice advised the operator that it
had 30 days from the date it rece~ved the proposed assessment to
either pay or notify MSHA that it wished to contest the proposed
assessment and was requesting a hearing. The notice further told
' the operator that if it did not exercise these rights within 30
days, the proposed assessment would become a final order of the
Commission . The notice was mailed certified mail return receipt
requested and received by the operator on March 28, 1995.
1

The 104 (a) citation was paid and is not involved in this

case .
2153

The 30th day from the date of the operator's receipt of the
proposed assessment was April 27, 1!J95. MSHA's Civil Penalty
Compliance Office received a request for hearing from the operator which is date stamped May 26, 1995. The hearing request is
signed and dated May 12, 1995, by the operator's engineer. On
June 8, 1995, MSHA wrote the· operator that the proposed assessment was final and that the hearing request could not be honored
because the case had not been timely contested.
On June 16, 1995, the operator through its engineer wrote
the Commission seeking permission to contest these civil penalty
assessments. The operator admitted that i t had failed to contest
the assessments within the 30 day period specified in section
105(a) of the Act, 30 U.S.C. § 815(a), and section 2700.26 of
Commission regulations, 29 C . F . R. § 2700.26. According to the
engineer's letter, the hearin~ request was not filed on time
because i t was misplaced in the paperwork of numerous assessments. The letter further stated that the company had just
recently begun implementing a program aimed at contesting citations which i t considered excessive and . that i t was learning by
trial and error, because it would be more expensive to hire an
attorney than pay the assessments.
On July 18, 1995, the Conunission issued an order treating
the operator's letter as a petition for discretionary review and
stated that i t was unable to evaluate the merits of the operator's position . Therefore, i t remanded the case for a determination whether relief was appropriate under applicable criteria .
17 FMSHRC 1110.
On July 25, 1995, I issued an order requiring the Solicitor
to show cause why the case should not be assigned to an Administrative Law Judge for disposition on the merits.
Thereafter, on
August 14, 1995, the Solicitor filed a response to the order to
show cause, asserting that the operator had not demonstrated that
it was entitled to relief and arguing that even if the reasons
advanced justified relief, they were not presented in . such a
manner as to obviate the need for a hearing .
Attached to the Solicitor's motion were copies of the
citation and order issued to the operator for the alleged violations which had been designated significant and substantial and
due to unwarrantable failure. Also attached was a copy of the
notice of the proposed assessment, dated March 23, 1995, together
with the assessment sheet .
The first alleged violation was
assessed at $1,200 and the other at $1,500.

2154

A notice of' hearing was issued on Sex.Jtember 28, 1995, and a
hearing was held on November 1, 1995.
At the hearing the operator's engineer testified that he is
the individual at the mine who is served with citations and
orders, receives the notices of proposed assessments, and decides
whether to pay or contest them (Tr. 5-6, 10-11). He is the only
person at the mine who performs these tasks . Because the operator is small with only 100 to 120 tott.l employees and in view of
the present state of mining, he has m~ny other duties to perform
(Tr. 16, 58). These other duties include training new employees,
performing surveys, taking dust samples, inspecting sections
before the MSHA inspector comes and accompanying the inspectors
on their inspections (Tr. 5-6, 16). After receiving a citation
he disagrees with, the engineer has a closeout conference with
the inspector and if the matter rem-.1 ins unresolved, a health and
safety conference is held and if a resolution is not reached, h~
requests a hearing before the Commission (Tr. 6-7). All citations issued by an inspector on the same day do not come on the
same proposed assessment notice (Tr. 8) . If a citation is going
to be paid, the engineer tries to stagger payments depending upon
the operator's cash position at the particular time so that a few
are paid at a time (Tr. 12). Therefore, citations he decides to
pay are not always forwarded immediately to the operator's
corporate office for payment (Tr. 12). If he decides to appeal
to the Commission, he also staggers mailing hearing requests so
that hearings will not all be at the same time (Tr. 28, 47-48).
Due to his other responsibilities he cannot spend all his time
during a given period contesting citations (Tr . 16) . According
to the engineer, the operator routinely contests citations and
orders issued under section 104(d) of the Act, supra, because it
disagrees with the findings of significant and substantial and
unwarrantable failure (Tr. 7, 30). Also the assessments in these
cases are expensive and significant and substantial findings
count toward their "pattern of violations" under section 104(e),
30 U. S. C . . § 814(e) (Tr. 32).
In the engineer's opinion these
findings have been excessive and he has been successful in having
them changed and securing settlements (Tr. 30-31, Op. Exh. No.
3). He does not necessarily let ~04(a) citations slide either
(Tr. 11).
The engineer testified that two or three months before he
received the notice of proposed assessment in this case, he
obtained a new computer (Tr. 8-~). When he received this notice,
he was entering on the computer citations and notices of assessment back to 1993 (Tr. 25, 51). For each case he enters the

