MARCH 1994

CCMdISSION ORDERS
03 - 14 - 94
03-16-94
03-25-94
03-25-94
03-29-94

Remp Sand & Gravel
Southmountain Coal, Inc.
Oakwood Mining Company
Vincent Braithwaite v. Tri-Star Mining
Beech Fork Processing, Inc.

WEST 93-295
VA
93 - 165
KENT 93 - 576
WEVA 91-2050 - D
KENT 93-406

Pg.
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Pg.

KENT 92-669
KENT 93-713

Pg. 515
Pg. 523

KENT 94-69-D

Pg . 535

KENT 94-396-D
LAKE 93-21 5
VA
93-72-M
WEVA 92-1279
KENT 93-410
KENT 94-441-R
CENT 91-197
CENT 91-202
LAKE 93 - 154
PENN 93-51
SE
93-333
CENT 93-3-M
VA
94-20-R
WEVA 92-1250-A

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538
540
548
550
565
567
569
581
586
591
612
624
633
637

WEST 94-79-D
PENN 94-71-R
SE
93-119
VA
92-133 - C

Pg.
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639
641
649
654

501
504
507
510
512

.ADMINISTRATIVE LAW JUDGE DECISIONS
03 - 03-94
03 - 07-94
03 - 07-94

03 - 07-94
03-08-94
03 - 09-94
03-17 - 94
03-17-94
03 - 21-94
03-21-94
03-23-94
03-23-94
03-23-94
03-25-94
03-28-94
03-26-94
03-28-94
03-29-94
03-29-94
03-31-94

Mullins and Sons Coal Co., Inc.
Peabody Coal Company
Sec. Labor on behalf of Danny Shepherd v.
Sovereign Mining Company
Sec. Labor on behalf of Danny Shepherd v.
Irishman El khorn Coal Company
Buck Creek Coal, Inc.
D. M. Connor Sand Company
Consolidation Coal Company
Broken Hill Mining·company, Inc.
Pontiki Coal Corporation
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co .
Old Ben Coal Company
Power Operating Company, Inc.
s & H Mining, Inc.
Morris Sand and Gravel
c and S Coal Company
Consolidation Coal Company
Sec. Labor on behalf of William Cranford
v. Energy West Mining Company
Lion Mini ng Company
U. S. Coal, Incorporated
Danny Sparks, et al. v. VP-5 Mining Co.

i

MARCH 1994

Review was granted in the following cases during the month of March;
Secretary of Labor, MSHA on behalf of Perry Poddey v. Tanglewood Energy, Inc.,
Docket No. WEVA 93-339-D.
(Judge Amchan, January 25, 1994)
Secretary of Labor, MSHA on behalf of James Johnson and UMWA v. Jim Walter
Resources, Inc., Docket No. SE 93-127-D.
(Judge Fauver, January 25, 1994)
Secretary of Labor, MSHA v. Remp Sand and Gravel, Docket No. WEST 93-295-M.
(Chief Judge Merlin, unpublished Default Decision, December 20, 1993)
Secretary of Labor, MSHA v. Oakwood Mining Company, Docket No. KENT 93-576.
(Chief Judge Merlin, unpublished Default Decision, February 18, 1994)
Secretary of Labor, MSHA v. Beech Fork Processing, Inc., Docket No.
KENT 93-406.
(Chief Judge Merlin, unpublished Default Decision, February
18, 1994)

The following is a list of cases in which review was denied:
Secretary of Labor, MSHA v. MAYO Resources, Inc., Docket No. KENT 93-160.
(Judge Fauver, January 25, 1994)
Secretary of Labor, MSHA v. Rhone-Poulenc of Wyoming Company, Docket No.
WEST 92-519-M.
(Judge Morris, Decision after Remand, February 4, 1994)
Secretary of Labor, MSHA v. Southmountain Coal, Inc., and William Ridley
Elkins, Docket Nos. VA 93-165, etc.
(Judge Melick, Interlocutory Review of
January 25, 1994 Order)
Vincent Braithwaite v. Tri-Star Mining, Docket No. WEVA 91-2050-D.
(Reconsideration of December 23, 1993 Commission Decision)
Secretary of Labor, MSHA v. Larry D. Irvin, Docket No. KENT 93-467.
Amchan, February 16, 1994)

ii

(Judge

COMMISSION ORDERS

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

20006

March 14, 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 93-295

V.

REMP SAND & GRAVEL
BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners 1
ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988). On December 20, 1993,
Chief Administrative Law J udge Paul Merlin issued an Order of Default to Remp
Sand & Gravel ("Remp Sand"), for its fai lure to answer the Secretary of
Labor's proposal for assessment of civil penalty or the judge's August 20,
1993, Order to Show Cause.

The judge ordered the payment of a civil penalty

of $390. For the reasons that fo llow, we vacate the default order and remand
this case for further proceedings.
In a letter to the Coaunission dated January 14, 1994, and received on
January 21, 1994, Raymond H. Rernp, owner of Remp Sand, asserts that he was not
aware that the citations Remp Sand received during a one day inspection by the
Department of Labor's Mine Safety & Health Administration ("MSHA") were in
different dockets. He further asserts that he has tried to resolve the matter
on several occasions with the Department of Labor's Office of the Solicitor in
Denver.
The judge's jurisdiction over this case terminated when his decision was
issued on December 20, 1993. Commission Procedural Rule 69(b), ·53 Fed. Reg.
12158, 12171 (March 3, 1993), to be codified at 29 C. F.R. § 2700.69(b)(l993).
Under the Mine Act and the Commission's procedural rules, relief from a
judge's decision may be sought by filing a petition for discretionary review
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a).
The Commission received Mr. Remp's letter 32 days after the issuance of the
judge's decision. Because Mr . Remp has proceeded without benefit of counsel,
we will treat his letter as a timely filed Petition for Discretionary Review.

1

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

501

Due to clerical inadvertence, the Commission did not act on the
January 14 letter within the required statutory period for considering
requests for discretionary review and the judge's decision became a final
decision of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l) .
Relief from a final Commission judgment or order on the basis of inadvertence,
mistake, surprise or excusable neglect is available to a party under Fed. R.
Civ. P. 60(b)(l). 29 C.F.R. § 2700.l(b)(Federal Rules of Civil Procedure
apply "so far as practicable" in the absence of applicable Commission rules) .
Lloyd Logging. Inc . , 13 FMSHRC 781, 782 (May 1991). In the interest of
justice, we reopen this proceeding and deem the January 14 letter to be a
Petition for Discretionary Review , which we grant.
It appears from the record that MSHA may have proposed penalties in more
than one docket and that confusion may have arisen over the citations and
docket numbers. On the basis of the present record, however, we are unable to
evaluate the merits of Remp Sand's position. We remand the matter to the
judge, who shall determine whether default is warranted . See Hickory Coal
Co., 12 FMSHRC 1201, 1202 (June 1990).
For the reasons set forth above, we reopen this matter, vacate the
judge's default order, and remand this matter for further proceedings.

··.. ---( < ..-(.
Richard V. Backley, Commissioner'

·· /;

Ii~~ IY~- k

J{fyce A.IDoyle, Commissioner/

502

Distribution :
Tambra Leonard, Esq .
Office of the Solici t or
U. S. Department of Labor
1585 Federal Bldg .
1961 Stout Street
Denver, Colorado 80294
Raymond H. Remp
Remp Sand & Gravel
North 208 Colorado
Libby, MT 59923

503

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

20006

March 16, 1994

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

CIVIL PENALTY PROCEEDING

v.

Docket Nos. VA 93-165
VA 93-166

SOUTHMOUNTAIN COAL, INC.
CONTEST PROCEEDING
and
Docket Nos. VA 93-108-R, et . al
WILLIAM RIDLEY ELKINS

Southmountain Coal, Inc. ("Southmountain") has filed with the Conunission
a petition for interlocutory review of Administrative Law Judge Gary Melick's
January 25, 1994, Decision and Order Granting Limited Continuance of Stay.
By
order dated February 7, 1994, the judge denied Southmountain's Motion for
Certification for Review of Interlocutory Ruling. See Commission Procedural
Rule 76, 58 Fed Reg. 12158, 12172 (March 3, 1993), to be codified at
29 C.F.R. § 2700 (1993).
subsequent to the Commission's receipt of Southmountain's petition for
interlocutory review, the judge held a previously scheduled status conference
with the parties on February 25 and, on March 7, issued his Decision and Order
Granting Limited Continuance of Stay.
In his Order, the judge decided to
continue the stay "until a verdict is reached in the criminal trials or a
mistrial is declared," as urged by the Secretary. The criminal trial
involving Southmountain is presently scheduled to begin on May 2,· 1994,
although the investigation is continuing.

504

Upon consideration of Southmountain's petition and the Secretary's
response, 1 we conclude that Southmountain has failed to establish a basis for
granting interlocutory review of the judge's orders and, therefore, we deny
the petition. 2

1
We reject Southmountain's contention that the decision in Thunder Basin
Coal Co. v. Reich,
U.S.
, 127 L. Ed. 2d 29, 62 U.S.L.W. 4058 (January 19,
1994), bears on prosecution--Of a Mine Act criminal proceeding in district
court prior to disposition of civil citations and penalties by the Commission.

Pursuant to section 113(c) of the Mine Act, 30 u.s.c. § 823(c), we have
designated ourselves as a panel of three members to exercise the powers of the
Commission.
2

505

Distribution
Uenry Chajet, Esq.
James G. Zissler, Esq .
Jackson & Kc::lly
2401 Pennsylvania Ave., N.W .
Suite 400
Washinzton, D.C. 20037
Carl C. Charneski, Esq .
Office of the Solicitor
U.S . Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Jack Kennedy, Esq.
P.O. Box 654
Norton, VA 24273
Jeffery A. Sturgill, Esa.
Sturgill, Mullins & Kennedy
944 Norton Road
P.O. Box :3458
\·Jise , VA 24293
Jessee Darrell Cooke
Miners ' Representative
Southmountain Coal, Inc.
!'. 0. Box 9 50
Coburn, VA 24230
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Col!ll!lission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

506

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

20006

March 25, 1994

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

CIVIL PENALTY PROCEEDING
DOCKET NO. KENT 93-576

v.
OAKWOOD MINING COMPANY
Respondent

This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. (1988) ( "Mine Act"). On February
18 , 1994, Chief Administrative Law Judge Paul Merlin issued an Order of
Default to Oakwood Mining Company ("Oakwood") for failing to answer the
proposal for assessment of civil penalty filed by the Secretary of Labor and
the judge's September 27, 1993, Order to Show Cause. The judge assessed the
civil penalty of $2,200 proposed by the Secretary. For the reasons that
follow, we vacate the default order and remand for further proceedings.
On March 7, 1994 , the Commission received a Motion for Reconsideration,
attached to a letter addressed to Judge Merlin, from Oakwood's counsel .
Counsel stated that, when Oakwood received the order to show cause, it was
proceeding without counsel and did not understand the necessity for filing an
answer because it had previously requested a hearing by returning the "blue
card."
The judge's jurisdiction over this case terminated when his decision was
issued on February 18, 1994. Commission Procedural Rule 69(b), 29 C.F.R .
§ 2700.69(b) (1993).
Under the Mine Act and the Commission's procedural
rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of the decision's issuan ce. 30 u.s.c.
§ 823(d)(2); 29 C. F . R. § 2700.70(a).
We deem Oakwood ' s Motion for
Reconsideration to be a timely filed Petition for Discretionary Review , which
we grant.
See,~' Middle states Resources, Inc., 10 FMSHRC 1130 (September
1988) .

507

On the basis of present record, we are unable to evaluate the merits of
Oakwood's position .
In the interest of justice, we remand thi~ matter to the
judge, who shall determine whether default is warranted. See Hickory Coal
Co., 12 FMSHRC 1201, 1202 {June 1990) .
For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings. 1

Ar len~.-::Jiolen , Chairman

:- ::.>··

/ "/

~e<J.c4~
Richard v. Backley, Commissioner

Pursuant to section 113(c) of the Mine Act, 30 u.s.c. S 823(c), we have
designated ourselves as a panel of three members to exercise the powers of the
Commission.
1

508

Distribution
Billy R. Shelton, Esq .
Baird, Baird, Baird & Jones, P . S. C.
P.O. Box 351
Pikeville, KY 41502
Kermit France, Owner
Oakwood Mining Company
Box 190
Ashcamp, KY 41512
James B. Crawford, Esq.
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

509

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

20006

March 25, 1994

VINCENT BRAITHWAITE
Petitioner
v.

Docket No. WEVA 91-2050-D

TRI-STAR MINING
Respondent

The Conunission issued its decision in this proceeding on December 23,
1993, in which it reversed the administrative law judge's decision and
dismissed the discrimination complaint brought by complainant, Vincent
Braithwaite under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. S 815(c)(3)(1988). In a letter dated March 5, 1994, the
complainant raised with the Conunission several issues relating to its
decision. Upon due consideration of the letter, which we have treated as a
timely filed motion for reconsideration 1 (see Conunission Procedural Rule 78,
29 C.F.R. § 2700.78 (1993)), we deny the request for reconsideration of the
Commission's decision. :

Arlene Ho len, Chai rman

,,,.,,---- -:~·

- /(

-

e.--~ _.....-<_.....c..-c......c::-e---;/..d /-::-

. Richard V. Backley, Commissioner L---

Commission records reflect that Vincent Braithwaite was mailed a copy
of the decision at the time of its issuance, December 23, 1993. However, by
letter dated February 4, 1994, Mr. Braithwaite inquired as to the status of
the case. The Commission sent a copy of the decision to Mr. Braithwaite on
February 23, 1994.
2
Pursuant to section 113(c) of the Mine Act, 30 u.s.c. S 823(c), we have
designated ourselves as a panel of three members to exercise the powers of the
Conunission.

510

Distribution
Vincent E. Braithwaite
53 W. Harrison St .
Piedmont, WV 26750
Thomas G. Eddy, Esq.
Eddy & Osterman
820 Grant Building
Pittsburgh, PA 15219
Administrative Law Judge william Fauver
Federal Mine Safety & Health Review Conunission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

511

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6Tl:f FLOOR

WASHINGTON, 0.C.

20006

Ha rch 29, 1994

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

Docket No. KENT 93 - 406

BEECH FORK PROCESSING, INC.

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. (1988). On February 18, 1994,
Chief Administrative Law Judge Paul Merlin issued an Order of Default to Beech
Fork Processing, Inc. (wBeech Forkw), for its failure to answer the Secretary
of Labor's proposal for assessment of civil penalty and the judge's September
20, 1993, Order to Show Cause. The judge ordered the payment of a civil
penalty of $4,547.
For the reasons that follow, we vacate the default order
and remand this case for further proceedings.
In a letter to the Commission dated March 1, 1994, and received on March
7, 1994, Link Chapman, Safety Director of Beech Fork, requests that the order
of default be vacated because a response to the order to show cause was filed.
A copy of the September 24, 1993, response is attached to Mr. Chapman's
letter .
The judge ' s jurisdiction over this case terminated when his decision was
issued on February 18, 1994. Commission Procedural Rule 69(b), ~9 C.F.R. §
2700.69(b)(l993). Under the Mine Act and the Commission's procedural rules,
relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 u.s.c. § 823(d)(2);
29 C.F.R . § 2700.70(a). We deem Beech Fork's letter to be a timely filed
Petition for Discretionary Review, which we grant. See, ~ ., Middle States
Resources , Inc., 10 FMSHRC 1130 (September 1988). on the basis of the present
record, we are unable to evaluate the merits of Beech Fork's position. In the
interest of justice, we remand this matter to the judge, who shall determine
whether default is warranted. See Hickory Coal co., 12 FMSHRC 1201, 1202
(June 1990).

512

For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings. 1

A~n,~
Richard V. Backley, Commissioner

e~.c£i.~

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

513

Distribution
Link Chapman, Safety Director
Beech Fork Processing, Inc.
P.O. Box 190
Lovely, KY 41231
Thomas A. Grooms, Esq .
Office of the Solicitor
U. S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D. C. 20006

514

ADMINISTRATIVE LAW JUDGE DECISIONS

PBDBRAL IU1IB SAl'BTY AID> llBAL'l'll RBVI:BW COJllllSS:IOB
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR

3 1994

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 92-669
A.C. No. 15-11855-03560

v.
No. 6 Mine
MULLINS AND SONS COAL
COMPANY, INCORPORATED,
Respondent
DECISION ON REMAND

Appearances:

Jerald Feingold, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for Petitioner;
Dale Mullins, Vice President, Mullins and Sons
Coal Company, Inc., Kimper, Kentucky,
for Respondent

Before:

Judge Feldman
Statement of the case

This remand matter concerns two alleged violations.
104(d) (1) Citation No. 3809162, was issued to the respondent by
Mine Safety and Health Inspector Milburn, at 10:00 a.m., on
Monday, June 17, 1991, for an impermissible accumulation of
combustible coal dust in contravention of the mandatory health
and safetf standard contained in Section 75.400, 30 C.F.R.
§ 75.400.
Shortly thereafter, Milburn issued 104(d). {l) Order
No. 3809164 for violation of the mandatory standard in Section
75.402, 30 C.F.R. § 75.402, which requires combustible coal dust

1section

75.400 provides as follows:
"Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials,
shall be cleaned up and not be permitted to accumulate in
active workings, or on electric equipment therein."

