AUGUST
Commission Decisions
08-05-85
08-05-85
08-05-85
08-20-85
08-30-85

Black Diamond Coal Mining Co.
United States Steel Mining Co.
UMWA/Rowe, et al. v. Peabody Coal Co.
Calvin Bl~ck Enterprises
Sec./S.Epperson v. Jolene, Inc.

SE
82-48
PENN 83-129
KENT 82-103-D
WEST 80-6-M
KENT 83-38-D

Pg. 1117
Pg. 1125
Pg. 1136
Pg. 1151
Pg. 1159

SE
83-62-DM
VA 85-12
WEST 85-46-D
WEVA 84-375-R
LAKE 84-98
PENN 85-1-R
PENN 85-112-D
WEVA 84-352
WEVA 84-404-D
KENT 83-170
KENT 85-41-D
YORK 85-2-M
KENT 84-181
SE
85-18-R
LAKE 82-38
PENN 84-198-D
WEVA 84-252-D
YORK 85-1-M

Pg. 1161
Pg. 1166
Pg. 1173
Pg. 1175
Pg. 1185
Pg. 1187
Pg. 1192
Pg. 1197
Pg. 1277
Pg. 1285
Pg. 1291
Pg. 1292
Pg. 1294
Pg. 1303
Pg . 1312
Pg. 1314
Pg. 1322
Pg. 1323

Administrative Law Judge Decisions
08-05-85
08-06-85
08-06-85
08-06-85
08-08-85
08-09-85
08-12-85
08-13-85
08-14-85
08-22-85
08-22-85
08-27-85
08-28-85
08-29-85
08-30-85
08-30-85
08-30-85
08-30-85

Emiliano Cruz v. Puerto Rican Cement Co.
Lambert Coal Company
Sec./Alan Gauthier v. Osborne Bros. Constr.
Habet Mining & Construction
Youghiogheny & Ohio Coal Co.
Helvetia Coal Company
Richard Frame v. Consolidation Coal Co.
Valley Camp Coal Company
UMWA/Patrick Hughes v. Consolidation Coal
Johnie Childers C0al Company
James King, et al. v. E&T Trucking
S.M. Lorusso & Sons, Inc.
Ella Coa~ Company
Alabama By-Products Corporation
Southwestern Illinois Coal Corp.
Paul Krevokuch v. Crescent Hills Coal Co.
Chester Craig v. Consolidation Coal Co.
Daneker San4 & Gravel

Review was grant~d in the following case during the month of August:
Secretary of Labor, MSHA v. Ozark-Mahoning Company, Docket No. LAKE 84-96-M.
(Judge Melick, July 9, 19.85)
Review was denied in the following case during the month of August:
Secretary of Labor, MSHA v. Shannopin Mining Company, Docket No. PENN 85-33.
(Judge Melick, July 15, 1985)

COMMISSION DECISIONS

I

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

August 5, 1985
SECRETARY OF ~OR~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 82-48

v.
BLACK DIAMOND COAL MINING
COMPANY

f

BEFORE:

Rackley~

Acting Chairman; Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This civil penalty case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) (the "Mine Act") and
raises two. issues: (1) Whether BlackDiamond Coal Mining Company ("Black
Diamond") violated 30 C.F.R. § 75.400, a mandatory safety standard prohibiting accumulations of combustible materials 1/~ and (2) whether
Black Diamond improperly was denied an opportunity in this proceeding to
challenge the inspector's finding that the above violation and an admitted
violation of 30 C.F.R. § 75.200 were caused by its unwarrantable failure
to comply with the standards. A Commission administrative law judge
concluded that Black Diamond violated the standards and refused to
permit it to challenge the inspector's unwarrantable failure findings.
5 FMSHRC 764 (April 1983)(ALJ). For the reasons set forth below~ we
affirm.

1/ 30 C.F.R. § 75.400, which is identical to section 304(a) of the
Mine Act, 30 u.s.c. § 864(a), provides:
Coal dust, including float coal dust deposited on rock dusted
surfaces~ loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active
workings, or on electric equipment therein.

1117

On november 12 and 16, 1981, during a regular inspection of Black
Diamond's Shannon Mine, Milton Zimmerman, an inspector of the Department
of Labor's Mine Safety and Health Administration ("MSHA"), issued two
orders of withdrawal pursuant to section 104(d)(l) of the Mine Act. 2/
The order issued on November 12 alleged a violation of section 75.400
due to an accumulation of loose coal, coal dust and float coal dust.
The o~der issued on November 16 alleged a violation of 30 C.F.~.
§ 75.200 in that Black Diamond failed to comply with its approved roof
control plan. 3/ In his order the inspector found, pursuant to section
104(d)(l), that the violations could "significantly and substantially

11

Section 104(d)(l), 30 U.S.C. § 814(d)(l), states:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation
of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a
coal or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such operator
to comply with such mandatory health or safety standards, he shall
include such finding in any citation given to the operator under
this Act. If, duri ng the same ~nspection or any subsequent inspection of such mine within 90 days after the issuance of such
citation, an authorized representative of the Secretary finds
another violation of any mandatory health or safety standard and
finds such violation to be also caused by an unwarrantable failure
of such operator to so comply, he shall forthwith issue an order
requiring the operator to cause all persons in the area affected by
such violation, except those persons referred to in subsection (c)
of this section to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the
Secretary determines that such violation has been abated.

3/

30 C.F.R. § 75.200, which restates section 302(a) of the Mine Act,

3o u.s.c. § 862(a), states in part:

Each operator shall undertake to carry out on a continuing
basis a program to improve the roof control system of each coal
mine and the means and measures to accomplish such system. The
roof and. ribs of all active underground roadways, travelways, and
working places shall be supported or otherwise controlled adequately
to protect persons from falls of the roof or ribs. A roof control
plan and revisions thereof suitable to the roof conditions and
mining system of each coal mine and approved by the Secretary shall
be adopted and set out in printed form •••• The plan shall show
the type of support and spacing approved by the Secretary ••••

1118·

contribute to the cause and effect of a coal ••• mine safety or health
hazard" and that each of the violations was caused by "an unwarrantable
failure of [Black Diamond] to comply with [the cited] mandatory
safety standards."
Black Diamond did not contest the validity of the withdrawal orders
within 30 days of their receipt. 4/ Subsequently, MSHA notified Black
Diamond of the penalties that it proposed for the violations: $750 for
the violation of 30 C.F.R. § 75.400 and $500 for the violation of 30
C.F.R. § 75.200. Black Diamond filed a· notice of contest and the
Secretary petitioned the Commission to assess the proposed penalties.
On August 2, 1982, Black Diamond answered the Secretary's petition
stating, "The proposed assessment is an error as a matter of fact •••
the proposed fine [does] not follow the statutory guideline for assessment." The Secretary filed additional documents to supplement the
penalty petition and new penalties of $1,000 for each violation were
proposed. Black Diamond amended its answer to "request[] that a hearing
be held on the ••• proposal for assessment of civil penalty."
At the hearing Black Diamond did not dispute that it violated 30
C.F.R. § 75.200, but argued that the proposed penalty was too high.
However, it did contest the violation of 30 C.F.R. § 75.400. Inspector
Zimmerman testified regarding the violation of section 75.400 that he
observed loose coal, which appeared to him to have accumulated over four
to five production shifts, extending the entire length of the 400 foot
beltline. According to the Inspector, the loose coal was from one foot
to four feet nine inches deep, and four to ten feet wide. In addition,
the inspector observed accumulations of float coal dust along the beltline that were l/l6th of an inch deep. The inspector also stated that
at the point where the accumulated material was deepest, the bottom belt
rollers were running in the accumulations. The inspector believed the
material to be combustible despite the fact that the coal accumulations
were damp.
Black Diamond's underground foreman, Paul Province, at first testified
that the cited materials under the belt were either rock, fire clay, or
coal mixed with rock and fire clay. 5/ Mr. Province also testified that
80% of the accumulated material was rock and that the remaining 20% was coal.

!::_/

Section 105·(d) of the Mine Act, 30 U.S.C. § 815(d), states in part:
If, within 30 days of receipt thereof, an operator ••• notifies
the Secretary that he intends to contest the issuance or modification
of an order issued under section 104 ••• the Commission shall
afford an opportunity for a hearing ••• and thereafter shall issue
an order ••• affirming, modifying or vacating the ••• order.

5/
"Fire clay" is defined as, "[A]lmost any soft non-bedded clay
immediately underlying a coal bed." Bureau of Mines, U.S. Department of
Interior, A Dictionary of Mining Mineral and Related Terms 429 (1968).

1119

Mr. Province described the material touching the belt rollers as "muck."
He said it was so wet that when he grabbed a handful of the material and
squeezed it, it ran through his fingers. He acknowledged, however, that
the inspector's observations regarding the float coal and coal dust
accumulations were accurate.
The judge found a violation of 30 C.F.R. § 75.400 based upon the
existence of accumulations of loose coal, coal dust and float coal dust.
5 FMSHRC at 778. Regarding the accumulations of coal dust and float
coal dust, the judge noted that the Secretary established by credible
evidence the existence of the accumulations and that Black niamond did
not dispute their existence as cited by the inspector. The judge concluded that this alone was enough to sustain the violation. 5 FMSHRC at
778. The judge also found that the Secretary established, through the
inspector's testimony, the presence of the accumulations of loose coal.
5 FMSHRC at 778-79.
Black Diamond challenges the judge's conclusion that it violated
section 75.400 on two grounds. Black Diamond argues there was no
accumulation of coal dust or float coal dust, and it contends that the
accumulations of loose coal were not combustible. We reject both
arguments.
The inspector observed and precisely described the presence of coal
dust and float coal dust in the middle of the track and on the belt
structure. He also described the depth of the float coal dust. Black
Diamond's foreman conceded the inspector was not wrong in his description
of the coal dust and float coal dust accumulation. Although he later
testified that the float coal dust was "showing a good white color"
where rock dust had been applied, he did not retract his previous statement that the inspector had not erred in his description of the dust
accumulations. The judge found the inspector to be a credible witness.
5 FMSHRC at 779. We find no controverting evidence warranting reversal
of this finding and the conclusions based . upon it. Cf. Richard E. Bjes
v. Consolidation Coal Co., 6 FMSHRC 1411, 1419 (June 1984). We therefore
conclude that substantial evidence supports the judge's finding that the
accumulations of coal dust and float coal dust existed as described by
the inspector and in violation of the standard.
Black Diamond's second argument, that the accumulation of loose
coal was not combustible in that it was composed mainly of rock and was
too wet to burn requires us to address the meaning of 30 C.F.R. § 75.400.
, We have previously noted Congress' recognition that ignitions and explosions
are major causes of death and injury to miners: "Congress included in
the Act mandatory standards aimed at eliminating ignition and fuel
sources for explosions and fires. [Section 75.400] is one of those
standards." Old Ben Coal Co., 1 FMSHRC 1954, 1957 (December 1979). We
have further stated "[iJt is clear that those masses of combustible
materials which could cause or propagate a fire or explosion are what
Congress intended to proscribe . " Old Ben Coal Co., 2 FMSHRC 2806, 2808
(October 1980). The goal of reducing the hazard of fire or explosions
in a mine by eliminating fuel sources is effected by prohibiting the
accumulation of materials that could be the originating sources of
explosions or fires and by also prohibiting the accumulation of those
materials that could feed explosions or fires originating elsewhere in a
mine.

1120

Even if, as Black Diamond asserts, the . accumulation was damp or
wet, it was still combustible. For example, in the case of a fire
starting elsewhere in a mine, the heat may be so intense that wet coal
can dry out, ignite and propagate the fire. Furthermore, even absent a
fire, accumulations of damp or wet coal, if not cleaned up, can eventually
dry out and ignite. Also, coal mixed with rock and fire clay can nevertheless burn. A construction of the standard that excludes loose coal that
is wet or that allows accumulations of.·· loose coal mixed with noncombustible
materials, defeats Congress' intent to remove fuel sources from mines
and permits potentially dangerous conditions to exist.
Black Diamond does not dispute the fact that loose coal was pres~nt
We conclude that substantial evidence supports the judge's finding that
the accumulation of loose coal violated the standard.
Because both of the violations at issue were contained in section
104(d) withdrawal orders, MSHA processed them pursuant to its special
penalty assessment procedures. '6/ At the hearing Black Diamond unsuccessfully sought to challenge the validity of the special assessments
on the ground that 'they were based on erroneous "unwarrantable failure"
determinations. Black Diamond asserts that the inspector made erroneous
unwarrantable failure findings with regard to both violations and that
the judge's "failure to consider the issue allowed MSHA to propose a
special assessment in violation of 30 C.F.R. § 100.5 and the failure
requires reversal of the ••• judge's decision." Moreover, Black Diamond
contends that the . judge's refusal to hear _evidence regarding unwarrantable
failure denied it due process because, 11 it precluded Black Diamond from
contesting the only basis enumerated in 30 C.F.R. § 100.5 that allegedly
existed to justify the -proposed special assessm~nts." Thus, Black
Diamond's attempt to cha,llenge. the unwarranta}?le failure findings in
this proceeding is · based solely on the· impact of those findings. upon the
penalties proposed by the Secretary for the viola tions.
It has repeatedly been held that the Mine Act requires in all
contested civil penalty cases that the Commission make an independent
penalty determination and assessment, based solely upon the statutory
criteria of section llO(i) of the Act. ~~., Secretary of Labor on
behalf of . Mil ton Bailey v. Arkansas-Carbo.na Co., 5 FMSHRC 2042, 2044-46
(December 1983); Sellersburg Stone Co., 5 FMSHRC 287, 291 (March 1983),

6/

30 C.F.R. § 100.5 provides in part:
MSHA may .e lect to waive the regular assessment formula
(§ 100.3) or the single assessment provision (§ 100.4) if the agency

determines that conditions surrounding the violation warrant a
special assessment •••• [T]he following categories will be indi- ·
vidually reviewed to determine whether a special assessment is
appropriate: ••• Unwarrantable failure to comply with mandatory
health and safety standards. ·

1121

aff'd 736 F.2d 1147 (7th Cir. 1984); Knox County Stone Co., Inc., 3
FMSHRC 1895, 1896-98 (August 1981); Shamrock Coal Co., 1 FMSHRC 469
(June 1979), aff'd 652 F. 2d 59 (6th Cir. 1981). The separa.t e procedures
by which penalty assessments are proposed by the Secretary of Labor are
not material to a penalty assessment by the Commission. We have stated,
"The Act does not condition the penalty assessment authority a.nd duties
of the Commission upon the manner in which the Secretary ••• has chosen
to implement his statutory responsibility for proposing penalties.
Therefore, it is irrelevant to the Commission for penalty assessment
purposes whether. a penalty proposed by the Secretary ••• was processed
under § 100.3, § 100.4 or § 100.5 of the Secretary's regulations."
United States Steel Mining Co., Inc., 6 FMSHRC 1148, 1150 (May 1984)
(emphasis deleted).
The terms "unwarrantable failure" and "negligence" are not used
synonomously in the Mine Act. A finding by an inspector that a violation
has been caused by an operator's unwarrantable failure to comply with a
mandatory health or safety standard may trigger the increasingly severe
enforcement sanctions of section 104(d). 30 U.S.C. § 814(d). Negligence,
on the other hand, is one of the criteria that the Commission must
consider in assessing a civil penalty for a violation of the Act or of a
mandatory health or safety standard. 30 U.S.C. § 820(i). Although the
same or similar factual circumstances may be included in the Commission's consideration of unwarrantable failure and negligence, the issues
are distinct. At the hearing and in his decision the judge carefully
distinguished the issue of unwarrantable failure from negligence. The
judge properly declined to address the issue of unwarrantable failure in
the context of penalty assessments. Rather, the judge made required
findings regarding each of the statutory penalty criteria. Wit~ respect
to the negligence criterion, he concluded that the violations resulted
from Black Diamond's "ordinary negligence" in that Black Diamond failed
to exercise reasonable care to insure that the cited accumulations were
cleaned up and that it likewise failed to exercise reasonable care to
comply with its roof control plan. 5 FMSHRC at 780, 781. The judge
afforded Black Diamond the requisite opportunity to present evidence
with regard to negligence as well as the other statutory penalty criteria.
This is what the Mine Act requires. 7/

7/

The issue Black Diamond raises --the impact of special findings in

a withdrawal order upon a civil penalty proposed by the Secretary for

the violation alleged in the order -- is different than the issue of
whether the merits of such special findings may be challenged irt a civil
penalty proceeding when the operator has not sought r~view of the order
pursuant to section 105(d). We leave consideration of .the latter issue
to a case in which it is squarely presented.

Based on the foregoing reasons, we affirm the decision of the
judge. ~/

L. Clair Nelson, Commissioner

~/

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

1123

Distribution
Barry V. Frederick
Lange, Simpson, Robinson & Somerville
1700 First Alabama Bank Building
Birmingham, Alabama 35203
Michael McCord
Office of the Solicitor
U.S . ·Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church, Virginia 22041

1124

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

August 5, 1985
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 83-129

v.
UNITED STATES STEEL MINING CO . ,
INC.
BEFORE:

Backley, Acting Chairman; Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This consolidated proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act") presents two issues: (1) whether substantial evidence supports a Commission
administrative law judge's findings that United States Steel Mining
Company's ("U.S. Steel") violation of its ventilation and methane and
dust control plan was not "significant and substantial," and (2) whether
substantial evidence supports the judge's finding that U.S. Steel
violated 30 C.F.R. § 75.200, the mandatory standard governing roof
control and roof control plans. !/ For the r~asons that follow, we
1/
30 C.F . R. § 75.200, which is identical to section 302(a) of the
Mine Act, provides :
Each operator shall undertake to carry out on a continuing
basis a program to improve the roof control system of each coal
mine and the means and measures to accomplish such system. The
roof and ribs of all active underground roadways, travelways, and
working places shall be supported or otherwise controlled adequately
to protect persons from falls of the roof or ribs. A roof control
plan and revisions thereof suitable to the roof conditions and
mining system of each coal mine and approved by the Secretary shall
be adopted and set out in printed form on or before May 29, 1970.
The plan shall show the type of support and spacing approved by the
Secretary. Such plan shall be reviewed periodically , at least
every 6 months by the Secretary, taking into consideration any
falls of roof or ribs or inadequacy of support of roof or ribs. No
(footnote 1 continued)

1125

reverse the judge's finding that the violation of ~he ventilation and
methane and dust control plan was not significant and substantial,
vacate the judge's conclusion that U.S. Steel violated section 75.200,
and remand for further proceedings consistent with this decision.
On January 24, 1983, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued a citation to U.S.
Steel pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a),
during an inspectio~ of U.S. Steel's Maple Creek No. 2 Mine. The citation charged U.S. Steel with a violation of 30 C.F.R. § 75.316, a
mandatory safety standard requiring an operator to have an MSHA approved
ventilation and methane and dust control plan for its mine. ~ During
the inspection, the inspector calculated the volume of air in the face
area of a section where mining was about to begin to be 3,600 cubic feet
per minute ("cfm"). He reminded U.S. Steel's section foreman that once
mining started U.S. Steel's ventilation plan required an air volume of
5,000 cfm and he left the area.
When the inspector returned to the section, mining had commenced.
He noticed dust "rolling backi' over the pperator of the continuous
miner. The inspector calculated the volume of air in the face area
to be 2,400 cfm. He also found a methane concentration of .1%. The
inspector issued a citation alleging a violation of 30 C.F.R. § 75.316.
The citation alleged that U.S. Steel was not complying with its ventilation

Footnote 1 end.
person shall proceed beyond the last permanent support
unless adequate temporary support is provided or unless
such temporary support is not required under the approved
roof control plan and the absence of such support will
not pose a hazard to the miners. A copy of the plan
shall be furnished to the Secretary or his authorized representative and shall be available to the miners and their
representatives.
~/

30 C.F.R. § 75.316, which repeats section 303(o) of the Mine Act,
30 U.S.C. § 863(~), provides:
A ventilation system and methane and dust control plan
and revisions thereof suitable to the conditions and the
mining system of the coal mine and approved by the Secretary
shall be adopted by the operator and set ou~ · in printed form
on or before June 28, 1970. The plan shall show the type and
location of mechanical ventilation equipment installed and
operated in the mine, such additional or improved equipment
as the Secretary may require, the quantity and velocity of
air reaching each working face, and such other information as
the Secretary may require. Such plan shall be reviewed by
the operator and the Secretary at least every 6 months.

1128

plan in that. "only 2,400 cfm of air was reaching the end of the line
curtain {at the face] • . • while coal was being mined with a continuous
mining machine • ••• " The inspector checked the "significant and substantial"
block on the citation form. ll The violation was abated after repairs
to the line curtain were made and the air volume in the face area was
elevated to 5,700 cfm.
At the hearing the inspector explained why he found U.S. Steel's ·
violation of its ventilation plan to be "significant and substantial."
He noted that th~ mine is considered a "gassy" mine because it liberates
over one million cubic feet of methane in a 24 hour period. !!._/ He
testified that he was concerned that improper ventilation would cause
methane, which is naturally liberated in the mine, particularly when
coal is cut, to accumulate to dangerous levels. He stated that the
arcing and sparking of the continuous miner bits as they cut coal at the
face could ignite the methane. He also testified that he believed an
ignition or fire was reasonably likely to · occur. Further, the inspector

ll

Section 104(d) (1) of the Mine Act, 30 U.S. C. § 814(d) (1) ·provides
in part:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger,
' such violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act ••..
(Emphasis added).

!!._!
Pursuant to section 103(i) of the Mine Act, 30 U.S.C. § 813(i), the
mine is subje·c t to a spot inspection every five days. Section 103(i) of
the Mine Act provides in part:
Whenever the Secretary finds that a coal or other mine
liberates excessive quantities of methane ••• during its
operations, ••• he shall provide a minimum of one spot inspection by his authorized representative of all or part of
such mine during every five working days at irregular intervals.
For purposes · of this subsection, "liberation of excessive quantities of methane or other explosive gases" shall mean liberation
of more than one million cubic feet of methane or other explosive
gases during a 24~hour period •.•.

1127

noted in the subject citation that if methane ignition or fire occurred,
any miner in the area could be permanently disabled. The inspector
acknowledged that it would take a minimum methane accumulation of 5% for
an ignition or an explosion to occur and that he had detected. a methane
level of .1% when he cited the violation. However, he stated that with
the reduction of air quantity from the required 5,000 cfm to 2,400 cfm,
the chance of a methane accumulation on the section had increased and,
as a result, the exposure of miners to ignition and fire hazards increased.
The administrative law judge affirmed the violation of the ventilation plan but vacated the inspector's significant and substantial
finding. The judge found that the violation was caused by a collapse of
a part of the line curtain on the section. He noted that the resulting
interruption of the air flow was not detected by miners in the work
area. The judge also noted that when the foreman was advised by the
inspector of the insufficient quantity of air, the foreman immediately
determined the cause of the violation and corrected it. The judge
therefore concluded, "given these circumstances, I fail to understand
how the inspector could conclude that an injury or accident was likely
to occur. Here, both the inspector and the foreman were both aware . of
the problem from the outset, and steps were quickly taken to correct the
problem." 6 FMSHRC at 1711-12. The judge determined that the inspector's
finding must have been based on the inspector's belief that all violations
of a mine's ventilation plan are significant and substantial.

On review, the Secretary challenges the judge's conclusion that
U.S. Steel's violation of its ventilation plan was not significant and
substantial. The Secretary argues that the violation contributed to a
hazard because if the concentration of methane gas had increased to
explosive quantities, the inadequate ventilation combined with the
ignition source could have caused a methane ignition or a fire at the
face. Further, the Secre'tary argues that given these conditions an
ignition or fire was reasonably likely to occur and that the resulting
injuries would have been serious.
We have held previously that a violation is properly designated
significant and substantial "if, based on the particular facts sur- ·
rounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National Gypsum Co., 3 FMSHRC
822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984), we 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
~tandard; (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.

1128

We have explained further that the third element of the Mathies formula
"requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an
injury." U.S. Steel Mining Co. , 6 Fl1SHRC 1834; 1836 (August 1984). We
have emphasized that, in accordance with the language of section
104(d)(l), it is the contribution of a violation to the cause and effect
of a hazard that must be significant and substantial. U.S. Steel Mining
Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984). Applying these principles to the
instant case, we conclude that the judge erred in holding that U.S.
Steel's violati.o n of 30 C.F.R. § 75.316 was not significant and substantial.
Neither party disputes that U.S. Steel violated 30 C.F.R. § 75.316.
Indeed, the violation--a measured air quantity of 2,400 cfm--represented
a major departure from the minimum air quantity of 5,000 cfm required
under U.S. Steel's ventilation plan.
With respect to the discrete hazard contributed to by the violation,
we have recently emphasized that the hazards associated with inadequate
ventilation, especially at working faces, are among the most serious in
mining. Monterey Coal Co., Inc., 7 FUSHRC _ _ , FMSHRC Docket No.
LAKE 83-61, slip op. at 5 (July 2, 1985). In enacting the ventilation
requirements of the Mine Act, Congress mandated that in all active
workings of a coal mine, "the volume and velocity of the current air
shall be sufficient to dilute, render harmless, and to carry away,
flammable, explosive, noxious, and harmful gases, and dust, and smoke
and explosive fumes" and that "[t]he minimum quantity of air in any coal
mine reaching each working face shall be three thousand cubic feet a
minute." Section 303(b) of the Mine Act, 30 U.S.C. § 863(b). 2,/ As
stated in Monterey £oal Company:
A basic reason for this requirement is the grave
danger that, if there is not adequate ventilation,
ignitions or explosions can result from concentrations of explosive gases like methane, either
alone or mixed with coal dust, liberated during
mining operations. Moreover, we note that when
coal is freshly cut, methane can be liberated in
dangerous amounts in short periods of time.
Although methane itself becomes explosive at a 5%
concentration, even a smaller percentage concentration of the gas mixed with fine coal dust can
generate an explosion.
Monterey Coal Co., supra, slip op. at 5.
2,/
We note that the minimum volume of air required under U.S. Steel's
plan, 5,000 cfm, is substantially more than the minimum volume required
under the Act. Because a coal mine's ventilation plan must be "suitable
to the conditions" of the mine, the particular conditions at Maple Creek
No. 2 mine apparently require the greater volume of air specified in
U.S. Steel's plan.
·

1129

The Maple Creek No. 2 mine liberates more than one million cubic
feet of methane during a 24-hour period. The mine is under the spot
inspection cycle mandated by section 103(i) of the Mine Act. 30 U. S. C.
§ 813(i). The citation was issued at the face where coal was. being cut
with a continuous miner. The continuous miner, the operation of which
may cause arcing and sparking, .was a possible ignition source.. Thus,
the record clearly sets forth a discrete safety hazard contributed to by
the violation-- the possible accumulation of methane in. the pres~nce of
a potential ignition source.
Although the judge "fail[ed] to understand how the inspector could
conclude that an injury or accident was likely to occur," we find that
the inspector's conclusion was valid. u.s. Steel contends that at· the
time the citation was issued there was no chance of a methane ignition
or explosion because methane ignites when it reaches a concentration of
5% to 15% of the mine's atmosphere, and that here the methane level was
well below 5%. While it is true that methane measured in the section
revealed a nonhazardous accumulation at the time the citation was issued,
an evaluation of the reasonable likelihood of injury should be made "in
terms of continued normal mining operations." U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. The fact that the methane was low when the violation
was cited is not fatal~~ to the establishment of "reasonable likelihood." If normal mining operations were to continue, a rapid buildup of
methane could reasonably be expected. As we have noted, when coal is
being cut it can liberate dangerous levels of methane in a relatively
short period. Here coal was being cut and the velocity of air was well
below the required level.
'
We likewise believe that given the ignition source provided by the
operation of the continuous miner, ignition of methane could reasonably
be expected to occur. We note in particular the testimony of U.S.
Steel's section foreman that the mine had experienced "a few" methane
ignitions in the past. Thus, in terms of continued normal mining
operations, we conclude that the evidence supports a finding that there
was a reasonable likelihood that the hazard contributed to -- the
accumulation of methane -- could result in the occurrence of an ignition
and a fire. If a methane ignition or fire occurred, the injuries
produced could be of a reasonably serious nature.
Regarding the judge's expressed belief that the inspector's significant
and substantial finding was predetermined, regardless of whether the
inspector's finding was based on his belief that all ventilation plan
violations are significant and substantial, the question must be resolved
on the basis of the circumstances as they existed at the time the violation
was cited and as they might have existed had normal mining operations
continued. Further, the fact that upon being told of a deficiency by an
MSHA inspector an operator proceeds to make necessary corrections, does
not obviate the need for determining whether an injury would have been
reasonably likely to occur if mining operations had continued without
the inspector's intervention. U.S. Steel Mining Co., supra.

"1130

Therefore, we conclude that on the facts presented the violation
was properly designated· significant and substa~tial by the inspector.
Accordingly; the judge's contrary finding is reversed and the citation
is remanded for the reconsideration and assessment of an appropriate
civil penalty.
We now turn to the alleged violation of 30 C.F.R. § 75.200. On ·
January 12, 1983, during an inspection of the Maple .creek No. 2 Mine, an
MSHA inspector noticed that in one of the working sections a short cut
of approximately 12 feet had been mined out and that, in accordance with
U.S. Steel's roof control plan, three ventilation jacks, (A, B, and Con
Exh. R-3, page 2), had been set along the left rib in preparation for
roof bolting. The inspector then observed miners install a hydraulic
roof jack (No. 2 on Exh. R-3, page 2) in the center of the entry, seven .
and one half feet from the second ventilation jack and five and one half
feet from ·the last row of permanent supports. U.S. Steel's roof control
plan states that the maximum allowable spacing between jacks is five
feet.
After jack No. 2 was installed, the inspector testified that he
witnessed two miners each pick up a hydraulic jack and proceed inby
under unsupported roof for four feet and begin to simultaneously install
the jacks. (Nos. 4 and 6, Exh. R-3, page 2). U.S. Steel's section
foreman, who also witnessed the event, agreed that the two miners
proceeded past jack No. 2, but testified that they proceeded under
unsupported roof for only six inches to one foot. Neither the inspector
nor th~ section foreman measured the distance.
The inspector immediately ordered the two miners out of the section.
The inspector reviewed with them the requirements of the mine's roof
control plan. He explained that the plan requires that after the ventilation jacks are in place, temporary jacks are to be installed from left
to right, across the entry of the mine, one at a time. Then, the inspector explained, the plan requires the second row of temporary jacks
to be installed exactly like the first, from left to right, one jack at
a time. The inspector then issued a citation alleging a violation of
30 C.F.R. § 75.200. The citation stated in part:
The approved roof control plan was not being
complied with .•• as temporary roof supports
(jacks) were not installed according to the
roof control plan as center jack was installed
first and installed two jacks a[t] same time.
[Sic.]
The inspector further found that the violation was significant and
substantial. The citation was abated when the miners set a ·jack on the
left of jack No. 2 and a jack on the right side of jack No. 2, and then
installed the second row of jacks in accordance with the inspector's
instructions.

1131'

At the hearing the inspector testified that he determined that U.S.
Steel was out of compliance with its roof control plan for three reasons:
(1) the jacks were set out of sequence; (2) two jacks were set simultaneously; and (3) the miners attempting to install jacks No. 4 and No.
6 were under unsupported roof. The inspector admitted that the citation
in question did not explicitly describe the miners' presence under
unsupported ~oof. He explained, however, that the citation's statement
that the "approved roof control plan was not being complied with" encompassed the fact that the two miners were under unsupported roof.
In his decision, the judge described the issue before him as "whether
£U.S . Steel) has · violated any specific portion of its approved roof
control plan, and ••• absent a violation of the plan, was there a violation of section 75.200, when the two miners proceeded to install the two
jacks in question." 6 FMSHRC at 1682. The judge concluded that the
Secretary had not .proven that U.S. Steel had violated its roof control
plan. He found that although the citation states that two jacks were
not installed in sequence, that practice was not prohibited by the
approved roof control plan. 6 FMSHRC at 1683. He also found, however,
that although the miner who installed jack No. 4 was protected by the
rib jacks and the permanent roof supports, and hence was under supported
roof, the miner who "walked out with the intent to install roof jackNo.
·6 ••• was in fact under unsupported roof," and therefore in violation of
30 C.F.R. § 75.200. 6 FMSHRC at 1683-84.
The judge further concluded that this violation was not "significant
and substantial."
He took into consideration the fact that the adjacent
roof area was bolted, that additional support was provided along the
left rib by means of roof jacks, that the miner was under unsupported
roof. for ·''at most a few seconds," and that "given the fact that ·MSHA
f.tself conceded that miners must go under unsupported roof to install
roof supports," the inspector's significant and substantial finding was
made "simply because it involved roof support." 6 FMSHRC at 1711.

· en review, U.S. Steel asserts that the judge erred in affirming a
violation of 30 C.F.R. § 75.200 after ruling that it had not violated
its roof control plan. The company argues that the citation in question
was issued for a violation of its roof control plan, not, as the judge
found, for violation of section 75.200's general prohibition against
persons proceeding beyond the last row of permanent roof supports unless
adequate temporary support is provided.
The Secretary argues that U.S. Steel violated the roof control plan
as alleged in the citation in that the roof control plan requires that
the jacks be ins~alled sequentially and the evidence supports a finding
that the jacks were not being so installed. The Secretary also contends
that the record establishes that both miners were under unsupported
roof. Further, the Secretary argues, the administrative law judge erred
in concluding that the violation of the plan was not "significant and
substantial."

1132

The citation ~ssued by the inspector asserted that the roof control
plan was violated in that the temporary jacks were not installed in
accordance with the approved plan. According to the inspector, the plan
was violated when temporary jacks were set out of sequence and two
temporary jacks were set simultaneously. The inspector testified that
the roof control plan requires that temporary jacks be set from rib to
rib, one jack at a time . On the other hand, U. S. Steel's chief mine
inspector, who participated in the roof control plan adoption/approval
process, testified that the plan requires that the temporary jacks be
set by rows, but does not require that they be set sequentially.
The judge's decision does not resolve this conflict as to the
meaning of the roof control plan. Instead, after setting forth the
conflicting evidence in great detail, the judge simply labelled it
"confusing" and summarily concluded that a violation of the plan had not
been established.
The statute and the standard require the parties to agree on a roof
control plan. Once the operator has adopted and MSHA has approved the
plan, its provisions are enforceable as though they were mandatory
standards. Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir.
1976). Thus, a question concerning the parties' intent and understanding
as expressed in an approved plan is an important one. Before we can
undertake to determine whether a plan was violated, we first need findings
as to what the plan requires. Shamrock Coal Co., 5 FMSHRC 845, 848-52
(May 1983); Penn Allegh Coal Co., 3 FHSHRC 2757, 2769-70 (December
1981). Only after this is determined can those requirements be applied
to particular facts to resolve whether a violation of the plan has
occurred. Id.
We therefore vacate the judge's conclusion that section 75.200 was
violated even though the roof control plan was not. We remand this
citation so that the judge may make the necessary further findings
regarding whether the roof control plan imposes specific requirements as
to the sequence in which temporary jacks must be set and, if so, whether
such requirements were violated here.

1133

In sum,' we reverse the judge's conclusion that U.S. Steel' s violation
of its ventilation plan was not "significant and -substantial" and remand
for assessment of an appropriate penalty. We vacate the judge's finding
that 30 C.F.R. § 75.200 was violated and remand for further findings
consistent with this decision . ~/

Richard v. Backley, Act ing Chai

~/

n

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

1134

Distribution

Louise Q. Symons, Esquire
U. S. Steel Mining Company, Inc.
600 Grant Street
Pittsburgh, PA 15230
Cynthia Attwood, Esquire
U.S . Department of Labor
Office of the Soli~itor
4015 Wilson Boulevard
Arlington, Virginia
22203
Administrative Law Judge George Koutras
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, lOth Floor
5203 Leesburg Pike
Falls Church, Virginia
22041

1135

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

August 5, 1985
UNITED MINE WORKERS OF AMERICA
(UMWA)
ON BEHALF OF JAMES ROWE, ~ al.,

Docket Nos. KENT 82-10'3-D
KENT 82-105-D
KENT 82-106-D

JERRY D. MOORE
LARRY D. KESSINGER

v.
PEABODY COAL COMPANY
and
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF THOMAS L. WILLIAMS

Docket No. LAKE 83-69-D

v.
PEABODY COAL COMPANY

BEFORE:

Backley, Acting Chairman; Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
An inquiry has been conducted to determine whether Commission Administrative Law Judge Joseph B. Kennedy, while presiding in the
captioned proceedings, acted improperly by: (1) engaging in a prohibited
ex parte communication; (2) verbally 'abusing attorneys appearing before
him; (3) threatening the Secretary's counsel; and (4) commenting publicly
on a pending proceeding. In the instances and on the grounds explained
below, we conclude that Judge Kennedy's conduct was improper and is
cause for serious concern.

This inquiry arises in connection with discrimination complaints
filed under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 ~ ~· (1982), against Peabody Coal Company ("Peabody") by the
United Mine Workers of America ("UMWA") on behalf of James Rowe and
others and by the Secretary of Labor on behalf of Thomas L. Williams.
These complaints alleged that certain of Peabody's policies relating to
the training and recall of laid-off miners violated the Mine Act. By
order dated June 18, 1984, we severed this inquiry from the merits of
these cases. The procedural events relevant to this :f.nt:~n. iry are
summarized below.

1136

The underlying discrimination complaints were consolidated before ·
Judge Kennedy and all parties cross-petitioned for summary decision. On
April 24, 1984, Judge Kennedy issued an order denying the motions for
summary decision. The Secretary of Labor petitioned the Commission for
interlocutory review of the judge's order. Thereafter, the Commission
received a letter dated May 17, 1984, from Francis X. Lilly, Solicitor
of the Department of Labor. In his letter, the Solicitor asserted that .
on April 11, 1984, Judge Kennedy initiated an ex parte telephone conver-·
sation with a Department attorney, Linda Leasure, and that during the
conversation the judge discussed the merits of the Peabody cases. The
letter also complained of abusive conduct by Judge Kennedy toward the
Secretary's counsel of record, Frederick W. Moncrief, and toward counsel
for the UMWA and Peabody at an oral argument held befor,e the judge on
April 12 and 13, 1984. Finally, the Solicitor asserted that Judge
Kennedy had threatened Mr. Moncrief in a separate incident occurring on
April 19, 1984. The letter was accompanied by affidavits ~rom Ms.
Leasure and Mr. Moncrief, and by portions of the transcript of the oral
argument of April 12 and 13, 1984.
By order dated May 18, 1984, the Commission deemed the Solicitor's
letter and the accompanying materials to be, in part, a notification of
a prohibited ex parte communication and a request for appropriate action
under Commission Procedural Rule 82. 29 C.F.R. § 2700.82~ 1/ Accordingly,
copies of the Solicitor's letter and the accompanying materials were
placed in the record and were served on all parties and on Jud.g e Kennedy.

1/

Rule 82 states:
(a) Generally. There shall be no ex parte communication with respect to the merits of any case not concluded,
between the Commission, including any member, Judge, officer,
or agent of the Commission who is employed in the decisional
process, and any of the parties or intervenors, representatives, or other interested persons.
(b) Procedure in case of violation. (1) In the event
an ex parte communication in violation of this ~ection
occurs the Commission or the Judge may make such orders or
take such action as fairness requires. Upon notice and
hearing, the Commission may take disciplinary action against
any person who knowingly and willfully makes or causes to be
made a prohibited ex parte communication.
(2) All ex parte communications in violation of this
section shall be placed on the public record of the proceeding.
(c) Inquiries. Any inquiries concerning filing requirements, the status of cases before the Commissioners, :or
docket information shall be directed to the Office of the .
Executive Director of the Commission ••••

29 C.F.R.

§

2700.82.

The Commission granted the Secretary of Labor's petition for interlocutory review, vacated the judge's order of April 24, 1984, and reassigned the Peabody cases to the Commission's Chief Administrative Law
Judge for disposition. The Commission stated:
We take this action to avoid either the
appearance or existence of judicial bias.
Apparently, [Judge Kennedy] and counsel have
become involved in a controversy which is
evidenced by the transcript of oral argument held
before the judge on April 12 and 13, 1984, and the
letter and supporting affidavits filed with the
Commission by the Solicitor of Labor on May 17,
1984 ••••
The record before us as to the relations
between the judge and all counsel to the parties
indicates that the rights of the parties, the
expedition of the proceedings, and the policies of
the Commission would be better served by a reassignment of these matters. Cf. Taylor v. Hayes, 418
U.S. 488 (1974); Offutt~ United States, 348 U.S.
11 (1954); Chocallo v. Bureau of Hearings and Appeals,
548 F. Supp. 1349, 1362 (E.D. Pa. 1982).
The Commission also severed the allegations of judicial misconduct from .
the merits of the proceedings and retained jurisdiction over those
allegations for further consideration.
We subsequently directed Judge Kennedy to submit for inclusion in
the record his affidavit concerning the telephone conversation with Ms.
Leasure of April 11, 1984, and the incident involving Mr. MOncrief on
April 19~ 1984. l~e also noted that on May 27, 1984, an article appeared
in the Lexington [Kentucky] Herald-Leader entitled "Mine Safety Judge
Walks Controversial Path," in which the judge was quoted, inter alia, as
characterizing the telephone conversation with Ms. Leasure as a trivial
incident and making critical comments regarding Mr. Moncrief. We stated:
Because of our concern that the Commission's
judges abide by standards of proper judicial
conduct, we find it appropriate to direct the
judge to disclose in his sworn statement whether
he discussed the Solicitor's letter to the
Commission, the telephone conversation of April
11, 1984, [and] the incident of April 19, 1984,
with the author of the article, Michael York, or
other persons in connection with the article
printed in the Lexington Herald-Leader. If such a

1138

discussion or such discussions took place, we
further direct that the statement disclose the
substance of the discussion or discussions, and
whether the administrative law judge is quoted
accurately in the article.
In response, Judge Kennedy moved for dismissal of this inquiry and
for a stay of the order directing the filing of his affidavit. . The
judge asserted, inter alia, that the Commission inquiry was "plainly
disciplinary in nature" and that the Commission was "without jurisdiction
to take disciplinary action against an administrative law judge for any
matter involving the exercise of [a judge's] judicial responsibilities
unless it has filed a complaint with the Merit Systems Protection Board •••• "
In an order issued March 15, 1985, we denied the judge's motion. We
stated:
Before this Commission undertakes to discipline,
or seek discipline of, an administrative law judge
it needs first to determine whether any disciplinary
action is required. The Commission has followed,
and will continue to follow, appropriate procedures
in seeking to examine the allegations of misconduct
that have been raised in this matter. If the Commission later determines that grounds exist for forwarding this matter to the Merit Systems Protection
Board, it will do so. f.YJ

2/
The Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1111
(1978), empowered the Merit Systems Protection Board ("MSPB") to hear
and decide an employing agency's complaint proposing designated types of
adverse action against an administrative law judge. 5 U.S.C. § 7521
(1982). We need not decide at this time whether section 7521 preemptively
reserves MSPB jurisdiction over all forms of disciplinary action against
an administrative law judge. As noted in our March 15, 1985 order,
however, before an agency "undertakes to discipline, or seek discipline
of, an administrative law judge," it needs first to engage in an appropriate process designed to determine whether discipline is warranted.
~· Ass'n of Administrative Law Judges v. Heckler, 594 F. Supp. 1132,
1140 (D.D.C. 1984).

.1139

Judge Kennedy's subsequently filed affidavit was placed in the
record and copies were provid~d to the parties. 3/ We thereafter
accepted for filing affidav~ts from Mr. Moncrief-and Cynthia A. Attwood,
the Department of Labor's Associate Solicitor for Mine Safety and Health,
responding to points raised in Judge Kennedy's affidavit.
We examine separately the allegations of improper conduct.
I.

Ex parte communication

While serving _as the presiding administrative law judge in the
Peabody litigation, Judge Kennedy, by order dated February 9, 1984,
directed the Secretary of Labor to explain why he had not sought
temporary reins·tatement for complainant Thomas L. Williams pursuant to
section 105(c)(2) of the Mine Act. 30 U.S.C. § 815(c)(2). Counsel for
the Secretary, Mr. Moncrief, filed a response explaining that it was the
Secretary's position that because Mr. Williams was laid-off when the
alleged discriminatory act occurred, Mr. Williams was not a "miner"
entitled to temporary reinstatement. Following receipt of the Secretary's response, Judge Kennedy scheduled oral argument on the motions
for summary decision for April 12, 1984.
The Solicitor asserts that on April 11, 1984, one day prior to the
scheduled oral argument, Judge Kennedy telephoned Linda Leasure, an
attorney on the Solicitor's appellate staff. The Solicitor states that
Judge Kennedy asked ~1s. Leasure detailed questions regarding the position
taken in a brief she had written that had been filed by the Secretary of
Labor in an appeal pending in the United States Court of Appeals for the
Tenth Circuit, Emery Mining Corp. v. Secretary of Labor, etc., No.
83-2017. 4/ In describing Judge Kennedy's conversation with Ms. Leasure,
the Solicitor states in his letter:

11

In filing his affidavit, Judge Kennedy moved for a protective order
to shi.e ld his affidavit from disclosure "to anyone other than Commission
members, except upon notice to the Judge of any proposed disclosure and
opportunity for him to respond to any such proposed disclosure." We
denied the judge's motion in an order issued on March 28, 1985, and
directed that the judge's affidavit be placed in the official public
record at the close of business on April 3, 1985. No re$pOnse to this
order was received and, accordingly, on April 3rd the judge's affidavit
was placed in the record and served on the parties.

4/
This case involves review of the Commission's decision in Secretary
of Labor on behalf of Bennett, etc. v. Emery Mining Corp., 5 FMSHRC 1391
(August 1983). In Emery, the Commission held that the operator's hiring
policy of requiring job applicants to have 32 hours of miner training as
a qualification for employment was not, per~· a violation of the Mine
Act, but that the operator's refusal to reimburse individuals for the
cost of such training after hiring them, while relying on such training
to satisfy the miner training requirements of section 115 of the Mine
Act, 30 U.S.C. § 825, did violate the Act. 5 FMSHRC at 1394-97.

