JANUARY 1989

Connnission Decisions
01-10-89
01-12-89
01-12-89 '
01-13-89
01-27-89

Emery Mining Corp./Utah Power & Light Co.
Peabody Coal Company
Charles Conatser v. Red Flame Coal Co., Inc.
Jim Walter Resources, Inc.
Birchfield Mining Company

WEST 87-130-R
KENT 86-94-R
KENT 87-168-D
SE
87-8
WEVA 87-272

Pg.
Pg.
Pg.
Pg.
Pg.

CENT 88-76-M
WEST 88-77
WEST 88-92
WEST 88-21
YORK 88-29-DM
PENN 88-36-R
WEVA 88-305-D
PENN 88-10-R
PENN 88-42-R
KENT 88-133
WEST 87-130-R
WEST 87-130-R

Pg. 45
Pg. 68
Pg. 70
Pg. 78
Pg. 81
Pg. 90
Pg. 101
Pg. 102
Pg. 105
Pg. 119
Pg. 122
Pg. 127

1
4
12
21
31

Administrative Law Judge Decisions
01-03-89
01-09-89
01-09-89
01-13-89
01-17-89
01-19-89
01-23-89
01-25-89
01-26-89
01-27-89
01-27-89
01-30-89

Blue Circle Incorporated
Eastside Coal Company, Inc.
Utah Power & Light Company
Energy Fuels Coal, Inc.
Gerard Sapunarich v. Lehigh Portland Cement Co.
Mathies Coal Company
Phyllis Palmieri v. Southern Ohio Coal Co.
Tunnelton Mining Company
Westwood Energy Properties
Bowling Mountain Mining Corp.
Emery Mining Corp. /Utah Power & Light Co.
Emery Mining Corp./Utah Power & Light Co.

JANUARY 1989
Review was granted in the following cases during the month of January:
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. WEVA 88-176.
(Judge Merlin, November 28, 1988)
Secretary of Labor, MSHA v. Lincoln Sand & Gravel Company, Docket No. LAKE 88-67-M.
(Judge Maurer, December 8, 1988)
Review was denied in the following case during the month of January:
Ernie Bruno v. Cyprus Plateau Mining Corporation, Docket No. WEST 88-157-D.
(Judge Morris, November 29, 1988)

COMMISSION DECISIONS

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

January 10, 1989

EMERY MINING CORPORATION
and UTAH POWER AND LIGHT
COMPANY
v.

)

DOCKET NOS. WEST 87-130-R
THROUGH -137-R

)
)
)

WEST 87-144-R
THROUGH-147-R

)

)

SECRETARY OF LABOR;
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS
OF AMERICA (UMWA)

WEST 87-150-R
WEST 87-152-R
WEST 87-153-R

)
)
)
)
)
)
)
)
)

WEST 87-155-R
THROUGH 161-R
WEST 87-163-R
WEST 87-243-R
THROUGH -249-R

)
)
)
)

WEST 87-208-R
WEST 87-209-R
WEST 87-25

)
)

DIRECTION FOR REVIEW AND ORDER

On November 19, 1988, the Secretary of Labor filed a petition for
interlocutory review of an order issued August 30, 1988, wherein the
presiding administrative law judge granted the petition of Utah Power and
Light Company ("UP&L") to vacate 30 modified citations and orders to the
extent that they named UP&L as a party.
On December 5, 1988, UP&L filed an opposition to the petition for
interlocutory review arguing, among other things, that the subject order was
not interlocutory but rather was a final order, reviewable only upon the
timely filing of a petition for discretionary review in accordance with 30
U.S.C. Sec. 823(d)(2)(A)(i) and Commission Procedural Rule 70, 29 C.F.R.
Sec. 2700.70. See UP&L Opposition at 6.

1

On December 19, 1988, the Secretary filed a reply to UP&L's opposition,
arguing that . the subject order was not a final decision because the
requirements of Rule 54(b) of the Federal Rules of Civil Procedure were not
met. l/ Specifically the Secretary stated that:
The August 30 Order contains no express determination
that there is no reason for delay or express direction
for the entry of final judgment as to Utah Power and Light.
Sec. Reply at 3.
In Local Union 1889, District 17, United Mine Workers of America v.
Westmoreland Coal Co., 5 FMSHRC 1407, 1411-12 (August 1983), pursuant to
Commission Procedural Rule l(b), 29 C.F.R. Sec. 2700.l(b), we applied Rule
54(b) in the context of an adjudication of fewer than all claims presented
in an action. 2/
We find that Rule 54(b) is equally applicable in the
context of adjudications involving multiple parties.
We concur in the
statement in 10 Wright, Miller, & Kane, Federal Practice and Procedure, Sec.
2654 at 38 (1983) (footnotes omitted):
The rule does not require that a judgment be entered when
the court disposes of one or more claims or terminates the
action as to one or more parties. Rather, it gives the court
discretion to enter a final judgment in these circumstances
and it provides much-needed certainty in determining when
a final and appealable judgment has been entered. As stated
by one court, "if it does choose to enter such a final order,
[the court] must do so in a definite, unmistakable manner. 11
[David v. District of Columbia, 187 F.2d 204,206 (D.C. Cir.
1950).] Absent a certificatiqn under Rule 54(b) any order in
a multiple-party or multiple-claim action, even if it appears
to adjudicate a separable portion of the controversy, is
interlocutory.
See also, Huene v. United States , 743 F.2d 703, 704 (9th Cir. 1984).

11 The Secretary's Motion to File Reply Memorandum is hereby granted.
'J;./

Rule l(b), 29 C.F.R. Sec. 2700.l(b) states:
Applicability of other rules. On any procedural question not regulated
by the Act, these Procedural Rules, or the Administrative Procedure Act
(particularly 5 U.S.C. Secs. 554 and 556), the Commission or any Judge
shall be guided so far as practicable by any pertinent provisions of
the Federal Rules of Civil Procedure as appropriate.

2

In the case at bar, the parties clearly have differing views as to the
effect of the order intended by the administrative law judge. Accordingly,
we hereby grant the petition for interlocutory review for the limited
purpose of remanding this matter to the administrative law judge for an
expeditious
determination
of whether a certification of finality in
accordance with Rule 54(b) is appropriate. After the judge clarifies the
nature of his dismissal on remand, we will issue a further appropriate order
concerning the Secretary's petition for interlocutory review.
Pending
issuance of such an order by the Conunission, all time requirements are
hereby stayed.
Accordingly,
petition, and ·we
remand.

we hold in abeyance our ruling on the Secretary's
retain jurisdiction pending the judge's determination on