515

to be rock dusted within 40 feet of all working faces. 2 At
trial, Dale Mullins, the corporate Vice President, · appeared on
behalf of the respondent. Mullins stipulated to the fact of
occurrence of these violations and to their significant and
substantial nature (Tr.12-13, 64-65). Therefore, the only
issue for resolution was whether these violations occurred as
a result of the respondent's unwarrantable failure.
On June 3, 1993, I issued a decision formalizing my bench
decision that the violations in issue were not attributable to
the respondent's unwarrantable failure. Mullins and Sons Coal
Company, Inc., 15 FMSHRC 1061 (June 1993). on February 9, 1994,
the Commission vacated my findings of no unwarrantable failure
and remanded this proceeding for reconsideration of my initial
decision consistent with its remand decision. Mullins and Sons
Coal Company, Inc., 16 FMSHRC ~I Docket No. KENT 92-669
(February 1994).
Background
The pertinent facts are not in dispute. On the morning of
Monday, June 17, 1991, Milburn inspected the respondent's No. 6
Mine and reviewed the preshift examination book. Coal dust
accumulations in the Nos. 1 through 6 entries in the ~o. 2
section were noted in the preshift exam book at approximately
6:00 a.m. that morning. (Tr. 11). Production commenced shortly
thereafter at approximately 7:00 a.m. 3 (Tr. 69, 133-34). The
noted accumulations occurred during the previous production day
shift on Friday, June 14, 1991. (Tr. 24-25, 69-72). There was
no continuous mining operation during the intervening Saturday
and Sunday.
(Tr. 30-31, 72, 194-95). Milburn's testimony as
well as his contemporaneous inspection notes reflect that the
subject entries are approximately 180 feet long, twenty feet wide
and 36 inches in height.
(Tr. 20, 80-81; Gov. ex. 1, pp. 6-8).
Milburn was informed prior to his inspection that the scoop was
out of service. Milburn proceeded to inspect the six entries and
observed accumulations three to six inches in depth that he
estimated to extend inby the No. 2 belt feeder approximately 180
feet in each entry.
(Joint ex. 1). Milburn also observed that
the accumulations were not rock dusted. At the time of the
inspection, the battery operated scoop usually used for removing
accumulations and for rock dusting was being charged.
(Tr. 61).
2section

75.403, 30 C.F.R.
for application of rock dust.

§

75.403, contains the standard

3

The pertinent entry in the preshift examination book
occurred shortly before commencement of production at 7:00 a.m.
on Monday, June 17, 1991. For simplicity, the preshift notation
and the start of production will be treated as having occurred
simultaneously at 7:00 a.m.

516

This scoop was a "low profile" Elkhorn scoop that was fitted with
a low frame and small tires to enable it to operate in low coal
seam entries.
(Tr. 80-81). Milburn testified that there was no
other scoop available that could be used as an alternative means
of removing the accumulations. (Tr. 93-94).
The June 3. 1993, Initial Decision
At the culmination of the hearing in this proceeding
conducted on April 14, 1993, I issued a bench decision. My
decision was based on three essential findings of fact. Namely,
the following:
1) Shoveling was not a feasible alternative
to use of the scoop given the dimensions of
the entries (15 FMSHRC at 1063 n . 3);
2) Milburn based his unwarrantable failure
findings exclusively on the fact that the
accumulations had been noted in the preshift
examination book (15 FMSHRC at 1063); and
3) Milburn considered the accumulations to be of
three hours duration (15 FMSHRC at 1063).
I issued a bench decision and a brief written decision on
June 3, 1993, formalizing my bench ruling because I viewed the
facts of this case as unambiguous and noncontroversial. I now
realize my June 3, 1993, decision did not adequately set forth
the basis for my conclusion that the Secretary had not prevailed
on the unwarrantable failure issues.
My decision with respect to the alternative of shoveling
was predicated on the fact the six entries in issue were low seam
coal entries 36 inches in height by 20 feet in width by 180 feet
in length. Accepting Inspector Milburn's approximation of coal
dust three to six inches in depth the full length of each entry ,
the accumulations amounted to between 5,400 and 10,800 cubic feet
of dust. Inspector Milburn testified the Elkhorn scoop was out
of service and no alternative scoops were available.· My
conclusion that manual shoveling was not a feasible alternative
to using the specially equipped low profile scoop was based on

51 7

Inspector Milburn's estimated size of the coal dust accumulations
and the inherent difficulty of manual shoveling in a low seam
environment. 4 In apparent recognition of the magnitude of the
cleaning task, Inspector Milburn established 1:00 p.m. on
Tuesday, June 18, 1991 (27 hours after his inspection) as the
termination deadline for the coal dust removal. Although not
addressed in the record, it is not inconceivable that the scoop
could have returned to service long before shoveling could be
completed.
Regarding the issues of the duration of the subject
accumulations and Inspector Milburn's reliance on the preshift
notation as dispositive of the unwarrantable failure question,
Milburn testified 11 • • • if there was no notation in the preshift
examiner's book, that this condition existed, prior to them
operating on this Monday, then, it wouldn't be unwarrantable
(emphasis added)." (Tr. 105, See also tr.22-24, 40). Thus,
Milburn cited the respondent for unwarrantable failure at
10:00 a.m. solely because it did not remove the subject
accumulations after they were noted by the preshift examiner at
7:00 a . m. In this regard, my June 3, 1993, decision that the
"accumulations were of three hours duration" was not intended
literally as the accumulations must have occurred before they
were noted in the preshift examination book. 15 FMSHRC at 1064.
Rather, I was referring to Inspector Milburn's issuance of
Citation No. 3809162 three hours after the accumulations were
noted by the preshift examiner. Moreover, this conclusion
comports with Inspector Milburn's testimony that 11 • • • I considered
this to be a three hour violation -- or condition, that had been

4

At trial, Mullins position was that the accumulations
could not be removed by shoveling. So overwhelmed by the thought
of shoveling, he calculated, albeit erroneously, that the
accumulations constituted over 20,000 square feet, or maybe even
40,000 square feet including the crosscuts.
(Tr. 87-88). While
this statement was made during Mullins' questioning of Milburn,
it was nevertheless Mullins' statement and position at trial.
While not presented by Mullins in his direct case, I considered
the statement as testimony given the fact that Mullins is not an
attorney. See ·Francis A. Marin v. Asarco, Inc., 14 FMSHRC 1269,
1273 (August 1992). Consequently, as the trier of fact, I did not
afford any weight to the statement attributed to Mullins at page
89 in the transcript, also not made under oath, that " ... it would
have took (sic) several shovels ... " to remove what he had
immediately preceded to describe as 40,000 square feet of
accumulations. I do not recall hearing this statement and the
statement as attributed is inconsistent with my follow-up
remarks. (See statement by the court, tr. 89). Rather it is
apparent that Mullins misspoke or was misinterpreted.

518

allowed to exist." (Tr. 24) . 5 Thus, three hours is the
operable time period for considering the unwarrantable failure
issue as this is the basis for the Secretary's case. 6
A. section 75.400 Violation
I have reviewed my initial decision in the context of the
Commission's remand decision. While I have concluded that
shoveling was not a reasonable alternative to using the low
profile scoop given the dimensions of the entries and that three
hours is the operable time period for considering the
unwarrantable failure issue, I am cognizant of the Commission's
expressed strong inclination to vacate my initial finding of no
unwarrantable failure . Therefore, I have revisited this issue.
An operator's failure to cease operations prior to the issuance
of a citation for a significant and substantial violation is not
unwarrantable per se if the operator has not demonstrated a
conscious disregard or indifference. Nor is a violation of
section 75.400 per se unwarrantable. The issue of unwarrantable
failure must be resolved on a case by case basis based on what,
if anything, the operator has done to remove the risk associated
with the hazardous condition. In this case, while the
respondent's charging of the scoop in recognition of the

5

Significantly, the Secretary does not assert that the
accumulations in issue were permitted to occur over days or weeks
as the basis for the respondent's unwarrantable failure. On the
contrary, the evidence reflects these accumulations developed
over the prior shift and that they were timely noted at the next
preshift exam.
(Tr. 24-25, 40, 69-72, 105). This conclusion
raises the question of how such extensive accumulations could
occur during only one shift. The answer lies in Inspector
Milburn's equivocal estimation of the extent of the
accumulations. As a threshold matter, Milburn testified the
accumulations were three to six inches in depth as measured by a
wooden ruler. (Tr. 20, 63). Thus, the accumulations were not
uniformly six inches in depth. More importantly, Milburn stated
he used his wooden ruler to measure the accumulations in each
entry a total of " ... four to five times on the section .•• "
(Tr . 61-62) . Five measurements are insufficient to accurately
determine the extent of accumulations in six entries each 36
inches in height and 180 feet in length.
6

While the period of accumulations during the Friday, June
14, 1991, shift is relevant to the fact of occurrence of the
violation of section 75 . 400, it is not a significant factor in
resolving the unwarrantable failure issue. Had the accumulations
been removed immediately after the preshift notation on Monday,
June 17, 1991, it is apparent that the respondent would not have
been cited for unwarrantable failure.

519

hazardous accumulations7 was something, it was not enough.
Having opted to continue operations during the charging of the
scoop, the respondent should have made a good faith attempt to
remove the accumulations by assigning adequate personnel to
manually shovel pending the scoop's return to service.
Therefore, consistent with the Commission's remand decision, I
hereby reinstate the unwarrantable failure findings in 104(d)
Citation No. 3809162. In view of the significant mitigating
factors discussed above I am assessing a civil penalty of $700
for this violation of the mandatory safety standard in section
75.400.
B. Section 75 . 402 Violation
I have also reconsidered the respondent's responsibility to
rock dust in light of the Commission's remand decision. Having
elected to continue operations, the respondent had an obligation
to neutralize the noted combustible accumulations if a means to
do so was readily available. While I have concluded shoveling
six low seam entries is labor and time intensive , the application
of rock dust is not so onerous. In addition, the Commission's
remand notes Inspector Milburn's testimony that operators are
required by safety standards to rock dust areas after coal dust
is removed.
(Tr. 150-53); 16 FMSHRC ~ , slip op. at 6.
Therefore, I have determined the mitigating circumstances
associated with the section 75 . 400 violation are not as
applicable to the rock dusting failure . Accordingly, I conclude
that the respondent's violation of the mandatory safety standard
in section 75.402 is attributable to its unwarrantable failure.
With respect to the appropriate civil penalty, for 104(d)
Order No. 3809164, I continue to believe the respondent's
notation in the preshift examination book as well as its efforts
to repair the scoop in order to remove the accumulations are
mitigating factors. Consequently, I am adjusting the civil
penalty to $800 in recognition of the increase in the degree of
respondent's negligence associated with the violation of the
mandatory safety standard contained in section 75.402.
As a final note, I am concerned that this decision may be
construed as punishing operators for acknowledging hazards in the
preshift examination book. In fact, Inspector Milburn testified
that operators are " .. . apprehensive about writing anything in the
record book ... [because] ... its MSHA's intent to use the record
books as a "Gotcha" type of record." (Tr. 54). However, such
notations constitute a recognition rather than a disregard of a
hazard. Operators should be encouraged to make preshift
7

Inspector Milburn testified that he did not consider the
subject accumulations to be an imminent danger because he found
no potential ignition source. (Tr. 42-43).

52 0

notations . Unless the operator disregards such notations and
takes no action to remedy the condition, preshift entries should
be viewed as a mitigating circumstance rather than evidence of
conscious neglect. 8 Thus, I emphasize that while the degree of
the respondent's negligence in this case was high, it would have
been significantly greater if the respondent had failed to make
the pertinent entry in the preshift examination book, or, if the
respondent had failed to make any effort to repair the scoop
after the preshift notation was made.
ORDER
In view of the above, IT IS ORDERED that the unwarrantable
failure finding in 104(d) (1) Citation No. 3809162 IS REINSTATED
and the citation IS AFPIRKED as written. The civil penalty
associated with this citation has · been increased to $700. IT IS
FURTHER ORDERED that the unwarrantable failure finding in
104(d) (1) Order No. 3809164 IS REINSTATED and the order IS
AFFIRMED as written. The civil penalty for this order has been
increased to $800. ACCORDINGLY, IT IS ORDERED that the
respondent SHALL PAY a total civil penalty of $1500 in
satisfaction of the citation and order in issue. Upon receipt of
payment, this case IS DISMISSED.

o f ~ ~-£..' . - -~::ld
Feldman
Administrative Law Judge

8

In Emery Mining Corp., 9 FMSHRC 1997, 1999 (December
1987), the Commission determined that the failure of a preshift
examiner to note loose roof bolts that had existed for at least
one week was not, alone, evidence of unwarrantable failure.
Similarly, a preshift notation of an unresolved violation is not
unwarrantable per se. Resolution of the unwarrantable failure
issue must be accomplished on a case by case basis and not
determined solely by whether or not an entry has been made by the
preshift examiner.

521

Distribution:
Jerald Feingold, Esq., U. s. Department of Labor, Office of the
Solic itor, 2002 Richard Jones Road, suite B-201 , Nashville, TN
37215 (Certified Mail)
Anne T. Knauff, Esq., Office of the Solicitor, U.S . Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Dale Mullins, Vice President, Mullins and Sons Coal Co.,
Inc., Box 4028, Upper John's Creek Road, Kimper, KY 41539
(Certified Mail)

/ 11

522

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

MAR 7 199.4
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-713
A.C . No . 15-08357-03740

v.
Camp No. 11
Docket No. KENT 93-714
A.C. No. 15-08357-03741
PEABODY COAL COMPANY,
Respondent

camp No. 11
DECISION

Appearances:

w. F. Taylor, Esq., Office of the Solicitor, u.
Department of Labor, Nashville, Tennessee, for
Petitioner;
Carl B. Boyd, Jr., Henderson, Kentucky, for
Respondent.

Before:

Judge Amchan

s.

These cases arise out of several different inspections of
Respondent's Camp No. 11 underground mine in Union county,
Kentucky. At the outset of the hearing three citations were
settled. With regard to citation Nos. 3547717 and 3547573,
Respondent agreed to withdraw its contests of the proposed $50
penalties. Petitioner modified citation 3547578 to "non
significant and substantial" and reduced the proposed penalty
from $309 to $50 .
I find that the settlement of these penalties
is consistent with section llO(i) of the Act and, therefore,
grant the parties' motion for approval of this partial
settlement.
Contested Penalties
Citation 3860644: Rock Dust
On January 25, 1993, MSHA Inspector Harold Gamblin took band
samples of the rock dust on the mine floor, roof and ribs, i n an
area leading to the working face of respondent's mechanized
5 23

mining unit #5 (Tr. 17-20, 26, 44). Gamblin began taking samples
at a point 2,300 - 2,500 feet from the working face and stopped
taking them about 300 to 500 feet from the working face (Tr. 46 47, 68).
In some of the areas sampled, the rock dust appeared to
be inadequate in that the surface sampled was black in color,
while adequate rock dusting normally gives the surface a white or
grayish appearance (Tr. 21).
Inspector Gamblin's rock dust samples were sent to the MSHA
laboratory which analyzed them and reported the results to his
office in Madisonville, Kentucky (Exh. G-1, pp . 3 - 6). All 10
samples taken in the return aircourse complied with MSHA
standards, but 5 of 25 taken in the intake aircourse did not
(Exh. G-1, pp. 3-6).
MSHA regulations, at 30 C.F.R. § 75.403, require that the
incombustible content of the combined coal dust, rock dust and
other dust shall not be less than 65 percent, but not less than
80 percent in return aircourses. Where methane is present in any
ventilating current the incombustible content of the combined
dust must be increased by 1 percent in those areas where the 65
percent standard would otherwise be in effect, and must be
increased by 0.4 percent in return aircourses.
As rock dust is 100% finely ground limestone and coal dust
is combustible, a sample which contains an insufficient
percentage of incombustible material indicates that an
insufficient amount of rock dust has been applied to the surfaces
in the mine (Tr. 23). Inadequate rock dusting may increase the
severity of a fire or explosion if one should occur (Tr. 22-23,
36-37, 58, 73-74).
Increased combustibility of the dust in the
mine would propagate a fire or explosion (Tr. 73-74).
Analysis of Mr. Gamblin's samples revealed that sample
375937, taken 1500 feet inby from the point where the sampling
started had an incombustible content of 59.7%. sample 375940
taken 500 feet inby the starting point was 64% incombustible.
Sample 375950 taken 500 feet inby the starting point was 56.9%
incombustible. Sample 375952, taken 1500 feet inby was 51%
incombustible. Sample 375953, taken 2,000 feet inby, and 300 500 feet from the working face was 64.3% incombustible (Exh. G-1
pp. 4-5, Tr. 68).
After receiving the laboratory results, Inspector Gamblin
issued Respondent citation No. 3860644 on March 18, 1993 He
characterized the violation as "significant and substantial" and
Peabody's negligence as "moderate." A $1,019 penalty was
proposed for the violation.
The "S&S" characterization was predicated in large part on
the fact that after taking the rock dust samples Inspector
Gamblin found methane concentrations in excess of 2.5 percent