1140

The judge attempted to get ••• MS. Leasure ••• to
respond to hypothetical questions regarding the
Secretary's position on fulfilling the Mine Safety
and Health Administration's training requirements
in layoff situations. [The judge] asserted that
the Solicitor had conflicting positions in the
[Peabody litigation and in the Emery ca.s e in t"he
lOth Circuit] , demanded to know how MS. Leasure
planned to deal with that conflict in the Tenth
Circuit and implied that [in the Peabody litigation] the Solicitor's Office had se~iously
misrepresented the [Secretary's] true position.
In her affidavit Ms. Leasure describes in detail the telephone
conversation with Judge Kennedy. Ms. Leasure states that she received
the telephone call from Judge Kennedy on April 11, 1984, and that the
judge explained that he wanted to understand more fully the Secretary's
position before the Tenth Circuit in Emery. MS. Leasure asserts that
Judge Kennedy inquired about a portion of the Secretary's brief discussing
the Commission's conclusion in its Emery decision that applicants for
employment were not discriminated against by Emery's hiring policy.
According to MS. Leasure, Judge Kennedy asked if that ~ortion of the
brief had been reviewed and approved, and averred that he had cases
before him in which the Secretary of Labor had taken an opposite position.
Ms. Leasure states, "At this point in the telephone conversation the
judge neither identified the specific cases in which [the Secretary]
purportedly had taken contrary positions, nor named the attorneys or
offices handling the cases." Ms. Leasure relates that she told the
judge the Emery brief had been reviewed and approved and that she was
not aware of any conflict in the Secretary's position. Ms. Leasure
asserts that Judge Kennedy insisted that there was a case in which the
Secretary was taking an inconsistent position, and inquired how this
inconsistency would be explained to the court of appeals. Ms. Leasure
states that Judge Kennedy criticized the Secretary's litigation strategy
in the Emery appeal and then posed various hypothetical questions concerning what the Secretary's position would be with respect to laid-off
miners if reemployment decisions were premised upon training mandated by
the Mine Act. Ms. Leasure states that when she realized that Judge
Kennedy's hypothetical questions resembled the case that Mr. Moncrief
was scheduled to argue before the judge the next day, she asked if that
was the matter to which he was referring. When he told her that it was,
she terminated the conversation.
In his affidavit describing the telephone conversation Judge Kennedy
states:
I ••• pointed out to Ms. Leasure what I
perceived to be a conflict between her position
and that of Mr. Moncrief. I told her that in his

1141

brief before me Mr. Moncrief had sought to justify
the Solicitor's refusal to temporarily reinstate
Williams on the ground that he was not a "miner,"
••• because at the time he was bypassed for [rehire]
••• he was not actively employed in a mine. At
first Ms. Leasure led me to believe that she had
never really thought about the conflict I perceived
between her brief and that of Mr. Moncrief. Then
she said she thought they might be distinguished
factually and legally because the question of
temporary reinstatement had not come up in the
Emery case. When I pressed her ••• she became
flustered and nonplussed with my questions~

*

*

*

I told Ms. Leasure I could not understand how the
Secretary could represent to the Tenth Circuit
that an individual with no mining experience was
entitled to be accorded the status of a "new
miner" [while] an experienced miner like Mr.
Williams was not to be considered a miner at all.
At this point, if I recall correctly, Ms. Leasure
became quite defensive and accused me of attempting
to open a "pandora's box" and "prying into internal
policies and deliberations" that were really none
of my business. I thanked her for her · time and
attention and terminated the conversation which
had lasted about five minutes.
This version of the contents of the telephone conversation was, in
general, repeated by Judge Kennedy at the oral argument held before him
on April 12, 1984. Tr. I 72-73.
Commission Rule 82 (n. 1 supra) and section 557(d) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 557(d)(l982), prohibit ex
parte communications between a Commission judge and a party regarding
the merits of a pending case.
T.P. Mining, Inc., 7 FMSHRC ___ (FMSHRC
Docket No. LAKE 83-97-D, July 10, 1985), slip op. at 5-6; United States
Steel Corp., 6 FMSHRC 1404, 1407-09 (June 1984); ~nox County Stone Co.,
~., 3 FMSHRC 2478, 2482-86 (November 1981). 11
It is clear that the
5/
Section 551(14) of the APA, 5 U.S.C. § 551(14) (1982), defines "ex
parte communication" as:
an oral or written communication not on the public record with
respect to which reasonable prior notice to all parties is not
given, but it shall not include requests for status reports on
any matter or proceeding •.••

1142

telephone conversation of April 11 between Judge Kennedy and Ms. Leasure
was ex parte. The conversation involved only Judge Kennedy and an
attorney employed by the Secretary of Labor, a party to the Peabody.
litigation. The telephone conversation was not on the record, and was
made without notice to counsel for the other parties, or even to counsel
of record for the Secretary, Mr. MOncrief.
Regardless of whether the conversation took place precisely as
described by Ms. Leasure or by Judge Kennedy, it is clear that the
communication concerned the merits of the Peabody litigation. The
concept of the "merits of a case" is construed broadly and, at the very
least, includes discussion of the issues in a case and how those issues
should or will be argued and resolved. T.P. Mining, supra, slip op. at
5, 7; Knox County, supra, 3 FMSHRC at 2485. Moreover, any ex parte
communication that might influence the substantive outcome of a pro·ceeding pertains to the merits of a case and, thus, is prohibited.
T.P. Mining, slip op. at 7, citing PATCO v. FLRA, 685 F.2d 547, 563
(D.C. Cir. 1982).
In the Peabody cases, the theory of the laid-off complainants'
cause of action is that Peabody violated the Mine Act by refusing to
rehire them because of their lack of training mandated by section 115 of
the Act. 30 U.S.C. § 825. Peabody's defense is that the training
provisions do not set employment criteria for laid-off miners. The
essence of the April 11 discussion initiated by Judge Kennedy went to
the grounds of the complaint and the defense. In addition, according to
his own affidavit, Judge Kennedy raised the issue of why complainant
Williams was not entitled to reinstatement. The Emery case, about which
Judge Kennedy so vigorously questioned Ms. Leasure, had been cited by
all of the parties in their motions and supporting memoranda to the
judge. Judge Kennedy was gathering off-the-record information from one
of the parties that would bear on and influence his evaluation of the
parties' arguments with respect to the issues of discrimination and
reinstatement presented in the Peabody litigation pending before him.
The conversation therefore concerned the merits of the Peabody litigation and · was prohibited. The fact that Judge Kennedy initiated the
conversation one day prior to the scheduled oral argument in the Peabody
matter reinforces this conclusion. 6/

if

In the Peabody litigation· the only attorney to enter an appearance
on behalf of the Secretary was Mr. MOncrief. By soliciting information
concerning the Secretary's position from another Department of Labor
attorney, with the apparent object of exploring what the judge perceived
as weaknesses in the Secretary's position, the judge denied the Secretary
his right to a hearing conducted in a fair and appropriate adversarial
framework.

1143

We also conclude that Judge Kennedy "knowingly and willfully"
engaged in this prohibited communication. See 29 C.F.R. § 2700.82(b)(l).
The conversation was intentionally initiated by Judge Kennedy. Judge
Kennedy knew what he was discussing and why he was discussing it. Nor
was this the first instance in which Judge Kennedy has engaged knowingly
and wiLlfully in a prohibited ex parte communication. T.P. Mining, slip
op. at 5-8; Cf. United States Steel Corp., 6 FMSHRC 1404, 1408 (June
1984).
We also conclude that although Ms. Leasure was a party to the
prohibited communication, her participation was not knowing and willful
within the meaning of Commission Rule 82. Ms. Leasure was not the
attorney of record in the Peabody litigation; she did not initiate the
discussion; she was responding to a federal admininstrative law judge;
and she terminated .the conversation after realizing that it concerned
the merits of the pending Peabody litigation. Moreover, Ms. Leasure's
supervisor, the Solicitor, brought the conversation to the Commission's
attention. Rather than reflecting adversely upon Ms. Leasure, the
conversation presents us with yet another incident of Judge Kennedy
initiating a prohibited ex parte communication. T.P. Mining, supra;
see Inverness Mining Co., 5 FMSHRC 1384, 1388 n. 3 (August 1983); Knox
~nty, 3 FMSHRC at 2482-86.
.
II.

Abuse of attorneys

We have noted recently that, as an active participant in the adjudicatory process, a Commission judge has a duty to conduct proceedings in
a orderly manner so as to elicit the truth and obtain a just result, and
that in carrying out this duty a judge may be required to admonish
counsel. T.P. Mining, Inc, 7 FMSHRC ___ (FMSHRC Docket No. LAKE 83-97-D,
July 2, 1985), slip op. at 5. However; such admonitions are to be
couched in temperate language. Id. Patience, dignity and courtesy are
not only watchwords of judicial conduct, they are essential cognates of
fairness and efficiency. See ABA, Code of Judicial Conduct, Canon
3(A)(3)(1980). 7/ Here, the transcript of the oral argument before
Judge Kennedy on April 12 and 13, 1984, reveals comments by the judge to
the attorneys that were, at times, sarcastic and demeaning. The judge
was extremely critical of all of the attorneys for not being as prepared
as he deemed necessary. Tr. II at 70. Although Judge Kennedy stated
that "it is time to start applying sanctions," he did not attempt to
initiate sanctions by advising the Commission pursuant to Commission
Procedural Rule 80, 29 C.F.R. § 2700.80, of any professional misconduct
on the part of counsel in this matter.
7/
The ABA's Code of Judicial Conduct has been adopted by the Judicial
Conference of the United States for the guidance of federal judges. See
Judicial Conference of the United States, Code of Judicial Conduct for-the United States Judges (1974).

1144

Judge Kennedy was rude and sarcastic with counsel for the UMWA. At
one point in the hearing he repeatedly called upon her to answer a
question tha~ he posed. When she did not respond immediately, he asked
her, "Do you want a recess and rest? Is it too m~ch of an intellectual
strain for you to answer the question?" He added~ "Maybe we should get
another lawyer over here from the union that can answer my questions."
Tr. I at 200-01. When Judge Kennedy and counsel for the UMWA disagreed
about which facts were relevant to the UMWA's position, the judge stated,
"I think you do your client a disservice when you choose to ignore
salient facts that help on the equities." Tr. I at 73. The judge added
that he was "a little shocked" to hear what counsel regarded as "relevant."
Tr. I at 75. Judge Kennedy was also impatient with and critical of
counsel for Peabody. When counsel stated that he did not have a copy of
the brief filed by the Secretary in the Emery litigation (to which
Peabody was not a party), the judge replied, "I'm getting sick of this.
Act like a lawyer, will you?" Tr. I at 170.
Judge Kennedy was also highly critical of counsel for the Secretary,
Mr. Moncrief. Mr. Moncrief argued that the judge lacked jurisdiction to
inquire into the Secretary's determination not to seek temporary reinstatement for claimant Williams. The judge termed the argument "the most
specious [he] had ever heard." Mr. Moncrief responded, "Oh, I'm sure
you have heard worse", and the judge replied, "Well, seldom, and you can
usually top any one •••• I do wish the Solicitor would send people over
here with a little more competence." Tr. II at 72. In addition, Judge
Kennedy termed Mr. Moncrief's argument an "intellectually dishonest
interpretation of the law," and asserted that the Secretary's decision
not to seek reinstatement was "rather outrageous." Tr. I at 115.
The Peabody litigation was complicated, and portions of the record
indicate that Judge Kennedy attempted to clarify the issues in order to
better manage the forthcoming trial. A judge has "considerable leeway
••• in regulating the course of a hearing and in developing a complete
and adequate record." Canterbury Coal Co., 1 FMSHRC 335, 336 (May
1979). However, a judge's discretion in this regard is not unlimited.
The APA requires that a judge must perform his adjudicative functions
"in an impartial manner." 5 U.S.C. § 556(b)(l982). Canon 3(A)(3) of
the Code of Judicial Conduct requires that a judge be "patient, dignified and courteous to litigants, ••• witnesses, lawyers and others with
whom he deals in his official capacity." As the Supreme Court recently
observed in In re Snyder, __ u.s. __ , 53 U.S.L.W. 4833, 4837 (June 25,
1985): "All persons involved in the judicial process -- judges, litigants,
witnesses, and court officers -- owe a duty of courtesy to all other
participants." Based on the transcript of the oral argument, we conclude
that Judge Kennedy's undue impatience, sarcasm, and lack of courtesy
toward counsel violated these standards. Judge Kennedy has on more than
one occasion, and by more than one tribunal, been found lacking in
judicial restraint and temperament. Grundy Mining Co., Inc., v.

1145

Secretary o·f Labor, Mine Safety and Health Administration, 636 F .2d 1217
(6th Cir. l98l)(unpublished order); canterbury Coal Co., ·1 FMSHRC 1311,
1314 (September 1979). Cpunsel who appear before this Commission are
entitled to be treated in a considerate manner. This Commission is ·
entitled to be represented by a patient, dignified, and courteous judge.
See In Re Chocallo, 2 MSPB 28, 62-63 (1980), aff'd mem. sub. nom. Chocallo
v:-Prokop, Civil Action No. 80-1053 (D . D.C., October 10, 1980), aff'd mem.,
673 F.2d 551 (D.C. Cir. 1982). Judge Kennedy's conduct in the present
case once again stands in stark contrast to these requirements.
III. Incident of April 19, 1984
The Solicitor states that on April 19, 1984, following the April
12-13 oral argument, a confrontation involving Judge Kennedy and Mr.
Moncrief occurred at the Commission's Office of Administrative Law
Judges in Falls Church, Virginia. This confrontation involved a dispute over the availability of the transcript of the oral argument. Near
the close of the oral argument the judge stated: "I have asked to have
the transcript of this argument expedited. And it will be available to
the parties next Thursday, April 19." Tr. II at 76. On April 16, 1984,
Mr. Moncrief wrote the Commission's Executive Director and requested a
copy of the transcript. This letter is in the record. In his affidavit,
Judge Kennedy maintains that Mr. Moncrief, in his letter to the Executive
Director, misrepresented the judge's instructions regarding the transcript.
Judge Kennedy also maintains that Mr. Moncrief persuaded the Executive
Director to order the judge's secretary to make a copy of the transcript
for Mr. Moncrief. Both ~rr. Moncrief and Judge Kennedy agree that Mr.
Moncrief came to the Commission's office on April 19 in order to obtain
the copy of the transcript. Their sworn accounts as to what then transpired diverge.
Mr. Moncrief states that when he entered the Commission's office,
the judge yelled at h~m and accused him of misleading the Commission
with regard to the matter of the transcript. According to Moncrief, the
judge exclaimed: "By God now you've done it. You've really done it now
boy. You wrote a misleading letter to the Commission and told them I
said you could have my copy of the transcript."
Mr. Moncrief states
that when he left the office, Judge Kennedy followed him to the elevator
and shouted at him: "[W]atch your step. You're in my sights!", to
which he replied "Keep 'em clear, Judge!"
Judge Kennedy states that prior to seeing Mr. Moncrief on April 19,
he was "seriously disturbed by Mr. Moncrief's duplicity" in the matter
of the transcript. Judge Kennedy asserts that when Mr. Moncrief appeared
he asked him to explain his actions. According to Judge Kennedy, Moncrief
"stepped back and stood mute with a contemptuous smirk on his face and
when I pursued the matter he turned on his heel and walked out." The
judge states that he followed Mr. MOncrief ' in order .to pursue the matter
and that Mr. Moncrief stated: "What the hell do you think you can do

1146

about it. You know damn well MSHA and the Commission are out to get you
and I intend to do everything I can to help them." Judge Kennedy concludes, "I did not threaten [Mr. Moncrief]. I ~autioned him against
further provocations and told him ••• I would keep an eye on him."
Our examination of Mr. Moncrief's letter to the Commission's
Executive Director and the judge's transcribed statement at the oral
argument concerning the availability of the transcript reveals no
"duplicity" or misrepresentation on the part of Mr. Moncrief. Rather,
the record reveals that he followed the Commission's established procedures concerning the Secretary of Labor's procurement of copies of
documents, including transcripts, contained in official, public records
maintained by the Commission. The fact that the judge may disagree with
these procedures, or finds them inconvenient, provides no basis for
venting his personal displeasure at the expense of a litigant who
properly requests a copy of a document then in the judge's possession.
Thus, regardless of whether Judge Kennedy was "seriously disturbed" (as
he stated) or was angry (as Mr. Moncrief's affidavit suggests) his
negative actions towards Mr. MOncrief were unwarranted.
Apart from this conclusion, we are unable to conclusively resolve
in this forum the precise content of the exchange between the two men at
the conclusion of their conversation. Although each affidavit contains
statements that, if true, are cause for serious concern, our major
concern here is over what transpired, both on and off the record, in
connection with the merits of the underlying litigation.
We reemphasize, however, that the standards required to be observed
by Commission judges mandate dignified and courteous relationships in
order to assure the orderliness of proceedings and to protect the rights
of all parties. Similar standards are required of those who practice
before the Commission. Commission Procedural Rule 80(a), 29 C.F.R.
§ 2700.80(a). These standards of conduct are not mere social niceties.
They serve an important purpose by promoting the rational resolution of
legal conflicts by curbing emotional excesses that litigation may
engender. When these standards are disregarded, the underpinnings of
the judicial system are eroded.
IV.

The newspaper article

In directing that Judge Kennedy file a sworn statement regarding
the newspaper article of May 27, 1984, published in the Lexington
[Kentucky] Herald-Leader, we noted that the judge was quoted as characterizing his telephone conversation with Ms . Leasure as trivial and as
being critical of Mr. Moncrief. !/ In his affidavit, Judge Kennedy
8/
The article states that the judge described his telephone conversation with Hs. Leasure as "absolutely, completely trivial" and that he
said of Mr. Moncrief : "He is a lazy lawyer and I'm not surprised that
he has nothing better to do than to bring this sort of complaint, I've
been in cases in which he is totally unprepared and even argued positions
that hurt his own case." York, "Mine Safety Judge Walks Controversial
Path," Lexington [Kentucky] Herald-Leader, May 27, 1984, at A-1.

1147

states that he was contacted by several reporters, including Michael·
York the author of the article, regarding the Solicitor's letter of May
17, 1984. The judge asserts that when Mr. York asked him for comment he
said that he ·believed the charges in the letter were "trumped up"; that
he thought the charges with regard to Ms. Leasure and Mr. Moncrief were
lacking in substance; and that his official view on the question of Mr.
Moncrief's competence was reflected in the record of the oral argument
in the Peabody litigation and in his order of April 25, 1984 issued in
T.P. Mining, Inc., FMSHRC Docket No. LAKE 83-97-D. ~/ Judge Kennedy
also states that he is unable to confirm or deny the accuracy of the
quotations.
Canon 3(A)(6), Code of Judicial Conduct, states in part:
A judge shall abstain from public comment about a
pending • • • proceeding in any court ••••
The judge was well aware that the Solicitor's letter and our resulting
inquiry arose out of incidents related to the pending Peabody litigation.
At the time the article was published Judge Kennedy was the presiding
trial judge in the matter. Judge Kennedy's comments concerned that
pending iitigation in that they related to the judge's ex parte telephone conversation and upon the competence of the Secretary's counsel of
record. Moreover, public comment upon the competence of counsel in a
proceeding amounts to commenting upon the proceeding itself. Counsel is
an indisputable component of any proceeding in which he or she appears.
T.P. Mining, supra, slip op. at 7.
The judge states that he told Mr. York that he, the judge, believed
the Solicitor's letter represented an attempt "to silence [his) free
criticism of the administration's cooperative enforcement policy."
Judge Kennedy's mo~.ive for granting the interview is irrelevant. The
comments concerned a pending proceeding and they were forbidden. Public
expressions by judges regarding cases and counsel before them can only
mar the judicial body's appearance of impartiality and subject the
integrity of its proceedings to question. Kennecott Copper Corp. v.
F.T.C., 467 F.2d 67, 80 (lOth Cir. 1972).

9/
We granted the Secretary of Labor's petition for discretionary
review of the referenced order. We have held that the judge's critical
comments regarding Mr. Moncrief lacked record support, and the comments
(FMSHRC Docket No. LAKE
were struck. T.P. Mining, Inc., 7 FMSHRC
83-97-D, July 2, 1984), slip op. at 3-6.

lt48-·

The purpose of this inquiry has been to determine whether Judge
Kennedy acted improperly in connection with the captioned proceeding.
As discussed above we find several instances of improper conduct which
are of grave concern. We reserve for further consideration the question
of the necessary response to his actions. 10/

Lilstowka,

:tL4..,
L. Clair Nelson, Commissioner

10/ Pursuant to section ll3(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves a panel of three members to exercise the
powers of the Commission. Acting Chairman Hackley has fully considered
the motion of April 3, 1985, filed by Judge Kennedy, wherein the question
of "appearance of bias on the part of the Acting Chairman in favor of
Mr. Moncrief" is raised. The basis for this motion is a · letter written
by Acting Chairman Hackley on behalf of Mr. Moncrief in his efforts to
.be certified as an administrative law judge. The letter, addressed to
the Office of Personnel Management, is dated July 26, 1982. Acting Chairman
Backley has concluded that the letter neither creates a bias nor appearance
of bias in favor of Mr. Moncrief so as to warrant his recusal.

1149

Distribution
Cynthia L. Attwood, Esq.
Associate Solicitor
U.S . Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Philip G. Sunderland, Esq.
Terris and Sunderland
1121 12th St., N.W.
Washington, D.C. 20005
Mary Lu Jordan, Esq.
UMWA

900 15th St., N.W.
Washington, D.C. 20005
Dennis Clark, Esq.
1100 17th St., N.W.
Suite 800
Washington, D.c. 20036
Michael McKown, Esq.
Peabody Coal Co.
P.O. Box 373
St. Louis, Missouri 63166

1150

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

August 20, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. WEST 80-6-M
WEST 80-81-M
WEST 80-82-M

CALVIN BLACK ENTERPRISES .

BEFORE:

Backley, Acting Chairman; Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 ~~· (1982). Two questions
are presented: first, w~ether Calvin Black Enterprises ("Black") was
properly cited for violations of mandatory safety standards arising from
the work activities of an independent contractor; and second, whether
Black denied entry at two of its mines to inspectors of the Department
of Labor's Mine Safety and Health Administration ("MSHA") in violation
of section 103(a) of the Mine Act. 30 u.s.c. § 813(a). 1/ A Commission

!f

Section 103(a) of the Mine Act provides:
Authorized representatives of the Secretary [of
Labor] or the Secretary of Health and Human Services shall
make frequent inspections and investigations in coal or
other mines each year for the purpose of (1) obtaining,
utilizing, and disseminating information relating to
health and safety conditions, the causes of accidents, and
the causes of diseases and physical impairments originating
in such mines, (2) gathering information with respect to
mandatory health or safety standards, (3) determining
whether an imminent danger exists, and (4) determining
whether there is compliance with the mandatory health or
safety standards or with any citation, order, or decision
issued under this title or other requirements of this Act.
In carrying out the requirements of this subsection,
(footnote 1 continued)

1151

administrative law judge concluded that Black was properly cited for the
violations of the safety standards and that Black unlawfully denied MSHA
inspectors entry to its mines. 5 FMSHRC 1440 (August 1983)(ALJ). We
granted Black's petition for discretionary review. For the reasons that
follow, we affirm the judge's decision.
Black is the owner-operator of two underground uranium mines, the
Markey and Blue Lizard Mines, located near Blanding, Utah. On May 17,
1979, MSHA Inspec.tor Ronald Beason and an inspector-trainee conducted an
inspection of the Markey Mine. During the inspection, the inspectors
observed a surveying crew, consisting of a geologist and two helpers,
working underground without self-rescue devices. The members of the
surveying crew were employees of Sanders Exploration Company ("Sanders"),
with whom Black had contracted for surveying and mapping services.
Sanders had been conducting surveying and mapping services intermittently
for one year. This surveying crew had been working in the mine for two
to three days prior to the inspection.
When the inspectors asked the geologist why he was not wearing a
self-rescue device, the geologist replied that he had been issued a
device but had left it in the crew's jeep, located approximately 750
feet away. The geologist's helpers stated that they had not been issued
self-rescue devices or instructed in their use. Inspector Beason issued
a citation charging Black with a violation of 30 C.F.R. § 57.15-30. !/
Footnote 1 end.
no advance notice of an inspection shall be provided to
any person, except that in carrying out the requirements
of clauses (1) and (2) of this subsection, the Secretary
of Health and Human Services may give advance notice of
inspections. In carrying out the requirements of clauses
(3) and (4) of this subsection, the Secretary shall make
inspections of each underground coal or other mine in its
entirety at least four times a year, and of each surface
coal or other mine in its entirety at least two times a
year •••• For the purpose of making any inspection or
investigation under this Act, the Secretary, ••• with
respect to fulfilling his responsibilities under this
Act, or any authorized representative of the Secretary
••• , shall have a right of entry to, upon, or through any
coal or other mine.
2/

Section 57.15-30 provides:
Mandatory -- A 1-hour self-rescue device approved by the
Mine Safety and Health Administration shall be made available by the operator to all personnel underground. Each
operator shall maintain self-rescue devices in good condition.

1152

The citation was terminated when the geologistis helpers were issued
self-rescue devices and the members of the surveying crew were instructed
in their use.
During the same inspection, Inspector Beason issued another citation
alleging that the surveying crew's use of a gasoline-powered jeep in the
Markey Mine violated 30 C.F.R. § 57.4-52 because the mine did not have
adequate escape routes-- i.e., crosscuts every 100 feet. 3/
This
citation was terminated when the jeep was moved to the mine's surface.
Subsequently, on July 2, 1979, Inspector Beason and an MSHA special
investigator visited Black's Blue Lizard and Markey mines for the purpose
of conducting inspections. When the inspectors arrived at the Blue
Lizard Mine, they were informed by the mine superintendent and the
foreman that the mine's owner, Mr. Calvin Black, had issued instructions
that no one was permitted on mine property without Mr. Black's written
permission. The mine personnel showed the inspectors a notice to that
effect and told the inspectors that they were trespassing. 4/ Inspector
Beason then read to Black's representatives relevant portions of section
103(a) of the Mine Act (seen. 1) and informed them of MSHA's right to
inspect the mine and of the consequences of their refusal to permit an
inspection. The inspectors testified that they believed that the atmosphere was sufficiently hostile that they would have been prevented
physically from entering the mine. Inspector Beason issued Black a
citation alleging a violation of section 103(a) of the Mine Act.
Approximately 20 minutes later, after once more requesting and being
denied permission to inspect, Inspector Beason issued a withdrawal order
pursuant to section 104(b) of the Mine Act. 30 U.S.C. § 814(b). Black
continued mining operations following issuance of the withdrawal order.
3/

Section 57.4-52 provides:
Mandatory. Gasoline shall not be stored underground, but may be
used only to power internal combustion engines in nongassy mines
that have multiple horizontal or inclined roadways from the surface
large enough to accomodate vehicular traffic •••• All roadways and
other openings sh~ll be connected with another opening every 100
feet by a passage large enough to accommodate any vehicle in the
mine.

4/

The notice read:
NOTICE THIS IS PRIVATE PROPERTY. No person without the
specific written authorization from the owner and operator will be
permitted on this property. Violators will be considered trespassers and the owner and operator will not be responsible for
their safety •••• Dated: May 25, 1979.

The notice was signed by Calvin Black.

1153

After leaving the Blue Lizard Mine, the inspectors went to Black's
Markey Mine, where a similar confrontation occurred. As a result,
Inspector Beason issued another citation alleging a violation of section
103(a) of the Act, and a sub~equent section 104(b) withdrawal order. As
at the Blue Lizard Mine, Black continued mining operations after issuance
of the withdrawal order.
The Secretary subsequently proposed civil penalties for the citations
and orders, Calvi~ Black contested the penalties, and a hearing was held
before an administrative law judge of this independent Commission. The
judge rejected Black's argument that it should not be held liable for
the violations committed by the employees of the independent contractor,
Sanders. In reviewing the Secretary of Labor's decision to cite the
operator for the independent contractor's violation, the judge applied
the relevant principles stated in Phillips Uranium Corp., 4 FMSHRC 549
(April 1982) and Old Ben Coal Co., 1 FMSHRC 1480 (October 1979), aff'd,
No. 79-2367 (D.C. Cir. January 6, 1981). The judge found that the
activities that led to the issuance of the citations involved workers
untrained in mine safety and extended over a period of one year. 5
FMSHRC at 1442. He determined that the violations endangered not only
Sanders' . employees, but also Black's employees. He held that Black had
a duty "to monitor and control the independent contractor's workers and
their activities as they affected general mine safety considerations."
Id. The judge therefore found that Black had been properly cited.
Noting that Black had not specifically denied the violations, the judge
concluded that violations of sections 57.15-30 and 57.4-52 had occurred,
and assessed civil penalties.
In deciding whether the operator had unlawfully denied the MSHA inspectors entry into its mines, the judge relied on the language of
section 103(a) of the Mine· Act which, he noted, requires that no advance
notice of an inspection be given. 5 FMSHRC at 1444. The judge found
that the inspectors had identified themselves and informed the operator's
representatives of the purpose of their visits, and that the inspectors
were not required to "force entry" in order to inspect. Id. In addition
he found that, although the inspectors were not expresslyjprohibited
from entering the mines, mine personnel--acting on instructions from the
mine owner, Mr. Calvin Black-- "effectively prevented access to the
mines by demanding that notice and permission precede entry." Id. In
reaching these conclusions the judge credited the inspectors' testimony
over that of Mr. Black and the superintendent of the Markey Mine. 5
FMSHRC at 1443-44, 1446-47. The judge concluded that the operator's
actions violated section 103(a) of the Act, affirmed the citations, and
assessed civil penalties of $200 for each violation.
On review, Black does not contest the judge's conclusion that
sections 57.15-30 and 57.4-52 were violated, but rather argues that it
should not be held liable for these violations occurring in connection
with the acts of its independent contractor. Black also contends that
substantial evidence does not support the judge's conclusion that it
violated section 103(a) of the Mine Act. We disagree.

1154

The Commission initially considered in Old Ben, supra, the question
of an owner-operator's liability for violations of the Mine Act arising
from the work activities of its independent contractors. There the
Commission decided that an owner-operator can be held responsible without
fault for a violation committed by its contractor, but also stressed
that direct enforcement against contractors is vital to the Mine Act's
enforcement scheme. 1 FMSHRC at 1481-83, 1486. We held further that
the Secretary's decision to proceed against the operator rather than its
contractor is subject to Commission review. 1 FMSHRC at 1481-84. The
basic test applied by the Commission in reviewing the Secretary's decision
to proceed against an operator is whether the choice "was made for
reasons consistent with the purpose and policies of the [Mine] Act." 1
FMSRRC at 1485. 11 In Phillips Uranium, supra, the Commission reaffirmed
the principles enunciated in Old Ben and indicated that in choosing the
entity against whom to proceed, the Secretary should look to such factors
as the size and mining experience of the independent contractor, the
nature of the task performed by the contractor, which parties contributed
to the violation, and the party in the best position to eliminate the
hazard and prevent it from recurring. 4 FMSHRC at 552-53. We made
clear in Phillips that we could not approve a Secretarial decision
grounded solely on considerations of "administrative convenience" rather
than the protective purposes of the Act. 4 FMSHRC at 553. i/
Applying these principles to the present case, we affirm the judge's
conclusion that Black was properly cited for the violations at issue
arising from the work of Sanders' employees. The evidence surrounding
the violation of section 57.15-30, the self-rescuer standard, supports
the judge's conclusions that Black contributed to the violation and was
5/
The Commission rejected the Secretary's position that Commission
review should be limited to the question of whether the Secretary abused
his discretion in proceeding against the operator. 1 FMSRRC at 1485.
In the present case, the Secretary has again argued that the proper
standard of review is abus·e of d·iscretion. For the reasons stated in
Old Ben, we .adhere to the· standard articulated in that decision and
followed by us since. See Phillips, supra, 4 FMSHRC at 551.

i/

In both Phillips (4 FMSHRC at 552) and our subsequent decision in
Cathedral Bluffs Shale Oil Co., 6 FMSHRC 1871, 1872 (August 1984),
petition ·for review filed, No. 84-1492 (D.C. October 1, 1984), we noted
the Secretary's adoption in ·July 1980 of independent contractor identification regulations (30 C.F.R. Part 45) and accompanying enforcement
guidelines governing the issuance of citations to independent contractors.
The guidelines (44 Fed. Reg. 44497 (July 1980), quoted in Cathedral Bluffs,
supra , 6 FMSHRC at 1873) are generally consistent with Commission case
law in this area. However, they were adopted after the citations in the
instant case were issued and the Secretary did not rely upon them befo~e
the judge.

1155

in the best position to eliminate the hazard and prevent it from recurring.
Sanders had only three employees at Black's mine, and they were in the
mine· intermittently performing a relatively small-scale surveying task.
The record reflects that Sanders' employees were unfamiliar with selfrescue devices and their use, suggesting that Sanders--or at least the
crew in question--was inexperienced in the fundamental requirements of
mine safety. On the other hand, Black had continuing responsibility for
compliance with ·the Mine Act at its mines. Because of the limited
nature of the work performed by Sanders' employees in the mine, Black
was in a position to insure that the self-rescue devices were issued to
and used correctly by Sanders' employees. In sum, we find that the
judge properly determined that the Secretary's citation of Black was
consistent with the purposes and policies of the Mine Act.
We also affirm the judge's conclusion that Black was properly cited
for the violation of section 57.4-52, involving the use of gasolinepowered vehicles in a mine without multiple roadways and sufficient
crosscuts. The standard is contained in a section of the regulations
entitled "Fire Prevention and Control." In issuing the citation, the
inspector was concerned that because of the lack of crosscuts, the
parked jeep could obstruct all miners in escaping from a fire or air
contamination, including air contamination contributed to by the jeep's
gasoline exhaust. 5 FMSHRC at 1441. Moreover, there is no question but
that fire prevention is a fundamental continuing responsibility of the
production-operator. The operator must always have control over mine
·premises to maintain a comprehensive fire prevention program in compliance with applicable regulations. Accordingly, we affirm the judge's
conclusion that Black was the properly cited party.
Concerning the alleged violation of section 103(a) of the Mine Act,
Black argues that its employees were not instructed to deny inspectors
access to its mines. Black also contends that the employees at both
mines told the inspectors that they were permitted to inspect, and that
it was the inspectors who declined to inspect the mines. We reject
these arguments.
The law on denial of entry under the mandatory inspection provisions
of section 103(a) of the Act is clear. Section 103(a) expressly requires
that no advance notice be given an operator prior to an inspection and
gives authorized representatives of the Secretary an explicit right of
entry to all mines for the purpose of performing inspections authorized
by the Act. The Supreme Court has upheld the constitutionality of these
provisions. Donovan v. Dewey, 452 U.S. 594, 598-608 (1981). Con~istent
with that decision, we have held that an operator's failure to permit
such inspections constitutes a violation of section 103(a). Waukesha
Lime & Stone Co., Inc., 3 FMSHRC 1702, 1703-04 (July 1981); United States
Steel Corp . , 6 FMSHRC 1423, 143Q-31 (June 1984).

1156

Substantial evidence supports the judge's finding that Black's
actions amounted to a denial of entry. Upon arrival at the mines, the
inspectors properly identified themselves and informed management
personnel of the purpose of their presence and of the inspection
requirements of the Act. The judge credited the inspectors' testimony
that the mine personnel, stating that they were acting upon instructions
from Black's owner, informed the inspectors that they were trespassing
and needed to obtain Black's written permission before inspecting. The
judge's credibility resolutions, on which he based his findings, are
reasonable and are s~pported by the evidence. We agree with the judge
that management personnel thus effectively prevented access to · the mines
whether or not they also physically prevented the inspectors from conducting their inspections. MSHA inspectors are .not required to force
entry or to subject themselves to possible confrontation or physical
harm in order to inspect. Thus, we affirm the judge's conclusion that
Black violated section 103(a).
Accordingly, on the bases discussed above, the judge's decision is
affirmed. 2/

&~~-·

Richard V. Backley, Acting Chai~an

II

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

1157

Distribution

Mr. Calvin Black, President
Calvin Black Enterprises
P .0. B.ox 90.6
Blandi.ng, Utah ~4511
Barry Wisor, Esq.
Office of the Solicitor
u.s. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

1158
. ..

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

August 30, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA)
on behalf of SHELBY
EPERSON
Docket No. KENT 83-38-D

v.
JOLENE, INC., aka JOLINE, INC.
ORDER

Upon consideration of the motion of Joline, Inc., to reopen the
record in this case and of the Secretary's response thereto, we deny
the motion. Joline's motion directly follows the January 25, 1985
Order of the United States Court of Appeals for the Sixth Circuit,
enforcing the Commission's order granting Shelby Eperson reinstatement, back
pay, interest and expenses. Donovan v. Joline, Inc., No. 84-3358
(unpublished).
The Secretary's response to the motion states inter alia "The
jurisdiction of the Commission at this point in the proceeding has
ceased." Response at 4. We agree. Under Section 106(a}(l) . of the
Mine Act, the Sixth Circuit has exclusive jurisdiction over this matter.
Accordingly, respondent's motion to reopen is denied.
For the foregoing reasons we also deny respondent's motion for
time in which to reply to petitioner's response filed August 29, 1985.

1159

Distribution
Robert J. Greene , Esq.
P.O. Box 432
Betsy Layne, Kentucky 41605
Barry F. Wisor,- Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

1160

ADMINISTRAT'I VE' LAW JUDGE DECISIONS

FEDERAL MINE SAFET'Y AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYliNE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 5 1985
EMILIANO ROSA CRUZ,
Complainant

v.
PUERTO RICAN CEMENT COMPANY,
INC.,
Respondent

.
.:•
..•
.

DISCRIMINATION PROCEEDING
Docket No. SE 83-62-DM

DECISION ON REMAND
Before:

Judge Broderick

The Commission remanded this case to me by order issued
April 12, 1985 for reconsideration and further findings on the
alleged threat complainant made on the life of Respondent's
assistant personnel manager. The ma.tter was also remanded to
give Respondent the opportunity to depose complainant
concerning his attempts · to obtain interim employment and the
extent of his interim earnings. I interpret this direction to
mean that I should make further findings on the relief to
which Complainant ~$ entitled, by bringing the relief order up
to date.
On April 25, 1985, I ordered th~t deposition testimony be
taken from complainant and from Respondent's assistant
.
personnel manager regarding the alleged threat on the latter's
life. I also directed that Complainant make himself available
for deposition qoncerning his efforts to obtain interim
employment and the ext~nt of his i~terim earnings.
The depositions were taken on May 10, 1985. Complainant
has filed an objection to certain documents submitted at the
depositions. Complainant has also filed a statement of
additional attorney's fees and legal expenses to which
Respondent objects. Transcripts of the depositions were filed
with me on JuLy 2, 1985, by Respondent. Complainant has not
filed any objections or corrections. Therefore, I accept the
transcripts as part of the record in this case. On July 8,
1985, Respondenf ·filed a memorandum discussing. the . post-remand
deposition evidence. On July 8, 1985, complainant's attorney
filed a motion to withdraw as counsel for complainant . on· the
ground that he has been appointed Judge of the · Superior Court
of Puert~ Rico. I called counsel on July 9 and wa~ assu~ed

1161

that he would arrange for a substitute attorney who would file
an apperance. No such appearance has been filed. However,
Judge Alvarado's motion to withdraw as counsel for complainant
is GRANTED. Because the case was remanded to me for expedited
proceedings, and because no further evidentiary matters are
involved, I believe that withholding my decision further is
not justified.
I.

THE POST DISCHARGE ALLEGED THREAT

The depositions of Pedro Rene Vargas (identified at the
hearing as Rene Vargas) and Emiliano Rosa taken pursuant to my
order and as a consequence of the Commission remand have
substantially added to the record on the alleged threats made
by Complainant on Vargas' life. The only evidence of such
threats in the transcript of the original hearing was the
testimony of Vargas that Complainant threatened Vargas in the
unemployment office: "He said that he had not been able to
get this benefit because of a declaration that I did and he
was going to take action over .me • • • He said that he was
going to kill me." CTr. 63)
In his deposition, Vargas elaborated on this testimony.
He stated that a~ the Puerto Rico Department of Labor Building
ori September 21, 1983, complainant told Vargas "with the
statements you gave I am not going to get my benefits." CD.7)
Vargas and Complainant were alone at the time, and were about
10 feet apart. Compla'inant told Vargas "I am armed and I'm
going to kill you." CD. 2~) Vargas told Mr. Rosich of the .
Labor Relations Department of the threat and was told to.call
a judge. He called Judge Febus Bernardini, a Superior Court
Judge or District Judge in Ponce. He also told Mr. Marcucci,
the Union President. A few days later Vargas met with the
Judge who told him that he had already talked to complainant
and that Vargas should call the Judge "if anything happens."
{D. 20)

Complainant testified that he saw the Judge the day
following his unemployment hearing concerning the alleged
threat to Vargas. He also testified that he had a permit to
carry a weapon in September 1983, and that everyone in the
company knew that he carried a weapon. Complainant denied
that he threatened to kill Vargas. He admitted that he told
Vargas that he was going to take action against him, but
stated that he was referring to "judicial action." CD. 109)
On the basis of the evidence taken subsequent to the
Commission remand, I find that Complainant did in fact
threaten Vargas' life. The threat was taken seriously and was
not an off-hand or jocular remark. I am accepting the ·

1162

testimony of Vargas over that of Complainant on this issue
because (1) the record does not disclose any motive for Vargas
to fabricate the testimony~ <2> he immediately reported the
threat to local authority~ (3) he told others, including the
President of the local union who testified at the hearing and
was present at the depositions. Respondent has objected to
the taking of Vargas' deposition and to that part of the
deposition of Complainant which dealt with the alleged threat
to Vargas. I am overruling the objections. I should note
that without the above testimony, the record would not support
a finding that complainant made a serious threat to kill
Vargas. Vargas' testimony at the original hearing (Tr . 63)
that complainant "said he was going to kill me" in my judgment
is not sufficient for me to make a finding that Complainant
committed an act constituting a serious criminal offense.
However, the additional evidence in the depositions: that Rosa
carried a weapon~ that Vargas made an official complaint to a
local judge who called Rosa to court~ that Vargas notified
others including the union president of the threat -persuades me that Rosa made a serious threat on Vargas' life.
II.

INTERIM EMPLOYMENT AND EARNINGS

In my order issued March 7, 1985, I noted that
complainant had supplied a copy of his 1983 income tax return
(He was discharged effective April 25, 1983). He also
authorized the Social Security Administration to give
Respondent a copy of his earning record for the year 1983.
In the course of Mr. · vargas' deposition, Respondent
submitted certain documents showing the employment in
industries promoted by the Economic Development Administration
for the Ponce municipality in 1983 and 1984~ a statement from
the Commonwealth Department of Labor and Human Resources to
the effect that 3200 persons were employed (hired ? "se han
colocaco alrrededor") in Ponce from April 1983 to March 4,
1985. Also submitted was the decision of the Commonwealth .
Employment Security Referee denying unemployment benefits to
complainant on the ground that he was discharged for chronic
absenteeism. In his deposition, Vargas admitted that
unemployment in Ponce was high .
At his deposition, complainant testified that he had
sought work between April and September, 1983. He named
various employers to whom he applied for work. He stated that
all his applications· for emploY'roent were oral; he had not made
any written applications. Complainant's testimony as to
whether he registered at the Department of Labor as seeking
employment is confusing. On the basis of his testimony, I am
not able to determine whether he did or not. The Social

1163

Security records for 1983 and 1984 have been requested but as
of the time of the deposition had not been received. The
record as augmented does not change my finding Corder of
March 7, 1985), that complainant had no interim earnings other
than those testified to at the hearing (he worked from
January 1, 1984 to February 18, 1984 and earned $3.35 per
hour). On the basis of the augmented record, I find also that
complainant made reasonable efforts to secure interim
employment during the relevant period.
III.

ADDITIONAL ATTORNEY'S FEES

On June 17, 1985, Counsel for complainant submitted a
statement claiming additional attorney's fees and legal
expenses. He showed a total of 30.75 hours expended from
September 20, 1984 to June 7, 1985 at $60.00 per hour and
requests approval of $1845.00 in addition to the $2,340.00
previously approved. Respondent objects to the claim on the
grounds (1) that it is not sufficiently descriptive of the
services performed and (2) the services performed referred to
the Respondent's Petition for Review and the back pay
computation, "issues on which Respondent has prevailed."
Section 105(c)(3) of the Act provides that "whenever an
order is issued sustaining the complainant's charges under
this subsection, a sum equal to the aggregate amount of all
costs and expenses (including attorney's fees) • • •
reasonably incurred . ·•• for or in connection with, the
institution and prosecution of such proceedings shall -be
assessed against the person committing such violation."
I find that the legal services of attorney Alvarado in
connection with the Petition for Review and the proceedings on
remand were reasonably incurred in connection with the
prosecution of this proceeding. The statement is _not as
detailed as it might be, but the number of hours and the
description of the services appear reasonable.
ORDER
I have reviewed the entire record including the evidence
submitted pursuant to the Commission remand, and have
·considered the"contentions of the parties. Based on that
record and in the light of the Commission remand, my decision
issued July 19, 1984, and ord~r issued March 7, 1985 are
modified as follows:
(1) Reinstatement of complainant as ordered on July 19,
1984 is 11 inappropriate 11 because of the threat complainant made
on the life of Vargas. NLRB v! R. C. Can Company, 340 F.2d

1164

433 (5th Cir. 1965). Therefore, the order to reinstate
complainant to the position from which he was discharged is
RESCINDED. Respondent is not ordered to reinstate him.
(2) Respondent's liability for back wages is suspended
as of September 21, 1983, the date of the threat above
referred to. See Alumbaugh Coal Corp. v. NLRB, 635 F.2d 1380
(8th Cir. 1980): "thus, • • • (the employee discharged for
union activity) should be granted reinstatement with full
backpay for only that period preceding h~s unlawful
post discharge conduct." Therefore, my order of March 7, 1985
is AMENDED to require Respondent to pay back wages only from
April 25, 1983 to September 21, 1983 with interest thereon at
the rate of 16 percent for the back wages payable from April
25, 1982 to June 30, 1983 and at the rate of 11 percent for
the back wages payable from July 1, 1983 to September 21,
1~83.