2155

citation number, the assessment control number, dollar amount,
prior action, and status (Tr. 9-10, Op. Exh. No. 3).
rhis case
is the only time he failed to request a hearing timely (Tr. 5960) . After the late filing in this case, he purchased additional
software whereby he now has a daily calender and can bring up
deadlines (Tr. 49-50). If he had had this software when he
received this notice, he would not have been late (Tr. 50) .
The engineer explained that i t is his practicA to put
contested citations in a file cabinet with their number on the
file (Tr . 27) . Citations that are to be paid are placed in a
b asket on his desk to be taken to the corporate office at
Brookside which is 40 miles away (Tr . 10-11, 25). He circles the
citations he is going to contest and leaves a note for the ones
to be paid (Tr . 37, Gov't . Exh. 1). He knew when he first saw
the 104(d) citation and ·order in this case that they would be
appealed (Tr. 28). At that time he was working on about 20
assessment sheets (Tr. 14-15). He could have filled out the
explanation portion of the hearing request entered the data on
the same day he received the proposed assessment, a couple of
days later or even 15 days later (Tr. 28-29, 38-40). Several
orders were issued by the inspector at that particuiar time and
the engineer tried to space them out (Tr. 29) . He does not
dispute the date of receipt as March 28 and said that the return
receipt card had been signed by an individual who works in the
warehouse (Tr. 34-35). Subsequently, on May 12 he signed the
hearing request and gave i t to be mailed (Tr. 42-43). As already
stated, he staggers hearing requests so that all the hearings
will not occur at the same time, and he did not intend this
request to be late (Tr. 48). The engineer did not know why the
request was mailed almost two weeks after he signed i t (Tr . 33) .
When he signs a request for hearing he gives i t to the office
worker to mail (Tr . 33-34). He subsequently found the request
for hearing in the basket for assessments to be paid, which was
the wrong pile (Tr. 25, 29, 49) . Mail goes to several different
places and may have been put in the wrong pile or misplaced (Tr .
47). The individual working in the office who is responsible for
mailing is a miner's widow and does not know too much about
secretarial work (Tr. 46). She just more or less answers the
telephone (Tr. 34) . She could have sent the hearing request to
Brookside by mistake (Tr. 47).
According to the engineer, all citations issued on the same
day do not come out in the same notice of proposed assessment and
assessment sheet (Tr. 8). The number of notices and assessment
sheets vary (Tr. 8). As previously set forth, the citation and
.•