524

inby the site of the samples, 34 feet from the working face for
mechanized mining unit# 5 (Tr. 36 - 37, 51). As the result of
his methane readings, Inspector Gamblin issued Respondent an
imminent danger order pursuant to section 107(a) of the Act
(Tr. 65).
Inspector Gamblin also found loose coal or coal dust
accumulations in the same areas in which the rock dust violations
were discovered (Tr. 33-34, 312). He cited Respondent for a
violation of 30 C.F.R. § 75.400 on account of these accumulations
(Tr • 3 3 - 3 4 , 3 12 ) .
Citation 3860644: Analysis
Respondent does not dispute the fact that a violation
occurred with respect to citation No. 3860644; it contests the
characterization of the citation as "S&S" and the assessment of
the gravity for penalty calculation purposes (Respondent's
Answer).
The Commission formula for a "significant and substantial"
violation was set forth in Mathies Coal Co. 6 FMSHRC 1
(January 1984) '~.
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: {l)
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 central issue in this case concerns the application of
step 3 of the Mathies test. The Commission's decisions in
Shamrock Coal Company, 14 FMSHRC 1306 (August 1992), cited in
Respondent's post-hearing brief, and Texasgulf, 10 FMSHRC 498
{April 1988) support the proposition that a rock dust violation
is "S & S" only if other conditions that make an accident
reasonable likely exist at the same time, or are reasonably
likely to occur in the future.
In Texasgulf permissibility
violations were found non "S&S" because there was no evidence
that ignitible or explosive concentrations of methane were likely
to occur in Texasgulf's mine. The Commission relied on low
methane readings the day of the violation, the absence of any
methane explosions or ignitions at the mine in the past, and the
geological characteristics of the mine.
In Shamrock 31 of 38 rock dust samples in the return
aircourse were violative, some as low as 56% instead of the
required 80%. The Commission affirmed the judge's finding that
this violation was non "significant and substantial" and

525

implicitly rejected the Secretary's argument that the judge
failed to give proper consideration to "normal mining practices"
14 FMSHRC 1310.
The Commission concluded that the judge did not err in
finding these violations to be non "significant and substantial"
because of the absence of a "confluence of factors" which would
make an explosion or ignition reasonably likely to occur, 14
FMSHRC 1311.
It noted that there was no indication that the mine
had experienced methane ignitions in the past or that it
liberated excessive quantities of methane. The Commission also
relied on the lack of evidence regarding impermissible equipment
or violative coal dust accumulations on the day of the rock dust
violation.
The question then becomes whether respondent's violation of
30 C.F.R.§ 75.403 is "significant and substantial" because MSHA,
on January 25, 1993, also detected in excess of 2.5% methane at
the working face, about 800 to 1,000 feet from several obviously
violative rock dust samples, and discovered loose coal
accumulations near areas that were inadequately rock dusted. 1
Respondent's compliance manager, Mitchell David Fuson disagreed
with MSHA that conditions on January 25, 1993, were such that an
explosion or fire were reasonably likely (Tr. 304-313, 317-318,
319-320). His testimony in this regard is predicated on the fact
that the rock dust violations were in the intake aircourse and
that coal dust accumulations were not sufficient to cause an
explosion.
Despite Mr. Fuson's opinion, I conclude that there was a
reasonable likelihood of an ignition or explosion when inspector
Gamblin detected methane concentrations of 2.5%. 2 At the time
mining operations were ongoing (Tr. 304, 312-313). MSHA
regulations at 30 C.F.R. § 75.323 require the withdrawal of
miners from intake air courses when methane levels reach 1.5%.
From this I conclude that at such concentrations an· explosion or
ignition is reasonably likely.
Indeed, the Commission has
recognized that methane is ignitable at a 1 . 0 to 2.0 percent
concentration Texasgulf, 10 FMSHRC at 501.
Although this record indicates that an explosion is far more
likely to travel out the return aircourse than the intake
1I

exclude consideration of the two samples that were barely
under the required 65 percent.
2Inspector

Gamblin's testimony indicates methane
concentrations may have been even higher, possibly in the
explosive range, at the working face. He was unable to take
samples any closer to the face because the roof was not supported
(Tr . 61) .

526

aircourse, it does establish that they may travel through the
intake side (Tr. 58, 65). Moreover, I infer from the requirement
for rock dusting in the intake air courses that the danger of an
explosion traveling through that aircourse is sufficiently likely
to meet the requirements of the Mathies test. As I find no
serious issue with regard to the other criteria set forth in
Mathies, I find this violation to be "significant and
substantial."
I find further that an $800 civil penalty is appropriate for
this violation considering the factors set forth in section
llO(i) of the Act. The gravity of the violation warrants such a
penalty because the increased danger to employees caused by
inadequte rock dusting might have caused injury to miners who
otherwise would not have been hurt, or resulted in more severe
injuries than would otherwise have occurred.
I concur with inspector Gamblin's characterization of
Respondent's negligence as moderate. He based this in part on
the fact that the areas in which the violations occurred would
not have been s.ubjected to a pre-shift examination.
I also take
into consideration the fact the return areas were adequately rock
dusted and most of the intake areas sampled were in compliance as
well.

Peabody is large operator and an $800 penalty will have no
adverse impact on its ability to stay in business. Respondent
demonstrated good faith in abating the violation.
I see no
reason to either raise or lower the penalty on the basis on
Peabody's history of prior violations of the Act.
Citation 3547572: Airflow in the Belt Entry
On April 3, 1993, MSHA ventilation specialist, Troy Davis,
conducted an inspection accompanied by Peabody representative,
Clifford Alexander. At about 8:00 or 8:30 a.m. the inspection
party passed an overcast on the belt line leading to mechanized
mining unit #2, which was damaged later in the morning.
When the
inspection party passed by, there was nothing wrong with the
overcast (Tr. 336).
The inspection party proceeded to the working face of unit
#2 and performed a thorough ventilation inspection (Tr. 328). On
the way back, Inspector Davis took some airflow readings in the
neutral entries occupied by the conveyor belt (Tr. 99). At
crosscut 31, one crosscut outby the beltline's tailpiece, Davis
took two airflow readings that averaged 16 fpm (feet per
minute) (Tr. 100). Peabody's ventilation plan required an airflow
of 50 fpm .
The reason for the 50 fpm requirement in Respondent's
ventilation plan is that Peabody had installed a low-level carbon

5 27

monoxide detection system in some of its conveyor belt entries
(Exh. G-3, pp. 18 - 21). To insure that fires are detected
promptly, Respondent's amended approved ventilation plan requires
that air velocity of 50 feet per minute be maintained in the
conveyor belt entries relying on the carbon monoxide detection
system (Exh. G-3, pg. 18, paragraphs 3 and 4). The detectors are
spaced 2,000 feet apart and, thus, an air velocity of 50 fpm will
insure that any rise in carbon monoxide levels due to fire will
be detected in 40 minutes or less (Tr. 138).
When Mr. Davis obtained the 16 fpm air velocity readings,
Mr. Alexander attempted to get in touch by telephone with
Terry Hall, the mine foreman. After one or two unsuccessful
attempts to reach Mr. Hall, Alexander was able to reach him in
approximately twenty minutes (Tr. 333). Alexander told Hall about
Mr. Davis' air velocity readings. Mr. Hall informed Alexander
that somebody had run into the overcast, which separates intake
air and return air (Tr. 103-104). The overcast was being
repaired while they spoke (Tr. 136-137, 145). While
Mr. Alexander was talking to Mr. Hall, Inspector Davis took
another sample of the air velocity and found that it was back up
to 86 fpm (Tr. 102, 334).
As a result of the 16 fpm readings, inspector Davis issued
Respondent citation No. 3547572 which alleged a "significant and
substantial" violation of 30 C.F.R. § 75.370(a) (1). That
regulation requires the operator to follow its approved
ventilation plan. A $1,610 penalty was proposed.
Analysis
I find that Respondent did violate the regulation as alleged
but that the violation was not "significant and substantial" and
that a penalty of $50 is appropriate pursuant to the criteria set
forth in section llO(i) of the Act. The record establishes that
the violation was inadvertent in that airflow was reduced due to
the accident involving the overcast. Moreover, there is nothing
in the record indicating the degree of negligence responsible for
this accident.
More importantly, the record establishes that the violation
was abated almost as soon as Respondent became aware of the
damage to the overcast. Indeed, Mr. Hall had the overcast
repaired before he was made aware of the resulting drop in
airflow.
In applying the third element of the Mathies test to
this violation, I conclude that given the prompt abatement of the
violation by Respondent, in it unlikely that miners would be
injured in this or similar situations occurring in the normal
course of mining operations. Therefore, I find the violation to
be non "significant and substantial."

528

Mr. Davis opined that Mr. Hall should have notified the
supervisory personnel inby the damaged overcast. Further, Davis
believes that Hall should have had the miners working inby this
point removed to a point outby the damaged overcast until he
established that air velocity had been restored to levels
required by the ventilation plan (Tr. 120, 148-151) 3 •
However, I
find it difficult to fault Mr. Hall for not taking such steps
even if he realized that airflow inby the damaged overcast could
not have been in compliance with the ventilation plan.
I find that Mr. Hall responded reasonably in correcting the
problem at its source rather than taking the time consuming steps
of removing employees. It might be otherwise if Mr. Hall was
aware of the reduced airflow but not what was causing it.
However, since Mr. Hall could reasonably assume that fixing the
overcast would restore the necessary airflow in very short time,
I do not consider him negligent for failing to pull his employees
outby the damaged overcast.
The violation may have lasted for only about 20 to 25
minutes (Tr. 137). Respondent's ventilation plan allows for a
lapse of up to 40 minutes for the carbon monoxide monitors to
detect a fire (Tr. 138).
Considering all the facts surrounding
this violation I deem the gravity of the violation and
Respondent's negligence to be very low. Adding to that,
Respondent's almost immediate abatement of the problem--without
prodding from MSHA, I conclude that a $50 penalty is appropriate.
Citation 3860363 and 3860368: Roof Dust in the Haulage Roads
On April 5, 1993, MSHA Inspector Robert Meadows observed 2
piles of roof dust 8 feet apart sitting in a haulage road leading
to mechanized mining unit 001-0 (Tr. 170 - 171). Roof dust
consists of rock, shale and, in some instances, a significant
amount of quartz (Tr. 258). The piles of roof dust were about a
foot high and 2 1/2 feet wide. There were tire tracks running
through the piles (Tr. 173).
As a result of these observations, Meadows issued Respondent
citation No. 3860363 alleging a "significant and substantial"
violation of 30 C.F.R. § 75.370(a) (1). A $506 penalty was
proposed for the violation. A factor in assessing the gravity of
the violation is that mechanized mining unit 001-0 was operating

3

The Secretary contends that Respondent violated 30 C.F.R.
(Tr. 149, Petitioner' brief at
page 11). Section 75.324 pertains to intentional changes in the
ventilation system and is not applicable to the circumstances of
this citation.
§ 75.324 in proceeding as it did

529

pursuant to a requirement that miner exposure to respirable dust
not exceed 1.7 mg/m3 due to the elevated quartz content of the
dust in that area of the mine (Tr. 169).
The cited regulation requires compliance with the operator's
approved methane and dust control plan (Exh. G-6). That plan
requires that roof dust be deposited against the rib of the last
open crosscut or in any entry or room near the rib outby the last
open crosscut (Exh G-3, page 3 of plan).
The danger created by deposited roof dust in haulage roads
is that when vehicles travel through such deposits, they increase
the amount of dust in the air which can be inhaled.
This can
contribute to the development of pneumoconiosis or silicosis
(Exh. G-8).
Respondent takes issue with the characterization of this
violation as "significant and substantial." The appropriate
criteria for "S&S" with regard to respirable dust is set forth in
Consolidation Coal Co., 8 FMSHRC 890 (June 1986), aff'd sub nom.
Consolidation Coal v. FMSHRC, 824 F. 2d 1071 (D.C. Cir. 1987).
As formulated in Consolidation Coal. supra, the question at
step 3 of the Mathies test for respirable dust is whether there
is a reasonable likelihood that the health hazard contributed to
will result in an illness. Piles of roof dust in travelways are
reasonably likely to contribute to the hazard that miners may
develop pneumoconiosis or silicosis. While two piles of roof
dust observed on one day may not be reasonably likely to lead to
occupational illness, if such conditions continue to exist in the
normal course of mining operations, it is likely that they will
contribute to the likelihood that serious respiratory disease
will result.
The fact that no samples were taken of the roof dust piles
in this case has no bearing on whether this violation was
significant and substantial. If roof dust is deposited in
travelways, in the normal course of mining operations, it is
likely that there will be an increase in the amount of respirable
dust and quartz that is inhaled by miners.
Prevention of respiratory disease requires not only
compliance with the exposure limit in section 70.lOO(a) but also
with specific work practice requirements, such as depositing roof
dust outside of travelways.
If these requirements are not
strictly adhered to, overexposure may occur which may not be
reflected in bi-monthly sampling4 •
I regard any violation that
4

If the sampling is done on days on which such violative
conditions do not exist, or are conditions to which the
designated miner sampled is not exposed, the sampling results may

5 30

may in the normal course of mining operations unnecessarily
expose miners to additional amounts of respirable 9ust or quartz
to be "significant and substantial." The rebuttable presumption
that violative sampling results are "S&S" is applicable to this
citation by way of analogy.
Citation No. 3860368 was issued for conditions very similar
to those relating to citation No. 3860363. On April 5, Inspector
Meadows discussed the roof dust citation with Respondent's
walkaround representative, Mitchell David Fuson, who assured him
that the violation would not recur (Tr. 183).
Three days later,
near the 005 working section, Meadows came upon two more roof
dust piles sitting in the middle of a travelway (Tr. 183). As in
the prior instance, equipment tracks ran through the dust piles.
The gravity of the violation on April 8 was somewhat less
than that of ·April 5, in that the dust in the 005 section did not
have an elevated quartz content. On the other hand, Respondent's
negligence was greater in that it had been specifically told of
the need for greater attention for proper disposal of roof dust
and the deposits in this instance should have been discovered by
pre-shift and ~n-shift examiners (Tr. 188-189).
I assess a $506 penalty for each of these citations. The
gravity of the first violation--given the quartz content of the
dust, warrants such a penalty. Although the gravity of the April
8 violation was less, the higher degree of negligence warrants a
$506 penalty in consideration with the other statutory factors. 5
Citation 3860369: Trailing Cable Exposed to Damage
In the course of his inspection of the 005 mechanized mining
unit on April 8, 1993, MSHA Inspector Meadows came across a 990
volt trailing cable, part of which had come out into a roadway.
This cable was coiled up behind a power transmission center and ·
was providing power to a continuous mining machine approximately
200 feet away. The exposed portion of the cable had tire tracks
over it and was being mashed into the ground (Tr. 193 - 194).
on the basis of his observations, Meadows issued Respondent
citation No. 3860369 alleging a "significant and substantia·1 11
Footnote 4 continued.
be misleadingly low.
5Despite the fact that the 005 section did not have an
elevated quartz content in its dust, I have applied the same
rationale in concluding citation No. 3860368 to be "significant
and substantial" as I applied with regard to citation No.
3860363.

531

violation of 30 C.F.R. § 75 . 606. That regulation requires that
"[t]railing cables shall be adequately protected to prevent
damage by mobile equipment." A $288 penalty was proposed for
this alleged violation.
Respondent concedes that the condition violated the cited
standard but takes issue with the gravity assigned to the
violation (Respondent's Answer). The thrust of Respondent's
argument is that a 990 volt cable has safety features that make
injury fairly remote if the cable is damaged by mobile equipment.
The dangers of explosion and electrical shock mentioned and
experienced by Inspector Meadows (Tr. 195 - 197) are
substantially reduced because the live electrical wires inside a
990 volt cable are wrapped in a metal shield that is grounded
(Tr. 276).
If the cable is damaged and the wires touch the metal
shield, power to the cable will be cut off at the circuit breaker
(Tr.
276, 289 - 292). Lower voltage cables, such as the 440
volt cables which injured Inspector Meadows, do not have such
protective features (Tr. 277). Sam Sears, the chief electrician
for Peabody at Camp 11, characterizes the potential for explosion
of a damaged 990 volt cable as "minimal." (Tr. 278)
Analysis

I presume from the regulation that MSHA deemed it reasonably
likely that injury would result in the normal course of mining
operations if trailing cables are not protected from damage.
However, this citation presents the complicating factor that
there have apparently been technological changes since the
standard was promulgated . The 990 volt cables, with the internal
protection devices described by Mr. Sears, have apparently been
in use only since the 1980s, while the standard was promulgated
in 1969 (Tr. 296).
It is quite clear that injury is far less likely to occur
due to mobile equipment running over a 990 volt trailing cable
than it is from similar damage to a lower voltage cable. On the
other hand, the record indicates that injury is possible if there
are failures elsewhere in the system which would prevent the
circuit breaker from cutting off power to the cable (Tr. 295) .
Obviously, if there is an injury it is likely to be more serious
the higher the voltage of the trailing cable.
The question then becomes whether the remote possibility
that a number of factors corning together may cause injury meets
the criteria for a significant and substantial violation under
the Mathies and U. S. Steel Mining tests. To find that such a
possibility does not meet this criteria would mandate a finding
of non "significant and substantial" and indicate that
noncompliance with this requirement will normally bring only a
$50 penalty from MSHA pursuant to 30 C.F.R. § 100.4.