(3) Respondent IS ORDERED to pay to Complainant's
attorney the further amount of $1845.00 for legal services
from September 20, 1984 to June 7, 1985, making a total amount
for legal fees and expenses of $4185.00.

k~ !Svz~ai~//c:£

)

tfA1lL -s
James A. Broderick
Administrative Law Judge

Distribution:
Julio Alarado Ginorio, Esq., P.O. Box 1771, Ponce, Puerto Rico
00733 (Certified Mail)
Daniel R. Dominquez, Esq., Dominquez & Totti, P.O. Box 1732,
Hato Rey, Puerto Rico 00919 (Certified Mail)
Mr. Emiliano Rosa-Cruz, Jardines del Caribe, 35t-h Street
GG-28, Ponce, Puerto Rico 00731 (Certified Mail)
slk

.1165

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2.2041

AUG 6 1985

.

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

CIVIL PENALTY PROCEEDING
Docket No. VA 85-12
A.C. No. 44-05210-03512

.

v.

No. 44 Mine

LAMBERT COAL COMPANY,
Respondent
DECISION
Appearances:

Mary K. Spencer, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Petitioner; ·
Mr . Dennis Sutherland, Office Manager,
Lambert Coal Company, Nora, Virginia, for
Respondent .

Before:

Judge Maurer
Statement of the Case

This case is before me upon a petition for assessment
of civil penalty under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30· u.s.c. section 801, et
seq., the "Act", in which the Secretary charges the Lambert
Coal Company with one violation of the mandatory standard at
30 C.F.R. § 75.200. The general issues before me are
whether the company has violated the regulatory standard as
alleged in the petition and, if so, the appropriate civil.
penalty to be assessed for the violation .
The hearing was h~ld as scheduled on June 13, 1985 at
Big Stone Gap, Virginia. Documentary exhibits and oral
testimony were received from both parties.
The Mandatory Standard
§

Section 75.200 of the mandatory standards, 30 C.F.R.
75.200 provides as follows:
·

1166

§

75.200

Roof control programs and plans.

Each operator shall undertake to carry out on a
continuing basis a program to . improve the roof
control system of each coal mine and the means and
measures to accomplish such system. The roof and
ribs of all active underground roadways, travelways, and · working places shall be supported or
otherwise controlled adequately to protect persons
from falls of the roof or ribs. A roof control
plan and revisions thereof suitable to the roof
conditions and mining system of each coal mine and
approved by the secretary shall be adopted and set
out in printed form on or before May 29, 1970.
The plan shall show the type of support and
spacing approved by the Secretary. such plan
shall be reviewed periodically, at least every 6
months by the Secretary, taking into considerat.ion
any.falls of roof or ribs or inadequacy of support
of roof or ribs . No person shall proceed beyond
the last permanent support unless adequate temporary support is provided or unless such temporary
support is not required under the approved roof
control plan and the absence of such support will
not pose a hazard to the miners. A copy of the
plan shall be furnished to the Secretary or his
authorized representative and shall be available
to the miners and their representatives.
The Cited Condition or Practice
Citation No. 2153689 as modified cites a violation of
30 C.F.R. § 75.200 for the following condition:
The approved roof control plan was not being complied with near the face of the No. 3 entry of the
002 active working section in that an area of roof
measuring 9 feet in length and up to 3 feet in
width and was cracked all the way around it (oval
shaped> was preseqt and additional supports such
as crossbars were not installed to supplement the
resin roof bolts that had been used. The plan
stipulates that when abnormal conditions exist
that additional roof support will be installed • . ·
Stipulations
At the hearing, the parties agreed to the following
stipulations which were accepted ( Tr. 5 >.:
1. Lambert Coal Company is the owner and operator of
the No. 44 mine.

1167

2. The operator and the No. 44 mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of
1977.
3. The presiding administrative law judge has jurisdiction pver this proceeding.
4.
The Lambert Coal Company's size is 379,766 production tons per year and the No. 44 mine's size is 103,877
production tons per year.
Discussion and Analysis
The inspector who issued the subject citation testified
that he inspected the Lambert Coal Company's No. 44 mine on
November· 6, 1984. As he entered the Number 3 entry in the
002 work~ng section of the mine he observed an oval-~haped
crack in the mine roof approximately nine (9) feet in length
and up to three (3) feet in width. He also testified that
there was .a mud seam present in the crack and according to
the inspector this would indicate that there is a separation
in the roof that most likely goes all the way to the surface
and the roof is also more likely to fall out. The entry at
that point was approximately sixty (60) feet from the
surface. Based upon what he saw, the inspector believed
that there was a reasonable likelihood of a nine (9) foot by
three (3) foot rock of unknown thickness, and therefore
unknown weight, falling out of the roof, which could result
in a death or injury.
The operator's roof bolter who had bolted this area
testified that he drilled through the rock in three places
to install roof bolts and it was eighteen (18) inches thick.
He stated he was able to tell that because the pinner head
will jump when it hits the crack and he was using a two (2)
foot starter barrel that was not all the way in when it
jumped.
The citation alleges a violation of 30 C.F.R. § 75.200
contending that the operator failed to comply with its
approved roof control plan. More particularly, the inspector testified that the specific portion of the plan that was
not complied with is contained in the second sentence of the
first paragraph on page 5 (Tr. 13, Government Exhibit No. 4).
That sentence reads: "In areas where subnormal roof conditions are encountered, indicated, or anticipated, the
operator shall provide additional support where necessary."

1168

There is no dispute that a subnormal roof condition was
present because of the 9x3 foot oval-shaped crack in the
mine roof. There is a substantial dispute, however, both as
to what corrective ·action, if any, .was taken prior to the
citation being issued and what quantum of additional support
was necessary in the first instance.
A substantial question of fact exists as to what additional support, if any, the operator provided to meet the
subnormal roof condition he encountered. The answer to this
question turns on the credibility of the two witnesses .
The inspector testified on direct and cross-examination
that they had complied with their normal roof control plan
in the area of the crack, meaning they had installed resin
roof bolts on four (4) foot centers in that entry. However,
a diagram of the No . 3 entry made by the inspector in his
field no~es, and admitted into evidence as Government
Exhibit No. 5, indicates that two (2) bolts that would have
fallen within the oval-shaped crack were not installed.
Another diagram, later admitted into evidence as Respondent's Exhibit No. 1 and purporting to show eight (8)
additional roof bolts and bearing plates inside and around
the outside circumference of the crack was shown to the
inspector on cross-examination. He stated that to the best
of his recollection the area was not bolted in this manner,
but rather as it is depicted in his field notes. On his
re-direct examination, however, he didn't seem too sure.
The following exchange took place at Tr. 35:
Q.
Mr. Phillips, I'd just like to bring you back to
what you observed as far as the roof bolting pattern
was in that entry on that roof on that day . You said
that the normal roof bolting pattern had been observed,
did you observe any type of additional support when you
made your inspection?

A.
They may have been installing some extra roof
bolts.

.

In contrast to the rather uncertain recollection of the
MSHA inspector, Mr. Counts, the operator's roof bolter, who
actually did the work in this entry testified with absolute
certainty that the roof was bolted as depicted in Respondent's Exhibit No. 1, which is reproduced below~

1169

.6\ ..
'[j

....
'

I 4o o
J

.

G5

I

I

I

I .

I

~cJ4J

'\

Als[J

\
I
I

\

i

...
~

0\

v

I

'(

i

3 ft --- - -· ··) .

Respondent's Exhibit No. 1

Mr. Counts testified that he drilled the roof and
installed five (5) foot resin roof bolts and 6"xl6"xl/ 4"
bearing plates in the order shown above. Further, he is
absolutely sure this i s the way it was before the inspector
saw it on the morning of November 6, 1984 •.
I accept the operator's description of the roof at that
time and find that it was substantiall·y as depicted in
Respondent's Exhibit No. 1 which indicates that the normal
roof bolting pattern hqd been supplemented with additional
bolts and oversized bearing plates.
Having found the existence of the additional support as
alleged by the Respondent, the second issue presented · is
whether that support was adequate. I conclude · that.. it was.
Petitioner's argument is that even if the roof was
bolted as depicted in Respondent's Exhibit No. 1, it was
insufficient because given the proximity of the mud seam and the nature of the crack, crossbars were necessary to provide

1170

adequate support of this particular area. It should be
noted that the approved roof control plari for this mine does
not specifically require crossbars to support abnormal or
subnormal roof, but rather contains a general requirement
that "the operator shall provide additional support where
necessary." In this particular case, it was and is the
considered expert opinion of the inspector that horizontal
support in the nature of crossbeams or crossbars was
required. However, in arriving at this conclusion, the
inspector did not know how far up into the roof the crack
went. Therefore, he did not know how thick the rock was or
whether the supplemental roof bolts were anchored in solid
roof.
·
The testimony of the operator's witness, who actually
did the roof bolting, and whom I find to be credible, is
crucial on this point. Mr. Counts testified that he drilled
three <3t holes up through the middle of the rock and found
it to be more or less uniformly eighteen (18) inches thick
from one end to the other. He further stated that he
drilled six (6) foot test holes, a foot above the bolts, and
installed the eight (8) resin roof bolts in the order shown
in Respondent's Exhibit No. 1 into solid roof. Additionally, Mr. Counts offered the opinion that based on eight
years of roof bolting experience and the fact that he is the
"first one under there," he felt the supplemental roof bolts
and bearing plates were adequate to make it a safe working
place.
I find the operator's arguments and evidence regarding
the condition and adequacy of the supplemental roof support
persuasive and I accept it. Based upon this evidenc~ I
conclude the additional bolting was sufficient to support
the roof.
ORDER
Citation No. 2153689, as modified, is hereby vacated
and this case is dismissed.

1171

Distribution:
Mary Kay Spencer, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
Mr. Dennis B. Sutherland, Office Manager, Lambert Coal
Company, Nora, ·vA 24272 (Certified Mail)

/db

1172

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE. SUITE 400
DENVER, COLORADO 8020.C

.
.
.
.
.
.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
ALAN GAUTHIER,
Complainant

AUG 6 1985·

DISCRIMINATION PROCEEDING
Docket No. WEST 85-46-D
Black Thunder Mine

.

v.

:

OSBORNE BROTHERS CONSTRUCTION
INC.,

:

Respondent ·
DECISION APPROVING SETTLEMENT AND ORDER
Appearances:

Margaret A. Miller, · Esq., Office of the Solicitor,

u.s. Department of Labor, Denver, Colorado,

for Complainant:
George E. Powers, Jr., Esq., Godfrey & Sundahl,
Cheyenne, Wyoming.
Before:

Judge Lasher

This case arose upon the filing of a complaint by the
Secretary in which review of Respondent's allegedly discriminatory discharge of its employee, Alan Gauthier, was requested.
Evaluation of the settlement stipulation submitted by the
parti-es reveals that it proposes an adequate remedy for the
·alleged infraction as retlected in the agreed-on ord~r which
follows. The Secretary as part of the agreement has waived any
penalties sought in relation to the controversy in question and
the alleged discriminatee, Alan Gauthier, has specifically agreed
to the settlement. Accordingly, subject to full execution of the
order which follows, the stipulated settlement is approved . and
this matter is dismissed.
ORDER
(1) Respondent, within 10 days from the date hereof, shall ·
pay Alan Gauthier the sum of $8,500.00.

1173

{2) In the event that Respondent returns to the Black
Thunder job site within 1-year from the date hereof, it will
offer Alan Gauthier reinstatement to the job of heavy equipment
operator {the job he held prior to his discharge) at a comparable
rate of pay, with the same duties, and without loss of seniority
and other benefits. As part of the agreement, Complainant
acknowledges that Respondent currently has no plan to return to
the Black Thunder site; Respondent has extended no guarantee that
it will return tp such site.
(3} Respondent shall immediately expunge from Alan
Gauthier's employment records any adverse references to his
discharge.

~ 4-L- 4'. o~4U.--~ Michael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, u.s.
Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, Colorado 80294 {Certified Mail)
George E. Powers, Jr., Esq., Godfrey and Sundahl, P.O. Box 328,
Cheyenne, Wyoming 82003-0328 (Certified Mail)
Mr. Alan Gauthier, 76 Grosventre Way, Gillette, Wyoming
(Certified Mail)

/blc

1174

82716

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

AUG 6 1985
HOBET MINING AND CONSTRUCTION:
COMPANY,
:
Contestant

.
.• ·

v.
SECRETARY OF LABOR,
MINE SAFETY AND HE~TH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No . WEVA 84-375-R
Citation No. 2146497; 8/7/84

:

Docket No. WEVA 84-376-R
Citation No. 2146498; 8/7/84

:
:

Docket No. WEVA 84-377-R
Citation No. 2146499; 8/7/84

.
:
.

Docket No. WEVA 84-378-R
Citation No. 2146500; 8/7/84

:

Pine Creek No. 12 Prep Plant

:

Docket No. WEVA 84-379-R
Citation No. 2146461; 8/1/84

:

Docket No. WEVA 84-380-R
Citation No. 2146462; 8/1/84

:

Docket No. WEVA 84-381-R
Citation No. 2146464; 8/1/84 .

:

Docket No. WEVA 84-382-R
Citation No. 2146470; 8/2/84

:

Docket No . WEVA 84-383-R
Citation No. 2146471; 8/2/84

:
:

Docket No. WEVA 84-384-R
Citation No. 2146472; 8/2/84

:

Docket No. WEVA 84-385-R
Citation No. 2146473; 8/2/84

.
:

:

:

.

:

1175

Docket No. WEVA 84-386-R
Citation No. 2146475; 8/2/84
Docket No. WEVA 84-387-R
Citation No. 2146477; 8/2/84

:
:

Docket No. WEVA 84-388-R
Citation No. 2146480; 8/2/84

:

Docket No. WEVA 84-389-R
Citation No. 2146485; 8/3/84

.
:

Docket No. WEVA 84-390-R
Citation No. 2146489; 8/3/84

:

Docket No. WEVA 84-391-R
Citation No . 2146490; 8/3/84

:
:

Docket No. WEVA 84-392-R
Citation No. 2146495; 8/6/84

:
:

Docket No. WEVA 84-393-R
Citation No. 2434601; 8/7/84

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

v.
HOBET MINING AND CONSTRUCTION COMPANY,
Respondent

No. 7 Surface Mine

.
.

CIVIL PENALTY PROCEEDINGS

.
.

Docket No. WEVA 84-411
A.C. No. 46-02249-03511

:
:

Docket No. WEVA 85-4
A. C. No. 46-06197-03509

:
:

Docket No·. WEVA 85-9
A.C. No. 46-06197-03510

.

Docket No. WEVA 84-410
A.C. No. 46-U2249-03510

No. 7 Surface Mine

:

:

Pine Creek No. 12 Prep.
Plant

:

Docket No. WEVA 85-10
A.C. No• 46-02249-03512
No. 7 Surface Mine

DECISION
Appearance s :

Sheila K. Cronan, Esq., Office of the Solicitor,
U.S . Department of Labor, Arlington, Virginia,
for the Secretary of Labor; Allen R. Prunty,
Esq., Jackson, Kelly, Holt & O'Farrell,

1176

Charleston, West Virginia, for Hobet Mining
and Construction Company.
Before:

Judge Broderick

STATEMENT OF._THE CASE
Contestant Hobet Mining and Construction Company (Hobet)
has filed notices of contest challenging the issuance of 19
separate citations in August, 1984 at its Pine Tree No. 12
Preparation Plant and its No. 7 Surface Mine. The Secretary of
Labor (Secretary) has filed Petitions seeking penalties for the
violations alleged in each of the challenged citations. The
proceedings were consolidated for the purposes of hearing and.
decision.
Pursuant to notice, the cases were heard in Charleston,
West Virginia on April 16 and 17, 1985. Burel Skeens,
David Mulkey and John G. Cheetham testified on behalf of the
Secretary1 Ira Robert Ehrlich, Dale Lucha and Delbert Ray
Lawson testified on behalf of Hobet. Twenty one stipulations
were read into the record at the commencement of the hearing.
Both parties have filed post hearing briefs. I have considered
the entire record and the contentions of the parties and make
the following decision . ·
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Because of the large number of alleged violations
involved, and because many of them are factually similar, I
will discuss them under descriptive headings.
I.

.

.

FINDINGS AND CONCLUSIONS COMMON TO ALL VIOLATIONS.

Hobet Mi.n ing and Construction Company is the owner and
operator of the No. 7 surface Mine and the Pine Creek No. 12
Preparation Plant both located in Logan Countyl West Virginia
Hobet is subject to the Federal Mine Safety and Health Act of
1977 (the Act). I have jurisdiction over the parties and
subject matter of these proceedings. Payment of civil
penalties in these cases will not affect Hobet's ability to
continue in business. Hobet produces 1,959,233 tons of coal
annually, of"which 339,952 tons are produced at the No. 7·
surface mine. Hobet's history of prior violations shows that
it had 43 paid violations at the Pine Creek No. 12 Preparation
·Plant during the period August 2, 1982 to August 6, 1984. From
August 1, 1982 to July 31, 1984, there were 40 paid violations
at the No. 7 Surface Mine. In both facilities combined, these.
violations included one of 30 C.F . R. § 77.206 (ladder
violations) and 17 of 30 C.F.R. § 77.404 (machinery shall be

1177

maintained in safe operating condition>. This history is not
such that penalties otherwise appropriate should be increased
because ·of it.
II.

.

LADDER VIOLATIONS

Citations 2146461 and 2146471 (Docket No. WEVA 84-410),
Citation 2146489 (Docket No. WEVA ·84-411), and Citation
21146499 (Docket No. 85-9) all involve defective climb ladders
on equipment. The standard violated is . 30 C.F.R. § 77.206(a)
which requires that "ladders shall be of substantial
construction and maintained in good condition." Hobet concedes
that the violations occurred, but contests the Inspector's
findings that they were significant and substantial. The
citations respectively charged that <1> the first steel .step
and the rope step were missing on the right climb ladder of · a
front end loader; (2) the first wire step was missing on the
left climb ladder of a rock truck; (3) the first and second
steps were bent into the frame on the right climb ladder on a
front end loader; (4) the entire right climb ladder was bent
into the frame on a rock truck. Each of the vehicles in
question has two climb ladders, one on the right and one on the
left. The inspector was concerned even though only one ladder
was defective in each case, because (1) the vehicles are often
operated next to a high wall, making one ladder not usable; (~)
the operator of the vehicle normally uses the left climb ladder
and mechanics; greasers, etc. normally use the right climb
ladder and would likely be unaware of the defects; (3) the
equipment is used at night and in unlighted areas. The
inspector was of the .opinion that the defective ladders created
a slip and fall hazard which could result in a serious injury.
Hobet's S~fety Specialist stated that there were fou~ means of
access to · end loaders: two ladders, and climbing over the rear
wheels. It is common for employees to mount the vehicles by
climbing over the wheels. He also stated that the equipment
operators checked the equipment, including ladders, and filed
daily ~quipment check list reports before each shift.
I find that the defective ladders contributed to safety
hazards, namely slipping and falling, which were ~easonably
likely to result in serious injury. The citations were
therefore properly denominated as significant and substantial,
and the violations were moderately serious. The defects were
obvious to visual observation and Hobet should have been aware
of them. Therefore, they resulted from Hobet's negligence.
They were all promptly abat.ed.
III.

ROCK TRUCK LOW AIR PRESSURE SIGNAL VIOLATIONS

1178

The Inspector testified that the air braking systems on
the rock trucks are equipped with either an audible signal
(buzzer), or a light which sound or come on when the air
pressure is reduced below a safe level. Citations 2146464,
2146470 (Bo~h in Docket No. WEVA 84-440), 2434601, (Docket No.
WEVA 84-411) _; 2146497, 2146500 (both in Docket No. WEVA 85-4),
and 2146472 (Docket No . WEVA 85-10), all charge that the low
warning buzzer with which the truck was equipped was
inoperative. Citation 2146490 <Docket No. WEVA 84-411> charges
that the brake warning light with whicQ the truck was equipped
was inoperative. In none of these citations is it charged that
the brakes themselves were defective. The trucks in question
may carry up to 50 or 60 tons of rock, and run on grades of 10
percent or more. The inspector was of the opinion that failing
to have an operative warning system when braking pressure was
low could result in serious injury. The standard allegedly
violated is 30 C.F.R. § 77.404(a) which provides that mobile
and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately.
Respondent does not dispute the inspector's findings that
the vehicles in question did not have operative warning buzzers
or lights. Clearly therefore the equipment was defective. Do
these equipment defects affect safety? It is self evident that
the warning systems which indicate low air presure for the
brakes were plaeed in the equipment as safety devices. They
have no other apparent purpose. Respondent's expert witness,
Dr. Ira Ehrlich, a mechanical engineer with substantial
experience ·in heavy equipment braking systems, testified that
when the air by which the service brakes are operated drops
from its normal 120 psi to 60 psi, the buzzer is supposed to ·
sound. However, as the air pressure drops, the rear emergency
parking brake begins to actuate and becomes fully engaged at
about 40 psi. This will stop the vehicle . If there is a
sudden loss of air presure, the buzzer will sound and the rear
brakes will stop the vehicle at the same time. Dr. Ehrlich
testified that the vehicles in question have automatic
transmissions and have separate braking systems: the service
brake which is an air brake and can be applied to the . rear
wheels only or to both front and rear at the option of the
operator; a brake retarder system which applies to the rear
wheels only and is oil cooled and is designed to be used on
long downhill runs; an emergency parking brake which is
automatically actuated when the oil or air pressure drops. The
emergency brake can also b~ engaged intentionally by the
vehicle operator,Hobet argues that the emergency brake system
provides a fail-safe means for stopping the vehicle in the
event of low air presure even if the warning buzzer is
inoperative.

1179

The MSHA electrical inspector, John Cheetham, testified
for the Secretary that a vehicle operator travelling downhill
with his retarder on who had lost partial air pressure would be
unable to react in a critical situation to stop suddenly with
only partfally ·effective service brakes. The buzzer would give
him prior warning. In Cheetham's opinion the automatic
emergency braking system would not take full effect if the air
pressure was above 40 psi.
Although the inspector assumed that the brake warning
light was intended to show that the air pressure was low, it
appears from other testimony that it merely showed that the
parking brake or emergency brake was engaged. It did not, nor
was it intended to show that the brakes were in any way
defective. A defective brake warning light does not establish
that the vehicle is not maintained in safe operating condition.
Therefore, the violation charged in citation 2146490 has not
been established. The citation will be vacated and no penalty
assessed.
However, I conclude that the low air warning devices
(buzzers> on the mobile equipment services brakes are intended
to warn the vehicle operator that he may have a problem, giving
him time to avoid potential danger. The fact that the ·buzzer
warning device is only one of a set of safety devices does not
make it unimportant. The devices are related to the safe
operation of the equipment. These devices must be operative if
the mobile equipment is to be maintained in safe operating
condition • . Therefore, I conclude that Hobet violated the
mandatory standards as charged in the citations involving
inoperat1ye buzzers. In Mathies Coal Co., 6 FMSHRC 1 ( 1984 >,·
the Commission held that a violation is significant and
substantial if it contributes to a safety hazard, and there is
a reasonable likelihood ' that the hazard will result in an
injury of reasonable seriousness. The violations being
considered here contribute to a safety hazard, and I accept the
testiimony of Inspector Cheetham that there is a reasonable
likelihood that the hazard will cause serious injury. The
violations are significant and substantial. The violations
were moderately serious. There is no evidence that they
resulted from Hobet's negligence. They were all promptly
abated in good faith.
IV.

TRUCK RETARDER LIGHT VIOLATIONS

The retarder braking system, as I explained above, is
primarily designed · to hold back the vehicle on long downhill
runs~
The rock trucks (subjects of citations 2146477, 2146498,
and 2146473) are equipped with a light which comes on when the

1180

retarder brake is engaged. The water truck (subject of
citation 2146475) apparently was not equipped with such a light.
According to Dr. Ehrlich the purpose of the retarder light is
to remind the driver to turn the retarder off wheri he is no
longer going down a grade. The light will not tell him whether
the retarder is working but only that the control is on. If
the retarder is not working, the truck could be stopped with
the service brake. MSHA Inspector Mulkey testified that if the
retarder is inadvertently left on while going uphill, the
vehicle could stall and the driver lose control. Hobet's
maintenance foreman testified that the ' retarder being engaged
while going uphill could not cause the vehicle to stall, but
would stop the vehicle. I accept Hobet's testimony on this
issue and conclude that the retarder light is not a device that
is related to safety. The absence of functioning retarder
lights therefore does not indicate that the mo~ile equipment
involved in these citations was not being maintained in safe
operating. condition . Therefore, the violations changed in
citations 2146477, 2146498, 2146473 and 2146475 have not been
established, the citations will be vacated and no penalties
imposed.
V.

UNSAFE DUMPING VIOLATIONS

Citation 21-46 480 charged a violation of 30 C. F . R.
77.1608(c) because rock was being pushed over a highwall by a
dozer and the roadway below "was not flagged against the
falling material." The Inspector, Burel Skeens, stated that
two large rocks were observed in the roadway. Citation 2146495
charged a violation of 30 C.F.R. § 77.1608(b) because a rock
truck was dumping too clos.e to the edge of a 20 foot bank.
Dale Luch~, Hobet's Safety Specialist, accompanied toe
Inspector · when the citations wre written. He testified that he
did not see the rocks in the roadway described by the Inspector
(they rode in separate vehicles about 200 feet apart), and the
rocks were not present 45 minutes to an hour later. When
questioned by Lucha, the dozer operator denied that they had
pushed rocks into the roadway. Lucha also disputed the
.
inspector's testimony that the Inspector got out of his vehicle
and examined the area where · the trucks were dumping. The
Inspector testified that he saw a foreman in the area1 Lucha
stated that he did not notice any foreman there. There is
considerable· conflict in the testimony concerning these ·
citations. The Inspector's te~timony is direct, detailed and
positive. The contrary evidence is not sufficient to overcome
it, and I find that the conditions described in the two
citations did exist, and the violations charged occurred. Both
of the violations were serious and were reasonably likely to
result in injury. They were properly cited as significant and
substantial. There is insufficient evidence that the violation
§

1181

charged in citation 2146480 resulted from Hobet's negligence.
However, the violation charged in citation 2146495 was known to
the operator's agent (a foreman) or should have been known.
Hobet was negligent.
The cifc:ition was issued under section 104 (d) ( 1} and alleged
that the viola·tion was caused by Hobet' s unwarrantable failure
to comply with the standard. Unwarrantable failure was equated
with negligence in the case of Zeig·ler Coal Co., 7 IBMA 280.
The Commission in United States Steel Corporation, 6 FMSHRC
1423 (1984} held that unwarantable failure can be shown by a
"serious lack of reasonable care." (1437). I conclude that the
foreman's knowledge of the violative practice is imputed to
Hobet and shows a serious lack of reasonable care~ The
citation was properly issued under section 104(d)(l). Both
unsafe dumping citations were promptly abated.
VI • . MISCELLANEOUS VIOLATIONS
Citation 2146462 was issued charging a violation of 30
C.F.R. § 77.1710(i) because an end loader operator was not
wearing a seat belt. The end loader was equipped with roll
over protection. The standard requires seat belts to be worn
in a vehicle where there is a danger of overturning and where
roll over protection is provided. The Inspector was of the
opinion that there was a danger of the vehicle in question
overturning; the operator's witnesses stated that there was no
such danger. On this issue, I accept the judgment of the
Inspector, and conclude that a violation of the standard was
established.. The original citation was modified to remove the
significant and substantial finding. The modification also
indicates . that the gravity and negligence were low • . I accept·
those conclusions. The violation was promptly abated.
Citation 2146485 charges a violation of 30 C.F.R.
77.400CaJ because a drive coupling to an overlimit switch on
the shovel was .not guarded. The switch turns very slowly, and
the Inspector was obviously reluctant to "write it up."
Hobet's maintenance foreman testified that there were no pinch
points, and there was no possibility of a worker pr loose
clothing being caught. I find that the device did not
constitute exposed moving machine parts which might be
contacted by·persons and cause injury. A violation was not
established.
§

ORDER
Based on the above findings of fact and conclusions of
law, IT IS ORDERED:

1182

1.

The following citations are AFFIRMED as issued:
a)
b)
c)

2146461
2146471
2146489
. '(f) ·2146499
e) . 2146464
f) 2146470
g) 2434601
h) 2146497
i) 2146500
j) 2146472
k) 2146480
1) 2146495
m) 2146462 Cas modified; not S&S)
2. · The following citations are VACATED:
a)
b)
C)

d)
e)
f)

2146490
2146477
2146498
2146473
2146475
2146485

3. Considering the criteria in section llO(i) of the Act,
I conclude that the following civil penalties are appropriate
for the violations found herein.
CITATION

·30 CFR STANDARD

PENALTY

2146461
2146471
2146489
2146499
2146464
2146470
2434601
2146497
2146500
2146477
2146480
2146495
2146462

77.206Ca>
77 . 206
77.206
77.206
77.404(a)
77.404(a)
77.404(a)
77.404(a)
77.404(a)
77.404(a)
77.1608(c)
77.1608(b)
77.1710(i)

$ 100.00
100.00
100.00
100.00
100.00
100.00
100.00
100.00
100.00
100.00
150.00
200.00
30 . 00
$1380.00

TOTAL

118.3

Hobet is ORDERED TO PAY the sum of $1380.00 within 30 days
of the date of this decision.

.-jtiA/~S Adia?a"-zd

~

James A. Broderick
Administrative Law Judge

Distribution:
Sheila K. Cronan, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Blvd., Rm. 1237-A, Arlington,
VA 22203 (Certified Mail)
Allen R. Prunty, Esq., Jackson, Kelly, Holt & O'Farrell, 1600
Laidley Tower, P.o. Box 553, Charleston, WV 25322 (Certified
·M ail>
slk

1184

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

.

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

AUG 8 1985

CIVIL PENALTY PROCEEDING
0

0

0
0

:

Docket No : LAKE 84-98
A.O. No: 33-00968-03568
Nelms No . 2 Mine

v.
YOUGHIOGHENY & OHIO COAL CO . , :
Respondent
0
0

DECISION
Appearances:

Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio,
for Petitioner;
Robert C. Kota, Esq., St. Clairsville, Ohio,
for Respondent

Before:

Judge Kennedy

This matter came on for an evidentiary hearing in -Wheeling,
West Virginia on May 30 and 31, 1985. At the conclusion
of the evidence the trial judge entered a tentative bench
decision (Tr. 408-409) finding the two v iolations charged did,
in fact, occur and that the penalties warranted were .$1,000
for Citation 2203748 and its companion closure order· and
$950 for Citation 2327363.
Upon :receipt of the transcript, the trial judge issued
an order to show cause why the tentative decision should not
be confirmed as the final disposition of this matter . The
opera·t or having failed to show such cause, it is ORDERED
that the tentative decision of May 31, 1985 be, and hereby
is, ADOPTED and CONFIRMED as the f' a1 disposition of t~is
case. It is FURTHER ORDERED that
e operator pay the amount
of the· penalty found warranted, 1 50, on or before Monday,
August 26, 1985.

1185

~

. ., ...

Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, u.s. Department of Labor, ~240 · East Ninth Street, Cleveland, OH 44199
(Certifi~d Mail) ·
Robert c. Kota, Esq., The Youghiogheny and Ohio Coal Company,
P.O. Box 1000, St. Clairsville, OH 43950 (Certified Mail)

/db

1188

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

AUG 9 1985

HELVETIA COAL COMPANY,
Contestant

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY.OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
HELVETIA COAL COMPANY,
Respondent

.
.

CONTEST PROCEEDING
Docket No. PENN 85-1-R
Order No. 2256778; 8/28/84

.
..
.

CIVIL PENALTY PROCEEDING

.

Docket No. PENN 85-106
A.C. No. 36-04597-03533

:

Lucerne No. 8 Mine

Lucerne No. 8 Mine

.
DECISION

Appearances~

William Darr, Esq., Rochester and Pittsburgh
Coal Company, Indiana, Pennsylvania, for
Helvetia Coal Company;
JohnS. Chinian, Esq., Office of the Salicitor,
u.s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary of Labor.

Before: Judge Melick
These consolidated cases are before me pursuant to
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et ~, "the Act" to contest a withdrawal order issued to the Helvetia Coal Company (Helvetia)
under section 104(d)(l) of the Act and for review of civil

1187

penalties proposed by the Secretary of Labor for the violation charged therein.l
The withdrawal order at issue (Number 2256778) reads as
follows:
Proper pre-shift examinations were not made in
the high spot (roof fall) area in the North Mains
belt-track entry located approximately 1000 ft.
outby the 4 South track switch. Examinations
were made, however, roof rails clo'se together
were installed restricting the person from making
the examination in the high spot. A hose was
provided from the roof rails to the roof of the
high spot, however, supervisory personnel making
the examination were using a CSE methameter Model
107 Approval No. 8C-37 with no adapters to use
the provided hose to make the examination in the
high cavity area.
Helvetia does not dispute that it was required to conduct methane tests in the cited caved area in accordance with
the mandatory standard at 30 C.F.R. § 75.303 but maintains
lsection 104(d)(l) reads as follows: "If, upon any inspection
of a coal or other mine, an authorized representative of the
Secretary find~ that there has been a violation of any mandatory health or safety standard, and if he also finds that,
while the conditions created by such violation do not· cause
imminent danger, such violation is of su~h nature as could
significantly and substantially contribute to the cause and
effect of ~ coal or other mine safety or health hazar~, and
if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health
or safety standards, he shall include such finding in any
citation given to the operator under this Act. If, during
the same inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation
of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of
such operator·to so comply, he shall forthwith issue an order
requiring the operator to cause all persons in the area
·
affected by such violation, except those persons referred to
in subsection (c) to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative
of the Secretary determines that such violation has been
abated."

1188

•

that it was in fact properly conducting such tests at all
times. The Secretary is concerned however that the tests as
performed by Helvetia were not adequate to detect the presence of methane in the cited cavity and were therefore in
violation of the standard.
The. evidence shows that the cavity or high spot had
existed for some time and extended to a maximum of 10 feet
above the 6 foot high travelway. It was supported by !-beam
rails and cribbing. Inspector Michael Bondra of the Federal
Mine Safety and Health Administration (MSHA), a ventilation
specialist, observed during the course of his inspection on
October 28, 1984, that a .hose or tube extended from the high
spot of the cavity to the ·travel way. The tube had formerly
been used in conjuction with a pump type methane monitor to
test for methane in the high spot but had not been used for
several years after Helvetia converted to the "CSE 102"
methane monitor without a pump.
Inspector Bondra climbed into the high area of the
cavity and performed smoke tube tests at various locations in
the cavity area. According to Bondra the air did not clear
out of the top 3 or 4 feet of the cavity. Since the mine
operator was performing methane tests with the CSE 102
detector from the travelway at the inby side of the cavity
Bondra concluded that the testing method was not adequate to
detect the presence of methane in the high spot where there
was no air movement. According to Bondra the test was not
sufficient because the lighter-than-air methane would collect
at the high point of the cavity and not be removed by ventilation. If the methane was not being ventilated it would not
be detecteq with the hand-held methane monitor at the .inby
side of the cavity.
Both Richard Flack, the Senior Safety Inspector for
Helvetia, and Robert Smith, Superintendent and Mine Foreman
at the Lucerne No. 8 Mine, testified that before changing
over to the CSE 102 methane monitor they personally made
numerous smoke tube tests in all areas of the cited cavity
and found in all cases that all points of the cavity including the high spots were being ventilated. Accordingly
they determined that if methane were present in those high
spots it would be detected by use of the hand-held methane
monitor at the inby end of the cavity where the air flow
exited the cavity. Indeed it was their conclusion that
because of the problems they had had with the use of the
extended tube (becoming broken and clogged .with condensation

1189

and rock dust) this method of detection was a significant
improvement.
The Secretary nevertheless maintains based on the
expert testimony of mining engineer and ventilation specialist Joseph Hadden that the operator should have known that a
smoke tube test is valid only for one point in time and that
various changes in mine conditions can alte r ventilation
patterns . According to Hadden the tests for methane must be
taken between 12 inches to 18 inches from the top of the high
spot because methane is ligh·t er-than-air- and would be
expected to accumulate near that location. Hadden pointed
out that the cribs and cross-bars supporting the caved area
would tend to obstruct air · flow into the cavity and that
methane accumulations could be pulled from the cavity into
the active workings by the vacuum created by vehicles passing·
below.
I find the expert testimony of the MSHA witnesses to be
most persuasive. Within this framework I conclude that the
method of methane testing cited in this case was indeed deficient and a violation of the cited standard. I do not however find that the violation was the result of "unwarrantable
failure". A violation is "unwarrantable" if the operator
fails to abate a condition that he knew or should have known
existed, or failed to abate because of indifference or lack
of due diligence or reasonable care. Section 104{d){l). See
Ziegler coal Corporation, 7 IBMA 280 {1977). In this regard
I accept the undisputed testimony of the operator's witnesses
that they pe+formed mapy smoke tubetests over a long period
of time in the cited cavity and found the ventilation to have
been sufficent on all occasions to move air out of the high
spot. Based on these tests and the demonstrated inadequacy
of the formerly used pump type monitor I find that the operator acted in good faith in converting to the cited testing
method.. Under the circumstances it cannot fairly be said
that the mine operator knew or should have known that the new
testing method was inadequate. Accordingly I do not find
that the violation was due to the "unwarrantable failure" of
the operator to comply with the standard. The section
104(d){l) order at bar is accordingly modified to a citation
pursuant to section 104{a) of the Act.
For the reasons discussed above I also find that the
operator was not negligent in regard to this violation. In
light of the admittedly low hazard associated with the violation, the stipulated history of violations, the large size of
the mine operator and the admitted good faith abatement of

1190

tbe violation, I find tha~ a civil penalty of $100 is
appropriate.
ORDER
The Helvetia Coal Company is hereby
civil penalty of $100 within 30 days of
decision.

to .pay a
date of this

r.d~red

Distribution:
Johns. Chinian, Esq., Off~ce · of the olicitor, u.s. Department of Labor, Room 14480..;Ga.t eway Bu1ldl,nq, 35·35 Market
Street, Philadelphia, PA · 19104 {Certified Mail)
William Darr, Esq., Rochester & Pittsburqh Coal company, 655
Church Street, Indiana, PA 15701 (Certified Mail>
rbg

··:

1191.

.

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

RICHARD A. FRAME,
. .._ Complainant

DISCRIMINATION PROCEEDING

.:
.

.v.

CONSOLIDATION COAL COMPANY,
Respondent

AU61 2 1985

Docket No. PENN 85-112-D
MSHA Case No. PITT CD 85-1

:

DECISION
Appearances:
··,
Before:

Russell I. · Jenkins, Esq., Uniontown, Pennsylvania,
for Complainant;
Karl T. Skrypak, · Esq., Consolidation Coal Corporation, Pittsburgh, Pennsylvania, for Respondent.

Judge Melick

This case is before me upon the complaint of Richard A.
Frame, pursuant to section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the
"Act," alleging that he was discharged by the Consolidation
Coal Company (Consol) on October 29, 1984, in violation of
section 105(c)(l) of the Act . l
In order for the Complainant to establish a prima facie
violation of section 105(c)(l) of the Act, he must prove by a
preponderance of the evidence that he engaged in an activity
protected by that section and that his discharge was motivated in any part by that protected activity. Secretary ex
rel David Pasula v. Consolidation coal Company, 2 FMSHRC 2786
(1980), rev'd on other grounds sub nom. Consolidation Coal
Company v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). See also
Boitch v. FMSHRC, 719 F.2d 194 (6th Cir. 1983), and NLRB v:-Transportation Management corporation, 462 u.s. 393 (1983),
!section 105(c)(l) of the Act provides in part 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 • • • in any coal or other mine
subject to this Act because such miner • • • has failed or
made a complaint under or related to this Act, including a
complaint notifying the operator or the oper-ator's agent, • • •
of an alleged danger or safety or health violation in a coal or
other mine • • • or because _of the exercise by such miner • • •
on behalf of himself or others of any statutory right afforded
by this Act.

1192

affirming burden of proof allocations similar to those in the
Pasula case.
In this case Mr. Frame asserts that he refused to
comply with his supervisor's work order to move a power cable
for the roof bolting machine because of what he perceived to
be a hazard of shock or electrocution. Since he was
admittedly discharged in part because of that work refusal,
Frame argues that his discharge was therefore based at least
in part upon his exercise of an activity protected by the Act.
A miners exercise of the right to refuse. work is a protected
activity under the Act so long as the miner entertains a good
faith, reasonable belief that to work under the conditions
presented would be hazardous. Robinette v. United Castle
Coal Company, 3 FMSHRC 803 (1981).
Consol does not dispute that Mr. Frame was discharged
in part because of his refusal to carry out the noted work
order but argues that the directed work was not in fact
hazardous and that Mr. Frame did not entertain a good faith,
reasonable belief that to perform the work would have been
hazardous. A question also exists as to whether Mr. Frame
properly notified his supervisor of the reasons for his work
refusal in accordance with the Commission decision in
Secretary ex rel Dunmire and Estle v. Northern Coal Company,
4 FMSHRC 126 (1982).
On October 29, 1984, Richard Frame was assigned to work
on the midnight shift under Section Foreman Kirby Cunningham
as a general inside laborer/bratticeman. Frame was directed
to the tail track to help the roof bolters load supplies for
the roof bolting machine. He was later seen helping to load
the supplies onto the scoop. cunningham saw Mr. Frame about
5 minutes ·later, at approximately 1:50 a.m., standing near a
rib, conversing with another miner.
Cunningham then told Frame to help the roof bolters
move the roof bolting machine and its cable, and to help load
supplies onto the machine. Frame did not respond but walked
toward the roof bolting machine. Cunningham left at this
point and went to the belt area to check on the feeder. When
he later returned he saw a fluorescent light where the roof
bolter had been located indicating to him that the machine
had not yet been moved. He saw one of the roof bolters start
to tram the scoop and the other roof bolter start to tram the
roof bolter. Meanwhile, according to Cunningham, Frame was
just standing against a rib. Indeed Frame admits that he was
just standing around waiting to see what was · happening.
Cunningham then asked Frame why he was not helping to move
the cable for the bolt·ing machine. He told Frame that they

1193

needed help moving the machine cable that was hung across the
entries.
According to Cunningham, Frame ·responded that he was
sent to the section as a Bratticeman, that he only hangs
tubing and that he does not touch energized cable.
Cunningham again - told Frame that he wanted him to help move
the cable- and told him to do what he was told. Frame
repeated that he did not handle energized cable and told
cunningham to call him a jeep. According to cunningham he
then asked whether Frame did not want to work. Frame purportedly responded "call me ·a jeep Mother Fucker, I don't
handle energized cable . " Cunningham then told Frame that
refusing to work and using abusive, profane language was a
dischargable offense. Frame responded "call me a jeep, I'm
sick, can't you hear?" Cunningham then told Frame that his
time would be stopped because he failed to perform the work
he had been directed to perform and because he used abusive,
and obscene language.
Frame did not appear to Cunningham to be sick at this
time, did not say what was wrong with him other than high
blood pressure and declined to see a doctor. Frame was given
another chance to return to work but just laughed and said
nothing. He then boarded a jeep and was taken out of the
mine . His work time was stopped at approximately 2:05 a.m.
According to Frame he went up to the face after loading
supplies for the roof bolters, just as he had been told, and
was stanqing around when Foreman Cunningham came up to him.
Cunningham then told him that he was to help the roof· bolters
load supplies and help with the cable. According to Frame he
then responded that he was afraid to handle wet energi.zed
cable and at this point Cunningham "blew up", started yelling
and stated over and over "do you know what you just did?"
Frame alleges that because of Cunningham's reaction he did
not have a chance to explain why he was afraid to handle
energized cable. He explained at hearing that he was afraid
to handle energized cable because he ·had been shocked by a
cable the week before and wanted to have rubber gloves before
handling it. He does not dispute that rubber gloves were
available on the section and that Cunningham himself had a
pair on him at the time. Frame alleges however that he did
not have a chance to ask for the gloves.
·
Mr. Frame readily concedes that it would not have been
hazardous for him to have moved the subject cable with rupber
gloves. He further concedes that he did not · request such
gloves from cunningham or indicate in any way that the reason
for his work refusal was his not having such gloves. It is
not disputed, moveover, that Cunningham then had on his

1194

person a pair of rubber gloves, that other rubber gloves were
also available on the section at the time and that had Frame
requested such gloves, they would hav~ been made available.
Frame's contention that he did not request rubber
gloves because Cunningham gave him no time to make such a
request is not· cr~dible.2 Frame himself testified that
the verbal exchange between he and Cunningham continued for
some period of time and that he did not actually leave the
mine until some time later. Indeed he complained that
Cunningham actually delayed .t he arrival of the jeep to take
him out of the mine.
Under the circumstances I cannot find that the designated work assignment was hazardous. At no time was Mr.
Frame denied the use of rubber gloves which even he concedes
would have eliminated any hazard associated with the task.
Mr. Frame's failure to have requested rubber gloves also
demonstrates clearly that he did not act in good faith in his
work refusal. Accordingly the charges o discriminatory
discharge must be denied and this case d·smissed.3

/~
Law Judge

2Frame's credibility is further erroded by the testimony of
his own witness, Stanley Stockdale, who heard Frame direct
profanity toward Foreman Cunningham •. Frame had denied using
such language.
3These findings are made completely independent of the decision of arbitrator Ralph E. Pelhan on November 26, 1984, and
of the determination of ineligibility for unemployment insurance benefits by the Pennsylvania Department of Labor and
Industry on November 26, 1984 (and subsequent decisions
reviewing that determination). Adequate records of those
proceedings were not made available to the undersigned who
therefore was unable to fully evaluate those proceedings in
accordance with the guidelines set forth in Hollis v.
Consolidation Coal Company, 6 FMSHRC 21 (1984).

1195

Distribution:
Russell I. Jenkins, Esq., 78 East Main Street, Uniontown, PA
15401 (Certified Mail)
·
Karl T. Skrypak, Esq., Consolidation Coal Company, 1800
Washington Road, .. Pittsburgh, PA 15241 (Certified Mail)
rbg

1196

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

AU6131985.