rRICHARD V. BACKLEY, Commissioner

~~~
L. CLAIR NELSON, Connnissioner

3

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

January 12, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. KENT 86-94-R
KENT 86-95-R
KENT 87-154

v.

PEABODY COAL COMPANY

BEFORE:

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

DECISION

BY THE COMMISSION:
In this consolidated contest and civil penalty proceeding arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seg. (1982) ("Mine Act" or "Act"), the issue presented is whether
Commission Administrative Law Judge William Fauver erred in determining
that Peabody Coal Company ("Peabody") violated 30 C.F.R. § 75.1710-1 by
not equipping certain mobile bridge carriers ("MBC") with cabs or
canopies. 9 FMSHRC 945 (May 1987)(ALJ). l/ On the bases that follow,

l/

30 C.F.R. § 75.1710-1, which implements the statutory cab and
canopy standard, 30 U.S.C. § 877(j), requires installation of cabs or
canopies on "self-propelled electric face equipment." Section 75.1710l(a) states in pertinent part:
Canopies or cabs; self-prooelled electric face
~guipment; installation requirements.
[A]ll self-propelled electric face equipment,
including shuttle cars, which is employed in the
-3.ctive workings of each underground coal mine ...
shall, in accordance with the schedule of time
specified in paragraphs (a)(l), (2), (3), (4), (5),
and (6) of this section, be equipped with
substantially constructed canopies or cabs, located

4

we conclude that the judge's finding of violation is supported by
substantial evidence and is legally correct in result. Accordingly, we
affirm.
Peabody owns and operates the Camp No. 11 Mine, a large underground coal mine located near Morganfield, Kentucky. The mine is part
of a complex employing 1,000 people and producing 4.1 million tons of
coal annually. In three of the mine's five operating sections, coal is
mined using continuous mining machines and shuttle cars. In the other
two operating sections, a "continuous haulage system" is used. Coal is
loaded directly from the continuous minei onto a series of haulage belts
contained in a mobile haulage system, eliminating the need for shuttle
cars.· This mining process results in offset crosscuts at angles of
approximately 60 degrees. II
When the continuous haulage system is in use, coal cut by the
continuous mining machine is dumped from the machine's tailpiece onto
the first piggyback conveyor, where an electrically powered conveyor
helt transports the coal along the piggyback's conveyor and onto the
first MBC. The MBC contains an electrically powered conveyor belt that
transports the coal to the second piggyback conveyor. The coal
subsequently passes to the second MBC and then to the third piggyback
conveyor. From the third piggyback conveyor, the coal is transferred by
a dolly to the panel conveyor belt and is transported out of the mine.
The continuous miner, piggyback conveyors, and MBCs are equipped with
slot devices through which pins are inserted to hook the components
together. These components may be connected and disconnected, and are
usually disconnected and moved between mining cycles.
Each MBC is equipped with an electric motor that drives its
conveyor belt and another electric motor that moves the MBCs forward and
backward on caterpillar tracks. The movement of the MBCs allows the
continuous haulage system to adjust to the movement of the continuous
mining machine without disrupting transportation of the coal. Each MBC
is approximately 30 feet long and is operated by a miner using controls
located approximately 20 feet from the MBC's inby end (the end nearer
the face). The chief duty of the operator of the first MBC is to keep
the piggyback conveyor aligned with the tailpiece of the continuous
miner in order to assure the proper movement of the mined coal. Since
1978, MBCs without protective cabs or canopies have been used as
components of the continuous haulage system at the mine and, prior to
the issuance of the citations in question in 1986, had not been cited as
being in violation of section 75.1710-1.
and installed in such a manner that when the
operator is at the operating controls of such
equipment he shall be protected from falls of roof,
face, or rib, or from rib and face rolls ...•

ll

A "crosscut" is a passageway or opening driven between and across
mining entries for ventilation and haulage purposes. Bureau of Mines,
U.S. Dept. of the Interior, Dictionary of Mining, Mineral, and Related
Terms 280 (1968)("DMMRT").

5

On March 3, 1986, James Hackney, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), inspected the
No. 6 section of the mine, a continuous haulage system section. He
observed the two MBCs being operated without protective cabs or
canopies. Hackney issued to Peabody a citation pursuant to section
104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of
section 75.1710-1. On March 5, 1986, he inspected another continuous
haulage system in the mine's No. 1 section, where he observed the first
MBC in the system being operated without a cab or canopy. Hackney
issued to Peabody another section 104(a) citation alleging a violation
of section 75.1710-1.
Peabody contested the citations and the Secretary's proposed
penalty assessments for the alleged violations. Before Judge Fauver,
the parties agreed that the cited MBCs were not equipped with cabs or
canopies at the times of citation and that the MBCs were self-propelled
electrical equipment.
The judge., stating that an MBC is self-propelled and electrically
operated, regarded the controlling issue to be whether an MBC was
electric face equipment. 9 FMSHRC at 947. The judge noted that the
cab/canopy regulation does not contain a definition of the equipment to
which it applies. In agreement with the parties' mutual position at the
hearing (Tr. 14-16), however, he found that the "permissibility"
definition contained in 30 C.F.R. § 75.2(i) supplied "a practical line
of demarcation." Id. }/ That section provides in relevant part that
equipment permissibility within the context of "electric face equipment"
pertains to "all electrically operated equipment taken into or used inby
the last open crosscut of an entry or a room of any coal mine .... "
Viewing face equipment as equipment used in or inby the last open
crosscut, the judge focused on the meaning of "last open crosscut," a
term not defined in the Mine ~ct or the Secretary's regulations.
9 FMSHRC at 948.
In construing that term, the judge rejected the testimony of
}/
30 C.F.R. § 75.2(i) repeats section 318(i) of the Mine Act, 30
U.S.C. § 878(i), and states in part:
"Permissible" as applied to electric face
equipment means all electrically operated equipment
taken into or used inby the last open crosscut of an
entry or a room of any coal mine the electrical
parts of which; including, but not limited to,
associated electrical equipment, components, and
accessories are designed, constructed, and installed
in accordance with specifications of the Secretary,
to assure that such equipment will not cause a mine
explosion or mine fire and the other features of
which are designed and constructed in accordance
with the specifications, of the Secretary, to
prevent, to the greatest ext-ent possible, other
accidents, in the use of such equipment ....

6

Peabody's witness, Mine Superintendent Charles .Jernigan, that the last
open cros_scut is the area between, but not including any portion of, the
mine entries. 9 FMSHRC at 948. Instead, the judge found "reliable and
accurate" the testimony of MSHA 1 s Assistant District Manager David
Whitcomb, that the last open crosscut is the last open, continuous line
along which the air yentilating a working section circulates. 9 FMSHRC
945. 4/ Based on Whitcomb's testimony, the judge found: "The last open
crosscut ... [is] defined by the flow of air across the section, [and)
includes not only the openings between the entries but across the
intersections and that part of an entry inby an intersection to the
point of the next intersection inby. That is, the last open crosscut
follows the air flow across the entries of the working section."
9 FMSHRC at 946.
Applying this description to the evidence, the judge determined
that the operator's compartment of the first MBC enters the last open
crosscut during mining operations. 9 FMSHRC at 949. The judge held
that "since the first MBC operator's compartment enters the last open
crosscut, it is required to have a cab or canopy under [section)
75.1710-1. 11 Id. The judge rejected the Secretary's argument that the
continuous haulage system is a "single unit, 11 and that application of
the standard to the first MBC in the unit therefore brings the second
MBC in the system within the reach of the standard. 9 FMSHRC at 949.
The judge stated:
The test of applying ... [section 75.1710-1] is
whether the equipment operator's compartment is
subject to being used in or inby the last open
crosscut. It would stretch the standard too far to
hold that the second MBC [in the continuous haulage
system), which is far removed from the last open
crossc11t, should be considered "face equipment"
solely because the front part of the continuous
haulage system is in or inby the last open crosscut.
Id.
The judge assessed token civil penalties of $1.00 for each
violation, noting that "the cases involve a novel haulage system that
raises a question of first impression," and that Peabody had made a good
faith test of its interpretation of section 75.1710-1 as applied to the
continuous haulage system. 9 FMSHRC at 949.
We granted Peabody's petition for discretionary review, which
asserts essentially that the judge erred in his description of last open
crosscut and, hence, in holding that the first MBC in each continuous
haulage system is subject to the cited standard. We also directed for
review an issue raised by the Secretary -- whether the judge erred in

!!,./

"Working section" (often referred to as 11 section 11 ) means a working
area of a coal mine, from a loading point to and including a working
face. See 30 U.S.C. § 878(g)(3); 30 C.F.R. § 75.2(g)(3); DMMRT 979.
(See n.7 infra for the definition of 11 working face.")

7

concluding that the continuous haulage system should not be viewed as a
single unit for purposes of applying section 75.1710-1.
While neither the statutory cab/canopy standard nor section
75.1710-1 contains a definition of the equipment that it covers, we
conclude that, as the parties agree and as the judge found, section
75.2(i){n. 3 supra) affords a "practical line of demarcation." That
provision, in defining "permissible" as applied to "electric face
equipment," describes the latter class of equipment as "electrically
operated equipment taken into or used inby the last open crosscut of an
entry or a room of any coal mine •... " (Emphasis added.) 5/ The key
question thus becomes the application of the term "last open crosscut"
to the mining configuration used by Peabody.
Although "last open crosscut" is not defined in the Mine Act or
the Secretary's regulations, the Act and regulations contain repeated
references to the term. §_/ As noted, a "crosscut" is a passageway or
opening driven across entries for ventilation and haulage purposes. In
general, the last open crosscut thus refers to the last (most inby) open
passageway between entries in a working section of a coal mine. II The
last open crosscut "is an area rather than a point or line .... " Henry
Clay Mining Co., 3 IBMA 360, 361 (1974). Under the facts presented, the
judge determined that the specific boundaries of this area are
demarcated by the air flow across the developing entries of a working
section and include the crosscuts (openings) between entries, the
contiguous intersections of the entries and crosscuts, and those
portions of the entries inby such intersections. We conclude that this
description, considered from a general standpoint and as applied to the
2_/
A standard definition of "face equipment" similarly provides in
relevant part:

Face equipment is mobile ... mining equipment having
electric motors ... normally ... operated inby the
last open crosscut in an entry or room.
DMMRT supra, at 407.
See, ~· section 303 of the Act, 30 U.S.C. § 863, and 30 C.F.R.
§ 75.301 et seg. (ventilation requirements), and section 305 of the Act,
30 U.S.C. § 865, and 30 C.F.R. § 75.501 et seg. (permissibility

§_/

requirements for electrical equipment). (These statutory provisions,
including their references to last open crosscut, were carried over from
the Mine Act's predecessor, the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. § 801 et seg. (1976)(amended 1977).)

lf

"Working face" is "any place in a coal mine in which work of
extracting coal from its natural deposit in the earth is performed
during the mining cycle .... " 30 U.S. C § 878(g)(l); 30 C. F. R.
§ 75.2(g)(l).
See also DMMRT 407, 1244 (definitions of "face" and
"working face" )-.-The area in by the last open crosscut (i.e.. , between
the last open crosscut and the working face) is referred to as the
"working place." 30 U.S.C. § 878(g)(2); 30 C.F.R. § 75.2(g)(2).

8

mining configuration in question, comports with commonly accepted mining
terminology
and is supported by substantial evidence of record. 8/
.

-

MSHA's witness Whitcomb stated that the last open crosscut is "the
last continuous line the air passes through going across the [run) from
one side of the entry to the other." 2/ Whitcomb described the boundary
at which the last open crosscut begins as the location of the check or
back-up curtains, adding that "anything inby that location would have to
be maintained permissible." Tr. 274, 276. 10/ Peabody's witness
Jernigan did not dispute Whitcomb's views regarding the outer boundary
of the last open crosscut area. However, Jernigan indicated on direct
examination that the last open crosscut includes only the crosscuts,
i.e., the passageways roughly parallel to the working face, but not the
intersections of crosscuts and mine entries, or any portion of mine
entries. Tr. 163-166, 198-200. As the judge stated, however, this
interpretation is illogical because it makes the area inby the last open
crosscut "the middle of a solid block of coal." 9 FMSHRC at 948. As
Jernigan himself agreed on cross-examination, the last open crosscut is
"where the air travels through on the intake and exhaust system."
Tr. 163. Entries and intersections of crosscuts and entries are
ventilated by air travelling through the intake and exhaust system.
Indeed, the air must travel through those areas in order to pass along
the crosscuts adjacent to the face.
The interpretation offered by Whitcomb and accepted by the judge
~/

We recognize that in any given coal mine, the mining methodology
used may uniquely determine the last open crosscut. Thus, we must leave
to future cases any descriptive refinements necessitated by other
particular mining configurations.

21

With respect to this portion of Whitcomb's testimony, the judge

noted:
Although the court reporter transcribed the word
"drum" at this point, I find that Mr. Whitcomb
actually said "run" and the reporter made an error
in transcription. "Run 11 as used by Mr. Whitcomb
refers to the distance from the Number 1 to the
Number 5 entries, that is, the full expanse of the
coal faces being developed ....
9 FMSHRC at 948 n.l.

J!l/

Check curtains, used to provide ventilation to the working faces,
are overlapping strips of heavy, fire-resistant material serving as
temporary stoppings and positioned to hold the air flow along face
areas. See DMMRT at 292 (definition of "curtain"); ~ also S. Cassidy
(ed.), Elements of Practical Coal Mining 212-213, 220 (1973). 30 C.F.R.
§ 75.302(b)(2) states that check curtains required under the mine's
approved ventilation plan "shall be so installed to minimize air leakage
and permit traffic to pass through without adversely affecting
ventilation."

9

is fully consistent with the use of the term in other portions of the
Mine Act and the Secretary's mandatory standards. For example, 30
C.F.R. § 75.301, which repeats section 303(b) of the Act, 30 U.S.C.
§ 863(b), requires in part that "[t]he minimum quantity of air reaching
the last open crosscut in any pair or set of developing entries and the
last open crosscut in any pair or set of rooms shall be 9,000 cubic feet
a minute." It would b~ absurd to require maintenance of 9,000 cubic
feet of air per minute only in those crosscuts when the hazards
alleviated by providing the required ventilation are also present in the
intersections of those crosscuts and entries. In like manner, the
permissibility requirements of 30 C.F.R. § 75.500, et seq., based on 30
U.S.C. § 865, apply to specified electrical equipment located in or
taken inby the last open crosscut.
Thus, we conclude that an MBC is "self-propelled electric face
equipment" within the meaning of the cited standard if it is.taken into
the last open crosscut as described herein. Substantial evidence
supports the judge's finding that the first MBCs were so used at
Peabody's mine.
Using exhibits depicting the location of the continuous haulage
system during mining operations, Whitcomb testified that given the
length of the pillars and of the continuous haulage system units, the
first MBC operator's compartment entered the last open crosscut.
Tr. 252-69; Exhs. G-10, 11, & 12; R-11 & 12. Whitcomb's testimony is
consistent with the exhibits depicting the continuous haulage system as
used in the mine. In addition, the MSHA inspector who issued the
contested citations testified without dispute that he had observed the
operators of the first MBCs in the last open crosscut, and his
explanation of what constitutes the last open crosscut was consistent
with Whitcomb's description of that area and with the definition adopted
by the judge. Tr. 32, 36. In light of this evidence, we conclude that
the judge properly held that Peabody violated section 75.1710-1 by using
the cited first MBCs in the continuous haulage systems without cabs or
canopies.
Although we agree with the judge that Peabody violated section
75.1710-1, we reject his premise that the violations were established
only because "the first MBC operator's compartment enter[ed] the last
open crosscut." 9 FMSHRC at 949 (emphasis added). Given the
continually changing dynamics of a working section, determining
compliance with section 75.1710-1 based on the precise location of the
operator's compartment invites confusion in both compliance and
enforcement. Once any portion of an MBC enters an area inby the last
open crosscut, it is properly classified as face equipment requiring a
cab or canopy.
The judge also concluded that the second MBC in the continuous
haulage system of the No. 1 section was not subject to section 75.17101. He observed that it "would stretch the standard too far to hold that
the second MBC, which is far removed from the last open crosscut, should
be considered face equipment solely because the front part of the
continuous haulage system is in or inby the last open crosscut."
9 FMSHRC at 949. Although we granted the Secretary's request for review

10

of the judge's conclusion in this regard, the Secretary has not further
argued the issue in her brief on review. To the contrary, the Secretary
now asser·ts that the second MBC is subject to the standard i f it is used
in the first MBC position. S. Br. 10 & n.4 .. Given these facts, we find
it unnecessary to decide whether the lack.of a cab or canopy on the
second MBC in the No. 1 section violated section 75.1710-1. Finally,
~e reject Peabody's argument that the Secretary was estopped from citing
the continuous haulage system because the system had not been cited
previously. ~' ~' Emery Mining Corp. v. Secretary, 744 F.2d 1411,
1416 (10th Cir. 1984); King Knob Coal Co., 3 ~MSHRC 1417, 1421-22 (June
1981).
On the foregoing bases, we affirm the judge's decision.

/i
Cf~~_,__~f le_L-1-c-."'
ames~

Lastowka, . . ommissioner

L. Clair Nelson, Commissioner

11

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

January 12, 1989
CHARLES CONATSER
Docket No. KENT 87-168-D

v.

RED FLAME COAL COMPANY, INC.

BEFORE:

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

BY THE COMMISSION:
In this discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982) ("Mine
Act" or "Act"), Charles Conatser alleges that Red Flame Coal Company,
Inc. ("Red Flame") violated section lOS(c)(l) of the Mine Act when it
discharged him for refusing to drive a rock truck. l/ Commission

lf

Section lOS(c), 30 U.S.C. § 815(~), provides in relevant part:
Discrimination or interference prohibited;
complaint; investigation; determination; hearing
(1) 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 ... because such miner ... has filed or made a
complaint under or related to this [Act], including
a complaint notifying the operator or the operator's
agent ... of an alleged danger or safety or health
vioiation in a coal or other mine
or because of
the exercise by such miner ... of any statutory
right afforded by this [Act].
(2) Any miner •.. who believes that he has been
discharged, interfered with, or otherwise
discriminated against by any person in violation of
this subsection may, within 60 days after such
violation occurs, file a complaint with the
Secretary alleging such discrimination. Upon

12

Administrative Law Judge George A. Koutras dismissed Conatser 1 s
discrimination complaint on the grounds that Conatser failed to
communicate his belief in the existence of a safety hazard to Red
Flame's foreman at the time of his work refusal. 10 FMSHRC 416 (March
1988)(ALJ). For the reasons that follow, we affirm the judge's
decision.
Conatser was employed by Red Flame at its strip coal mine on
Whitco Mountain in Letcher County, Kentucky, as a general loader
operator from July 14, 1986, through the date of his discharge on
January 26, 1987. In that capacity, Conatser operated an end loader, a
heavy vehicle resembling a tractor and equipped with a loading bucket.
Conatser had been transferred to the Red Flame mine by No. 8 Limited of
receipt of such complaint, the Secretary shall
forward a copy of the complaint to the respondent
and shall cause such investigation to be made as he
deems appropriate. Such investigation shall
commence within 15 days of the Secretary's receipt
of the complaint •... If upon such investigation,
the Secretary determines that the provisions of this
subsection have been violated, he shall immediately
file a complaint with the Commission, with service
upon the alleged violator and the miner ... alleging
such discrimination or interference and propose an
order granting appropriate relief. The Commission
shall afford an opportunity for a hearing ... and
thereafter shall issue an order, based upon findings
of fact, affirming, modifying, or vacating the
·Secretary's proposed' order, or directing other
appropriate relief. Such order shall become final
30 days after its issuance .... ·
(3) Within 90 days of the. receipt of a complaint
filed under paragraph (2), the Secretary shall
notify, in writing, the miner ... of his determinati9n whether a violation has occurred. If the
Secretary, upon investigation, determines that the
provisions of this subsection have not been
violated, the complainant shall have the right,
within 30 days of notice of the Secretary's
determination, to file an action in his own behalf
before the Commission, charging discrimination or
interference in violation of paragraph (1). The
Commission shall afford an opportunity for a hearing
, .. and thereafter shall issue an order, based upon
findings of fact, dismissing or sustaining the
complainant's charges and, if the charges are
sustained, granting such relief as it deems
appropriate, including, but not limited to, an order
requiring the rehiring or reinstatement of the miner
to his former position with back pay and interest or
such remedy as may be appropriate. Such order shall
become final 30 days after its issuance ....

13

Virginia ("No. 8 Limited"), a parent corporation of Red Flame for whom
he had worked in the same capacity for a period of some seven years.
While employed at the No. 8 Limited mine, Conatser had driven rock
trucks on several occasions. (Rock trucks are heavy haulage vehicles
with empty weights ranging from 50 to 85 tons.)
At approximately 7:00 a.m. on January 26, 1987, Conatser reported
for work at Red Flame and was advised that his end loader was
inoperable. There were 10 to 12 inches of snow on the ground and Red
Fl;:;\Ille 1 s foreman, Zachary Mullins, was having the haulroads scraped to
remove the snow. Mullins directed Conatser to assist Red Flame's
mechanic in starting up some heavy equipment. While Conatser was so
occupied, Mullins radioed the mechanic and directed him to start-up an
85-ton WABCO rock truck.
Mullins drove up to the WABCO rock truck and motioned Conatser
over. Mullins then instructed Conatser to drive the rock truck that
day. Conatser responded, "I can't drive a rock truck." 10 FMSHRC at
466-67; Tr. 75, 116, 497-98. Mullins then told Conatser that "Roy,
Clifford, Robert and Larry" -- other miners at Red Flame -- had all
learned to drive a rock truck and that Conatser could drive. Tr. 75,
423; Mullins Dep. 27-28; Exhibit R-2. When Conatser again told Mullins
that he could not drive the truck, Mullins told Conatser either to drive
it or 11 go to the house." ]j Conatser responded that Mullins was forcing
him to go to the house. Conatser then asked Mullins to get his steeltoed safety shoes for him, which were in Conatser's loader, and Mullins
told Conatser to pick them up on his way out. Conatser left the mine
site. Later that same day, Conatser filed a discrimination complaint
with the Department of Labor's Mine Safety and Health Administration
("MSHA") alleging that he had been discharged by Red Flame in violation
of section lOS(c) of the Mine Act.
On the advice of MSHA, Conatser subsequently contacted Wesley
Burke, No. 8 Limited's president, and on February 27, 1987, met with
Burke and Cruce Davis, Red Flame's mine superintendent, to ask for his
end loader job back. At that time, Conatser advised management that he
had refused to drive the rock truck because he feared for his safety as
he did not know how to "gear down" a rock truck on a slope and because
he had never driven a rock truck under wet weather conditions. When
Conatser called Burke a week later to find out whether Red Flame would
rehire him, Burke informed Conatser that he would not be rehired.
After investigating Conatser's complaint, which alleged in essence
that he was discharged after refusing to operate a rock truck that he
lacke.d experience to drive, MSHA advised Conatser on May 22, 1987, that
the information received during its investigation did not establish a

£/

Both the Commission and the Sixth Circuit Court of Appeals agree
that this language is synonymous with a discharge in the mining
industry. See,~· Moses v. Whitley Development Corp., 4 FMSHRC 1475,
1479 (August 1982), aff'd sub nom. Whitley Development Corp. v. FMSHRC,
No. 84-3375, slip op. at 2 (6th Cir. July 31, 1985); Secretary on behalf
of Keene v. S&M Coal Co., 10 FMSHRC 1145, 1147 n.S (September 1988).

14

violation of section 105(c) of the Mine Act. On June 8, 1987, Conatser,
proceeding without counsel, filed his own discrimination complaint with
the Commission pursuant to section 105(c)(3) of the Act (n. 1 supra).
He'subsequently retained counsel to represent him before this
Commission.
Following an evidentiary hearing, J1Jdge Koutras issued a decision
dismissing Conatser's complaint. The judge first determined that
Conatser 1 s refusal to drive the rock truck on .January 26, 1987, "1as
based on a reasonable, good faith belief in a safety hazard. 10 FMSHRC
at 457-62. In this regard, he found that the condition of the haulroads
at the Red Flame mine on January 26, 1987, "presented ..• possible
sliding and slipping hazards for the [rock] trucks" scheduled to operate
on the haulroads that day. 10 FMSHRC at 4.57-59. The judge found that
although Conatser operated rock trucks on some seven occasions at the
No. 8 Limited strip site, he had driven them only on level terrain
during dry weather conditions. 10 FMSHRC at 459-60; Tr. 61-62, 65-66,
70, 94-97, 515-516, 520. The judge concluded that Conatser's refusal to
drive the rock truck on January 26, 1987, was reasonable in light of his
relative inexperience in operating rock trucks, the fact that he had
never dr.iven a rock truck on a wet hill or roadway, and the potentially
hazardous nature. of the roadway over which he was expected to drive on
that date. lO FMSHRC at 4.59-61.
Considering next whether Conatser had communicated his safety
concerns to Mullins, the judge found that Conatser simply responded to
Mullins' instruction to drive the rock truck with the statement "I can't
drive a rock truck." 10 FMSHRC at 466-67. Based upon Conatser's prior
experience, however, the judge found that this statement was not true.
10 FMSHRC at 467. The judge further found that Conatser in no way
communicated his safety concerns to Mullins at the time of his work
refusal. 10 FMSHRC at 467-68. The judge expressly rejected Conatser' s
argument that his brief statement was sufficient by itself to raise a
safety issue, declining to read into that statement the various reasons
subsequently asserted by Conatser in his written statement to MSHA and
in his testimony at the hearing for refusing to operate the rock truck
that day. Id.
The judge also found credible testimony by Mullins that if
Conatser had told Mullins that he feared for his life or safety, or even
given Mullins a reason for not driving the rock truck, he would not have
required Conatser to drive the truck. 10 FMSHRC at 468; Tr. 400-01,
403-06. Davis' testimony that Mullins would have assigned the job to
someone else if Conatser had informed Mullins of his safety concerns was
also credited by the judge in concluding that Conatser's belief in the
existence of a safety hazard was "in no way" communicated to Mullins at
the time of his work refusal. 10 FMSHRC at 468; Tr. 484-86, 488. The
judge determined from the testimony of Mullins, Davis and Red Flame
miners that management at Red Flame took appropriate action to address
communicated safety concerns and that because Conatser did not