2156

order at issue were included in the notice of proposed assessment, and constitute the items in this docket nwnber. However,
on November 28, 1994, the day these items were issued, two more
citations also were issued (Tr. 29, Op. Exh No . 2). All these
items were considered at the same Health and Safety Conference
(Tr. 1 7 Op. Exh. No. 2) . However, the other two ci ta tic.ls were
in a different notice of proposed assessment and therefore, when
a hearing was requested for them, they were in a cliffert:·nt docket
number (Tr. 18) . I take official note that according t-.!) Commission records the docket number for those citations is l<ENT 95-343
and that the Secretary's penalty petition there was filed late by
a Conference and Litigation Representative ("CLR"), 29 C.F.R.
§ 2700.28.
The reasons given for the late filing were the
newness of the CLR program in which non lawyer MSHA er:;ployees
represent the Secretary in selected cases, and the confusion of
the CLR over the correct contest date. On May 26, 1995, I
accepted the explanations offered and issued an order accepting
the Secretary's petition. I noted that the CLR program represents a new approach which I had approved in prior cases. I also
pointed out that the operator was not prejudiced by the delay .
Subsequently those cases were settled (Tr. 19, 21) .
Section 105(a) of the Act, supra, provides that an operator
has 30 days within which to notify the Secretary that it wishes
to contest the citation or proposed assessment. If within 30
days of receipt of the Secretary's notification, the operator
fails to notify the Se~retary that it intends to contest the
citation or proposed assessment, the proposed assessment becomes
a final order of the Commission . Id. In Jim Walter Resources,
Inc., 15 FMSHRC 782 (May 1993), the-commission held that it has
jurisdiction to decide whether final judgments can be reopened .
Commission Rule l(b) provides that the Commi~aion and its
judges shall be guided so far as practicable by the Federal Rules
of Civil Procedure. 29 C.F.R. § 2700.l(b). In its July 18
order, the Commission once again stated that it possesses jurisdiction to reopen uncontested assessments which have become final
under section 105(a), supra, and that these determinations are
made with reference to Federal Rule 60(b). Federal Rule 60(b) (1)
provides as follows:
On motion and upon such terms as are just,
the court may relieve a party or a party's
legal representative from a final judgment,

2157

order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect *
*
*
In Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 1~3 s. Ct . 1489 (1993), 123 L. Ed 2d 74,
the Supreme Court recognized that Bankruptcy Rule 9006(b) (1),
which contains the same "excusable neglect" standard as Rule
60(b) (1), grants a reprieve for out-of-time filings delayed by
"neglect" . 123 L.Ed 2d at 85 . In interpreting this provision,
the Court first turned to the ordinary meaning of "neglect",
which it said was to give little attention or respect to a matter
or to leave undone or unattended to , especially through carelessness. Id. The Court said that the word "neglect" therefore,
encompassed both simple, faultless omissions to act and, more
commonly, omissions caused by carelessness. Id. The Court
further held that absent sufficient indicatio'il"to the contrary
courts asswne that Congress intends words in its enactments to
carry their ordinary contemporary common meaning . Id. Consequently, based\ on the plain meaning of neglect, the Court rejected an inflexible approach that would exclude .every instance
of inadvertent or negligent omission. Id. at 89.
With respect to the meaning of excusable neglect the Court
in Pioneer stated as follows:
Because Congress has provided no other guideposts for determining what sorts of neglect
will be considered "excusable," we conclude
that the determination. is at bottom an equitable one, taking account of all relevant
circumstances surrounding the party's omission. These include , . . . the danger of
prejudice to the debtor, the length of the
delay and its potential impact on judicial
proceedings , the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant
acted in good faith .
Id. at 89.
Many Courts of Appeals have acknowledged and followed the
test set forth in Pioneer. It has been explicitly recognized
that the decision in Pioneer represented a change from prior law