..
.:•
.
.

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

v.

0

0
0

VALLEY CAMP COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. WEVA 84-352
A.C. No. 46-061 03-03508
Valley camp No. 45
Surface Mine

:

VALLEY CAMP COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
0
0

:

v.

.
..
.:
0
0

Docket No. WEVA 84-168-R
Order No. 2127007; 3/6/84

0

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

Docket No. WEVA 84-169-R
Order No. 2127008; 3/6/84

0

0

:

:

.

Docket No. WEVA 84-170-R
Citation No. 2127009; 3/6/84
Docket No. WEVA 84-172-R
Citation No. 2352241; 3/7/84

0

.:

Docket No. WEVA 84-173-R
Citation No. 2352240; 3/7/84

0

:

No. 45 Surface Mine

DECISIONS
Appearances:

Janine c. Gismondi, Esq., u.s. Department of·
Labor, Office of the Solicitor, Philadelphia,
Pennsylvania, for the Petitioner-Respondent;
Laura E. Beverage and Allen R. Prunty, Esqs.,
Jackson, Kelly, Holt & O'Farrell, . Charleston,
West Virginia, for the Respondent-Contestant.

Before:

Judge Koutras .
· Statement of the Proceedings

These consolidated proceedings concern civil penalty
proposals filed by MSHA against the Valley Camp Coal Company

1197

pursuant to section llO(a} of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 820(a}, seeking civil
penalty assessments for four alleged violations of certain
mandatory safety standards promulgated pursuant to the Act.
The proceedings also include five contests filed by Valley
Camp Coal Company challenging the legality of the citations,
and an imminent danger order issued pursuant to section
107(a) of the Act.
Dockets WEVA 84-169-R, WEVA 84-170-R, WEVA 84-172-R,
and WEVA 84-173-R concern the contested citations, with
"S&S" findings, issued pursuant to section 104(a} of the
Act, and Docket WEVA 84-168-R, concerns the validity of the
imminent danger order. The civil penalty proceeding,
WEVA 84-352, concerns the proposed civil penalty assessments
for the four contested citations.
Hearings were held in Charleston, west Virginia, on
March 12 through 14, 1985, and April 1 through 4, 1985. The
parties were afforded an opportunity to file post-hearing
proposed findings and conclusions, and the arguments presented therein have been carefully considered by me in the
course of these decisions.
Issues
The issues presented in these proceedings are as
follows:
1. Whether or not the conditions and practices
cited in the imminent danger order constituted an
imminent danger within the meaning of section
107(a) of the Act.
2. Whether or not the conditions or practices
described in the citations issued pursuant to
section 104(a) of the Act constituted violations
of the cited mandatory safety standards, and if
so, whether or not these violations were significant and substantial.
Additional issues raised by the parties are identified
and disposed of in the course of these decisions.
·Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
P.L. 95-164, 30 u.s.c. § 801 ~ seg.
2.

Commission Rules, 29 C.F.R.

' .1198

§

2700.1 et seg .

Stipulations
The parties agreed that Valley Camp Coal Company is
subject to the Act, and that the p_r esiding Judge has
jurisdiction to hear and decide these cases. They also
agreed as to . the identification, authenticity, and admissibility of their respective hearing exhibits. Any objections to · the .admissibility of any documentary exhibits were
heard and disposed of during the course of the hearing, and
they are noted where relevant in the findings and conclusions made in these proceed~ngs.
The order and citations at issue in these proceedings
are as follows:
WEVA 84-168-R
Section .1 07 (a) Imminent Danger Order No. 2127007,
issued on March 6, 1984, states as follows:
The investigation of a fatal haulage accident
at this mine revealed that the following conditions collectively constitutes an imminent danger:
the haulage roadway extending from the coal pit
was not constructed of material selected to insure
stability in that a section of the roadway
200 feet outby the pit was constructed of spoil
material with cracks and slips along the elevated
edge, the width of the roadway was reduced from 25
to 14 feet where the rock haulage truck involved
in the ' fatal accident slipped from the roadway
surface resulting in crushing injuries to the
operator as the truck overturned while descending
the ·elevated embankment. § 77.1605(k). The berm
provided along the outer edge of the elevated
roadway was not adequate to retain the heavy
equipment utilizing the roadway in that loose,
unconsolidated earth material was used to construct the berms.
§ 77 . 1600(c) .
The haulage roadway involved
in the accident was not conspicuously marked or
warning_devices installed to insure the safety of
the workers in that the roadway width was reduced
from 25 to 14 feet 2 inches with no markers or
devices to indicate the change.
§ 77.1713(a).
At least once during each
working shift an adequate examination was not made

1199

by Ray Hanshaw, day shift foreman, 9r Lewis
Maggard, 2d shift foreman, in that the foreman had
traveled the area of the roadway included in the
fatal accident and had taken no ac.t ion to mark the
narrow areas, repair the unstable berms, or correct unstable roadway.
WEVA 84-169-R
Section 104(a) Citation No. 2127008, with "significant
and substantial 11 (S&S) findings, citing a violation of mandatory safety standard 30 C.F.R. § 77.1605(k), was issued on
March 6, 1984, and the conditions or practices cited are as
follows:
The berms provided along the outer bank of the
elevated roadway was not adequate to restrain the
heavy equipment utilizing the road in that loose,
unconsolidated earth spoil material was used to
construct the berms. This condition was one of
the factors that contributed to the issuance of
Imminent Danger Order No. 2127007 dated 3-6-84;
therefore no abatement time was set.
WEVA 84-170-R
Section 104(a) Citation No. 2127009, with "significant
and substantial" (S&S), findings, citing a violation of mandatory safety standard 30 C. F.R. § 77.1600(c), was issued on
March 6, 1984, and the conditions or practices cited are as
follows:
The haulage roadway leading to the pit in a fatal
accident area was not conspicuously marked or wa~n
ing devices installed to insure the safety of the
workers in that the roadway width was reduced from
25 feet to 14 feet and 2 inches, without markers
or devices to indicate the change. This condition
was one of the factors that contributed to the
issuance of Imminent Danger Order No. 2127007
dated 3-6-84; therefore no abatement time was set.
WEVA 84-173-R
Section .l04(a) Citation No. 2352240, with "significant
and substantial" (S&S), findings, citing a violation of mandatory safety standard 30 C.F.R. § 77.107-1, was issued on
March 7, 1984, and the conditions or practices cited are as
follows:

•1200

Roy Hanshaw, whose work assignments require that
he be certified or qualified has not received the
required annual trai~ing under -part 77.107-1 for
certified persons in that Mr. Hanshaw has not
received annual training courses in the tasks and
duties · ~hich he performs at this mine as a certified person since December 4, 1982 .
WEVA 84-172-R
Section 104(a) Citation No. 2352241, with "significant
and substantial" CS&S), findings, citing a violation of mandatory safety standard 30 C.F.R. § 77.701-1, was issued on
March 7, 1984, and the conditions or practices cited are as
follows:
Louis Maggard, evening shift foreman at this mine
work assignments require that he be certified or qualified has not received the required
annual training under part 77.107-1 for certified
persons in that Mr. Maggard has not received
annual training courses in the tasks and duties
which he performs at this mine as a certified
person since December 4, 1982, and therefore has
not been trained within the past 12 months.
whos~

Procedural Rulings
When the hearing was convened on Tuesday, March 12,
1985, MSHA'.s counsel .moved to amend the civil penalty
proposals to allege a violation of section 77.107, as an
alternative to the original citation of section 77 . 101-1, in -connection with citations 2352240 and 2352241. In support
of the motion, counsel asserted that both sections deal with
training programs and may be read and considered together,
and that any evidence adduced during the course of the ·
hearing in support of the citations could be used to support
violations of either section 77.107 or section 77.107-1, and
that the respondent would not be prejudiced since the citations have been abated and respondent's counsel had been
previously notified that MSHA would seek to amend the
pleadings to conform to the evidence.
Valley Camp's counsel objected to the proposed amendments to the pleadings, and after hearing arguments on the
record, the objections were overruled and MSHA's motion to
amend was granted from the bench. My ruling in this regard
is reaffirmed. I believe it is clear that under Rule 15(b)
of the Federal Rules of Civil Procedure, which apply to this
case, 29 C.F.R. § 2700.l(b), I have the authority and duty

'1201

to consider issues raised by the evidence, even if they are
not specifically pleaded. Further, in view of the fact that
Valley Camp was on notice of the proposed amendment and
abated the cited conditions, I cannot conclude that Valley
Camp has been prejudiced. The courts have liberally construed the . rules concerning pleadings, and have held that
they are easily amended, National Realty and construction
Company, Inc. · v. Occupational Safety and Health Review
Commission, 489 F.2d 1257 (D.C. Cir . 1973).
Valley Camp's counsel ·also raised an objection to the
testimony of MSHA's witness, Dr. wu. The basis for the
objection was the assertion that Valley Camp was not specifically informed during the discovery in this case that MSHA
intended to call any expert witnesses. In addition, counsel
asserted that she had no opportunity to depose Dr. wu, and
that absent this opportunity, she was ill-prepared to prepare for his testimony, or to challenge it.
While it is true that Valley Camp's counsel was advised
aproximately a week or so in advance of the hearing that
MSHA intended to call Dr. Wu as a witness, Valley Camp's
counsel did accompany Dr . wu during a site visit to the mine
on Monday, March 11, 1985, the day before the commencement
of the hearing, and had an opportunity to speak with him.
It is my understanding that Valley Camp's counsel did in
fact speak with Dr. Wu concerning his knowledge of the facts
of this case, and that MSHA's counsel had made a profer
concerning or. Wu's testimony.
After further consideration of Valley Camp's objections
to or. Wu's testimony, it was denied. In addition, Valley
Camp's motion for a continuance of the hearing in order to
afford Valley Camp an opportunity to depose Dr. wu was likewise denied. My rulings in this regard are based on my
belief that Valley Camp had adequate knowledge as to the
nature of Dr. Wu's testimony, and had a full and fair opportunity to cross-examine him. In addition, the parties were
advised that I have discretion to weigh Dr. Wu's testimony
in light of his knowledge, or lack thereof, of any specific
facts of the case, and that any further continuance of the
hearings for the purposes of deposing Dr. Wu was not
warranted. ·
MSHA's Testimony and Evidence
MSHA Inspector Homer S. Grose testified as to his background and experience, and he confirmed that he has been an
inspector since 1971, and that his experience includes
inspections of underground and surface mines. He has

1202

received training, and has attended surface m~n~ng training
sessions at MSHA's Beckley Mine Academy and Belmont
Technical College. Prior to his employment as an inspector,
he was employed in the private mining industry, and has
worked as a general laborer, jack setter, section foreman,·
and mine foreman, and he confirmed that he is a certified
mine foreman.
Mr. Grose stated that his prior mining experience
includes employment in 1969 with the engineering department
of the Island Creek Coal Company . This experience included
work in underground and surface mine surveying, and he has
worked as a roadman and transitman.
Mr. Grose confirmed that he issued the imminent danger
order, the citation for insufficient berms, and the citation
for lack of warning devices on the haulage road where a
fatal accident occurred on March 5, 1984 (exhibits G-1, G-2,
G-3>. He stated that these citations were issued after the
completion of an accident investigation on March 6, 1984
(exhibit G-7). He confirmed that he was in charge of the
investigation and authored the report. The evaluations,
discussion, and conclusions which are in the report are
based on information and statements he received from miners
and management representatives interviewed during the cours~
of the investigation.
Mr. Grose identified exhibit G-4 as a series of 25 photographs taken during the course of the investigation on
March 6, 1984, and he explained what was portrayed in each
of the photographs. He also explained the basis for each of
the numered "evaluations" discussed in numbered paragraphs 1 ·
through 6 of his report of investigation, and confirmed that
the information and conclusions stated therein were obtained
through his interviews conducted during the investigation.
He confirmed that he did not view the haulage road in question prior to ·the accident, and that all of the information
and evidence to support the order and citations which he
issued was obtained after the accident during his
investigation.
Mr. Grose testified that he issued the imminent danger
order because the information he developed during the course
of his investigation indicated to him that the roadway was
not designed and constructed in a manner consistent with
prudent engineering practices. He also believed that the
roadway berms were constructed of loose, unconsolidated
materials, and that there was loose spoil materials consisting of wet materials, rocks, and loose dirt, which had
slipped along the edge of the roadway at the location where

1203

the haulage truck in question had run off the road. He also
determined that one portion of the haulage road had been
reduced from a width of 25 feet to 14 feet 2 inches, and
that this area was not marked or oth.erwise provided with
warning devices to alert or warn the truck drivers. Given
these conditions, plus the fact that mine employees
reportedly were- reluctant to use the road after the
accident·, he decided to issue the order so as to preclude
further -use of the road until the conditions could be
corrected.
Mr. Grose stated that he measured the axle height of
the haulage truck which ran off the road and determined that
the distance from the road vertically to the mid-axle of t .h e
truck was 22 inches . His measurements of the existing berm
heights along certain locations on the roadway were 24
inches, 14 inches, and 18 inches, and the 14 and 18 inch
measurements were in the proximity of that portion of the
roadway where the truck tires made marks in the roadway
before going off the edge. He issued the berm citation
after determining that the berm height at the point where
the truck left the road was not 22 inches high, and he
confirmed that this mid-axle berm height requirement was not ·
in compliance with MSHA's policy guidelines. In addition,
he was of the opinion that the berm heights were also insufficient in that the driver of a truck would have difficulty
seeing the berm and would be unable to distinguish it from
the roadway itself. The inability of the driver to distinguish the berm would impact on safety since the driver would
not be able to use the berm to restrain his vehicle.
With regard to the citation for inadequate warning
devices on the narrow portion of the roadway, Mr. Grose
confirmed that he found no evidence that any such warning
devices had ever been installed, and he indicated that mine
management did not disagree with his finding in this regard.
Mr. Grose identified exhibit G-8 as a copy of his notes
made during the course of his investigation, and he explained how he made his measurements concerning the noted
widths of the roadway. He confirmed that the measurements
recorded by the mine operator were close to his and only
differed .by a matter of inches. He explained that the
differences were the result of the precise locations and
reference points used to make the measurements, and he did
not believe that such differences were significant or
material (Tr. 58-185).
On cross-examination, Mr. Grose conceded that he had no
personal knowledge as to how the haulage road in question

1204

was originally constructed, and he confirmed that no tests
or other determinations were made to ascertain the specific
materials used in the construction of the haulage road. He
stated that he was concerned over the fact that the roadway
was not provided with any drainage ditches to allow for
water drainag.e , and he was of the opinion that any water
accumulations . on . the roadway would ·tend to undermine its
stability and would contribute to the slippage of the spoil
materials used to support the roadway.
Mr. Grose confirmed tnat he was not present during the
abatement of the order or the citations which he isued.
However, he stated that he learned from the inspector who
abated the citations that. spoil materials were used to
construct and repair the roadway, and that the spoil was cut
from the highwall side of the haulageway to widen it at the .
point where it was originally narrow. He conceded that the
same spoil materials used to originally construct the ·
roadway were also used to achieve abatement, but that the
materials were compacted and consolidated by a bulldozer to
insure stability.

Mr. Grose believed that the failure of the outer edge
of the roadway, the inadequate berms, and the narrow roadway width all contributed to the fatal accident. In his
opinion, the failure of the roadway was due to the lack of
prudent engineering design.
Mr. Grose stated that the ground geology and terrain
will .affect the condition of a roadway, and he conceded that
in a contour surface mine such as the No. 45 mine, there is
limited room to move equipment on the roadways. He also
confirmed that such factors as the speed of the true~, the
skill· of the driver, and his knowledge of haulage procedures
should all be considered in determining the safe ~tilization
of the roadway.
Mr. Grose indicated that he determined that the
accident victim Bruce Hartwell had driven trucks on the
haulage road in question at least two weeks prior to the
accident, and that the roadway was changing during this
period of time in that portions of the roadway were slipping
and failing •.
Mr. Grose confirmed that his investigation revealed
that at least one ground slip had ocurred on the roadway at
least two weeks prior to the accident when the roadway was
constructed. He also confirmed that an unidentified
employee advised him that another slip had occurred at the
accident area, or in close proximity to the location where

1205

the truck left the roadway, and that drivers were reluctant
to use the roadway. The condition was corrected by moving
spoil material from the adjacent bank into the affected
portion of the ro'a dway which had failed. The roadway was
also widened in this same manner at that time.
Mr. Gi:'ose ...stated that he measured the roadway width at
the location where the truck went over and that it was
14 feet, two inches wide. He identified the map included as
part of the accident report (G-7), and stated that he had
"no problem" with the accuracy of the measurements or the
information shown on the map.
Mr. Grose identified photograph No. 3 in exhibit G-4 as
the tire tracks of the truck as it left the road. He also
confirmed that photographs numbered 3, 6, and 10 show no
evidence of any braking or sliding by the truck. He
believed that the weight of the loaded truck expedited the
road fail.ure process, and that other factors, including
standing water, indicated that the roadway was failing. He
conceded that his order and accident report do not state
that the presence of any water, or lack of adequate water
drainage, were factors contributing to the failure of the
roadway.
Mr. Grose confirmed that he had no knowledge of the
mine haulage procedures, but that a mine representative
advised him that the general widths of the mine haulage
roads were 20 to 30 feet wide. In response to further questions, he stated that given the history of roadway slippage,
and given the fact that heavy equipment used the roadway,
which was slick and wet, he would have insured that the roadway materials were compacted, and he would have sought
advice from "higher mine m~nagement" as to how to maintain
the roadway in a safe condition.
Mr. Grose was of the opinion that the roadway berms
should be high enough to permit the equipment operators to
visually observe them so that the trucks would be deflected
back onto the roadway in the event they encountered the berm.
In his opinion, the berms should have been constructed with
a wide base, and at heights of six to eight feet. He also
believed that the mine operator should have made a better
selection or materials to construct the roadway, and should
have insured that the materials were adequately compacted.
He confirmed that he did not survey all of the berms along
the haulage roadway in question.
Mr. Grose stated that an eyewitness to the accident had
stopped his truck on the outer portion of the roadway to
allow the right of way to the loaded truck which went off

1206

the road to pass between him and the base of the spoil bank
on the inside of the roadway, and that this was a standard
practice (Tr. 185-320; 335-445).
MSHA Inspector Beauford T. Slaughter testified that he
has 18 years of experience in surface mining and that he has
been employed .as an MSHA surface mining inspector for
10 years. His prior mining experience includes work as a
shift foreman and equipment maintenance work. He confirmed
that prior to the accident he last inspected the No. 45 mine
in July 1983, but the roadway was not inspected because mining had not yet progressed · that far and the road was not as
yet built.
Mr. Slaughter confirmed that he assisted Inspector
Grose during his accident investigation and helped him make
his measurements. He also confirmed that he reviewed the
mine training records on foremen Roy Hanshaw and
Louis Maggard and found no evidence to establish that they
had recefved annual refresher training as required by MSHA's
Part 77 regulations . Company records indicated that they
last received training on December 14, 1982 (exhibits G-11
and G-12).
Mr. Slaughter identified exhibit G-12 as the MSHA
approved training program for the mine. He asked mine
management for evidence of any training received by the two
individuals subsequent to 1982, and when it could not be
produced he issued the citations . He believed that the
.
negligence was moderate because he was not sure whether the
two individuals were . not trained or whether the company
records were lost. The citations were terminated by another
inspector after the training was given.
Mr. Slaughter confirmed that he terminated Mr. Grose's
imminent danger order after meeting with MSHA and State of
West Virginia officials and verifying that proper abatement
methods were followed. The affected road materials ·were
removed by a bulldozer, but he did not observe the entire
reconstruction of the roadway and was only present for part
of the abatement. He observed the materials used to repair
the roadway, and he described them as a "grey, slate-like
material." The material he observed on the outer edge of
the roadway·which had failed was different material, and
upon observation prior to the abatement, it appeared to be
brown in color, and appeared to be loose spoil and rock. He
also believed that the materials used to construct the
outside edge of the roadway was different from the materials
used on the inside portion of the roadway. ·The outside
roadway portion consisted of soft materials incapable of

1207

holding the truck, and he believed that this portion of the
roadway was unsafe.
Mr. Slaughter stated that he was only present for a
half hour during the abatement, but he believed the dozer
dug up the roadway which needed to be repaired to a depth of
two to three feet . After the abatement was completed, he
observed that the berms were constructed higher and larger
than they were at the time of the accident, and while he did
not measure them, he believed that after abatement, the
berms were three to four feet high, with a three foot base.
All of the old berm was taken out and replaced during the
abatement. After the roadway slipped, he considered it to
be unsafe.
Mr. Slaughter confirmed that he regularly inspected the
mine at least two times a year, and he did not believe it
was unusual for a roadway to permit the passage of only one
truck at~ time. After abatement, · the roadway was 16 to
18 feet wide, and stakes with signs stating "one lane
traffic" were installed where the roadway permitted the
passage of only one truck at a time (Tr. 489-490). With
regard to the training citations, Mr. Slaughter stated that
he would have accepted the State certifications for medical
techician training in lieu of the required first aid training, but that he did not know about these certifications
when he issued the citations (Tr. 452-495).
On cross-examination, Mr . Slaughter confirmed that
prior to the accident, he had visited the mine on at least
20 or more .occasions .during his inspections. He indicated
that the last page of the training plan covers the required
"Part 77" training requirements. He believed that the cited
mandatory standard requires annual training for both-qualified and certified persons, and he conceded that Mr. Hanshaw
and Mr. Maggard were "certified persons" under the
applicable state law.
Mr. Slaughter testified as to what he believed the
training requirements under Parts 77 and 48 to be (Tr.
496-500; 509-512). He confirmed that he found no evidence
that the two cited individuals had been trained in 1983, and
that this formed the basis for the citations <Tr. 517-519).
He believes that "refresher training and retraining" are
synonymous terms <Tr. 520).
Mr. Slaughter confirmed that he terminated the imminent
danger order, and he described the area where the abatement
work took place (Tr. 526-535). He confirmed . that he never
issued any previous citations at .the mine for narrow road

. 1208

widths, and he could not recall whether he had issued any
previous berm citations (Tr. 538).
Mr. Slaughter stated that in order to satisfy the
requirements of Part 77, certified individuals have to
undergo training under Part 48, and that this training could
be used fo~ · ~e~tified individuals (Tr. 544}. He explained
the different provisions of the applicable training program,
and the operator's obligations pursuant to the plan (Tr.
545-551).
James w. Westfall, testified that he was employed at
the No. 45 surface mine in March 1984, and that he started
work there on February 8, 1984. He was employed as a truck
driver, and was at work on the evening shift on the day of
the accident. He confirmed that he operated one truck along
the haulage road, and that the accident victim, Bruce
Hartwell, operated a second truck. Mr. Hartwell made the
first trip, and Mr. westfall made the second one.
Mr. Westfall stated that immediately before the
accident he pulled his truck over to the outside portion of
the roadway in anticipation of Mr. Hartwell passing him on
the inside between his truck and the spoil bank.
Mr. Westfall identified photograph No. 2 in exhibit G-4
as the area where his truck was stopped, and he stated that
he first observed Mr. Hartwell as he came around the curve
in the roadway at the area shown in the top of photograph
No. 22, and that he was travelling at an approximate speed
of 5 to 10 .miles per .hour.
Mr. Westfall stated that he observed Mr. Hartwell
attempt to get out of the truck as it began to leave.the
roadway, but he could not state precisely where he saw Mr.
Hartwell on the roadway when he first observed .h im because
he was not paying close attention to him. He stated that
Mr. Hartwell attempted to get back onto the roadway after
his truck was at the edge of the roadway, and that his front
wheels were cut to the left towards the roadway. He
believed that Mr. Hartwell had skidded over to the edge of
the roadway, but that he was over "too far," and that is
what caused him to skid towards the outer edge. He believed
that Mr. Hartwell was "on or close to" the berm, but he was
not sure whether he skidded or drove off the edge of the
roadway.
Mr. Westfall stated that it appeared that Mr. Hartwell's truck "took out the berm" and that the truck appeared
to begin to turn over "in slow motion" as it began to go

over the edge . Mr . Westfall indicated that the roadway
surface was wet and that there was a "drizzly" rain all day.
Mr . westfall stated that when he travelled the roadway
he always stayed away from the berm because the presence of
the berm indicated to him that this was an area to stay away
from. He confirmed that he never encountered any problem
dri v ing through the accident area, and that he would be
approximately a foot from the berm as he would pass along
the roadway near the scene of the acident.
Mr. Westfall stated that a loaded · truck a·l ways has the
right of way on the roadway and that empty trucks always
stayed to the outside to permit loaded trucks to pass to the
inside. There are several narrow road locations where empty
trucks pull· over to yield the right of way to loaded trucks
coming in the other direction.
Mr. westfall confirmed that he had worked with
Mr. Hartwell in the past and that he considered him to be a
good driver, and he was not aw~re of any problems with
Mr. Hartwell's driving ability. Mr. Westfall also confirmed
that drivers normally do not wear seat belts.
Mr . Westfall identified exhibit G-13 as a statement he
signed for the Kanawha County Sheriff's office after one of
its representatives interviewed him during the course of the
accident investigation. Mr. Westfall stated that after the
accident, he would not drive his truck on the roadway
because he was too "shook up" (Tr. 557-580).
.
.
On cross-examination, Mr. Westfall identified photograph No.2, exhibit G-4, as an area where he knew that only .
one truck could pass. He stated that a loaded truck-should
always "haul toward the spoil," and that he would always
stop in a wide area with an empty truck and wait for the
loaded truck .
Mr. Westfall stated that after he stopped his truck to
wait for Mr. Hartwell, the mine superintendent passed hi m in
a Ford Bronco shortly before Mr. Hartwell came around the
curve (Tr. 587). Mr. Westfall confirmed that he had never
driven into the berm and never experienced any trouble in
traversing the roadway. Although safety meetings are
normally held on Mondays, Mr. Westfall could not specifically recall whether such a meeting was held on the day of
the accident.
Mr. Westfall confirmed that he had also driven over the
other mine haul roads, and that there were several places

1210

where only one vehicle could pass, and that he did not consider this to be unusual. He also confirmed that he had
worked at other mine sites and the road construction at
those mines was similar to the road -construction in question
in this case (Tr. 586).
Mr. we·stfall stated that when he observed Mr. Hartwell's truck close to the outer edge of the roadway, there
was room close to the spoil side, and he indicated that
"there was bound to have been room over there" (Tr. 589).
Eric v. Augustine, was called as Valley Camp's witness,
and he testified that he is now laid off from his job at the
Valley Camp Coal Company, but that prior to December 1984,
he was the ·chief engineer,and was employed in this capacity
on the day of the accident. He is a graduate of Lehigh
University, with an inter-disciplinary degree in mechanical·
engineering and systems level biology. He was informed of
the accdent by a telephone call to his office located in the
town of Shrewsbury, some 15 .minutes from the mine site. He
went to the accident scene the next morning and accompanied
the inspection team during its investigation. He was with
Inspector Grose for approximately 35 to 45 minutes while
conducting a preliminary visual inspection of the accident
scene. Mr. Grose then asked him to -produce a map of the
area, and since Mr. Grose indicated that he wanted a scale
map which would fit in a folder, · Mr. Augustine took this to
mean a map 8-1/2 by 11, or "legal size." Mr. Augustine
believed that this w~uld be difficult to produce, and after
further discussion, it was agreed that the map would be to
"20 foot scale," with "five foot contour" lines. Mr. Grose
also suggested that the location of berms be included on the
map, as well as other information concerning the accident
<Tr. 594-605 >.
Mt. Augustine stated that he "stayed close" to the
inspection party the day after the accident so that he could
take notes and listen to what may be required to produce a
map, and he confirmed that he began the actual site survey
after the inspection party left at noon that same day. His
survey crew consisted of a rodman, ·a transitman, and a
draftsman who took notes, and they were all experienced men.
Mr. Augusttine supervised them during the survey (Tr.
608-610).

Mr. Augustine stated that the map which appears as part
of MSHA's accident· report . (exhibit G-7), was not the final
map he produced, and he indicated that it was a reduced
photocopy of his map (Tr. 614). He stated that he could not
make any measurements from the map in the accident report,

•1211.

and that he would need the original map to verify distances
accurately.
With regard to his original map, exhibit .A LJ-1,
Mr. Augustine stated that the single asterisk numbers are
primarily road widths measured by his crew during the survey
(Tr. 623). · The double asterisks are MSHA's measurements
(Tr. 632). In ·response to questions concerning some of his
measurements, Mr. Augustine stated that the measurements
depict an area from the .outermost discernible tire tracks on
the road. He explained that he used these measurements
because prior to contour surface mining, "a dirt road is
where there are tire tracks, not a flat area" (Ti. 626). He
explained further that a road was not considered to be the
width of the bench, but rather, the area where the vehicles
traveled. This distance was determined by measuring the
outside-to-outside tire tracks or "usable roadway" (Tr. ·
626).
Mr. Augustine explained how he plotted the elevation
contour lines shown on his map (Tr. 634-646). He conceded
that he could not tell what type of vehicle made the tire
tracks shown on photogr.a phic exhibit CR-3, and he marked the
areas on the photograph where he placed his tape measure to
measure the width of the useable roadway, and he explained
how the distances were determined (Tr. 662-665). When asked
whether anyone measured between the two points drawn on the
exhibit, Mr. Augustine stated that "I measured the tire
tracks" (Tr. 667). He also explained his observations as he
watched ·Inspector Grose make his measurements with a cloth
tape (Tr. 668-670).
Mr. Augustine stated that he and his crew took three
and one-half hours to survey the accident area, and ~hat he
applied acceptable survey practices in making his map CTr.
671). He confirm~d that the subject surface mine is adjacent · to a nearby underground mine and that there are known
surveyed elevations within the underground mine. He also
confirmed that Valley Camp has done extensive core drilling
operations to ascertain "the dip of the coal" (Tr. 673). He
stated further that any water below the surface would tend
to collect to the base of the highwall, and that the horizon~
tal distance from the base of the highwall to the outermost ·
edge of the ·bank where the truck went over was 13 0 to 14·0
feet (Tr. 675).
On cross-examination, Mr. Augustine explained the
significance of the "certification" process for mine maps,
and he confirmed that the map which is a part of MSHA's
investigative report is not "certified" (Tr. 683). He

1212

confirmed that he is not a registered engineer or surveyor,
and that none of his survey crew were registered surveyors
(Tr. 684). He reiterated the significance of the elevation
contour lines as shown on the map which he produced, and he
explained how the information appearing on the map was
obtained (Tr. 685-693). He confirmed that the contour lines
are of no us·e in determining the width of the roadway {Tr.
693).
In response to questions concerning any discrepancies
in his measurements of the width of the roadway, and those
made by Inspector Grose, Mt. Augustine indicated that it
would depend on the point of reference used in the measurements, and that measuring from tire track to tire track, as
opposed to measuring from the base of the spoil bank . to the
berm would account for some of the differences and discrepancies {Tr. 720-724). He also believed that his measurements ·
were more accurate than the inspector's, and that it was
possible that the person holding the other end of the
inspector's tape measure may· have been standing two feet
from the end of the road (Tr. 729). Mr. Augustine demonstrated how he arrived at certain measurements by using a
triangular engineer's ruler, and he did so in response . to
questions from MSHA's counsel (Tr. 735-.739).
Mr. Augustine stated that he was not aware of the fact
that a portion of the roadway was falling or slipping out on
the morning before the day of the accident, but that two
weeks before the accident he was aware that "there had been
some movement of the material downslope from the road" (Tr.
764). When asked to ·explain how he became aware of this
condition, Mr. Augustine responded as· follows (Tr. 766-769):
Q. · okay.

Well, let me ask you this : How did you
become aware of the slip two weeks previous to the
accident?
..

Let's see, in the process of driving through
the area. It was not such that -- you know, I'd
seen it, went through the area or had noticed
that, you know, there were no trees, this gap and
no trees down below, and went through it and just
had a casual conversation with the pit forman at
the time.
A~

Q. Was that on the day shift or the evening
shift?
A. That probably would have been around shift
change. That's usually when I tried to get up

1213 '

there.
time.

I found it more productive for use of my

Q. Okay.
with?

Well, who did you have the conversation

A. It woti1d have been one or both of the shift
for·e men, and it was -- what happened down there,
weil, it was moving a little bit, so, you know, it
was taken care of.
Q. Okay. So, you didn't play any part in the ·
correction of the slip?

A.

No.

No.

No.

The one that was two weeks before the accident, right?
Q.

A.

Yeah.

Q. Okay. And you didn't know about the one that
was the morning of the accident?

A.

No.

*

*

*

*

THE WITNESS: Well, I was about to say that it was
in the area -JUDGE KOUTRAS:
THE WITNESS:

Where?
In the area of the accident.

JUDGE KOUTRAS: Two weeks before, you saw a slip,
evidence of a slip?
THE WITNESS:

Some material movement.

JUDGE KOUTRAS:

Okay.

Yes.

All right.

BY MS. GISMONDI:
Q. Was there anything else? Did you have any
other involvement with this, other than you had a
casual conversation with one or both of the foreman and they said it was corrected and -- was
there anything beyond that, any involvement that
you had --

"1214

A. Based on my observation, you know, based on my
observation, my question satisfied the -- you
know, I'd satisfied my information request on the
way out, there was no material movement in the
consequent -- and I was up there, we brought an
auger up later through the area, or there was an
auger brought up at about that time sometime. I
went up and was checking on the auger , would drive
through and glance down over the road. That's the
kind of thing where yqu notice -- .you know, people
tend to notice things as they change, not that
something's the same for 15.2 days, and I just
looked at it because that's -- I drove by it.
But, I had no information in hand to be concerned
about it or to generate some kind of investigtion.
Q. Did you look at it from the road's surface, or
from · the side of the road?

A. Well, from, you know, walking down over the
berm, getting down on the slope. Because from,
you know, looking down at that distance, you know,
sometimes in the evenings you can't really-because of the shadows, you can't tell -- of
displacement, whether it's displacement or a
shadow, and I was curious enough to walk ·down
there and wasn't overly impressed with the
severity of it .
Mr. Augustine stated that he travelled the roadway in
question prior to the accident and viewed the berms.
Although he did not measure them, he indicated that he did
· walk over them and he estimated that the height of the berms
were "somewhere between the height of my knee, and my, you
know, ~y belt buckle, my waist" (Tr. 778). He estimated the
heights to be between 19 and 31 inches (Tr. 778). He did
not view the berms on the day of the accident <Tr. 779>•
Winford L. Saunders testified that he was employed at
the No. 45 mine from November 22, 1979 to February 20, 1985,
when he was laid off. He was employed as a "heavy truck
driver, and he is familiar with the haulage road where the
accident occurred. He identified the photographs in exhibit
G-4 as the haulage road area in question, and he believed
the roadway had been in existence for at least 60 days prior
to the accident, or at least until all of the coal was mined
(Tr. 906-909>.
·

12'15

Mr. Saunders confirmed that he took part in the
construction of the roadway, and he indicated that spoil and
overburden materials taken from the spoil pile were used in
its surface construction. The materials were trucked from
the pit to the roadway location, and then dumped and spread
out by a bulldozer. The roadway materials consisted of the
outcrop of.shal~, sandstone, soil, and some rocks. The
larger rocks were not used, and while some of the materials
were used to construct portions of the roadway, other spoil
materials were left on the inside of the spoil bank to serve
as the inside of the roadway. Mr. Saunders indicated that
the spoil materials were not separated or sized, but that
the outcrop consisting of shale and dirt provided the main
source of the materials for the roadway. He described a
roadway "lift" as a layer of materials six to ten inches
high which is compacted on the roadway by equipment running
over it, and this serves as the roadway surface and base
<Tr. 910-922 >.
Mr. Saunders stated that there was a water problem with
the roadway area during "this entire period." He stated
that · water was coming out of the coal seam and running under
the spoil bank and roadway. He observed some slips in the
roadway areas in question, and he mentioned evidence of
earth and tree movement as an indication that the bank
adjacent to the roadway was slipping. He specifically
recalled a large beech tree approximately 60 feet from the
edge of the roadway incline which he observed "leaning and
moving," and each day he viewed it, it was leaning and
moving more. He called this to the attention of foreman
Roy Hanshaw, and Mr. ·Hanshaw informed him that he "would
watch it." Mr. Saunders also indicated that the beech tree
in question was also discussed in safety meetings <T+.
922-934).
Mr. Saunders believed that water was trapped behind the
spoil bank and was leaking through the roadway. He also
believed that. the source of the water was an old abandoned
underground mine which had been augered through, thereby
releasing 10,000 gallons of water per minute. Mr. Saunders
indicated that mine engineer Eric Augustine was aware of the
presence of the water, and that a week or two before the
accident, the water washed out part of the haulage road
materials. "rhe water washed fresh dirt "down to the solid"
portion of the roadway, and Mr. Saunders asserted that
nothing was done to correct the condition. He stated that
Foreman Hanshaw was working the day the water was released,
and the force of the water pushed the auger out of the bore
hole. Augering was done in an effort to recover some of the

.1216

coal left in the abandoned under9round pillars (Tr.
934-941).
Mr. Saunders identified photograph #3, exhibit G-4, as
the bank adjacent to the roadway, and he .indicated that on
the day of the accident four feet of that roadway had
slipped. ae· · ~elieved that the slippage was caused by rain
and mud .. Because of this condition, a 12-foot wide truck
could not pass through the roadway, and he and another truck
driver, Clarence Coleman, refused to drive their truck
through the area because of the road condition.
Mr. Saunders believed that · Foreman Hanshaw was informed of
the condition, and that he instructed end loader operator
Bruce Estep to "take enough spoil out of the bank" to permit
the trucks to cross the area (Tr. 948-953).
Mr. Saunders stated that Mr. Estep widened the road by ·
digging into the inside adjacent spoil bank, and that
Mr. Estep. dumped the materials which he had dug out of the
bank over the edge of the roadway where it had slipped, and
simply left it there. After the roadway was widened in this
manner, there was room for the trucks to pass, but it was a
"tight fit." Mr. Saunders indicated that he . had to "hug the
spoil bank" to maneuver through the area, and had a one-foot
clearance on either side of his truck. He estimated that
the roadway had been widened by two to three feet .on the
inside, and one foot on the outer edge by the process of
digging into the spoil bank and dumping the material at the
edge of the road. Mr. Saunders stated that while
Mr. Hanshaw did not personally come to the area prior to the
work done by Mr. Estep, he believed that had Mr. Hanshaw
seen the condition he would have told the truck drivers
about it (Tr. 954-959).
Mr. Saunders identified the pile of material shown on
the edge of the roadway in photograph #2, exhibit G-4, as .a
three foot high berm, approximately three feet thick. The
purpose of the berm is to warn a driver that he is at the
edge .o f the roadway, and Mr. Saunders indicated that he does
not like to get too close to the berm. In his opinion, a
berm should be construc·t ed at least six feet thick at the
base, and with a height of four feet or more, so that he can
observe it or "feel it" with his truck. He believed that an
18 to 22 in.c'h berm constructed of loose mud and materials is
insufficient to serve as any warning (Tr. 962-967; 990-992>.
Mr. Saunders stated that he had driven the same truck
driven by the accident victim and found nothing wrong with
the truck. After the accident, he would not have driven

1217

..··

across the roadway because he did not believe it was safe
CTr. 994} •
On cross-examination, Mr. Saunders conceded that he
drove on the roadway with his truck prior to the day of the
accident . His normal truck speed is maintained at five to
ten miles per hour, and if it is raining, the speed is
maintained at ·approximately seven miles an hour with fully
loaded truck . He believed that a loaded truck at this speed
should be able to stop within 20 feet after the driver
applies all of his brakes (Tr. 995-997}.
Mr. Saunders stated that the haul road was maintained
by a dozer or loader, and the only time a scraper was used
was when someone complained about the road condition. He
recalled filing a safety complaint in the past on another
haul road, but could not recall the details. He did not
report any specific road conditions to anyone on the day of
the accident, and when asked why reports are not made, he
answered that he was reluctant to complain because he wanted
to keep his job (Tr. 1063}.

•

Mr. Saunders stated that the auger in question was
operating against the highwall at the same level as . the pit,
and that it was located approximately 200 to 300 feet behind
the open pit. Water was coming out of the coal seam at the
bottom of the highwall, and he believed that this was a
common occurrence. Mr. Saunders stated that the haulage
road in question was approximate~y 1200 feet long, and that
there were times when there were no berms on it at all. He
maintained -that berms were constructed by mine management a
soon as they believed that an inspector was on the way to
the mine to conduct an inspection •
Mr. Saunders stated that there was a "serious water
problem" in the haulage road area, and he attributed this to
augering which he believed began sometime in February or
March 1984 {Tr. 1029). He indicated that the water was
coming out of the coal seam, and he confirmd that this is
common when mining is conducted around deep mines (Tr . 1032).
He indicated that the water was presen.t in the pit under the
spoil and that "it was just sitting there" in pools, and
possibly running off to the outside lowest portion of the
pit CTr. 1033-1035}.
Mr. Saunders alluded to the fact that the haulage road
in question along the accident scene was only one-lane wide.
However, when asked to explain further, he stated that a
disabled bulldozer was parked along the edge of the roadway

1218

and that is what caused the roadway ~~ be narrowed down to
one lane (Tr. 1074-1076).
Bruce Estep testified that he has been employed at the
No. 45 mine for approximately four and one-half years as a
day shift end loader operator. He stated that he was
familiar with . the scene of the accident along the haulage
road in .question, and he identified the photographs in
exhibit G-4 as the area where the accident occurred.
Mr. Estep confirmed that he participated in the
original construction of the haulage road, and he stated
that road construction was accomplished with an end loader,
a bulldozer, and three trucks transporting road materials.
Road construction was usually done during the day shift.
The materials used for the roadway construction consisted of
spoil and overburden which had been shot. The material
consisted of small rocks and dirt which was hauled and
backfille~ on the roadway and spread out to a height of four
to four-and-one-half feet by a bulldozer. Although there
was no separation of the materials, large rocks were ·
removed, and· the materials were hauled and dumped on the
roadway as it was dug out. The dozer operator compacted the
roadway as it was being constructed, and the berms were then
added. The dozer operator usually supervised the construction, and the foreman, Roy Hanshaw, usually did not give
day-to-day instructions to the crew as to how to go about
their road construction duties (Tr. 1085-1091).
Mr. Estep stated that' during the construction of the
road, there was water in the materials removed from the pit
and used to construct the road. The pit area was approximately 150 to 200 feet from the accident scene, and water
seepage was present in the pit where the coal was being
removed. He identified the water shown on photograph 12 in
exhibit G-4, as "water under the spoil pile," and he indicated that any water which was detected in the pit area was
usually covered over with spoil materials. Mr. Estep
believed that the area circled in photograph #4, exhibit
G-4, approximately eight to ten feet below the roadway, was
standing water, and he was concerned because he believed the
water affected the outer edge of the roadway (Tr.
1091-1095).
Mr. Estep testified that there was a slip in the roadway area shown in photograph #3, exhibit G-4, at the area
shown by the crib block which appears in the photograph, and
he stated that he observed this slip two weeks before the
accident occurred. He could not state whether the foreman
observed it. Mr. Estep stated that the slip extended for an

1219

approximate distance of 150 feet from the crib block toward~
the back of the photograp·h: He also indicated that the berm
had slipped off the edge of the roadway for a distance of 30
to 40 feet, and that it had been replaced. He believes that
this berm condition had been brought to the attention of the
foreman. Prior to the slip, berms had been constructed to a
height of two f~et, but they were later reconstructed to a
height of three to four feet. He confirmed that the height
of the berms depends on the width of the available roadway.
Prior to the accident, the roadway at that location was
approximately 14 feet wide CTr. 1096-1110).
Mr. Estep confirmed that he did not participate in the
road repairs or berm construction after the accident, and he
indicated that the roadway ceased to be used six months
after the accident because mining had been completed in the
area.
Mr. Estep stated that the roadway in question was
constructed approximately three weeks before the accident,
and that during this time there were indications of soil and ·
tree movement along the bank of the roadway. He did not
dLscuss these conditions with anyone, and while he did not
know whether any of the foremen were aware of these conditions, he "was sure" that they were (Tr. lll0-lll4).
Mr. Estep stated that on the day of the accident a
portion of the roadway approximately 50 feet from the
accident scene slipped·, and he identified the location of
this slip as the area at the "top and around the corner" of
the roadway. shown in .photograph #3, exhibit G-4. On that
same day, Mr. Estep walked the portion of the roadway shown
in photograph #2, exhibit G-4, and trucks were parked around .
·the corner behind the truck shown in the photograph.· Truck
driver Winford Saunders advised him at that time that the
drivers refused to drive the roadway because "part of the
road was gone." Mr. Estep then called foreman Roy Hanshaw,
and Mr. Hanshaw instructed him to "make room for the trucks
to get by." Mr. Estep then took some spoil materials to
fill in the road, dumped it on the side of the road, and
leveled it out with his bucket, and replaced the berm. He
identified the location of this slip and the work that he
performed to correct the condition as the area "near the
pit," and around the corner and out of sight of the roadway
as shown in photographic exhibit C-R-1. As for the immediate area of the· accident, Mr. Estep stated that he noticed
that about three to four feet of berm had fallen or slipped,
and that the berm "was completely gone" CTr. 1114-1129) .