communicate his safety concerns to Mullins at the time of his work
refusal, Mullins had no opportunity to understand the basis of
Conatser's work refusal, to address Conatser 1 s safety concerns, or to
take any corrective action. 10 FMSHRC at 468.

15

The judge also considered Conatser's assertion that, because he
was in shock due to Mullins' direction that he either drive the rock
truck or go to the house, he had no opportunity to communicate to
Mullins his reasons for refusing to drive the rock truck. The judge
found that Conatser's claim of being in shock was difficult to believe.
10 FMSHRC at 468. Noting that Conatser conceded at the hearing that
Mullins had not prevented him from speaking, the judge further found
that Conatser had an ample opportunity to communicate his safety
concerns to Mullins and that Conatser's failure to do so at the time of
his work refusal was not excused by mitigating reasons or extenuating
circumstances. 10 FMSHRC at 469. Accordingly, the judge concluded that
because Conatser failed to communicate his safety concerns to Mullins,
his work refusal was not protected under the Mine Act and his subsequent
discharge by Red Flame for that work refusal was not in violation of the
Act. Id.
~inally, the judge considered an allegation by Conatser that Red
Flame's refusal to rehire him constituted a separate act of discrimination under the Mine Act. Finding no probative credible evidence to
sustain this allegation, the judge summarily rejected this argument.
10 FMSHRC at 469-70. }/

On review, Conatser essentially asserts that the judge erred as a
matter of law in finding that Conatser's statement to Mullins at the
time of his work refusal was insufficient to raise a safety issue.
Arguing that the judge's finding was too restrictive, Conatser contends
that his statement to Mullins, if evaluated in light of the evidence and
the appropriate legal standard, clearly raised a valid safety issue at
the time of the work refusal -- that Conatser was incapable of operating
the rock truck under the conditions present at that time. Conatser also
complains that certain findings of fact made by the judge are not
supported by substantial evidence and should be reversed. We disagree.
The principles governing ·analysis of a discrimination case under
the Mine Act are well settled. In order to establish a prima facie case
of discrimination under section 105(c) of the Act, a complaining miner
bears the burden of production and proof in establishing that (1) he
engaged in protected activity and (2) the adverse action complained of
was motivated in any part by that activity. Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October
1980). rev'd on other grounds, sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette
v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The
operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no part
motivated by protected activity. If the operator cannot rebut the prima
facie case in this manner, it nevertheless may defend affirmatively by
proving that it also was motivated by the miner's unprotected activity
alone and would have taken the adverse action in any event for the
}/
No issue concerning Red Flame's refusal to rehire Conatser was
raised by Conatser on review and, accordingly, that issue is not before
us.

16

unprotected activity. Pasula, supra; Robinette supra; ~ also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1984); Donovan
v. Stafford Constr. Co., 732 F.2d 954,, 958-59 (D.C. Cir. 1984); Boich
v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving
the Commission's Pasula-Robinette test). Cf. NLRB v. Transportation
Management Corp. 462 U.S. 393, 397-413 (1983)(approving a nearly
identical test under the National Labor Relations Act).
A miner's refusal to perform work is protected under the Mine Act
if it is based u~on a rea~onable, good faith belief that the work
involves a hazard. Pasula, supra, 2 FMSHRC at 2789-96; Robinette,
supra, 3 FMSHRC at 807-12; Secretary v. Metric Constructors, Inc.,
6 FMSHRC 226, 229~31 (February 1984), aff'd sub nom. Brock v. Metric
Constructors, Inc., 766 F.2d 469, 472-73 (11th Cir. 1985); ~also
Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C. Cir. 1988); Consolidation
Coal Co. v. FMSHRC, 795 F.2d 364, 366 (4th Cir. 1986). It is further
required that "where reasonably possible, a miner refusing work should
ordinarily connnunicate ..• to some repre.sentative of the operator his
belief in the safety or health hazard at issue." Secretary on behalf of
Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (February
1982); see also Simpson v. FMSHRC, supra, 842 F.2d at 459; Secretary on
behalf of Hogan and Ventura v. Emerald Mines Corp., 8 FMSHRC 1066, 1074
(July 1986), aff'd mem., 829 F.2d 31 (3rd Cir. 1987)(table cite).
Proper connnunication of a perceived hazard is an integral
component of a protected work refusal, and the responsibility for the
communication of a belief in a hazard underlying a work refusal lies
with the miner. Dillard Smith v. Reco, Inc., 9 FMSHR.C at 992, 995-96
(June 1987). Among other salutary purposes, the communication
requirement is intended to avoid situations in which an operator at the
time of a work refusal is forced to divine the miner's motivations for
refusing work. Dillard Smith, supra, 9 FMSHRC at 995. We have also
stated that the communication of a safety concern "must be evaluated not
only in terms of the specific words used, but also in terms of the
circumstances within which the words are used and the results, if any,
that flow from the communication." Hogan and Ventura, supra, 9 FMSHRC
at 1074.
In a well-reasoned analysis, the judge properly considered and
applied relevant Commission and judicial precedent concerning work
refusals. The primary issue presented on review is whether substantial
evidence supports the judge's ultimate conclusion that Conatser failed
to adequately communicate to Mullins his belief in the existence of a
safety hazard. We find that it does.
In the context of the facts in this case, Conatser's statement to
Mullins that he "can't drive a rock truck" was, at best, ambiguous.
Conatser himself testified that he knew how to operate trucks and had
driven rock trucks on some seven previous occasions. Tr. 68-69, 125-26.
Based in large part on this testimony, the judge found that Conatser's
"can't" statement to Mullins simply was not true. 10 FMSHRC at 467-68.
We concur, and find that this fact vitiates the asserted adequacy and
clarity of Conatser's communication.

17

Conatser has maintained in this proceeding that his statement to
Mullins really meant that he lacked the ability to operate a rock truck
under the weather and road conditions present that day. However,
Conatser conceded that he said nothing to Mullins at the time of his
work refusal about his specific fears concerning the weather conditions,
his inexperience driving a rock truck down a sloped haulroad, or his
lack of training in operating a rock truck; rather, Conatser merely
"figured" that Mullins would know these fears. Tr. 75-76, 117-19, 126,
142, 412, 524-25. To the contrary, Mullins testified that because
Conatser had the general reputation of being capable of operating a rock
truck among Red Flame miners who had seen him operate such vehicles when
they were employed at the No. 8 Limited site, he believed Conatser could
operate a rock truck on the morning of the work refusal. Tr. 173, 17576, 246-47, 271, 273, 279, 377-79, 403, 406-09, 410-12. In any event,
Mullins 1 1mrebutted testimony reflects that in responding to Conatser 1 s
work refusal, he replied that "Larry and all them [other miners] ...
dro,re them and there is no reason vou can't." Tr. 415 (emphasis
supplied). In our view, Mullins' response should have demonstrated to
Conatser that Mullins did not comprehend the nature of Conatser 1 s safety
concerns. Yet, as the judge found, Conatser "did not elaborate further
or explain to Mr. Mullins the reasons for his purported inability to
drive the rock truck," and simply repeated his "can't" statement.
10 FMSHRC at 467.
In analyzing whether Conatser was prevented from communicating his
safety concerns to Mullins, the judge found that Conatser had an ample
opportunity to communicate with Mullins at the time of his work refusal.
10 FMSHRC at 468-69. It is undisputed that Conatser engaged Mullins in
further conversation relating to his safety shoes before leaving the
mine site. The judge also' determined that Conatser's assertion that he
could not communicate further with Mullins because he was "in shock" was
difficult to believe. Id. The judge observed that Conatser did not
strike him as a timid individual, but rather impressed him as a rather
combative person. Id. These observations are in the nature of
credibility resolutions and we reject Conatser's challenges to them.
See, ~· Robinette, supra, 3 FMSHRC at 813.
While we have made clear that in work refusal contexts a
"[s]imple, brief" communication by the miner of a safety or health
concern will suffice (Dunmire & Estle, supra, 4 FMSHRC at 134), we
conclude that in the context presented by this case Conatser's
communication fell short of the required sufficiency and clarity.
Indeed, we believe that this case well illustrates many of the reasons
for the communication requirement. From all that appears on this
record, had Conatser articulated his safety concerns, they would have
been addressed by the operator.
In this regard, we find the following observation of the judge,
well-founded in the testimony, to be particularly salient:
Foreman Mullins testified that had Mr. Conatser
told him that he feared for his life or safety, or
given him a reason for not driving the rock truck,
he would not have required him to do so.

18

Superintendent Davis testified that Mr. Mullins
lvould not endanger anyone 1 s life, and if he did, he
would fire him. The miners who testified in this
case corroborated the fact that Mr. Davis and Mr.
Mullins were concerned for their safety and always
addressed their concerns over the road conditions.
Mr. Davis further confirmed that had Mr. Conatser
informed Mr. Mullins that he was afraid to drive the
truck, Mr. Mullins would have assigned someone to go
with him, or assigned another driver. Former
foreman Meade also confirmed that if anyone
expressed fear or reluctance in operating a piece of
equipment, he would either assign them to other
work, or not require them to operate the equipment.
In view of this testimony, which I find credible, it
would appear to me that management at Red Flame and
No. 8 Ltd. took appropriate action to address
communicated safety concerns. However, in Mr.
Conatser's case, since he did not connnunicate his
safety concerns to his foreman at the time of his
work refusal, the foreman had no opportunity to
address them and take corrective action.
10 FMSHRC at 468 (emphasis in original).
We have considered Conatser's evidentiary challenges to the
credibility of Mullins and to the judge's various resolutions of
conflicting testimony and his credibility determinations and find no
error of fact or law in the decision below. Conatser has not provided
compelling reasons that would justify our taking the extraordinary step
of overturning the judge's credibility findings and resolutions of
disputed testimony and we decline to do so.
Accordingly, we conclude that the judge's finding that Conatser
failed to adequately connnunicate a safety concern is supported by
substantial evidence and is correct as a matter of law as applied to
that evidence. Thus, we affirm the judge's conclusion that Conatser's
~ork refusal was not protected by the Mine Act and that his discharge
for that refusal did not violate the Act. ~/

~/

Upon consideration of Conatser's Motion For Leave to File Reply
Brief, and the opposition thereto, the motion is hereby granted. We
have considered the brief in our decision.

19

For the foregoing reasons, the judge's decision is affirmed.

~

~?/~
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution
Ronald G. Polly, Esq.
Polly, Craft, Asher & Smallwood
P.O. Box 786
104 North Webb Avenue
Whitesburg, Kentucky 41858
Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

20

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

January 13, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos. SE 87-8
SE 86-105-R

JIM WALTER RESOURCES, INC.

BEFORE:

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

DECISION

BY THE COMMISSION:
The issue in this consolidated contest and civil penalty
proceeding arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1982)("Mine Act"), is whether Jim Walter
Resources ("JWR") violated mandatory safety standard 30 C.F.R.
§ 75.500(d). l/ Commission Administrative Law Judge Avram Weisberger

l/
30 C.F.R. § 75.500 essentially restates section 305(a)(l) of the
Mine Act, 30 U.S.C. § 865(a)(l), and provides:
and after March 30, 1971:
(a) All junction or distribution boxes used for
making multiple power connections inby the last open
crosscut shall be permissible;
(b) All handheld electric drills, blower and
exhaust fans, electric pumps, and such other low
horsepower electric face equipment as the Secretary
may designate on or before May 30, 1970, which are
taken into or used inby the last open crosscut of
any coal mine shall be permissible;.
(c) All electric face equipment which is taken
into or used inby the last open crosscut of any coal
mine classified under any provision of law as gassy
prior to March 30, 1970, shall be permissible; and
(d) All other electric face equipment which is
taken into or used inby the last crosscut of any
On

21

concluded that JWR violated the standard and assessed a $500 civil
penalty. 9 FMSRRC 983 (May 1987)(ALJ). We granted JWR's petition for
discretionary review challenging the judge's finding of violation. For
the reasons that follow, we affirm.
JWR's No. 5 mine is an underground coal mine located in Tuscaloosa
County, Alabama. A unique longwall method of mining is used in the mine
resulting in large, uneven pillars (blocks) of coal and in interrupted
crosscuts between the various entries. On July 1, 1986, Carl Early, an
inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA"), conducted an inspection of the mine pursuant to
section 103(i) of the Mine Act. II In the mine's No. 8 section, Early
observed a distribution box, used to supply power to shuttle cars,
located in a crosscut between the No. 2 and No. 3 entries. }/ The
distribution box was not permissible. Concluding that the location of
the non-permissible electrical face equipment was in violation of
30 C.F.R. § 75.SOO(a), see n.l supra, and that the violation
significantly and substantially contributed to a mine safety hazard and
was caused by JWR's unwarrantable failure to comply with the standard,
Early issued an order pursuant to section 104(d)(2) of the Mine Act.
30 u.s.c. § 814(d)(2). !/
coal mine, except a coal mine referred to in
§ 75.501, which has not been classified under any
provision of law as a gassy mine prior to March 30,
1970, shall be permissible.
30 C.F.R. § 75.501 is not applicable to this proceeding.

11

Section 103(i) requires that a spot inspection be conducted every
five working days of all or part of each mine that liberates more than
1 million cubic feet of methane every 24 hours. 30 U.S.C. § 813(i).

}/
The inspector also determined that a non-permissible scoop charger
located in the same line of crosscuts between the No. 3 and No 4 entries
also violated the standard. The Administrative Law Judge, however,
found no violation as to the scoop charger and his action is this
respect is not before us on review.

!I

Section l04(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), states
in part:
(2) If a withdrawal order with respect to any area
in a coal or other mine has been issued pursuant to
paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the
Secretary who finds upon any subsequent inspection
the existence in such mine of violations similar to
those that resulted in the issuance of the
withdrawal order under paragraph (1) until such time
as an inspection of such mine discloses no similar
violations •...
Section l04(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l), requires

22

After JWR contested the ,,alidity of the order of withdrawal, MSHA
modified the order to allege a violation of section 75.500(d). 21
Subsequently, the Secretary proposed a civil penalty of $1,000 for the
violation and a hearing was held.
At the hearing, the parties stipulated that the distribution box
was in non-permissible condition and that, if a violation of section
75.500(d) was found by the judge, the violation was of a significant and
substantial nature. The parties disagreed as to whether the nonpermissible equipment was located in a last open crosscut and therefore
violated section 75.500(d), and whether, if there was ~ violation, it
was caused by JWR's unwarrantable failure to comply.
Government Exhibit 2, a schematic drawing of the No. 8 section,
was received into evidence and was used by the witnesses as an aid in
explaining the.location of the subject equipment in relation to the
mining configuration of the No. 8 section. As an aid to our discussion
a black and white copy of Government Exhibit 2, reduced in size, is
attached to this decision and incorporated herein.
Inspector Early explained that the black areas on Exhibit 2 depict
the pillars of coal in the No. 8 section, the lettered areas depict
crosscuts, and the numbered areas depict entries. The lightly shaded
area designated "F" represents the crosscut in which the distribution
box was located. Early described a crosscut as "a cut through
connecting two entries," and described "F" as "the last crosscut
connecting the number two and three entries." Tr. 21, 26. Early
described "A" and "H" as the "last open crosscuts" between the Nos. 1
and 2 and the Nos. 3 and 4 entries, respectively. Early stated that
during the normal mining cycle, the continuous mining machine, shuttle
cars, roof-bolters and the scoop traveled through "F" to get from one
side of the section to the other, and that the equipment was required to
be in permissible condition. Early state~ that methane buildup
frequently occurred in "F" whenever the check curtain in the No. 3 entry
was down or damaged.
MSHA ventilation specialist Jerry Vann described "F" as the last
open crosscut between the Nos. 2 and 3 entries, and he described "A" and
"H" as the last open crosscuts for purposes of the air readings required
by the mandatory safety standards regulating mine ventilation. Tr. 74,
86. 108-09. §./
that an inspector issue a citation if he finds that a violation is "of
such nature as could significantly and substantially contribute to a
mine safety or health hazard" and is caused by the operator's
"unwarrantable failure ... to comply" and that an order of withdrawal be
issued if, during the same inspection or any subsequent inspection
within 90 days after the issuance of such citation, he finds another
"unwarrantable failure" violation.

21

No explanation of this modification appears in the record and no
issue concerning the propriety thereof is before us on review.

§./

'the mandatory safety standards regarding air quantity, quality,

23

Charles Stewart, JWR's deputy mine manager, described "F" as the
"last connecting crosscut" between the Nos. 2 and 3 entries and as the
crosscut through which permissible equipment had to travel from one
entry to the other. Stewart described "A" and "H" as areas subject to
the ventilation requirements of 30 C.F.R. §§ 75.302 and 75.316,
standards that reference the "last open crosscut." Tr. 158-59,
183-85. II
The Secretary argued to the judge that "F" wa:s the last crosscut
connecting the Nos. 2 and 3 entries. Therefore, the presence of the
non...,permissible distribution box in "F" established a violation of
section 75.SOO(d). JWR argued that crosscut "F" cannot be a last open
crosscut because other mandatory safety and health standards reference
the term "last open crosscut" in a manner that would exclude crpsscut
"F." .JWR maintained that, in light of these other standards (30 C.F .R.
§§ 75.200-7(b)(3)(iii), 75.301-3(a) and 75.302(a)), a last open crosscut
can be identified as the final tunnel (crosscut) that connects two
entries and, in which crosscut, roof bolts must be tested. It is also
the crosscut that separates the intake air from return air, through
which a required volume of air must pass, and from which line brattice
must be maintained to the working face. Lastly, it is the crosscut
through which the air contaminated with methane and dust from the mining
process passes. JWR Br. to ALJ at 7-8. JWR contended that when these
require.ments are applied to the crosscuts at the No. 5 Mine, crosscut
"F" cannot be categorized as a last open crosscut.
In his decision, the judge rejected .JWR's arguments stating that
it would be "unduly restrictive to hold that the identification of the
'last open crosscut' for the purposes set forth in the (standards) cited
by (JWR) mandates identification of the same crosscut for the purposes
enumerated in section 75.500(d)." 9 FMSHRC at 985. Rather, the judge
stated that he would be guided by Congress' intent in requiring that
only permissible electrical equipment be taken into or used inby the
last open crosscut -- "to assure that such equipment will not cause a

and velocity in underground coal mines contain repeated references to
the term "last open crosscut." See, ~· 30 C.F.R. §§ 75.301, 75.3011; See also n.5, infra.
---

II

Section 75.302 requires that "[p]roperly installed and adequately
maintained line brattice ..• shall be continuously used from the last
open crosscut of any entry or room of each working section to provide
adequate ventilation to the working faces ..•. "
Section 75.316-l(a)(lO) requires the mine operator to submit to
MSHA a mine map that includes the volume of air passing through the last
open crosscut in each set of entries and rooms at each working face.
30 C.F.R. § 75.316-(b)(l) requires the mine operator to submit to MSHA a
ventilation system and methane and dust control plan that shows methane
and dust control practices in all "active working places," and 30 C.F.R.
§ 75.2(g)(2) defines "working place" as "the area of a coal mine inby
the last open crosscut."

24

mine explosion or a mine fire." Id. '§./ The judge accepted the
testimony of MSHA witnesses Early and Vann that methane was frequently
detected in "F" and that any interruption of the check curtain in the
No. 3 entry would permit a methane buildup. The judge concluded:
[T]o hold that the crosscut in which the
distribution box was located, is other than the last
crosscut, would clearly lessen the assurance against
a mine explosion or fire, and would accordingly be
violative of the expressed purpose of section
318(i) .... Furthermore .•. [the Secretary's
witnesses] all testified, in essence, that to their
knowledge the only way that the crosscut in which
the distribution box is located is referred to, is
as the last crosscut.
9 FMSHRC at 986. The judge therefore concluded that JWR violated
section 75.SOO(d) by having the non-permissible distribution box in "F,"
"which is the last crosscut between entries 2 and 3 and which is the
last crosscut referred to in section 75.500(d)." Id. The judge
assessed a $500 civil penalty for the violation.

On review, JWR repeats the arguments made below and argues that
the judge improperly found that the distribution box was in a location
that violated section 75.500(d). JWR contends that "A" and "H" are the
last open crosscuts in entries No. 2 and 3, and that the judge's finding
of "F" as the last crosscut for purposes of section 75.500(d) results in
an inconsistent application of the other mandatory standards referencing
last open crosscuts. We do not agree.
Section 75.500(d) prohibits the bringing of non-permissible
electric equipment into or inby the last crosscut. 2/ The term "last
~/

Section 318(i) of the Act, 30 U.S.C. § 878(i), defines permissible
electric face equipment as:
(A]ll electrically operated equipment taken into or
used inby the last open crosscut of an entry or a
room of any coal mine the electrical parts of which
... are designed, constructed, and installed, in
accordance with the specifications of the Secretary,
to assure that such equipment will not cause a mine
explosion or mine fire ....

2./

Sections 75.500(a), (b) and (c) use the term "last open crosscut."
Section 75.500(d), however, references the "last crosscut." JWR states
that "the terms 'last crosscut' and 'last open crosscut' are synonymous
in the mining industry. There is no difference between the term 'last
open crosscut' and 'last crosscut.'" JWR Brief at 6 n.1. For purposes
of interpreting section 75.500, we agree. See, ~· Legislative
History of the Federal Coal Mine Health and Safety Act of 1969, Senate
Subconunittee on Labor, 94th Cong., 1st Sess., at 53, 194, 749, 833,
1477, 1527 (1975). Therefore, we use the terms interchangeably

25

crosscut" or "last open crosscut" is not defined in either the Mine Act
or its implementing regulations. However, a "crosscut" is recognized to
be a passageway or opening driven between entries for ventilation and
haulage purposes. U.S. Department of Interior, Dictionary of Mining,
Mineral, and Related Terms 280 (1968) ("~"). A "last open crosscut"
is that open passageway connecting entries closest to the working
face. 10/ See Peabody Coal Co., KENT 86-94-R, slip op. at 5-6
(11 FMSHRC ~~' January 12, 1989.) Given the mining configuration in
use at JWR 1 s mine, as represented in Government Exhibit 2, attached, we
1
conclude that "F 11 is the last open crosscut between the Nos. 2 and 3
entries.
The inspector testified without dispute that during the normal
mining cycle the Nos. 1, 2, 3 and 4 entries are driven forward. Coal is
cut in one entry at a time. Tr. 41-45. Intake air travels across "F"
and up the No. 3 entry to ventilate the working face in the No. 4 entry.
Tr. 34-37. · Further, during the cycle the continuous mining machine,
shuttle cars, roof bolters and the scoop travel across "F" to get from
one side of Section 8 to the other. Tr. 38-47. Thus, "F" is the last
open passageway between the Nos. 2 and 3 entries that is used for
ventilation and.haulage purposes in this working section. See ~·
Tr. 26, 136-137, 185.
As the judge correctly stated, "There was no crosscut connecting
entries 2 and 3 which was further inby the crosscut in which the
distribution box was located." 9 FMSHRC at 985. Thus, we hold that
substantial evidence supports the judge's conclusion that under the
mining configuration followed at the time of citation, "F" was the last
crosscut between Nos. 2 and 3 entries. 9 FMSHRC at 986.
We do not agree with JWR that, in light of other mandatory safety
and health standards referencing the term "last open crosscut" and
imposing various safety requirements in such crosscuts, it is fatally
inconsistent or conflicting to hold that section 75.500(d) applies to
crosscut nF" because compliance with those other requirements may not be
logical or necessary in crosscut "F." We agree with the arguments of
the Secretary that each standard using the term "last open crosscut"
requires "that certain activities be conducted in an area in which it
has been deemed most crucial" and that when interpreting these standards
"due consideration must be given to their intended purpose as evidenced
by their specific terms." Sec. Br. 8, 10. For example, air flow is
required to be measured at the last open crosscut "that separates the
intake and return air courses." 30 C.F.R. 75.301-3(a). Since crosscut
"F" does not separate the intake and return air courses, the Secretary
maintains that the air measurements required by that standard need not
be taken at crosscut "F." Tr. 76; Sec. Br. 9. Similarly, line brattice
is required from the last open crosscut of an entry "to provide adequate
throughout this decision.
10/
A "working face" is "any place in a 'coal mine in which work of
extracting coal from its natural deposit in the earth during the mining
cycle is performed ..•• " 30 U.S.C. § 878(g)(l); 30 C.F.R. § 75.2(g)(l).
See also DMMRT 407, 1244 (definitions of "face" and "working face").

26

ventilation to the working faces." 30 C.F.R. 75.302(a). Because in
JWR's configuration installing line brattice from crosscut "F" would
impede the flow of air up the Nos. 2 and 3 entries, the Secretary
represents that line brattice would not be required from crosscut "F" to
the working faces. Sec. Br. 9-10. The Secretary also states that the
torque-testing requirements of 30 C.F.R. 75.200-7(b)(3)(iii) apply only
to roof bolts in parts of entries closer to the working face than
crosscut "F" to ensure the proper installation of the most recently
installed bolts. Sec. Br. 9. In sum, the Secretary represents that
none of these standards exclusively defines "last open crosscut"; they
simply require that certain activities be conducted addressing specific
concerns usually presented by last open crosscuts, but not presented in
crosscut "F" under this particular mining configuration. As we stated
in Peabody, supra, "we recognize that in any given coal mine, the mining
methodology may uniquely determine the last open crosscut. Thus, we
must leave to future cases any descriptive refinements necessitated by
other particular mining configurations." Slip op. at 6, fn. 8 (11
FMSHRC _ , January 12, 1989).
We agree with the Secretary's arguments. We note that in fact no
citations were issued by the Secretary alleging violations of the other
standards pointed to by JWR. We further note that we will remain
cognizant of the representations and arguments made here by the
Secretary in the unlikely event that the discussed regulations were to
be interpreted in a manner inconsistent with the interpretation
proffered in the present case. Therefore, we conclude that the
requirements of these other standards do not prevent the classification
of crosscut "F" as a last open crosscut for purposes of section 75.500.

27

For the foregoing reasons, we agree with the judge that "F" was
the last crosscut for purposes of section 75.SOO(d), and we concur in
his finding that JWR violated the regulation by locating the nonpermissible distribution box in "F." Accordingly,. we affirm the judge 1 s
decision.