53 2

In Peabody Coal Company, 15 FMSHRC 2578, I concluded that I
would presume that MSHA deemed injury reasonably likely unless
the operator established that the cited condition was
distinguishable from those addressed by the regulation.
In this
case, since the 990 volt cable with its internal protective
devices was not in use when the standard was promulgated, I find
that Respondent has met that burden. Given this fact and my
conclusion that the degree of negligence, Respondent's history of
violations, good faith etc., do not warrant a higher figure, I
conclude that this violation is non "significant and substantial"
and assess a $50 penalty.
Citation 9898030: Respirable Dust
On March 23 and 24, 1993, Respondent conducted its bimonthly respirable dust sampling as required by 30 C.F.R.
§ 70.207 on the continuous miner operator of mechanized mining
unit oos-o (Exh. G-11). The samples taken by Respondent were
analyzed by MSHA's Pittsburgh laboratory and were reported to
average 2.5 mg of respirable dust per cubic meter of air, a level
that exceeds the 2.0 mg/m3 limit set by MSHA's regulations at 30
C.F.R. § 70.lOO(a) (Exh G-11, page 2).
On the basis of these results, MSHA inspector issued
Respondent citation No. 9898030 on April 2, 1993, alleging a
significant and substantial violation of section 70.lOO(a).
The company sampled again between April 13 and 15, 1993 and
obtained an average respirable dust concentration of 0.8 mg/m3
(Exh. G-11, page 4).
Respondent in its post-hearing brief indicates an intention
to withdraw its contest to the $1,019 penalty proposed for this
citation. Therefore, I assess a civil penalty in this amount.
There is a rebuttable presumption that respirable dust violations
are presumed to be significant and substantial Consolidation Coal
Co. v. FMSHRC, 824 F. 2d 1071 (D. C. Cir. 1987). That
presumption has not been rebutted in this case.
The April sampling results suggest that compliance with the
standard is achievable if proper attention is given to work
practices and dust control measures. Given the importance of
controlling respiratory dust exposures in the statutory scheme, I
consider any violation of 70.lOOa to very grave and any violation
to be evidence of a considerable degree of negligence. The fact
that the March samples were above the permissible limit suggests
that during this time period employees were regularly overexposed
to excessive concentrations of respirable dust.
Given the gravity of the violation and Respondent's
negligence, I conclude that the $1,019 penalty proposed is
appropriate even after considering Peabody's good faith in

533

abating the violation. Such a penalty is also appropriate
considering the company's size . and prior history of. violations.
The penalties in this case obviously do not compromise Peabody's
ability to stay in business.
ORDER
The citations at issue in this case are affirmed and
Respondent is ordered to pay the penalties set forth below within
30 days of this decision:
Citation

Standard

Assessed Penalty

3547578
3547717
3547573
3860644
3547572
3860363
3860368
3860369
9898030

75.370(a) (1)
75 . 360(c) (1)
75.370(a) (1)
75.403
75.370(a) (1)
75.370(a) (1)
75.370(a) (1)
75.606
70.lOO(a)

50*
$
$
50
50
$
$ 800
50*
$
$ 506
$ 506
$
50*
$1,019

Total:

$3,081

* Citation modified to non "significant and substantial"
violation.

o.~ ~~ c)!~___.ArthOr J. Amchan
Administrative Law Judge
703-756-6210
Distribution:

w. F. Taylor., Esq., Office of the Solicitor, U. s. Dept. of
Labor, 2002 Richard Jones Rd., Suite B-201,
2862 (Certified Mail)

Nashville~

TN 37215-

Carl B. Boyd, Jr., Esq., Suite A, 120 N. Ingram St., Henderson,
KY 42420 (Certified Mail)
/jf

534

:rBDBRAL llI11B SUBTY AllD mL'l'll uvxn COJllllSS:IO•
OFFICE OF ADMINISTRATIVE LAW JOOGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 7 1994
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MSHA, on behalf of
DANNY SHEPHERD,
Petitioner
v.

Docket No . KENT 94-69-D
BARB CD 93-25
BARB CD 93-27

SOVEREIGN MINING COMPANY,
Respondent

Mine No . 1
DECISION APPROVING SETTLEMENT
Before:

Judg~

Feldman

On October 28, 1993, the Secretary filed an Application
for Temporary Reinstatement on behalf of Danny Shepherd. The
respondent did not contest the reinstatement application.
Consequently, on November 18, 1993, I issued an Order requiring
the respondent to reinstate Shepherd immediately. 15 FMSHRC 2365
(November 1993).
On December 3, 1993, the Secretary filed a Motion to
Compel Compliance with my November 18, 1993, reinstatement order.
The Secretary's motion was based on the respondent's alleged
circumvention of my order as a result of the respondent's
contemporaneous reinstatement and "layoff" of Shepherd on
November 19, 1993 . On December 17, 1993, the Commission remanded
this matter to me for consideration of the issues raised in the
Secretary's Motion to Compel and the respondent's response.
Secretary, on Behalf of Danny L. Shepherd v. Sovereign Mining
Company, 15 FMSHRC 2450 (December 1993).
Consistent with the Commission's Remand Order, I
participated in several conference calls with the parties.
These conference calls culminated in a conference on
February 8, 1994, wherein the parties informed me that they had
reached settlement. A Joint Motion to Approve Settlement was
filed on February 23, 1994.
The terms of the agreement are that Danny L. Shepherd agrees
to withdraw the instant temporary reinstatment application.
Shepherd also agrees to withdraw his most recent discrimination
complaint filed with the Mine Safety and Health Administration
(MSHA) on December 2, 1993, after his November 19, 1993 layoff.
(Case No. MSHA BARB-CD-94-10). In addition, Shepherd will also
535

withdraw the underlying discrimination complaints involved in
this action (Case Nos. BARB-CD-25 and 27), all of which are
currently pending before MSHA. Finally, the Secretary agrees to
file the necessary documents to dismiss a related civil penalty
proceeding against the respondent in Docket No . KENT 94-265 .
In consideration of the above noted actions by
Danny L. Shepherd and the secretary, sovereign Mining Company
agrees:
1. To pay Shepherd $10,000 in liquidated damages;
2 . to pay $2,250 in attorney fees to the Mine Safety Project
of the Appalachian Research and Defense Fund of Kentucky;
and
3. to pay MSHA $2,750 . 00 in satisfaction of the proposed
civil penalty for Citation No. 3402675, which was issued
by MSHA to Sovereign Mining on November 23, 1993 . 1
The settlement agreement further provides that all payments
are to be made within ten days of the execution date
(February 22, 1994) of the agreement. Finally, sovereign Mining
Company agrees to expunge all records of Shepherd's past
discrimination complaints. If contacted by a prospective
employer of Shepherd, Sovereign Mining agrees not to divulge any
information concerning Shepherd's activities other than the dates
of Shepherd's employment with the company.
After careful consideration of the joint settlement motion,
I conclude that the settlement disposition is reasonable and in
the public interest. ACCORDINGLY, in view of the mutually
agreeable settlement, the settlement terms ARE APPROVED and the
joint motion to dismiss this temporary reinstatement proceeding
IS GRANTED.

Jerold Feldman
Administrative Law Judge
(703) 756-5233

1

This citation is not before me. It is mentioned solely to
document the terms of the settlement agreement.

53 6

Distribution:
Carl c. Charneski, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Leroy B. Lackey, Jr., President, sovereign Mining company, P.O.
Box 450, Dwarf, KY 41739 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project, 630 Maxwelton Court,
Lexington, KY 40508 (Certified Mail)

/11

53 7

l'BDBDL lallB SUBTY UD BBAL'l'B uvxn COlllUSS:COB
OFFICE OF ADMINISTRATIVE LAW JtJ>GES

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

22041

MAR 7 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF
DANNY SHEPHERD,
Complainant

TEMPORARY REINSTATEMENT PROCEEDING
Docket No. KENT 94-396-D
BARB CD 94-02
Mine No. 1

v.
IRISHMAN ELKHORN COAL
COMPANY,
Respondent
ORDER OF TEMPORARY REINSTATEMENT
Before :

Judge Feldman

The Secretary has filed an application for Temporary
Reinstatement pursuant to Section 105(c) (2) of the Federal Mine
Safety and Heal th Act of 1977, 30 u.s.c . § 815(c) (2), on behalf
of Danny Shepherd. Shepherd was employed by the Irish Elkhorn
Coal Company at its No . 1 Mine from September 30, 1993, until
October 8, 1993, when he was discharged.
The Secretary's reinstatement application is supported by an
affidavit of Lawrence M. Beeman, Chief, Office of Technical
Compliance and Investigation for Coal Mine Safety and Health,
Mine Safety and Health Administration. Beeman's affidavit
alleges that Shepherd engaged in several protected activities,
including his refusal to operate a continuous mining machine in
an unsafe condition, his distribution of miners' rights booklets
to mine personnel and his statements to miners that they did not
have to work under various unsafe conditions.
The Secretary's application was served upon Billy R. Watson,
general manager of the respondent, and attorney C. Graham Martin,
on February 4, 1994. Commission Rule 45(c), 29 CFR. § 2700.45(c)
in part provides: "Within ten days following receipt of the
Secretary's application for temporary reinstatement, the person
against who relief is sought shall advise the Commission's Chief
Administrative Law Judge or his designee and simultaneously
notify the Secretary, whether a hearing on the application is
requested. If no hearing is requested, the Judge assigned to the
matter shall review immediately the Secretary's application and,
538

if based on the contents thereof the Judge determines that the
miner's complaint was not frivolously brought, he shall issue
immediately a written order of temporary reinstatement."
The Secretary's application was followed by a letter
filed on February 22, 1994, requesting Shepherd's reinstatement
in view of the respondent's failure to request a hearing in this
matter. Therefore, Commission Rule 45(c) requires me to review
the Secretary's application to determine if Shepherd's complaint
has not been frivolously brought.
The "not frivolously brought" standard set forth in Section
105(c), 30 u.s.c. § 815(c), is satisfied when there is a
reasonable cause to believe that the underlying discrimination
complaint is meritorious. J. Walter Resources v. Federal Mine
Safety and Health Review Commission, 920 F.2d 738, 747 (11th Cir .
1990). Thus, the Secretary must prevail on an application for
temporary reinstatement if the facts supporting the application
are not insubstantial or frivolous. Id. at 747. Beeman's
affidavit subll\itted in support of the Secretary's application
specifies alleged protected activities that are contemporaneous
with Shepherd's employment termination which occurred on or about
October 8, 1993. Consequently, I conclude that Shepherd's
complaint is not clearly without merit or pretextural in nature.
Therefore, I find that Shepherd's complaint has not been
frivolously brought.
Accordingly, the Irishman Elkhorn Coal Company ZS ORDERED to
immediately reinstate Danny Shepherd to the position from which
he was discharged on or about October 8, 1993, or, to an
equivalent position, at the same rate of pay and with the
equivalent benefits. Shepherd's entitlement to backpay and
benefits shall be calculated from the date of this order.
/

//{~~~,
Jerold Feldman
Administrative Law Judge
(703) 756-5233
Distribution:
Carl c. Charneski, Esq. Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project, 630 Maxwelton Court,
Lexington, KY 40508 (Certified Mail)
Billy Watson, General Manager, Irishman Elkhorn Coal Company,
Inc., P.O. Box 729, Hindman, KY 41922 (Certified Mail)
539

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

MAR

7 1994

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 93-215
A. C. No. 12-02033-03589

v.

Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent
DECISION
Appearances:

Before:

Lisa A. Gray, Esq., Office of the Solicitor,
U. S. Department of Labor, Chicago, Illinois,
for the Secretary;
Patrick A. Shoulders, Esq., Ziemer, Stayman,
Weitzel & Shoulders, Evansville, Indiana,
for Respondent.

Judge Maurer

This case is before me based upon a petition for assessment
of civil penalty filed by the Secretary of Labor (Secretary)
alleging a violation of the mandatory standard found at 30 C.F.R.
§ 75.400. 1 Pursuant to notice, the case was heard in
Evansville, Indiana, on November 30, 1993. Both parties have
filed posthearing briefs with proposed findings of fact and
conclusions of law and I have considered them in the course of my
adjudication of this matter.
The citation at bar, Citation No. 4053641, was issued by
Inspector James Holland of the Mine Safety and Health
Administration {MSHA) as a result of his inspection at the Buck
Creek Mine on March 31, 1993. The citation was issued pursuant
to section 104(d)(l) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801, et seq., the "Act", and alleges a
1

/
30 C.F.R. § 75.400, "Accumulations of combustible
materials," provides:

Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
540

"significant and substantial" violation of the standard at
30 C.F.R. § 75.400 and charges that "Accumulation ·of loose fine
coal and float coal dust, black in color was permitted to
accumulate underneath the belt conveyor, tail roller, and feeder
from the check curtain behind the feeder and extended inby the
feeder and including all three dumping points, a distance of
116 feet.
The accumulations ranged from 2 inches to 3-1/2 feet
in depth and 18 feet in width . "
Findings of Fact and Discussion
Inspector Holland testified that after observing the cited
condition , an accumulation of loose coal, coal fines, and float
coal dust, black in color, he measured the length, depth, and
width of the accumulations with a measuring tape in the presence
of the Buck Creek Mine Manager, Charlie Austin and the miner's
representative, Ron McGhee. These measurements are recorded on
the face of the citation as being from 2 inches to 3-1/2 feet in
depth, 18 feet in width and for a distance of 116 feet. The
heaviest accumulations were located at the dumping points of the
feeder, where the inspector acknowledges you generally allow a
certain amount of coal to accumulate, but at some point, even
that has to be cleaned up as well . The accumulations he cited at
the dumping points exceeded the bounds of the normal limits in
his opinion, and I agree.
In fact, I find the respondent has generally failed to rebut
the inspector's factual testimony vis-a-vis the extent of the
cited accumulations and accordingly, I conclude that the coal
accumulations cited by the inspector in the course of his
inspection did in fact exist and that those accumulations
constituted a violation of 30 C.F.R. § 75.400.
The "Significant and Substantial" Issue
A "significant and substantial" violation is described in
section 104{d) {l) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum co., 3 FMSHRC 825 {April 1981).
In Mathies Coal Co . , 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and

541

substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard;
(2)
a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation;
(3)
a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4)
a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U. S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
1984); u. s. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Further, any determination of the significant
nature of a violation must be made in the context of continued
normal mining operations. National Gypsum, supra, 3 FMSHRC at
825; Halfway, Incorporated, 8 FMSHRC 8, 12 (January 1986).
The Secretary has established by a clear preponderance of
the evidence that a violation of 30 C.F.R § 75.400 existed.
Furthermore, Inspector Holland's unrebutted testimony credibly
establishes that there were substantial accumulations of loose
coal, coal fines and float coal dust, in the feeder area,
particularly at all three dumping points and the tailpiece. The
tail roller was completely covered and was turning in the coal
fines.
The inspector also noted that the color of the accumulations was black. The significance of that fact being an
indication that the accumulation was not mixed with rock dust and
therefore not of the proper incombustible content. A heated
roller turning in that combustible material could easily be an
ignition source which could in turn cause a fire.
I also take
notice that the existence of nearby combustible material would
serve to propagate any fire that got started from a hot roller.
I therefore find that the cited accumulations presented a

542

discrete safety hazard - a fire hazard. Additionally, Inspector
Holland credibly testified and I accept his opinion, that in the
event of a fire, smoke and gas inhalation by miners in the area
would cause a reasonably serious injury requiring medical
attention.
Therefore, I find that in the normal course of continued
mining it was reasonably likely that an ignition would have
occurred, a fire would have resulted and that in that event,
fire-related injuries of a reasonably serious nature would have
been reasonably likely to occur. Accordingly, I conclude that
the cited violation was "significant and substantial" and
serious.
The "Unwarrantable Failure" Issue
The Secretary also alleges the violation was the result of
the respondent's "unwarrantable failure" to comply with the cited
standard.
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and
"negligence'' (the failure to use such care as a reasonably
prudent and careful person would use, and is characterized by
"inadvertence," "thoughtlessness," and "inattention"). 9 FMSHRC
at 2001. Unwarrantable failure is characterized by such conduct
as "reckless disregard," "intentional misconduct," "indifference''
or a "serious lack of reasonable care." 9 FMSHRC at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94
(February 1991). The Commission has also stated that use of a
"knew or should have known" test by itself would make unwarrantable failure indistinguishable from ordinary negligence, and
accordingly, the Commission rejected such an interpretation . A
breach of a duty to know is not necessarily an unwarrantable
failure. The thrust of Emery was that unwarrantable failure
results from aggravated conduct, constituting more than ordinary
negligence. Secretary v. Virginia Crews Coal co., 15 FMSHRC
2103, 2107 (October 1993).
The inspector made this a "d" citation based on several
factors. He testified at Tr. 17-18:
Q. In your opinion, did the Operator exhibit
aggravated conduct constituting more than ordinary
negligence in allowing this violation to take place?
A.