1220

Mr. Estep stated that the roadway width at the accident
scene was 12 to 14 feet, and he considers this to be a
narrow road. He believed that the remaining portion of the
roadway was also 14 feet wide, and he confirmed that he had
never been specifica~ly instructed as to how to construct a
berm. He conceded that using MSHA's "axle height" guideline
was difficult because the roadways were narrow. He believed
that the purpose of a ·berm is to alert someone that they are
"over too far ~ " He would construct a berm four to four and
one-half foot high and six feet wide so that a driver could
see it (Tr. 1130-1133).
Mr. Estep stated that Mr. Hanshaw advised him to repair
the roadway so as to permit the truck to pass and that he
was to make enough room to allow a D-8 dozer to come to the
area. Mr. Hanshaw advised him that the dozer would finish
the road repair after Mr. Estep had completed his work.
Mr. Estep believed that the repairs that he made to the
roadway would permit a truck to drive into the pit, but he
did not believe that it was safe for the trucks to drive
out, and he would n·o t have done so with a loaded truck.
After the accident, he observed that the berm had "dropped
down" two to three feet for a lateral distance of
approximately 20 to 30 feet (Tr. 1134-1142).
On cross-examination, Mr. Estep confirmed that he
served as a member of the mine safety committee before and
after the day of the accident, and he conceded that even
though he observed roadway slippage prior to the accident,
he failed to report it to anyone. He stated that he did not
consider the presence of water to be an unsafe condition
while the roadway was being constructed, and he believed
that the water was coming from an old coal seam under the
roadway. Aside from the roadway being narrow, he did not
believe it was unsafe to travel over the roadway while it
was being constructed. He never refused to use the roadway,
nor did he ever refuse to load materials on -any trucks on
the roadway during its construction. Although he observed
trees leaning, and believed that this was an indication of
an unsafe condition, he did not report this to anyone. He
indicated that in his experience at the mine, berms were
always constructed to a height halfway up the axle of the
biggest piece of equipment using the. roadway, and that berms
were constructed three and one-half feet high, which is the
"mid-axle height" of a 988 end loader (Tr. 1145-1163).
David Nichols testified that he was last employed at
the No. 45 mine in December 1984, as an end loader operator
on the evening and day shifts . In March 1984, he worked the
evening shift, and he was at work on the day of the accident.

1221

After reporting for work that day he spoke with foreman
Louis Maggard at the mine office, and Mr. Maggard informed
him that "a piece of the road" needed to be repaired.
Mr. Nichols confirmed that he traveled the haulage road in
question at approximately 4:15 p.m. that same day and
observed that the road was narrow at the location of the
accident, and that there was no berm there except for one
which appeared to be six to eight inches high . The berm
appeared to have subsided or "slipped," and he assumed that
this was the area that Mr. Maggard had in mind when he mentioned that "part of the road" needed to be repaired.
Mr. Nichols stated that while he believed the road was not
safe to travel, he did not report his observations to anyone
because he assumed that this was the condition mentioned to
him earlier by Mr. Maggard (Tr. 1164-1173).
Mr. Nichols stated that after passing the area which he
believed was not safe to travel, he proceeded to the pit and
loaded Mr.. Hartwell's truck first, and then Mr. Westfall's .
He loaded Mr. Hartwell a second time, and the accident
occurred shortly thereafter. Mr. Nichols identified
photographic exhibit G-4(3) as a photograph of the area
which he passed on his way to the pit, and he identified
what he believed to be a slip of the berm and roadway. He
confirmed that a week before the accident he observed some
trees "leaning and down" in the area of the bank adjacent to
the roadway, and this led him to believe that the bank was
slipping. He stated that he informed Mr. Maggard about his
observations.
Mr. Nichols testified that he did not construct any
berms on the haulage road in question, but that he has
constructed them at other mine sites where he had previously ·
worked. He confirmed that he did construct berms at- other
locations at the No. 45 mine, and that this was usually done
by dumping and piling spoil materials with his end loader.
He was aware of MSHA's "axle height" guidelines for berm
construction, and he indicated that he usually constructed
them four-and-one-half to five-feet high because that was
his usual practice at other mines (Tr. 1174-1192).
On cross-examination, Mr. Nichols stated that he did
not participate in the original construction of the haulage
road, but that he did travel over it prior to the accident
and always made it a practice to stay close to the inside of
the roadway adjacent to the spoil pile. He confirmed that
he did not inform Mr. Maggard about the slip conditions
which he observed prior to the accident because foreman
Hanshaw and mine manager Pendergast were "close by," and he

1222

assumed they were aware of the conditions CTr. 1192-1200;
1207-1210).
Mr . Nichols stated that he was-not aware of any other
slips in the roadway prior to the accident, and he confirmed
that he was not present when the berms were reconstructed
after the ac.c ident. He helped repair the roadway after the
accident, and he indicated that the loose road materials
were taken out "down to the rock," and additional road
materials were used to make the repairs <Tr. 1204-1206).
Dr. Kelvin Ke-Kang Wu; Chief, Mine Waste and
Geotechnical Engineering Division, MSHA, Pittsburgh,
Pennsylvania, testified as to his background and expertise.
He confirmed that he has ·a Ph.D. Degree from the University
of Wisconsin in the field of soil mechanics and rock
engineering. He is a registered professional mining engineer and has ten people on his staff at MSHA's Bruceton
Safety Technology Center. In addition to his duties with
the Department of Labor, he is an adjunct Professor at the
graduate school of the University of Pittsburgh, teaching
courses in mining geology and mine systems evaluation, and
he has conducted seminars at the University of Alabama
teaching courses in waste impoundment. inspections <Tr.
1246-1253; 1261).
Dr. Wu stated that his work with MSHA involves the
evaluation of waste and other mine impoundments, and work in
connection with the stability of surface mining high~alls,
benches, and pits. Part of his work entails the review,
evaluation,. and approval of waste impoundment and hig-hwall
control plans, and he has provided consultant and evaluation
advice in areas such as highwall and bench stability, highwall failures, roof control engineering assistance, mine
system evaluations, materials handling equipment evaluations, and matters dealing with r-oads at waste impoundments
and surface mining facilities . He has also taught courses
at MSHA's Mine Academy in Beckley, West Virginia, and these
include the training of qualified people for impoundment
inspections, water, waste, and slurry impoundment inspections, and the inspection of coal washing plants. He has
also been called upon to provide advice in connection with
enforcement problems which occur from time-to-time, and he
indicated that 30 percent of his working time is spent in
the field at various mine sites when his services are
requested by various MSHA mine .district offices (Tr.
1254-1261).
Dr. wu stated that he has served as the chairman of the
AME Health and Safety Committee, has published articles on

1223

such subjects as rock and soil mechanics, slope and impoundment stability, and that three of the courses which he
teaches at the University of Pittsburgh include studies in
mine system evaluations, soil and rock mechanics, and underground mine layouts and designs. Although he has no direct
experience in the actual construction of surface mining
haulage roads, ·he indicated that all of these courses "touch
on" that subject, and that roadways at waste and slurry
impoundments are similar to those haulage roads found at
surface mining facilities. He has also been involved in the
review of water and waste impoundment plans submitted to
MSHA for evaluation and approval, and his experience
includes the interpretation of mine maps, and he is a professional land surveyor registered in the State of Pennsylvania
CTr. 1262-1265).
·
Dr. wu stated that he was initially contacted to become
involved in these proceedings by his Center Chief on
Wednesday, March 6, 1985, but that his initial reaction was
to decline because he did not have all of the facts, and he
had not visited the site of the accident. A second contact
and request for his services was subsequently made through
MSHA's Arlington, Virginia, Solicitor's Office, and he then
agreed to visit the site. The site visit was made on
Monday, March 11, 1985, the day before the start of the
hearing, and he was accompanied by counsel representating
the parties in this case, as well as the inspectors who
issued the citations, and other safety representataives of
the company. As part of his preparation for testifying in
these proceedings, he interviewed and spoke with the
inspectorst other witneses, reviewed the citations and
order, and MSHA's report concerning the accident investigation conducted by Inspector Grose and the inspection team.
He has also reviewed all of the photographic exhibits
introduced during the hearing, and was present during the
testimony of the witnesses during March 12 through 14, 1985
CTr. 1274-1276).
Dr. Wu confirmed that he had no personal knowledge of
any of the· f~cts or events which transpired before or after
the accident in question, except for his review of the facts
and circumstances as related to him by others, and his
review of written reports and materials in preparation for
the hearing; He confirmed that the haulage road where the
accident occurred is no longer in existence, and that during
his site visit he determined that the area has been mined
out and abandoned. The old haulage road has been removed,
and there is an existing road on a bench 40 feet below the
area where the accident haulage road had once existed, and
he described the existing road as "not in good shape," but

1224

conceded that this was due to the fact that t .he area has
been abandoned and is not maintained. The existing bench
area is not a "working area," and he stated that he had an
opportunity to generally view the area, including the
soil geology and strata during his site visit. Having
viewed the site, he believed that the maps introduced during
the course ·o f the hearing, exhibit ALJ-1, and the map
attached to the accident report, exhibit G-7, appear to be
reliable and reasonably accurate insofar as they portray
contours, the parameters of the old haulage road, and the
location of the pit and spoil piles.
Dr. wu reviewed photographic exhibit G-4, and he
described the area shown in several photographs. He stated
that the terrain depicted in photograph #4 behind the
individual shown in the photograph is composed of "natural
materials," while the area below him is not. He also
indicated that he was informed that there was a "heavy rain"
on March .5, 1984, the day of the accident, and that "pools
of water" were under the spoil pile, but that they were
"covered up" with spoil materials. He stated that the areas
shown to the right and left side of photograph #5 show
evidence of "water seepage and piping." The gray colored
materials shown in photograph #7 below the crib block shown
on the road is indicative of "clay materials." The area at
the top of photograph t8, to the right and below where the
individual is standing indicates a "depressed area"
immediately below where the two wooden cribs were embedded
in the ground, and this indicates to him that rocks and
loose materials were "layered" to form that portion of the
road. The .area behi~d the crib block lying at the edge of
the roadway, as shown in photograph #6, and exhibit C-R-1,
indicates a "crack" in the road which pushed out to the edge.
of the roadway. He identified the depressed areas shown in
photographs #9 and #10 (circled in red), as "cracks" in the
roadway. The area circled in photograph #23 was identified
as a "crack" approximately 40 feet from the roadway (Tr.
1275-1309).
Dr. wu indicated that it is a general practice to use
are available at the mine site for roadway construction, and he agreed that the filling in of road
depressions with available materials in the normal course of
mining is an acceptable practice. However, he indicated
that the use of too much "fine" material does not permit
proper road drainage (Tr. 1357, 1374).
whateve~ materials

Dr. wu conceded that there was no way he could determine whether the entire roadway was suspect at the time of
the accident. However, based on all of. the information and

. 1225

evidence made available to him, including the testimony of
MSHA's witnesses during the course of the hearings of
March 12-14, 1985, he was of the opinion that the haulage
road failed due to poor construction and maintenance, lack
of proper material selection, and seepage of water under the
spoil bank and roadway . With regard to the berms, assuming
the inspecto·r' s.. measurements of 14 inches high is correct,
and assuming that the berms were constructed of soft, wet
materials, he was of the opinion that a driver would not be
able to "feel" the berm, and that tl:ley were inadequate CTr.
1358-1383; 1387-1389).
On cross~examination, Dr. wu conceded that he had never
been involved in the actual construction of any haulage
roads, and that he has viewed haulage roads a "couple of
times" when asked to give his advice CTr . 1395-1399). His
testimony in these proceedings is based on his experience
and knowledge in soil and rock mechanics, as well as his
experienc~ in investigating mine accidents when called .upon
to do so (Tr. 1400-1401). He conceded that he did not take
the photographs which are in evidence and that he is not a
forensic expert in photograph interpretations (Tr. 1402).
Dr. Wu conceded that when he visited the accident site
prior to the hearing, there was a change in the confirguation of the site, and he described what he observed (Tr.
1405-1408) . His observations included flowing muddy material which he considered to be unusual because the weather
was dry. However, given the fact that there was recent
heavy snowfall, he conceded that the presence of water and
muddy mater.ials was not unusual (Tr. 1408-1411).
Dr. Wu testified general.ly as to problems cause by
water and lack of proper roadway compaction, and he did so
by reference to the photographs and map which are in evidence in these proceedings CTr. 1416-1432); 1435-1437). He
also testified generally as to the effect of roadway construction materials to the stability of the roadway {Tr.
1445-1449).
Valley Camp ··s Testimony and Evidence
Franklin L. Simmons testified that he is employed by
the Shrewsbury Coal Company, a subsidiary of the Valley Camp
Coal Company, as the Manager of Technical Services. He has
been in this position for over 3 years, and his present and
past duties include supervision over a staff of 25 employees
in such areas as mine engineering, construction, maintenance, and supervision over the laboratory. He has also
been involved in the formulation and submission of surface
mine plans and permits for state and federal approval,· and

· 1226

has also supervised all aspects of surface mines, including
the supervision of construction foremen, carpenters and
con~truction personnel.
·
Mr. Simmons confirmed that his duties also included the
supervision of engineers and assistant engineers engaged in
the haulage· ·road construction, and he supervised the work
necessary to obtain state mining permits for the No. 45 Mine.
His educati~n includes a two-year Associate Science degree
in drafting and designing from the West Virginia Technical
College, and engineering and water quality courses at the
University of Charleston and Penn State University.

Mr. Simmons stated that he has been involved in the
design and construction of 21 surface and 11 underground
mines for the purpose of obtaining mining permits, and that
this work included such areas as sediment control, water
quality, and geology. He has also been involved in the
design of. three refuse piles, and he supervised the engineering work that went into the planing of these facilities. He
conceded that he is not a professional registered engineer,
and that while he has not personally constructed any haulage
roads, he has observed them while they were being constructed. our ing his design and planning duties, he de.termined
where the roads would be placed in order to comply with
state requirements concerning sediment controls and the
amount of materials placed on the out-slopes.
Mr. Simmons stated that he gave no specific instructions to the foremen who were engaged in the construction of
the haulaga road in issue in this case. However, he
described how the roadway was constructed, and he explained
the steps taken to construct the roadway by reference to two .
graphic charts, exhibits CR-12 and CR-13.
·
Mr. Simmons confirmed that he was familiar with the
scene of the accident and that he traveled that portion of
the road several days before the accident. He described the
pit floor area just under the first coal seam as shale material, sandstone, and then another coal seam. He confirmed
that the procedures and methods used tq construct the road
in question were also followed in the construction of other
roads at the No. 45 Mine (Tr. 1523-1580).
On cross-examination, Mr. Simmons confirmed that he had
no registered engineers or surveyors working for him, and
that he was Mr. Augustine's supervisor. He confirmed that a
"typical" roadway width at the No. 45 Mine was 16 to 17 feet,
and that some areas where there was a need to provide a
passing lane for vehicles, the widths would range from 20 to

t227

30 feet. He estimated the width of the· roadway at the accident scene to be somewhat less than 16 to 18 feet, and he
believed that the company expected the roadways to remain
18 feet wide.
Mr. Simmons reiterated that he generally observed the
construction· of. the road in question, and that the map area
which is a part ·of MSHA's investigation report, exhibit G-7,
showing the 14 foot, 6 inches to 14 foot 3 inches measurements where the accident occurred is somewhat lower than the
other roadway areas. He identified this area as that shown
in photograph No . exhibit G-4.
·
Mr. Simmons confirmed that prior to the accident, he
was aware of some slips which had occurred on the roadway,
and that Mr. Augustine brought this to his attention.
Mr. Simmons agreed that such slips should be watched and
taken care of. He also confirmed that approximately 2 weeks
before th.e accident, a berm had slipped, but that it was
corrected and replaced. He denied that he was aware of any
roadway or berm slips on the day of the accident, and he
stated that no one ever brought such conditions to his attention. He was also aware of the presence of water in the pit
area but he did not consider this to be an unusual problem
(Tr. 1580-1650).
Roy Hanshaw, foreman, Valley Camp No. 45 Mine, testified that he has been employed in this capacity for approximately 5 years, and that prior to this time he worked as a
dozer, end loader, and auger operator. He confirmed that he
helped construct haulage roads and berms at the No. 45 and
46 Mines, and that. his prior experience includes work with
Carbon Fuel Coal Company, FMC, and several road construction ·
contractors. He has operated forklifts, 50-ton road- rollers,
rock crushers, and water trucks during his construction work
on interstate highways. While employed with Valley Camp, he
estimated that he supervised the construction of 20 miles of
haulage roads.
Referring to a sketch of a typical haulage road,
exhibit CR-13, Mr. Hanshaw explained the procedures followed
in the construction of such a road. After reaching the pit
floor, materials are trucked in and dumped and spread by a
bulldozer td construct a 4 foot lift, and the bulldozer
spreads and compacts the materials . Compaction is also
accomplished by the 70-ton loaded trucks as they bring the
materials to the roadway. Mr. Hanshaw indicated that "the
best materials available" are used to construct the roadway,
and that wet materials are not used.

Mr. Hanshaw stated that the actual· construction of the
roadway in question was done on the evening shift, and that
he built part of the road. The roadway width averaged 16 to
25 feet, and it was approximately 1,·500 feet long. It was
not unusual to have a single lane road at a contour mine
such as the No. 45 Mine, and the drivers knew where these
areas were · Tocated and would wait for loaded trucks to pass
them.
Mr. Hanshaw stated that the berm heights at the mine
haulage road varied, and that at some switchback and steep
·turn locations, they were as high as 15 feet. The purpose
of the berm is to allow the driver to guide his vehicle onto
the roadway.
Mr. Hanshaw stated that he has never experienced any
accidents along any haulage roads which he has constructed
and he is not aware of any roadway failures on roadways
where he pas supervised the construction.
Mr. Hanshaw stated that he was familiar with the
haulage road wher~ the accident occurred and that he was
aware of a berm slip which . had appeared in the accident area
on February 21 or 22, 1·984, before the accident. He
explained that he detected slippage in the berm during a
preshift examination, but he detected nothing wrong with the
roadway surface. Materials were brought in from the high
wall and they were used to reconstruct the berm. In addition, the roadway was widened some 6 to 8 feet into the
spoil bank.
Mr . Hanshaw stated that after he detected the slip, he
"monitored the area," and estimated that the roadway was 15
to 16 feet wide after it had been cut into the spoil : Spoil
material was also used to build up the area which had
slipped, and it was possible that some shot materials" may
have gone over the outslope, but that no fill material was
deliberately placed or dumped over the outside slope of the
roadway. The berms were also replaced to a height of
4 feet.
Mr. Hanshaw stated that on the day of . the accident,
March 5, 1984, there were problems with the berm in the area
near the pit·. While taking loader operator Estep to the
pit, rocks came off the spoil bank into the roadway. It had
been raining that day and part of the berm on the haulage
road near the pit had slipped. He also observed an area at
the accident scene which had slipped, and he observed this
about 2 p.m . on the day of the accident. He walked along
the berm at the accident location to check on the "slide
area" and he estimated that the slip which was present on

1229

the out slope extended for a distance of -some 40 feet. Had
the slip continued, it was his opinion that another roadway
would have to be constructed under the area. Mr. Hanshaw
believed that the two slip areas which he described were the
only ones which existed from approximately February 20 to
the day of the accident.
Mr •. Hanshaw stated that he preshifted the roadway every
morning, that no one ever refused to drive over the roadway,
and no one ever complained to him about any hazardous conditions on the haulage road.
Mr. Hanshaw stated -that after the accident, he measured
the road where the left . front tire of the truck slipped sideways, and that from the spoil pile to where the truck cut
into the road, the roadway was 14 feet, 6 inches wide. He
did not measure any other portions of the roadway. He par- ·
ticipated in the rescue operations, and he observed no
breaks or _faults in the roadway after the accident.
Mr. Hanshaw examined photograph No. 10, exhibit G-4,
and he could not state that a "crack" was present in the
roadway. He confirmed that he had never observed any such
·condition shown in the photograph. · He also stated that he
saw no evidence of any braking by the truck involved in the
accident, and he believed that the truck stopped and then
slid over the side of the road.
Mr. Hanshaw stated that he helped to supervise the
abatement of the order and that materials were removed from
the slip ar.ea and signs were posted which read "danger, one
lane." After abatement, he believed that the roadway looked
no different than it did before the accident. He also indicated that MSHA Inspector Wayne Lively and State Inspector
Gordon Wiseman advised him to build the roadway closer to
the spoil bank and to reconstruct the berm.
Mr. Hanshaw stated that augering was taking place
around the haulage road toward the pit area, and that there
was some water in the pit prior to tQe accident. He was not
aware of any water flowing from the spoil pile onto the roadway (Tr. 1650-1744).
On crosB-examination, Mr. Hanshaw stated that the outcrop is not usually taken out while mining is taking place,
and he confirmed that he did not participate in the construction of the original roadway from the pit area to the scene
of the accident. He confirmed that the slippage which he
observed in February was noted in his preshift report and
that the conditions were corrected. He also confirmed that
the berm was gone that day, but that this was not a typical

1230'

condition and he did not know what actually caused the berm
to slip. He stated that he talked to Mr. Pendergrass about
the slippage the next day and that he "put a stick in it to
watch it."
Mr. Hanshaw stated that after the accident, he did not
believe it· was .. safe to drive through the area with the berm
gone. He also indicated that when he last saw the berm at
2:00p.m., on· the day of the accident, · it was approximately
4 feet high and 6 feet wide at the base.
Mr. Hanshaw confirmed· that he was· not involved in the
original construction of the roadway in question. Although
he indicated that the width of a roadway had to be 28 feet
in order for the dozer and truck to work side-by-side, he
conceded that he had no knowledge that this was the case at
the accident location on the day of the accident. He also
explained the spoiling methods and the manner in which a
roadway i .s compacted by using trucks and dozers.
Mr. Hanshaw stated that there was a problem with some
water which was released from an abandoned mine after an
auger drilled into it. This happened on March 19 or 20, and
the augering was being conducted some 2,000 feet from the
accident area. As far as he knew, there were no water
problems caused by augering prior to the time of the accident, but that rainwater did collect in the pit from time to
time. He confirmed that there was approximately 1 foot of
accumulated rainwater in the pit on the day of the accident,
and he indicated that it had accumulated over a period of
days. However, it was drained away from · the pit area by
means of a "french drain," and the roadway portion which was
built on top of this drain "is still holding in that area"
(Tr. 1782).
·
Mr. Hanshaw stated that he never observed any water
seeping out of the spoil pile in .the immediate accident area.
He did observe some puddles of water, but these were the
result of rainwater. He confirmed that he was aware of berm
slippage on the road on February 23, 1984, the day after the
road was constructed. He detected the slippage during his
preshift examination, and it extended for some 30 feet in
length. All of the material under the berm slipped with the
berm, and while he ~onsidered the condition . to be hazardous,
it was immediately corrected (Tr. 1795). Mr. Hanshaw could
offer no explanation for the slippage, and he indicated that
"it's not typical" CTr. 1796). The condition was corrected
by digging into the adjacent spoil bank to widen the road
and the berm was replaced. He informed Mr. Pendergrass that
the slip would have to be monitored, and that if it continued, an additional roadway might have to be constructed

1231

below the slip area in order to contain ·it and to stay in
compliance with the State Department of Natural Resources
regulations (Tr. 1800-1801; 1809-1810).
Mr. Hanshaw stated that the only slippage he was aware
of on the morning of the accident was the area around the
corner from "the. accident site. A berm had slipped, and he
sent Mr •. Estep to repair it and widen the roadway. No one
reported any slippage at the immediate accident scene (Tr .
1808). When asked about the testimony of Mr. Saunders and
his refusal to drive through the accident area on the day of
the accident because the roadway and berm had slipped,
Mr. Hanshaw replied that Mr. Saunders "was confused," and
that the slippage which he had repaired on March 5, was
around the corner from the accident scene. The drivers
could not get through because an end loader was working on
the roadway (Tr. 1812) .
Mr. Hanshaw stated that he first discovered the slippage on March 5, at approximately 7:00 a.m., when he was
taking Mr. Estep to his end loader . The slippage was about
80 to 90 feet closer to the pit than where the slippage had
occurred on February 23rd (Tr. 1814). He did not note the
March 5 slippage on his preshift report, and could not
explain why he failed to include it (Tr. 1815). He agreed
that the area was not safe to drive through, and no one
drove through until the conditions were corrected . Since it
was obvious that an end loader was working on the road, and
since the repair work took about 15 minutes, he did not specifically advise any of the truck drivers that the road was
being repaired (Tr. 1820).
Mr. Hanshaw stated that on both February 23 and
March 5, his instructions for the repair work to be done
included instructions to widen the roadway by cutting into
the spoil bank and replacing the berms which had slipped
(Tr . 1822). He confirmed that during the shift change on
March 5, he had no opportunity to inform Mr. Maggard about
the slippage, but that he had intended to tell him . He did
mention the berm slippage to Mr. Pe ndergrass and informed
him that the condition had been corrected (Tr. 1826-1827).
Mr. Hanshaw stated that there was no standardized company policy with respect to the speed limit on the haulage
road, and that there were no standardized traffic rules,
signals, or warning signs (Tr. 1831; 1833). When asked
about the kind of berm he would construct at the immediate
scene of the accident, Mr. Hanshaw replied as follows (Tr.
1851-1852):
0

1232

THE WITNESS: What kind
berm four foot high .
JUDGE KOUTRAS:
foot high?
THE WITNESS:
procedures.

well, ! · built a

And why did you build it four
Just about the standard

JUDGE KOUTRAS: You built it four foot high.
Would it surprise you if I was to tell you
that MSHA only required it to be 22 inches
high?
THE WITNESS: Well, ·if they did require me to
build it 22 inches high, I'd still build it
four foot or higher if I could.
JUDG~

KOUTRAS:

THE WITNESS:

Why would you do that?
Give the truck driver more---

JUDGE KOUTRAS: If you built it four foot
high or higher, the base would have to be
wider, wouldn't it?
THE WITNESS:

Yeah .

That's right.

JUDGE KOUTRAS: If the base is wider that
narrows the road, doesn~t it?
THE WITNESS:

That's true.

JUDGE KOUTRAS: So, you're doing one thing
and you're defeating .something else, aren't
you?
THE WITNESS:

That's true.

In response to further questions, Mr. Hanshaw stated
that he was not concerned about the integrity of the roadway
from the day it was built on February 21 to March 5, the day
of the accident. However, he was concerned about the slip
below the roadway and his concern was that it might go
beyond the area for which the company had a permit CTr.
1865). He denied that any berm slippage at the immediate
scene of the accident involved any of the useable road, and
he also denied that any portion of the roadway was constructed on the outcrop (Tr. 1859, 1965).

1233

Louis Maggard, testified that he is not presently
employed, but that he had been previously employed by the
respondent as a foreman for approximately 4 years. His
prior mining experience includes 9 years as a surface miner,
4 years as a loader and dozer operator, and supervisory
experience in connection with the construction of interstate
highways. ·ae confirmed that he supervised the construction
of the haulage road on February 22, 1984, including the portion which is · in issue in this case. Mr. Maggard explained
how the road was constructed, and he indicated that when it
was first constr~cted it was 28 feet wide, but after spoiling, the width was down to ·approximately 16 feet on the day .
of the accident. Mr. Maggard stated that he had no problems
with the roadway after it was constructed, and he conceded
that no signs were posted because he did not believe the
roadway was narrow. He also indicated that Mr. Hanshaw
informed him that the berm had slipped away, and he
corrected the condition.
Referring to respondent's sketch, exhibit CR-13,
Mr. Maggard explained that the roadway was constructed from
rock materials, and that the roadway was built on 4-foot
high lifts. Berms were installed at heights of 4 feet along
the roadway where the accident occurred, but at other locations, such as "switchbacks," higher berms were constructed • .
Mr. Maggard was not aware of any water ''dammed up" in the

area of the roadway, and he observed no hazardous conditions
along the roadway on the day of the accident. He conceded
that he would not drive through the area after the accident
occurred. He believed that both Mr. Hartwell and
Mr. WestfaLl drove past the accident area on many occasions
without incident, and he believed that they followed the
usual procedures and "rules of the road . " On the day of the .
accident, four trucks were in operation; one loading~ one
dumping, and two waiting to pass each other on tqe roadway.
Mr. Maggard stated that he took no measurements of the
width of the roadway after the accident, and he confirmed
that he observed no slips or fractures in the roadway when
he walked it the next day during the recovery operations.
After reviewing photograph number one, exhibit G-4,
Mr. Maggard stated that the outslope of the roadway may have
slipped during the night between the accident and the day of
recovery operations.
Mr. Maggard stated that the day shift began abatement
by removing a portion of the roadway 15 feet down to the
coal seam, and then rebuilding it up in 4 foot lifts. Berms
were then added, and signs stating "one lane road" were
installed. He was of the opinion that the accident resulted
after Mr. Hartwell "got too far over," and that a large rock

1234

which he was hauling shifted in the truck bed and caused the
truck to turn over at the edge of the roadway .
Mr. Maggard stated that he had -never previously been
cited for improper road construction. He confirmed that he
and Mr. Nichols did not get along well. He also confirmed
that a drill -auger was on the mine site on the day of the
accident, and . that it had been there for about 2 weeks.
However, no augering was done in the area of the accident,
and it was confined to an area near the pit some 200 feet
away. Although Mr. Maggard did see water in the pit on the
day of the accident, it was flowing away from the accident
area toward the pit floor some 200 feet away. He also indicated that there was one place where the auger did push
through to water, but this occurred after the accident, and
it was at a location some 500 to 600 feet from the accident
site.
Mr. Maggard indicated that the three elements of a properly constructed haulage road include the selection of materials, the location of the materials on the pit floor, and
the compaction of the materials as the road is being constructed. He believed that compaction is the most important
element because the roadway has to be built on solid materials. He stated that no portion of -the roadway in question
was built on the outcrop (Tr. 1871-1898) .
On cross-examination, Mr. Maggard confirmed that prior
to the accident, he served as a mine foreman for approximately 3 years. He confirmed that the road in question had
been const~ucted sometime between February 21 and 23, 1984.
He stated that approximately 150 feet of roadway can be constructed during one shift, and he confirmed that the.portion of the roadway where the accident occurred was built by his
shift on February 22, 1984. He also confirmed that there
was some slippage on the roadway the next day, and that part
of the berm had fallen away. He had supervised the construction of the berm the day before, and he acknowledged that a
berm could slip if the adjacent slope is too steep. He conceded that anytime a berm slips away, a hazardous condition
is created. However, he stated that immediate corrective
action was taken and Mr . Hanshaw advised him that the slippage of the berm had been taken care of. Since only a part
of the outer berm had slipped, Mr. Maggard did not believe
it was a problem, and he did not inform the employees of the
condition. It was his understanding that the conditions
were corrected by taking some materials from the spoil pile
and "firming up" the berm that very same day .
·
Mr. Maggard stated that the original roadway was constructed on a solid rock base across the entire 28 foot

1235

width, and that it was constructed on 4-'foot high lifts,
with good compaction. Mr. Maggard stated that the terrain
does not affect the overall way in which the road is
constructed, and he would not consider the area of the
accident to be a "hollow area" where any place in the
roadway was lower than other place. Mr. Maggard denied that
Mr. Popps e'ier ..said anything to him about pushing soft
materials to the outside edge of the roadway, but that he
(Maggard> had warned Mr. Popps about this practice in the
past.
Mr. Maggard confirmed · that when the roadway was constructed, some water was encountered in a "rider seam" and a
"little puddling" was detected. However, large rocks were
placed in to allow the water to run off, and he detected no
problems with any water after the roadway was completed. He
also confirmed that it was normal to take out the coal
out-crop when building a road so that there is a flat base.
He did not did not consider the accident scene to be in a
"slip area," and he was not aware of any tree movement, nor
was he aware that Mr. Hanshaw was monitoring the area .
Mr. Maggard stated that he was not aware of any slippage of the roadway on the day of the accident, and that he
observed Mr. Hanshaw in the pit area at approximately
3:15p.m., and that Mr. Hanshaw never mentioned any berm
movement to him at that time. Mr. Maggard stated that during his preshift inspection on March 5, he remained in his
truck and noticed no problems with the roadway. After arriv- ·
ing at the accident scene after the accident, he did not
observe which portion of the berm was gone because he was
more concerned with assisting the accident victim. He did
observe that the truck's under carriage or "protection
plate" had taken out part of the berm. While he was·at the
site the next day, he did not observe any evidence of a
truck "slide," nor did he observe any cracks or faults in
the roadway.
Mr. Maggard stated that he was aware of the fact that
an MSHA inspector inspected the roadway after the accident
during the abatement process and that he refused to terminate the order. Mr. Maggard believed that a 2-foot berm
would be adequate at the place in the roadway where the acci~
dent occurred. He confirmed that the accident victim had
worked for him for about 2 months as a truck driver and that
he never had problems with his driving abilities.
Mr. Maggard also confirmed that the day after the acciqent,
he did make a statement that he was not sure whether berms
were present at the roadway location where the accident
occurred at the time that he conducted his preshift. He

1236

explained that he saw nothing that day which he believed
were hazardous conditions or violations (Tr. 2060-2062).
Mr. Maggard stated that he was -not present in the pit
area when Mr. Hartwell's truck was loaded, and he confirmed
that he (Maggard) and Mr. Nichols did not get along well.
He stated that .Mr. Nichols has a temper, is insubordinate,
and does. not ·like to take orders (Tr. 2069). Mr. Maggard
stated that in all of his previous work at other mine sites,
the haulage roads were constructed no different than the one
in question in this case (Tr. 2110).
Carl s. Anderson testified that he is currently laid
off from his employment with the Valley Camp Coal Company,
but that he previously worked at the No. 45 Mine as a dozer
and loader operator for 3 years and that he worked for
Mr. Roy Hanshaw. He confirmed that he worked on the haulage
roads at the No. 45 mine, and he referred to the charts
depicting . how haulage roads are generally constructed,
exhibits CR-12 and CR-13, and described the construction
sequence.
Mr. Anderson stated that he was working the day shift
on the day of the accident and was not present at the mine
when it occurred. He stated that he traveled the roadway in
question on approximately March 1, 1984, and that "he worked
the road" that day. He explained that a berm had washed
away because of some rainfall and that he rebuilt the berms
with some materials which had been trucked in from the pit.
Mr. Anderson identified the area shown in photograph
No. 2, exhibit G-4, as the area where he built the berm
3 feet high, and the materials used were dirt, rock and
slate. He saw no slips in the area shown in photograph
No. 3, exhibit G-4, and he indicated that some of the materials may have fallen over the side of the roadway bank when
he was constructing the berm. He identified the material
shown in photograph No. 1, exhibit G-4, as some of the materials which may have fallen, and he indicated that the berm
would not have been disturbed.
Mr. Anderson stated that the purpose of a berm is to
serve as a visual guideline to deter anyone who· may be too
close to the· edge of the road. He described.. his equipment
as a 992-b end loader, and he stated that he has driven into
a 3 foot berm with his equipment, and that when he did so,
he "could feel it."
Mr. Anderson stated that he observed · no cracks or slips
on the roadway when he was on it and that he .was not aware
of any employee safety complaints about any cracks or slips.

1237

He was aware that rock trucks, coal trucks, and loaders had
driven over the road and no one ever complained <Tr.
2133-2146) •
On cross-examination, Mr. Anderson confirmed that he
normally worked in areas other than those near the road in
question, but that on or about ·March 1, 1984, he "worked the
road" for about 2 hours constructing a berm. He was not
aware of any locations along the haulage road where there
was no berm, but that at the location where the accident
occurred the berm was "small." He conceded that there was a
berm problem in one area along the road where "it was real
bad,• and that in the area where the truck went off the
road, there was a "problem" for a distance of some 60 feet.
Mr. Anderson identified the area shown in photograph
No. 6, exhibit G-4, and extending outby to the area in front
of the truck shown in photograph No. 2 as the area where the
berm was ~onstructed about 3 feet high and 4 feet thick at
the base. Two feet of the berm was "probably" located on
the road surface itself, and 2 feet was on the bank where he
had dumped the material which had been trucked in from the
overburden which had been shot some 100 feet away near the
pit. He estimated that approximately eight to 10 loader
buckets of material had been dumped and used in the roadway
area . which · he worked. Since the area was a narrow place,
some of the materials went over the side of the embankment
while it was being dumped. No materials were taken from the
adjacent spoil pile.
Mr. Anderson stated that he did not participate in the
repair of the road after the accident. However, he visited
the area the next day with a mechanic to determine what had
to be done to recover the truck which had gone off the road.
He observed no fractures in the road at the location where
the ·truck left the road. ·
Mr. Anderson stated that his loader was 13 feet wide
and the road was wide enough for him to turn around to work
the materials which had been trucked in. He estimated that
the roadway was approximately 16 feet wide where he was working on the berm. He indicated that he had also worked on
other roadway areas after a heavy rainfall, and that the
berms had to be reconstructed (Tr. 2146-2169).
Nathan King testified that he was employed by Valley
Camp Coal as a D-9 dozer operator and that he has been so
employed since 1979. Prior to this employment, he worked as
a dozer operator on construction projects building dams,

freeways, and strip mines. He has also been a heavy equipment construction boss supervising construction work on the
Los Angeles freeway, the Masschusetts turnpike, and the
Summersville Dam, and that most of his work experience has
been as a dozer operator. He has also been directly
involved in the construction of many surface coal mine haulage roads similar to the ones at the No. 45 Mine.
Mr. King identified the diagrams depicted in exhibits
CR-12 and CR-13, as typical construction methods used in
building surface mine haulage roads. He explained tha.t the
actual road construction begins after the pit coal is taken
and spoiling begins. The road is constructed on a solid
rock base or "coal pavement" which generally rests on a sand
rock base. Overburden materials are trucked in to the road
construction area and then spread out with a dozer in lifts
which average 4 feet in thickness depending on the rock materials used. The normal practice is to use the finest and
driest overburden materials. No wet materials or dirt are
used to construct the roadway lift, and the dozer operator
is responsible for compacting the materials. Compaction is
accomplished by means of the dozer and the trucks which come
in and out to dump the materials. The dozer spreads and
compacts the materials as the lift is being constructed. He
confirmed that he has rejected materials which are unsuitable for compaction.
Mr. King stated that during the period subsequent to
March 4, 1984, he constructed roads at the No. 45 Mine and
that the construction procedures were the same as those
which he has explained. He confirmed that he returned to
work at the mine after a back injury on March 5 or 6, 1984,
and worked there until he was laid off. Two days after the
accident, he was at the accident scene and helped recover
the truck by means of cables fastened to two or three D-9
dozers. He confirmed that he drove a 48-ton dozer with a
16 foot blade through the accident area and around to the
spoil pile near the pit to do some work on the spoil pile,
and that he had no difficulty in safely doing so.
Mr. King confirmed that after the accident, he worked
on the removal of materials from the roadway to assist in
the abatement of the order. He identified the area shown in
photographs ·No. 20 and 3, exhibit G-4, as the area on the
embankment from which he removed materials .with his dozer.
He confirmed that he also removed approximately 3 feet of
the outer edge of the roadway to achieve abatement, and the
materials removed included top soil and the outcrop down to
the rock roadway base. In some of the areas, he had to
"chisel out" the roadway base materials with the "bit" end
of his dozer, and he estimated that he took out materials

1239

over an area of approximately 16 feet at an angle along the
embankment adjacent to the road.
Mr. King stated that· he noticed nothing unusual about
the roadway as he was taking the materials out. He confirmed that Mr. Hanshaw advised him that the berm "had to be
re-established.--" The roadway had been constructed on shale
and sandstone ·and Mr. King saw "no problem" with the road
bed when he uncovered the materials. He estimated that he
removed materials along an area of some 60 feet from a point
beyond where the truck left the road and back toward the pit
area. He did not participate in the replacement of any materials, and he observed no cracks or fractures in the roadway
when he drove over it • . The materials which he removed during the abatement process were not wet or "runny or soupy"
materials. He believed that one can "feel" a berm, and that
he has done so on several ocassions when he backed into a
berm with his equipment (Tr. 2169-2221).
On cross-examination, Mr. King reiterated his prior
roadway construction experience, and he stated that if the
roadway is wide enough, it is desirable to build a berm on
the roadway because it is the stronger area. He confirmed
that he had not previously travelled the roadway where the
accident occurred until 2 days after the accident when he
was engaged in the abatement work. He again described the
areas where he removed materials during the abatement, and
he did so by references to photographs Nos. 2, 3, and 20,
exhibit G-4. He also indicated that it was not unusual for
the outer slope of the roadway to move (Tr. 2221-2-264).
Tom Pomeroy testified that he was laid off by Valley
Camp on December 28, 1984, and had previously wor~ed_with
the company since 1978 operating a 988-B loader, a dozer,
and a 50-ton caterpillar rock truck. Prior to this time, he
worked for the Princess Susan Coal Company at its contour
surface mine, operating a 38-ton Euclid, a D-8 and D-9
dozer, and a rock drill.
Mr. Pomeroy stated that .his work experience includes
the building of haulage roads at the Valley Camp No. 45
Mine, and he described the procedures he follows in the construction of such roads. He described how the materials are
trucked in, aumped, spread out, and compacted into 4- foot
lifts. The materials consisted of the shot loose rock from
the "side of the hill," and he indicated that as a dozer
operator, he has rejected materials as unsuitable. It was
not uncommon to construct a berm on the outcrop outer bank
of a roadway, nor was it uncommon to have a one-lane roadway
at a surface mine . The berms are constructed after the roadway is completed.

1240

Mr. Pomeroy indicated that he drove across the haulage
road in question about a week or so before the accident and
observed no cracks. He also indicated that he would have
noticed if there were no berms present on the roadway. He
confirmed that he has made general safety complaints to mine
management · in the past and that he is not shy in doing so.
Mr. Pomeroy stated that he observed some slippage of
materials along the outer bank of the roadway a week or two
before the accident, and had also observed slips on other
ocassions . However, he indicated that these slips never
bothered him and he did not believe that they were critical.
Mr. Pomeroy confirmed that he took materials out of the
affected areas after the accident during his evening shift
which was supervised by Mr. Maggard. He stated that he
encountered some water seep.a ge at the outslope coal seam,
but he di~ not believe it was significant . He estimated
that he took out material over an area approximately 60 to
70 feet in length along the outslope, and that he replaced
it with shot rock materials. He constructed lifts of 4 to 5
and 10 feet on the outslope to reconstruct the roadway
during the abatement period, and that a 3 to 4 foot berm was
then constructed on the rebuilt roadway.
Mr . Pomeroy estimated the width of the roadway at the
location of the accident1 both before and after that incident, to be 15 to 16 feet, and he observed no cracks or
slips on the roadway base after the accident. He described
certain ti~e tracks which he observed at the accident scene,
includi~g an area where the truck left the road.
He
believed that the material at that location had been taken
out by the "belly pan" of the truck as it left the roadway
(Tr. 2264-2307 >.
On cross-examination, Mr. Pomeroy identified a "slip"
in the area shown below the line drawn on photograph No. 3,
exhibit G-4, and he stated that he was not aware of any
problems on the roadway during the morning shift on the day
of the accident. He arrived at the accident scene some
45 minutes after the accident and assisted in the recovery
operations.
Mr . Pomeroy stated that he observed some trees which
· appeared to be slipping in an area not shown on the photographs below the outslope of the roadway, and that he had
reported this to Mr. Hanshaw and Mr. Maggard a -couple of
weeks before the accident. He confirmed that Mr. Maggard
instructed him as to what had to be done to reconstruct the
roadway during the abatement period (Tr. 2307-2368).

1241

Ireland Sutton testified that he has been the safety
director at Valley Camp since 1978, and prior to that,
worked as the training director. He testified as to his
prior experience and indicated tbat he had a degree from the
West Virginia Institute of Technology. He confirmed that he
participated··. in. MSHA' s accident investigation, and that he
also conducted· his own. · He arrived at the scene 45 minutes
after the accident and explained what he did. (Tr. 2368-2372}.
He stated that he heard no one ask any questions as to how
the roadway in question was constructed (Tr. 2373, 2374).
Mr. Sutton confirmed that all of the citations and the
order which were issued . after the investigation were served
on -him. It was his understanding from MSHA that the decision was made to remove the outer slope area of the roadway
"down to solid" and to rehabilitate it "back to its normal ·
condition" (Tr. 2376). He also stated that at no time was
he ever advised as to what practices he should employ in the
construction of haulage roads (Tr. 2376). He confirmed that
he has observed the construction of haulage roads and would
trust the opinions of Mr. Hanshaw, Mr. Maggard, Mr. King,
and Mr. Pomeroy as to how they should be constructed (Tr.
2377).
Mr. Sutton stated that after the cited conditions were
corrected, Mr. Pendergrass advised him that he would contact
MSHA to come to the mine on Saturday to abate the violations.
However, he later learned that one of the outer berms had
slipped or sloughed off and that Inspector Lively would not
terminate the violations (Tr. 2379). He examined photographic exhibit _G-5, and stated that the photographs accurately depicted the accident area the day after the accident .
when he was there, but that he did not observe the conditions shown in photograph No. 1 on the day of the accident
(Tr. 2381>.
On cross-examin'a tion, Mr. Sutton confirmed that Valley
Camp does not have a formal training course concerning the
construction of a haulage road. However, the foremen and
the superintendent do communicate with the men in this
regard, and the foremen should know what to look for when
they examine haulage roads since this is part of their
annual retra~ning (Tr. 2389-2391).
With regard to the abatement process, Mr. Sutton stated
that the instructions he received were "vague~" and he was
simply told that the area would have to be rehabilitated · and
the loose unconsolidated material would have to be removed
(Tr. 2396). He was not present when Inspector Lively came
to the 'mine on Saturday to abate the violations, and it was

1242

his understanding that the berm which Mr. Lively was concerned about had cracked along the outer edge and showed
signs of sloughing or sliding {Tr. 2397).
Mr. Sutton stated that prior to the accident, he had
traveled the roadway almost daily. While he was not aware
of any slip ·on ..the morning of the accident, he was aware of
the berm which had slipped earlier, and he confirmed that
Mr. Hanshaw told him about it {Tr. 2401-2402).
Frank Simmons was recalled by Valley Camp, and he testi-fied that based on his familiarity with mine planning,
design, and permitting, he is familiar with the geology of
the area which is being mined. He also learned the geology
of the mine through core ·drilling, prospecting, and soil
sampling and analysis. He confirmed the presence of an
underground mine No. 36 in the Coalburg Seam which is in the
area of the No. 45 surface mine, and he located the mines by
reference_ to a mine map {Exhibit CR-14).
-Mr. Simmons stated that the No. 36 underground mine is
inside a hill directly across from the Number 45 surface
mine, but at the same approximate level as the scene of the
accident . He indicated that the coal pavement dipped from
the accident are~ towards the pit, but that the roadway
surface was relatively level. The auger in question was put
in during the la~t part of February, 1984, and was located
toward the pit and out of sight of photographic exhibit CR-1 .
The augering operation struck water approximately 600 to
700 feet from the accident area, and this occurred approximately Marqh 19, after the accident. Prior to this time, he
received no reports of any water problems resulting from the
augering operation. In his opinion, the aug.ering operations .
had no effect on the scene of the accident {Tr. 2434~2448).
Mr •. Simmons confirmed that he was aware of a slip which
occurred on Februry 22 or 23 in the accident area, and .that
Mr. Augustine told him about it . Mr. Simmons also confirmed
that he was aware of other slips on the mine haulage roads,
and he stated that these were common occurrences. He
explained that the inside or outside cut of the roads are
subject to rain, freezes, and thaws and if the roadway is on
the soil, rather than rock, slips will occur. However, he
was not concerned about the slips reported by Mr. Augustine
because the mine haul road surfaces are built on the coal
pavement which is composed of solid material (Tr.
2455-2456).
Mr. Simmons stated that he travelled· the haul road in
question and saw no evidence of slippage, cracks, . or fractures, and he received no complaints from any of the truck

1243

drivers who used the roadway (Tr. 2457). He agreed with the
work done by Mr. Hanshaw to correct the slippage which was
reported to him, and in Mr. Simmons' opinion, he would not
have dug up the roadway and rebuilt -it because t here were no
fractures or anything to reflect a problem on the immediate
road surface (Tr . 2458). He further explained his answer as
follows <Tr ·; -2459-2460>:
JUDGE KOUTRAS : This is over the berm and
down the slope and on the slope of the outcrop, down on the embankment. What if you
saw cracks and fractures there? Would that
· concern you?
THE WITNESS:
JUDGE KOUTRAS:

Down below the roadway?
Yes .