~~~
~~~.~airman

~WviRichard V. Backley, Commissioner

James A. Lastowka, Commissioner

,fjj_,_;_.._, 7Le_ft~q_tr•v
L. Clair Nelson, Commissioner

28

...

.... ··~-::..~
. ..

ernment 2
Gov.bit
No.
Exhi

29

I

Distribution
H. Thomas Wells, Jr., Esq.
David M. Smith, Es.q.
~ynard, Cooper, Frierson & Gale, P.C.
'!welfth Floor, Watts Bldg.
Birmingham, Alabama 35203
H. Gerald Reynolds, Esq.
Jim Walter Corporation
P.O. Box 22601
Tampa, Florida 33622
R. Stanley Morrow, Esq.
Harold D. Rice, Esq.
.f , ,.
/
Jim Walter Resources, In'.c.
'
I
P.O. Box C-79
i '
Birmingham, Alabama 35~83
j

Jerald S. Feingold, Esq;
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Hine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

30

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

January 27, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEVA 87-272

BIRCHFIELD MINING COMPANY

BEFORE:

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

DECISION

BY:

Ford, Chairman; and Backley, Commissioner

This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"). The
primary issue is whether Birchfield Mining Company ("Birchfield")
violated 30 C.F.R. § 75.303(a), a mandatory safety standard for
underground coal mines requiring that all active workings of a coal mine
be examined and the results of such examination be reported "before any
miner in [any] shift enters the active workings of a coal mine." l/
1/

30 C.F.R. § 75.303(a) restates section 303(d)(l) of the Mine Act,

3o U.S.C. § 863(d)(l), and provides in part:

Within 3 hours immediately preceding the beginning
of any shift, and before any miner in such shift
enters the active workings of a coal mine, certified
persons designated by the operator of the mine shall
examine such workings .••. Each such examiner shall
examine every working section in such workings and
shall make tests in each such working section for
accumulations of methane ... and shall make tests
for oxygen deficiency ... examine seals and doors to
determine whether they are functioning properly;
examine and test the roof, face, and rib conditions
in such working section; examine active roadways,
travelways, and belt conveyors on which men are

31

Also at issue is whether the violation was significant and substantial
in nature and caused by Birchfield's unwarrantable failure to comply
with the standard, and whether the administrative law judge assessed an
appropriate civil penalty for the violation.
Commission Administrative Law Judge Gary Melick found that
Birchfield violated the standard, the violation was significant and
substantial, and resulted from an unwarrantable failure by the operator.
He assessed a civil penalty of $400 for the violation. 9 FMSHRC 2209
(December 1987)(ALJ). We granted Birchfield's petition for
discretionary review. For the following reasons, we affirm the judge's
decision respecting the fact of violation, and Birchfield's
unwarrantable failure to comply. However, we reverse the judge's
finding that the violation was significant and substantial in nature and
we remand this matter to the judge for reconsideration of the civil
penalty in light of that reversal.
The essential facts are not in dispute. On April 2, 1987, at
approximately 7:30 a.m., John Baugh, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), conducted an
inspection at Birchfield's No. 1 Mine, an underground coal mine located
in Boone County, West Virginia. The inspector observed several miners
on the 8:00 a.m. to 4:00 p.m. day shift change into working clothes and
enter the mine. Baugh checked the mine examiner's book (the "fireboss
carried, approaches to abandoned areas, and
accessible falls in such section for hazards; test
•.• to determine whether the air in each split is
traveling in its proper course and in normal volume
and velocity; and examine for such other hazards and
violations of the mandatory health or safety
standards, as an authorized representative of the
Secretary may from time to time require •••• Such
mine examiner shall place his initials and the date
and time at all places he examines. If such mine
.examiner finds a condition which constitutes a
violation of a mandatory health or safety standard
or any condition which is hazardous to persons who
may enter or be in such area, he shall indicate such
hazardous place by posting a "danger" sign
conspicuously at all points which persons entering
such hazardous place would be required to pass, and
shall notify the operator of the mine ••.. Upon
completing his examination, such mine examiner shall
report the results of his examination to a person,
designated by the operator to receive such reports
at a designated station on the surface of the mine,
before other persons enter the underground areas of
such mine to work in such shift. Each such mine
examiner shall also record the results of his
examination .•• in a book ••• kept for such purpose
in an area on the surface of the mine ..• and the
record shall be open for inspection by interested
persons.

32

book") and found that no preshift examination report had been recorded
for the 8_:00 a.m. to 4:00 p.m. day shift. Traveling into the mine, the
inspector did not see anyone conducting a preshift examination nor did
he observe any dates, times and initials in the areas required to be
preshif ted that would indicate that the preshift examiner for the day
shift had inspected the mine.
At approximately 7:40 a.m., when he arrived at the No. 4 face, the
inspector saw the miners that he had observed entering the mine, along
with the midnight shift crew and their section foreman, Richard
Henderson. Henderson was Birchfield's designated preshift examiner for
the day shift~ The inspector informed Henderson that a preshift
examination would have to be completed for the 8:00 a.m. to 4:00 p.m.
shift and that it was a violation of section 75.303(a) for miners to
enter the mine prior to a preshift examination being completed.
The inspector issued a citation, pursuant to section 104(d)(l) of
the Mine Act, alleging a significant and substantial and unwarrantable
failure violation of section 75.303(a). ~/ The citation states in
relevant part:
An inadequate preshift examination was made in the
001-0 graveyard main section in that the results of
the examination was not reported to a person
designated by the operator to receive such reports
at a designated station on the surface of the mine
before other persons enter the underground area of
such mine to work in such shift. The results were
not recorded in the approved record book and ... no
dates, time or initials have been placed in
conspicuous locations.
At 8:45 a.m., the inspector terminated the citation after observing
Henderson record the results of his preshift examination for the day
shift in the fireboss book.
~/

Section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l), states
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 innninent danger, such violation is of
such nature as could significantly and substantially
con~ribute 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] ....

33

Subsequently, the Secretary proposed a civil penalty for the
violation and Birchfield requested a hearing. Birchfield denied that it
had violated the standard and challenged the inspector's significant and
substantial and unwarrantable failure findings.
Before the judge, Birchfield argued that because the day shift
miners had entered the mine during a shift for which a preshift
examination had been performed and recorded (i.e., the midnight shift),
it had not violated the standard. Rejecting this argument, the judge
concluded that under the plain meaning of the standard, the preshift
examination must be completed and reported out of the mine before any
miner on the oncoming shift for which the preshif t examination is
required enters the mine. The judge found, based on the inspector's
testimony, that the preshift examination for the day shift had not been
completed and reported at the time the miners entered the mine.
9 FMSHRC at 2212-13. Therefore, the judge concluded that the violation
of section 75.303(a) was proven as charged. 9 FMSHRC at 2212.
On review, Birchfield contends that the judge misconstrued the
standard and that an operator complies with section 75.303(a) as long as
a preshift examination had been completed and reported for the shift
during which the miners enter the mine. Because the miners on the 8:00
a.m. shift entered the mine during the midnight shift, and because a
preshift examination had been performed for that shift, Birchfield
asserts that it complied with the letter and spirit of section
75.303(a). We disagree.

The inspector testified that the purpose of a preshift examination
is to detect hazardous conditions in the mine and to correct or report
such hazards before miners'enter the active workings of the mine. He
testified that if miners enter the mine before the preshift examination
is completed and the results reported~ there exists a hazard that
undetected dangerous conditions could injure incoming miners. Tr. 3941.
The inspector's concern over undetected and unreported hazards is
consistent w~th that of Congress. The cited standard reiterates section
303(d)(l) of the Mine Act, 30 U.S.C. § 863(d)(l), which was carried over
without change from the Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. § 863(d)(l) (1976). The Senate Report states, "Changes occur
so rapidly in the mines that it is imperative that the examinations be
made as near as possible to the time the workmen enter the mine. 11
Senate Subcorrnnittee on Labor, Committee on Labor and Public Welfare,
94th Cong., 1st Sess., Part I Legislative History of the Federal Coal
Mine Health and Safety Act of 1969, at 183 (1975) ("Coal Act Legis.
Hist."). Accordingly, as both the Senate Report and the Conference
Report explain:
No miner may enter the underground portion of a mine
until the preshift examination is completed, the
examiner's report is transmitted to the surface and
actually recorded, and until hazardous conditions or
standards violations are corrected.

34

Coal Act Legis. Hist. at 183 and 1610.
Contrary to Birchfield 1 s assertions, the language of section
75.303(a) clearly requires that the preshift examination be completed
"before any miner ... enters the active workings," and that the results
of the preshift examination be reported out of the mine "before other
persons enter the underground areas of .•. [the] mine to work."
(Emphasis supplied.) The judge found and it is undisputed that three or
four day shift miners were present in the active workings of the mine at
approximately 7:40 a.m. on April 2, 1987, before the designated preshift
examiner had reported the results of his preshift examination to an
operator-designated person on the surface of the mine. Thus, we
conclude that the judge's interpretation of section 75.303(~) is correct
and his finding of a violation is supported by substantial evidence. We
turn, therefore, to the question of whether the violation was of a
significant and substantial nature and was due to Birchfield's
unwarrantable failure to comply.
A violation is properly designated as being of a significant and
substantial nature if, based on the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
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," and that the likelihood
of injury must be evaluated in terms of continued normal mining
operations. U.S. Steel Mining Co., 6 FMSHRC 1573-74 (July 1984); ~
also, Halfway, Inc., 8 FMSHRC 8, 12 (January 1986).
At the outset, we reject the Secretary's argument on appeal (Br.
10) that any violation of section 75.303(a) is per se significant and
substantial in nature. Rather, the proper test is that which we
enunciated in Mathies. In applying the Mathies formula to the violation
at issue, we have found that substantial evidence supports the judge's
finding that Birchfield violated section 75.303(a). Therefore, the
first element of the Mathies formula is established. Review of the
judge's analysis beyond that point, however, reveals that he effectively
ignored the second element of the Mathies formula, i.e., whether the
violation presented a discrete safety hazard.

35

Because the administrative law judge has failed to make findings
regarding the second element, and because the record contains
insufficient evidence on that issue to satisfy the National
Gypsum/Mathies test, we conclude that the violation was not "significant
and substantial." Specifically, in evaluating the totality of
conditions and circumstances in existence at the time of citation, we do
not believe that the violation contributed a "measure of danger to
safety."
The record before us demonstrates that the inspector's actual
enforcement actions, or lack thereof, belie his judgment that conditions
in Birchfield's No. 1 Mine posed such a measure of danger to safety that
failure to report and record them prior to the arrival of the day shift
miners constituted a significant and substantial violation of the
preshift standard. Furthermore, numerous factors not considered by the
judge serve to mitigate the "hazardous conditions" relied upon by the
judge in upholding the inspector's significant and substantial finding.
First, the miners who prematurely entered the mine before the
completion of the preshift examination were all certified firebosses and
thus were all qualified to perform preshift examinations. We can infer
from this that they would have been more acutely aware of potential
hazards than the average miner. Second, the mine had been in operation
only six calendar days prior to the day of inspection and had only
progressed 150-160 feet from the surface opening, about half the length
of a city block. Obviously, there were simply not as many potential
sources of hazard as would be present in a large, established mine, such
as the one the inspector had once preshifted and where his habit was to
place his initials every 1000 feet as the examination progressed (Tr.

14).
Third, for purposes of determining a violation of the cited
regulation we have rejected Birchfield's argument that the 8:00 a.m.
shift miners entering the mine during the midnight shift were covered by
the· pre-shift exam for the midnight shift. We think it probative,
however, for purposes of settling the significant and substantial issue,
to note the lack of enforcement action taken by the inspector to
counteract the allegedly hazardous conditions existing on the 001-0 main
section. Indeed, it strikes us as peculiar that the miners on the
midnight shift would have been exposed to what the inspector deemed
hazardous conditions whether or not members of the day shift entered the
mine prior to completion of the preshift inspection. Moreover, while
entry by the day shift miners prior to the full execution of the
preshift examination is clearly violative, it does not, in and of
itself, rise to the level of seriousness that would exist if the mine
had been idle prior to the start of the day shift.
In summary, there is a clear lack of synunetry between what the
inspector alleged to be a measure of danger to safety and the
enforcement measures he actually took or failed to take.
There are also strong factors that serve to mitigate the relative
seriousness of the conditions that were extant when the citation was
issued and that are relied upon by the judge in reaching his conclusion

36

that the violation was "significant and substantial."
First~ although the No. 1 mine was located in a coal seam known to
liberate methane, Birchfield's on-shift methane tests during the
midnight shift and the inspector's own tests revealed methane levels in
the No. 1 Mine substantially below those that would pose a hazard (Tr.
70, 89). 11 Regarding the lack of test holes twenty feet in advance of
the face, serious questions arise as to its relevance to the question
whether the irladequate preshift inspection was a significant and
substantial violation. ~/ Even so, the preshift report accepted by the
inspector as abatement in this case did not mention the lack of test
holes, nor did the preshift report for the preceding midnight shift.
This is significant because the Secretary appears to accept the preshift
examination report for the midnight shift as being in compliance with
section 75.303(a).

Birchfield does not dispute that an auxiliary exhaust fan was
inoperative, causing a second 'blowing fan to stir up dust around the
continuous miner. This, however, appears to have been an obvious
condition rather than a latent one and would have been readily apparent
to any day shift miner coming on the scene. Furthermore, the inspector
portrays this condition as an important basis for his significant and
substantial finding, but he did not issue a citation charging for
instance, a violation of 30 C.F.R. § 75.401 (referring to excessive
levels of dust) (Tr. 68-69). The failure to cite the operator in these
circumstances further erodes the "serious hazard" basis of the
significant and substantial finding.
For all these reasons, we agree with Birchfield that substantial
evidence does not support the judge's finding that the violation of
section 75.303(a) was significant and substantial in nature.
We reject, however, Birchfield's challenge to the finding of
unwarrantable failure. A violation of a mandatory safety standard is

11

The Birchfield No. 1 Mine was adjacent to a bleeder entry for an
older underground mine, but the record shows that although that bleeder
was not totally passable, it was being ventilated and tests for methane
were being conducted at specified evaluation points. (Tr. 78-79).
~/

Whether test holes are required in the circumstances sketchily
presented is a matter that need not be decided here. The working face
was 140 feet from the older workings, and it is clear that Birchfield
was mining away from the adjacent bleeder rather than approaching it.
The record on the test hole citation is confused, but it appears that
Birchfield chose not to contest the citation and paid a $20.00 single
penalty assessed by the Secretary. (Tr. 82-83; Gov. Ex. A).
Furthermore, the record indicates that mining was allowed to proceed
without abatement of the test hole citation because Birchfield had filed
a petition for modification of the standard. (Tr. 137-38) These
enforcement decisions seriously undermine the inspector's assertion that
a lack of test holes constituted a "serious hazard" for purposes .'.Jf
determining the seriousness of the preshift violation.

37

caused by an operator's unwarrantable failure if the operator has
engaged in "aggravated conduct constituting more than ordinary
negligence."· Emery Mining CorJ?..:_, 9 FMSHRC 1997, 2002 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987). The
judge found that "(s]ince the requirement [of section 75.303(a)] is set
forth in plain and unambiguous language •.. the operator's agents should
have known of the violation" and accordingly concluded that the
violation of section 75.303(a) was the result of "inexcusable aggravated
conduct constituting more than ordinary negligence." 9 FMSHRC at 2213.
It is undisputed that Birchfield officials knew that several
miners had entered the active workings of the mine before the preshift
examination had been completed and the results reported and that this
was not an isolated violation of section 75.303(a). Both Henderson's
and Bailey's testimony reveals that miners had routinely reported to the
face areas of the mine before preshift examinations had been completed.
Tr. 107-08, 120. Further, Henderson, admitted that he had not read
section 75.303(a), the mandatory safety standard in issue, although he
had been performing preshift examinations for approximately 13 years.
Tr. 111.
Uncontroverted evidence thus establishes that on this and previous
occasions Birchfield officials regularly permitted oncoming shift miners
to enter the active workings of the mine before a preshift examination
had been completed and reported as required by section 75.303(a). Such
conduct, in conjunction with the admission of the designated preshift
examiner that he had not read the standard that governs the timing,
content, conduct and reporting of preshift examinations, demonstrates
aggravated conduct exceeding ordinary negligence.
Birchfield's last contention is that the judge erred in assessing
a $400 civil penalty for the violation of section 75.303(a). Birchfield
argues that the judge failed to consider two of the six civil penalty
criteria mandated by section llO(i), 30 U.S.C. § 820(i) -- the ability
of Birchfield to continue in business and the gravity of the violation.
Birchfield also contends that the civil penalty assessed is "excessive
to the point of arbitrariness." B. Br. 17.
"When a judge's penalty assessment is put in issue on review, we
must determine whether it is supported by substantial evidence and
whether it is consistent with the statutory penalty criteria. 11 Pyro
Mining Co., 6 FMSHRC 2089, 2091 (September 1984). While in his decision
the judge did not specifically address the question of the impact of a
penalty upon the operator's ability to continue in business, the parties
stipulated at the hearing that "[p]ayment of the assessed civil penalty
will not affect [Birchfield's] ability to continue in business." Tr. 7.
Therefore, the stipulation establishes this statutory penalty criterion.
As to the gravity of the violation, however, the judge relied on
his determination that the violation was "significant and substantial
and a serious hazard." 9 FMSHRC at 2214. Since we have reversed the
significant and substantial finding, it is appropriate for the judge to
determine whether that reversal would have any effect .on his assessment
of the civil penalty.

38

For the foregoing reasons, the decision of the judge is affirmed
as to the. fact of violation, and the finding of unwarrantable failure to
comply. The decision is reversed, however, on the issue of whether the
violation was significant and substantial and remanded as to whether the
reversal of the significant and substantial finding would affect the
amount of the civil penalty. The section 104(d)(l) citation is also
modified to a section 104(a) citation.

~~
,,0
//( /

~~-r;~4//c:)Z<./j/l.-~/
Richard V. Backley, Commissioner

39

Commissioner Nelson, concurring:
A basic· problem in this case causes me to concur with Chairman
Ford and Commissioner Backley in reversing the judge's finding that the
violation was of a significant and substantial nature. When the
inspector observed miners on the 8 a.m. shift at the No. 4 face, he also
observed miners from the midnight shift at the same place at the same
time. The inspector issued a citation under section 75.303(a) because
he found several miners from the 8 a.m. shift in the mine when no record
had been made of a preshift examination for the 8 a.m. shift.
Indisputably, a preshift examination had been made for the midnight
shift. Our colleagues cite a number of threatening circumstances vis-avis the 8 a.m. shift miners, but the midnight shift miners were. in the
same place at the same time and by a quirk in the regulatory
requirements the latter workers apparently stand outside the circle of
danger as viewed in this circumstance. It is noteworthy that if the 8
a.m. shift miners had not entered the mine prematurely there would be no
basis for this citation even if it were conceded that the threatening
circumstances obtain.

Consequently, it seems inappropriate to attach to this citation a
finding that (in statutory words) "such violation is of such nature as
could significantly and substantially contribute to the cause and effect
of a mine safety or health hazard." That finding might be appropriate
if the inspector had cited the kind of threats to safety enumerated by
our colleagues but, to repeat, it seems inappropriate here where the
inadvertent effect is to divide into two classes miners whose
vulnerability to safety hazards is actually equal.
With respect to the significant and substantial finding, I would
not argue with Commissioners Doyle and Lastowka concerning an
"inspector's independent judgment" and the appropriate weight to be
accorded thereto by the judge in proper circumstances. However, for the
reasons stated, I cannot conclude from the record that substantial
evidence supports the judge's finding that the violation herein was of a
significant and substantial nature.

L. Clair Nelson, Commissioner

40

Commissioners Doyle and Lastowka, concurring in part and dissenting in part:
We agree with the majority that the administrative law judge interpreted
30 C.F.R. § 75.303(a) correctly and that his finding of a violation is supported
by substantial evidence. We also agree with the majority that substantial evidence supports the judge's finding that the violation was the result of Birchfield's unwarrantable failure to comply with the mandatory safety standard.
We dissent, however, from that part of the majority decision reversing the
judge's finding that the violation of section 75.303(a) was of a significant
and substantial nature.
In Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981) the Commission emphasized that an "inspector's independent judgment is an important
element ·in making significant and substantial findings, which should not be
circumvented." 3 FMSHRC at 825-26. Where, as in the present case, an
inspector's judgment that a violation of section 75.303(a) is significant and
substantial in nature is based upon the existence of hazardous conditions that
a preshift examination should have detected and reported and which, if
undetected, pose a safety hazard to miners, that judgement should be accorded
appropriate weight. See generally, Mathies Coal Co., 6 FMSHRC 1, 5 (January
1984); Consolidation Coal Co., 6 FMSHRC 189, 194-95 (Feburary 1984). Citing
Mathies, the judge accorded due weight to the inspector's judgment and found
that "[w]ithin the framework of the evidence," the violation of section
75.303(a) was significant and substantial in nature. 9 FMSHRC at 2213.
Because the judge's finding of a significant and substantial violation has
substantial support in the record and we are bound by a substantial evidence
standard of review (30 U.S.C. § 823(d)(2)(A)(ii)(I)), the majority errs in
substituting its judgment for that of the trier of fact. Donovan on behalf of
Chacon v. Phelps Dodge Corp., 709 F.2d 86, 94 (D.C. Cir. 1983).
We agree with the majority that the proper test to apply is that set
forth in Mathies and that the first element of the Mathies test is established
in this case by the fact of violation found by the judge and affirmed by the
Commission. The second element in the Mathies test requires that the violation
contribute to a measure of danger to safety. In this regard, the inspector
testified that in evaluating the violation of section 75.303(a) to be of a
significant and substantial nature, he considered several factors. The coal
seam being mined is known to liberate large quantities of methane. Further,
it is adjacent to a bleeder entry of older underground workings that cannot
be fully inspected and that are known to liberate methane. Tr. 42, 55, 68-69.
Also, Birchfield was not drilling required test holes in advance of the face,
even though the mine was within 140 feet of adjacent older workings. Tr. 79-80.
Because of this failure to drill test holes the inspector issued a citation
alleging a violation of 30 C.F.R. § 75.1701. */ Birchfield did not contest
this citation and paid the penalty proposed for the violation. In addition,

*/

This standard provides:
Whenever any working place approaches .•. within 200 feet
of any workings of an adjacent mine ..• boreholes shall be
drilled ... at least 20 feet in advance of the working face
and shall be continually maintained to a distance of at
least 10 feet in advance of the advancing working face ..••

41

at the No. 4 face, an auxiliary fan was not functioning, causing dust to he
blown over the working miners and posing both a health and an ignition hazard.
Tr. 68. All qf these hazards, the inspector helieved, were subject to
observation and reporting during the performance of a preshift examination.
The majority asserts that the inspector failed to take "enforcement
actions" against Birchfield for the conditions he relied upon in making his
finding that the violation was of a significant and substantial nature and
that this failure demonstrates that the conditions did not pose a measure of
danger to safety. Slip Op. at 6. This conclusion cannot be drawn from the
record in this case. First, the inspector did issue a citation for Birchfield 1 s failure to drill required test holes, a condition that was key to his
significant and substantial finding. Second, the inspector personally
observed each of these conditions. Thus, the inspector did not base his
significant and substantial finding on hypothetical hazards but rather on
actual hazardous conditions he found at the time of his inspection. In anv
event, the Mine Act does not require that, in order for one violation to be
considered significant and substantial, other violations must also be in
existence or that, in order to support a significant and substantial finding
made in one citation, an inspec~or must issue additional citations.
The majority further concludes that the safety hazards observed by the
inspector were "mitigated" by the fact that the individuals who entered the
mine before completion of the preshift examination were certified firebosses,
the mine was recently developed, and other miners from the previous shift were
already present in the mine. Slip op. at 6. In reaching this conclusion the
majority simply reweighs the evidence to reach their own conclusion regarding
the presence of hazards rather than determining whether substantial evidence
supports the judge's crediting of the inspector's significant and substantial
finding. In our opinion, there can be little doubt on this record that the
failure to complete the required preshif t examination prior to the shift
entering the mine contributed to the existence of a discrete safety hazard.
Therefore, we find the second element of a significant and substantial violation to also be satisfied.
As to the third element of the Mathies test, the inspector believed that
because Birchfield was mining in. a seam with a history of high methane
liberation, less than two hundred feet from an adjacent mine with known
concentrations of methane, without drilling required test holes, coupled with
the inadequate ventilation at the No. 4 face and the resulting dust problem,
it was reasonably likely that continued violation of section 75.303(a) would
result in an injury-causing event. Tr. 66-69. This testimony provides substantial support for a finding that, given continued mining operations (U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)), it was reasonably likelv
that an accident resulting in an injury or an illness would occur. The Commission has emphasized that "[i]n order to establish a significant and
substantial nature of a violation the Secretary need not prove that the
hazard contributed to actually will result in an injury-causing event ••••
[P]roof that the injury-causing event is reasonably likely to occur is what
is required." Youghiogheny & Ohio Coal Co •• 9 FMSHRC 673, 678 (April 1987)
(citations omitted).

42

The fourth element of the Mathies test requires that there be a reasonable likelihood that any resulting injury would be of a reasonably serious
nature. The majority concludes that certain factors "serve to mitigate the
relative seriousness of the conditions" found by the inspector. Slip Op.
at 6-7. In their view. these factors include the fact that at the time of
the citation the methane level was found by the inspector to be acceptable,
an inoperative exhaust fan causing coal dust to be stirred up was an "obvious
condition rather than a latent one," and citations were not issued for each
of these hazards noted by the inspector. Slip Op. at 7. In our opinion, each
of these "mitigating" factors lacks merit. Birchfield's failure to take a
methane reading during a required preshift examination in a coal seam
known to liberate high amounts of methane presents a serious safety hazard
in and of itself, regardless of how the results are viewed post hoc. Thus,
contrary to the opinion of the majority, the fact that the inspectar's
methane test did not indicate a high level of methane at the time of his
test is not determinative of the seriousness of the danger posed by the
operator's failure to perform the· test in the first instance. Nor do we
see how the fact that the dust hazard caused by faulty ventilation was
obvious to the inspector should serve to mitigate the hazard presented.
As to the lack of other citations, we have already observed that another
citation was issued by the inspector and that, in any event, additional
citations are not required to support a significant and substantial finding.
Several other mitigating factors relied upon by the majority to reverse
the judge's significant and substantial finding also miss the mark. For
example, we derive no solace from the fact that the violation occurred in a
recently opened mine. The length of time that a mine has been opened has no
bearing on the seriousness of a failure to conduct a preshift examination in
such mine. Also, we fail to see how the fact that other miners on the outgoing shift may have been exposed to the same hazards as the miners on the
incoming shift "mitigates" the seriousness of the hazards posed to the incoming miners by the failure to complete the required preshift examination.
Based on the above, the fourth element of the Mathies test also has substantial
record support.
In sum, we find that the majority's after the fact "mitigation" analysis
effectively eviscerates the important prophylactic purpose behind requiring
preshift examinations in the first place. We therefore conclude that substantial evidence supports the judge's finding that the violation of section
75.303(a) was significant and substantial in nature.
For these reasons, we dissent from that part of the majority's decision
reversing the judge's finding that the violation was of a significant and
substantial nature.

43

Distribution
Anthony J. Cicconi, Esq.
Shaffer & Shaffer
330 State Street
P.O. Box 38
Madison, West Virginia 25130
William Sotver, Esq.
MAE Services
40 Eagles Road
Beckley, West Virginia

25801

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

44

ADMINISTRATIVE LAW JUDGE DECISIONS

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

JAN 3 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 88-76-M
A.C. No. 34-00026-05515
Tulsa Plant

BLUE CIRCLE INCORPORATED,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Robert McCormac, Industrial Relations Manager,
Blue Circle Incorporated, Tulsa, Oklahoma, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of
civil penalty 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). The petitioner seeks
a civil penalty assessment of $147, for an alleged violation
of mandatory safety standard 30 C.F.R. § 56.20011, as stated
in a section 104Ca) "S&S" Citation No. 3061188, served on the
respondent by MSHA Mine Inspector Jimmie L. Jones on
November 20, 1987.
The respondent filed a timely notice of contest and
answer denying the violation and a hearing was held in Tulsa,
Oklahoma. The parties waived the filing of written posthearing arguments, but I have considered their oral arguments made
in the course of the hearing in my adjudication of this
matter.

45

Issues
The i~sues presented are (1) whether the respondent
violated the cited standard, and if so, the appropriate civil
penalty which should be assessed taking in_to account the civil
penalty assessment criteria found in sectiori llO(i) of the
Act; and (2) whether the alleged violation was "significant
and substantial" <S&S). Additional issues raised by the
parties are identified and disposed of in the course of this
decision.
Applicable Statutory and Regulatory Provisions

30

1.

The Federal Mine Safety and Health Act of 1977,

2.

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

3.

Mandatory safety standard 30 C.F.R. § 56.20011.

u.s.c. § 801 et seq.

Stipulations
The parties stipulated to the following relevant matters
(Tr. 4-6):

1. The respondent is subject to the jurisdiction of the Act, and the alleged violation
took place in or involves a mine that has products which enter or affect commerce.
2. The subject mine is located near
Tulsa, Rogers County, Oklahoma, and had an
annual production rate of 242,098 tons or hours
worked. The size of the respondent's operation
is 1,568,568 production tons or hours worked
per annum.
3. The imposition of a civil penalty
assessment for the alleged violation will not
adversely affect the respondent's ability to
continue in business.

4. The total number of inspection days
for the 24-month period preceding the issuance
of the subject citation is 42, and the total
number of assessed violations for this time
period, including single penalty assessments,
is 13.

46

5. The citation in question in this case
was immediately abated by the respondent.
Discussion
Section 104(a) "S&S" Citation.No. 3061188, November 20,
1987, cites an alleged violation of mandatory safety standard
30 C.F.R. § 56.20011, and the condition or practice is
described as follows:
There was no barricades or warning signs
along the perimeter and approaches into the
mill building where employees travel. A roofer
contractor was working 75 feet above where
rolls of roofing material, 5 gal. pails, large
propane gas cylinders and other materials were
being used and handled. The roof sloped about
3/12 and would easily allow dropped items to
fall to ground level.
Petitioner's Testimony and Evidence
MSHA Inspector Jimmy L. Jones testified as to his background and experience, and he confirmed that he issued the
contested citation on November 20, 1987, at the respondent's