Yes

54 3

Q. What facts did you rely upon in determining
this was an unwarrantable condition?
A. The fact that the pre-shizt exam had been
made, and the section foreman had been on the unit
approximately an hour and a half before I arrived, and
there wasn't nothing, no action being taken on the
condition.

Q. And did you rely upon anything else in
determining that this was an unwarrantable failure to
comply?
A.

That's all.

He later added that he had previously issued an "a" citation for
the same type violation in the same area earlier that month for a
less severe condition, and he opined that from his experience, he
felt the materials he cited had been allowed to accumulate for at
least three shifts. However, he also admitted on crossexamination that he had no factual basis for that opinion, other
than his long experience in the coal mining business.
I also note from the record that there was no one working to
correct the cited condition when tre inspector discovered it and
that factor greatly influenced him toward the "d" citation vice
an "a" citation .
The respondent vigorously opposes the "unwarrantable
failure" finding.
Firstly, respondent, through Mr. Gary Timmons, their Safety
Director, produced the on-shift examination of the belt conveyors
for the date in question performed by the belt examiner between
6:00 a.m. and 7:00 a.m. (an hour or two prior to Inspector
Holland's arrival). This examination would have included the
feeder area and tail roller. No accumulations were noted. He
also produced the pre-shift mine examiner's report for March 31,
1993, for the Section 002 Unit that was made by Roger Austin from
5:30 a.m. to 6:05 a . m. This report was called outside at
6:30 a.m., or approximately an 1-1/2 hours before the inspector's
visit . Again, the feeder and the belt in the cited area were
inspected with no accumulations noted . Mr. Timmons also
sponsored the daily and on-shift report of the section foreman on
the previous shift, which states his crew cleaned the feeder at
5:00 a.m., or approximately 3 hours before the inspector cited
it .
Somewhat incongruously, although Inspector Holland opined
that the accumulations had been present for at least three
shifts, he did not cite the respondent for any failures or
omissions in these prior examinations. The inspector admitted at

544

trial that this was an inconsistency on his part; he should have
issued a second citation for an inadequate preshift examination.
Mr . Hedgepath, a shuttle car operator, testified that he
personally "scooped" or cleaned the feeder area and then ran his
shuttle car for approximately 30 minutes prior to the citation
being written. But he explained that you could still have piles
of coal in "furrows" because he had to be careful with the scoop
bucket or he would hit and damage the feeder.
He also testified
that he had personally cleaned the tail roller that morning and
it was running freely when he started dumping coal into the
feeder.
Mr. Wayne Laswell, the section foreman, was made aware that
the feeder was stopped at approximately 7:50 a.m., to "scoop" it
in order to clean up coal accumulations. Half an hour later he
was surprised to hear that they had a "d" citation issued for
accumulations in the feeder area. He testified that "I thought
it was just cleaned. That's what they told me." Furthermore, he
was under the impression from the preshift examination that he
came on the shift with a clean report.
Respondent's defense to the unwarrantable failure finding is
somewhat illogical. On the one hand, their evidence would tend
to show that no excess accumulations existed in the feeder area
prior to the start of the shift in question. On the other hand,
Mickey Hedgepath testified that he had to scoop up the cited area
at the beginning of the shift because a shuttle car was "hung-up"
in loose coal. He also testified that there were still
substantial coal accumulations piled up in "furrows" even after
he cleaned the cited area and started dumping coal into the
feeder himself. Hedgepath estimated that he scooped up three
buckets of loose coal at the start of the shift, yet there were
no accumulations noted in the preshift examiner's report. Where
did all this coal suddenly come from? The only reasonable answer
seems to be that it was there all the time.
I note here as an
aside the obvious fact that just because these accumulations were
not recorded in the preshift examiner's report does not necessarily mean the feeder area was clean at that time.
It may only
mean that the examiner failed to see and/or record the
accumulations, and certainly does not bar an unwarrantable
failure finding .
Respondent appears to be relying chiefly on the testimony of
the section foreman, Laswell, that he was unaware of the violative condition that existed and had a right to rely on the clean
preshift examination report . But assuming, arquendo, that this
was so, the lack of actual knowledge by Laswell and/or other mine
management likewise does not preclude an unwarrantable failure
finding from being affirmed herein.

545

The Commission has previously recognized as relevant to
unwarrantable failure determinations such factors as the extent
of a violative condition, or the length of time that it has
existed, whether an operator has been placed on notice that
greater efforts are necessary for compliance, and the operator's
efforts in abating the violative condition. See, ~, Quinland
Coals, 10 FMSHRC 705, 708-09 (June 1988); Youghiogheny & Ohio
Coal Company, supra, 9 FMSHRC at 2011; Utah Power & Light Co.,
11 FMSHRC 1926, 1933 {October 1989); and Peabody Coal Co.,
14 FMSHRC 1258, 1261 (August 1992).
The accumulations, if we believe the testimony of the
inspector, and I do, were extensive. His testimony as to amounts
of material, measurements, and so forth, is unrebutted in the
record . Mr. Hedgepath even corroborates his testimony to some
extent.
He testified that up to 9 inches of coal under the
feeder was a "natural" or "regular" accumulation. And in the
area of the dumping points, his idea of a "regular" accumulation
is up to the point where a shuttle car gets hung-up in a pile of
coal, and they can no longer go on. Only then does anyone clean
up the accumulated coal.
While there is no direct evidence in the record as to how
long the accumulations were there, the preponderance of the
circumstantial evidence would appear to indicate that they
existed at least as far back as the previous shift. It just does
not ring true that if the area had just been cleaned at
5:00 a.m., and been given a clean preshift examination at
6:00 a.m., that there would be enough coal piled around the
feeder by 7:00 a.m., to hang-up a shuttle car. Moreover, there
was enough coal accumulated at that point around the belt
conveyor and feeder to cause Mr. Hedgepath to scoop up three
scoops full of loose coal in a bucket that is 12 or 13 feet wide.
Then, after only 20-25 minutes of mining on that shift, the
inspector found the accumulations he described in his citation,
which was yet still enough coal and coal dust to fill another
scoop bucket in order to abate the violation.
It took five
employees approximately 2-1/2 hours to clean up the excess coal
accumulations in that area .
This operator has also had prior notice that a problem with
coal and coal dust accumulations existed in the cited area and
indeed the mine generally . Inspector Holland himself issued a
citation for the same violation in the same location on March 4,
1993, some 3 weeks before the "d" citation at bar. Additionally,
it is noteworthy that the respondent received a grand total of
nine citations for violations of 30 C.F.R. § 75.400 just during
the month of March 1993, alone. This indicates to me that the
operator has been placed on notice that greater efforts are
necessary for compliance with this particular standard.

546

At the time the inspector issued the instant citation, no
abatement efforts were underway to remove the accumulations. The
coal mining operation was going on as usual, as if nothing was
amiss. This was one of the factors the inspector cited in
deciding on a "d" citation instead of the garden variety 104(a).
Under all the circumstances found in this record, I find a
clear lack of due diligence, indifference, and a lack of reasonable care demonstrating aggravated conduct of both omission and
commission on the part of the operator, constituting an
"unwarrantable failure" to comply with the standard in question.
Considering all of the six statutory criteria contained in
section llO(i) of the Act, I find that the civil penalty proposed
by the Secretary in this case is appropriate, reasonable, and in
the public interest .
ORDER
Section 104(d) (1) Citation No . 4053641 IS AFFIRMED .
Respondent is directed to pay a civil penalty of $2000 for the
violation found herein.

.

~~
I

Roy . f#aurer
Adm{ is;rative Law Judge
Distribution:
Lisa A. Gray, Esq . , Office of the Solicitor, U. s. Department of
Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Patrick A. Shoulders, Esq., Ziemer, Stayman, Weitzel & Shoulders,
1507 National Bank Building, P . o. Box 916, Evansville, IN 47706
(Certified Mail)
dcp

547

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

MAR

~ 1994

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

CIVIL PENALTY PROCEEDING
Docket No. VA 93-72-M
A. c. No. 44-02385-05511
Connor Sand

D. M. CONNOR SAND COMPANY,
Respondent

DECISION
Appearances:

Patrick L. DePace, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, VA
for Petitioner;
Humes J. Franklin, Jr., Waynesboro, VA
for Respondent.

Before:

Judge Weisberger

This case is before me based upon a Petition for
Assessment of Civil Penalty filed by the Secretary (Petitioner)
seeking a civil penalty of $539 1 for the alleged violation, by
the Operator of various mandatory regulatory standards.
Pursuant to Notice, the case was scheduled for hearing on
November 9, 1993 in Charlottesville, Virginia. on November 9,
1993, before the hearing commenced, I inquired of counsel if
there had been any recent discussion concerning settlement of
all, or some of the citations at issue. Counsel requested time
to discuss settlement. Counsel advised me that a settlement had
been reached regarding all citations at issue. The parties moved
for approval of the settlement which reduces the proposed penalty
for Citation No. 4084309 from $189 to $50, and amends the
citation to non-significant and substantial. The parties also
seek approval of the Operator's agreement to pay the full penalty
assessed for citation numbers 4084310, 4084312, 4084313, 4084314,
4084316, 4084317, 4084318, 4084319, and 4084320.

1

At the hearing, counsel for the Secretary asserted that
the proposed assessment in error sought a penalty for citation
No. 4084315, and that the reference to this citation is to be
excluded from the proposed assessment.

548

I have considered the representation of coun~el, the
documentation in this case, and the testimony of the inspector
who issued these citations. I conclude that the proposed
settlement is appropriate within the preview of section llO(b) of
the Federal Mine Safety and Health Act of 1977. The Motion to
Approve the settlement is Granted.
It is ORDERED that the operator, D.M. Connor Sand Company,
pay, within 30 days of this decision, $500 as a civil penalty.

~

L-

ram Weisberger
Administrative Law Judge
Distribution: ·
Patrick L. DePace, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Humes J. Franklin, Jr., Franklin, Franklin, Denney & Ward,
P.O. Drawer 1140, Waynesboro, VA 22980 (Certified Mail)
/efw

549

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

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

MAR 9 1994

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-1279
A.C . No. 46-01453-04048

v.
Mine: Humphrey No. 7
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Charles M. Jackson, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Petitioner;
Daniel E. Rogers, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Barbour

In this proceeding the Secretary of Labor (Secretary), on
behalf of his Mine Safety and Health Administration (MSHA) and
pursuant to Sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977 (Mine Act or Act) seeks the assessment of
civil penalties against Consolidation Coal Company (Consol) for
four alleged violations of mandatory safety standards for
underground coal mines found in Part 75 of Title 30, Code of
Federal Regulations (C.F.R.). The Secretary also alleges that
two of the violations constituted significant and substantial
contributions to mine safety hazards (S&S violations) and that
one of the S&S violations was caused by Consol's unwarrantable
failure to comply with the cited standard . The purported
violations are alleged to have occurred at Consol's Humphrey
No. 7 Mine, an underground bituminous coal mine located in
Monogalia County, West Virginia.
Consol denied the Secretary's allegations and a duly noticed
hearing on the merits was conducted in Morgantown, West Virginia .
SETTLEMENTS
At the commencement of the hearing, counsel for the
Secretary announced the parties had settled two of the alleged
violations and he moved for approval of the settlement.
CITATION NO.
3108480

DATE
5/26/92

ASSESSMENT
30 C.F.R. S
75.1106-3(a) (3)
$50.00

55 0

SETTLEMENT
$50.00

The citation was issued when MSHA Inspector Thomas w. May,
Sr., observed two compressed gas cylinders that were· not
protected against contact with power lines. May concluded that
it was unlikely an injury would occur as a result of the
condition and that the condition was due to Consol's moderate
negligence. counsel for the Secretary stated that Consol agreed
to pay-in-full the proposed civil penalty. Tr. 10.
CITATION NO.
3108497

DATE
5/27/92

30 C.F.R. S
75.1722(a)

ASSESSMENT
$189.00

SETTLEMENT
$113.00

The citation was issued when MSHA Inspector Charles J.
Thomas observed a guard on a belt conveyor takeup pulley that was
not placed so as to prevent a person from getting a hand caught
between the pulley and the belt. Thomas concluded. the violation
was S&S and was due to Consol's low negligence.
Counsel for the
Secretary stated that while the guard was in fact not in place,
an area guard at the end of the belt discouraged and perhaps even
prevented persons from being in the vicinity of the inadequately
guarded pulley. Tr. 10. Therefore, the Secretary requested the
citation be modified to indicate an injury was unlikely and that
the violation was not S&S. Tr. 11.
APPROVAL OF THE SETTLEMENTS
Based upon counsel's representations and the other
applicable civil penalty criteria discussed below, I APPROVE the
settlements. I will order payment of the agreed upon civil
penalties, as well as modification of Citation No. 3108497, at
the close of this decision.
STIPULATIONS
Prior to the taking of testimony the parties stipulated, in
pertinent part, as follows:
1. Consol is the owner and operator of
the Humphrey No. 7 Mine.
2. Operations of Consol are subject to
the jurisdiction of the Mine Act.
3. The case is under the jurisdiction
of the Federal Mine Safety and Health Review
Commission and its designated administrative
law judge.

551

4. Individuals whose signatures appear
in block 22 of the subject citations and ·
orders at issue in this proceeding were
acting in their official capacity and as
authorized representatives of the Secretary
when each of the subject citations and orders
was issued.
5 . True copies of each of the subject
citations and orders were served on Consol or
its agent as required by the Mine Act.
6. The total proposed penalty for the
citations and orders at issue will not affect
Consol's ability to continue in business.

*

*

*

See Tr. 7-8 (non-substantive editorial changes made).
CONTESTED VIOLATIONS
CITATION NO.
3108488

DATE
5/18/92

30 C.F.R. S
75.303

PROPOSED PENALTY
$267

The citation states:
In the 6 southwest longwall section a
danger sign is not posted at the approach to
a roof fall over the stage loader and
headgate .
Gov. Exh. 5.
In addition to finding a violation of
section 75.303, the inspector found the violation to be S&S .
Effective November 16, 1992, section 75.303 was revised and
replaced by 30 C.F.R. § 75.360. 57 FR 20914(May 15, 1992),
34683(August 6, 1992), 53857 (November 13, 1992).
RELEVANT TESTIMONY
THE SECRETARY'S WITNESS
Charles J . Thomas

Thomas stated that on May 17, 1992, he arrived at the
Humphrey No. 7 Mine at approximately 11:30 p.m. He was there to
conduct an inspection . Tr. 21-22. Thomas knew there had been a
roof fall at the mine and he wanted to see it. Tr . 69-70. He
proceeded underground accompanied by Benny Strahin, Consol's
safety escort, and Mike Plevich, the representative of miners.
Tr. 22.

552

Upon approaching the headgate at the 6 southwest longwall
section, Thomas observed a roof fall that nearly covered the
stage loader. The fall was approximately 45 feet long, 15 feet
wide and at points 6 to 8 feet high. The stage loader measured
approximately 50 feet long, 8 feet wide and 3 to 4 feet high.
Tr. 27. There was fallen rock on both sides of the stage loader.
Tr. 63. Although a person had to be careful of his or her
footing, a person could travel on either side of the stage
loader. Tr. 63
Thomas explained that coal from the longwall was dumped into
the stage loader to be crushed and conveyed to the tailpiece of
the section conveyor belt. Tr. 28. As the longwall advanced the
stage loader was shoved down the headgate entry by jacks built
into the base of the longwall roof support shields. Tr. 29
The roof fall had occurred 30 or 40 hours before Thomas
viewed it. Tr. 30. Thomas testified he could see that Consol
had removed approximately 15 feet of the fallen roof from the
longwall end of the stage loader. However, much of the stage
loader remained \covered. Tr. 35, 72, 74.
When standing in the headgate entry facing the longwall, the
controls for the stage loader were located on its left side,
approximately in the middle of the equipment. Tr. 39; see
Gov. Exh. 6.
(Thomas could not recall if the controls were
covered by rock when he saw the loader. Because of the bad roof
he did not proceed inby to the controls. Tr. 75) The controls
governed the power to the stage loader, the longwall shear and
the longwall chain conveyor. While there were other controls for
these latter pieces of equipment, power to them initially was
turned on and off at the stage loader. Tr . 40. In fact, coal
could not be cut without power being turned on and off at the
stage loader controls and when the longwall was operating, there
was always a man miner stationed at the stage loader.
Tr. 41, 71.
In Thomas' opinion, despite the roof fall, mining had taken
place between the time of the fall and the time he obse.rved the
area. As a consequence, the stage loader had been pushed down
the tailgate entry about 15 feet. Tr. 42, 44. To have advanced
the stage loader, a person would have had to travel to the
controls of the equipment and turned on the power. Tr. 45.
In addition, during this time a pre-shift examination had
been conducted. Tr. 82.
(A pre-shift examination was carried
out every eight hours. Id.) On May 18, the shift started at
12:01 a . m., Thomas cited the alleged violation at 3 : 20 a.m.
The
pre-shift examiner would have observed the roof fall area some
time between 9:00 p.m. and midnight on May 17 . Thomas believed
it likely that the conditions observed by the pre-shift examiner

5 53

in the headgate entry were essentially the same as those he
observed. Tr. 99-100.
If the pre-shift examiner found a condition hazardous to
persons who might enter or be in the area, section 75.303
required the posting of a "danger" sign at all points where
persons would be required to pass. In Thomas' opinion, a sign
should have been posted at the tail end of the stage loader
because the area of the roof fall was hazardous and miners had to
advance into the area to get to the controls of the stage loader.
Tr. 47 . The fall had left the roof with hanging rock that could
drop at any time. Tr. 84, 85. Thomas saw no sign posted,
warning of danger, in the vicinity of the stage loader . Tr . 23.
Thomas told Strahin that he, Thomas, was going to issue a
citation to Consol for failing to post a danger sign.
Id. No
explanation was offered to Thomas as to why a danger sign was not
posted. Tr. 42.
Thomas acknowledged that one crosscut over from the tailgate
entry and one block of coal inby, a danger sign had been posted
above a check curtain, but Thomas described this as the "back
side" and indicated miners no longer used the area in which the
sign was placed to enter the area where the stage loader was
located. Tr. 47.
Thomas believed the area was hazardous for another reason -he speculated that miners would climb on top of the stage loader
to get to the longwall face . There was 3 or 4 feet between the
fallen rock on top of the stage loader and the roof and in
Thomas' opinion, this was enough room for a person to travel over
the stage loader to the longwall face. Tr. 54, 87.
Thomas' fear was that any miner who entered the headgate
entry in the vicinity of the stage loader could be struck by rock
falling from the roof cavity. Tr . 48 . Thomas did not recall
that any efforts had been made to support the roof in the area of
the fall, but agreed that some posts or cribs might have been
installed. Tr. 49, 160, 163. If so, he still regarded the area
as hazardous because rock could have fallen between the cribs or
posts and struck a miner. Tr. 49. Without a danger sign posted,
a person who was not familiar with the longwall section could
walk right into the dangerous area without knowing it. Tr. 56.
Even miners, familiar with the area, needed to be reminded of the
dangerous roof. Tr. 64, Tr. 44; Gov. Exh. 6.