2158

and adopted a new and more lenient interpretatio~. U.S. v.
Hooper, 9 F.3d 257 (2nd Cir. 1993); Matter of Christopher, 35
F.3d 232 (5th Cir. 1994); U.S. v. Clark, 51 F.3d 42 (5th Cir.
1995); Reynold v. Wagner, 55 F.3d 1426 (9th Cir. 1995); City of
Chanute, Kansas v. Williams Nat. Gas Co., 31F.3d1041 (10th Cir~
1994); Information Systems and Networks Corp. v. U.S., 994 F.2d
792 (Fed. Cir. 1993). See also, In Re SPR Corp., 45 F.3d 70 (4th
Cir. 1995). Although Pioneer was a case that arose under the
bankruptcy rules, it has been applied beyond the context of
bankruptcy to other situations where pertinent rules contain the
same standard of "excusable neglect". U.S. v. Hooper, supra at
259; U.S. v. Clark, supra at 44; Reynold v. Wagner, supra at
1429; Information Systems and Networks Corp. v. U.S., supra at
796.
Applying the criteria of Pioneer, I find first that there
will be no prejudice to the Secretary if the operator is allowed
to proceed on the merits . There has been no allegation that the
delay which occurred here will hinder the Secretary in the
presentation of his case on the merits. In addition, a trial on
the merits is always favored over default . Information Systems
and Networks Corp. v. U.S., supra at 795. The fact that the
operator was not represented by counsel is · another factor to be
taken into account . As described above, the operator's engineer
testified how he treats citations, notices of proposed assessments, and requests for hearing. I found him truthful and
credible. His methods were sensible and obviously undertaken in
good faith. That he was in the process of computerizing his
records and that there were a large number of· cases going back to
1993 are relevant circumstances. Most importantly, this is the
only time this small operator has been out of time in requesting
a hearing. Nor do I believe reopening this case will have an
adverse impact on Commission proceedings given the circumstances
and the short delay involved. After balancing all the above
factors and bear1ng in mind the Supreme Court's admonition that
the determination of what sorts of negligence are excusable is at
bottom an equitable one, I conclude that the operator's late
filed hearing request shoul~ be allowed and the case reopened.
This conclusion is also consistent with Commission precedent. In vacating defaults and remanding cases for determination
whether reopening is warranted, the Commission has repeatedly
reminded its Judges that default is a harsh remedy . See, e.g.,
A.H. Smith Stone Company, 11 ~HRC 796, 798 (May 1989). The
Commission itself has ordered a case reopened under Rule 60(b) (1)
where the operator did not timely file an appeal, relying upon

2159

the fact that the operator was without benefit of counsel. C&B
Mining · company, 15 FHSHRC 2096, 2097 (Oct. 1993). In its remands
the Commission has considered the absence of counsel in the
forefront of relevant reasons that could justify reopening.
Kelley Trucking Company, 8 EMSHRC 1867, 1868 (Dec . 1986) . See
also, CG&G Trucking, Inc., 15 FHSHRC 193 (Feb. 1993); Mustang
Fuels Corporation, 13 FMSHRC 1061, 1062 (July 1991). The Commission has also recognized that an operator proceeding without
counsel may be entitled to relief when serious personal problems
are raspons;ble for the untimeliness . James D. McMillen, Employed by Shillelagh Mining Company, 13 FHSHRC 778, 779 (May
1991) . The absence of bad faith is another factor which should
be taken into account . Kenneth Howard v . B & M Trucking ,
11 FMSHRC 499, 500 (April 1989) . All the foregoing factors
support a reopening in the instant matter.
It is clear that this case is an isolated instance where the
operator slipped up. As appears above, ~ I have excused the
Secretary's own late filing in the companion case . . .'!'.he grounds
here for operator relief are at the very least equally persuasive
as those advanced by the Secretary in the companion case and in
many other such cases where the Secretary seeks to have his late
filings allowed. Salt Lake County Road Department, 3 EMSHRC
1714; Rhone-Poulenc of Wyoming Company, 15 FHSHRC 2089 (Oct.
1993) aff'd , 57 F . 3rd 982 (10th Cir. 1995); Roberts Brothers Coal
Company , Inc., 17 EMSHRC 1103 (June 1995); Lone Mountain Processing, Inc., 17 EMSHRC 839 (May 1995); Ibold Inc., 17 FMSHRC 843
(May 1995); Long Branch Energy, 16 FHSHRC 2192 (Oct . 1994) ;
Southmountain Coal Company, Inc . , 15 EMSHRC 2421 (Nov . 1993);
Power Operating Company Incorporated, 15 EMSHRC 931, (May 1993) .
The operator however, is cautioned that if in the future it
should be late in filing the equities might not be in its favor.
The operator is now on notice that some of its procedures,
including mailing, need improvement.
The parties have filed post-hearing briefs and statements .
To the extent they are inconsistent with this decision, they are
rejected . The Solicitor appears unaware of Pioneer and the
decisions that follow it .
In light of the foregoing, it is ORDERED that this case be
REOPENED .