cement plant and limestone quarry site. He explained that he
was at the site conducting a special investigation of a discrimination complaint, and that prior safety complaints had
been made by mine personnel against the roofing contractor who
was performing work at the mine. During the course of his
interview with an employee foreman of the respondent on
November 20, the employee advised him that he had observed the
contactor's truck on the premises that day and that the contractor was there to do some work. Mr. Jones and respondent's
industrial relations mana·ger Robert McCormac then went to the
mill building and went up on the roof.
Mr. Jones stated that no one was working on the roof on
November 20, but that he observed some roofing material and
equipment left there by the roofing contractor who was
re-roofing the mill building roof. Mr. Jones stated that the
roof was approximately 50 to 75 feet high and several hundred
feet long. He identified exhibits P-1 and P-2 as sketches
that he made of the roof area, and he described the materials
which he found on the roof as rolJ ~a roofing material,
5 gallon pails of mastic material, a homemade hand-truck, a
20 pound propane bottle cylinder, and a 60 pound propane
bottle cylinder. Mr. Jones confirmed that respondent's
photographic exhibits J-1 and J-2, are photographs of the mill

47

building in question, and the roof after the re-roofing work
was completed.
Mr. Jones stated that a portion of the roof work had been
completed on November 20, but that the roof. area where he
observed the materials and equipment in question had not been
finished.
He stated that the 60 pound propane bottle and
hand-truck were not secured or tied down, and he was concerned
that the propane bottle could fall over and roll off the roof
and strike a passing vehicle or service or maintenance personnel walking alqng the conveyor walkway below the roof. The
roof peaked at the center, and had a 3/12 pitch. He believed
that winds could have toppled the propane bottle and caused it
to fall over and roll off the roof to the ground below.
If
the bottle struck a vehicle, it would cause serious damage,
and if it struck anyone it would result in injury. There was
also a chance of the propane bottle valve striking the ground,
and if this occurred, the bottle could become airborne and
cause injuries or damages if it struck personnel or vehicles
(Tr. 8-24) •
Mr. Jones believed that the hazard presented by the
unsecured propane bottle on the roof would not be obvious to
anyone travelling on foot in the area below the roof or a
vehicle using the roadway. He observed no barricades or
warning signs blocking off the walkway or roadway below the
roof area in question. However, in another roof area where
the contractor had worked on a flat-roof section removing old
roofing material and concrete, and had dumped these materials
off the side of the roof, the area below had been barricaded
and tied off by 55-gallon drums and yellow marking tape.
Mr. Jones stated that he discussed the conditions which
prompted him to issue the citation with Mr. McCorrnac, and that
he voiced no objections with hii findings.
Mr. Jones confirmed that he based his "S&S" finding on
his belief that it was reasonably likely that the hazard
presented would have resulted in injury because of the height
of the roof, the amount of work which had been performed on
the roof, and the fact that vehicles and personnel would be
travelling in the area below the roof location where the
materials were located. Mr. Jones also confirmed that he made
a negligence finding of "moderate," and that he did so because
the contractor, rather than the respondent, created the
hazard, and that the respondent may not have been in the area
and did not· recognize the hazard. He also stated that he
found no evidence that the respondent was making regular

48

reviews of the contractor's work while it was in progress (Tr.
24-27).
Mr. Jones confirmed that during his inspection of the
roof on November 20, he found that the la~der used by him and
Mr. McCormac to gain access to the roof had not been secured,
and that he issued citations to the contractor for not
securing the ladder and for not providing a safe means of
access to the roof. He also confirmed that he had cited the
contractor for other violative conditions in connection with
the lack of safety lines for its personnel while working on
the roof, failure to secure equipment while working on the
roof, and the failure by contractor employees to wear hard
hats, safety shoes and safety glasses. Mr. Jones conceded
that "in hindsight," he probably should have also cited the
contractor for the violation in question in this case (Tr.
27-32).
On cross-examination, Mr. Jones conceded that the prior
complaints concerning the contractor's work on the roof were
not reduced to writing or served on the respondent as required
by section 103(g)(l) of the Act. Mr. Jones explained that he
was not at the mine for the purpose of conducting a section
103 investigation or inspection, but that he was there conducting a special investigation in connection with a discrimination complaint against the respondent.
He confirmed that
the discrimination complaint is still in litigation, and that
it was filed by an e!nployee who alleged that some action had
been taKen against him for complaining about alleged contractor violations at the site.
Mr. Jones reiterated that no·one was working on the roof
when he inspected it on November 20. He conceded that while
it was true that someone or something would have to put the
materials in motion before they could fall off the roof, he
believed that a wind could have toppled over the free standing
60 pound propane bottle and caused it to roll off the roof.
Mr. Jones confirmed that he was primarily concerned with
the 60 pound propane bottle and the hand truck, and not the
other materials on the roof. He explained that it was not
likely that the rolls of roofing materials, pails, or smaller
propane bottle would fall off the roof because they were
stored in such a manner as to preclude this from happening
(Tr. 33-53).
Mr. Jones stated that regardless of the type of inspection or investigation being conducted by an inspector at any
given time, an inspector is authorized to issue citations for

49

violations and to use an appropriate MSHA "incidental inspeqtion" code to identify the inspection. He reiterated that in
the case at hand, the information which prompted him to visit
the roof with Mr~ McCormac came to his attention through his
discussions with the forenan in connection with his investigation of a prior discrimination complaint {Tr. 54).
Mr. Jones confirmed that everyone he ·spoke with in connection with his discrimination investigation was aware of the
fact that the contractor was on the roof from time-to-time
performing work. He confirmed that after his inspection which
resulted in the issuance of the citation in issue in this
case, he returned to the mine to complete his discrimination
investigation and to abate some prior citations, and he
observed the contractor performing work on the roof {Tr. 55).
In response to further questions, Mr. Jones stated that
the propane bottle in question "was nearly in a straight-line
relationship to that conveyor" and that "My judgment was it
was only reasonably likely that it could fall and it could
strike either that roadway or that conveyor" {Tr. 94). In
response to a question as to whether or not barricades need to
be in place regardless of whether anyone is actually doing any
work on the roof, Mr. Jones responded as follows (Tr. 94-95):
MR. JONES: No. The only reason that they
needed the barricaded warning sign was because
of this unsecured bottle and stuff up there
when no one's working up there.
If they would
secure that material, then they could take
their barricades down.
But all the time that people are working
up there on that sloped roof along the perimeter, they' re down on the ground. They have
no idea what position these people are in.
They need to have that roadway and that conveyor blockaded because you never know where
the material would come from because they're
working along the length of that building.
William J. Brock, testified that he is employed by the
Lespondent as a repairman and welder, and also serves as the
vice-president of the local union and representative of the
miners working at the mine. Upon review of inspector Jones'
sketch, exhibit P-1, he confirmed that prior to the inspection
of November 20, he observed the roofing contractor working on
the roof in question, and also observed the equipment and
materials described by Mr. Jones. Mr. Brock also observed the

50

contractor performing work on the roof after the citation was
issued.
Mr. Brock stated that he observed no barricades or warning signs in place on the roadway or the cqnveyor walkway in
the area beneath the roof location where the cited materials
and equipment were observed by Mr. Jones on November 20.
Mr. Brock confirmed that employees and trucks would have
occasion to be on the roadway and walkway in the unprotected
area under the roof. He stated that a dust truck travelled
the roadway every 30 minutes, and that contractor vehicles
also used the roadway.
In addition, respondent's loaders;
would also be in the roadway area working and moving material,
and that mine employees would be on foot in the area of the
tripper belt in the morning at the beginning of the shift, and
at the end of the shift. An oiler and rock crusher operator
would also be on the conveyor walkway at least once a day.
Mr. Brock stated that prior to the inspection by
Mr. Jones on November 20, he had questioned the respondent
about the lack of barricades at another location at the west
end of the mill building where the contractor was hauling
materials and equipment up to the roof. After receiving no
response, Mr. Brock stated that he took it upon himself to
rope the area off CTr. 61-67).
Mr. Brock stated that the walkway located on the elevated
conveyor belt is partially covered with a roof, and that
individuals using that walkway would not normally be walking
on the roadway below the conveyor. However, people would be
on the roadway on foot occasionally (Tr. 68). With regard to
the lack of any barriers on the east side of the building,
Mr. Brock confirmed that he had no particular knowledge that
work was being performed on the roof at that location, and
that it was possible that any work on the roof was taking
place on the west side of the roof apex.
He confirmed that he
was not on the roof at that time (Tr. 69). He also confirmed
that while he was at work on the day of Mr. Jones' inspection
when the citation was issued, he did not visit the cited roof
area with Mr. McCormac or Mr. Jones to view the conditions
(Tr. 75).
Respondent's Testimony and Evidence
Bobby McFarland, respondent's utility supervisor, testified that his duties included the supervision of the plant
labor department which is responsible for cleaning the plant
and insuring that work areas are barricaded as required.
In
those instances where it is necessary to perform cleaning on

51

elevated areas, and materials are thrown off the roof, the
bottom wall. and ground areas are barricaded. He con£irmed
that he was aware of the fact that Patterson Roofing Company
was doing some roof work at the plant "last fall" (Tr. 76-77).
His crew was assigned to keep the ground barricaded and roped
off while Patterson Roofing was doing any work' that presented
a hazard, and that this was done "when they was there working."
With regard to the day the citation was issued, Mr. McFarland
confirmed that the roofing contractor was not at the plant
site and that the area around the building in question was not
roped off that day because no one told him that the contractor
would be there (Tr. 78).
On cross-examination, Mr. McFarl·and confirmed that he was
at work on the day the citation was issued, and although he
went to the ground area of the crane storage building, he did
not accompany Mr. Jones and Mr. McCormac oh the roof during
their inspection. Prior to this time, he was aware of the
fact that the contractor ·had worked on the east side of the
building (Tr. 79). He confirmed that 'when the contractor was
working on the north side of the.building, he barricaded the
area, but not the entire perimeter of the east side (Tr. 79).
The area which was barricaded was at the location where
materials where being removed and thrown off the roof. He
identified the area which had previously been roped off and
barricaded by reference to a sketch and photograph (exhibit
P-1 and J-1; Tr. 80-82). The barricades were up "probably the
day before" the citation whe~ work was taking place, but they
did not remain up for the entire time the~· workers were on the
roof working because they were taken down:' so that truck
traffic could pass through the area. Mr. McFarland believed
that the barricades were "probably taken down to the edge of
the road" (Tr. 83).
Mr. McFarland eXplained that the barricades consisting of
ropes placed around empty barrels, were put up when the roofing contractor was hoisting building materials to the top of
the roof by means of a crane and a pulley rope. When asked
whether or not the barricades renained in place after the
materials were on the roof, , Mr. McFarland: responded as follows
(Tr. 85-88):
JUDGE KOUTRAS:
After the mate~ials'~re up on
the roof and the guys sta~t tb ~ork, ~hat
happens to the barricades~.
THE WIT~ESS:
Okay, the one on the' ~ast' side
there gets pulled back to the roaa where the
traffic can go through, and on the north and

52

south side up in ftont, why, they get taken
down for that night. If they start to work the
next morning, we put them Up; if they don't
work, we don't put.them up.
,JUDGE KOUTRAS:
But if they are up there
working, are the barricades still up?
THE WITNESS:
sir.

*

*

JUDGE KOUTRAS:

They're supposed to stay up, yes

*

*

*

*

*

Why is that?

THE WITNESS: If you -- to keep stuff from
falling, people walking under them.
JUDGE KOUTRAS: Then if for some reason the
contractor decides not
to work on any partic1
ular day and there is nobody up there, then the
barricades are taken away; is that what you are
saying?
THE WITNESS: Yes~ They'll be pushed up
against the building. ·
JUDGE KOUTRAS: 'rheh when the contractor comes
out again, they're pulled dut and put up again;
is that what you are telling me?
THE WITNESS:

Yes, that•s what •

JUDGE KOU'rRAS: Now, on Noveµtber 20th when the
inspector issued this citation, were you at
work?
THE WITNESS:

Yes.

JUDGE KOUTRAS: were the barricades up or
against the building that day?
THE WITNESS: They was probably against the
building that day because he didn't work.
JUDGE KOUTRAS: You say "probably. 11 Do you
know f ot a fact that they were against the
building? Did you go up there?

53

THE WITNESS:

No, I didn't go on top.

JUDGE KOUTRAS: Not on the roof, did you go to
that area? Did you have any reason to be
there?
THE WITNESS: Yes, I have a reason to go every
day there around the building.
JUDGE KOUTRAS: Do you remember seeing any
barricades there?
THE WITNESS:

No.

JUDGE.KOUTRAS:

They were up in the roadway?

THE WITNESS: They was in the area, but they
probably wasn't on that day because they wasn't
working.
I have a crew that puts them up when
they work.
And, at (Tr. 92-93):
JUDGE KOUTRAS:
So if they are up there doing
work then the roadway is not blocked?
THE WITNESS:
JUDGE KOUTRAS:

No, it's not on the back side.
Not on the back side?

THE WITNESS:

Right.

MS. WITHEROW:

Is the walkway blocked off?

THE WITNESS: The walkways are covered, both of
them -- all three of them are covered.
MS. WITHEROW: We have heard testimony from two
witnesses that there are parts of that walkway
that are not covered.
THE WITNESS: The tripper belt is covered and
your clinker belt where it used to be there's a
walkway that we walk through, it's also covered.

54

But from going to the mill building, top of the
mill building out to the footer building, it's
not.

*

*

*

*

*

*

*

Q. So this walkway that Mr. Jones testified
about, it was not -- it was open?
A. Well, it's got covers on your belt but it
don't have a cover over your -- it's not a
covered walkway.

Q. Fine. Were there any barricades or warning
signs on that?
A.

On this one (pointing}?

Q.

On that walkway?

A.

No.

Q.

At any time?

A.

No, not that I know of.

John Bayliss, respondent's maintenance manager, confirmed
that he was familiar with the contractor performing work on
the roof of the crane storage building prior to and after the
time the citation was issued, and that he was aware of the
contractor's "comings and goings." Mr. Bayliss stated that
the contractor was not performing any work on the roof on the
day that the citation was issued.
He confirmed that all roofing contractors are given safety instructions, and they are
instructed to wear hard hats, glasses, and hard-toes shoes,
and that in the event they needed assistance or barricades
they were to come to him. When asked whether or not barricades were installed when contractors were performing work at
the plant, Mr. Bayliss stated as follows (Tr. 98):
A. Whenever they told us that they were in a
problem, we installed barricades. When they
were going to tear the junk -- they started off
tearing the top off the roof, and then they
lifted up the new supplies, and then they stuck
these new supplies back on the roof.
That was
a job.

55

When they came to lift up the supplies,
there were two different, separate times when
they were lifting supplies up. One, they used
a huge mobile crana, and the next ti1ne they
used the rope down the side of the bU:ilding.
Each time when they were using these
things, we put barricades up.
Bob works for
me, and he put barricades up.
Mr. Bayliss stated that the roofing contractor in question usually had two or three workers working at one location
on the roof, and in the event they were working and handling
materials at the north end of the building, it would not be
logical to rope off the south end.
In his judgment, the only
work area that needed to be roped off would be the area
directly below where the roof work was being performed (Tr.
9 9).
Mr. Bayliss described the propane tank used by the contractor as "a small tank" weighing approximately 20 pounds
(Tr. 100). He stated that prior to the issuance of the citation, the contractor had not worked at the plant for a week
because the temperature was less than 40 degrees and that "we
had been in limbo for a week here, waiting for the guy to come
back and get his job done" (Tr. 101). Mr. Bayliss was of the
opinion that there was no likelihood that the materials on the
roof would have fallen off and that it was unlikely that an
accident would have happened because the east side of the
building is not a place where anybody would walk and that
there are "very few people on foot.
This is not a traveled
area at any time as far as people walking" (Tr. 101).
On cross-examination, Mr. Bayliss confirmed that although
he was at work on the day of Mr. Jones' inspection, he did not
accompany him to the top of the roof, nor did he go to the
roof on that day. Mr. Bayliss stated that he knew what was on
the roof because "what's on the roof that day was on the roof
the day before, and it was on the roof ever since we'd been on
the roof so I knew exactly what was on the roof" (Tr. 101).
Mr. Bayliss confirmed that he was on the roof at least once a
week in order to insure that the work for which the contractor
was being paid was done.
Mr. Bayliss confirmed that in addition to the 20 pound
propane tank, another 60 pound propane tank was on the roof on
the day of the inspection, and he agreed with the inspector's
testimony concerning the presence of other materials such as

56

pails, roofing materials, and a hand truck on the roof CTr.
106). With regard to the inspector's assessment of the hazard
presented at the time of the inspection, Mr. Bayliss stated as
follows (Tr. 106-107):
JUDGE KOUTRAS: Now you also heard the inspector t~stify that if a wind came along and
toppled over this sixty-pound propane tank that
it could possibly roll off the roof, and if it
did and fell to the ground below and struck a
truck, it would cause certain damages; if it
struck a person, it would cause certain things;
and if it landed on its valve and it was full,
it would likely or at least it was a possibility of it becoming airborne or whatever.
Do you differ with the inspector on that?
If this propane tank toppled, would it likely
roll off the roof?
THE WITNESS:

I believe it might.

JUDGE KOUTRAS: Was the pitch of the roof such
that it would roll off?
THE WITNESS: Well, you can see the roof. Any
pitch on anything, if you roll a -- of course,
I didn't see exactly where this sixty-pound
tank was actually located on this day.
JUDGE KOUTRAS: Where could it be located up
there? Did they have any -- he said that the
roof i.ng material was in cardboard boxes and it
was either perpendicular or positioned in such
a way that that wouldn't roll off, that he
wasn't concerned about the pails but he was
concerned about this one propane tank and the
hand truck.
THE WITNESS:

Yes.

JUDGE KOUTRAS: Particularly with the propane
tank. His testimony is that if the wind
toppled the propane tank, it was in such a
position that it would readily roll off the
roof.
THE WITNESS:

I believe him.

57

Mr. Bayliss stated that the propane tanks in question
were not "tied off," that the contractor never tied them off,
and that "if the inspector says it was up there when he saw
it, I believe him" (Tr. 108). Mr. Bayliss agreed that the
unsecured materials on the roof were left .t.here by the contractor who intended to come back "the next day" or when "we
got to some warmer weather" (Tr. 109). He confirmed that the
materials were left on the roof for "a couple of weeks" and
that "this job took like three months to complete" (Tr. 110).
Mr. Bayliss stated that the inspector was justified in
issuing the citation and that his only difference with the
inspector lies in "the likelihood of somebody getting hurt."
Mr. Bayliss agreed with the inspector's view that an unsecured
propane cylinder on a pitched roof could roll off, but disagreed with the inspector's belief that it was reasonably
likely that it would fall off and hit someone (Tr. 112).
Petitioner's Arguments
Petitioner takes the position that the testimony in this
case, including the testimony of the respondent's witness
Bayliss, supports the inspector's finding that a violation of
the cited standard occurred and that the propane tank located
on the roof posed a hazard in that it could have toppled over
and rolled off the roof. Given the inspector's testimony that
the walkway was at no time barricaded, the testimony of
Mr. Brock that trucks were on the roadway every 20 to
30 minutes driving along the unbarricaded roadway below the
roof, and Mr. McFarland's admission that the roadway was not
barricaded on the day of the inspection, petitioner concludes
that it has established the fact of violation, and the fact
that a hazardous condition was present at the time of the
inspection and the issuance of the citation (Tr. 118-119).
Respondent's Arguments
The respondent asserted that the citation should be
vacated because the inspector failed to follow the requirements of section 103(g)(l) of the Act which requires that any
complaints concerning alleged violations of any mandatory
safety standard be first reduced to writing and a copy
furnished to the mine operator.
Respondent argued that no
written complaint was forthcoming at the hearing, that MSHA
failed to produce any witness who may have complained to the
inspector about the cited condition, and that the inspector
would not have gone to the roof area but for this complaint.
Respondent took the position that "everything from that point
on is hearsay" (Tr. 119).

58

The respondent's second argument is that MSHA inspectors
are issuing citations to contractors who are supposedly working at the plant, when in fact they are not present at the
plant actually performing any work at the ~ime of the inspection.
Respondent's representative McCormac- stated that "If we
are going to have a citation written about contractors working, if the inspector does not see the work being done, then
he can't write anything on them" (Tr. 113). Mr. McCormac
asserted that the written condition described by Inspector
Jones on the face of the citation states that the contractor
"was working seventy-five feet above the ground" when in fact
the contractor was performing no work on the day of the inspection (Tr. 115). Mr. McCormac concludes that the inspector's
belief that the contractor was working on the day in question
is based on speculation which is unsupported by any "concr.ete
proof" (Tr. 120).
Finally, the respondent argues that with respect to the
propane cylinder in question, since there was no one working
on the roof, and since there was no evidence advanced with
respect to any wind or adverse weather conditions which may
have caused the cylinder to topple over and roll off the roof,
there was no hazard. Absent any agent or event that would
cause the cylinder to topple over from its upright position,
respondent concludes that it was unlikely that an accident
would occur. Mr. McCormac stated that in the absence of
vacating the citation, it should at most be modified to a
"non-S&S" citation, and he agreed that if the citation was
initially classified as such "we would not be here today" (Tr.
120, 122).
Findings and Conclusions
Section 103(g)(l} Issue

'

\,

Section 104Ca} of the Act provides in relevant part that
"if, upon inspection or investigation, the Secretary or his
~
authorized representative believes that an operator of a coal '·
or other mine subject to the Act has violated this Act, or any
mandatory health or safety standard, • • • , he shall, with
reasonable promptness, issue a citation to the
II
operator •
Inspector Jones confirmed that he visited the plant site
on November 20, 1987, in his capacity as an inspector and
special investigator for the purpose of conducting an investigation concerning a previously filed discrimination complaint.
He explained that in the course of these duties it is not

59

unusual for him to receive information or complaints from
employees with regard to alleged violative conditions which
may be unrelated to his discrimination investigation. Unless
the complaints concern an imminently dangerous condition, his
normal procedure is to ref er safety compla~nts to the inspectors who normally inspect the mine. However, since he was
aware of the fact that MSHA had received prior employee safety
complaints concerning the roofing contractor, and had conducted hazard inspections in response to those complaints, and
since he was informed by a foreman that the contractor was
working on the roof while he was there on November 20, 1987,
Mr. Jones decided to inspect the roof area in question (Tr.
8-9).
Inspector Jones explained that the prior visits to the
plant by other MSHA inspectors in response to written complaints concerning the contractor in question were in connection with complaints that contractor personnel were not
wearing hard hats, hard-toed shoes, and glasses. The "negative findings" by the inspectors with respect to those complaints were based on the fact that the contractor was not
working when the inspectors were on the site, and since the
inspectors had no opportunity to observe the contractor's
employees without the personal equipment in question they had
no basis for supporting any citations (Tr. 36-38).
Inspector Jones confirmed that no one complained to him
about any alleged violative conditions on the roof, and that
he went there with Mr. McCormac after a foreman advised him
that the contractor was on the mine site. The fact that
Mr. Jones may have interrupted his discrimination investigation to visit the roof area is irrelevant. Mr. Jones was
accompanied by a representative of the respondent and the citation which he subsequently issued was based on his personal
observations of the conditions which prompted him to issue it.
I find nothing onerous or procedurally defective in the action
taken by Mr. Jones. As an authorized representative of the
Secretary, Mr. Jones had a duty and obligation to issue the
citation if in his judgment the conditions which he observed
constituted a viol:i.tion of the cited mandatory safety standard
in question. The respondent's assertion that Mr. Jones'
actions were "hearsay" because the petitioner failed to produce any written coraplaint or any witness who may have complained about the materials on the roof are not well taken.
Mr. Jones' personal observations and testimony about the
conditions ~hich prompted him to act are not hearsay, and I
accept as credible his explanation as to why he went to the
roof.
Under the circumstances, the respondent's arguments

60

that the citation is somehow defective and that Mr. Jones
actions were procedurally improper ARE REJECTED.
The Inspector's Narrative Description of the Cited Conditions
The respondent is charged with a violation of mandatory
safety section 30 C.F.R. § 56.20011, because of its alleged
failure to install barricades or warning signs along the perimeter and approaches to the building where roofing materials
were located on the pitched roof. The inspector was concerned
that some of the materials on the roof, and in particular a
hand truck and a large propane bottle or cylinder weighing
approximately 60 pounds, and which was upright and unsecured,
could have toppled over and rolled down the roof to the ground
below striking passing vehicles or employees traveling along a
roadway and conveyor walkway. Section 56.20011, provides as
follows:
Barricades and warning signs.
Areas where health or safety hazards exist
that are not immediately obvious to employees
shall be barricaded, or warning signs shall be
posted at all approaches. Warning signs shall
be readily visible, legible, and display the
nature of the hazard and any protective action
required.
The evidence in this case establishes that work was in
fact performed by the roofing contractor prior to the day of
the inspection by Mr. Jones, and that it continued for some
time after the issuance of the citation. The evidence also
establishes that the roofing materials found by Mr. Jones on
the roof were being used by the contractor who interrupted the
completion of the roofing job because of outside t~nperature
conditions. The respondent's suggestion that the citation is
somehow defective because of the misleading wording of the
cited conditions by the inspector on the face of the citation
is not well taken. While it is true that the citation issued
by Mr. Jones which states that "a roofer contractor was
working 75 feet above" the perimeter and approaches to the
building gives the impression that work was taking place when
Mr. Jones was on the roof observing the conditions, I find
nothing in the cited standard that conditions a violation on
the fact that work may or may not be ongoing.
The gravamen of the requirement for barricades or warning
signs lies in the existence of safety hazards not immediately
obvious to arnployees. The critical issue is the existence of

61

the hazard, and the fact that no roofing work was taking place
at the precise time of the inspection is irrelevant to any
determination as to whether or not the affected area in question was barricaded or posted with warning signs. However,
the fact that no work was taking place may .or may not be relevant in any determination as to the degree of the hazard, and
the likelihood of an accident occurring. Accordingly, the
respondent '•s assertion that the "speculative" words used by
the inspector conveying the impression that work was actually
taking place when he viewed the conditions supports a dismissal
of the citation IS REJECTED.
Fact of Violation
The unrebutted evidence in this case clearly establishes
the existence of unsecured materials on the roof of the mill
building. The roof was approximately 75 feet off the ground,
and it was "pitched" or "peaked" as depicted by the photographic exhibits of record, and the building was several
hundred feet.long. The evidence also establishes that the
materials which were of concern to the inspector consisted of
an unsecured 60-pound propane tank or bottle, and a small
unsecured hand truck, both of which remained on the roof for a
relatively long period of time during which the roofing
contractor performed no work on the roof because of adverse
outside temperature conditions.
Inspector Jones testified that given the pitch of the
roof, and the fact that the unsecured propane bottle was
located "in a straight-line relationship" to an elevated
conveyor located below the roof, he was concerned that if the
bottle were to fall over and roll off the roof, it could
strike the conveyor walkway, a portion of which was uncovered,
as well as mine personnel walking along the base of the building, and vehicles passing by on a ground level roadway
adjacent to and below the roof of the building. Respondent's
maintenance manager John Bayliss agreed with the inspector's
belief that in the event the unsecured propane bottle were to
topple over, it could readily roll off the pitched roof to the
ground below. He also agreed that the inspector was justified
in issuing the citation. Given these undisputed facts, I
conclude and find that the unsecured propane bottle and hand'
truck in question posed a potential safety hazard.
Although the evidence establishes that no one was working
on the roof at the time qf the inspection and issuance of the
citation, respondent's welder and repairman William Brock
testified that a dust truck travelled the roadway every
30 minutes, and that respondent's employees would occasionally

62

be on foot on the roadway. He also testified that respondent's employees would have occasion to walk the partially
unprotected conveyor walkway during the course of their daily
work shift, and that contractor vehicles would also use the
roadway.
Inspector Jones testified that a~rvice and maintenance persopnel would have occasion to travel the conveyor
walkway while servicing the conveyor systems. This testimony
is unrebutted, and I conclude and find that these employees
and vehicles would be exposed to the potential hazard in
question.
Although Mr. Bayliss testified that he knew that the
materials cited by Inspector Jones were on the roof, there is
no credible evidence that any other employees were aware of
the fact that these materials were there.
Inspector Jones
testified that employees working below the roof of the building or travelling along the conveyor belt or roadway would not
be able to see the materials unless they were out for some
distance away from the building, and that they would not be
able to see anything rolling or falling off the roof and would
have no warning if this were to occur. Given the dimensions
of the building in question, the location of the materials at
the apex of the roof which was approximately 75 feet off the
ground, and the location of the roadway and conveyor belt at
the base of the building, I conclude and find that employees
on foot or in vehicles at those locations would not likely be
aware of the unsecured materials on the roof and that the
existing hazard presented by the unsecured propane bottle and
hand truck would not be immediately obvious to them.
The undisputed evidence establishes that the roadway and
conveyor areas at the base of the building and below the roof
area where the unsecured propane' bottle and hand truck were
located were not barricaded or otherwise posted with warning
signs during the time that these materials were left on the
roof by the roofing contractor. Although the respondent's
evidence reflects that barricades were normally erected while
work was being performed on the roof or roofing materials were
being hoisted to the roof, it seems clear to me that they were
not in plac;e during the existence of the hazard.
Given the existence of a safety hazard which was not
immediately obvious to employees, and the fact that no barricades were erected, or warning signs posted in the areas
exposed to the hazard during the time the unsecured propane
bottle and hand truck remained on the roof, I conclude and
find that the respondent violated the requirements of mandatory safety standard 30 C.F.R. § 56.20011. Accordingly, the
citation IS AFFIRMED.

63

Significant and Substantial Violation
A "si~nificant and substantial" violation is described in
section 104{d)(l) of the Mine Act as a vio~ation "of -such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814Cd)(l). A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
·result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
19 81).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Coffil-nission explained its interpretation of t.be term "significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Min.ing Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have enphasized that, in accordance
with the language of section 104Cd)(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 Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).

64

..

The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
CDecember 19 87) •
Inspector Jones confirmed that the rolled roofing materials, 5-gallon pails, and small 20-pound propane bottles
which he found on the roof were adequately stored and secured
and did not pose a hazard. His principal concern was the
unsecured free-standing 60-pound propane bottle which was
located on the sloped portion of the roof. Although Mr. Jones
alluded to his concern for the unsecured hand-truck, I find no
credible evidence to support a conclusion that it was reasonably likely that this truck would fall or roll off the roof
and strike and injure someone.
With regard to the unsecured propane bottle, respondent's
own witness John Bayliss confirmed that it remained on the