A miner who was hit by falling rock could have been
seriously injured. In addition, it was "reasonably likely," in
Thomas' opinion, that a miner would suffer such an injury.
Miners walk under bad top because, "[T)hey like to see what's
there." Tr. 65. It does not happen frequently, but it happens.
Id.

554

Consol's management was negligent in not posting the danger
sign. one had been posted on the backside of the fall, so
management obviously knew signs were supposed to be hung.
Tr. 66. The sign should have been posted when the fall was
discovered. Tr. 67.
CONSOL'S WITNESS
Benjamin F. Strahin

Benjamin F. Strahin, Consol's safety escort, was with Thomas
the day Citation No. 3108488 was issued. Strahin stated that
when Thomas told him Consol needed to post a danger sign in the
stage loader area, he responded, one was not needed because there
was "no place to go." Tr. 106. According to Strahin, a crib had
been build between the stage loader controls and the rib. The
crib was 3 inches from the controls and its other side was flush
with the rib. To get beyond the controls, a miner wold have had
to tear down the crib. Id. The other side of the stage loader
was set with posts. Tr. 109. In addition, a steel crossbar was
installed over the stage loader and under the roof, one end of
the crossbar was on the crib and the other end was on a post.
Id., Tr. 109, 112-113, 157.
Strahin stated that when he arrived
at the stage loader, it was possible to walk up the right side of
the stage loader to the longwall face. Tr. 112.
According to Strahin, when he and Thomas arrived, only about
15 to 20 feet of the fall remained to be cleaned up. He stated
that the way the fall was cleared from the stage loader was to
use the ramjacks to push the loader forward so that the rock fell
onto the panline and passed through the crusher. Tr. 114-115.
(In other words, the stage loader had to be operating to clean up
the fall.)
Strahin agreed that there was rock on the stage loader and
removal of the larger pieces could have required a miner to be at
the controls of the stage loader. Tr. 141. Strahin confirmed
that power for the longwall was turned on at the controls of the
stage loader. He maintained, when he and Thomas observed the
area, a miner would not have had to proceed under unsupported
roof to get to the controls. Tr. 116-117. However, he stated it
was possible that before they saw the area a miner would have had
to go under unsupported roof to get to the controls. Tr. 156 .
To abate the violation, Strahin put a danger sign on the crib .
Tr. 117.
The pre-shift examination book contained entries indicating
the presence of the fall from 40 hours before the subject
inspection until after the violation was abated. Tr. 121.
In Strahin's opinion, the fall was noted in the pre-shift book so
that a foreman new to the section would understand he needed to
keep an eye on the area. Tr. 122. Strahin agreed that the roof

555

fall was noted under a section in the book where observed
violations or hazardous conditions were reported. Tr. 125-126.
Strahin maintained that although a miner could have crawled
over the rock on top of the stage loader to attempt to get to the
longwall face, no one would have been "dumb enough" to do it.
Tr. 136. There would have been no purpose in such a venture.
There were other and easier ways to reach the face.
Tr. 158-159.
THE VIOLATION
Section 75.303 stated in pertinent part that if the
pre-shift examiner "finds ... 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." There is no question that a danger sign was
not posted at the approach to the stage loader in the headgate
entry of the 6 southwest longwall section. The issue is whether
conditions in the area were hazardous to a person who might enter
or be in such area.
I conclude, the answer is "yes" and that a
violation existed.
I accept Thomas' testimony that when he observed the area,
there was fallen roof from the headgate end of the longwall up to
the area very near the stage loader's controls.
I further accept
his testimony that although cleanup was in progress at the
headgate end of the longwall, the fallen roof had not been
removed from the entire area and that a significant portion of
-the entry, including much of the stage loader, remained covered.
However, I also conclude Thomas' memory was not infallible .
He could not. recall if rock from the fall actually covered the
controls of the stage loader or if a crib had been erected
adjacent to the controls or if posts had been set between the
stage loader and the solid. strahin's testimony was much more
specific with respect to the presence of the crib and posts and I
find it entirely believable the crib and posts were in place.
After all, the roof fall had occurred some 30 to 40 hours before
Thomas arrived on the scene, some cleanup had been in progress
and it makes sense that between the fall and the time Thomas saw
the area, Consol would have made efforts to alleviate the danger.
Because I accept Strahin's testimony that the crib was
adjacent to the stage loader's controls, I do not believe that
when Thomas observed the area, miners would have _had to stand
under unsupported roof when at the controls of the stage loader.
Further, I am not persuaded, as Thomas seemed to maintain, that
miners who traveled the headgate entry between the loader and the
solid were subject to danger because roof could fall from between
the posts and strike them. Tr. 49. Posts are a perfectly
acceptable means of roof control and there is no indication the

556

roof was supported inadequately by the posts. Therefore, I am
not convinced that at the time Thomas viewed the area, there was
a present hazard to miners.
In addition, I find the inspector's theory that miners would
climb on the top of the stage loader in order to travel toward
the longwall face, too far fetched to credit.
I agree with
Strahin, there would have been no purpose to it . There were
easier ways to get to the face. A mine operator need not
anticipate and protect against totally bizarre behavior.
All of this said, I nonetheless, conclude a violation
existed between the time the roof fell and the time Thomas
arrived on the scene. It is important to remember, as Strahin
explained, that cleanup of the fall began at the longwall end of
the stage loader and that as the clean up progressed, the stage
loader was shoved down the entry. Tr. 114-115 .
Strahin believed
that 15 or 20 feet of the fall was left when the inspection party
arrived on the section which means that 20 to 25 feet of the
approximate 40 feet of fall had been cleaned up. Tr. 114.
Thomas believed that approximately 15 feet of the fall had been
cleaned. Tr. 74. Whoever is right, it is clear that to clean up
the fall, the stage loader and longwall face equipment had to be
energized. To energize the equipment, a person had to use the
controls on the stage loader. Because the stage loader moved as
the fall was cleaned up, the position of the controls would have
been closer to the headgate and to the longwall than they would
have when Thomas observed them. Therefore, they also would have
been a similar and significant distance away from the location of
the crib.
In other words, during the cleanup operations that
took place after the fall and before the area was first observed
by Thomas, a miner or miners would have had to be in a then
hazardous place, i.e., at the stage loader controls.
The area had to be pre-shift examined before the cleanup
operations began. The pre-shift examiner should have noted the
hazardous condition of the roof in the area of the stage loader
and should have made sure a danger sign was posted.
SIGNIFICANT AND SUBSTANTIAL
The test set forth by the Commission in Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January 1984), for determining whether a
violation is S&S is well known and need not be repeated here.
I have concluded a violation of then mandatory safety standard
section 75.303(a) existed. Moreover, I find the evidence
establishes a discrete safety hazard in that by failing to post a
danger sign, the pre-shift examiner did not give visual, written
notice to miners traveling to the controls of the stage loader
that the roof overhead was hazardous. Had a sign been posted, a
miner or miners might not have worked under unsupported roof and
been subjected to serious injury from roof fall .
Fortunately, an

5 57

injury did not occur, nonetheless, one was reasonably likely.
Between the time the fall occurred and the area was .observed by
Thomas, a miner or miners had traveled to the stage loader
controls and worked in an area of unstable and unsupported roof,
and each minute spent in the area increased the likelihood of
injury from further roof fall during the course of continuing
mining operations. While it is true that the lack of a danger
sign was not likely to be the immediate cause of an injury, it
was an important catalyst for the prevention of such an injury
and thus was a significant and substantial contribution to the
hazard to which the miner or miners were subjected. Therefore,
I conclude the violation was properly designated S&S .

GRAVITY
As set forth more fully below, the concept of gravity
involves analysis of both the potential hazard to miners and the
probability of the hazard occurring . Here, the hazard was that a
miner or miners would travel under unsupported and dangerous roof
and be subjected to injury because of the operator's failure to
warn against the danger . A miner or miners traveling to the
controls of the stage loader would be intent on the job at hand,
a posted reminder of the danger overhead would have altered them
to the danger and would have reminded them to stop. Rational
people do not purposefully subject themselves to serious injury.
I conclude this was a serious violation .

NEGLIGENCE
The condition of the roof was obvious, as was the fact the
roof had to be cleaned up and a miner or miners had to travel to
the controls of the stage loader. By not posting a danger sign,
the pre-shift examiner failed to meet the standard of care
required of him. He was negligent and his negligence is
attributable to Consol .

ORDER NO.
3108477

DATE
5/20/92

30 C.F.R. §
75 . 1104

PROPOSED PENALTY
$900

The order states:
The underground storage area for
lubricating oil and grease located at B block
on the 7 North supply track is not fireproof.
There is an area 31.5 ft. x 10 ft . that has
exposed coal roof with wooden planks. (#1)
There [are] 57 - 5 gal. containers of gear
oil (285 gal.), (#2) 84 - 5 gal. containers
of permissible hydraulic fluid (420 gal.),
and (#3) 25 - 5 gal containers of grease,
hydraulic oil and permissible hydraulic fluid

55 8

with the tops open. Under this area, the
mine floor has grease and oil soaked into
the pavement. This is an area that is
pre-shifted and should have been reported.
It appears that all the mine roof had been
covered with metal at one time.
Gov. Exh. 9.
The order was issued pursuant to section 104(d) (2)
of the Act.
30 u.s.c. § 814 (d) (2).
In addition to finding a
violation of section 75.1104, the inspector also found the
violation was the result of Consol's unwarrantable failure to
comply with the cited standard.
RELEVANT TESTIMONY
THE SECRETARY'S WITNESS
Thomas w. May, Sr.
On May 20, 1992, May conducted an inspection at the Humphrey
No. 7 Mine.
Upon arriving at the mine, he went to the mine
office and checked the company's pre-shift examination books .
In the pre-shift book for the track haulage, May observed that
pre-shift examinations had not been recorded for areas near the
haulage tracks around the tipple. Tr. 171.
(The tipple is the
coal haulage car loading point and there are two belts that dump
onto it.
Tr . 273.)
After reviewing the pre-shift books, May proceeded
underground accompanied by John Weber, Consol's safety escort,
and Sam Woody, the miners' representative.
The inspection party
traveled by rail through the area of the haulage car loading
point to another part of the mine.
Later in the day, the
inspection party returned and stopped. May began an inspection
of the area adjacent to the loading point to determine whether it
had been pre-shift examined, even though the examination had not
been recorded .
Tr. 176-177. (May found the pre-shift examiner's
initials and the date and time of the examination recorded on a
date board in the area. Tr . 177)
Along the way to the date board, May passed a grease and
oil storage area. May entered the storage area and observed oil
and grease spilled on the mine floor.
In addition, containers
of grease, oil and emulsion fluid were stored in the area -57 - 5 gallon containers of grease and oil and 84 - 5 gallon
containers of permissible hydraulic fluid .
Tr. 182-183, 204-205.
Further, 25 - 5 gallon containers of grease, hydraulic oil and
permissible hydraulic fluid were lidless.
They had been used and
thrown in the area. They contained residues of their original
contents. Tr. 178, 183-183, 203-204. Also, a 31 1/2 feet by
10 feet area of roof in the storage room did not have metal
affixed to it.
The metal had been there once, but had been

55 9

removed, exposing the coal roof. Tr. 180-181. In May's opinion,
these conditions violated section 75.1104 in two ways. First,
the exposed area of the roof was not of fireproof construction
and, second, not all of the containers of grease, oil and
emulsion fluid were closed. Tr. 182.
The hazard was one of a rapidly spreading fire that could
not be contained once an ignition occurred. Tr. 183.
(May
testified that although metal over the roof coal would not
prevent the roof from eventually catching fire, it would slow the
time needed for it to ignite. Id.)
Ignition sources were
adjacent to the storage area, in that the area was 5 feet from a
high voltage cable and 8 feet from a supply track trolley wire.
Tr. 183-184. In addition, there was another trolley wire located
approximately 15 feet from the area on the side opposite the
supply track trolley wire. The second trolley wire ran along a
track spur. Tr. 185.
If a fire started, it could have lead to injuries from smoke
inhalation, as well as burns to those fighting it. Tr . 185. In
addition, some of the smoke and fumes would have traveled over
the coal car loading point . The person most likely to be
affected was the tipple operator, who was always at the coal car
loading point. It was possible also that a person traveling by
rail past the area could have been affected. Tr. 188, 195. May
believed, however, that such injuries was unlikely because the
series of events needed for an ignition were unlikely -- events
such as a short circuit of the high voltage cable in the
immediate vicinity of the storage area or damage to the trolley
wires. Tr. 186 .
In May's opinion, because the area had to be pre-shift
examined, Consol should have known of the condition of the
storage area. Tr. 189. May related that Weber told him that
several months before the inspection the part of the mine
containing the storage area was idle. The missing metal roof
covering was removed at that time in order to be used elsewhere
in the mine, and it was not replaced . Tr. 190. May believed the
area had been reactivated approximately 1 to 1 1/2 months before
he observed the alleged violation. He based his opinion upon his
recollection of seeing oil cans stored in the area at that time.
Tr. 190-191. Moreover, he believed that there had been
approximately one-hundred pre-shift examinations since he
first noticed the oil cans. Tr. 202. Not only was the area
pre-shifted examined three times a day, but a shift foreman would
stop in the area on a daily basis. Tr. 192. The failure to
fireproof the roof and to secure the lids to the used oil, grease
and hydraulic fluid containers were unwarrantable because of the
three daily visits by the pre-shift examiner and because miners
who put the used containers in the area were acting on the direct
orders of the shift foreman . Tr. 193.