THE WITNESS: It would -- not necessarily.:
When you say "concern," you mean would you be
alarmed? Not necessarily alarmed, but you
should pay attention to it, yes, sir.
JUDGE KOUTRAS: How long do you pay attention
to it -- would you pay attention to it?
THE WITNESS: Well, in -- as long as you're
using the roadway.
JUDGE KOUTRAS: Uh-huh.
qe looking for? .

And what would you

THE WITNESS: To see if there's any additional slippage or if it's going to cause the
integrity of the -- you know, jeopardy of the
integrity of the roadway.
When asked about his opinion as to what caused the slip
which occurred on the outslope of the road bank on
February 23, Mr. Simmons replied as follows (Tr. 2462-2463):
A. Well, there's, I think, several factors,
some of which everybody else has stated. One
thing that has not been stated was that there
was a prospect road down below there in the
Winifred Seam.
Okay, having that undercut some of this material, and with some of the testimony that
some of the people saw water when they got
down to 15 or 16 feet below the roadway, that

1244

freezing and thawing and heavy rains
you
know, there's so many things that could contribute to the slip -- lots of things •
And am I hearing you tell me that it was
a combination of things, in your opinion,
includtng ..the prospect road, the water out of
the. coal seam that was several feet below the
road base, and the weather conditions and the
heavy rain?

.Q.

A. I'm saying they are all a possibility,
and without testing, you don't know. You do
not know.
Q• . Now, about this water coming out ·of the

coal seam that there's been testimony on.
You've heard that testimony, is that correct?
A.

Yes, ma'am.

Mr. Simmons, in your op~n~on, did that
water in any way effect the stability of ·the
roadway in this case?

Q.

A.

No, ma'am, not the roadway at all.

Q.

Why do you say that?

A. Well, because it was coming out of
strata, solid rock and coal, one or the
other, below there, and there was sandstone
above, shale above that, that was hard, solid
material, as -- which has been discussed in
prior testimony.
And that mater.ial was between the coal
seam -- the small coal seam and the road
base, is that correct -- and the roadway?

Q.

A.

Yes, ma'am.

Mr. Simmons stated that he traveled the roadway at the
accident scene on March 5, shortly after the accident
occurred, and that he observed no cracks, breaks, or fractures in the roadway surface. He observed the right rear
tire trucks and believed that the victim was simply not paying attention (Tr. 2464-2465). He testified further as to
his opinions and interpretations concerning certain photographic exhibits, as well as · the maps included as part of
MSHA's accident report (Tr. 2465-2469).

1245

Mr. Simmons stated that prior to the accident, the
width of the roadway at the accident location was approximately 15 to 16 feet (Tr. 2469). He also believed that the
left front truck tire was off the roadway, and that the
truck traveled for some distance in the berm. This area was
sufficient·· to S.Upport the truck "until the angle of the
truck out over the edge of the truck (sic) exceeded what it
could withstand" . (Tr. 2470, 2472).
On cross-examination, Mr. Simmons was of the opinion
that the accident victim would have traveled on the berm for
a distance of 70 feet, and that it would have taken him
10 seconds to travel this distance at a speed of 5 miles an
hour (Tr. 2488). Mr. Simmons confirmed that he was at the
accident scene for approximately 15 to 20 minutes, and he
testified further as to his observations concerning the tire
tracks (Tr. 2492-2494). He was asked about his "concerns"
regarding road outslope slippage, and he responded as
follows (Tr. 2499, 2501):
JUDGE KOUTRAS: Let me just ask the question
a different way. Assuming that someone came
to you, prior to the accident, and said over
a period of three weeks and said we had
30 foot of berm slip or slide in one area, we
had 60 feet slip or slide at the immediate
area, and we had another 30 feet slip or
slide right there -- and by the way, after we
abated it, we had a crack in the berm and
MSHA wouldn't abate it. Assuming that you
were aware of all these things that I've just
told you, would that concern you?
THE WITNESS:

Yes, sir, it would.

JUDGE KOUTRAS:

Why would it co·n cern you?

THE WITNESS: Because it would -- there was
some instability on the outside -- on the
outs lope.

*

*

*

*

*

*

*

BY MS. GISMONDI:
Q. Mr. Simmons, the facts that the Judge
asked you to assume, would they concern you
with respect to the stability of t _he· roadway?

A.

Yes, ma'am.

1246

When asked about the "slip" which appears to be
depicted in photographic exhibit No. 1, G-4, Mr. Simmons
responded as follows (Tr. 2504-2506}:
JUDGE KOUTRAS: Now, Mr. Simmons, I'm going
to ask · yo~ if -- if you were driving along
th~ haulage road and you saw these conditions, would that concern you?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS:

Why?

THE WITNESS: Because it's in the close
poximity of the roadway.
JUDGE KOUTRAS: And how would you characterize these conditions?
THE WITNESS :

Well, that is a slip.

JUDGE KOUTRAS:

Which is a slip?

THE WITNESS: Right here below this fill.
(Indicating.>

*

*

JUDGE KOUTRAS:
about .it?

*

*

*

*

*

Okay, and what would you do

THE WITNESS: Well, in this particular case,
I would get a-hold of Mr. Hanshaw and let's
see what we can -- you know, move the road to
the inside, build the berm back on the solid.
. Wayne Lively, MSHA Surface Mine Inspector, testified as
to his background and experience, and he confirmed that he
has been an inspector since July, 1977,. He worked in the
mining industry for about 5 years before he was an inspec·tor, and he has operated coal trucks, haulers, loaders,
dozer, and augers. His present work includes the regular
inspection of haulage roads on surface mining facilities,
and he has received regular MSHA-training as a coal mine
inspector, including on the job training. His formal training with regard to haulage roads is from reviewing books and
materials on that subject.

1247

Mr. Lively confirmed that he visited the No. 45 Mine on
Saturday, March 10, 1984, and he did so to abate the imminent danger order. He stated that his supervisor telephoned
him the evening before and instructed him to go to the mine
and abate the order which had been issued on the haulage
road. His supervisor advised him that someone from Valley
Camp had called. to advise that the haulage road conditions
cited in. the ·o rder had been corrected.
Mr. Li vely stated that upon arriving at the mine at
approximately 7:00a.m., he met with Foreman Roy Hanshaw,
mine superintendent Zeb Pendergrass, State Mine Inspector
Gordon Wiseman, a UMWA safety committeeman, and several
others. Mr. Lively stated that the accident area looked
different than the way it is shown in the photographs,
exhibit G-4, and he explained that this was because the berm
along the haulage road had been reconstructed.
Mr. ~ively stated that when he arrived at the haulage
road, he was shown the location where the truck had gone
over the road. Upon inspection of the area, Mr. Lively
observed a crack in the roadway approximately 2 to 6 inches
wide and extending for approximately 30 feet in the roadway .
The crack then extended into the berm at the outer edge of

the roadway and was visible for the entire length of the · top
of the berm. The crack at the top of the berm ranged from 2
to 6 inches in width and extended the entire length of the
berm, for approximately 150 feet.
Mr. Lively viewed photograph No. 3, exhibit G-4, and he
stated that. the crack in the road and berm began at the
approximate location of the crib block shown in the photograph, and extended out to the top of the photograph toward
the curve in the roadway in the direction of the pit:
Mr. Lively stated that the ground conditions at the
haulage road were frozen, and it was his opinion that had
the ground thawed, the crack might have worsened and continued. Under these circumstances, he· advised Mr. Hanshaw
and Mr. Pendergrass that he could not terminate the order.
Mr. Lively believed that the crack was "one continuous
crack," and he believed that it was the result of the berm
and roadway being constructed on unstable ground.
Mr . Lively stated that he made certain recommendations
to Mr. Hanshaw as to how to correct the conditions, and that
Mr. Pendergrass advised him that he would contact MSHA again
when the roadway was ready so that the order could be abated.
Mr. Lively stated that he was at the mine for approximately
2-1/2 hours.

1248

On cross-examination, Mr. Lively reiterated his observations of the crack in the roadway and berm, and he confirmed
that he made brief notes of his observations. He stated
that the berm which had been reconstructed was approximately .
"waist high" or 3-1/2 to 4 feet in height. Since it had
cracked while the ground was frozen, he believed that the
crack result·ed ..from movement of the ground and that it would
continue to crack once the ground thawed. Mr. Lively stated
that the berm was constructed of overburden materials with
rocks mixed in, but that most of the berm consisted of
"yellow clay" material. He conceded that he had observed
berms of similar construction at other ·surface mines, and
apart from the crack which he· observed, he had no problem
with the berm.
Mr. Lively stated that he gave no specific instructions
to Mr. Hanshaw or Mr. Pendergrass as to how to correct the ·
crack in the berm, but he did suggest or recommend tpat the
haulage r~ad be relocated to the top of the spoil bank or
that it be widened by cutting into the spoil bank.
Mr. Hanshaw and Mr. Pendergrass "ruled out" these suggestions and said nothing further to him. Mr. Lively believed
that the haulage road bad been constructed on unstable
ground.
Mr. Lively stated that when he was at the haulage road,
he looked over the embankment and observed evidence of
. frozen dirt material sloughing on the outside bank. He also
identified the "tree line" shown at the base of the hill in
photograph No. 3, exhibit G-4, and stated that he also
observed this while at the haulage road.
In response to further questions, Mr. Lively stated
that he had not previously observed the haulage road"prior
to the time he visited the mine on March 10, 1984. He confirmed that he was aware that an accident had occurred, but
that he did not discuss his observations of the cracks he
observed with Inspector Grose or with Inspector Slaughter.
He also confirmed that after Mr. Slaughter abated the order
the following Monday, March 12, 1984, he did not . discuss the
matter further with Mr. Slaughter and had no knowledge as to
how the· cracks in the roadway or berm were corrected to
achieve abatement.
Steve Popp, testified that he has been laid off from
his job at the No. 45 Mine since January, 1985, and that
prior to this, he worked at the mine for approximately
1 year and 3 months as a dozer operator. His prior experience includes the operation of a track loader and end loader
doing reclamation work for about 1-1/2 years, and as a back

1249

hoe and loader operator on Interstate I-64 for about
3 years.
Mr. Popp stated that he worked-the evening shift with
accident victim Bruce Hartwell during March, 1984, and that
he was aware of the accident which occurred on March 5.
Mr. Popp sta·t ed that he was aware of certain problems in the
accident. area · prior to the day of the accident and that he
could see dirt and other materials over the hill, and could
hear the tree timbers "cracking." He believed that this was
caused by the movement of dirt against the trees.
Mr. Popp reviewed photograph Nos. 2 and 3, exhibit G-4,
and stated that approximately a week or so before the accident, he observed the slip conditions which appear in the
photographs, and he specifically identified the material
below the "black line" drawn on photograph No. 3 as a slip. ·
Mr. Popp indicated that the truck drivers on his shift
knew about these slip conditions because "they had to drive
through the area" and that it was a topic of discussion. He
also stated that he spoke with Mr. Hanshaw about these conditions and that Mr. Hanshaw walked through the area and told
him that "it was not working that much." Mr. Popp could not
specifically recall when he spoke with Mr. Hanshaw, but confirmed that it was some·time before the accident occurred.
Mr. Popp had no personal knowledge that foreman Maggard was
aware of these conditions.
Mr. Popp stated that approximately 2 to 3 days, or a
week befor~ the accident, he did some work in the slip area,
and that this work was an attempt to fill in and over the
slip area. He stated further that this work took place in
the area - starting where the two individuals are shown in
photographic exhibit CR-1, that approximately 500 to 1,000
tons of materials were trucked in to do this work, and that
Mr. Maggard assigned him to do this work •
. Mr. Popp stated that he reported for work at approximately 4:00 p.m. the day of the accident, and that prior to
the accident, he observed that the slip over the hill or the
embankment was still visible. While there was some ma·terial
approximately a foot high at the edge of the roadway where
the truck went over, he did not consider this to be a berm .
He also indicated that there were daily maintenance problems
with the berm at the location where the truck went over the
hill and that this was true during the period before the
accident and on the day of the accident.
Mr. Popp stated that after the accident, he worked on
the haulage road ~emoving materials to achieve abatement of

1250

the order. Materials were removed "from the outside slip
down to solid ground" and a V-ditch was constructed with a
core-rock base in order to allow water to drain off. He
indicated that after the materials were removed, the area
was back-filled with 2 foot lifts in the slip area and then
"stepped" in a manner to reconstruct the slip area to the
level of the· original roadway. Mr. Popp indicated that part
of this abatement work was accomplished during the day shift
by Mr. King, and that the evening shift would continue the
work where the day shift left off. He estimated that he
worked two shifts to complete his portion of the work.
Mr. Popp sketched a diagram, exhibit G-15, and
explained how he "stepped" the slope area during the abatement process. He indicated that when he began his work on
this abatement, he took out the first 5 feet of material
down to solid rock, and then proceeded to "step-out" to the ·
next location for another 5 foot depth to solid rock, and
then repe~ted the process down to solid material.
Mr. Popp stated that during his abatement work, approximately 2 to 3 feet of the outer edge of the roadway surface
itself was removed. In his opinion, the width of what was
left of the roadway surface after the accident and during
the abatement at that location was approximately 8 feet. He
also indicated that he trammed his dozer through the area by
driving on a portion of the spoil bank. He indicated that
he could have driven a dozer with a 16 foot blade and a
12 foot wheel base through the accident location, but that
he would have had to drive on a portion of the spoil bank to
do so.
Mr. Popp confirmed that he participated in the rescue
operations after the accident, and in his opinion, the accident resulted from a failure of the roadway in that the edge
of the roadway and the berm "gave out."
Mr. Popp stated that while he was reconstructing the
slip area during the abatement, he encountered some water at
both of the coal seams below the roadway level. He confirmed that he did not build the original roadway, but that·
the portion which he reconstructed during the abatement was
constructed of good rocky ·materials.
On cross-examination, Mr. Popp confirmed that he
observed the slipping and cracking tree line while traveling
the haulageway. He stated that he had repaired different
portions of the haulage road and that Mr. Maggard instructed
him to do so as required. Mr. Popp stated that as the dozer
operator doing the repair work a week or so before the accident, he directed the trucks where to dump the materials.

1251

Mr. Popp then pushed ·the materials over the slope with his
dozer where he was to construct the berm, but that "it
wasn't working out." He explained that the materials could
not be stabilized, and after his work shift ended, he went
home and said nothing to Mr. Maggard about the situation.
Later, 1 to 3 days before the accident, Mr. Popp was at the
roadway and .he observed that the materials had slipped, but
he did not report the situation to anyone because he
believed that the foreman could see the conditions.
Mr. Popp stated that he was satisfied with the work
performed to abate the order and that he was confident that
the berm and roadway which had failed had been reconstructed
on a solid base and that the materials used were adequate to
stabilize the slip conditions.
Mr . Popp confirmed that he was not contacted by MSHA
during the investigation of the accident . He stated that he
was contacted 2 days before he testified in this case by a
UMWA representative and was asked about his knowledge of the
haulage road construction. He also confirmed that Valley
Camp.' s safety director Sutton also contacted him, but that
he would not speak with him about the matter without the
benefit of counsel. Mr. Popp asserted that he harbored no
grudge against Valley camp and that he had not discussed his
testimony with the UMWA representative who contacted him.
Inspector Grose was called in rebuttal and testified
that he did not instruct Mr. Augustine to take measurements
from the outside tire tracks to outside tire tracks which
were on the . roadway. He confirmed that he did not specifically instruct valley camp officials as to how to go about
abating the conditions he cited because this would be. contrary to MSHA policy. He stated that when he walked the out
slope area during his investigation, on March 6, the ground
was soft. It was his opinion that day that the berms were
inadequate, and after walking the edge of the roadway and
the berm area, he was of the opinion that the roadway construction was inadequate in that it was constructed on loose
unconsolidated materials. He estimated that the berms
ranged in height from 12 to 24 inches, and he did not
believe they were adequate to restrain a vehicle.
Mr. Gro~e stated that constructing a berm on out crop
or out slope material rather than on a roadway surface, is
not a per~ violation of section 77.1605{k), and that it
would depend on whether the ground under the berm is stable
or not. He also stated that his report does not contain any
i~formation about the presence of any water, or that water
undermined the surface of the roadway because he did not
believe that this was the most important factor which may

1252

have contributed to the failure of the roadway. He also
confirmed that his concern about the stability of the roadway was with respect to the outer edge of the actual surface
of the roadway and the berm which had been constructed on
the bank, rather than the entire width of the roadway.
On cros·s:..examination, Mr. Grose confirmed that he could
not recall specifically asking anyone about how the roadway
in question was originally constructed. He also stated that
the width of the roadway after abatement was 14 to 16 feet
and that the berm was constructed of clay material and rock.
He also believed that roadway construction after abatement
was "better."
Dr. Wu testified in rebuttal that a mine operator
should be able to control the amount of spoil he will produce and that he should consider the desired widths of any
haulage roads during the initial planning stages of any
surface mining which is to take place. He did not believe
that the slip conditions shown in photographs 1 and 3,
exhibit G-4, resulted from rainfall during the period
between the accident and the next day when the photographs
were taken.
Dr. Wu was of the opinion that the work done by
Mr. Popps on the berm and road compounded the problem with .
the slip conditions which were present in the area where he
was working and that this work was simply a "superficial
dressing" for an area which had evidence of ground movement.
Dr. Wu also believed that water is always a problem at any
mine, but that the presence of any water at the accident
location in this case had a limited affect on the roadway.
However, if water is present, it must be disposed of,.and if
not, it will in time impact on a haulage road. Dr. Wu was
also of the opinion that given the signs and warnings of
ground movement along the haulage road in question, the operator. should have paid closer attention to address those
conditions.
On cross-examination, Dr . Wu stated that in his opinion
the spoiling method used by the operator contributed to the
existence of narrow portions along the haulage road. He
also conceded that a variety of factors contributed to
ground movement in the area of the haulage road.
Mr. Hanshaw was called in rebuttal by Valley Camp, and
he stated that he monitored the slip condition in the area
of the accident where Mr. Westfall's truck . was parked, and
that on February 22, a stick was placed along the out slope
in that area so that the slip could be observed and
monitored.

1253

Mr. Hanshaw stated that he had no knowledge of the work
performed by Mr. Popp and he explained that Mr. Popp worked
the evening shift and that it was possible that his work was
performed as described, but that he ·(Hanshaw) had no knowledge of it.
Findings and Conclusions
Docket No. WEVA 84-169-R
In this case Valley Camp is charged with a violation of
mandatory safety standard 30 C.F.R. § 77.1605(k), for inadequate berms along the outer bank of the haulage roadway.
The allegation is that loose, unconsolidated earth spoil
material was used to construct the berms and that they were
not adequate to restrain the heavy equipment using the road-.
way. The cited standard reads as follows: "Berms or guards
shall be provided on the outer bank of elevated roadways."
The term "berm" is defined in 30 C.F.R. § 77.2(d) as "a
pile or mound of material capable of restraining a vehicle."
In Secretary of Labor v. United States Steel Corporation,
5 FMSHRC 3, 6, January 27, 1983, the Commission noted as
follows:
"Restraining a vehicle" does not mean,
as u.s. Steel suggests, absolute prevention
of overtravel by all vehicles under all circumstances. ~iven the heavy weights and
large sizes of many mine vehicles, that would
probably be an unattainable regulatory goal.
Rather, the standard requires reasonable control and guidance of vehicular motion.
And, at 5 FMSHRC 5:
We hold that the adequacy of a berm or
guard under section 77.1605(k) is to be
measured against the standard of whether the
berm or guard is one a reasonably prudent
person familiar with all the facts, including
those peculiar to the mining industry, would
have constructed to provide the protection
intended by the standard.

*

*

*

*

*

*

*

Under our interpretation of the standard, the adequacy of an operator's berms or
guards should thus be evaluated in each case

1254

by reference to an objective standard of a
reasonably prudent person familiar with the
mining industry and in the context of the
preventive purpose of the statute. When
alleging a violation of the standard, the
Secreta~y is required to present evidence
showing ·t hat the operator's berms or guards
do not measure up to the kind that a reasonably prudent person would provide under the
circumstances. This evidence could include
accepted safety standards in the f~eld of
road construction, considerations unique to
the mining industry, and the circumstances at
the operator's mine. Various construction
factors could bear upon what a reasonable
person would do, such as the condition of the
roadway in issue, the roadway's elevation and
angle of incline, and the amount, type, and
size -of traffic using the roadway.
Truck driver James Westfall, the only eyewitness to the
accident, testified that the truck which left the roadway
appeared to be "on or close to" t,he berm at the edge of the
outer bank of the roadway for a distance of approximately
40 feet· and that it "took out" the berm as it went over the
edge. The estimated speed of the truck was 5 to 10 miles an
hour, and there is no indication of any mechanical defects.
As described by Mr. Westfall, the truck appeared to turn
over "in slow motion" as it began to go over the edge of the
roadway. Thus, it would appear that any existing berm was
inadequate to restrain or otherwise physically prevent the
truck from leaving the roadway. The test to be applied in
determining whether a violation has been established .is
whether or not MSHA has established by a preponderance of
the evidence that the berm which the inspector alleges was
constructed of loose, unconsolidated earth spoil material
was the kind which a reasonably prudent person would provide
under the roadway conditions which existed at the time of
the accident.
There is a difference of opinion as to what constituted
an adequate berm height along the roadway in question.
Inspector Grose believed that the berm should have been constructed on a wide base, and at heights of 6 to 8 feet.
Inspector Slaughter stated that after abatement, the berms
appeared to have been constructed on a 3~foot base, and at
heights ranging from 3 to 4 feet. Since he abated the
order, I assume that Inspector Slaughter would agree that a
3 to 4 foot high berm was adequate.

1255

Loader operator Estep testified that the height of the
berm would depend on the width of the available roadway, and
he was of the view that in light of t he narrow roadway,
MSHA's mid-axle height guideline was- difficult to achieve .
He stated that the berm was originally constructed to a
height of 2 feet, but that after it was replaced when the
roadway slippage occurred, it was constructed to a height of
3 to 4 feet. He believed that the purpose of the berm is to
alert a driver · that he is "over too far," and he would construct a berm 4-1/2 feet high on a 6 foot wide base so that
the truck driver could see it. He also indicated that in
his experience at the mine, · the berms were always constructed
at a height halfway up the axle of the largest piece of equipment using the roadway, and this would be 3-1/2 feet high,
the mid-axle height of a 988 end loader.
Loader operator Nichols testified that while he was
aware of MSHA's mid-axle high policy, he usually constructed
the berms .at heights ranging from 4-1/2 to 5-1/2 feet high,
and he did so because that had been his practice at other
mines. He also indicated that he constructed the berms by
"dumping and piling spoil materials" with his end loader.
Foreman Maggard was of the opinion that a 2 foot berm
would have been· adequate at the roadway location where the
accident occurred, and he confirmed that when the berm was
replaced after it had slipped the day after construction was
completed, it was simply "firmed up" with materials taken
from the spoil pile.
Dr . wu.testified . that assuming Inspector Grose's measurements of a 14-inch berm are correct, he was of the
opinion that a truck driver would not be able to "fee.!" the
berm, and that it would therfore be inadequate.
Mr. Saunders, Mr. Estep, and Foremen Hanshaw and
Maggard all agreed that a berm should be constructed high
enough so as to alert a driver that he . is close to the edge
of the road. They all agreed that a driver should be able
to visually observe the berm so that he may "guide" his
vehicle away from it. Further, both Mr . Maggard and
Mr. Hanshaw confirmed that at some areas at the mine where
there are curves or "switchbacks" in the roadway, the berms
are constructed larger than 4 feet high, ·and Mr. Hanshaw
stated that he has seen them as high as 10 to 15 feet (Tr.
983-984; 1135; 1682-1683; 1887-1889).
The record in this case establishes that from the day
construction was completed on the roadway, and for an approximate 2-week period after that, problems were encountered
with berms slipping or subsiding along the roadway.

1256

Mr. Estep, Mr. Simmons, Mr. Hanshaw~ and ~r. Maggard all
confirmed that the day after construction was completed, the
berm slipped off the edge of the roadway for a distance of
approximately 30 to 40 feet. Although the berm was immediately reconstructed, additional slippage continued. Mr. Popp
testified that there were daily maintenance problems with the
berm at the location where the truck went over the hill both
before and after the accident. Mr. Anderson testified that 3
or 4 days before the accident a berm had been washed away by
rain, but that he replaced it with materials trucked in from
the pit. He also testified that the berm at the accident
location was "small," that there was a berm problem in one
area along the roadway where "it was real bad," and that at
the accident location there was a "problem" for a distance of
some 60 feet.
·
Mr. Estep testified that on the day of the accident and
prior to that incident, the berm at the immediate accident
location had slipped about 3 or 4 feet, and he described it
as "completely gone." Mr. Nichol's viewed that same area
shortly before the accident, and he stated that the berm had
slipped or subsided to a point where it was only 6 to
8 inches high. Mr. Popp also view that same area, and while
he observed "material" approximately 24 inches high along
the edge of the roadway, he did not consider this to be a
berm. Although Mr. Hanshaw testified that when he last
observed the berm along the roadway at approximately
2:00p.m., the day of the accident it appeared to be 4 feet
high and 6 feet wide at the base. He also stated that he
observed some slippage at the accident location for a distance of some 40 feet. He also confirmed that he was aware
of some berm slippage · around the corner from the accident
scene, and that he dispatched Mr. Estep to that area to
repair the berm.
Inspector Slaughter noted differences in the composition of the berms on the day of the investigation, as well
as several days later after abatement was ~chieved. He testified that the berm on March 6th was ~a soft dirt-type
berm, which was saturated" but that on March 12th, the berm
"was a blue-type material which indicates shale and rock and
a solid-type material. The berm on the 12th also appeared
to be higher and wider and "a more firm berm" <T.r . 479-480).
Inspector Grose testified that he measured the axle
height of the haulage truck which ran off the road and determined that the vertical distance from the road to the
mid-axle wa~ 22 inches. He measured the existing berm
heights along pqrtions of the roadway, and found that they
were 24, 14, and 18 inches high. The 14 and 18 . inch berm
heights were at the location where the truck left the road.

1257

Referring to his ·notes which were made at the time of his
investigation, Mr . Grose indicated that the berm was "constructed of soft earth-inadequate to retain vehicles-stepped
on berm and foot submerged" (Tr. 96, · exhibit G-8). He testified that upon visual observation, the berm was constructed
of "earth-type spoil material" and was "just a unit of mud
and water" '(''!'r . .. 113 >. He also indicated that the "very soft
earth" berm materials were not compacted, and that without
some "additional materials or elements in it, it's hard to
.compact this type of material" (Tr. 135). The "additional
materials" would have been "more rock than earth" as were
used in the abatement of the citation (Tr. 136).
Inspector Grose testified that one of the factors which
influenced his decision to issue the citation was the fact ·
that the berm heights at the roadway location where the
truck left the road were not at least 22 inches as specified·
in MSHA's "mid-axle height" policy guidelines (Tr. 113-114).
Additiona~ factors which influenced his decision are
reflected in the following testimony (Tr. 114-115):
BY MS. GISMONDI:
Q. Just limiting ourselves to this particular vehicle, Mr. Grose, if this berm had been
24 inches throughout the entire area, but
none of the other conditions were changed, it
was still made of the same material and the
rest of the conditions remained the same,
would you have considered that to be
adequate?
A.

No.

Q.

Okay, And why not?

A. He couldn't use it as a site guide to see
where he was in relation to the e4ge of the
roadway, and it would not be stable enough to
give him any indication that he had hit the
berm if, in fact, a tire would hit a berm.
If ~t was a berm, and the tire would hit
it, he wouldn't know he hit it. This soft
material -- a 65-ton -- you wouldn't know if
you was hitting the berm, if you was in the
berm. It would have no means to retain or
deflect or warn the driver that he was near
the edge of a road.

1258

Okay, so would I be correct in understanding that your concern with this berm -was not
limited to the height of the berm?
Q.

A. No. I have to consider it, · but there's
several factors I consider besides the fact
of the. _ })~ight.
Q. ·okay • . Well, what else do you consider
besides the height when you try to determine
the adequacy of a berm?

A. Two of the main things I consider is if
the operators of the equipment can see it.
Is it of such a configuration and design that
the operators can see it within a normal distance of where they are in relation to their
vehicle?
·
·Another thing I consider is the ability
of the berm to help retain or deflect a
vehicle back to the roadway in the event it
should slide. While going parallel, if it
should slide over against the berm, the
ability of the berm to deflect the vehicle
back to the roadway. ·
Although Mr. Augustine stated that he observed the berm
sometime prior to the accident and that it was approximately
19 to 31 inches high, he did not view it on the day of the
accident or at anytime immediately before that event. With
regard to the testimony of Mr. Anderson that the berm was
3 feet high when he worked on it, the fact is that he worked
on it several days prior to the accident and had no opportun- ·
ity to view it on the day of the accident or at anytime immediately before the event. As for the testimony of Mr. Hanshaw
that the berm at the accident location was approximately
4 feet high when he viewed it at approximately ·2:00 p.m., or
approximately 2 hours before the accident, I give more credence to the testimony of Mr. Estep and Mr~ Nichols that it
was substantially less than that claimed by Mr. Hanshaw.
In its posthearing brief, Valley Camp's counsel argues
that Inspector Grose's observations the day after the accident are not "representative of the construction of the berm
prior to the accident due to overnight heavy rainfall, the
disturbance caused by the truck travelling over the bank,
and the subsequent rescue efforts. counsel concludes that
the construction of the berm prior to the accident was consistent with what a reasonable person familiar with the situation would construct - in the area of the accident.

1259

I have carefully reviewed the record in this case, and
while Valley Camp presented detailed testimony as to the
methods and procedures used in the construction of the roadway, I find very little to rebut Inspector's Grose's testimony as to the condition of the berm. As a matter of · fact,
Mr. Hanshaw ·testified that the berm is constructed as the
road is being constructed by simply dumping and leaving materials on the roadway to be shoved out by the dozer to form a
berm. When asked whether the materials are compacted, he
replied "some of it is and some of it's not" (Tr. 1674).
Mr. Nichols testified that he constructed berms by simply
dumping and piling spoil material with his end loader, and
Mr. Maggard indicated that the berm which had slipped a week
or so before the accident was reconstructed by "firming it
up" with materials taken from the adjacent spoil pile.
After careful consideration of all of. the ·testimony and
evidence adduced in this case, I conclude that MSHA has
established a violation by a preponderance of the evidence.
Although I have considered the fact that part of the berm
was taken out by the truck when it left the roadway I find
the testimony of Mr. Estep, Mr. Nichols, and Inspector Grose
to be credible, and it supports a conclusion that prior to
the accident, the berm along the roadway in the area where
the truck went off the edge was at most 18 inches high. I
also find credible Inspector Grose's testimony that the berm
was constructed of loose and soft materials which were not
compacted. Given the size of the 65-ton haulage trucks
which used the roadway, I conclude and find that a driver
would have difficulty distinguishing the roadway from a berm
in the condition as the one described by Inspector Grose.
Not only would the driver have difficulty seeing the 9erm
from the driver's side of his truck, but he would also have
difficulty in "feeling it" with the truck tires.
Given the fact that the berms and roadway outslopes had
shown prior evidence of slippage and s~bsidence, particularly
when it rained, and given the additional fact that mine management personnel were aware of these problems, I believe
that a reasonably prudent person would · have taken positive
steps to insure that the berm was constructed of materials
which would be compacted in such a manner as to allow a
driver to know. when he is on the berm. I also believe that a
reasonably prudent person would have insured that the berm
was constructed and maintained at a height which would have
been readily observable to a driver. On the facts of this
case, I am not convinced that Valley Camp acted reasonably to
insure compliance with the cited standard, and I agree with
MSHA's argument that the berm was inadequate. Accordingly,
Citation No. 2127008 IS AFFIRMED.

1260

Docket No. WEVA 84-170-R
In this case Valley Camp is charged with a violation of
mandatory safety standard 30 C.F.R. § 77.1600(c), for failing to consp~cuously mark or install warning devices at the
haulage roadway -location where the roadway was reduced from
25 feet to 14 feet 2 inches. The cited standard reads as
follows: "Where side or overhead clearances on any haulage
road or at any loading or dumping location at the mine are
hazardous to mine workers, such areas shall be conspicuously
marked and warning devices shall be installed when necessary
to insure the safety of the workers . "
There is a dispute as to the accuracy of the measurements concerning the width of the roadway as reflected in
the map which is a part of MSHA's accident investigation
~eport.
Valley Camp's counsel asserted that the map measurements are .critical because the useable portion of the roadway on which a truck could travel would be from the base of
the spoil bank to the inner edge of the berm opposite the
spoil (Tr. 647). Counsel took issue with Inspector Grose's
testimony and notes concerning his measurements of the roadway as 14 feet 11 inches, and suggested that Mr. Augustine's
testimony and calculations are more credible and reliable
(Tr. 649).
MSHA's counsel expressed "tremendous difficulty" with
Mr. Augustine using an "uncertified" map and a ruler to
determine roadway widths (Tr. 650). Counsel pointed out
that the mine superintendent took a measurement of the roadway width with a tape measure on the evening after the accident, and that at the point where Mr. Grose measured .
14 feet, 11 inches, the superintendent's measurement was
14 feet, 8 inches (Tr. 653).
Mr . Augustine confirmed that his survey crew used a
steel tape measure, as did Inspector Grose; but that while
he observed Inspector Grose taking his measurements, at no
time did Valley Camp and MSHA take the measurements
together, nor were there any mutually agreed upon measurements taken at the time of the investigation. Valley Camp's
counsel suggested that Mr. Grose deleted the single asterisk
measurements ·from the map provided him by Mr. Augustine
because Mr. Grose did not take those measurements (Tr.
652-653). Mr. Augustine could not recall where he observed
the inspector's party taking measurements, nor could he
identify the specific locations where these ·measurements
were taken by reference to his map, other than "close to
where the truck went over the road" (Tr. 667).

1261

Valley Camp's position is that the accident victim was
well over the berm in an area that was never intended to be
driven on, and that the berm was built on the useable portion of the roadway from compacted materials brought in from
the bedrock (Tr. 657). Assuming that the victim was out of
control, or. . t .hrough "driver error" drove into or to the top
of the berm, ~onnsel asserted that at that point the victim
had 19 feet 11 inches of roadway width to maneuver his
truck, and more than adequate room to 11 hug the spoil."
Counsel concludes that his failure to do so constituted
"driver error," and that this error, rather than a slip in
the roadway, caus.e d the acc.ident (Tr. 657). counsel suggested further that had the victim followed "normal operating procedures,n the accident would not have happened CTr.
658).
The evidence in this case establishes that the haulage ·
road in question was approximately 28 feet wide when it was
first completed approximately 2 weeks before the accident.
During this period of time, the roadway widths at the approximate location where the accident occurred were narrowed by
the process of spoiling, as well as roadway maintenance and
repair work which became necessary as a result of outslope
slippage and berm subsidence. Estimates of the width of the
roadway immediately before the accident varied, and after
the accident, Inspector Grose, assisted by Inspector
Slaughter, measured the width of the roadway at the point
where the truck left the roadway, and he determined that the
roadway was 14 feet 2 inches wide.
There are no mandatory safety standards qovering roadway construction, nor are there any standards or guidelines
which set forth the required roadway widths for haulage
roads. Given. the fact that 65 ton haulage trucks approximately 12 foot wide used the roadway in question, the critical question here is whether or not MSHA has established by
a preponderance of th~ evidence that the side clearances
along the stretch of the roadway where the· accident occurred
were hazardous. While the width of the roadway is critical
in any determination of adequate side clearance, consideration must also be given to the condition of the roadway
slope, the immediate edge of the roadway, and the adequacy
of the berms.
Although truck driver James Westfall stated that he
experienced no problems driving through the accident area
prior to the accident, he confirmed that he would be about · a
foot from the berm as his truck passed through that portion
of the roadway. He also confirmed that there were several
narrow road locations where empty trucks would have to move
over to yield the right-of-way to loaded trucks, and he

1262

identified .the roadway area at the accident location as an
area where he knew that only one truck could pass.
Truck driver Winford Saunders testified that because of
the rain and mud, at least 4 feet of. the roadway at the accident locati.C?~ had slipped on the day of the accident, and
that this . resulted in the width of the roadway being reducea
to a point where · a 12-foot wide truck could not pass through.
Mr. Saunders also testified that as a result of this condition, he and another driver refused to drlve their trucks on
that portion of the roadway.
Loader operator Bruce Estep testified that on the day
of the accident a portion of the roadway approximately
50 feet from the accident ~ocation slipped, and he confirmed
that Mr. Saunders advised him that truck drivers refused to
drive their trucks through the area because "part of the
road was gone." Mr. Estep also testified that in .the immediate area of the accident location, he noticed that 3 to
4 feet of berm had fallen or ·slipped, and that the berm was
gone. He estimated that the roadway · at the accident location was 12 to 14 feet wide, and he .considered this· to be a
narrow road. Although he believe~ that it was saf·e for an
~ truck to drive through the area to the pit after he
rEij)cl{red the roadway which had slipped, he did not believe
it was safe for a loaded truck to d.J:'ive through, and he
would not have done so.
Dozer operator Carl Anderson described the berm along
the roadway at the scene of the accident as "small," and he
indicated that the roadway at that location was at a ~narrow
place" which had been a problem area for a distance of at
least 60 feet.
Loader operator David Nichols testified that ~n the day
of the accident he observed that the berm ·at the accident
location appeared to have subsided or slipped to a height of
6 to 8 inches, and that the roadway was narrow at that location. In his opinion the roadway at that point in time was
not safe to travel.
Loader and dozer operator Stev~ Popp testif·~ed that
there were daily maintenance problems with the roadway berm
at the accident location up to and including the day of the
accident. Mr. Popp was of the opinion that after the accident, the width of th_e roadway was only 8 feet, and while .·he :
indicated that he could have driven a dozer· ·with a 12-foot
wheel base over the roadway, he would have had to d~ive on a .
portion of the spoil bank~

. 1263

Valley Camp's manager of technical services, Franklin
Simmons, testified that except for certain areas where there
was a need for providing a passing lane for vehicles, the
"typical" roadway widths at the mine · ranged from 16 to
18 feet. He estimated the roadway width at the accident
location to be somewhat less than 16 to 18 feet, and he did
not take issue with the roadway measurement widths of
14 feet 6 inch~s to 14 feet 2 inches, as shown on the map
which is a part of MSHA's accident investigation report.
Mr. Simmons confirmed that prior to the accident he was
aware of slips which had occurred on the roadway, and he
conceded that such slips should be monitored and taken care
of.
Mine Foreman Roy Hanshaw testified that he was aware of
berm slips a week or so before the accident and that spoil
materials were used to widen the roadway for an additional 6 .
to 8 feet in the accident area. After the roadway was cut
into the spoil, he estimated that it was 15 to 16 feet wide.
He also mentioned the fact that on the day of the accident,
there were problems with the berm in an area near the pit,
and that in the area where the accident occurred he observed
that there was some slippage on the outslope of the roadway
for a distance of some 40 feet. After the accident,
Mr. Hanshaw measured the distance from the spoil pile to the
point where the truck cut into the road, and it was 14 feet
6 inches wide. Mr. Hanshaw conceded that it was not safe to
drive through the accident area after the accident occurred,
and he also indicated that had the outslope slippage prior
to the accident continued, it was possible that an additional roadway would have to be constructed to contain the
slippage.
Inspector Lively initially refused to abate the imminent danger when called upon to do so on March 10, 1984,
several days after the accident. His refusal to do so was
based on the fact that he observed a large crack in the
berm, approximately 2 to 6 inches wide, and extending for a
distance of approximately 150 feet. Mr. Lively was of the
opinion that the crack resulted from the berm and roadway
being constructed on unstable ground, and he was concerned
that the crack would continue in the event of the ground
freezing and thawing.
Although Mr. Saunders testified that 4 feet of the roadway at the immediate location of the accident had slipped
prior to the accident, the testimony of Mr. Hanshaw and
Mr. Estep is that the slip occurred at a roadway location
closer to the pit and approximately 50 feet away. Having
viewed the witnesses during their testimony, I conclude that
Mr. Saunders was mistaken as to the actual location of the

1264

slip in question. He appeared rather tentative in his testimony, while Mr. Estep and Mr. Hanshaw impressed me as being
rather positive as to where that particular slip occurred,
and MSHA did not recall Mr. Saunders in rebuttal even though
he was available.
·
Apart fr9m the conflict as to the location of the slip
on the day of the accident, the witnesses were rather consistent in their -description of the conditions which prevailed
along the roadway in question immediately before the accident, particularly with respect to the condition of the
berms and the outer edge of the roadway. The testimony
establishes that the berm had slipped at the immediate accident location, that the roadway had narrowed to a point
where there was only a foot or so of clearance between the
outer edge of the roadway or the berm and a haulage truck
driving through the area, and that slippage had occurred on
the outslope of the roadway for a distance of some 40 feet.
Loader operators Nichols and Estep were of the opinion
that it was not safe for loaded trucks to use that portion
of the roadway at the accident site prior to the accident,
and foreman Hanshaw believed that had the slippage continued,
another roadway would have to be built to contain it.
Foreman Maggard conceded that anytime a berm slips, a hazardous condition is created. It seems clear to me that when
viewed collectively, these conditions establish that the
side clearances along the haulage road at the immediate location of the accident, as well as at the roadway location
nearer to the pit area some 50 feet away, were hazardous
within the meaning of section 77.1600(c), and required markings or warning devices to alert the drivers of the hazardous conditions. Since it is clear from the record that no
such markings or warning devices were provided, a violation
has been established. Accordingly, Citation No. 2127009, IS
AFFIRMED.
During the course of the hearing, Valley Camp's counsel
asserted that as long as the miners are familiar with the
conditions of the roadway and followed the traffic procedures, i.e., pulling over on the narrow portion of the roadway and-yielding the right of way to a loaded truck, no
warning signs or markers should be required. Counsel
asserted fur~her that if one knows that there is one-lane
traffic in an area, a warning sign would make no difference,
and "the question of whether it's hazardous is whether you
know it's a one lane road or not" (Tr . 1344-1346). Counsel
has reasserted this defense in her posthearing brief. In my
view, the fact that such haulage procedures were in effect,
and the fact that drivers were familiar with the one-lane
portions of the roadway do not detract from the fact that

. 1265

the standard requires that warnings be posted as necessary
where the side clearances are hazardous. On the facts of
this case, I have concluded that the side clearances were
hazardous and that a warning sign was necessary.
In her. _posthearing brief, valley Camp's counsel asserts
that Inspector Slaughter testified that the one lane area
was not unsafe ·since traffic trave·l led slowly and the designated pass areas were known to employees. Inspector
Slaughter's testimony was in r _e ply to a hypothetical question from me, and the question included the fact that such a
s~ngle lane is posted.
As a matter of fact, part of
Mr. Slaughter's reply includes the stateme~t that "these
areas were marked for where the road is narrow" (Tr. 483).
Taken in context, I cannot conclude that Inspector Slaughter
agreed that warning signs were not required in this case .
In any event, I reject Valley Camp's interpretation of the
cited standard.
Significant ·and Substantial
tn.s pector Grose explained the reasons for his "S&S"
findings as follows Tr. 450):
JUDGE KOUTRAS: You made S & S findings in
both of these -citations, significant and substantial. Can I ask you the basi~ on which
you made the significant and substantial
findings?
THE WITNESS: Yes. The basis I used to find
·s & s is that I felt that the event that
would occur if this -~ as a result of this
violation would be -- have a high likelihood
of occurring . And if, in fact, the event did
occur the injury resulting from the occur.rence would be very serious or fatal.
I conclude and find that the berm violation was significant and substantial. Given the conditions of the berm as
discussed earlier in this decision, and particularly th~ .
fact that eyewitness Westfall indicate.d that the truck
appeared to be on or near the berm for some distance before
leaving the roadway, it seems clear to me that the berm did
not provide an adequate warning to the driver. In these
circumS.tances, the inadequa·t~. berm created a reasonable ·
lik~lihood of an injury.
In this case, the injury proved to
.· be fat~l. The inspector's "S&S" finding is therefore
AFFIRMED.