roof for "a couple of weeks" when no work was in progress on
the roof. Mr. Bayliss also agreed with the inspector's conclusion that given the position of the bottle on the pitched
roof, if it were to topple over it would readily roll off the
roof. Mr. Bayliss also confirmed that the contractor in question never tied off or secured any of its propane tanks, and
Inspector Jones confirmed he cited the contractor for not
securing the bottle and for several additional unsafe work
practices in connection with the work being performed on the
roof.
The respondent argues that in the absence of any work in
progress on the roof at the time of the inspection, and the
lack of any agent or event to cause the bottle to be placed in
motion and roll off the roof, the violation is not significant
or substantial. I disagree. In my view, the free-standing
and unsecured 60-pound cylindrically shaped propane bottle
located on the pitched portion of the roof which was approximately 75 feet above an unbarricaded area where employees and
traffic would be present on a daily basis created an inherent
and discrete potential safety hazard regardless of the presence of any independent agent or event to place the bottle in
motion. The unsecured bottle was on the pitched portion of
the roof for a relatively long period of time, and it was not
readily observable from the ground level roadway or conveyor
areas which should have been barricaded or otherwise posted
with warning signs.
If the bottle were to topple over, it
would readily roll off the roof and possibly strike an

65

employee walking along the base of the building or a vehicle
passing along the roadway.
If this were to occur, I believe
that one may reasonably conclude that serious or fatal
injuries would result. Under all of these circumstances, I
agree with the inspector's significant and substantial finding, and IT IS AFFIRMED.
History of Prior Violations
The parties stipulated that the respondent had 13 assessed
violations for the 24-month period preceding the issuance of
the citation in. this case.
I find that the respondent's history of compliance is not such as to warrant any additional
increase in the civil penalty assessment which has been made
for the violation in question.
Size of Business and Effect of Civil Penalty Assessment on the
ResE.._ondent's Ability to Continue in Business
Based on the stipulations by the parties, I conclude and
find that the respondent is a medium-size mine operator, and
that the payment of the civil penalty assessment in this case
will not adversely affect its ability to continue in business.
Gravity
On the basis of my findings and conclusions affirming the
inspector's "significant and substantial" finding, I conclude
that the violation was serious. The unsecured propane bottle
in question presented a hazard to mine employees and vehicles
using the roadway at the base of the building some 75 feet
below the roof where the bottle was located.
Negligence
Inspector Jones made a finding of "moderate negligence,"
and he confirmed that he did so on the basis of mitigating
circumstances. He explained that the contractor created the
hazard, and the record shows that he cited the contractor for
not securing the bottle.
Insofar as the respondent is concerned, although Mr. Jones believed that it had an obligation
to check on the contractor to determine whether it was creating any hazards to miners, he considered the fact that the
respondent did not recognize any hazard (Tr. 29-31).
I
conclude and find that the violation resulted from the respondent's failure to exercise reasonable care, and the inspector's negligence finding is affirmed.

66

Good Faith Abatement
The parties stipulated that the respondent demonstrated
good faith in immediately abating the violation.
I adopt this
stipulation as my finding on this issue.
Civil Penalty Assessment
On tqe basis of the foregoing findings and conclusions,
and taking into account the requirements of section llOCi) of
the Act, I conclude and find that a civil penalty assessment
in the amount of $150 is reasonable and appropriate for the
violation which has been affirmed in this case.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $150 for a violation of mandatory safety standard
30 C.F.R. § 56.20011, and payment is to be made to MSHA within
thirty (30) days of the date of this decision and order. Upon
receipt of payment, this proceeding is dismissed.

~~u'!:~~
Administrative Law Judge

Distribution:
Mary Witherow, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Robert K. McCormac, Industrial Relations Manager, Blue Circle
Incorporated, 2609 N. 145th E. Avenue, Tulsa, OK 74116
(Certified Mail)

/f b

67

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

JAN 9 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Peti tiorrer

v.
EASTSIDE COAL COMPANY, INC.,
Respondent

.
.
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-77
A.C. No. 05-02421-03518
Eastside Mine

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwood Springs, Colorado,
for Respondent.

Before:

Judge Cetti

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. § 801 et seg. The Secretary of
Labor, on behalf of the Mine Safety and Health Administration,
CMSHA), charges the operator of the Eastside Mine with violating
two safety regulations of 30 C.F.R §§ 70.508 and 49.38 and with a
failure to abate these violations. MSHA issued two 104(a}
Citations and later two 104(b) Orders for failure to abate the
violations.
The operator filed a timely appeal contesting the existence
of the alleged violations and raising five affirmative defenses.
The case was set for hearing on the merits at the same place and
time as other cases involving the parties were heard on the
merits. At the hearing, the parties advised they had reached
settlements resolving all issues and were prepared to make their
recommendations on the record.
Eastside is a small underground coal mining operation. It
is developing a coal seam situated in the Grand Hotback, near the
town of Silt, Garfield County, Colorado. It employees five CS)
persons.

Citation/Order No. 9996145 involved an alleged failure to
have qualified or certified personnel take noise samples. In
preparing the case for trial the Secretary found the original
104(a) citation was valid but that there was insufficient evidence to go forth with the 104(b) order issued for the alleged
failure to abate. The parties agreed and jointly moved that the
Secretary be permitted to vacate the 104(b) order and with
respect to the 104(a) citation amend the proposed penalty (which
was a combination penalty for the citation and the order) from
$170.00 to $85.00. The motions with respect to citation/order
No. 9996145 were granted and respondent with approval of the
court withdrew its notice of contest to the citation and its
related amended penalty.
With respect to Citation/Order No. 3043534 the parties
jointly moved to vacate the 104(b) order, leaving in place the
104(a) citation, and to amend the proposed penalty for the
citation and order from $255.00 to $128.00. This reduced penalty
relates solely to the 104(a) citation. The Secretary's counsel
stated for the record that the 104Ca> citation was appropriate
but on review of the evidence it was determined that the 104(b)
order was not. Respondent withdrew his contest to the citation
and its related amended penalty.
I accept the representation of counsel that there is insufficient evidence to establish the failure to abate Order Nos.
~044011 and 3044012 and grant the motion to vacate said orders.
I conclude that the proposed settlement is appropriate under the
criteria set forth in section llOCi> of the Act.
Accordingly, the joint motion (or approval of the settlement
made at the hearing is granted, the settlement is approved and
respondent is ordered to pay the sum of $213.00 within 40 days of
the date of this Order.

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 7 90, _
Glenwood Springs, CO 81602 (Certified Mail)

/bls
69

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

JAN 9 \989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
UTAH POWER & LIGHT COMPANY,
Respondent

.
.
.
.
:
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-92
A.C. No.· 42-00121-03659
Deer Creek Mine

.

DECISION
Appearances:

Susan J. Bissegger, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Thomas c. Means, Esq., Crowell & Moring,
Washington, D.C.,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges respondent with violating a
safety regulation promulgated under the Federal Mine Safety and
Health Act, 30 u.s.c. § 801 et seq., (the "Act").
After notice to the parties a hearing on the merits was held
in Denver, Colorado on June 8, 1988.
The parties filed post-trial briefs.
Summary of the Case
Citation No. 3044971 charges respondent with violating 30
C.F.R. § 75.1714. The cited regulation provides as follows:
§ 75.1714

Availability of approved self rescue devices;
instruction in use and location

(a) Each operator shall make available to each miner
employed by the operator who goes underground and to
visitors authorized to enter the mine by the operator a
self-rescue device or devices approved by the Secretary
which is adequate to protect such person for one hour or
longer.

70

Cb) Before any miner employed by the operator or visitor
authorized by the operator goes underground the operator
shall instruct and train such person in the use and
location of the self-rescue device or .devices made available at the mine. Instruction and training of miners and
visitors shall be in accordance with provisions set forth
in 30 CFR Part 48.
Stipulation
At the commencement of the hearing the parties stipulated as
to the admissibility of certain documents and factors relating to
the assessment of a civil penalty (Tr. 4-7).
Findings of Fact
The Secretary's evidence shows that on October 8, 1987 MSHA
Inspector Robert L. Huggins tested 15 miners at the Deer Creek
Mine to determine if they were properly trained in the use of
self contained self rescue devices CSCSR's> (Tr. 18-23). The
miners, selected at random, were quizzed by the inspector from a
list of structured questions prepared by MSHA's administrator
(Tr. 21-24; Ex. P2).
Before he interviewed the miners the inspector reviewed the
MSHA memorandum which contains instructions for scoring the
results (Tr. 23, 26).
When the inspector found that three of the fifteen miners
did not pass the test he issued a citation to UP&L. He believed
the three miners were not properly trained on the SCSR storage
plan and did not know how long the SCSR would last before
exhausting its supply of oxygen (Tr. 45, 49, 54).
The inspector agreed that MSHA's ETS (emergency temporary
standard), adopted June 30, 1987, does not refer to the storage
plan or the amount of time available when the SCSR is used (Tr.
70}.
As a result of his quiz the inspector failed Eddie Wall
(shear operator), Eddie Johnson (laborer) and Gordon Ungerman
(head gateman on the longwall) because they had two questions
wrong. (Tr. 56, 84; Ex. P2, P4, PS, P6).
The three miners could not answer the two following
questions: Cl) How far from an SCSR can you work while
underground? and (2) An SCSR provides protection from bad air for
at least how long?
If one question is incorrect a miner could score a 40.
If
two questions were wrong a miner could score 30. However, the

71

scoring instructions provide that if a miner misses more than two
interview questions he fails the test (Tr. 85, 86). The
inspector had some difficulty with inconsistent instructions as
to the manner of grading the miners' answers Tr. 85, 90; Ex. P2).
If three people failed out of fifteen this would be an 80
percent passing rate (Tr. 94).
When he interviewed the miners the inspector felt that Eddie
Johnson was 'really nervous; further, Eddie Wall may have gotten a
little nervous (Tr. 40, 41). Miner Ungerman indicated he should
have known the answers or retained the knowledge (Tr. 40).
A lot
of the miners (of those tested) did not know the SCSR storage
plan at the mine (Tr. 44).
UP&L's witnesses consisted of Terry L. Jordan, John Pressett
and Dave Lauriski.
JORDAN, UP&L's chief safety engineer and a person
experienced in mining and safety, has been involved with SCSR
devices since.they were required in the early 1980 1 s (Tr.
99-102).
Since 1986 there have been five or six nhands on" training
sessions.
Every aspect of the SCSR requirements, including the
storage plan of the devices and their duration, was covered
(Tr.105). When the miners received their annual refresher
training each of them was also given a map showing the location
of the SCSRs (Tr. 105}.
The annual refresher training is different from the special
"hands on" training given twice a year on the SCSRs. During the
annual refresher training the instructor demonstrates how to don
the SCSR. He also covers.the storage plan location and the
duration ·of the SCSR.
Training of this type took place in 1987
before the citation was issued. The class consisted of 15 to 20
miners (Tr. 105-107).
Previously several people, including an MSHA training
instructor, commended favorably on the quality of the training
(Tr. 108, 122).
Records reviewed by the witness contain summaries of the
training received by Johnson, Wall and Ungerman from 1987 before
the instant citation was issued (Tr. 120; Ex RlO). The summary
and the task training forms indicates the following training:

72

NAME
Eddie Wall

DATE
3/13/87

4/3/87

7/21/87

Eddie Johnson

INSTRUCTOR
TYPE OF TRAINING
Gary Christensen Hands on - Storage
plan & duration of
use, donning of
SCSR
Herman Nava
Annual Refresher Jon Pressett
Storage plan &
duration of use,
demonstration of
donning
Jon Pressett
Hands on storage
plan & duration
of use, donning of
SCSR.

7/27/87

Jon Pressett

9/25/87

Jon Pressett

Gordon Ungerman 3/6/87

4/3/87

7/21/87

Gary Christensen

Newly employed experienced miner,
hands on-storage
plan & duration of
use, donning of
SCSR
Annual refresher
storage plan,
duration of use,
demonstration of
donning.

Hands on-storage
plan & duration of
use, donning of
SCSR.
Herman Nava
Annual refresher
storage plan,
duration of use,
demonstration of
donning
Jon Pressett
Hands on-storage
plan & duration of
use, donning of
SCSR.
(Exhibit RlO)

13

Prior to rece1v1ng the instant citation the witness didn't
have any knowledge indicating the miners did not know the
location of· the SCSRs CTr. 123). They received maps showing the
location of the SCSRs throughout the mine (Tr. 123).
The witness admitted that Pressett, Christensen and Nava
were not included on the current valid training list but they
were qualified and their names had been submitted to MSHA (Tr.
147). MSHA had indicated if the names of the individuals doing
the teaching had been previously submitted they are approved with
retroactive effect. Exhibit R7 lists Pressett and Christensen as
approved instructors by a letter dated February 4, 1987 (Tr.
148-149; Ex. R7).
Witness JON PRESSETT, a UP&L safety engineer has been an
MSHA approved instructor since October 1979 (Tr. 152, 153).
The witness has done "hands-on" training with miners
throughout the mine (Tr. 155-159). Among other facets the
training also locates the storage plan on a mine-specific basis
(Tr. 160-163).
Initially maps were given out and later updated
when the belt lines were extended (Tr. 164).
The miners are instructed in the duration of the unit during
the "hands-on" training session (Tr. 164). In addition to "hands
on" training the company also gave annual refresher training
classes. At the annual sessions the storage plan was reviewed in
detail and maps were distributed. Team competition and multiple
choice tests were used to determine whether the miners had
absorbed the information ,(Tr. 166-168).
Pressett trained Eddie Wall and Gordon Ungerman in annual
retraining (Tr. 169, 170; Ex. Rl3t. Seven and one-half hours of
Ungerman's training was completed April 3, 1987 (Tr. 175). At
the time of the annual refresher training given to Wall and
Ungerman in April 1987 the storage plan with an exact map was
given the miners, also they discussed the donning of the unit (Tr.
177-178; Ex. Rll).
In a test given by UP&L miner Wall indicated
the SCSR could be used for 60 minutes.
In addition, he correctly
answered questions relating to the storage plan and the location
of the SCSRs underground (Tr. 181, 182).
Ungerman and Wall were in the same training class. Ungerman
in a test (by UP&L) correctly indicated the unit would last 60
minutes (Tr. 183, 184).
When Ungerman and Wall completed their SCSR training on
April 3, 1987 they were both knowledgeable in the location of the
equipment and the duration of its use. The UP&L tests also
establish these facts (Tr. 186).
The witness also trained Eddie Johnson who received newly
employed miner training as well as an annual retraining class

(Tr. 193-195). The training of experienced newly rehired miners
includes instructions in the storage plan and locations of the
units (Tr. 195). Eddie Johnson was also given a map showing.
where the uni ts are stored underground (Tr.. 196). Johnson didn't
have any particular problems at the end of the training session
(Tr. 198; Ex. Rl6).
He was knowledgeable in the location, storage, duration and
care of the SCSRs (Tr. 202). Miners returning to work received
double training if they have been off a year or more {Tr. 200;
Ex. Rl8).
DAVE LAURISKI, UP&L's director of safety and training, is
responsible for compliance with all provisions of Title 30 C.F.R.
(Tr. 226, 227).
The company conducted "hands-on" training for the emergency
SCSR regulation.
In 1987 the employees were trained three
separate times (Tr. 230).
It is common that the company's list of MSHA approved
instructors is not up to date on a daily basis. When MSHA orally
approves an instructor his name is not entered on the training
plan until the next update (Tr. 233, 234).
Discussion
The rule of law is clear: in interpreting a regulation it is
necessary to give effect to the plain meaning of its words.
Diamond Roofing Co., Inc., v. OSHRC, 528, F.2d 645, 649 (5th Cir.
1976); Usery v. Kennecott Copper Corp., 577, F.2d 1113, 1119
{10th Cir. 1977); KCMC, Inc., v. FCC, 600 F. 2d 546, 549 (5th
Cir. 1979).
In the instant case 30 C.F.R. 75.1714(b) requires an
operator to "instruct~/ and train 2/ in the use of SCSRs. The
evidence shows that UP&L did "instruct and train" its miners and
particularly miners Wall, Johnson and Ungerman.
In fact, the
evidence is uncontroverted that UP&L's instructions and training
exceeded MSHA's requirements~/ (Tr. R9-Rl4, Rl6-Rl8).

ll

Instruct, to give knowledge or information to; Webster's New
Collegiate Dictionary, 1979 at 594.
2/ Train: to form by instruction discipline or drill; Webster's
New Collegiate Dictionary, 1979 at 1229.
3/ UP&L instituted "hands-on" training for all of its miners
over one year before such training was mandated by law (Tr. 130,
131, 229). UP&L emphasizes to all of its miners that any miner
may seek individual. instruction on proper donning procedures at
any time from the safety department or he may simply practice
donning an SCSR at any time at the safety department (Tr. 193).

75

It is the Secretary's position that UP&L failed to adequately train miners Wall, Johnson and Ungerman in the use and
location of the SCSRs and therefore violated 30 C.F.R.
75.1714(b)

s

The Secretary's approach of interviewing miners to test
their knowledge certainly probes the extent to which the operator
has instructed its miners. But the Secretary's argument cannot
prevail.
On the record presented here the failure of Wall,
Johnson and Ungerman to demonstrate their knowledge in a more
persuasive fashion does not establish that UP&L violated the
regulation.
Specifically, the regulation does not require that miners
demonstrate their knowledge of inf orrnation relating to the use
and location of SCSRs, either at the time of the training or at
some later time.
In other situations the Secretary has mandated that
k_nowledge requirements be demonstrated. For example: 30 C.F.R.
§. 48. 7Cb) requires that "miners .•• shall not operate the
equipment ... until such miners have demonstrated safe operating
procedures .•. "; further, 30 C.F.R. § 75.153Ca)(3) [in electrical
work] requires " •.. he attains a satisfactory grade on each of
the series of five written tests ••• "; further, in 30 C.F.R.
S 77.102 [tests for methane, etc] " ••• no person shall be a
qualified person for testing for methane .••• unless he has
demonstrated ... "; further, 30 C.F.R. § 57.19096 [familiarity
with signal code] requires " ••. person responsible ••• shall be
familiar with the posted signaling code".
When § 75.1714 is read in conjunction with 30 C.F.R. Part 48
it is apparent that the regulations contain a comprehensive
framework for miner training programs covering the range from new
miner training to hazard training.
However, the regulations are
conspicuously silent as to what constitutes "adequate" training.
This qualitative judgment is apparently left to the discretion of
the operator who would be more familiar with specific conditions
in its mines and the training needs of its work force.
However, for the reasons stated above, I conclude that UP&L
did "instruct and train" its miners within the meaning of
S 75.1714. Accordingly, it follows that the citation should be
vacated.
UP&L raises additional issues concerning the Secretary's
guidelines for scoring the answers to the interview questions,.
and concerning an appropriate remedy for the violation of a
training plan.
However, inasmuch as UP&L has prevailed on the
merits, it is not necessary to review these secondary issues.

76

For the foregoing reasons I enter the following:
ORDER
Citation No. 3044971 and all penalties therefor are VACATED.

Law Judge
Distribution:
Susan J. Bissegger, Esq., Office of the Solicitor, U.S. Departof Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
m~nt

Thomas C. Means, Esq., Ann R. Klee, Esq., Crowell & Moring, 1001
Pennsylvania Avenue, N.W., Washington, D.C.
20004-2505
CCe.rtif ied Mail>
/bls

11

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

JAN 13 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

..
...
.
.

CIVIL PENALTY PROCEEDINGS •
Docket No. WEST 88-21
A.C. No. 05-03455-03554
Docket No. WEST 88-52
A.C. No. 05-03455-03555

ENERGY FuELS COAL, INC.,
Respondent

Southfield Mine
DECISION

Appearances:

James H. Barkley, Esq., Robert J. Murphy, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Respondent.

Before:

Judge Cetti

These cases are before me on petition for civil penalty
filed by the Secretary of Labor, pursuant to Section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et ~, (the "ACT" > , charging the Energy Fuels Coal, Inc. ,
(Energy> with violating five certain mandatory regulatory
standards found in 30 C.F.R. and proposing certain civil
penalties for the alleged violations. Pursuant to notice, the
cases were set for hearing on the merits.
DOCKET No. WEST 88-21
This docket has four citations. Citation No. 2839449
alleges a significant and substantial violation of 30 C.F.R.
§ 75.1105.
Citation Nos. 2839451 and 2839452 allege violations
of 30 C.F.R. § 75.323 and Citation No. 2839454 alleges a wire
bushing violation of 30 C.F.R. § 75.505.
After taking several hours of testimony there was a recess
during which the parties discussed settlement. On the record
counsel for the Secretary advised that due to the insufficiency
of the evidence the Secretary moved to vacate Citation No.
2839451 and 2839452, there was no objection to the motion and the
motion was granted.

78

With respect to Citation No. 2839449 the Secretary moved to
amend the citation to delete the allegation characterizing the
violation as "significant and substantial".
Respondent in turn
withdrew its notice of contest to that citation as amended and
agreed to pay the $85.00 original proposed civil penalty.
Counsel for the Secretary stated that the gravity of the violation was less than originally assessed.
With respect to Citation No. 2839454 alleging a wire into a
junction box was not properly bushed, the respondent withdrew its
notice of contest to the citation and to the Secretary's original
proposed civil penalty.
Citation Nos. 2839451 and 2839452 allege a violation of 30
C.F.R. § 75.323 which requires certain reports to be countersigned "promptly" by the mine foreman.
After taking considerable
testimony the Secretary moved to vacate the Citation Nos. 2839451
and 2839452.
There was no objection and the motion was granted.
DOCKET NO. WEST 88-52
Citation No. 2939404 alleges a violation of 30 C.F.R.
§ 77.700 which requires grounding of metallic sheaths, armors and

conduits enclosing power conductors. The respondent moved to
withdraw its contest to the alleged violation and the Secretary's
proposed penalty. There was no objection and the motion was
granted.
ORDER
Citation No. 2839449 as amended to delete -the S&S
characterization and Citation Nos. 2839454 and 2939404 are
affirmed. Citation Nos. 2839451 and 2839452 and their related
proposed penalties are vacated. Energy Fuels Coal Inc. if it has
not already done so is directed to pay civil penalties in the sum
of $125.00 within 30 days of the date of this decision.

Judge

79

Distribution:
James H. Barkley, Esq., Robert J. Murphy, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80294 (Certified Mail)
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1100, Denver, CO 80290-1199 (Certified Mail)
/bls

so

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

JAN 17 1989
GERARD SAPUNARICH,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. YORK 88-29-DM

LEHIGH PORTLAND CEMENT COMPANY,
Respondent

MD 87-56
:
:

Cementon Plant and Quarry

DECISION
Appearances:

Robert G. Rothstein, Esq., Meranze and Katz,
Philadelphia, Pennsylvania for Complainant;
Thomas Connolly, Esq., McNamee, Lochner, Titus
& Williams, P.C., Albany, New York for
Respondent.

Before: Judge Melick
This case is before me upon the Complaint by Gerard
Sapunarich under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et se9., the "Act,"
-alleging that he was suspended from his job without pay by
Lehigh Portland Cement Company, (Lehigh) in violation of
section 105(c)(l) of the Act.~/

~/

Section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other . mine subject to
this Act because such miner, representative of
miners or applicant for employment, has filed or
made a complaint under or related to this Act,
including a complaint ' notifying the operator or the
o~erator's agent, or the representative of the
miners at the coal or other min~ of an alleged
danger or safety or health violation in a coal or
other mine or because such miner, representative of
miners or applicant for employment is the subject

Sl

In particular Mr. Sapunarich alleges that he was the
Miner Safety Representative during relevant times and that in
that capacity reported various health and safety violations
from February 3, 1983, through September 11, 1987, to both
officials of the Federal Mine Safety and Health
Administration (MSHA) and of the mine operator. He alleges
in his complaint that "on Friday, September 11, 1987, John
Jones [plant manager] and I had a very heated discussion in
the Control Room about the dust problem in the dust building
that was still going on from the previous day. As a result I
have been written up for insubordination and it was put in my
file, also I have been suspended without pay."
Lehigh admits that Sapunarich was suspended for three
days without pay but maintains that the suspension was not in
any way motivated by his complaints about the dust situation
but rather was based solely upon threatening and abusive
language directed to Plant Manager John Jones during the
confrontation on September 11, 1987, in the control room.
In establishing a prima facie case of discrimination
under section 105(c)(l) of the Act the Complainant must prove
that (1) he engaged in a protected activity, and (2) the
adverse action complained of was motivated in any part by
that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800, (1980),
rev'd on other grounds sub nom. Consolida~ion Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18,
(1981). The Respondent mine operator may rebut the prima
facie case by showing either that no protected activity
occurred or that the adverse action was not motivated in any
part by protected activity. If an operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that (1) it was also motivated by
the miner's unprotected activities, and (2) it would have
taken the adverse action in any event for the unprotected
(footnote 2 continued)
of medical evaluations and potential transfer under a
standard published pursuant to section 101 or because such
representative of miners or applicant for employment has
instituted or caused to be instituted any proceedings under
or related to this Act or has testified or is about to
testify in any such proceeding, or because of the exercise by
such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory
right afforded by this Act.

82

activities alone. The operator bears the burden of proof
with regard to the affirmative defense. Haro v. Magma Copper
Co., 4 FMSHRC 1935, 1936-38, (1982).
It is undisputed in this case that th~ Complainant had
been an active and effective miner safety representative at
the Cementon Plant for many years preceding the incident in
question. He was and is highly regarded by both wage and
salaried workers.
Indeed Donald Reid the Cementon Plant
Safety and Training Supervisor testified that Sapunarich
had a genuine concern for miner safety and did an excellent
job as.safety representative.
It is further undisputed that shortly before the
critical September 11, 1987, confrontation at issue herein,
Sapunarich made several specific complaints involving health
and safety. On at least one occasion he complained to Plant
Manager John Jones about foreign cement bags that were
exploding. Moreover, only two days before the confrontation
he complained to Company Supervisor Ron Dumond about
excessive dust emanating from the precipitator building. On
the following day he complained about the dust to the New
York State Department of Environmental Conservation and to
the local off ice of the Federal Mine Safety and Health
Administration CMSHA).
Sapunarich arrived at the plant at around 6:30 a.m. on
September 11, 1987, and found that the dust problem had still
not been corrected. After checking at the laboratory he
pcoceeded to the control room where he met Jones. The
subsequent events were described by Sapunarich in the
following colloquy at hearing:

Q.

(By Complainant's Counsel) When you got
finished coversing with Mr. Goff did you
have any conversations with Mr. Jones?

A.

Yes.

Q.

Did you address him, or did he address you?

A.

He said good morning to me.

Q.

What did you say, if anything?

A.

I said, "What is so good about it?" He
said,
"What is the problem?" I said, "The
problem is you got a pretty bad dust
condition here and it doesn't seem as if
anybody is doing anything about it," and he

83

said,
"Well, I am doing the best I can,"
and I said, "Evidently the best you can is
not good enough because i~ is still not
corrected," and he said, "Well, what do you
want me to do, wave a fucking mag~c wand?"

Q.

He said what?

A.

He said, "What do you want me to do, wave a
fucking magic wand or I don't have a
fucking magic wand." I think that was it,
"I don't have a fucking magic wand." I
slapped the top of the desk and told him, I
said, "I would like to choke you. You are
the worst plant manager I have ever had to
deal with. You don't give a shit about the
people that work.here at the plant, and you
don't care about the people of Cementon,"
and we were both talking at the same time
or rather arguing.

Q.

Was that the extent of the conversation?

A.

Well, it was more than that.
I told him
about the men's vehicles out in the parking
lot and that there was no consideration for
those vehicles out there. Some people had
automobiles and trucks out there worth
eighteen/nineteen thousand dollars and that
nobody seemed to care about them, and that
as far as the men go I told him that I
requested that nobody be sent into that
building under those conditions and nobody
seened to care. They still sent two
laborers in there the night before, and it
just seemed that no matter what we were
complaining about this month that nobody
was listening.

Q.

How far away from Mr. Jones were you
standing -- or were you standing when you
had your conversation with Mr. Jones?

A.

We were on opposite sides of the control
room panel.

Q.

Were you standing?

A.

It is not just a desk; it is a desk with
big wings on it because there is controls

134

on both sides. So he is standing about in
this alleyway over here (indicating), and I
am where I am at, and there is a desk
between us about that big (indicating), but
it has got big wings on it with hig_h panels
on it (indicating).

Q.

Could you estimate how far away you were?

A.

I was from him?

Q.

Yes.

A.

Straight across?

Q.

Yes.

A.

Five/six foot.

(Tr. 58-61).
Floyd Falk the control room operator, was also
present at the time of this confrontation.
He generally
supports the Complainant's version except he did not
recall hearing the Complainant say that he would like to
get his hands around Jones' neck.
Robert Hinckley, also
testifying on behalf of the Complainant, was also in the
control room at the time of the confrontation. He too
generally supports the Complainant's version on the
confrontation and further noted that "both [Sapunarich
and Jones] were loud and neither was holding anything
back".
Plant Manager John Jones reported the confrontation
_
somewhat differently.
He noted the events leading up to the
confrontation and the confrontation itself in a memorandum
prepared later the same day.
It reads as follows:
We were experiencing problems with the kiln dust
handling system on 9/10/87. The elevators and
conveying system were dusting and the dust appeared
to be difficult to handle. we were not sure of the
cause, but proceeded to inspect the precipitator,
dust handling system, 02 analyzer and everything we
could associated (sic) with the process. We also
called the local DEC (New York State Department of
Environmental Conservation) Inspector and informed
him of our problem and that we were attempting to
resolve the situation.

85

Late in the day of 9/10/87 we decided that the dust
handling system was not at fault and we decided
that maybe the surry thinner we had used was
causing the problem. In order to verify that, we
decided to switch basins (kiln feed) but had to
wait until sufficient quantity was on hand to make
the switch. We made the switch at 7:00 AM on
9/11/87.
At approximately 7: 30 AM, 9/11/87, G. Sapunarich.,
Lubricator, came into the Control Room and was
discussing the situation with J. Goff, M & E
Repairman.
Jones:

"Good Morning, Gerry."

Sapunarich:
Jones:

"It isn't a very good morning."

"Why not?"

Sapunarich:

"Because of the Dust Situation."

Jones:
"We have been trying to resolve the
proble [sic]. we inspected the elevator,
precipitator, and screws. We have been checking
out the process equipment. We are not sure what
the problem is."
Sapunarich: "That's not good enough, 24 hours is
long enough to resol~e the problem. I intend to
call DEC and report this situation."
Jones:
"DEC was contacted and informed of the
problem. We are now changing slurry basins to see
if that resolves the problem. Maybe the slurry
thinner is causing the problem. I don't know, we
are trying syst~natically (sic) eliminate the
possibili~ies."

Sapunarich: "DEC doesn't react to these problems
and neither do you. I am concerned about the
residents of Cementon and all the dust they are
exposed to. I am building a home and have a new
car that is being ruined. I am not getting any
cooperation from you or the local DEC. I intend to
call Schenectady to get some action."
NOTE: As Sapunarich is speacking, [sic] he is becoming
increasingly agitated and loader [sic].

86

Jones:
"Do what you feel you have to do, but in
the meantime, go back to your job and do the work
you are getting paid to do."
NOTE: At this point Sapunarich pounded_ the table
and leaning (sic) across the Control Room table
with arms extended:
Sapunarich: "I would like to grab you by the neck."
You don't give a fuck about the dust situation.
I'll get you 'off' the plant property."
NOTE: At this point, I explained again the steps we
were taking to resolve the problem.
Jones:
"I have no magic wand. Do you have any
idea what is causing the problem?"
Sapunarich:
my windows.

"You are ruining my house, my car and
I'll get you off the plant property."

NOTE: At this point I became very upset and told
Sapunarich very loudly:
Jones:
"Don't you ever threaten me.
stop you may lose your job."

If you don't

Sapunarich: (Very loud and threatening) "I'll get
you 'off' the plant property.
If you're going to
fire me, do it."
NOTE: At this point Sapunarich left the Control Room.
(See Exhibit R-13).
David Mower a Process For~nan at the Lehigh Cementon
Plant was also in the Control Room during the confrontation.
His testimony generally supports Jones' version of the event
and in particular corroborates that the Complainant
threatened Jones with bodily harm off the plant property.
In particular Mower recalled that Sapunarich "pounded the
table shouting more threats of bodily harrn off company
property and it looked very much like he would .•. carry out
his threat right there."
(See Exhibit R-2).
In evaluating the evidence concerning the critical
events at the confrontation between the Complainant and Plant
Manager Jones on September 11, 1987, I give particular weight
to the testimony and contemporaneous statements of Jones and

87

Mower. These witnesses were the only ones to have made
notes closely following the event and which fully support