560

To abate the alleged violation, Consol put metal over the
exposed roof coal, cleaned the oil cans and rockdus·ted the
storage area floor.
Tr. 195-196.
John Weber
Weber described the storage area. The walls were made of
cement block. There was a doorway-type opening, approximately 6
feet wide, in the east wall parallel to the track and an opening
approximately 2 feet wide, in the west wall nearest the spur and
the car loading point. Part of the roof of the storage area was
covered with tin. Tr. 210. The empty containers lay under this
part of the roof. Weber agreed that some of the empties
contained the remains of their former contents. Tr. 211. Sealed
containers were located at the other end of storage area under
the portion of the roof that lacked metal. Tr. 210-211.
Weber stated the area had been used to store oil for "quite
some time." Tr. 213. He maintained that a person riding on the
track could "look right in" through the 6 foot opening. Tr. 213.
He also believed that a person looking at the roof of the storage
area from the track could determine the metal was missing .
Tr. 213-214. However, usually a person would not have reason to
look into the storage area. Tr. 216.
When asked whether the storage area was subject to pre-shift
examinations, Weber responded that if a miner was going to work
in the area, the area had to be examined. Tr. 207. Weber did
not believe that Consol was negligent in allowing the alleged
violation. Tr. 217. He asserted that MSHA's inspectors had
passed the area many times and never issued a citation. The
company, like the inspectors, simply had taken the area for
granted. Tr. 217-218.
THE VIOLATION
Section 75.1104 requires in pertinent part that
"(u]nderground storage places for lubricating oil and grease ...
be of fireproof construction" and that ''lubricating oil and
grease •.. be in fireproof, closed metal containers." Counsel
for Consol agreed at the hearing that the cited conditions
constituted "a clear violation" and I find the violation existed
as charged. Tr. 248.
GRAVITY
May did not find that the violation was S&S in neither the
Secretary's petition for assessment of civil penalty nor his
subsequent pleadings and oral argument did counsel for the
Secretary make that allegation. Therefore, the seriousness of
the violation is before me only with respect to gravity, that is,

561

with respect to one of the statutory criteria I must consider in
assessing a civil penalty for the violation.
30 U.S.C. § 820(i).
It has long been recognized that in the context of mine
safety law, the gravity criterion requires that a violation be
analyzed in terms of the potential hazard to the safety of miners
and the probability of such hazard occurring.
In addition, the
potential adverse effects of any violation must be determined
within the context of the conditions or practices existing in the
mine at the time the violation was detected . Robert G. Lawson
Coal Co . , 1 IBMA 115, 120 (1972).
Here, the potential hazard to the safety of miners was grave
indeed.
If a fire had started in the storage area the residue of
the lubricants in the opened containers would have fed it, as
would the exposed roof coal. Obviously, miners fighting a
storage area fire would have been subject to the possibility of
serious burn injuries. An even greater danger to miners would
have been the smoke and toxic fumes, which would have traveled to
the coal car loading point and beyond.
May's testimony regarding the probability of a fire was
unequivocal. He clearly stated it was unlikely and the Secretary
produced no other witnesses to gainsay him in that regard.
It is
the Secretary's point to prove and I accept the testimony of the
inspector, especially since none of the potential ignition
sources mentioned by May were in the oil storage area.
I agree
with May that the improbability of a fire made this a non-serious
violation .
UNWARRANTABLE FAILURE

The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence
by a mine operator in relation to a violation of the Act .
Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December
1987). The Commission has explained that this determination is
derived, in part, from the ordinary meaning of the term .
"unwarrantable" ("not justifiable" or "inexcusable"), "failure,"
("neglect of an assigned, expected or appropriate action") and
"negligence" ("the failure to use such care as a reasonably
prudent and careful person would use, characterized by
'inadvertence,' 'thoughtlessness,' and 'inattention'.")
Eastern
Associated Coal Corporation, 13 FMSHRC 178, 185 (February 1991),
citing Emery, 9 FMSHRC at 2001.
May's finding of unwarrantable failure mainly was premised
upon his belief the storage area had to be pre-shift examined and
that numerous pre-shift examinations had been made while the
violative conditions existed. Tr. 193, 202. Weber confirmed
that if a miner is assigned to work in an area, the area must•be

562

pre-shift examined. Tr . 207. While not able to give a certain
date regarding how long the area had been used to store
lubricants, Weber stated it had been "quite some time." Tr. 213 .
The many stored lubricants and lidless containers corroborate his
opinion and I accept it as true. In addition, the metal had been
missing from the roof for "quite some time . " The area was/or
should have been pre-shift examined for this same time period.
The record reveals no excuse for Consol's pre-shift examiners
allowing the condition of the roof and that of the lidless
containers to remain uncorrected. Both conditions were visually
obvious. The repeated failures to correct the conditions
constituted more than ordinary negligence. The violation was
unwarrantable.
OTHER CIVIL PENALTY CRITERIA
The history of previous violations at the Humphrey No . 7
Mine indicates that in the 24 months prior to the May 18, 1992,
656 violations were assessed and paid by Consol and that in the
24 months prior, to May 20, 1992, 663 violations were assessed and
paid. Of these \ violations, 19 were violations of section 75 . 303
and 2 were violations of section 75.1104. Gov. Exh. 1. While
the overall history of previous violations at the mine is large ,
the history of the particular violations at issue in this
proceeding is not so large as to otherwise increase the penalty
assessed.
Consol is a large operator and the Humphrey No . 7 Mine is a
large mine. The parties have stipulated that the total penalties
proposed will not affect Consol's ability top continue in
business and I find the same is true for any penalty assessed.
Stipulation 6.
Finally, Consol exhibited good faith in
attempting to achieve rapid compliance after being cited for the
violations.
CIVIL PENALTIES
The Secretary has proposed a civil penalty of $267 for the
violation of section 75.303 . The violation was S&S anq serious.
It was caused by Consol's negligence. Given the fact that Consol
is a large operator with a history of previous violations, I find
the Secretary's proposal inadequate. I therefore conclude a
civil penalty of $500 is appropriate for the violation.
The Secretary has proposed a civil penalty of $900 for the
violation of section 75.1104. The violation was not serious, but
it was caused by Consol's unwarrantable failure to comply with
the standard. Given these factors and the penalty criteria
previously mentioned, I conclude a civil penalty of $500 also is
appropriate for this violation.
Consol's unwarrantable failure
to comply would have warranted a more substantial penalty, but it
is offset by the violation's diminished gravity.

563

ORDER
Accordingly, Citation No. 3108488 is AFFIRMED and a civil
penalty of $500 is assessed for the violation of section 75.303.
Order No. 3108477 is AFFIRMED and a civil penalty of $500 is
assessed for the violation.
Consol is ORDERED to pay these civil
penalties within thirty (30) days of the date of this decision.
With regard to the settled violations, Consol is furthered
ORDERED to pay, within the same period; a civil penalty of $50
for the violation of section 75.1106-3(a) (3) cited in Citation
No. 3108480 and a civil penalty of $113 for the violation of
section 75.1722(a) cited in Citation No. 3108497. The Secretary
is ORDERED to modify Citation No. 3108497, by deleting the S&S
finding.
Upon receipt of pa}'!llent this matter is DISMISSED.

_j)N; rf f"~----._
David F. Barbour
Administrative Law Judge
Distribution:
Charles M. Jackson, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
VA 22203 (Certified Mail)
Daniel E. Rogers, Consolidation Coal Company, Legal Department,
1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)
\epy

564

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

MAR 1 7 1994
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 93-410
A. C. No. 15-14959-03548

v.
Docket No. KENT 93-550
A. C. No. 15-14959-03549

BROKEN HILL MINING COMPANY, INC.,
Respondent

Docket No. KENT 93-633
A. C. No. 15-14959-03550
Mine No. 3
Docket No. KENT 93-634
A. C. No. 15-15637-03547
Mine No. 1
DEFAULT DECISION

Before:

Judge Weisberger

On November 19, 1993, a Show Cause Order was issued which
provided, inter alia as follows:
Therefore, it is ORDERED that by November 30, 1993,
Respondent shall either contact Petitioner to discuss
settlement and file a statement complying with the
terms of the prehearing order, or show cause why it has
not ·complied with the prehearing order. It is further
ordered that if Respondent fails to comply with this
order, a default decision will be entered ordering
Respondent to pay the full assessed amounts in these
cases.
To date Respondent has not complied with this order.

1 on January 24, 1994, an Answers were received from
Respondent, which had already been filed on July 28, 1993.
Answers do not comply with the show cause order.

565

1

These

According, it is ordered that a default decision be entered
in these cases in favor of the Secretary.
It is further Ordered
that Respondent pay a civil penalty of $1,829 within 30 days of
this decision.

Avram Weisberger
Administrative Law Judge
Distribution:
Mary sue Taylor, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Road, Suite B- 201, Nashville, TN
37215 (Certified Mail)
Mr . Hobart Anderson, President, Broken Hill Mining Company,
P.O. Box 989, Ashland, KY 41105 (Certified Mail)
/efw

566

l'BDBRAL lllliB SUETY AllD HEALTH RBVXBW COIDUSS:IOB
OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 1 7 1994
PONTIKI COAL CORPORATION,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. KENT 94-441-R
Order No. 4028302
Docket No. KENT 94-442-R
Citation No. 4028282
Docket No. KENT 94-443-R
Order No. 4028283
Docket No. KENT 94-444-R
Citation No. 4028284
Docket No. KENT 94-445-R
Order No. 4028285
Pontiki No. 2
MINE ID 15-09571
DECISION

Appearances:

Timothy M. Biddle, Esq., Crowell and Moring,
Washington, D.C. and Susan E. Chetlin, Esq.,
Pontiki Coal Corporation, Lexington, Kentucky, for
Contestant;
W. F. Taylor, Esq. and Brian W. Dougherty, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Respondent;
Lloyd McCoy, Pontiki No. 2 Mine, Lovely, Kentucky,
Representative of Miners, for Interven~rs.

Before:

Judge Hodgdon

These cases are before me on notices of contest filed by
Pontiki Coal Corporation against the Secretary of Labor pursuant
to Section 105 of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815. The notices of contest request modification of
an order issued pursuant to Section 103(k) of the Act, 30 u.s.c.
§ 813(k), and challenge two citations and two orders issued
pursuant to Sections l04(a) and (b), respectively, of the Act,
30 U.S.C. § § 814(a) and (b). For the reasons set forth below,
the cases are dismissed.

567

An expedited hearing of the cases was held on March 8, 1994,
in Prestonsburg, Kentucky. At the hearing, counsel for the
Secretary moved to dismiss Citations No. 4028282 and 4028284 and
Orders No. 4028283 and 4028285 and counsel for the contestant
moved to dismiss its contest of Order ·No. 4028302 (Tr. 8).
ORDER
Accordingly, good cause having been shown (Tr. 4 - 8), it is
ORDERED that these cases and their respective citations, orders
and requests for modification are DISMISSED.

J._.w~

T.~~~~~~~

Administrative Law Judge
Distribution:
Timothy M. Biddle, Crowell & Moring, 1001 Pennsylvania Avenue,
N.W., Washington, D.C. 20004 (Certified Mail)
Susan E. Chetlin, Senior Attorney, Pontiki Coal Corporation,
2525 Harrodsburg Road, Lexington, KY 40504 (Certified Mail)
W. F. Taylor, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Brian W. Dougherty, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Lloyd McCoy, Representative of Miners, Pontiki No. 2 Mine.
P.O. Box 387, Lovely, KY 41231 (Certified Mail)
/lbk

568

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

March 21, 199 4

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 91-197-A
A.C. No. 29-00845-03540

v.
York Canyon Underground Mine
PITTSBURG AND MIDWAY COAL,
MINING COMPANY-YORK CNYN
COMPLEX,
Respondent

:

DECISION AFTER REMAND
Before:

Judge Morris

After the remand of the above case, the parties were granted
an opportunity to file supplemental briefs.
The Secretary declined to file a supplemental brief but
stated in a letter filed on December 14, 1994, that the truck in
question did not have an "unobstructed rear view" and that an S&S
designation should be affirmed.
Respondent filed a statement in lieu of a supplemental brief
and relied on its petition for discretionary review filed with
the Commission.
In its remand of Citation No. 3293236 the Commission stated
that the Judge relied on an outdated standard . 1 The updated
standard provides as follows:

S 77.410

Mobile equipment; automatic warning devices.

Mobile equipment, such as trucks, forklifts, front-end
loaders, tractors and graders, shall be equipped with an
adequate automatic warning device which shall give an
audible alarm when such equipment is put in reverse.

569

Section 77.410
(a) Mobile equipment such as front-end loaders;
forklifts, tractors and graders, and trucks, except
pickup trucks with an unobstructed . rear view, shall be
equipped with a warning device that-(1) Gives an audible alarm when the equipment
is put in reverse; ••••

The issues here are whether Pittsburg and Midway ("P&M")
violated the regulation and, if so, was the violation S&S. If
a violation occurred, what penalty is appropriate?
MSHA INSPECTOR DONALD JORDAN issued Citation No. 3243235
because P&M's explosives truck had a non-functioning backup
alarm.
He further opined that pickup trucks are required to have a
backup alarm if vision is not clear to the rear.
The updated standard provides an exception to the requirement for audible alarms on mobile equipment. The exception excludes from coverage "pickup trucks with an unobstructed rear
view."
MICHAEL KOTRICK, P&M safety manager, identified photographs
that show a relatively clear view looking to the rear of the explosives truck.
(See R-1, R-2, R-3). In his opinion, the wire
mesh on the truck permits a greater "see through" than does a
standard pickup truck with an ordinary tailgate.

It is true that Exhibits R-1 and R-2 show a relatively clear
view to the rear. This relatively clear view is the result of a
see-through wire mesh screen in lieu of a solid metal tailgate on
most pickup trucks. However, the regulation requires "an unobstructed rear view." The rear view of P&M' s truck is at least
partially obscured by explosive boxes on each side of the truck
bed.
(Exhibits R-2 and R-3 show the boxes.)
The boxes are explosive magazines used to transport detonators, boosters, primer cord, etc. They extend 2/3ds of the
length of the truck bed from the cab towards the rear.
(Tr. 60,
61). Each storage compartment is 2 to 2.5 feet wide. The bed of
the truck is 4 to 6 feet wide and the width of the truck bed
between boxes is 4 feet.
(Tr. 82, 83).

2

"Unobstructed" means "not obstructed, clear, unhindered (an - view]."
Webster's Third New International Dictionary, unabridged, 1976, at 2505.

570

The above uncontroverted facts establish the view to the
rear was not "unobstructed." Accordingly, the exception in
section 77.410(a) does not apply.
A further issue to be determined is whether the violation
was "S&S. 11 A violation is properly designated as being "S&S"
"if, based on the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed
to will result in an injury or an illness of a reasonably serious
nature." Cement Division. National Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984),
the Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety
standard: (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.

Following the above criteria, it appears there was an
underlying violation of Section 77.410.
Further, there was a discrete safety hazard contributed to
by the violation.
In its appeal, P&M asserts the Judge failed to address
whether the violation presented a reasonable likelihood of injury
and failed to address how the relatively clear rear view would
bear upon the risk of injury.
The third facet of the Mathies formulation is established by
these facts: The truck was in use in the pit.
(Tr. 17-18). The
workers were off-loading explosives.
(Tr. 18). Inspector Jordan
testified he could not see anything from a point 8 to 10 inches
below the waist of the man shown in Exhibit P-9.
(Tr.' 19).
Workers were exposed to the hazard since they were off-loading
explosives in preparation for charging the holes. This occurred
in the area behind the truck.
(Tr. 20-21). There are always
workers around the truck.
(Tr. 21). The workers take priming
materials off the truck and put the materials into the hole.
(Tr. 21-22). After they put the priming materials into the hole,
they kick the dirt in and curl up the cords. Normally, they must
kneel to do this and they are behind the truck.
(Tr . 22).
Contrary to Inspector Jordan's testimony, Mr. Kotrick, P&M's
manager for safety, testified that kneeling by workers is not

571

part of the procedure in drilling and blasting. 3 In addition,
backing up the explosives truck to a hole is not standard procedure.
(Tr. 61-62). Finally, the truck is stationary, does not
straddle any holes, and boosters are hand-delivered.
(Tr. 62,
63) •

I am not persuaded by Mr. Kotrick's testimony. Workers do
not always follow "standard procedure." Further, I do not find
it credible that workers could prepare a hole for blasting (as
described here) without kneeling. In addition, the explosives
truck is not always stationary as its very purpose is to deliver
explosives to the blasting site. Finally, Mr. Kotrick's testimony does not reduce the activities by the workers in close
proximity to the truck.
The credible evidence establishes the third element of
Mathies.
The relatively clear view to the rear (as a result of the
mesh screen) does not affect the S&S designation. The explosive
boxes on each side substantially obstruct the rear view. A
worker kneeling behind the truck could be out of sight and in
danger of being run over.
The fourth element of the Mathies formulation is apparent.
If a truck backed over a worker, the result would reasonably be a
fatality or an injury of a reasonably serious nature. In sum, I
note that, based on MSHA's experience, there have been many fatal
accidents or serious injuries from violations of this type.
(Tr. 20) .
In sum, I agree with Inspector Jordan that the violation was
S&S.
For the foregoing reasons, Citation No. 3243236 should be
affirmed.
CIVIL PENALTIES

Section llO(i) of the Act mandates consideration of certain
criteria in assessing appropriate civil penalties.
1.

P&M is a large operator.

(Stip. ! 5).

3
I credit Mr. Jordan's testimony that he observed the workers putting
priming materials into the hole and kneeling to curl up the cords.
(Tr. 22).

572

2.
The assessment of a civil penalty in this case will not
affect P&M's ability to continue in business.
(Stip . ~ 3).
3.
P&M's previous adverse history at York Canyon Surface
Mine, as evidenced by Exhibit P-3, indicates P&M paid penalties
for 43 violations in the period between March 12, 1989, and
February 21, 1991.
4.
P&M was negligent as it should have known the backup
alarm was inoperative.
5.
The gravity of the violation has been discussed under
the S&S issues.
6.
P&M demonstrated good faith in achieving prompt abatement of the violation.

In view of the statutory criteria, I believe a penalty of
$200.00 is appropriate.
Based on the foregoing findings, I enter the following:

ORDER
In Docket No. CENT 91-197-A, Citation No. 3243236 is
AFFIRMED and penalty of $200 . 00 is ASSESSED.