·--1266

/

I conclude and find that the failure by Valley camp to
install a warning sign or to conspicuously post the roadway
area where the accident occurred constituted a significant
and substantial violation. Given the hazardous side clearances of the road, which has been described as allowing a
foot or so of clearance on the outer edge, and given the wet
weather cond.t~ions and the fact that the area had shown evidence of slippage and subsidence for a period of time up to
and including the very day of the accident, one would think
that mine management would have acted promptly to post that
portion of the roadway so as to alert the drivers and to
remind them of the hazard which existed. While it may be
true that the drivers were aware of the "rules of the road,"
and often passed through the one lanes of the roadway, rainy
weather and other conditions such as outslope slippage, berm
subsidence, sudden over-night slippages, and other such conditions could cause rather instant deterioration to the roadway. Unless such areas are constantly monitored and posted ·
when signs of deterioration or failure appear, a driver may
be lulled ·into a false sense of security, and absence a
posted warning sign or other device to alert him of such
conditions, I believe it is reasonably likely that an injury
or accident would occur. The inspector's "S&S" finding is
AFFIRMED.
Docket No. WEVA 84-168-R
In this case Valley Camp Coal Company challenges the
legality of a section 107(a) imminent danger order issued by
Inspector Grose in the course of his accident investigation.
The order on its face alleges that an imminent danger
existed because of the following collective conditions:
(1) the roadway extending from the pit was not cons.t ructed
of material selected to insure stability in that a section
200 feet outby the pit was constructed of spoil material
with cracks and slips along the elevated edge; (2) the width
of the roadway was reduced from 25 to 14 feet at the location where t ·h e truck involved in the fatal accident left the
roadway; (3) the berm at the outer edge of the roadway was
not adequte to retain the heavy equipment using the roadway
in that loose, unconsolidated earth material was used to
construct the berms; (4) there were no conspicuous markings
or warning devices installed at the roadway location where
the roadway width was reduced from 25 to 14 feet 2 inches;
and {5) foremen Hanshaw and Maggard failed to conduct an
adequate onshift examination.
Inspector Grose testified that the portion of his order
regarding the alleged failure by Mr. Hanshaw and Mr. Maggard
to conduct an adequate onshift examination of the roadway
was deleted upon instructions from MSHA's District Manager

1267

Kress, and Mr. Grose confirmed that he modified the order on
April 10, 1984, by deleting this allegation (Exhibit CR-11).
In explaining why this finding was deleted from the order,
MSHA counsel Gismondi asserted that information available to
her reflects that Mr. Kress acted after information received
during a conference with the operator's representative indicated that the examinations were conducted and that the
alleged violation of section ?7.1713Ca) could not be
supported.
Section 107(a) of the Act provides . as follows:
If, upon any inspection or investigation
of a coal or other mine which is subject to
this Act, an authorized representative of the
Secre·tary finds that an immin.ent 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 condition or practice which
caused such imminent danger no longer exists.
The issuance of an order under this subsection shall not preclude the issuance of a
citati0n under section 104 or the proposing
of a penalty under section 110.
"Imminent danger" is defined in section 3(j) of the
Act, 30 u.s.c . § 802Cj) as: "The existence of any condition
or practice in a coal or other mine which could reasonably
be expected to cause death or serious physical harm before
such condition or practice can be abated."
The former Interior Board of Mine Operations Appeals
has held that an imminent danger exists when the condition
or practice observed could reasonably be expected to cause
death or serious physical harm to a miner if normal mining
operations are permitted to proceed in the area before the
dangerous condition is eliminated. The dangerous condition
cannot be divorced from normal work activity. Eastern
Associated Coal Corp. v. Interior Board of Mine Operations
Appeals, et al . , 491 F.2d 277, 278 (4th Cir . 1974). The
test of imminence is objective and the inspector's subjective opinion need not be taken at face value. The question
is whether a reasonable man, with the inspector's education

1268

and experience, would conclude that -the facts indicate an
impending accident or disaster, likely to occur at any
moment, but not necessarily immediately. Freeman Coal
Mining Corporation, 2 IBMA 197, 212 ~1973), aff'd., Freeman
Coal Mining Companym v. Interior Board of Mine Operations
Appeals, et al., 504 F.2d 741 (7th Cir. 1974). The foregoing principle~ were reaffirmed in Old Ben Coal Corporation
v. Interior Boatd of Mine Operations Appeals, et al., 523
F.2d 25 (7th ·Cir. 1975), where the court, following Freeman,
phrased the test for determining an imminent danger as
follows:
[E]ach case must be decided on its own
peculiar facts. The question in every case
is essentially the proximity of the peril to
life and limb. Put another way: Would a
reasonable man, given a qualified inspector's
education and experience, conclude that the
facts indicate an impending accident or disaste~, threatening to kill or to cause
serious physical harm, likely to occur at any
moment, but not necessarily immediately? The
uncertainty must be of a nature that would
induce a reasonable man to estimate that, if
normal . operations designed to extract coal in
the disputed area proceeded, it is at least
just as probable as not that the feared accident or disaster would occur before eliminati~n of the danger.
In her posthearing brief, Valley Camp's counsel takes
issue with Inspector Grose's co~clusion as reflected in his
accident investigation report that the accident and resulting fatality were the result of mine management's fai~ure to
design and construct the roadway in question "in a manner
consistent with prudent engineering." Counsel also takes
issue with MSHA's contentions that substandard road construction;!·.!·' the ass~rted failure by Valley Camp to select
suitable construction materials to insure the stability of
the roadway, caused the accident.
As correctly pointed out by Valley Camp, there are no
specific MSHA mandatory safety standards governing the construction or ~aintenance of surface mine haulage roads. Nor
are there any published MSHA guidelines or other published
standards defining or otherwise explaining "prudent engineering design." However, Inspector Grose was of the opinion
that a properly constructed roadway is one which is constructed (1) on a rock base, (2) compacted out of material
specially selected for road construction, and (3) ~onstruc~ed
in layers or "lifts" that are properly compacted. Dr. Wu

1269

agreed with the inspector,. but added that compaction should
be done at no greater than 2 foot lifts, and that adequate
drainage be provided to avoid water saturation.
Inspector Grose conceded that he had no personal knowledge as to .q9w the haulage road in question was originally
constructed. · He also conceded that he conducted no tests,
took no soil samples, and made no other determinations as to
the specific materials used to construct the roadway.
Although he expressed some concern over the lack of drainage
ditches, the fact is that none were req~ired by MSHA to
achieve abatement. Further, the same type of spoil materials
used to initially construct the roadway, were also used to
reconstruct it to abate the order. Inspector Grose was not
present during the abatement, and Inspector Slaughter was
there for only a half-hour at most. Under the circumstances,
I can only conclude that they had little or no personal knowledge as to wha~ was specifically done in terms of actual construction --work to achieve abatement. As for MSHA's theory
that the roadway was somehow undermined by water draining
from a nearby augering operation, I reject that notion as
total hindsight unsupported by any credible evidence.
Dr. Wu conceded that he had never been involved in the
construction of haulage roads, and the record establishes
that he never viewed the actual roadway at any time. When
he made the site visit, the area had been mined out and the
roadway was gone. His knowledge of the facts and circumstances in support of MSHA's theories as to how the roadway
was constructed was obtained through contacts with the
inspectors and miners· during the preparation for the hearing, and his review of MSHA's accident report and other materials in preparation for the hearing.
I am not convinced that MSHA has established by a preponderance of the credible testimony and evidence in this
case that Valley Camp's construction of the actual roadway
itself was· substandard. On the other hand, Valley Camp produced credible testimony from those directly involved in the
roadway construction which establishes that the roadway was
constructed on a solid rock base, was properly compacted
with suitable spoil- materials, and was constructed in appropriate layers or lifts. However, I am not convinced that
the same can.be said for the construction and maintenance of
the . berms, or for the slips on the outslopes adjacent to the
roadway.
Valley camp's counsel also takes issue with MSHA's
assertion that the narrow width of the roadway, the failure
to install warning signs, and the inadequacy of the berms
contributed to the asserted imminent danger. In view of my

1270

prior findings and conclusions on these issues, they need
not be repeated here. However, the fact that a cited condition may. or may not constitute a viplatioi:l of any mandatory
-- s-tandard, is not relevant in···any · determination·, as to whether .
an imminent danger exists. What is r .e levant and cr,itical is
whether or not the conditions found by Inspector Gro·s .e after
the accident -support his conclusion that an imminently dangerous condition existed at that time . In order to support
the order, MSHA must show :that reasonable men with the
.
inspector's education and experience would conclude that the··
condition of the roadway constituted a situation indicating
an impending a.c cident or disaster, likely to occur at any
moment, but not necessarily immediately.
The accident in this case occurred on Monday, March 5,
1984, at approximately 4:30 p.m. Inspector Grose arrived at
the mine the f ollowing morning March 6, at approximately
·
9:00 a.m., and he as-s umed supervision over the accident .
investigation. At the conclusion of his investigation, he
issued the imminent danger order at approximately 4:00p.m.,
on March 6. Inspector Grose confirmed that he issued the·
order because .of the collective conditions described on the
face of the order,. and to preclude use of the roadway until
those conditions could be corrected. .While he believed that
no one would attempt to use the roadway, he had to insure
that no one attempted to drive it until the conditions were
corrected (Tr. 183).
It seems clear to me that at the time of the investiga-·
tion and inspection conducted by Inspector Grose the condition of the .roadway was such as to support his conclusion
that it was an imminent d~nger under 'the Act. Regardless of
how the roadway was originally constructed, or whetheJ" or
not the edge of the roadway failed or whether it was "taken
out" by the accident victim driving over it, it clearly was
not travellable by haulage trucks which normally used the
road. In addition, the inadequacy of the berms, the hazard- .
ous side clearances, and the lack of readily identifiable
warning signs, all contributed to a situation which in my
view supports the action taken by Inspector Grose in issuing
the order. Under all of these circumstances, I believe that ',
any reasonable person would conclude that an accident was
likely to occur at any moment if normal mining operations
were allowed ' to continue. As a matter of fact, foreman
· Hanshaw and Maggard conceded that it was not safe to use the
roadway after the accident and before abatement of the conditions. Truck driver Saunders would not drive the roadway
after the accident because he feared fo~ his safety, and
driver James Westfal-l stated that he would not drive it
because he was "shook up" over the accident.. Under all of
these cir~umstance·s, I conclude that Inspector . Grose acted

1271

appropriately and properly in issuing the order, and IT IS
AFFIRMED .
Docket No. WEVA 84-352
Fact of Violations
In view of my previous findings and conclusions, Citation Nos. 2127008 and 2127009 citing violations of · mandatory
safety standards 77 . 1605(k) and 77.1600(c), ARE AFFIRMED.
History of · Prior Violations
Exhibit G-16, is a computer printout summarizing the
mine compliance record for the period January 1, 1980
through March 4, 1984. That record reflects that Valley
Camp paid civil penalty assessments totaling $653 for 19
section 104(a) citations issued at the mine. One of those
citations _is for a violation of the berm standard
(77.1605(k)), on March 27, 1982, for which a civil penalty
of $20 was paid.
Inspector Slaughter confirmed that he has never issued
citations for inadequate road construction at the mine, and
he did not recall ever issuing any berm citations (Tr. 538).
Valley camp's counsel noted during the hearing that one previous citation for "no beim in an area" was issued (Tr.
539).
I cannot conclude that Valley Camp's compliance record
warrants any. additional increases in the civil penalty
assessments made by me in this case. To the contrary, its
history of compliance over the prior 4-years is good,_and I .
have taken this into account in assessing the penalties in
question.
Good Faith Abatement
The parties have stipulated that Valley Camp exhibited
good faith compliance in achieving abatement of the citations and the order in question, and I adopt this as my
finding in this matter and have taken it into account in
assessing the penalties in question .
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties do not address the size of the mining operation in question in their briefs. MSHA's computer print-out,
exhibit G-16, identifies the mine "controller" as the Quaker
State Oil Refining Corporation. However, testimony at the

1272

hearings indicated that many of the miners were laid off, and
that coal production may have been curtailed somewhat at the
mining operation in question . I assume that Valley Camp is a
small-to-medium sized mine operation:
Although Valley Camp's counsel argues that any civil
penalties as'sessed by me should be nominal, there is no
information or argument to suggest that the penalties proposed by MSHA will adversely affect Valley Camp's ability to
continue in business. Under the circumstances, I conclude
that the penalties which have been assessed by me for the
violations whi~h have been affirmed will not affect Valley
Camp's ability to continue in business. See: Sellersburg
Stone Co., 5 FMSHRC 283 (1983), aff'd, 736 F.2d 1147 (7th
Cir. 1984).
Negligence
Inspector Grose testified that he believed that Valley
Camp was "moderately" negligent with respect to both citations. He considered the weather conditions to be a mitigating circumstance, and· he believed that the immediate
supervisors. may not have understood soi 1 compaction and
mechanics and the impact that adverse weather would have on
the roadway in question (Tr . 184).
'·

The evidence adduced in this case reflects that various
members of mine management were aware of the slips that
occurred near the roadway prior to the accident. It is also
true that various miners were aware of slips and other signs
of earth sl~ppage along the roadway outslopes, as well as
berm subsidence at the location of the accident, but did not
inform mine management. However, mine management has . the
primary responsibility of insuring that such conditions are
attended to and that corrective action is immediately taken
to insure against roadway hazards.
While it is true that Mr. Hanshaw "monitor~d" the slip
area, and that Mr. Augustine was "watching" it, I am not
convinced from the record in these proceedings that much
careful or detailed attention was paid to these conditions.
Although Mr . Simmons testified that he never observed any
breaks or fractures on the roadway surface itself, his concern appearea to be with the condition of the surface portion of the roadway and not the berms or adjacent slopes.
In addition, Mr. Simmons conceded that when he examined the
·roadway, he simply looked at it while driving and did not
get out of his vehicle to walk the roadway. Mr. Maggard
testified that when he conducted his preshift examination on
March 5, he remained in his vehicle. He also confirmed that
he was unaware of any tree movement along the described slip

1273

area adjacent to the roadway, and he did not know that
Mr. B.a nshaw had been monitoring the area .
I believe that the record here ·supports a conc·lusioil
that mine management had prior warnings that the roadway and ·
berm in quest-ion was susceptible to slippage and subsidence.
Given the roadway failure the day after the roadway was - completed, the failure which _occurred near the pit the very
morning of the accident, and the prior evidence of slippage
which had been noted by Mr. Augustine and Mr. Hanshaw, mine
management should have t,aken immediate ~ction to determine
the . causes for these events· and should have taken precautionary or corrective- steps to mark those areas of the roadway
which were suspect, and to insure that the berm was adequately constructed and maintained. Under the circumstances,
I conclude and find that Valley Camp knew or should have
known of the violative berm and warning sign conditions cited
in Citation Nos. 2127008 and 2127009., and that its failure to
take corrective action before the inspectors found the conditions is the result of its failure to exercise reasonable
care.
Gravity
Valley Camp argues that the berm violation had absolutely nothing to do with the cause of the accident, and
that MSHA's proof went solely to the issue of whether the
.road construction · caused the accident. This argument is
rejected. I believe that the substandard and inadequate
berm conditions played a role in t ·h e accident. Although I
cannot conclude that the berm condition was the major cause
of the accident, I do conclude and · find that it contributed
to the severity of the violation . Bad the berm been ~on
structed ·higher and been better compacted with solid rock
materials, it is altogether possible that the driver would
have been able to keep the truck on the roadway or at least
had a greater opportunity to steer it back· on the roadway.
In this case, the eyewitness stated that the driver "got
over too far" and appeared to be driving on or -close to the
edge of the .berm. As I previously, concluded, a better constructed berm would have possibly permitted the driver to
get a better "feel" for the actual roadway and may have
served as a guide to keep him on the roadway surface. Under
the circumstances, I conclude and find that · the berm violation was serious.
With regard to the wa·rning sign violatlon, I find that
it too was serious. Slnce. I have found that the side clearances of the roadway were hazardous, and that the roadway
was narrow a~ the accident location, the lack of a warning
sign· or other conspicuous warning device was required in

1274

order to alert the drivers to take extra care. While I
cannot conclude that the lack of a warning sign caused or
contributed to the accident, I still conclude that the failure to post any warnings constitutea a serious violation.
Civil Penalty Assessments
Valley Camp· argues that the amount of the penalties
assessed by MSHA were increased by the inspector's allegation that the berm and sign citations contributed to the
existence of an imminent danger. Citing Consolidation Coal
Company, 1 MSHC 1742 (1979)", Valley Camp argues that the
gravity of a violation must be weighed in light of a decedent's own contribution to the cause of the accident. In
the instant case, Valley Camp maintains that the decedent
contributed to the cause of the accident by driving the
truck off the roadway or in other words, loosing control of ·
_the vehicle. Furthermore, once the victim lost control of
the vehicle, Valley Camp points out that he attempted to
jump from the cab of the truck, and that this caused him to
be thrown to the ground and crushed by the truck . Therefore,
under Valley Camp's theory of the case, the berm and sign
citations had nothing to do with the cause of the accident,
and Valley Camp suggests that any penalties imposed should be
substantially reduced.
I have taken into account the possibility that the accident victim may have lost control of the truck for reasons
other than the lack of adequate berms, and that he may not
have suffered fatal injuries had he elected to remain inside
the cab when the truck left the roadway and went over the
hill. I have also taken into consideration the . fact that
MSHA failed to establish that Valley Camp's roadway construe-·
tion methods did not comport with "prudent engineering
designs." However, the fact remains that the conditions
which prompted the citations which have been affirmed were
serious violations1 the berm condition to a greater degree
than the warning sign condition.
·
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i)
of the Act, the. following civil penalties are assessed by me
for the citations which have been affirmed:
Citation No.

Date

30 C.P.R. Sec.t ion

Assessment

2127008
2127009

3/6/84
3/6/84

77.1605(k)
77.1600(c)

$2,500
500

1275

ORDER
The respondent IS ORDERED to pay the civil penalties
assessed by ·me in these proceedings within thirty C30) days
of the date of these decisions. Payment is to be made to
MSHA, and upon receipt of same, these proceedings are
dismissed . · ·
In view of my findings and conclusions in Docket Nos.
WEVA 84-168-R and WEVA 84-170-R, Valley Camp's contests ARE
DISMISSED .
Docket Nos. WEVA 84-172-R and WEVA 84-173-R
The violations in issue in these contests were settled
by the parties after the conclusion of the first hearing
session, and by motions filed pursuant to 29 C.F.R. § 2700.30,
the parties submitted their settlement proposals to me for
consideration. Under the terms of the settlements, Valley
Camp Coal Company admits to t~e violations and agrees to pay
the full amount of the civil penalties proposed by MSHA.
After-review of the settlement proposals, and taking into
account the civilpenalty criteria found in section llOCi> of
the Act, the citations ARE AFFIRMED, and the settlements ARE
APPROVED. Valley Camp Coal Company IS ORDERED to pay civil
penalties in the amount of $210 for Citation Nos. 2352240 and
2352241 C$105 each), and payment is to be made within thirty
(30) days of the date of the decisions. Valley Camp's contests ARE DISMISSED.

#;
~¥~
·
/~ Koutras
.
Administrative Law Judge

Distribution:
Janine c. Gismondi, Esq., Office of the Solicitor, u.s.
Department of Labor, Room 14480 Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Laura E. Beverage, and Allen R.• Prunty, Esqs., Jackson,
Kelly, Holt & O'Farrell, P.O. Box 553, Charleston, WV 25322
(Certified Ma:il)
/slk 1-31
/ fb 32-80

. 1276

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

.

UNITED MINE WORKERS OF
AMERICA ON BEHALF OF
PATRICK M. HUGHES
complai-nant

AU6141985

DISCRIMINATION PROCEEDING
Docket No. WEVA 84-404-D
MORG CD 84-10

v.

:

McElroy Mine

CONSOLIDATION COAL COMPANY,
Respondent
· DECISION
Appearances:

Thomas M. Myers, Esq . , United Mine Workers
of America, Wheeling, West Virginia, for
Complainant.
H. Brann Altmeyer, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for
Respondent .

.Before:

Judge Fauver

This proceeding was brought by United Mine Workers of
America on behalf of Patrick M. Hughes (Complainant) under
section lOS(c) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801, et ~ The Complainant charges
a violation of section lOS{q) based upon Respondent's
refusal to pay Complainant for his time as a walkaround 1/
on the midnight shift, March 14, 1983, and its refusal to a~sign him duties for the remainder of that shift after
the ·Federal inspection was concluded. On the date in question
Complainant was scheduled to work on the day shift,· but not
the midnight shift.
The controlling issue is whether section 103(f) grants
compensation rights to a miners' representative who accompanies
a Federal inspector on a shift other than his regularly
scheduled shi'ft.

1/ A miners' representative who accompanies a Federal ·
fnspector under ~ection 103(f) of the Act..

1277

Having considered the hearing evidence and the record
as a whole, I find that a preponderance. of the substantial,
reliable, and probative evidence establishes the following:
FINDINGS OF FACT
1. ·c onsolidation Coal Company is the operator of the
McElroy Mine, · an underground coal mine in Marshall County,.
West Virginia, where Complainant is employed.
2. During the week beginning Sunday, March 11, 1984,
and ending Saturday, March 17, 1984, Complainant held the
job classification of trackman, which paid $12.798 per hour.
At all relevant times, Complainant was a member of the .
miners' elected Safety Committee.
3. During the week beginning Sunday, March 11, 1984,
and ending· Saturday, March 17, 1984, Complainant was scheduled
to work the dayshift (8:00 to 4:00) for five days, Monday
through Friday.
4. Complainant worked the day shift on Monday, March
12, .Tuesday, March 13, Thursday, . March 15, and Friday, March
16, 1984.
5. On Wednesday, March 14, 1984, Complainant did not
work the day shift, but instead had come to the McElroy mine
on the midnight shift (00:01a.m. - 8:00 a.m.) and participated
as the walka~ound with Federal Inspector Charles Cruny for
part of that shift.
6. The inspection conducted by Charles Cruny and
participated in by Complainant ended at about 5:10a.m.,
March 14, 1984.
7. Upon completion of the inspection, Complainant
asked William Blackwell, a safety inspector of Consolidation
Coal Company, for a job assignment for the rest of the
midnight shift.
8. Respondent refused to provide Complainant Hughes
with a job assignment for the rest of the midnight shift,
and refused to pay complainant Hughes any wages for that
shift.
·
9. Complainant filed a timely complaint of discrimination
pursuant to § 105(c) of the Act with the Mine Safety and
Health Administration, _united States Department of Labor.

1278

By letter dated August 22, 1984, the Mine Safety and Health
Administration determined that discr~mination had not occurred.
Complainant thereafter filed a timely complaint with this
·
independent .Commission.
10. Federal inspectors most frequently conduct their
regular inspections of the McElroy Mine on the day shift,
occasionally on the afternoon shift, and rarely on the
midnight shift.
11. From January 1, 1984 through March 14, 1984,
Federal inspections at the McElroy Mine occurred on the
midnight shift only on March 12, 13, and 14.
12. At the McElroy Mine, the elected Safety Committeemen
participated as walkarounds with Federal inspectors on all
occasions, except when such committeemen were unavailable to
participate or when a rank and file miner expressed a
desire to accompany a Federal inspector as the· walkaround.
13. No elected Safety Committeemen were assigned to
work the midnight shift during the period between March 12
and 17, 1984 .
14 . On Friday, March 9, 1984, at the request of Rick
Lipinski, Chairman of the Safety Committee, Safety Committeeman
Randall Mulvey _made reasonable· efforts to find an employee
assigned to the midnight shift during the week of March 12,
1984, who would be willing to participate as the walkaround
with Inspector Cruny on that shift. Inspector Cruny had
informed the union and company representatives that his
inspections during that week would be conducted on the
midnight shift.
15 • . Prior to the day shift on Monday, March 12, 1984,
Lipinski found out that no one had traveled· as · the walkaround
with Inspector Cruny on the preceding midnight shift. ·
Lipinski again made re~sonable but unsuccessful efforts to ·
find an employee on the midnight shift who would agree to
travel as the walkaround with Inspector Cruny for the· upcoming
midnight shift, Tuesday, March 13, 1984. One miner agreed
to serve as a walkaround, but later declined to do so.
16. No employee participated as a walkaround with
Inspector Cruny on the midnight shift on March 13.

1279

17. On the day shift, Tuesday, March 13, Lipinski
called a meeting of the Safety Commi~tee to discuss the fact
that no midnight shift employee had participated as the
walkaround for Inspector Cruny on the two preceding midnight
shifts.
18. At that meeting, Complainant volunteered to come
to the mine for the midnight shift on Wednesday, March 14,
1984, so that a representative of the miners would be
available to accompany Inspector Cruny on his inspection.
19. Had an employee on the midnight shift of Wednesday,
March 14, 1984, chosen to participate as the walkaround for
Inspector Cruny, Complainant would have gone home instead of
so participating.
20. No midnight shift employee chose to participate as
the walkarcund with Inspector Cruny on Wednesday, March 14,
1984.
21. The miners at the McElroy Mine were generally
aware of the fact that employees who participated as walkarounds
were routinely assigned the task of picking up papers and
trash for the rest of the shift, when the inspection was
concluded toward the end of such shift.
22. On Monday, March 12, and Tuesday., March 13, 1984,
Inspector Cruny wrote no citations or orders during his
inspections ?f the McElroy Mine on the midnight shift.
23. On Wednesday, March 14, 1984, while accompanied by
a walkaround (Complainant), Inspector Cruny wrote three
citations during his inspection of the McElroy Mine on the
midnight shift.
24. Complainant's absence from his regularly scheduled
shift on March 14 (the day shift)· was excused by Respondent.
25. On March 13, Complainant told mine management that
he would be coming to the mine to serve as walkaround on the
midnight shift, March 14. Complainant was advised by William
Blackwell and-Allen Olzer, safety inspector and supervisor
for Respondent, respectively, that he would not be prevented
from participating as a walkaround on other than his regularly
scheduled shift, but that he would neither be paid for the
period of such participation nor assigned work for the
remainder of the shift, because he was not regularly scheduled
or entitled to be paid for that shift.

·1280

26. Fifteen of the 35 m~ners scheduled to work on the
midnight shift of March 14, 1984, had previosuly served as·
walkaround__ .:r:epresen ta ti ves of miners .
27. As .conceded by Complainant's witnesses, and in
Complainant's answers to Respondent's interrogatories, any
of the 35 regularly scheduled miners assigned to the midnight
shift on March 14 were fully qualified to serve as walkarounds.
28 . The miners' Safety Committee never requested that
the mine superintendent assign a Safety Committeeman to each
of the three shifts , in order to facilitate their participation
as walkarounds on any shift .
29. As a matter of established practice , miners who
participated as walkarounds were reassigned to their regularly
assigned duties for the reminder of the relevant shift, if
time permited.
30. As a matter of custom and practice , when the
duration of t he inspection did not leave reasonable time for
the walkaround to return to his regular location to finish
the shift, t~e walkaround was assigned the task of policing
the mine , including picking up combustible materials which
were left on the mine floor .
31. Management of the mine, including the assignment
of miners to their work shifts, was exclusively reserved to
Respondent under the governing collective bargaining agreement.
DISCUSSION WITH FURTHER FINDINGS
Section 103(f) of _the Act provides that "a representative
authorized by his miners shall be given an opportunity to
accompany [a Federal inspector]," and when the "representative
of miners • • • is also an employee of the operator [he] shall
suffer n o loss of pay during the period of his participation
in the inspection made under this ~ubsection."
Complainant was not scheduled to work on the midnight
shift of March 14 , 1984, during which he acted as a walkaround
represenative of miners on a Federal inspection. As he was
not scheduled to work on the shift in question, his claim
raises the question whether a refusal to pay him for that
shift constituted a "loss of pay."

1281

In Beaver v. No-rth American Coal Corporation, 3
FMSHRC 1428 (1981) , the comp·l ainant charged discrimination
for the operator's refusal to compensate him for participa~ion
in an inspectio~ on a day when the complaipant was not
scheduled to work. Judge Cook rejected arguments similar to
those made herein that the only germane considerations are
whether the i~dividual was selected by the miners to act as
a walkaround represenative and whether that individual was
an employee of the operator. Consistent with Respondent's
position herein, the Judge stated:
"the walkaround prov1.s1.on is designed to
·encourage miner participation in inspections
by providing an assurance that . their designated representat~ve will suffer no lo~s in
pay as a result of participating in such
inspection i.e., that his participation in
an inspection will place him in the same·
position with respect to his pay that he
would have occupied had he not participated
in the inspection. It was not intended to
create a right to compensation where none
otherwise existed."
In ·uMWA ex rel C0lchagie v. Consolidation Coal Company,
5 FMSHRC 1469 (1983) 1 complainant was a walkaround on · a
shift · when he was not scheduled to work. Citing the Beaver
decision 1 Judge Melick held that the ·e mployer did not discriminate
· against complainant in failing to compensate him, nor in
charging him with . an unexcused absence for fa·iling to- appear
at his next, regularly scheduled ·shift. The complainant
argued that he was the only qualified·miner available to
accompany the inspector during the shift in question. Judge
Melick found the evidence in that regard unpersuasive, in
view of the nature of the inspection and the availability of ·
other miners. In the instant case, the evidence shows that
Inspector Cruny was conducting merely a regular, generai
inspection, and that any of the midnight shift miners were
qualified to· serve as a walkaround. Examination of the list
of· 35 miners ~cheduled to work the shift in question revealed
that at least 15 of those miners had previously served as
walkarounds.

·1282

Complainant relies upon Secretary of Labor v. Virginia
Pocahontas coal Company, 3 FMSHRC 1493 (1981), in which
Judge Steffey found that the employer had discriminated
against the complainant in failing to provide him with a
work assignment-- for the remainder of the shift (not his
scheduled shift) during which he had served as walkaround,
where the complainant had been paid for the time during
which he participated in the inspection. However, Judge
Steffey indicated that, absent a compelling showing of the
necessity for a walkaround assigned from a different shift,
management may insist that a scheduled employee on the
inspection shift act as the walkaround in the order to
invoke the protection of section 103(f). In that case,
there was .evidence that the mine employees conducted a
special meeting for the purpose of designating the Safety
Committee members as their walkaround represenatatives and
that, presumably with knowledge of that designation, the
operator scheduled the Safety Committee members so that no
committee member was on the shift inspected. Virginia
Pocahontas, 3 FMSHRC, at 1494-1495. In the instant case,
the facts are different. Complainant's own evidence shows
that any of the midnight shift miners could have served as
a walkaround, and in fact repeated union efforts were made
to appeal to them to serve as a walkaround. Safety
Committeeman Richard Lipinski testified that he had managed
to persuade Forrest Allen, a midnight shift miner, to serve
as a walkaround during that week. Mr. Allen was not, and
never had been, a member of the Safety Committee.
(Allen
did not serve as a walkaround that week, stating that he had
a cold.)
In addition, nearly half of the regularly scheduled
midnight shift employees had previously served as walkarounds;
and yet had never been Safety Committee members.
Also distinguishing the instant case from Virginia
Pocahontas is the testimony of Respondent's mine superint~ndent,
conceded by Complainant's witnesses, that despite repeated
requests, no list of designated walkarounds was ever provided
to Respondent.
In fact, union representatives advised
Respondent that they had not designated specific walkarounds,
but that in their opinion all employees on the seniority roster
should be co~sidered "designated walkarounds."

. 1283

I conclude that, under section· 103(f) of the Act, a
mine operator has no duty to compensate a miner for time
spent as a walkaround on a Federal ·inspection on a shift
other than his regularly scheduled shift, where the facts
show that other miners on the inspection shift were available
as qualified walkarounds but exercised their discretion not
to serve as walkarounds.
CONCLUSIONS OF LAW
1.

The Commission has jurisdication in this proceeding.

2. Complainant has failed to prove a violation of
section 103(f) or section lOS(c) of the Act.
ORDER
WHEREFORE IT IS ORDERED .that this proceeding is DISMISSED.

(J~~
1-wv. \1!1\.._
William Fauver
Administrative Law Judge
Distribution:
Thomas M. Myers, Esq . , UMWA, District Six, 5600 Dilles
Bottom, Shadyside, OH 43947 (Certified Mail)
H. Brann Altmeyer, Esq., 61 14th Street, Wheeling, WV 26003
(Certified Mail)
kg

1284

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth F"OOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 221985

CIVIL PENALTY PROCEEDING

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

.

v.

Docket No. KENT 83-170
A.C. No. 15-05394-03504
No. 7 Mine

JOHNIE CHILDERS COAL COMPANY,
INC. I
Respondent
DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,

u. s. Department of Labor, Nashville, TN;
for Petitioner;
No appearance for Respondent.

Before:

Judge Fauver

This civil penalty case was scheduled for hearing at
9:00a.m. , on July 25, 1985, at Lexington, Kentucky, pursuant
to a notice of hearing issued under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 . u . s . c. § 801,
et~

Counsel for Petitioner appeared with witnesses and
documentary evidence. Respondent did not appear, and was
held in default, whereupon evidence was received from Petitioner.
Having considered the evidence and the record as a
whole, I find that a preponderance of the substantial,
reliable, and probative evidence establishes the following:
FINDINGS OF FACT
1. At all relevant times, Respondent operated Mine No.
7, an underground coal mine in Kentucky, which produced coal
for sales substantially affecting interstate commerce.

1285

2. Mine No. 7 regularly employed about 7 to 10 miners
and produced.ab.out 25,000 tons of coal annually.
3. · On August 2, 1982, Federal Inspector James Frazier
observed that the roof bolting operation was not adequately
"lighted in that the roof bolting machine had no operable
lights. At least four lights were required for adequate
lighting. On the basis of his inspection he issued Citation
No. 2046863, charging a violation of 30 C.F.R. § 75.1719.
Section 1719 is the general section requiring adequate
illumination in the working place in a mine. More specifically,
§ 75.1719-l(c) and (e) (5) state that, with roof bolting
equipment, the area required to be illuminated, "in addition
to [illumination] provided by personal cap lamps," is that
which is within the miner's pormal field of vision and,
where the distance from the floor to the roof is five feet
or less (as was the case here) that area is defined to
include the fac~, ribs, roof, floor, and exposed surfaces of ··
mining equipment that are within an area the perimeter of
which is five feet from the roof bolting machine.
(a)
Negligence. Respondent knew about the
lighting requirement, but failed to install
any lights on the roof bolting machine
before the inspection. This conduct was
clear negligence, even though Respondent
had the machine for only two weeks.
(b) Gravity. Failure to provide
lighting for the roof bolting
operation created a serious safety
hazard for the roof bolter and
anyone who might be in the area
while the roof bolting machine
was operating. Without adequate
lighting, the roof bolter might
not see hazards in the roof, face,
ribs, or floor, and his operating
of.the roof bolting equipment
without adequate light could
contribute to a fatal or
serious injury.

1286

(c) Compliance History. ·Respondent ·
had one prior illumination violation.
4. on· Augus·t 4, 1982, Inspector Frazier observed that
the roo£ bolting machine (involved in Finding No. 3) . did not
have a panic bar, in order to deenergize the tramming motor
of the machine quickly in .case of an emergency. Because of
this condition, he issuea Citation No. 2046870, charging a
violation of 30 C.F.R. § 75.523.
(a) Negligence. Respondent kn~w about
the requirement for a tramming panic
bar, but failed to install one before
the inspection. Although Respondent
had the machine for only about two
weeks, it was clear negligence to
put the .machine in· operation before
it was properly equipped with a
panic bar or other no less effective
em~rgency device.
(b) Gr~vity. Failure to provide a
panic bar created a serious safety
hazard for the roof bolter and others
who might be in the area when the .
bolting machine was being trammed.
In an emergency, if the roof
bolter were squeezed against
a rib or other place in the mine
and were unable to reach the . normal
controls while tramming the roof
bolting machine, a .panic bar could
save his life or prevent serious
injury by enabling him to stop
the equipment.
(c) Compliance History. Respondent
had one prior violation of section
75.523.
5. On December 20, 1982, Federal Inspector Prentiss
Potter observed that shuttle car No. 78-W-14 was being
operated
.without operable .brakes • . The. brakes did not operate
.
'

•.

1287

because they did not have adequate hydraulic fluid.
The
shuttle car was used to transport coal from the face to a
dumping point outside the mine . Because of this condition,
Inspector Potter issued Citation No. 2047192 , charging a
violation ?~ 30 C.F.R. § 75 . 1725 .
(a)' Negligence. Respondent knew
or should have known about the
requirements of section 30 C.F . R.
§ 17.1725 , which provides in
section 17.1725(a):
"(a) Mobile and stationary
machinery · and equipment shall
be maintained in safe operating
condition and machinery or
equipment in unsafe condition
shall be removed from service
immediately ."
The shuttle car operator knew the
brakes were inoperable, because Inspector
Potter saw him pushing the brake pedal to
the floor without stopping the machine.
(b) Gravity. Operating the shuttle car
without operable brakes created a serious
safety hazard for the shuttle car operator
and other miners in the area where the
shuttle car traveled.
(c)
Compliance History. Respondent
had no prior violation of 30 C.F .R.
§ 75.1725 .
6.
On December 21, 1982, Federal Inspector Steve
Kirkland observed that the coal drill operator was drilling
coal without using a line curtain for ventilation .
Because
of this condition , Inspector Kirkland issued Citation No.
2047193, charging a violation of 30 C.F.R. § 75.316. That
section requires that the operator adopt an approved ventilation
plan. Respondent's plan required that a line curtain be hung
at each head1ng to obtain an air flow at the working face
from the last open cross cut. Without a line curtain there,

1288

there was no perceptible air flow at the working face where
the citation was issued. After a line curtain was installed
to abate the violation, a reading of · 3,100 cfm of air at the
working face was obtained .
(a} Negligence . Respondent knew the
requirements of its own ventilation plan.
It was clear negligence not to ensure
that its plan was being complied with .
(b) Gravity. Drilling coal without
adequate ventilation is a most dangerous
practice , running the risk of a dust or
methane explosion, or propagating a
mine fire , and subjecting miners to
hazards of pneumoconiosis . .
(c)
Compliance History . Respondent
had one prior violation of section
75 . 316 .
DISCUSSION WITH FURTHER
FINDINGS
I find that each of the violations charged was proved,
was due to clear negligence, and was a serious violation
that could contribute to a fatal or serious injury. Respondent
is credited with making a good faith effort to achieve rapid
compliance after each violation was cited.
Respondent is a small operator, operating a small mine .
Considering each of the criteria for assessing a civil
penalty under section llO(i} of the Act, I find that an
appropriate civil penalty for each of the violations found
herein is $125 .
CONCLUSION OF LAW
1.

The Commission has jurisdication in this proceeding .

2. Resp9ndent violated 30 C.P.R. § 75.1719 as charged
in Citation No. 2046863.
3. Respondent violated 30 C.P . R. § 75.523 as charged
in Citation No . 2046870.

1289

4. Respondent violated 30 C.F.R.
in Citatio~ _No. 2047192.

§

75.1725 as charged

5. · Respondent violated 30 C . F.R. § 75.316 as charged
in Ciation No. 2047193.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay civil
penalties in the total amount of $500 for the above violations
within 30 days of this Decision.

~~?~v~
William Fauver
Administrative Law Judge
Distribution:
Thomas Grooms, Esq., Office of the Solicitor, u.s. Department
of Labor, 280 u.s. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Dean Price, President, Johnie Childers Coal Company,
Inc . , Box 65, Rockhouse, KY 41561 (Certified Mail)
kg

129{)

FEDERAL .M INE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JU.DGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 2 21985
JAMES _KING,
KENNETH MUSIC, and,
JOHN D. MUSIC, JR.'
Complainants

v.

E & T TRUCKING and,
ELMO MAYES,
Respondents

.
.
.:
:
.
:
:
:

.

DISCRIMINATION PROCEEDINGS

.

Docket No. KENT 85-41-D
MSHA Case No • PIKE CD 84-13
Docket No. KENT 85-42-D
MSHA Case No. PIKE CD 84-13
Docket No. KENT 85-43-D
MSHA Case No • PIKE CD 84-13

ORDER OF DISMISSAL
Appearances:

Before:

Stephen A. Sanders, Esq., Applachian Research
and Defense Fund of Kentucky, Inc.,
Prestonsburg, Kentucky and Tony Oppegard, Esq.,
Appalachian Research and Defense Fund of
Kentucky, Inc., Hazard, Kentucky for
Complainants;
Edward M. Dooley, Esq., Middlesboro, Kentucky1
for Respondents.

Judge Melick

At hearings, the parties agreed upon a settlement and the
Complainants accordingly~ request ·t o withdraw their Complaints
herein. Under the circumstances permission to withdraw is
granted. 29 C.F.R. § 2700.11. The cases
e therefore
dismissed.

Distribution:
Stephen A. Sanders, Esq., Appalachian Research and Defense
Fund of Kentucky, Inc., 205 Front Street, Prestonsburg, KY
· 41653 (Certified Mail)
Tony Oppegard , . Esq., Appalachian Research and Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified
Mail)
Edward M. Dooley, Esq., 2215 Cumberland Avenue, Middlesboro,
KY 40965 (Certified Mail>
rbg

1291

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

August 27, 1985

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

v.
S. M. LORUSSO & SONS, INC.,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. YORK 85-2-M
A. C. No . 19-00076-05504
Docket No. YORK 84-12-M1/
A. C. No. 19-00076-05501
West Roxbury Crushed Stone
DECISION

Appearances:

David L. Baskin, Esq., Office of the
Solicitor, U. S. Department of Labor, Boston,
Massachusetts, for Petitioner;
Michael E. Bussiere, S. M. Lorusso & Sons, Inc.,
Walpole, Massachusetts, for Respondent.

Before:

Judge Merlin

These cases are petitions for the asses~ment of civil
penalties. They were heard at the same time and are hereby
consolidated for decision.
Citation No. 2367541 was issued for a violation of
30 C.F.R § 56.5-50(b) because an employee had been exposed to
noise in excess of the maximum permissible level. However, the
employee was wearing approved protective headwear and the
exposure was in the nature of an isolated instance since the
operator was in compliance at other times. Toe operator is very
small in size. It has. an excellent history of prior violations
with only two violations for the preceding 24 months. I~ light
of these facts, a penalty of $20 is assessed.
Citation No. 2367931 was issued for a violation of
30 C.F.R. § 56.14-1 because a guard was not provided· for the
V-belt on the plant feeder. The violation was serious because a

1/
The front page of the Administrative transcript erroneously
·refers only to YORK 84-12-M but both dockets were heard.
Accordingly, the front page is hereby amended to refer to
both.

man working under the feeder could be caught at the pinch point.
The operator was negligent. Taking into account these facts as
well as the operator's small size and excellent prior history a
penalty of $55 is assessed.
Citation No. 2221218 was issued for a violation of
30 C.F.R. § 56.14-6 because part of a guard on a self-cleaning
tail pulley was missing. Most of the guard was in place, the
exposed area was not one where men usually worked, and no one was
working in the area at the time in question. The Solicitor
therefore, represented that the violation was not serious. I
accept the Solicitor's representations and a penalty of $20 is
assessed.
Citation No. 2221219 was issued for the same type of
condition as the immediately preceding violation but there was a
miner in the general area. Therefore, the violation was more
serious. Negligence was ordinary. A penalty of $45 is assessed
for the violation and I again note the operator's small size and
excellent history.
Citation No. 2221220 was issued because of a piece a guard
near a belt drive was bent. Here again, there was no actual
exposure because no one was in the area and the Solicitor again
represented the violation as nonserious. A penalty of $20 is
assessed.
In conclusion I repeat what already appears herein and what
I told the operator at the hearing, i.e., these small penalty
amounts are assessed in light of the operator's small size and
excellent history. But the operator should take care that such
guarding violations do not occur in the future.
Accordingly, the operator is ORDERED TO PAY $160 within 30
days from the date of this decision.

Distribution:
David L. Baskin, Esq., Office of the Solicitor, U. S. Department
of labor, John F. Kennedy Federal Building, Government Center,
Boston, MA 02203 (Certified Mail)
Mr. Michael E. Bussiere, S. M. Lorusso & Sons, Inc., 331 West
Street, Walpole, MA 02081 (Certified Mail)
/gl

1293

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW J.UDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 281985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.: CIVIL PENALTY PROCEEDING
:

v.

Docket No. KENT 84-181
A.c. No. 15-13732-03512

:

:

. Ella Coal Mine

ELLA COAL COMPANY,
·R espondent

DECISION
Appearances:

Mary sue Ray, Esq., Office of the Solicitor,
u.s. Department of Labor, Nashville,
Tennessee, for Petitioner;
Ella Smith, President: Alan Smith, Jr.,
Vice-President, Ella Coal Company,
Manchester, Kentucky, Pro Se.

Before:

Judge Koutras
Statement of the Case ·

This proceeding concerns proposals for assessment of
civil penalties filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 820(a), seeking civil
penalty assessments in the amount of $208, for five alleged
violations of certain mandatory safety standards found in
Part 75, Title 30, Code of Federal Regulations • .
The respondent filed an answer to the civil penalty
proposals and stated that it is a small family owned company
mining approximately 75 tons of coal daily "when our equipment isn't broken down." Respondent also stated that it
employs "mostly family employees," and that after paying
debts, has no money to retain an attorney. Respondent asserts
that it timely corrected all of the cited conditions.
This case was originally assigned to Judge Charles c.
Moore, Jr., but was reassigned to me upon Judge Moore's
retirement. In response to a pretrial order issued by Judge

1294

Moore, the petitioner's counsel advised him that the mine
operator informed counsel that he was having severe financial
problems, and that this may merit a reduction of the proposed
civil penalty assessments. Counsel also advised that the
operator was having a financial statement prepared by his
accountant and that pending its receipt, the parties contemplated a settlement of the matter.
An exchange of correspondence in the file reflects that
the respondent submitted its income tax return for the year
1982 to the petitioner's counsel, and that counsel rejected
it as inadequate to support the respondent's contention that
he is unable to pay the assessed penalties. Subsequently,
by motion filed May 22, 1985, petitioner's counsel requested
that ·the case be scheduled for trial. Counsel stated that
she was informed that the respondent is still in business
producing coal.
A hearing was convened in London, Kentucky, on July 25,
1985, and the parties appeared and participated fully
therein. Respondent appeared pro se through three of its
corporate officers, all members of the same family.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

Section llOCi> of the 1977 Act, 30 u.s.c. § 820(i).

3.

Commission Rules, 29 C.F.R.

§

2700.1 et seg.