their testimony at hearing. It is also significant that the
Complainant also admits slapping the desk in front of Jones
and threatening that he would like to choke .him.
Within this framework I find that Jones' statement most
accurately represents what happened at the confrontation. It
is therefore clear that the Complainant did in fact use
threatening language toward Jones. These actions clearly
constituted grounds for disciplinary action, including
suspension, set forth in Lehigh's rules of conduct (Exhibit
R-8, !·8) and therefore provided a legitimate business-related
grounds for the Complainant's three day suspension.
While it is clear that both before and during the
confrontation the Complainant also made safety and health
related complaints concerning the dust and other problems at
the plant, activities clearly protected under the Act, the
Act does not grant miners immunity from discipline if in
conjunction with these protected activities they threaten
other miners. Considering the credible evidence in this case
I do not find that the disciplinary action taken was in
retaliation for any health or safety complaints but was
proportionate to and directly related to the threats to the
plant manager.
In reaching this conclusion I have also
considered that while Sapunarich had for years been an active
miners safety representative there is no credible evidence of
any retaliation by Lehigh for such activities over the years.
Indeed I find no credible evidence of any anti-safety animus
on the part of Lehigh.
I have also not disregarded the
evidence of other incidents involving profane and abusive
language at the Cementon Plant. None of those incidents
however involved direct threats of such a personal, immediate
and serious nature ~s in this case. Accordingly I find that
while the Complainant herein did engage in protected activity
and suffered adverse action, the Respondent has demonstrated
that the adverse action was not motivated in any part by the
protected activity. This case must there ore be di7i!ssed.

l1

~

(j'·

, tt\ J L.(,, ·.A_~

GJry M~l.i'ck / \\ ·.,·
\__,
Atlminis\trative \Law Judge
(703) 7~6-6261 \

88

..

Distribution:
Robert G~ Rothstein, Esq., Meranze·and Katz, Lewis Tower
Building, N.E. car. 15th & Locust St., Philadelphia, PA
19102 (Certified Mail)
Thomas P. CQnnolly, Esq., McNamee, Lochner, Titus & Williams,
P.C., 75 State Street, P.O. Box 459, Albany, NY 12201-0459
(Certified Mail)
ml

89

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

JAN 19 1989
MATHIES COAL COMPANY,
Contestant

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.
MATHIES COAL COMPANY,
Respondent

CONTEST PROCEEDING

.

Docket No. PENN 88-36-R
Order No. 2936667; 10/6/87
Mathies Mine

..
..

CIVIL PENALTY PROCEEDING
Docket No. PENN S8-154
A.C. No. 36-00963-03684
Mathies Mine

DECISION
Appearances:

Before:

Anne Gwynne, Esq., U.S. Department of Labor,
Office of the Solicitor, Philadelphia,
Pennsylvania, for the Secretary;
Joseph Mack, III, Esq., Thorp, Reed & Armstrong,
Pittsburgh, Pennsylvania, for Mathies Coal Co.

Judge Maurer
STATEMENT OF THE CASE

Contestant, Mathies Coal Company (Mathies) has filed a
notice of contest challenging the issuance of Order No. 2936667
at its Mathies Mine. The Secretary of Labor (Secretary) has
filed a petition seeking civil penalties in the total amount of
$1100 for the violation charged in the above contested order as
well as another violation charged in Citation No. 2939096 which
was not separately contested, but which violation is generally
denied by Mathies.
Pursuant to notice, the cases were heard in Washington,
Pennsylvania on July 21, 1988. Both parties have filed
post-hear.ing proposed findings of fact and conclusions of law,
which I have considered along with the entire record herein. I
make the following decision.

90

STIPULATIONS
The parties stipulated to the following which I accepted
(Tr. 5-8) :
1. This Administrative Law Judge has jurisdiction over this
proceeding.

2. The Mathies Mine and Mathies Coal Company are owned and
operated by the National Mine Corporation.
3. The Mathies Mine and Mathies Coal Company and National
Mine Corporation are subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977.

4. Citation Number 2939096 and Order Number 2936667 were
properly served by a duly authorized representative of the
Secretary of Labor upon an agent of the Respondent at the date,
time, and place stated therein.
5. Copies of Citation Number 2939096 and Order Number
2936667 are authentic and may be admitted into evidence for
establishing issuance.
6. The assessment of a Civil Penalty in this proceeding
will not affect the Respondent's ability to continue in business.
7. The annual coal production of Mathies Mine in 1986 was
116,521 tons.
8. There was no intervenin9' clean inspection between
June 15, 1987, when Order Number 2940594 was issued and
October 6, 1987, when Order Number 2936667 was issued.

9. The printout of the Assessed Violations History ~eport
is a true and accurate history for the Mathies Mine and
admissible in the hearing in this matter.
10. There were approximately 686 inspection days at the
Mathies Mine in the twenty-four month period prior to the
issuance of Ordee Number 2936667 and Citation Number 2939096.
ISSUES
The general issues before me concerning these cases are
whether the ceder at bar was properly issued, whether there were
violations of the cited standards, and in the case of the ceder,
whether that violation, if it existed, was "significant and
substantial" and caused by the "unwarrantable failure" of the
mine operator to comply with that standard as well as appeopriate

91

civil penalties to be assessed for the violations, should either
or both be found.
I.

Citation No. 2939096

Citation No. 2939096, issued pursuant to section 104(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seg. (the Act), alleges a violation of the regulatory standard
at 30 C.F.R. § 50.20 and charges as follows:
"The operator
failed to report the accident that occurred to John Cherok on
May 1, 1986 on MSHA Form 7000-1."
30 C.F.R. § 50.20 requires operators to report, inter alia,
each occupational injury which occurs at the mine on a Form~~
7000-1 within ten ClO) working days after such an accident
resulting in ~n "occupational injury" to a miner occurs.
"Occupational injury" is defined in 30 C.F.R. § 50.2(e) as "any
injury to a miner which occurs at a mine for which medical
treatment is administered, or which results in death or loss of
consciousness, inability to perform all job duties on any day
after an injury, temporary assignment to other duties, or
transfer to another job."
The operator does not contest the fact that Mr. Cherok was
injured, but disputes whether that injury occurred "at the mine".
The point being if he incurred the injury elsewhere, it is not a
reportable injury.
The only direct evidence of when, where and how the injury
occurred comes from Mr. John Cherok, himself. He testified that
on May 1, 1986, while worki.ng as a motorman in the supply yard of
the Mathies mine, his right foot slipped as he stepped up onto
the motor. His right shoe must have had some oil or grease on it
he assumes and when he stepped up wi'th his right foot, he slipped
off the smooth, metal step and came down off to the left of the
motor where his left knee hit the rail. He experienced an
immediate sharp pain, but by the time he came out of the mine, it
was gradually easing. This injury occurred shortly before Cherok
left the mine and he did not report it to anyone prior to his
departure.
He explains this by stating that because he was
working overtime, his'- ,shift foreman was already gone and the
midnight shift foreman was' already inside the mine.
Cherok was not scheduled to work the next day, May 2, and
while his knee bothered him somewhat, he did not yet consult a
physician. On May 3, the pain increased as the day wore on.
By
May 4, he could hardly walk and that evening for the first time,
he consulted a physician at the Mon Valley Hospital. He was
referred to his family physician from there.

92

Sometime late in the evening of May 4, Cherok for the first
time notified the mine operator of the injury to his knee and· of
the circumstances of its occurrence.
On May 5, 1986, Cherok went to see his family physician and
was referred on to a Dr. Frame, an orthopedi·c specialist.
Dr. Frame diagnosed Cherok's injury as a torn collateral ligament
with a contusion and sent him to a Dr. Bradley for whirlpool
treatments which he received over the following five week period.
Also on May 5, Cherok stopped by the mine and told Tom
Hudson, Manager of the Industrial Relations Department that his
knee injury had occurred at the mine on May 1 and that he would
be off for a while on doctor's orders until his knee healed.
"Medical treatment", which if administered, renders an
injury an "occupational injury" and thus reportable to MSHA, is
distinguished from "first aid" by 30 C.F.R. § 50.20-3(a) and
specifically includes whirlpool treatments.
It is undisputed that Cherok lost work time due to his
injury between May 5 and June 6 of 1986.
It is also undisputed
that Cherok received medical treatment for his injury.
Therefore, the only question that remains is whether that injury
occurred at the mine. If it did, it is acknowledged that Mathies
did not file the required Form 7000-1 within ten (10) working
days of the injury as required by the cited regulation.
It is my impression that management at Mathies simply did
not believe and does not believe Cherok's version of how he came
to be injured. Mr. Dunbar, Mathie's Manager of Safety, opined
that based upon his experience with and examination of the type
of locomotive which Cherok was operating, the injury to Cherok's
knee could not have happened as Cherok claims because of the
relative positions of the locomotive's step and the rail upon
which Cherok claimed to have fallen.
As Cherok was alone at the time he alleges he was injured,
there were no witnesses called by either side to directly
corroborate or refute his version of the accident. Therefore,
the issue of Cherok's credibility becomes paramount to the
critical findings of fact in this case. To begin with, there is
no countervailing explanation of how he injured his knee although
Mathies seems to suggest that the long weekend of May 2-4
provided ample opportunity for him to do just that.
However,
there is no evidence to that effect. Furthermore, I do not find
Mr. Dunbar's opinion that the accident as described by Cherok was
"practically impossible" to be persuasive.
I do find that
Mr. Cherok's testimony hangs together well and I do credit it.
I
also find that his actions during the May 1-5, 1986 period were

93

reasonable with regard to the timing of reporting the situation
to Mathies as well as his seeking out medical assistance as the
injury became increasingly painful.
Based on the foregoing findings and co~clusions, I find that
the Secretary has established a violation of ·30 C.F.R. § 50.20,
as alleged.
Mathie~' notion that this citation was issued prematurely in
September of 1987 for a May 1, 1986 injury because the operator
was initially waiting for the results of a worker's compensation
case and after the decision was issued in the claimant's favor,
the citation was then issued one day before the time for
appealing that ruling had expired is rejected.

I also concur in the "high" negligence finding made by the
inspector in this instance. Mathies had all the salient facts
available as early as May 5, 1986 had they chosen to believe Mr.
Cherok. This was well within the ten working days stipulated by
the regulation.
But even more telling in this case is the fact
they did not report the injury even after receiving the
unfavorable workmen's compensation decision in August of 1987,
essentially affirming Cherok's version of the accident.
On cross-examination, Mr. Dunbar admitted that the operator
has never had any evidence that Mr. Cherok injured his knee in
any other way than in the manner in which he described it. That
being the case, the operator proceeded at its peril by not filing
the required form within the 10 working days time limit
prescribed in the regulation should their position not ultimately
be upheld.
II.

Order No. 2936667

Order No. 2936667, issued pursuant to section 104(d)(2) of
the Act alleges a violation of the regulatory standard at 30
C.F.R. § 75.400 and charges as follows:
The operator failed to comply with the clean-up program
in the lLT of 2 West Section MMV 065. As there was
accumulation of float coal dust black in color allowed
to accumulate in the following locations:
Cl) From
section loading point at 5 + 99 in the No. 1 Entry
Return Escapeway extending outby for approximately 600
feet.
(2) From 5 + 99 No. 1 Entry entending inby for
approximately 600 feet.
(3) Also in No. 1 Entry the
bleeder entry around the lLT Section from surveyor
station 31 + 20 to 35 + 26.
(4) Also in No. 10 Entry
bleeder entry from surveyor station 36 + 47 to 41 + 28.
The float coal dust was deposited on a rock-dusted

94

surf ace of the mine floor for the width of the entry in
all locations.
30 C.F.R. § 75.400 provides as follows:
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
accumu~ate in active workings, or on electric equipment
therein.
MSHA Inspector Francis Wehr issued the instant order during
an inspection of the Mathies mine on October 6, 1987. He was
accompanied at the time by Ray Kocik, a Mathies safety inspector
and Joseph Delisio, a union safety co11unitteeman.
He observed an accumulation of dry float coal dust in the
No. 1 Entry Left Return Escapeway, which is a return escapeway
for the 1 Left 2S Section, black in color on the mine floor,
approximately 600 feet in length covering the entire width of the
entry. In the inspector's opinion, based on his training and
experience in the mining industry, this condition would have
taken anywhere from 1-3 days to accumulate. The inspector also
testified that this area was an active working part of the mine
and required a preshift examination for hazardous conditions and
violations of the mandatory health and safety standards.
A second area of dry float coal dust accQmulation from
Surveyor Station 7 + 80 to 5 + 99 in the No. 1 Entry Left Return
Escapeway was observed for approximately 200 feet in an active
working part of the mine for the width of the entry. This area
as well required a preshift examination.
In Mr. Delisio's
opinion, based on his experience as a preshift examiner himself
and his service as a safety committeeman, he estimates this
accumulation had existed for a minimum of two days.
The inspector observed a third area of black float coal dust
accumulation in the bleeder travel entry from Surveyor Station 31
+ 20 to 35 + 26, approximately 400 feet in length and as wide as
the entry. The inspector estimated that float dust would have
taken a matter of days to accumulate. ~his particular area
requires a weekly examination for methane b 11ildup and to check
the bleeder system.
A similiar accumulation of float coal dust was present
according to the inspector in the bleeder entry from Surveyor
Station 36 + 47 to 41 + 2a. The float dust in this area had
accumulated in the entire width of the entry and was
approximately 500 feet in length.
Once again, the inspector

95

opined it had taken several days to accumulate to that extent and
he also testified that this was a weekly examination area.
At the time the subject order was issued, there was a
loading crew of eight or nine men preparing t9 load coal in the 2
west Section MMV 065, and there was electrical equipment in the
section as well as a non-permissible coal feeder at 5 + 99. This
equipment was as close as 60 or 70 feet away from the left
return, although there was no electrical equipment actually in
the return.
Mr. Delisio, the union safety committeeman, testified at
some length and essentially corroborated Inspector Wehr's
testimony on every major point. Specifically, his testimony
tracked the inspector's with regard to the extent and color
(black) of the float coal dust and the fact that it was dry in
most places. He also agreed with the inspector that the
violations were obvious.
The operator's main contention and defense in this case is
that the float dust accumulations in the four aforementioned
cited areas were not black. They were gray and it was not as
dangerous a condition as Wehr and Delisio allege it to be.
However, as correctly pointed out by the Secretary, the only
company witness who observed the first two of the above four
areas, the two in the return escapeway prior to the commencement
of abatement was Mr. Kocik, and much of his testimony focused on
the fact that he felt Inspector Wehr had included both the right
and left return escapeways in his closure order. The fact is the
right return escapeway was not included in the order and I find
the whole point of the testimony largely irrelevant to the
inquiry at hand.
No other witnesses saw the two areas in the return escapeway
prior to partial abatement of the conditions because as soon as
the order was issued, miners began dragging the return entry. It
was only after the return entry had been dragged that Messrs.
Karaysia and Dunbar observed the conditions extant there, and
Mr. Karaysia allowed as how there may have been a violation in
the left return entry.
In finding a violation herein of the cited standard, I am
making a credibility choice in favor of the testimony of
Inspector Wehr and Mr. Delisio over that of Mr. Kocik.
I
observed the.demeanor of these three witnesses at the trial and I
believe that all three believe in the truthfulness of their
testimony and the justness of their point of view.
I also
believe, however, that Mr. Kocik has taken the issuance of this
particular order as a personal affront and his admitted anger
over it has clouded his judgment. In any event, I find the

96

testimony of the inspector, which is corroborated on every
important point by that of Mr. Delisio, to be cogent and credible
and I do credit it entirely on the issue of the violation itself.
A "significant and substantial" violation is described in
section 104Cd)(l) of the Act as a violation "of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A
violation is properly designed significant and substantial "if,
based upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reaonsably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission
explained its interpretation of the term "significant and
substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
Cl)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104Cd> (1), it is the contribution of a
violation to the cause and effect of a 'hazard that Mining
Company, Inc., 6 FMSHRC 1573, 1573, 1574-75 (July 1984).
To begin with, it is necessary to differentiate between the
two areas in the return escapeway which I conclude represent
a "significant and substantial" CS & S) violation of the
mandatory standard and the .two cited areas in the bleeder
which I conclude are not S & S.

97

Inspector Wehr himself testified that reasonable people
might even disagree that a violation existed in the third area of
the bleeder (#3 on JX-1) because it was wet in places and not- as
black as the other three areas. ,On cross-examination, when asked
about ignition sources for the bleeder areaa,_ the following
exchange took place at Tr. 123:

Q.
A.

What was the closest electrical equipment or
other sources of ignition from the- bleeder
areas that were cited?
Clear back here (Indicating}.

Q.

At the face?

A.

Yes.

Q.

So, was there any significant chance that
anything in the bleeder would have been ignited
by anything at the working face?

A.

Not at that particular time.

Based on the entire record herein, I therefore conclude that
the violative conditions in the bleeder areas are not S & S
violations.
Conversely, with regard to the two areas in the return
escapeway, I find that it was reasonably likely that a spark from
the electrical equipment which was at one point only 60 or 70
feet away from the left return could have caused a fire or
explosion which in turn could readily have spread to the return
escapeway. The accumulated float coal dust in the escapeway
would have greatly intensified the fire and it is axiomatic that
a wide-spread fire or explosion would lead to a likelihood of
serious or even fatal injuries in the mine.
I therefore concur with the opinions of Inspector Wehr and
Mr. Delisio that the violation in those two areas was
"significant and substantial "and serious.
The Secretary further urges that this violation was caused
by the operator's "unwarrantable failure" to comply with the
mandatory standard, and I agree.
In Zeigler Coal Company, 7 IBMA 280 (1977), the Interior
Board of Mine Operations Appeals interpreted the term
"unwarrantable failure" as follows:
An inspector should find that a violation of any
mandatory standard was caused by an unwarrantable

98

failure to comply with such standard if he determines
that the operator has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have. known
existed or which it failed to abate be~ause of lack of
due diligence, or because of indifference or lack of
reasonable care.
The Commission has concurred with this definition to the
extent that an unwarrantable failure to comply may be proven by a
showing that the violative condition or practice was not
corrected or remedied prior to the issuance of a citation or
order, because of indifference, willful intent, or serious lack
of reasonable care. United States Steel Corp. v. Secretary
of Labor, 6 FMSHRC 1423 at 1437 (1984). And most recently, in
Emery Mining Corp. v. Secretary of Labor, 9 FMSHRC 1997 (1987),
the Commission stated the rule that "unwarrantable failure" means
aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act.
There is extensive testimony in the record concerning the
amount of time the float coal dust would have taken to accumulate
and the additional time the float dust must have been present
because mining had not been performed for several shifts at the
time the instant order was issued and the fact that the company
was required to perform preshift examinations in the two cited
areas in the return escapeway and therefore should be chargeable
with knowledge of the violative conditions, at the least.
Inspector Wehr estimated that the amount of float coal dust he
observed in the return escapeway would have taken one to three
days to accumulate. This estimate was concurred in by
Mr. Delisio.
Both Wehr and Delisio also testified to the
obviousness of the conditions. As the examinations were
mandatory and the conditions were obvious and had been in
existence for an extended period of time, Mathies demonstrated
aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act.
Accordingly, I conclude that this violation was caused by the
operator's "unwarrantable failure" to comply with the cited
mandatory standard.
CIVIL PENALTY ASSESSMENT AND ORDER
In assessing civil penalties in these cases, I have
considered all of the foregoing findings and conclusions and the
entire record, as well as the requira~ents of section llO(i) of
the Act, including the fact that the operator is large in size
and has a substantial history of violations. Under these
circumstances, I find that a civil penalty of $300 for the

99

violation cited in Citation No. 2939096 and $700 for the
violation cited in Order No. 2936667 are appropriate.
Citation No. 2939096 and Order No. 2936667 ARE AFFIRMED
and the Mathies Coal Company is hereby directed to pay a civil
penalty of $1000 within 30 days of the date of this decision.

Distribution:
Anne Gwynne, Esq., U.S. Department of Labor, Office of the
Solicitor, Philadelphia, Pennsylvania (Certified Mail)
Joseph Mack III, Esq., Thorp, Reed & Armstrong, One Riverfront
Center, Pittsburgh, PA 15222 (Certified Mail)
/ml

ioo

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

JAN 231989
PHYLLIS A. PALMIERI,
Complainant

:

DISCRIMINATION PROCEEDING

v.

:

Docket No. WEVA 88-305-D
MSHA Case No. MORG CD-88-10

SOUTHERN OHIO COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Maurer

By notice issued October 18, 1988, a hearing in the
above-captioned proceeding was scheduled to commence on
December 21, 1988, at 1:00 p.m., in Morgantown, West Virginia.
The complainant, however, failed to appear at the scheduled time
and place.
Accordingly, on December 29, 1988, an Order to Show Cause was
issued directing the complainant to explain within ten (10) days
why she should not be held in default for her failure to appear
at the scheduled hearing.
On January 11, 1989, a letter was received from the
complainant requesting approval to withdraw her complaint in the
captioned case. Under the circumstances herein, permission to
withdraw is granted. 29 C.F.R. § 2700.11. This case is
therefore dismissed.

Distribution:
Robert M. Steptoe, Jr., Esq., Steptoe & Johnson, 6th Floor; Union
National Center East, P.O. Box 2190, Clarksburg, WV 26302-2190
(Certified Mail)
Phyllis A. PalmieriT Esq., 1115 Washington Ave., Martinsburg,
West Virginia 15401 (Certified Mail)

101

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

JAN 2 5 1989
TUNNELTON MINING COMPANY,
Contestant

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

.
.
..

CONTEST PROCEEDING
Docket No. PENN 88-10-R
Citation No. 2881390; 9/10/87
Marion Mine
Mine I.D. No. 36-00929

DECISION
Appearances:

Joseph A. Yuhas, Esq., Ebensburg, Pennsylvania
for Contestant;
Evert VanWijk, Esq., Office of the Solicitor,
u. S. Department of Labor, Philadelphia,
Pennsylvania for Respondent.

Before: Judge Melick
This case is before me under section 105Cd> of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act, 11 for an expedited hearing to challenge the
validity of Citation No. 2881390 issued by the Secretary of
Labor against the Tunnelton Mining Company (Tunnelton) for
one violation of the standard at 30 C.F.R. § 75.305.
The citation, issued pursuant to section 104(a) of the
Act, alleges a "significant and substantial" violation of the
standard at 30 C.F.R. 75.305 and, as amended, ch~rges as
follows:
"[a] record of examination of the following main
return aircourse, east mains (right left side) sec~nd south
(right left side) are [sic] not being recorded in ~he
approved book in that these aircourse [sic] are not f>eing
examined for hazardous conditions."
The cited standard provides in relevant part as follows:
In addition to the preshift and daily examinations
required by this subpart D, examinations for
hazardous conditions, including tests for methane,
and for compliance with mandatory health or safety
standards, shall be made at least once each week by
a certified person designated by the operator in
••• at least one entry of each intake and return

102

aircourse in its entirety, idle workings, and,
insofar as safety considerations permit, abandoned
areas •••• A record of these examinations, tests
and actions taken shall be recorded in ink or
indelible pencil in a book approved b~ _the
Secretary kept for such purpose in an area on the
surf ace of the mine chosen by the mine operator to
minimize the danger of destruction by fire or other
hazard, and the record shall be open for inspection
by interested persons.
Since it is undisputed in this case that at least one
entry of the cited return air courses was not being examined
in its entirety (and no such examinations were being recorded
in the examination books) as required by the cited standard,
the violation is proven as charged. Even if the entries
cited in this case were, as alleged by Tunnelton, considered
to be "abandoned areas" within the meaning of 30 C.F.R.
§ 75.305, and as such subject to inspection on a weekly basis
pursuant to that regulation only "insofar as safety
considerations permit", there was nevertheless a violation of
the standard herein.
In this regard there is no dispute that on the date of
the alleged violation there were indeed certain areas of the
cited return aircourses that could have been safely inspected.
These areas were the designated bleeder examination points
and the travelways to those points. According to the
undisputed testimony of Inspector George Tercine of the
Federal Mine Safety and Health Administration CMSHA) the
corresponding examination books maintained by Tunnelton did
not reflect that the weekly examinations required by 30 C.F.R
§ 75.305 were being performed in these areas.
While
Tunnelton has argued that it had been recording examinations
being made at the bleeder examination points pursuant to the
requirements of 30 C.F.R. § 75.316, the examinations required
by this standard are not as broad as those required under
section 30 C.F.R. § 75.305. In addition, as Inspector
Tercine observed, there was no record of examinations of the
areas going into the bleeder evaluation points being made. ·
Thus in any event the violation of failing to record
examinations of the cited return aircourses pursuant to 30
C.F.R. § 75.305 is proven as charged.
Whether the violation was "significant and substantial"
depends on whether a discreet safety hazard existed, whether
there was a reasonable likelihood that the hazard contributed
to would result in injury and whether there was a reasonable
likelihood that the injury in question would be of a
reasonably serious nature. Secretary v. Mathies Coal Co.,

103

6 FMSHRC 1 (1984). In this case the testimony of Bruce
Bufalini .Resident Mining 'Engineer at the Marion Mine, was
undisputed that the areas traveled to the bleeder examination
points were safe and maintained in a safe condition. Indeed
Inspector Tercine acknowledged that when he traveled in the
subject aircourses to the bleeder evaluation points prior to
issuing his citation he found those areas safe to travel.
I also observe that the Secretary had permitted Tunnelton not
to examine at least one entry of each air course in its
entirety until only recently i.e. December 1, 1988, requiring
instead daily examinations at only the bleeder evaluation
points. Under the circumstances I do not find that the
Secretary has sustained her burden of proving that the
violation herein was "significant and substantial".
ORDER
Citation No. 2881390 is modified to reflect that it is a
non "significant and substantial" violation. The citation is
however affirmed as modified and this Contest f,,_roceeding is
dismissed.
a
'

/

:ti

,.

i

/Gil ,VJ~ - , ').~;
., .,,,."'"""""" ~-. -~ \.. ,

Gary M:elick
~.
Administrative Law Judge
(703) 756-6261 t

~

j

Distribution:

I
·''.,.'¥·,
• L '-

~

Joseph A. Yuhas, Esq., P.O. Box 367, Ebensburg, PA
CCertifi"ed Mail)

15931

Evert VanWijk, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail>
nt

104

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

JA.N 2 6 \989
WESTWOOD ENERGY PROPERTIES,
contestant

CONTEST PROCEEDINGS

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

Docket No. PENN 88-42-R
Citation No. 2675834; 10/27/87

.

Docket No. PENN 88-43-R
Order No. 2675835; 10/27/87
Docket No. PENN 88-73-R
Citation No. 2675836; 11/14/87
Docket No. PENN 88-74-R
Citation No. 2675837; 11/14/87
Docket No. PENN 88-75-R
Citation No. 2675838; 11/14/87
Docket No. PENN 88-76-R
Citation No. 2675839; 11/14/87
Docket No. PENN 88-77-R
Citation No. 2675840; 11/14/87
Docket No. PENN 88,78-R
Citation No. 2675861; 11/14/87
Docket No. PENN 88-79-R
Citation No. 2675862; 11/14/87
Docket No. PENN 88-80-R
Citation No. 2675863; 11/14/87
Docket No. PENN 88-81-R
Citation No. 2676577; 11/14/87
Docket No. PENN 88-82-R
Citation No. 2676578; 11/14/87
Docket No. PENN 88-83-R
Citation No. 2676579; 11/14/87
Docket No. PENN 88-84-R
Citation No. 2677901; 11/14/87

105

:

Docket No. PENN 88-85-R
Citation No. 2677902; 11/14/87
Docket No. PENN 88-86-R
Citation No. 2677903; 11/14/87
Docket No. PENN 88-87-R
Citation No. 2677904; 11/14/87
Docket No. PENN 88-88-R
Citation No. 2677905; 11/14/87

.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'rION (MSHA),
Petitioner

Docket No. PENN 88-89-R
Citation No. 2677906; 11/14/87
Refuse Culm Bank
CIVIL PENALTY PROCEEDING

.

Docket No. PENN 88-148
A.C. No. 36-07888-03501

v.
Refuse Culm Bank

WESTWOOD ENERGY PROPERTIES,
Respondent

DECISION
Appearances:

Before:

Mark v. Swirsky, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, on behalf of the Secretary of Labor
(Secretary); Joseph Mack, III, Esq., Thorp, Reed
and Armstrong, Pittsburgh, Pennsylvania, on behalf
of Westwood Energy Properties (Westwood).

Judge Broderick

STATEMENT OF THE CASE
Westwood filed notices of contest challenging the legality
of the issuance of 18 citations and one withdrawal order issued
by the Secretary's representatives. The Secretary filed a
Petition for the assessment of civil penalties for the violations
charged in the contested citations. The contested order was
issued under section 104(b) of the Act for failure to comply with
a citation issued for Westwood's refusal to permit MSHA to enter
the site of the facility for the purpose of conducting an
inspection. The citations contested in Docket Nos. PENN 88-84-R
through PENN 88-89-R, namely citations 2677901, 2677902, 2677903,
2677904, 2677905 and 2677906 have been vacated by MSHA and
reissued as citations 2677913, 2677914, 2677915, 2677916,

106

2677917, and 2677918. The parties have stipulated that the
reissued citations shall be considered as contested in these
proceedings.
The primary issue in the case is whether. Westwood's facility
is a mine within the meaning of that term in the Mine Actr and
therefore subject to the jurisdiction of MSHA.
Pursuant to
notice the case was heard in Harrisburg, Pennsylvania on
September 20, 1988. Joseph Uholic and Charles Rosini testified
on behalf of the Secretary. Charles Ludwigson testified on
behalf of Westwood. Both parties have filed post-hearing briefs.
I have considered the entire record and the contentions of the
parties in making the following decision.
FINDINGS OF FACT

1.

The Facility

Westwood is the owner of a piece of land in Schuylkill
County near Tremont, Pennsylvania. A large culm bank or refuse
pile is located on the land. The bank is cone shaped,
approximately 4500 feet in circwnference at the bottom, and 350
feet at the top.
It is about 275 feet high. The bank was
created as the refuse product of an underground anthracite coal
mine and its preparation plant, called Westwood Colliery, which
operated from 1913 to 1947. The preparation plant itself was
destroyed and its ranains became part of the refuse pile. After
the underground mine was closed, a company named Manbeck operated
a "fine" coal plant, separating fine coal from the waste material
and selling it. Manbeck was inspected by MSHA or its predecessor
agency.
The culm owned by Westwood contains coal mine refuse,
including rock, slate, shale, wood, metal, both ferrous and
nonferrous, granite, quartz, pyrite, and a small percentage of
coal and other carbonaceous material.
(Some authorities limit
the term coal to carbonaceous rock which when dried at 100
degrees centigrade should contain at least 50 percent combustible
material. See A DICTIONARY OF MINING, MINERAL and RELATED TERMS,
U.S. Dept. of the Interior, page 222).
Westwood uses the material in the culm bank as fuel to
generate electrical power which is sold to the Metropolitan
Edison Company. Westwood engaged a contractor to remove the
material from the bank and load it into hoppers where wood and
other materials larger than 12 by 12 inches are removed. Metal
is re1noved by means of a magnet and a metal detector. The cul1n
material is then transported to a silo and crushed in two steps
to a particle size of one-eighth of an inch.
It is then
transported to the combuster where it is burned in a process

107

called a circulating fluidized bed process of combustion. This
process res_ul ts in steam which drives turbines and creates
electrical power. The fuel has a BTU content of from 2700 to
4000. The BTU content of anthracite coal ranges from 12,000 to
15,000. After combustion, approximately 65 .t.o 68 percent by
weight of the original fuel is removed as ash, and transported to
an ash pile.'
2.

The Inspection

On October 27, 1987, Federal coal mine inspector Joseph
Uholic arrived at Westwood's culm bank site to conduct an
inspection of the facility. Westwood denied him entry. On
October 28, 1987, Uholic returned, accompanied by Inspector
ch·arles Rosini, pursuant to instructions from his supervisor.
Westwood informed them that an inspection would not be permitted
on the advice of counsel that the operation was not subject to
MSHA jurisdiction. Inspector Uholick issued a citation under
section 104(a) of the Act, charging a violation of 103(a) of the
Act for failure to permit the inspector to enter the mine site.
After approximately 40 minutes, the inspector issued a withdrawal
order under section 104(b) of the Act for failure to abate the
citation. The Secretary then sought an injunction from the
United States District Court to require Westwood to permit the
inspection. A consent temporary restraining order was issued
permitting MSHA inspections until a final adjudication of the
issue of jurisdiction by the Review Commission. The inspectors
returned to the facility on November 14, 1987, conducted an
inspection and issued the other citations which are involved in
this proceedingo
·
The parties have stipulated that since becoming operational
in July 1988, Westwood has sustained net losses in its operation.
At the time the citations involved herein were issued, the work
was being done by the construction contractor and its
approximately 30 to 35 employees, but Westwood was in overall
control of the worksite. The violations charged in the citations
issued on November 14, 1987, are admitted by Westwood (assuming
jurisdiction), but it does not stipulate to the significant and
substantial designation, nor to the appropriateness of the
proposed penalties.
STATUTORY PROVISIONS
Section 3(h)(l) of thB Act provides:
(h)(l) 'coal or other mine' means (A) an area of