2160

It is further ORDERED that within 45 days of the receipt of
this order, the Solicitor file the penalty petition for this
case.

-Paul Merlin
Chief Administrative Law Judge
Distribution :

(Certified Mail)

Mark R . Malecki, Esq . , Office of the Solicitor, U.S. Department
of Labor , 4015 Wilson Blvd. , Suite 516, Arlington, VA 22203
Richard D. Cohelia, Safety Director, RB Coal Co., Inc . , Route 1,
Box 374, Evarts , KY 40828
Mr . David J. Partin , RB Coal Co., Inc., 8174 East Highway 72,
Pathfork, KY 40863

/gl

2161

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

November 30. 1995

CIVIL PENALTY PROCEEDING

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

Docket No . LAKE 95-323-M
A. C . No. 47-03050-05501

v.

Rohl Limestone

ROHL LIMESTONE INCORPORATED,
Respondent
DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is before me upon a petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977. The Solicitor has filed a motion to approve
settlement for the one violation in this case . A reduction in
the penalty from $1, 000 to $300 is pro-_>osed.
Citation No . 4423778 was issued for a violation of 30 C.F.R.
§ 56.9314 because the No. 1 road base stockpile was not trimmed,
resulting in an injury. According to_ the Solicitor, negligence
for this citation remains unchanged. Nevertheless, he asserts
that the suggested reduction in the penalty is acceptable based
on the operator's assertions that the characterization of negligence may be inaccurate. The Solicitor states that the operator
alleges that he did everything possible to avoid the ~azard from
causing injury. The Solicitor advises that based ·on mitigating
circumstances the evidence may not conclusively confirm a
characterization of negligence as moderate. In addition, the
Solicitor states that the operator is small in size and has no
prior history of violations.
I cannot approve this settlement motion . The parties are
reminded that the Commission and its judges bear a heavy responsibility in settlement cases pursuant to section 110(k) of the
Act. 30 U.S.C. § 820(k); ~' S. Rep. No. 95-181, 95th Cong.,
1st Sess. 44-45, reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at
632-633 (1978). It is the judge's responsibility to determine
/

2162

the appropriate amount of pem.l ty, in accordance. with the six
cri teria set forth in se.c tion ~10(i) of the Act. 30 U.S.C.
§ 820(i);
Sellersburg Stone Company v. Federal Mine Safety and
Health Review Commission, 736 F.2d 1147 (7th Cir. 1984). A
proposed reduction must be based upon consideration of these
criteria .
The Solicitor's representations with respect to negligence
are inadequate . The Solicitor offers no details of the alleged
mitigating circumstances ~1or does he state that he accepts these
allegations .
I cannot approve a 70% reduction in the penalty
where the degree of negl igence remains unchanged, especially
where the v iolation involves an inj ury. Either the evidence
supports t he f inding of •noderate negligence not justifying a
large penalty reduction or the evidence is such that the citati on should be modified to reduce negligence and the proposed
penal ty . The Solicitor cannot have i t both ways.
That the
operator is small and has no prior history of violations cannot
alone justify the large reduction.
In l ight of the foregoing, i t is ORDERED that the motion for
approv al of settlement be DENIED.
It is further ORDERED that within 30 days of the date
o f this order the So licitor submit appropriate information
to support his settlerne ~1 t motion. Otherwise, this cas·e will be
set f o r hearing .

Paul Merlin
Chief Administrative Law Judge

Distribution :

(Certified Mail)

Ruben R . Chapa, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL
60604

Mr. Leo Rohl, President, Rohl Limestone Inc., 406 County Road U,
River Falls , WI 54022
/gl
-tr U.S. GOVERNMENT PRINTING OFFICE: 1995 - 405 . 710 I 43380

2163

2164