Issues
The respondent has conceded that the violations occurred
as charged in the citations issued by the inspector upon
inspection of the mine. The only issue presented is whether
or not the respondent has established that it is ·financially
unable to pay any of the civil penalties assessed in this
case, and whether the payment of such penalties will affect
its ability to remain in business.
Discussion
The citations issued in this case are as follows:
Section 104(a) Citation No. 2198132, was issued on
March 20, 1984, and it cites a violation of 30 C.F.R.
§ 75.305. The inspector states that the violation was
issued because of inadequate records of the weekly hazardous
conditions examinations in that the records were not up to
date and the last recorded examination was on February 27,
1984.

1295

Section 104(a) "S & S" Citation No. 2198134, was issued
on March 20, 1984, and it cites a violation of 30 C.F.R.
§ 75 . 1722Ca).
The inspector states that the belt pulley
drive assembly (belt and fly wheels), on an electric water
pump located approximately 200 feet outby the No. 2 face in
the No. 2 entry on 001 section, was not guarded. The inspector stated that· the pump stays "in almost constant use and
is attended to regularly, which would require a person to be
in close proximity to the drive assembly."
Section 104Ca> Citation No. 2198135, was issued on
March 20, 1984, and it cites a violation of 30 C.F.R.
§ 75.302Ca>.
The inspector states that the No. 1 and 3 working faces on the 001 section were inadequately ventilated in
that no line brattice, or "inadequately installed" brattice,
were provided at the faces to provide a perceptible movement
of air to the faces.
Section 104Ca> Citat~on No. 2197043, issued on March 26,
1984, cites a violation of 30 C.F.R. § 75.316. The inspector
states that the mine approved ventilation system and methane
and dust control plan was not complied with in the old, abandoned headings on the right of the main entries approximately
300 feet inby the portal, in that (1) three stoppings were
missing and no air was reaching the end of the workings, and
(2) a crosscut was not provided at the face of 3 of the 5 old
faces as required by the plan. The inspector indicates that
these entries extend for approximately 500 feet, and are
located on the intake-air side of current active workings.
Section 104(a) "S & S" Citation No. 2197044, issued on
March 26, 1984, cites a violation of 30 C.F.R. § 75.1306.
The inspector states that an explosive and detonator storage
box located in the last open crosscut between the No. 3 and
4 entries in the 001 section was improperly stored in that
it was located 2 feet from two energized trailing cables.
The inspector indicted that the box contained 12 tubes of
permissible explosives (water gel), and one box of electric
detonators, which were stored in separate compartments.
Petitioner's Testimony and Evidence
MSHA Inspector Gary Paul testified that he is currently
assigned to inspect the Ella Coal Mine and that he last
inspected the mine on the evening of July 24, 1985, as part
of his regular weekly inspection . Mr. Paul described the
mine as a small non-union family operated underground coal
mine employing a total of 14 miners. Two of the employees

1296

are the son and daughter of Mr. Alan Smith, Sr., and two are
his son-in-laws. The remaining 10 employees are non-family
members.
Mr. Paul stated that the mine operates on one production shift, and produces approximately 75 to 100 tons a day.
During his pa_s t two recent inspections he observed that the
mine was still in production. Although he has found that
the mine has been down in the past during his inspections
for 2 hours or so because of equipment breakdowns, it has
been a "running and operating" mine.
Mr. Paul stated that the mine is in good condition and
that the respondent conducts a safe operation. To his knowledge, all prior citations which have been issued at the mine
have always been timely abated and the cited conditions
corrected. The citations in question in these proceedings
were promptly abated in good faith.
MSHA Inspector James Brashear, confirmed that he issued
the citations in question in this case and that they were
terminated after the conditions were timely abated by the
respondent. Mr. Brashear agreed with Inspector Paul's
assessment of the respondent's mining operation. He identified the Wagon Fork Mining Company as another simi"lar small ·
mining operation in his district, and he has heard "through
the office ·grapevine" that it has paid none of the civil
penalties which have been assessed by MSHA.
Respondent's Testimony and Evidence
Alan Smith, Sr., stated that he has no connection with
the operation of the mine. He confirmed that he owns the
equipment, but that he leases it to his son Alan Smith, Jr.,
who serves as the Vice-President of the company. Mr. Smith
stated that the mine is in poor financial condition and that
he has received no payments from the company for the leased
equipment. He indicated that his son works the mine, and
his daughter is also employed there as a surface worker.
His son makes $10 an hour, and his daughter is paid $5 an
hour, and he confirmed that all employees who work underground are paid $10 an hour, and that surface employees are
paid $5 an hqur.
Mr . Smith stated that at one time he operatd the mine
but turned it over to his son because his son wanted to be a
miner. Mr. Smith stated that the mine provides employment
for 14 local families, and in his opin.ion, the company
cannot afford to pay any civil penalties. He stated further

1297

that he has advised his son to get out of the business, and
that the company is attempting to sell the mine to someone
who is better able to financially support the operation.
Mrs. Ella Smith stated that she is the mother of Alan
Smith, Sr . , and that she serves as president of the company. ·
She stated that she receives no salary or compensation from
the company. She confirmed that the current price of the
coal which the company sells is $28 a ton. She stated that
the mine is in poor financial condition, and she could not
afford to pay the penalties which have been assessed by MSHA.
Although she agreed that the mine is in current operation
and is producing, she stated that it was flooded and out of
production for 3 months during April or May, 1984, and that
it has been out of production for intermittent periods in
the past because of equipment breakdowns.
Alan Smith, Jr., stated that he is the Vice-President
of the company and is also a salaried employee. The mine
provides employment for him, as well as the other miners
working there, and he receives a salary for his work. He
indicated that while the mine is currently operating, its
finances are strained and he is currently negotiating to
sell the coal leas~ and turn the equipment lease over to
another operator. He stated that if this i~ done the
company will receive no money compensation, but that he
expects to stay on as a salaried employee if the proposed
deal is consumated.
Mr. Smith stated that the company retains an accountant
to prepare its financial statements, but that it could not
afford to pay him to come to the hearing to testify.
Mr. Smith stated that he did not bring any financial statements with him to the hearing, and when asked why thi.s was
not done, he indicated that he believed that the statements
were previously submitted to MSHA's counsel.
Mr. Smith confirmed that the mine employs 14. individuals, and he estimated the daily production as 65 to 75 tons.
He also confirmed that he lea.s es the equipment from his
father, Alan Smith, Sr. He also indicated that the company
cannot afford to pay any amount which may be assessed in
these proceedings, and he confirmed that prior assessments
have not been paid because the company cannot afford it. He
stated that the company has no reserve funds,and that any
"extra money" .which may be generated by the company is used
to keep the equipment operating, and if this were not done
he would have to shut down his operation and the miners
working there would be without employment.

1298

Mr. Smith did not dispute the fact that the conditions
or practices described by the inspector on the face of the
citations constituted violations of the cite~ mandatory standards. He conceded that the violations occurred as stated
by the inspector, and he pointed out that the conditions
were promptly corrected and abated.
Findings and Conclusions
Fact of Violations
The respondent did not contest the violations and conceded that the conditions or practices cited by the inspector occurred. Under the circumstances, all of the citations
ARE AFFIRMED as issued.
History of Prior Violations
Exhibit G-2, is an MSHA computer print-out which reflects
that during . the period March 20, 1982 through March 19, 1984,
respondent was assessed a total of $666, for 26 section 104(a)
citations issued at the mine. Except for the payment of one
$20 "single penalty assessment," the information provided in
the print-out reflects that the respondent has not paid any of
the remaining 25 penalty assessments.
Petitioner's counsel confirmed this information, and
explained that the respondent has been issued MSHA "default
letters" for the unpaid civil penalty assessments, and that
they have been forwarded to the Departm.e nt of Justice for
collection action.
Good Faith Compliance
The record here establishes that the cited conditions
or practices were promptly abated in good faith by the respondent, and this has been taken into account by me as well as
by MSHA's initial civil penalty assessment proposals.
Negligence
The respondent does not dispute the fact of violations
and does not take issue with any of the inspectors findings
as stated on the face of the citations. Under the circumstances, the inspector's negligence findings are affirmed,
and I conclude and find that the violations resulted from
the respondent's failure to take reasonable care, and that
this amounts to ordinary negligence.

1299

Gravity
The respondent has not disputed the inspector's gravity
findings. Upon review of the cited conditions or practices,
I conclude and find that with the exception of the record
keeping citation (No. 2198132}, the remaining violations
were all serious. Although two of those citations resulted
in automatic "single penalty" assessments of $20, this
obviously was the results of the inspector's finding that
they were not "significant and substantial" violations.
However, I am not bound by those findings, and I note that
the conditions or practices described deal with lack of adequate ventilation and inadequately stored explosives .
Size of Business and Effect of Civil Penalty Assessments on
the Respondent's Ability to Continue in Business
The record · establishes that the respondent is a small,
family operated mining operation. Petitioner's counsel does
not disp~te the respondent's contention that the officers of
the company receive no compensation in their capacities as
officers. Counsel indicated that the only information furnished by the respondent to support its contention that it
is unable to pay the $208 which has been assessed for the
five citations in question is a 1982 tax return. Although
that return indicated a loss for tax purposes, counsel
stated that no current information has been forthcoming from
the respondent to indicate any real or net operating losses.
Absent this information, counsel is of the· view that the
respondent has not carried its burden in establishing that
it is financially unable to pay the proposed assessments.
Petitioner's counsel also pointed out that the proposed
assessments have already taken into account the fact that
the respondent is a small operator, and in counsel's opinion
the proposed assessments are reasonable. Since the respondent has - furnished no additional information concerning its
financial condition, counsel is of the view that any additional decreases in the assessments are not warranted.
Petitioner's counsel offered a letter dated October 29,
1984, from Mrs. Ella Smith, exhibit G-1. That letter
includes a copy of the respondent's 1982 tax return, and
copies of certain payroll taxes information. Although the
letter makes reference to a 1984 tax return for the period
ending August 31, 1984, it has not been produced.

1300

Although I have no reason to doubt that this small operation has a cash flow problem and that it has encountered
some problems with the mine being down for relatively short
periods due to flooding or mechanical breakdowns, it is
still a productive mine and there is no evidence that the
operators have failed to meet their payrolls or other daily
operational expenses, or have had to lay off workers because
of their financial condition. Further, the operators identified several of their customers, and Mrs. Smith indicated
that the company receives $28 a ton for its coal. Although
Mr. Smith, Jr., indicated that the coal supply may be diminishing, Mr. Smith, Sr., indicated that there is a ready
supply of coal reserves, and that the company is negotiating
with a potential buyer who may be in a better position to
invest more capital in the venture.
The burden is on the respondent to establish that payment of the assessed civil penalties will adversely affect
its ability to continue in business. In this case, petitioner's counsel has been most patient with the respondent
in her attempts to have the respondent produce more current
financial information to support its plea of poverty; all to
no avail. In the absence of proof that the imposition of
civil penalties will adversely affect its ability to continue
in business, it is presumed that no such adverse affect would
occur. Sellersburg Stone Co., 2 MSHC 2010 (1983); aff'd, 736
F.2d 1147 (7th Cir. 1984); 3 MSHC 1385 (1984).
On the facts of this case, I conclude and find that the
respondent has failed to establish through . any credible evidence or testimony that the payment of the $208 assessments
in this case, which I find are reasonable, will adversely
affect its ability to continue in business . I remain unconvinced that the respondent will go out of business if it
pays these assessments. The respondent has been actively
and productively mining coal since at least 1982, and has
provided gainful employment for at least 14 individuals and
their families. The testimony here establishes t .hat the
Smith family operates a safe and relatively efficient mine,
and while it appears that they are meeting their expenses,
it has paid only one of the civil penalties previously
assessed against it. With the exception of three citations,
all of the remaining citations have been "single penalty"
assessments of $20 each. However, according to Mr. Smith,
Jr., all "extra money" is put back into the business, and he
apparently has opted to ignore his obligations to pay these
assessments on the ground that they do not contribute to his
coal production.

1301

ORDER
On the basis of foregoing findings and conclusions, and
taking into account the requirements of section llOCi) of
the Act, I conclude and find that the proposed civil penalty
assessments made by the petitioner in this proceeding are
appropriate and reasonable for the section 104(a) citations
which have been affirmed. The respondent IS ORDERED to pay
the penalty assessments in question within thirty (30) days,
as follows, and payment is to be made directly to MSHA:
Citation No.

Date

30 C.F.R.
Section

2198132
2198134
2198135
2197043
2197044

3/20/84
3/20/84
3/20/84
3/26/84
3/26/84

75.305
75.1722(a)
75.302(a)
75.316
75.1306

C1.

Assessment
$ 20

63
. 20
'20
85
$208

;j,l/~

' ~(f;!A.. K~tf!:~

Administrative Law Judge

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 u.s. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Alan Smith, Jr., Vice President, Ella Coal Company,
Rural Route 7, Box 207, Manchester, KY 40962 (Certified'
Mail>
/fb

1302

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

AUG 291985
ALABAMA BY-PRODUCTS CORP.,
Contestant

v.

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

SECRET~Y

PROCEEDINGS
.:: CONTEST
Docket No. SE 85-!"8-R
: Citation ·No. 2480143; 10/16/84
.
: Docket No. SE 85-19-R

.: Citation No. 2480144; 10/16/84
: Docket No. SE 85-20-R
.: Order No. 2481839; 10/16/84
:

Docket No. SE 85-21-R
Citation No. 2481840; 10/16/84

:

:

Docket No. SE 85-23-R
Citation No. 2481845; 10/16/84

:

pocket N9. SE 85-24-R
Citation No. 2481846; 10/16/84
Docket No •. SE 85-26-R
Order No. 2480147; 10/22/84

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

v.

· ALABAMA BY-PRODUCTS CORP.,
Respondent

.
.: Segco No. 1 Mine

CIVIL PENALTY PROCEEDINGS

:

.

Docket No. SE 85-82
A.C. ~o. 01-00347-03604
Docket No. SE 85-89
A.C. No. 01-00347-03606
Segco No. 1 Mine

DECISIONS
Appearances:

H. Thomas Wells, Jr., Esq., Maynard, Cooper,
Frierson & Gale, and J. Fred· McDuff, Alabama
By-Products Corporation, Birmingham, Alabama,
for the Contestant/Respondent;

1303

George D. Palmer and Cynthia Welch, Esqs.,
Office of the Solicitor, u.s. Department of
Labor, Birmingham, Alabama, for the
Respondent/ Petitioner.
Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern the captioned
citations and orders issued to the Alabama By-Products
Corporation (ABC) by several mine inspectors pursuant to the
Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a).
The contests concern ABC's challenge to the legality and propriety of the citations and orders, and the civil
penalty proceedings concern MSHA's proposed civil penalty
assessments for the alleged violations in question. Hearings were convened on May 14, 1985, in Birmingham, Alabama,
and the parties appeared and participated therein.
Issues
The principal issue presented in these proceedings are
(1) whether ABC violated the provisions of the Act and implementing regulations as alleged in the proposals for assessment of civil penalties filed by MSHA, and if so, (2) the
appropriate civil penalties that should be assessed ABC for
the alleged violations based upon the criteria found in section llO<i> of the Act. Additional issues in connection
with the contested citations and orders are identified and
disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977 ,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

Section 110(i) of the 1977 Act, 30 u . s.c.•

3.

commission Rules, 29 c . F.R.

§

§

820(i).

2700.1 et seg.

Discussion
The citations and orders issued in these proceedings
were issued after the completion of a fatal accident investigation conducted by MSHA Inspector William E. Herren on
October 15, 1984. The accident occurred when a continuousmining machine operator was tramming a machine through a
crosscut with a remote control unit and suffered fatal
injuries when he was pinned between the machine and the rib.

1304

Although the parties were prepared to go to trial on
all of these cases, they advised me at the beginning of the
hearings that they had reached a compromise, and proposed to
settle all of the cases. Under the circumstances, the
parties were afforded an opportunity to present arguments on
the record in support of their proposed disposition of the
cases (Tr. 5-42). A copy of MSHA's accident report, and
photographs of the cited remote control unit were received
and made a part of the record (exhibits ALJ-1, R-1 and R-2,
and C-8 through C-12).
The circumstances surrounding each of the contested
cases are as follows:
Docket No. SE 85-24-R
This proceeding concerns a section 104(a) citation,
No. 2481846, with special "S & S" findings, issued by MSHA
Inspector William Herren on October 16, 1984. The inspector
cited a violation of 30 C.F.R. § 75.1719-l(d), when he found
that certain working places in the mine where the continuousmining machine involved in the accident was operated were not
illuminated in compliance with the cited standard. The
inspector found that four of the illuminated lights installed
on the machine were inoperative.
MSHA's counsel asserted that while the inspector made
no illumination tests, the citation is supportable, and that
if called to testify, Inspector Herren would confirm that
the inoperative lights resulted in a lack of adequate illumination. However, given the fact that no tests were made,
counsel conceded that the lack of testing presented a disputed and open legal question which would be argued by the
parties in support of their respective positions. Given
this dispute, the parties proposed to settle this violation
by ABC agreeing to pay a civil penalty in the amount of $300.
Upon approval of this proposal, the parties agreed that the
citation should be affirmed and the contest dismissed.
In a posthearing letter filed with me on July 22, 1985,
MSHA's counsel advised me that at the time of the hearing
the parties had anticipated that the proposed civil penalty
assessment for the violation would be $500, and that the
proposed set~lement was made on that basis. However,
counsel has now determined that the proposed penalty assessment was actually $91, and that ABC paid that assessment on
March 20, 1985. Under the circumstances, counsel requested
that the citation be affirmed.

1305

Docket No. SE 85-26-R
This proceeding concerns a section 107(a) imminent danger order, No . 2480147, issued by MSHA Inspector Newell E.
Butler on October 22, 1984, and subsequently modified on
October 22, 1984. The inspector alleged that the clearance
maintained between a continuous-mining machine and the coal
rib was inadequate to protect the machine operator, and that
this condition resulted from inadequate training by mine
management. The order was issued during the course of the
fatality investigation.
MSHA's counsel asserted that upon further consideration
of this order, including consultation with the inspector,
MSHA has concluded that the order should be vacated. Under
the circumstances, ABC's counsel requested to withdraw the
contest, and agreed that it may be dismissed.
Docket No. SE 85-20-R
. This proceeding concerns a section 107(a) · imminent danger order, No. 2481839, issued by MSHA Inspector William
Herren ·on October 16, 1984. The order was issued during the
course of the fatality investigation, and Mr. Herr~n alleged .
that the remote control unit on the continuous-mining machine
involved in the accident had been modified in an unauthorized
manner, thereby, rendering the machine non-permissible and in
violation of mandatory safety standard 30 C.F.R. § 75.5~3.
The order was subsequently modified by Mr. Herren on
November 6, 1984, to delete his reference to a violation of
section 75 •.503, and it was amended to allege a violation of
section 75.1725(a).
Docket Nos. SE 85-2i-R and SE 85-82 .
This proceeding concerns a section 104(a) citation,
No. 2481840, with special "S & S" findings, issued by Inspector Herren on October 16, 1984, in conjunction with the
issuance of the .imminent danger order noted in Docket No~
SE 85-20-R. Inspector Herren issued the citation for a violation of section - 75.503, but he subsequently modified it on
November 6, 1984, by deleting this section and substituting
an alleged v~olation of section 75.1725(a).
The parties proposed to settle· the civil penalty case
concerning contested Citation No. 2481840, (Docket No. ·
SE 85-82), and ABC agreed to pay a civil penalty in the
amount of $6,100 for the violation (Tr. 6). The parties
also agreed that the imminent danger order (Docket No.
SE 85-20-R) should be affirmed, and that the contests
(Docket No. SE 85-20-R and SE 85-21-R) should be dismissed.

1308

Docket Nos. SE 85-23-R and SE 85-89
These proceedings concern a section 104(a) citation,
No. 2481845, with special "S & S" findings, issued on
October 16, 1984. The citation was issued when the inspector found that the remote radio control unit on a continuousmining machine which had been removed from service had been
modified in an unauthorized manner, thereby rendering the
machines non-permissible in violation of mandatory safety
standard 30 C.F.R. § 75.503.
The inspector modified the citation on November 19,
1984, deleting his allegation of a violation of section
75.503, and amending the violation to allege a violation of
section 75.1725(a).
The parties agreed to an affirmation of the citation
and they proposed to settle the matter by a payment by ABC
of a civil penalty assessment in the amount of $700 (Tr. 5,
7). At the time of the hearing, MSHA's counsel indicated
that he expected the violation to be assessed at $1,000, out
that the circumstances presented warranted a reduction in
the original penalty assessment.
In his posthearing letter of July 22, 1985, MSHA's
counsel advised me that while the parties had expected the
violation to be a&s~ssed at $1,000, the proposed assessment
is actually $1,200 (SE 85-89). Counsel also advised that
the parties have agreed to amend their proposed settlement
as stated during the hearing to refl~ct an agreement by ABC
to pay a civil penalty in the amount of $900, in full settlement for the citation.
Docket Nos. SE 85-18-R and SE 85-19~R
These proceedings concern two section 104(a) citations,
Nos. 2480143 and 2480144, with special "S & S" findings,
'issued on October 16, 1984, by MSHA Inspectors Newell E.
Butler and William Herren. The citations were issued when
the inspectors found that the remote radio control units on
two continuous-mining machines which had been removed from
service by tQe operator had been modified in an unauthorized
manner, thereby rendering the machines non-permissible in
violation of mandatory safety standard 30 C.F.R. § 75.503.
The inspectors modified the citations on November 19,
1984, deleting their allegations of violations of section

1307

75.503, and amending the citations to allege violations of
section 75.1725(a).
The parties proposed to settle these citations by ABC
agreeing to pay civil penalties in the amount of $700 for
each of the citations, or a total of $1,400 in penalties.
Upon approval of their proposal, the parties agreed that the
citations should be affirmed and the contests dismissed.
In his posthearing letter of July 22, 1985, MSHA's
counsel states that at the time of the hearing the parties
had anticipated proposed civil penalties of approximately
· $1,000 for each of the citations. However, counsel has now
determi~ed that the proposed penalties were actually $192
for each citation, and that the assessments were paid by ABC
on February 20, 1985 (SE 85-18-R), and March 5, 1985
(SE 85-19-R). Under the circumstances, counsel requested
that the citations be affirmed.
Size of Business and Effect of Civil Penalties on the
Contestant/Respondent's Ability to Continue in Business
The parties agreed that ABC is a large mine operator
and that the payment of the agreed-upon civil pena.l ties will
not adversely affect its ability to continue in business
{Tr. 23-25 >.
Good Faith Compliance
The record in these proceedings re~lects that all of
the conditions or practices cited as violations were
promptly abated by ABC within the time fixed by the inspectors. MSHA's counsel conceded that this was the case, and
he agreed that ABC abated all of the violations in good
faith (Tr. 23-25).
Negligence
MSHA's counsel -argued that ABC exhibited a high degree
of negligence with r _e spect to all of the violations in question in these proceedings. With regard to the continuousmining machine citations, counsel asserted the negligence
was less than gross, and that had these cases proceeded to
trial, ABC's counsel would have presented testimony indicating that on prior shifts, the remote controlled mining
machine units were operating properly.
MSHA's counsel pointed out that while Inspector Herren
found evidence that some of the control units had been

1308

altered by tape or by "whittling'' or shaving some of the
control unit levers, these conditions were not readily
observable or detectable through visual inspection, and that
the inspector agreed that this was the case. Counsel also
pointed out that after the accident occurred, the other
cited machines were taken out of service by ABC and were not
in use at the time they were cited. Counsel agreed that the
inspector issued the citations in order to prevent the use
of the machines until the defects could be corrected, and
that ABC's actions in taking them out of service mitigates
the negligence with respect to those violations.
ABC's counsel asserted that given the fact that his
investigation reflected that the mining machine involved in
the accident was found to be in proper working order on
prior shifts, there is a strong presumption that the accident victim may have taped the left control lever, thereby,
contributing to the conditions cited by the inspector.
MSHA's counsel consulted with Inspector Ferren, and he
reportd that Mr. Ferren's investigation did not disclose the
identity of any individuals who may have altered the control
levers on the cited mining machines. counsel confirmed that
Inspector Ferren had no reason to believe that the required
weekly electrical inspections or preshift examinations were
not conducted as required.
Gravity
I take note of the fact that the inspectors who issued
the citations in these proceedings found a high degree of
gravity, and that they made special findings that the cited
violations were "significant and substantial" (S & S). In
addition, although the parties subsequently agreed to a
settlement disposition for all of the violations in question, the inspector's findings that they were "S & S"
remains, and they agree that the citations are to be
affirmed as issued. Under the circumstances, I conclude and
find that all of the violations in issue in these proceedings are serious violations.
With regard to Citation Nos. 2480143, 2480144, and
2481845, I take note of the fact that in the narrative
description of the cited conditions on the face of each citation form, the inspectors noted that the citations were a
factor which contributed to the issuance of three additional
imminent danger orders issued that same day. However, all
of these orders were subsequently vacated by MSHA as unsupportable, and I dismissed the cases. Under the circumstances,

1309

MSHA's vacation of the orders mitigates the gravity with
respect to these violations.
History of Prior Violations
MSHA's counsel asserted that ABC has an "average"
history of prior violations, and that its compliance record
is not such as to warrant any additional increases in the
civil penalty assessments proposed for the violations in
question. counsel confirmed that ABC's prior history does
not include previous citations for defective continuous
miner remote control units, or for conditions or practices
similar to those cited by the inspectors in these
proceedings (Tr. 23-25).
Findings and Conclusions
After careful consideration of the proposed settlement
disposition of civil penalty proceedings SE 85-82 and
SE 85-89, and taking into account the arguments at the hearing, I conclude and find that the proposed settlement
dispositions are reasonable and in the public interest, and
pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, they
are APPROVED.
ORDER
Respondent Alaba~a By-Products, Inc., IS ORDERED to pay
the following civil penalties for the violations which have
peen settled, and payment is to be made to ·MSHA within
thirty (30) days of the date of these decisions.
Docket No. SE 85-82
Citation No.

Date

30 C.F.R.
Section

Assessment

2481840

10/16/84

75.1725(a)

$6,100

Citation No.

Date

30 C.F.R.
Section

Assessment

2481845

10/16/84

75.1725(a)

$ 900

Docket No. SE 85-89

In view of the settlement approvals, Citation Nos.
2481480 and 2481845, are AFFIRMED, and contest Docket Nos.
SE 85-21-R and SE 85-23-R, are DISMISSED.

1310

In view of the civil penalty assessment dispositions
made by and between the parties in c onnection with contests
Docket Nos. SE 85-18- R, SE 85-19-R, and SE 85-24-R the citations in issue in those proceedings (2480143, 2480144, and
2481846) are all AFFIRMED, and the contests are DISMISSED.
By agreement of the parties, the section 107(a) imminent danger order, No. 2481839, issued on October 16, 1984,
in Docket No SE 85-20-R, is AFFIRMED as issued, and the contest is DISMISSED.
In view of MSHA's assertion at the hearing that the
section 107(a) imminent danger order, No. 2480147, issued on
October 22, 1984, in Docket No. SE 85-26-R, cannot be supported, and in light of MSHA counsels' assertion by letter
filed with me on July 22, 1985, that the order has been
vacated, the contest is DISMISSED.

/~~fl~
Administrative Law Judge

Distribution :
H. Thomas Wells, Jr., Esq., Maynard, Cooper, Frierson &
Gale, P.C., 12th Floor Watts Building, Birmingham, AL 35203
<certified Mail>
J. Fred McDuff, Esq . , Alabama By-Products Corporation,
Box 10246, Birmingham, AL 35203 (Certified Mail)
George D. Palmer, Esq., Office of the Solicitor, u.s.
Department of Labor, 1929 '9th. Avenue South, Birmingham, AL
35256 (Certified Mail)
·
/fb

1311
. ·..

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

AUG 3 01985
CIVIL PENALTY PROCEEDING

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

.
.

v.

:

SOUTHWESTERN ILLINOIS COAL
CORP.,

Respondent

Docket No. LAKE 82-38
A.C. No. 11-00609-03034
Captain Mine

..
..

DECISION ON REMAND
Before:

Judge Broderick

By a decision issued May 15, 1985, the Commission
concluded that Respondent violated 30 C.F.R. § · 77.1710(g)
and remanded the case to me for determination whether the
violation was significant and substantial and for the assessment
of ~n appropriate civil penalty.
On August 2, 1985, the Secretary filed a motion to
dismiss and approve a settlement entered into by the parties.
The parties agree that the vioiation was significant and
substantial because it could result in a serious injury or
fatality. They agree to settle the case for $70 (it was
originally assessed at $90) • . The motion states that Respondent
was not negligent, and that it corrected the violation by
disciplining the miner involved and instructing the employees
on the need for using safety belts.
I conclude that the motion should be granted. I conclude
that the violation was significant and substantial. An
appropriate penalty for the violation is $70.
Respondent is ORDERED to pay the sum of $70 within 30
days of the date of this decision.

J

ethvu2-:5

./4JJvtJrft'l/Vei__

James A. Broderick
Administrative Law Judge

1312

Distribution:
Rafael Alvarez, Esq.·, u.s. Department of Labor, Office
of the .Solicitor, 23o · s. Dearborn St., Chicago, IL 60604
(Certified Mail)
Brent L. Motchan, Esq., 500 North Broadway, Suite ·l800,
St. Louis, MO 63102 (Certified Mail)
slk

1313

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

PAUL KREVOKUCH,
Complainant
v.
CRESCENT HILLS COAL CO.,
INC.,
Respondent

AUG 301965

.
. DISCRIMINATION PROCEEDING .
. Docket No. PENN 84-198-D
.: PITT CD 84-11
.
.

DECISION
Appearances:

Richard w. Schimizzi, Esq., Law and Finance Bldg.,
Greensburg, Pennsylvania
for Complainant;
Jane A. Lewis, Esq., Thorp, Reed & Armstrong,
Pittsburgh, Pennsylvania
for Respondent.

Before:

Judge Lasher

This proceeding, which was initiated by the filing with the
Federal Mine Safety and Health Review Commission of a complaint
of discrimination by Paul Krevokuch on August 9, 1984, arises
under section 105Cc> of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seg·. ,. C1976 & Supp. V. l981), hereinafter
"the Act".
·
..

By letter dated July 10, 1984, the Complainant had been
notified that his complaint of discrimination (filed April 26,
1984) before the Mine Safety and Health Administration CMSHA),
had been investigated and the determination made that a violation
of section 105Cc> had not occurred. Under the Act, a complaining
miner has an independent ·r ight to bring a second complaint before
this Commission and this proceeding is based on that right.
On September 21, 1984, the Respondent filed a motion to
dismiss alleging inter alia that. the complaint was not timely
filed .since it was filed more than 60 days after the alleged
discriminatory act of Respondent, the discharge of Mr. Krevokuch
on February 25, 1983.
A preliminary hearing to determine the · issues raised by the
motion to dismiss was held on the record in Washington,
Pennsylvania on December 13, 1984, at which both parties were
represented QY counsel.

1314

The MSHA complaint was filed on April 26, 1984. There is no
question but that it was filed with the Secretary approximately
1-year betond the 60-day period prescribed in section 105(c) of
the Act. _I
·
The Commission has held that while the purpose of the 60-day
time limit is to avoid stale claims, a miner's late filing may be
excused on the basis of "justifiable circumstances," Joseph w.
Herman v. IMCO Services, 4 FMSHRC 2135 (December 1982). The Mine
Act's legislative history relevant to the 60-day time limit
states:
While this time-limit is necessary to avoid stale
claims being brought, it should not be construed
strictly where the filing of a complaint is delayed
under justifiable circumstances. Circumstances which
could warrant the extension of the time-limit would
include a case where the miner within the 60-day period
brings the complaint to the attention of another agency
or to his employer, or the miner fails to meet the time
limit because he is misled as to or misunderstands his
rights under the Act. s. Rep. No. 181, 95th Cong.,
1st Sess. 36 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th· Cong., 2d
Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 624 (1978) (emphasis added).
Timeliness questions therefore must be resolved on a
case-by-case basis, taking into account the unique circumstances
of each situation.
The reliable and probative evidence of record indicates that
the 65-year old Complainant was hired by Respondent on May 1,
1972, as a fire boss. Thereafter he worked as a mine foreman for
9 years until he was discharged on February 25, 1983. During the
2 years he was a fire boss he was a member of the United Mine
Workers of America which membership terminated when he became
foreman. Complainant, who has a 7th grade education, has not
worked since his discharge.
Complainant testified that as mine foreman he was
responsible for safety matters but prepared no safety reports,
never dealt with MSHA officials, and did not know where the MSHA

1/ Although Complainant testified that he asked for re-employment with Respondent after his discharge and was turned down, I
conclude that the 60-day filing period should commence on the
discharge date, February 25, 1983, since it is clear from the
findings made herein that the discriminatory event occurred on
that date and not on some subsequent unspecified and indeterminate date when Complainant may have asked for his job back.

1315

office was located. He did have dealings with the Safety
Director and discussed "safety problems" .with him ·(Tr. 24).
·Complainant's son-in-law, Robert Kerin, was formerly Safety
Coordinator for Respondent until approximately 1978-1979 and is
currently Safety Coordinator for Gulf & Western in Tennessee.
After conferring with him Complainant filed an age discrimination
complaint with the Equal Employment Opportunity Commission (Tr.
15) on or about December 1, 1983 (approximately 7 months after
his discharge). The EEOC referred the matter to the Pennsylvania
Human Relations Commission (PHRC) where the EEOC matter was
pending at the time of the hearing herein (Tr. 45, 119-120). In
this complaint (Ex. R-2> Complainant alleged as follows:
"I.
I was ·laid off from my position as mine foreman at the
Daisytown Mine on February 25, 1983. Since that time the
company has refused to recall me. I had worked for them
since May 1972. My record is excellent in production,
safety and other relevant employment factors. I believe
that I am the oldest foreman in the company.
II. On February 25, 1983 General Superintendent, Joseph
Reggiannai laid me off. Be refused to offer any reason. I
have contacted the company many times concerning a. recall.
I am told that no work is available.
III. I believe that I am being discriminated against
because of my age, 64, for the following reasons:
a. I was the oldest senior foreman at Daisytown mine.
My employment record is equal superior to that of most
other foremen.
b. My position was given to Mr. William Somplaskty.
is about 44 years of age.

He

c. My lay-off also resulted in the reassignment or promotion of two younger foreman Mr. Felechutti and Mr.
Bertoty. Each of them is probably less than 40 years of
age.
d. Mr. Bertoty was later laid off and replaced by Bennett
a foreman who laid off during 1982. Mr. Bennett is approximatey 45 years of age.
e. When Daisytown Mine closed, Mr. Bennett, Mr. Somplaskty and Mr. Reggiannai transferred to Ocean mine.
Mr. Reggiannai and Mr. Bennett are still employed there
in jobs that I can · perform.•

1316

In his MSHA complaint (Ex • .R-3), Complainant alleged:
" • •• I believe that I am being discriminated against
because of the following:

*****

*****

*****

*****

2. In January of 1983 I was instru.c ted to mine beyond
roof supports and refused to follow their instructions.
I feel that they have discriminated against me because
of my actions towards my own safety and the safety of my
men." ~/
At the hearing herein Complainant repeatedly attributed a
third reason for his being discharged: his high wage level. (Tr.
19, 45-46, 144) .
The following dialogue is persuasive:
"Q. Why do you think you were discharged or laid off, Mr.
Krevokuch?
A. Well, I believe I stated before, I think wages had
something to do with it.
Q. And what do you think wages had to do with your lay
off or discharge?
A.

Making too much money.

Q. You think the company wanted to get rid of you because
you were making too much money?
A.

Yes, Ma'am.

Q. Do you think anything else had to do with the reason
for your lay off or discharge?
A. Well, do you want to get back to the wages, I want to
mention one more item?
Q.

Go ahead.

A. Mr. Reggianni, at the Pennsylvania Humane Relat'i ons
Commission mentioned and told Belinda Stern that at the
time they laid me off that for what they was paying me,
they are paying two Foreman at the present time.

2/ The quoted language, although general and conclusionary, does
constitute an allegation of a cause of action cognizable under
the Act.

1317

All right. Is there anything else involved, in your
opinion, in the reason that you were fired or laid off?
Q.

A.

All I know is of age and ·wages, up to that point.

Q. And, why do you think, now, today, as you sit here,
why do you think you were fired or laid off?
A.

Wages."
(Tr. 45, 46).

* * * * * * * * * * * * * * * * * * * * * * *
"At one time you thought you were discharged only because
of your ageJ is that correct?
THE WITNESS: Right, Your Honor .
JUDGE LASHER: This morning you thought you were discharged
only because of your high wages.
Is that true or false?
THE WITNESS: Well, I believed that that had a part in it.
JUDGE LASHER: That had a part in it?
THE WITNESS: Right, that wages was a part.
JUDGE LASHER: Okay. Is there any other part, then, besides
that that you think you were discharged?
THE WITNESS: No, Your Honor.
JUDGE LASHER : You don't think it was because of these safety
matters?
THE WITNESS: No. No, Your Honor.•
(Tr. 144>.
Complainant gave the following account of his discharge by
then General Superintendent Joseph Reggianni on February 25,
1983:
•tt was very brief. Be told me that he was sorry, but
that I was laid off.• (Tr. 13).
The Complainant also testified that Mr. Reggianni did not
tell him why he was being •laid off• (Tr. 14) and that he first
learned that he was discharged because of 3 Section 104(d) safety
violations be was responsible for from the testimony of company
officials at a hearing in Pittsburgh before the PBRC on April 24,
1984 (Tr . 17, 18, 47-57). Two days later, on April 26, 1984 he
filed his discrimination complaint with MSBA.

1318

Mr. Reggianni testified that thi decision to - ~ischarge
Complainant was made jointly by 3 of Respondent's officials, Mel
Pelvehette, co-owner, Jacob Kassab, co-owner and president, and _
himself because of the 3 violations which occurred over a period
of approximately 1 1/2 years. He said that other foremen had
received •safety violations• but that Complainant was the only
one to get 3 violations. (Tr. 77, 80-84, 122). Mr. Reggianni
said that he waited until the end of a pay period on February 25,
1983, to discha~ge Complainant and that all he said was: •you are
terminated on account of 3 104(d) safety violations ••• • and that
Complainant said "OK" and walked out of his office. CTr. 77-78,
123). 3; No written ter~ination slip was give~ Complainant.
Following the occurrence of the last of the 3 violations an
MSHA investigation carrying the •possibility of criminal
penalties• against Complainant ensued CTr. 85, 86). Another
foreman had· been discharged for safety violations approximately 2
years previously CTr. 125). Complainant alleges, as justification for his 1-year · filing delay, that he was not aware until
the Pennsylvania HRC hearing that he' had been accused of and
discharged for •safety• reasons CTr. 48). The Respondent's con~
tention at that hearing was that Complainant was discharged
because of his responsibility for _3 safety violations. · Assuming
for the sake of argument that this is so, it is not justification. Being responsibile for or causing safety violations _is
not a protected activity under the Mine Safety Act; any delay in
learning that . this was a mine operator's reason for discharging a
miner affords no justification for a filing delay.
Complainant's testim~ny as to his lack of guilt in the
commission of the violations and as to his safety-consciousness
in the execution of his duties as foreman does · not change the
nature of what he learned at the PBRC hearing on April 24, 1984.
Had he learned at the PBRC hearing that he was discharged for a
protected safety activity and had it been established also that it was the first time he had any reason to believe it was the
reason he was discharged, some justification for the filing delay
would have been manifested.

~/

Because of the consistency of Respondent's posi~ion, and the
1nconsistency of Complainant's allegations for his being discharged, Mr. Reggianni's version o~ the discharge, conversation
is accepted as having the greater weight. It is significant
that, even under Complainant's account thereof, he did not
inquire as to why he was . being let go.

1319

However, learning that one was discharged for committing
safety violations is a direct opposite of learning that one was
discharged for engaging in "safe mining practices" or exercising
safety rights protected under the Act.
Again, while Complainant on the one hand contends that he
did not learn he was discharged for safety reasons until April
24, 1984, he, on the other hand, repeatedly maintains that he was
discharged because of his high wage level. Had he acquired, on
April 24, 1984, some basis for believing that he was discharged
for engagement 'in protected safety activities and had some good
faith belief that this was the reason, some justification for his
delay might have been established. The voucher for Complainant's
lack of justification for his late filing is that even now he
continues to· believe that it was his wage level, not protected
safety activities, that brought on his discharge.
The 60-day statutory limitation is not a particularly long
filing period in view of the lack of sophistication of the
average Complainant and the complexity of some of the legal bases
for bringing a discrimination action. On the other hand, the
placement of limitations on the time-periods during which a
plaintiff may institute legal proceedings is primarily designed
to assure fairness to the opposing party by preventing surprises
through the revival of claims that have been allowed to slumber
until evidence has been lost, memories have faded, and witnesses
haye disappeared. The theory is that even if one has a just
claim it is unjust not to put the adversary on notice to defend
within the period of limitation and that the right to be free of
stale claims in time comes to prevail over the right to prosecute
them. Where, as here, the filing delay is prolonged, it seems a
fair proposition to require a clear justiciable explanation
therefor.
The length of the time lapse as well as the illogical basis
asserted for the delay mandate the conclusion that such delay in
filing the complaint was not justified and that it was not timely
filed.
ORDER
Respondent's motion to dismiss is granted and this proceeding is dismissed. ·

~.c£d- ~"''

·Michael A. Lasher, Jr.
Administrative Law Judge

1320

Distribution:
Mr. Paul Krevokuch, R.D. il, Box 299C, West .Newton, PA
(Certified Mail)

15089

Richard w. Schimizzi, Esq.• , Law and Finance Building, 35 w.
Pittsburgh Street, Greensburg, PA 15601 (Certified Mail)
Jane A. Lewis, Esq., Thorp, Reed & Armstrong, One Riverfront
Center, Pittsburgh, PA 15222 (Certified Mail)
Crescent Bills Coal Co., Inc., 408 Millcraft Center, Washington,
PA 15301 (Certified Mail)
/blc

1321

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

AUG 30 \985
DISCRIMINATION PROCEEDING

CHESTER W. CRAIG,
Complainant

Docket No. WEVA 84-252-D
MORG CD 84-8

v.
CONSOLIDATION COAL COMPANY,
Respondent

ORDER OF DISMISSAL
Before:

J udge Merlin

On June 13, 1984, you filed with this Commission a complaint
of discrimination under section 105(c) of the Federal Mine Safety
and Health Act of 1977. On January · 23, 1985 you were ordered to
provide within 30 days certain information concerning your complaint, or show good cause for your failure to do so. Our
records show that you received this order by certified mail on
January 26, 1985. However, you never responded to the order.
Because you have failed to provide the required information
or show cause why you did not, your complaint is hereby
DISMISSED .

c

~~~\\\") (\

~

Paul Merlin
Chief Administrative Law Judge

Distribution :
Mr. Chester W. Craig, 1700 Big Tree Drive,
(Certified Mail ·)

Fairmont~ WV

·

26554

Samuel P. Skeen, Esq., Consolidation Coal. Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Mr. James Simpson, Superintendent, Al Polis, Regional Manager,
Consolidation Coal Company, P. 0. Box 100, Osage, WV 26543
(Certified Man)
/gl

1322

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

August 30, 1985

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

v.
DANEKER SAND &GRAVEL,
Respondent

CIVIL PENALTY . PROCEEDING

.. -

Docket No . YORK 85-1-M
A. C. No. 18-00707-05502
Docket No. YORK 85-3-M
A. C. No. 18-00707-05503
Daneker Sand & Gravel

DECISION APPROVING SETTLEMENT
Before :

Judge Merlin

The Solicitor has filed a proposal for penalty for the ten
violations involved in this matter. The original assessments for
the alleged violations in both cases totalled $528, and the
proposed settlements are for $132. The Solicitor believes that a
reduction from the original assessment is warranted for the
following reasons .
Citation Nos . ·2369404, 2369405, 2369406, 2369407, 2369408,
2369410, 2369411 and 2369412 were all issued on July 16, 1984 for
violations of 30 C.F.R. § 56.15-1 . These violations involved the
lack of guards on machinery such as conveyor rollers (2369405),
(2369406); pinch points of V-belt drives (2369407), .(2369412);
tail pulleys of the No. 1 conveyor (2369404); a gravel conveyor
(2369408), (2369410); and sand conveyor (2369411). Four of these
violations were originally assessed at $68, and the other four at
$54 . The violations were later terminated when the operator
provided the appropriate guards.
Citation No. 2369415 was issued for a violation of
30 C.F.R. § 56.15-1 and originally assessed at $20. The
inspector observed that first aid equip~ent was no~ prpvided at
the mine site. Citation No. 2369414 was issued for a violation
of 30 C.F.R. § 56.9-87 and originally assessed at $20 when an
inspector observed that the back-up alarm on the loader feeding
the wash plant was out of order.
The Solicitor believes that a reduction from the total
amount originally assessed is appropriate due to the ·financial
hardship involved here. Daneker Sand and Gravel, a sole
proprietorship, reported losses of $136,250 in 1983 and $62,155
in 1984. The supervisory inspector on this case believed that

1323

the tax returns acc~rately reflected the state of the business
and recommended to his supervisor that the penalties "be reduced
as much as possible." The parties assert that the original assessment of $528 would affect the operator's ability to stay in
business . Mr. Daneker ha s shown good faith in abating the conditions. Also, there were no other assessed violations in the
prior two year period.
In view of the foregoing, I accept the parties' representations and conclude that the reduced penalties are appropriate
under the statutory criteria of section 110(i) which take into
account the effect of a penalty on an operator's continued
ability to remain in business. However, the guarding violations
are a cause for concern and I trust the operator will be more
careful in the future.
Accordingly, the operator is ORDERED TO PAY $132 within
30 days of the date of this decision.

c----r-----~-r-~~

Paul Merlin
Chief Administrative Law Judge

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. Million Daneker, Jr., Daneker Sand & Gravel, 2111 Churchville
Road, Bel Air, MD 21014 (Ce r tified Mail)
/gl
-Q>U.S. GOVERNMENT PRINTING OFFICE: 1 9 8 5 It 6 1 2 5 6

3 52 8 0

1324