land from which minerals are exiracted in nonliquid
form or, if in liquid form, are extracted with workers
underground, (B) private ways and roads appurtenant to

108

such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings,
structures, facilities, equipment, machines, tools, or
other property including impoundments, retention dams,
and tailings ponds, on the surface or underground, used
in, or to be used in, or resulting from, the work of
extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers
underground, or used in, or to be used in, the milling
of such minerals, or the work of preparing coal or
other minerals, and includes custom coal preparation
facilities.· In making a determination of what
constitutes mineral milling for purposes of this Act,
the Secretary shall give due consideration to the
convenience of administration resulting from the
delegation to one Assistant Secretary of all authority
with respect to the health and safety of miners
employed at one physical establishment;
Section 3(i) of the Act provides:
Ci) •work of preparing the coal' means the breaking,
crushing, sizing, cleaning, washing, drying, mixing,
storage, and loading of bituminous coal, lignite, or
anthracite, and such other work of preparing such coal as is
usually done by the operator of the coal mine;
THE MSHA-OSHA INTERAGENCY AGREEMENT
The Mine Safety and Health Administration and the
Occupational Safety and Health Administration, both agencies
within the U.S. Department of Labor, entered into an agreement on
March 29, 1979, "to delineate certain areas of authority, set
forth factors regarding determinations relating to convenience of
administration, provide a procedure for determining general
jurisdictional questions • • • " The agreement is set out in 44
F.R. 22827 (April 17, 1979). In general the dividing line
between MSHA and OSHA jurisdiction is the point where the raw
materials arrive at the plant stockpile. The agreement contains
a definition and description of "milling", which comes under the
Mine Act.
ISSUES
1. Whether the subject culm bank is a mine, and whether
Westwood's activities in preparing it for use as fuel in
generating electricity is subject to the Mine Act?

109

2. If Westwood comes under the jurisdiction of the Mine
Health and Safety Administration, whether the cited violations
were significant and substantial?
3. If Westwood comes under the MSHA' s _j_ur isdiction, what
are the appropriate penalties for the cited violations?
CONCLUSIONS OF LAW
STATUTORY DEFINITIONS
In ordinary parlance, the culm bank owned by Westwood would
not be considered a mine.
It is not "an opening or excavation in
the earth for the purpose of extracting minerals" (A DICTIONARY
OF MINING, MINERALS AND RELATED TERMS, supra, p. 708).
Westwood's use of the culm material does not involve the
extraction of minerals from their natural deposits in the earth.
The statutory definition of a mine, however, is much broader than
the generally accepted meaning of the term.
It includes "lands,
• • • facilities, equipment, machines, tools, or other property
including impoundments, retention dams, and tailings ponds, on
the surface or underground • • • resulting from the work of
extracting such minerals from their natural deposits, • • • or
used in, or to be used in, the milling of such minerals, or the
work of preparing coal or other minerals • • • " [Section 3(h)(l)].
The Westwood culm bank clearly resulted from the work of
extracting anthracite coal from its natural deposit in the earth.
A literal construction of the statutory language would seem to
cover Westwood's culm bank. Westwood argues that such a
construction is "overly literalistic," and that "as a matter of
practical or economic reality," Westwood's operation cannot be
considered mining activity. The construction of the statutory
language and its application to th~ subject operation is clearly
complicated by the fact that the underground anthricite mine, the
operation of which resulted in the culm, has been closed for 40
years. Westwood had no connection with the extraction of the
anthracite or the culm from underground.
It seems clear that if
the anthracite mine continued in operation and the operator
disposed of the coal, and at the same time used the culm or waste
in the same way that Westwood does to generate electricity, the
entire operation would be considered a mine and subject to the
Act. Is it significant that Westwood had nothing to do with the
coal extraction? Is it significant that the mine has been closed?
Does the length of time it has been closed make any difference?
The statute [Section 3Ci)] defines the work of preparing
coal as "the breaking, crushing, sizing, cleaning, washing,
drying, mixing, storing, and loading of bituminous coal, lignite,
or anthracite, and such other work of preparing such coal as is
usually done by the operator of the coal mine."

110

A literal reading of this definition would seem to cover
Westwood's operation described in the findings of fact herein:
The culm material contains anthracite coal. Westwood breaks,
crushes, sizes, stores and loads it in preparation for its use as
fuel.
LEGISLATIVE HISTORY
In enacting the 1977 Mine Act Congress clearly intended that
its coverage be as broad as possible:
"It is the Committee's
intention that what is considered to be a mine and to be
regulated under this Act be given the broadest possible
interpretation, and it is the intent of the Committee that doubts
be resolved in favor of inclusion of a facility within the
coverage of the Act." S. Rep. No. 181, 95th Cong., 1st Sess. 14
(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 602 CLegis. Hist.).
The joint explanatory statement of the Committee of Conference
refers to the definition of a mine:
"Both the Senate bill and
the House amendment broadly defined mine to include all
underground or surface areas from which the mineral is extracted,
and all surface facilities used in preparing or processing the
minerals, as well as roads, structures, dams, impoundments,
tailing ponds and like facilities related to the mining activity."
Legis. Hist. at 1316.
The Secretary of Labor is given the initial responsibility
for determining whether a facility is subject to the Mine Act.
She is in a unique position to determine the dividing line
between MSHA and OSHA jurisdiction, since both programs are
administered by her.
I assume that the issuance of citations by
MSHA to Westwood reflects the Secretary's determination that the
subject facility is a mine and therefore is subject to the Mine
Act.
Although such a determination is not binding on the
Commission, it must be accorded great weight in our consideration
of the jurisdictional question.
COURTS OF APPEALS AND DISTRICT COURT DECISIONS
The case of Marshall v. Stoudt's Ferry Preparation Co., 602
F.2d 589 (3rd Cir. 1979) cert. denied, 444 U.S. 1015 (1980),
involved a company, Stoud~Ferry, which purchased material
dredged from the Schuylkill River by the Commonwealth of
Pennsylvania. Stoudt's Ferry then transported the material to
its plant where it separated it into sand and gravel, and a
material usable as a fuel. The latter was sold to a utility
company as "usable anthracite refuse." The court held that the
process of separating the burnable product from the dredged

111

material brought Stoudt's Ferry within the coverage of the Act.
The Court said at page 592:
"Although i t may seem incongruous to
apply the label 'mine' to the kind of plant operated by Stoudt's
Ferry, the statute makes clear that the concept that was to be
conveyed by the word is much more encompassing than the usual
meaning attributed to it -- the word means what the statute says
it means."
In the case of Harman Mining Corp. v. Federal Mine Safety
and Health Review Commission, 671 F.2d 794 C4th Cir. 1981), the
Court held that railroad "car dropping" activities of a mining
corporation, incident to the lb~ding and storage of coal after it
had been prepared, took place at a mine and were subject to MSHA
jurisdiction, even though the railroad tracks and cars were owned
by the railroad and some of the car dropping activities were
performed by railroad employees.
The District of Columbia Circuit reversed the Review
Commission in Donovan v. Carolina Stalite Company, 734 F.2d 1547
CD.C. Cir. 1984). The court held that Carolina's slate gravel
processing facility which did not extract the slate but "bloated"
it, and crushed and sized the resultant product (called
"stalite"), and sold it for use in making concrete blocks was
subject to the Mine Act. The Court said at page'l552 that the
statute "gives the Secretary discretion, within reason, to
determine what constitutes mineral milling, and thus indicates
that his determination is to be reviewed with deference both by
the Commission and the courts • • ••
In this highly technical
area deference to the Secretary's expertise is especially
appropriate . •
The Commission, so far as we can see, gave
the Secretary's determination no deference, and we believe that
was error."
The term milling is used, at least primarily, with reference
to metal mining.
See A DICTIONARY, supra, p. 706.
It refers to
the grinding or crushing of ore, and is ordinarily performed in a
mill. The MSHA-OSHA Interagency Agreement defines it a "the art
of treating the crude crust of the earth to produce therefrom the
primary conswner derivatives". The analogous process in coal
mining is the work of preparing coal.
(Compare MILLING AND
CRUSHING, U.S. Dept. of Interior, National Mine Health and Safety
~cademy (1978) with COAL PREPARATION HANDBOOK, U.S. Dept. of
Labor, National Mine Health and Safety Academy Cn.d.).)
It is
ordinarily performed in a preparation plant. The Secretary's
determination that an activity constitutes the work of preparing
coal, like her determination that an activity constitutes
milling, is a highly technical matter, and must be accorded
deference by the Review Commission.

112

In Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir.
1985), the Court reversed a Commission determination that Old
Dominion was subject to MSHA jurisdiction when it maintained an
electrical substation on coal mine property~ The substation was
used to meter the amount of electricity purc.hased by the mine
operator. The court held that Congress intended to exclude
electric ut~lities from Mine act coverage, when the utility's
only presence on the mine site is to read the meter and
occasionally service its equipment. The Court declined to accord
deference to MSHA's interpretation of the statutory grant of
jurisdiction.
The United States District Court for the Southern District
of Indiana in Donovan v. Inland Terminals, 3 BNA MSHC 1893
(1985), denied the Secretary's motion for a preliminary
injunction to prohibit denial of entry to an MSHA inspector.
Inland operated a commercial loading dock and stockpiled coal.
It utilized loaders, crushers, and hoppers to facilitate its
loading operation. The court held, citing the Commission's Elam
decision, infra, that the facility was not a mine, and therefore
was not subject to the coverage of the Mine Act.
COMMISSION AND ADMINISTRATIVE LAW JUDGE DECISIONS
In the case of Oliver M. Elam, 4 FMSHRC 5 (1982), the
Commission determined that Elam's commercial dock on the Ohio
River from which coal and other materials were loaded onto barges
was not a mine subject to the Act. Elam's facilities for loading
coal included a hopper, a crusher, and conveyor belts.
Occasionally large pieces of coal were broken by Elam to pass
through the hopper. The crusher then broke the coal into one
size in order that it might be carried on the conveyor belts.
The Commi·ssion looked at the statutory def ini ti on of "work of
preparing coal," and concluded that "inherent in the
determination of whether an operation properly is classified as
'mining' is an inquiry not only into whether the operation
performs one or more of the listed work activities, but also into
the nature of the operation performing such activities."
4 FMSHRC at 7.
"[W]ork of preparing coal connotes a process,
usually performed by the mine operator engaged in the extraction
of the coal or by custom preparation facilities, undertaken to
make coal suitable for a particular use or to meet market
specifications." 4 FMSHRC at 8. Elam's work in crushing and
sizing coal was performed to facilitate its loading business and
not to render the coal fit for any particular use. It therefore
was not engaged in the work of preparing coal and did not operate
a mine.

113

Alexander Brothers, Inc., 4 FMSHRC 541 (1982), arose under
the 1969 Coal Act. 1/ It involved the reclamation of coal from a
refuse pile created-during the operation of an underground mine
which was closed in 1967. The refuse pile contained coal, rock
dust, garbage, timber, wood, steel, dirt, tip cans, bottles,
metal and general debris. Approximately 20 t-o 25 percent of the
material taken from the pile was coal. The material was removed
from the pile and trucked to a screening plant, where rock and
obvious waste were removed.
It was then crushed and transported
to a cleaning plant. Noncoal was removed by various processes.
The resultant coal was then sold to brokers. The Commission
determined that Alexander Brothers were engaged in the work of
preparing coal. The facts that they had nothing to do with the
extraction of coal, and that their work in removing the debris
from the coal differed from the ordinary preparation plant did
not remove them from the jurisdiction of the Coal Act.
In Mineral Coal Sales, Inc., 7 FMSHRC 615 (1985) coal was
delivered to Mineral by brokers. Mineral tested the coal to
determine the BTU, ash and sulfur content. It then crushed the
coal to a uniform size and loaded it on railroad cars. The
Commission held that Mineral's business constituted mining since
it stored, mixed, crushed, sized and loaded coal to make it
suitable for a particular use.
_In the case of VenBlack, Inc. v. Secretary, 7 FMSHRC 520
(1985), Commission Judge Lasher considered whether VenBlack which
purchased already prepared coal and converted it into a powdery
substance called Austin Black which was then sold to the tire and
rubber industry as a chemical additive was subject to the Mine
Act. The purchased coal was unique and had to meet VenBlack's
specifications. VenBlack pulverized the coal to a fine dust
having the consistency of talcum powder. The facility had been
purchased from a coal company which operated a coal mine and
preparation plant as well as the chemical facility producing
Austin Black. The entire operation was inspected by MSHA. The
mine and preparation plant had been closed and VenBlack had no
connection with the mining property. Judge Lasher concluded that
VenBlack was engaged in manufacturing operations, and was not a
secondary coal preparation facility. VenBlack did not produce or
prepare coal, but, using already prepared coal, manufactured and
marketed a chemical additive.
l / The def i~itions of "mine" and "the work of preparing the
coal" in the 1969 Act did not differ significantly from the
definitions in the 1977 Mine Act.

114

In a case under the Coal Act, Jones and Laughlin Steel
Corporation v. MESA, Docket No. PITT 76Xl98, Chief Administrative
Law Judge Luoma of the Department of the Interior decided on
February 22, 1977, that a refuse pile on appl_icant' s land was
part of a coal mine and subject to the Act. The refuse pile
consisted of material taken directly from the mine, such as waste
from roof falls, construction material, etc. It apparently was
largely slate but contained some coal. The refuse pile was
approximately 50 years old and had not been used since 1967.
Judge Luoma concluded that the refuse pile was a surface area of
the mine, since it was "composed of material which resulted from,
the work of extracting coal."
CONCLUSION
Westwood argues that "it is a power plant, pure and simple";
that it utilizes a stockpile of fuel as a conventional power
plant would use a stockpile of coal. It consumes fuel and
does not produce a marketable mineral. Westwood's argument
emphasizes the latter distinction as if the marketing of coal or
other mineral is essential to the idea of mining or coal
preparation. But it is not uncommon for mine operators to
themselves consume the products of their mines. And Westwood
does more than burn the culm material; it prepares it "for a
particular use." Elam, supra: it extracts the culm from the
bank and loads it into hoppers, where certain waste materials are
removed; it then transports it on a conveyor belt where ferrous
metals are removed by a magnet; thereafter a metal detector seeks
other metals which are rejected. The residual fuel is then
crushed or sized to particles approximately one quarter inch in
size. All this takes place prior to the fuel being introduced
into the boiler building. These activities closely resemble the
"work of preparing the coal" as defined in the Act.
I am persuaded that the sweeping definition of a coal or
other mine in the Act, and the admonition in the Legislative
History that tpe term be given the broadest possible
interpretation brings Westwood's facility within its terms. Any
doubt that the culm bank is or includes "lands • • • ,
structures, facilities, • • • or other property including
impoundments, • • • on the surface or udnerground, used in, • • •
or resulting from the work of extracting such minerals from their
natural deposits • • • " must be resolved in favor of coverage.
I am further persuaded that Westwood's use of the culm
includes the work of preparing the coal, since it breaks,
crushes, sizes, stores and loads anthracite, and does other work
of preparing coal usually done by the operator of a coal mine.

115

In both of these conclusions, I am giving deference to the
determination by the Secretary of Labor that Westwood's facility
and operation are subject to the Mine Act.
THE VIOLATIONS
1.

Denial of Entrx

Westwood asserts that its refusal to permit MSHA inspectors
to inspect its property was based on a reasonable, good faith
belief that it was not subject to the Mine Act. There is no
evidence in the record to cast doubt on Westwood's bona f ides.
Its operation had been previously been inspected by OSHA.
Although it refused entry to the MSHA inspectors after the
issuance of the citation and a 104Cb) order issued for
noncompliance, it fully cooperated with the Inspectors after the
consent order was issued by the District Court. Nevertheless,
the refusal to pennit MSHA inspectors to conduct an inspection of
the facility was, in view of my conclusion that it was a mine, a
serious violation. Westwood was working on a high wall with a
significant grade. The conditions of the highwall, the
equipment, the training and competence of the employees could not
be evaluated without an inspection. I conclude that the
violation contributed to a hazard and that there was a reasonable
likelihood that the hazard would result in a serious injury or
illness.
U.S. Steel Mining Company, Inc., 10 FMSHRC 1138 (1988).
Although Westwood's denial of entry was deliberate, it acted in
good faith.
Considering the criteria in section llOCi) of the
act, I conclude that an appropriate penalty for the violation is
$300.
2.

Failure to File with MSHA

Citation 2675836 charges a violation of 30 C.F.R. § 41.ll(a)
because Westwood failed to submit a legal identification form to
MSHA; citation 2675837 charges a violation of 30 C.F.R. § 77.1000
because Westwood failed to submit to MSHA for approval a ground
control plan; citation 2676579 charges a violation of 30 C.F.R.
§ 48 .23 Ca> Cl> because Westwood failed to file a training plan
with MSHA; citation 2676577 charges a violation of 30 C.F.R.
§ 77.1712 because Westwood failed to notify the MSHA District
Manager prior to beginning operation; citation 2676578 charges a
violation of 30 C.F.R. § 77.1713 b~~ause the person conducting
on-shift inspections had not been certified by MSHA. These
violations are all related to Westwood's belief that it was not
subject to MSHA jurisdiction. They are not serious since they
were not likely to result in, or contribute to, an injury to a
miner.
I conclude that $20 is an appropriate penalty for each
violation.

116

3.

Other Violations not Related to Training Requirements

Citation 2675839 charges a violation of 30 C.F.R.
§ 77.1710(i) because a bulldozer being used to push bank material

on top of the refuse bank was not provided ~ith seat belts. The
dozer was being operated on a 30 degree grade· and the bank was
over 200 feet high.
I conclude that the violation contributed to
a hazard which was reasonably likely to result in serious injury.
Westwood was aware or should have been aware of the hazardous
condition. I conclude that an appropriate penalty for this
violation is $100.
Citations 2675840 and 2675863 charge violations of 30 C.F.R.
§ 77.1109(c)(l) because a bulldozer and~ loader were not

provided with fire extinguishers. The inspector considered the
violations nonserious. I conclude that appropriate penalties for
the violations are $20 each. Citations 2675838 and 2675861
charge violations of 30 C.F.R. § 77.410 because a loader was not
provided with a functioning back up alarm. The inspector
considered the violations nonserious. I conclude that an
appropriate penalty for each violation is $20. Citation 2675862
charges a violation of 30 C.F.R. § 77.1710Ci) because a front end
loader was not provided with seat belts. Because the loader was
working at the ground level, the inspector considered the
violation nonserious. I conclude that an appropriate penalty for
the violation is $20.
4.

Training Violations

Citations 2677913 through 2677918 (replacing 2677901 through
2677906) all charge violations of 30 C.F.R. § 48.26(a) because
six employees had not received training as newly employed
experienced miners. The employees had not previously worked on a
culm bank, which in the inspector's judgment presented unique
hazards. Therefore, the lack of such training contributed to a
hazard which was reasonably likely to result in serious injury.
The violations were moderately serious. The Secretary failed to
establish that the violations were caused by Westwood's
negligence.
I conclude that $50 is an appropriate penalty for
each violation.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:

1. The contested violations and withdrawal order are
AFFIRMED;
2.

the Notices of Contest are DISMISSED;

117

3. Westwood shall within 30 days of the date of this
decision pay the following civil penalties:
CITATION

VIOLATION

2675834/835
2675836
2675837

103(a)
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30' C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.
30 C.F.R.

~676579

2676577
2676578
2675839
2675840
2675863
2675838
2675861
2675862
2677913
2677914
2677915
2677916
2677917
2677918

AMOUNT
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

41.ll(a)
77.1000
48.23(a) Cl)
77.1712
77.1713
77.1710(i)
77.1109(c)(l)
77.1109Cc)Cl>
77.410
77.410
77.1710(i)
48.26Ca)
48.26(a)
48.26Ca)
48.26Ca)
48.26Ca>
48.26(a)

$300
20
20
20
20
20
100
20
20
20
20
20
50
50
50
50
50
50
$900

jrxuu:~
~crlu/ld
James A. Broderick
l/ •

Administrative Law Judge

Distribution:
Joseph Mack, III, Esq., Thorp, Reed & Armstrong, One Riverfront
Center, Pittsburgh, PA 15222 (Certified Mail)
Mark v. Swirsky, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
slk

118

FEDERAL MINE SAFETY . AND HEALTH REVll:W COMMISSION
OFFICE OF ADMINISTRATIVE LAW jtlt>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE .
FALLS CHURCH, VIRGINIA 22041

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

CIVIL PENALTY PROCEEDING
-Docket No. KENT 88-133
.A.c~ No. 15-14701-03524

v.

Mine No. 2

BOWLING MOUNTAIN MINING
CORPORATION
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Maµrer

On December 29, 1988, the Secretary of Labor on behalf of
the parties to this action, filed a motion to approve the
settlement negotiated between them. At issue in this case are
five violations~ originally assesaed at $9300 in the aggregate.
Settlement is proposed at $7000.
The above-refenced violations were discovered as a result of
on investigation into a fatal roof fall accident which occurred
on September 28, 1987, killing Truman Faulkner, an acting foreman
at the mine. More particularly, the operato~swas'tited for a
violation of 30 C.F .R. § 75 .200 becaus·e _it fa,iled ·to provide
additional roof support after encountering adverse roof
conditions, as required by its roof cont,rol plan.• ·Mud seams,
indicating adverse roof c·ondi tions, had been. e.11-,co.µntered, .but no
additional support was ordered set by Faulkner. This negligence
contributed to his death. The company was cited for another,
separate violation of 30 C.F.R. § 75.200 because the acting
foreman, Faulkner, failed to install temporary roof support
before working on unsupported roof, also as required by it's roof
control plan. The roof fall that killed Faulkner was directly
attributable to this violation.
The operator was also cited for not conducting the required
pre-shift examination of the mine since September 24, 1987, and
more particularly, on September 28, 1987, the day Faulkner was
killed. This is a serious v~olati9n of 30 C.F.R. § 75.303,
although.it does not appear as though this violation directly
contributed to Faulkner's death.

119

Additionally, the respondent was cited for a violation of
30 C.F.R. § 48.6, because the operator had not provided newly
employed experienced miner training to the deceased miner,
Truman Faulkner, although he had been working at the mine for
approximately three (3) weeks at the time of his death.
Lastly, the respondent was cited for a violation of
30 C.F.R. § 50.10 'because the operator failed to report the roof
fall accident which caused the fatal injury to Truman Faulkner.
MSHA was notified of the accident by a state mine inspector, but
did not receive direct notification from the operator.
·
The Solicitor states that mining of coal at the mine where
the violations occurred has ceased and this mine has now been
sealed.
In support of the proposed settlement, the Solicitor further
states his belief that approval of this settlement is in the
public interest and that the circumstances presented warrant the
reduction in the original civil penalty assessments for the
violations in question. Further, he has submitted a detailed
discussion and disclosure as to the facts and circumstances
surrounding the issuance of the citations and orders, as well as
a full explanation and justification for the proposed reduction.
I accept the Solicitor's representations and approve the
settlements.
ORDER
The operator, and by agreement, Mr. Charles E. Mccullah,
President and principal stockholder of Bowling Mountain Coal
Company, Inc., d/b/a Bowling Mountain Mining Corporation,
personally, is ordered to pay $7000 in eight equal monthly
installments of $777.77 and one last installment of 777.84,
beginning November 1, 1988, and payable by the first day of each
month thereafter, until paid in full. Upon receipt of payment in
full by the Secretary, this case is dismissed.

120

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B~201, Nashville,
TN 37215
(Certified Mail)
David J. Stetson, Esq., Trimble & Mann, 104 N. Kentucky Street,
P.O. Drawer 1344, Corbin, KY 40701
(Certified Mail)
/ml

121

FEDERAL Mft....:'. SAFETY AND HEALTH REVIE\Jt.. .;QMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

January 27, 1989
EMERY MINING CORPORATION
AND/OR UTAH POWER & LIGHT
COMPANY,
Contestants

v.

. CONTEST PROCEEDINGS
..

Docket No. WEST 87-130-R
Citation No. 2844485; 3/24/87
Docket No. WEST 87-131-R
Order No. 2844486; 3/24/87

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

Docket No. WEST 87-132-R
Order No. 2844488; 3/24/87

and

Docket No. WEST 87-133-R
Order No. 2844489; 3/24/87

UNITED MINE WORKERS OF
AMERICA, ( UMWA) ,
Intervenor

Docket No. WEST 87-134-R
Citation No. 2844490; 3/24/87
Docket No. WEST 87-135-R
Citation No. 2844491; 3/24/87

..

.

Docket No. WEST 87-136-R
Citation No. 2844492; 3/24/87
Docket No. WEST 87-137-R
Citation No. 2844493; 3/24/87
Docket No. WEST 87-144-R
Order No. 2844795; 3/24/87
Docket No. WEST 87-145-R
Order No. 2844796; 3/24/87
Docket No. WEST 87-146-R
Order No. 2844798; 3/24/87
Docket No. WEST 87-147-R
Order No. 2844800; 3/24/87
Docket No. WEST 87-150-R
Order No. 2844805; 3/24/87
Docket No. WEST 87-152-R
Order No •. 2844807; 3/24/87
Docket No. WEST 87-153-R
Order No. 2844808; 3/24/87

122

:

Docket No. WEST 87-155-R
Citation No. 2844811; 3/24/87

.
: Docket No. WEST 87-156-R
: Order No. 2844813; 3/24/87
.
:
:

..

Docket No. WEST 87-157-R
Order No. 2844815; 3/24/87

Docket No. WEST 87-158-R
. Citation
No. 2844816; 3/24/87
.
:

:

.
.

.
:

.
:

Docket No. WEST 87-159-R
Citation No. 2844817; 3/24/87
Docket No. WEST 87-160-R
Order No. 2844822; 3/24/87
Docket No. WEST 87-161-R
Order No. 2844823; 3/24/87

Docket No. WEST 87-163-R
Citation No. 2844826; 3/24/87
Docket No. WEST 87-243-R
Citation No. 2844828; 8/13/87
Docket No. WEST 87-244-R
Citation No. 2844830; 8/13/87
Docket No. WEST 87-245-R
Citation No. 2844831; 8/13/87
Docket No. WEST 87-246-R
Citation No. 2844832; 8/13/87
Docket No. WEST 87-247-R
Citation No. 2844833; 8/13/87

.

Docket No. WEST 87-248-R
Citation No. 2844835; 8/13/87
Docket No. WEST 87-249-R
Citation No. 2844837; 8/13/87
Wilberg Mine
Mine I.D. No. 42-00080

123

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

CIVIL PENALTY PROCEEDINGS
:

v.

Docket No. WEST 87-208
A.C. No. 42-00080-03578
Docket No. WEST 87-209
A.C. No. 42-00080-03579

EMERY MINING CORPORATION, and
ITS SUCCESSOR-IN-INTEREST
UTAH POWER & LIGHT COMPANY,
MINING DIV. , .
Respondent

:

.

Docket No. WEST 88-25
A.C. No. 42-00080-03584
Wilberg Mine

and
UNITED MINE WORKERS OF
AMERICA ( UMWA) ,
Intervenor

.
ORDER

1. On August 30, 1988, the undersigned Judge issued an order
granting the petition of Utah Power and Light Company C"UP&L") to
vacate 30 modified citations and orders to the extent that they
named UP&L as a party.
2. On November 19, 1988, the Secretary of Labor (Secretary)
filed a petition for interlocutory review of said order.
3. On December 5, 1988, UP&L filed in opposition to the
Secretary's petition for interlocutory review, arguing, among other
things, that the subject order was not interlocutory but rather a
final order, reviewable only upon the filing of a petition for
discretionary review in accordance with 30 u.s.c. § 823(d)(2)(A)(i)
and Commission Procedural Rule 70, 29 C.F.R. § 2700.70.
4. On December 19, 1988, the Secretary filed a reply to
UP&L's opposition, arguing that the subject order was not a final
decision because the requirements of Rule 54(b) of the Federal
Rules of Civil Procedure were not met. Specifically the Secretary
stated that:
The August 30 Order contains no express
determination that there is no reason for
delay or express direction for the entry
of final judgment as to Utah Power and
Light.

124

5. On January 10, 1989, the Commission granted the
Secretary's petition for interlocutory review "for the limited
purpose of remanding this matter to the administrative law judge
for an expeditious determination of whether a certification of
finality in accordance with Rule 54(b) is appropriate."
6. After the above order of remand was received the presiding
judge granted the parties an opportunity~/ to state their position_
on the issues involved in said order.
7. Emery Mining Corporation (Emery), and Intervenor did not
file any statements. On January 24, 1989, the Secretary filed a
statement of her position and further incorporated a copy of her
reply to UP&L filed before the Commission. UP&L filed a response
on January 27, 1989.
Basically, the Secretary contends that the order of August 30,
1988 was interlocutory and not a final decision. In the alternative, the Secretary states that if the order of August 30, 1988 is
certified as final, then 30 days from such certification should be
provided in order to afford an opportunity for Commission review.
UP&L states for its part that a Rule 54(b) certificate is not
necessary and, in the alternative it argues certification of the
August 30, 1988 order may be contrary to the principles of judical
economy.
Discussion
In its order of remand and in considering Rule 54(b) of the
Federal Rules of Civil Procedure, the Commission concurred with

l/

Order:

January 12, 1989.

125

the statement in 10 Wright Miller & Kane, Federal Practice and
Procedure, S-ec. 2654 at 38 ( 1983) reading as follows:
The rule does not require that a judgment
be entered when the court disposes of one
or more claims or terminates the action as
to one or more parties. Rather, it gives
the court discretion to enter a final judgment
in these circumstances and it provides muchneeded certainty in determining when a final
and appealable judgment has been entered. As
stated by one court, "if it does choose to
enter such a final order, [the court] must do
so in a definite, unmistakable manner."
[David
v. District of Columbia, 187 F.2d 204, 206
(D.C. Cir. 1950).] Absent a certification
under Rule 54(b) any order in a multiple-party
or multiple-claim action, even if it appears
to adjudicate a separable portion of the controversy, is interlocutory.
The order of remand directs the presiding judge to make "an
expeditious determination of whether a certification of finality in
accordance with Rule 54Cb) is appropriate."
As presiding judge I conclude that a certification of finality
is appropriate since the order of August 30, 1988 does not state
that it is a.final order in a definite, unmistakable manner.
For the foregoing reasons and in accordance with the order
of remand, as presiding judge and in accordance with Rule 54(b),
F.R.C.P., I find there is no just reason for delay and I certify as
to the finality of the order of August 30, 1988.
Further, as presiding judge, I expressly direct the entry of
judgment in favor of Utah Power and Light Company in all of the
cases listed in the caption.

..
Law Judge

126

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

JAN 3 0 1989
EMERY MINING CORPORATtON
AND/OR UTAH POWER & LIGHT
COMPANY,
Contestants

CONTEST PROCEEDINGS
Docket No. WEST 87-130-R
Citation No. 2844485; 3/24/87

v.

Docket No. WEST 87-131-R
Order No. 2844486; 3/24/87

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

Docket No. WEST 87-132-R
Order No. 2844488; 3/24/87
Docket No. WEST 87-133-R
Order No. 2844489; 3/24/87

and
UNITED MINE WORKERS OF
AMERICA, (UMWA),
Intervenor

:

Docket No. WEST 87-134-R
Citation No. 2844490; 3/24/87
Docket No. WEST 87-135-R
Citation No. 2844491; 3/24/87
Docket No. WEST 87-136-R
Citation No. 2844492; 3/24/87

:

Docket No. WEST 87-137-R
Citation No. 2844493; 3/24/87

.
Docket No. WEST 87-144-R

Order No. 2844795; 3/24/87
Docket No. WEST 87-145-R
Order No. 2844796; 3/24/87
:

Docket No. WEST 87-146-R
Order No. 2844798; 3/24/87
Docket No. WEST 87-147-R
Order No. 2844800; 3/24/87

No. WEST 87-150-R
. Docket
Order No. 2844805; 3/24/87
No. WEST 87-152-R
.. Docket
Order No. 2844807; 3/24/87
Docket No. WEST 87-153-R
Order No. 2844808; 3/24/87

127

:

Docket No. WEST 87-155-R
Citation No. 2844811; 3/24/87

:

:
:

Docket No. WEST 87-156-R
Order No. 2844813; 3/24/87

:

Docket No. WEST 87-157-R
Order No. 2844815; 3/24/87

.
:

.

Docket No. WEST 87-158-R
Citation No. 2844816; 3/24/87
Docket No. WEST 87-159-R
Citation No. 2844817; 3/24/87
Docket No. WEST 87-160-R
Order No. 2844822; 3/24/87
Docket No. WEST 87-161-R
Order No. 2844823; 3/24/87
Docket No. WEST 87-163-R
Citation No. 2844826; 3/24/87
Docket No. WEST 87-243-R
Citation No. 2844828; 8/13/87
Docket No. WEST 87-244-R
Citation No. 2B44830; 8/13/87
Docket No. WEST 87-245-R.
Citation No. 2844831; 8/13/87

... Docket No. WEST 87-246-R
Citation No. 2844832; 8/13/87

.

Docket No. WEST 87-247-R
Citation No. 2844833; 8/13/87
Docket No. WEST 87-248-R
Citation No. 2844835; 8/13/87
Docket No. WEST 87-249-R
Citation No. 2844837; 8/13/87

..
. Wilberg Mine

Mine I.D. No. 42-00080

128

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

CIVIL PENALTY PROCEEDINGS
:

v.

Docket No. WEST 87-208
A.C. No. 42-00080-03578
Docket No. WEST 87-209
A.C. No. 42-00080-03579

EMERY MINING CORPORATION, and
ITS SUCCESSOR-IN-INTEREST
UTAH POWER & LIGHT COMPANY,
MINING DIV. ,
Respondent

Docket No. WEST 88-25
A.C. No. 42-00080-03584
:

and

Wilberg Mine

.
..

UNITED MINE WORKERS OF
AMERICA ( UMWA) ,
Intervenor

ORDER
1. In a order issued on January 27, 1989, the undersigned,
in accordance with an order of remand of January 10, 1989, certified as to the issuance of a final order as provided in Rule
54Cb) of the Federal Rules of Civil Procedure.
2. Further, an order of final judgment was entered in favor
of Utah Power and Light Company C"UP&L") in all cases listed in the
caption of this order.
3. In certaiq of the cases listed in the caption the parties
are in agreement 1/ that Emery Mining Corporation ("Emery") either
did not contest the involved citations (orders), or paid the
proposed penalty as originally assessed.
These cases are as follows:
WEST 87-134-R
WEST 87-135-R
WEST 87-136-R
WEST 87-137-R
WEST 87-155-R
WEST 87-158-R
WEST 87-159-R
WEST 87-163-R
WEST 87-243-R
WEST 87-244-R
WEST 87-245-R
WEST 87-246-R
WEST 87-247-R
WEST 87-249-R
1/ Emery's response filed December 27, 1988~
Yiled January 24, 1989.
129

Secretary's response

4.
Inasmuch as a final judgment has been entered as to UP&L
in all of the pending cases and inasmuch as Emery either Cl) did
not contest the citations (orders) or (2) paid the proposed penalty
in the cases listed in paragraph 3, there is no issue pending
before the presiding judge in these cases and I herewith return
said cases to the Docket Off ice.

Law Judge

Distribution:
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Ann R. Klee, Esq.,
Crowell & Moring, 1001 Pennsylvania Ave., N.W., Washington, D.C.
20004
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 Fifteenth
Street, N.W., Washington, D.C. 20005
(Certified Mail)
/ot

130