Distribution:
William E. Everheart, Esq., Deputy Regional Solicitor, 525
Griffin Square Building #501, Dallas, TX 75020
(Certified Mail)
Tana Adde, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
John W. Paul, Esq., PITTSBURG AND MIDWAY COAL MINING COMPANY,
6400 South Fiddler's Green Circle, Englewood, co 80111-4991
(Certified Mail)
ek

573

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

March 21 , 1 994

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 91-197-B
A. C. No . 29-0084 5 -03540

v.
York canyon Underground Mine
PITTSBURG AND MIDWAY COAL
MINING COMPANY-YORK CNYN
COMPLEX,
Respondent
DECISION AFTER REMAND
Before:

Judge Morris

After the remand of the above case, the parties were granted
an opportunity to file supplemental briefs.
The Secretary declined to submit a supplemental brief but
stated by letter filed December 14, 1994, that he relied on the
Secretary's response to Pittsburg and Midway Coal Mining Company
("P&M")'s Memorandum of Authorities filed with the Judge on
April 20, 1992.
P&M filed a statement in lieu of a supplemental brief and
relied on its brief submitted to the Commission on February 19,
1993.
In this case, Citation 3243237 alleges P&M violated Section
77.1104. 1

The cited regulation reads :

S 77 . 1104
aaterials .

AccWDulation

of

combustible

Combustible materials, grease, lubricants, paints, or flanunable liquids shall
not be allowed to accumulate where they can
create a fire hazard.

574

In his initial decision, the Judge vacated the citation
because the Secretary failed to establish the presence of an
ignition source as well as fuel to support a fire. · (14 FMSHRC
1947). The Com.mission held this analysis imposed on the
Secretary a greater burden of proof than is required by the
regulation.
However, the Commission noted in its order of remand that
the Secretary failed to set forth what he believes is necessary
to establish a violation but he provided little additional
guidance beyond repeating the language of the regulation.
The issues outlined in the order of remand are whether P&M
violated Section 77.1104, whether the violation was S&S and, if a
violation occurred, what is the appropriate penalty?
DID P&M VIOLATE SECTION 77.1104?
The evidence in this case is set forth in detaii at 14
FMSHRC 1941, 1945-1947.
In its memorandum filed April 20, 1992, the Secretary contended that P&M violated the regulation and that the violation
was S&S .
In particular, the Secretary relies on the evidence that oil
and float coal dust averaging l/16 inch thick were allowed to accumulate on the flat metal surfaces surrounding two 460-volt A.C.
motors contained in a Class II enclosed area. A Class II, Division II area is a designation obtained by a mine operator from
MSHA which allows the operator to maintain non-explosion proof
equipment in an enclosed area.
The Secretary contends that inherent in the Class II classification is the requirement that the area be kept free of combustible materials. The view urged by the Secretary is not supported by Section 77.1104. If the Secretary desires such a contruction of the regulation, MSHA and the operator should consider
whether such a requirement should be part of a ventilation plan
pursuant to 30 C.F.R. § 75.370 - .372 (1992).
Section 77.1104 basically states that it prohibits:
(a) an
accumulation of (2) combustible materials where (3) such materials can create a fire hazard.
The first portion of the regulation is established by the
facts. At P&M's workplace, a Class II, Division II area, oil and
float coal dust existed to a depth averaging 1/16 of an inch on a
flat metal surface. A depth averaging 1/16 of an inch is an

57 5

accumulation. 2 There may well be accumulations of minimal
amounts; however, an average depth of 1/16 of an inch is
substantial.
The second portion of the regulation refers to combustible
materials.
In this case P&M admits the materials were combustible.3
(Tr. 74-75; Brief before Commission filed February 10,
1993, pg. 2).
However, as the record here indicates, a material
can be classified as a combustible but it will not be capable of
combustion until it is heated.
(Tr. 75)
The third portion of the regulation deals with the issue of
whether such materials "can" 4 cause a fire hazard. The verb
"can" does not require an absolute certainty but refers to the
possibility of an event.
In sum, I agree with the Secretary that to establish a violation of Section 77.1104, he is not required to prove that an
ignition or explosion was reasonably likely to occur. Rather, he
is required to prove the presence of sufficient accumulations
that can create a fire hazard or add to a fire hazard if an ignition source is introduced. Factually, I have concluded that an
accumulation of 1/16 of an inch is a sufficient accumulation to
establish a violation of Section 77.1104.
It is not necessary to
explore in this case what might be an insufficient accumulation
and hence no violation of Section 77.1104.
P&M argues that the Secretary failed to prove that the combustible materials observed by the inspector might reasonably
have been expected to contribute to the risk of a fire.
This issue was resolved by the order of remand wherein the
Commission ruled it was error for the Judge (in the original
decision) to require the Secretary to prove that an ignition or
explosion was reasonably likely to occur.
The cases cited by P&M are not controlling as they deal with
whether the cited violation was s&s. Eastern Associated coal

2

Accumulate: to heap or pile up; Webster's New Collegiate Dictionary,

1979 at 8.
3

of burning.

Combustible: capable of combustion; Combustion: an act or instance
Webster's Dictionary at 221.

4

Can: e: be made possible or probable by circumstances to (be - hardly
have meant this), Webster's Dictionary, at 158.

576

Corp., 13 FMSHRC 178, 182 (1991); Texasgulf, Inc., 10 FMSHRC 498 1
501 (1988) and Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984).
P&M further argues that the mere presence of combustible
materials does not constitute a hazard nor a violation of
Section 77.1104, citing Utah Power and Light Company, 11 FMSHRC
1926 (1989).
The Com.mission in its order of remand basically ruled to the
contrary:
the mere presence of combustible materials constituted
a violation of section 77.1104. Utah Power, relied on by P&M,
involves Section 75.1704, Escapeways, and i t is not controlling
here.

WAS THE VIOLATION S&S?
A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in
an injury or i'llness 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
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety
standard; .•• (2) a discrete safety hazard ••. that is
a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an inJury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 1093-104
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria). The com.mission has held 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) (emphasis in
original) •
A credibility issue arises as to the third paragraph of the
Mathies formulation.
Inspector Jordan opined that the violation
was S&S. Michael Kotrick stated a contrary opinion.
The Mathies formulation in paragraph 3 requires a "reasonable likelihood that the hazard contributed to will result in an
injury." The hazard involved here is a fire.

5 77

Mr. Kotrick is knowledgeable in this matter . He explained
the three l egs of a fire triangle which consist of oxygen, an
ignition source, and a fuel in vaporized form . Oxygen is present
in the air. Main ignition sources (not present at this site)
could be an open flame of sufficient temperat.u re or a spark from
an electrical malfunction.
(Tr . 66, 75) . He further explained
combustibility.
(Tr . 65).
The materials on this site as inspected are combustible but
combustibility comes into effect when the materials reach vapor
proportions, i.e., when enough vapors are given off that the
materials can be ignited .
(Tr . 75).
In the area of the motors were several combustible fluids.
The transmission fluid had the lowest flash point at 160 degrees
Centigrade (Tr. 68) or 320 degrees Fahrenheit.
It is possible to determine the flash point of any substance .
(Tr. 67). The flash point for the coal was in excess of
500 degrees Fahrenheit.
(Tr. 70) . The substances involved here
have a minimum flash point of 160 degrees Centigrade (Tr. 68) or
320 degrees Fahrenheit (Tr. 68).
A digital readout thermometer tested places over the motor,
the fans, the drive coupler, and base the motor sits on. The
highest temperature was 13 degrees Centigrade, around 55 degrees
Fahrenheit . This was approximately the outside temperature that
day. Th e motor does not run hot while it's in operation.
(Tr. 71) .

Mr . Kotrick read the explanation of a Cl ass 2, Division 2
location from the National Electrical Code .
(Tr . 72-73).
Mr. Kotrick concluded that the accumulations were not a combustible mixture . A combustible materials is something with a
flash poi nt above 100 degrees Fahrenheit .
(Tr. 74-75). The particular oils in this case happen to be a Class 3 combustible
liquid which have a flash point above 200 degree Fahrenheit.
(Tr. 7 5) .
Mr. Jordan ' s opinion concerning S&S is not persuasive . He
testified float coal dust in the presence of oil prevents a motor
from adequately cooling and 1/16 of an inch would propagate ignition if given proper heat.
(Tr. 27). However, any material will
ignite with proper heat .
However, Mr. Jordan admitted he did not do any testing nor
did he have any knowledge of the flash point of the material he
observed that day.
(Tr . 34 , 36). In addition, he had no information or data regarding the heat given off by the motors where
the dust and oil had accumulated.
(Tr. 34).

578

In addition, he observed no short circuit nor malfunction in
the machine.
(Tr. 350}.
He further agreed he had no way of knowing if enough materials had accumulated on the cooling fans to cause excessive
heat .
(Tr . 3 5} .
In sum, the Secretary failed to prove that there was a reasonable likelihood that the hazard contributed to would result in
an injury. See Texasgulf, Inc., supra, and Eastern Associated
Coal Corporation, supra.
The S&S allegations are STRICKEN.
CIVIL PENALTIES
Section llO(i} of the Act mandates consideration of certain
criteria in assessing appropriate civil penalties.
Considering this criteria, I conclude the following:
1.

P&M is a large operator.

(Stip. !

5).

2.
The assessment of a civil penalty i n this cases will
not affect P&M's ability to continue in business.
(Stip ~ 3} .
3.
P&M's previous adverse history, as evidenced by Exhibit
P-3 indicates P&M paid penalties on 43 violations in the two-year
period ending March 11, 1991.
4.
P&M was negligent as it should have known of the
accumulations.
5.

The gravity of the violation is low.

6.
P&M demonstrated good faith by promptly abating the
violation .
In view of the statutory criteria, I believe that a penalty
of $75.00 is appropriate.
Based on the foregoing findings, I enter the following:

5 79

ORDER
In Docket No. CENT 91-197-B, Citation No. 3243237 is
AFFIRMED and a penalty of $75.00 is ASSESSED.

Law Judge

Distribution:
Tana Adde, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
William E. Everheart, Esq., Deputy Regional Solicitor, 525
Griffin Square Building #501, Dallas, TX 75020 (Certified Mail)
John w. Paul, Esq., PITTSBURG AND MIDWAY COAL MINING COMPANY,
6400 South Fiddler's Green Circle, Englewood, CO 80111-4991
(Certified Mail}
ek

580

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

MAR 2 1 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
:

Docket No. CENT 91-202
A.C. No. 29-00095-03561

v.
York Canyon Underground Mine
PITTSBURG AND MIDWAY COAL
MINING COMPANY-YORK CNYN
COMPLEX,
Respondent
DECISION AFTER REMAND

Before:

Judge Morris

After the remand of the above case, the parties were granted
an opportunity to file supplemental briefs.
The Secretary declined to submit a supplemental brief but
stated by letter filed December 14, 1994, that the facts authored
in the FMSHRC decision of November 17, 1993, justify a finding
that the violation was 11 S&S".
P&M filed a statement in lieu of supplemental briefs.
In its order of remand the Commission vacated the Judge's
finding that the violation was not S&S and directed the Judge to
reconsider and evaluate all of the evidence bearing on the S&S
issues. Finally, if the Judge found the violation was S&S, he
should then assess an appropriate penalty.
THE EVIDENCE

MSHA Inspector DONALD JORDAN issued Citation No. 3243321 at
the York Canyon Underground Mine.
The citation alleges a violation of 30 C.F.R. 77.400(a). 1 (Tr. 30; Ex. P-15).

The cited regulation reads:
(a)
Gears; sprockets; chains; drive,
head, tail, and takeup pulleys; flywheels;
couplings; shafts; sawblades; fan inlets;
and similar exposed moving machine parts

581

He issued the citation because a feeder slide, a moving
machine part adjacent to a walkway was not guarded. The area
where the feeder slide is located must be examined several times
a shift. The tail of the belt needs to be greased.
(Tr. 31).
Mr. Jordan stated that the handrail adjacent to the walkway
was 12 to 18 inches from the feeder slide. The handrail does not
prevent anyone from reaching into the feeder slide when greasing
or cleaning the equipment. The feeder slide was about waisthigh.
(Tr. 32).
The operator abated this violation by installing a mesh
guard.
Mr. Jordan believed this was an S&S violation because someone, upon reaching into the unguarded area while it was in motion, could become entangled and be seriously injured.
(Tr. 32) .
The result could be lost work or restricted duty.
Mr . Jordan considered the operator's negligence to be
moderate.
(Tr. 33).
MICHAEL KOTRICK, P&M manager for safety, testified that a
supervisor enters this isolated area to do a methane check and
a preshift examination . A utility man or clean-up person enters
the area one to three times a shift, depending on the type of
coal being run through the plant.
(Tr . 58, 77). He may summon
a repairman if necessary.
(Tr. 77).
The walkway adjacent to the feeder slide is 36 inches wide
and is made of a heavy metal grating.
Water is used to clean
the area.
(Tr. 77, 78).
As an individual approaches the hazard area, there is a
cement wall on one side and a handrail on the other. The unguarded hazard is 12 to 18 inches beyond.
(Tr. 780).
If someone
slipped, he would probably grab for the railing which also serves
as a balancing point. As you walk along, you can hold the railing. However, it is not much of a physical barrier as it consists of one-half inch to two-inch pipe.
(Tr. 79).
Mr. Kotrick would not say that no one showers the area but
it's easier to wash it into the sump and pump it back into the
cleaning system.
(Tr . 79).

which may be contacted by persons, and
which may cause injury to persons shall be
guarded.

58 2

DISCUSSION
WAS THE VIOLATION S&S?
A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature." 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
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
viola~ion; (3) a reasonable likelihood that the hazard
contributed to will result in an inJury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 1093-104
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria). The Commission has held 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) (emphasis in
original) .
Following the Mathies formulation, I conclude the record
establishes that there was an underlying violation of 77.400(a)
in that the moving machine part, the feeder slide, was not
guarded. Also, there was a measure of danger contributed to by
the violation.
The third paragraph of the Mathies formulation is estab1 ished by the facts. Mr. Jordan described the hazard as "the
tail of the belt that needs to be serviced--greased, if you
will."
(Tr. 31-33). A worker servicing the equipment would be
exposed to the hazard of becoming entangled with the unguarded
machine parts. In sum, I agree with Inspector Jordan that the
violation was S&S because someone reaching toward the unguarded
feeder slide to grease or clean it could become entangled in the
moving parts and be seriously injured.
(Tr. 32-33).
In addition to the hazard described above, there also is a
hazard involving a supervisor and utility cleanup man entering

583

this area on the narrow walkway. A utility man enters the area
as frequently as three times a day. Washing down the area will
likely result in some residual dust or water on the walkway.
This could cause some unsure footing and, if the worker slips, he
could fall into the unguarded machine part which is only 12 to 18
inches away.

Mr. Kotrick testified for P&M, that if a worker slipped, he
would probably grab for the railing which serves as a balancing
point.
(Tr. 78, 79).
I am not persuaded by Mr. Kotrick's evidence. The railing
can hardly serve as a guard and P&M does not contend it is a
guard. In addition, Mr. Kotrick conceded the handrail did not
provide much of a physical barrier. Finally, if any workers were
carrying objects, the handrail would provide little protection,
since their hands would be occupied.
Based on the credible evidence, I conclude that there was a
reasonable likelihood that the hazard contributed to will result
in an injury.
The fourth element of the Mathies formulation is also established. An injury will be of a serious nature if a worker
becomes entangled in moving machine parts.
P&M argues that a generalized concern that maintenance workers may work around unguarded equipment does not by itself support an S&S designation. An S&S designation is established if
the evidence supports the Commission's mandates concerning S&S.
In the instant case, the workers were within 1.5 feet of the unguarded machine parts. This fact and the previously discussed
criteria require the S&S designation.
P&M also contends the Secretary failed to prove potential
risk to maintenance and repair workers. Specifically, P&M
asserts Petitioner produced no evidence of the frequency of such
work while the equipment was operating.
I reject P&M's argument~ The evidence establishes that a
supervisor enters the area for a methane check and a preshift
examination. A utility cleanup worker enters the area one to
three times a shift.
(Tr. 77). It is not the Secretary's
obligation to prove that each unguarded machine part was operating at all times. Further, P&M offered no evidence supporting
its position.
P&M further criticizes the Secretary's argument concerning
the cement wall on the opposite side of the walkway. P&M's argument fails to establish a defense to the violation.

584

After carefully considering all of the evidence, I conclude
P&M's violation of 77.400(a) was S&S. Citation No. 3243321
should be affirmed.
CIVIL PENALTIES
The statutory criteria to be followed in assessing civil
penalties is contained in Section llO(i) of the Act.
P&M's history of previous violations, as contained in Exhibit P-2 indicates the operator was assessed and paid penalties
on 70 violations in the two years ending March 26, 1991.
P&M is a large operator and the penalty will not affect its
ability to continue in business.
(Stip. i 3).
The gravity of the violation was high since a worker could
be severely injured if he became entangled in the machine parts.
P&M demonstrated good faith in attempting to achieve rapid
compliance after being notified of the violation.
For the foregoing reasons, I consider that a penalty of
$150.00 is appropriate and I enter the following:
ORDER
Citation No. 3243321 is AFFIRMED and civil penalty of
$150.00 is ASSESSED.

Distribution:
Tana Adde, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
William E. Everheart, Esq., Deputy Regional Solicitor, 525
Griffin Square Building #501, Dallas, TX 75020
(Certified Mail)
John W. Paul, Esq., PITTSBURG AND MIDWAY COAL MINING COMPANY,
6400 South Fiddler's Green Circle, Englewood, co 80111-4991
(Certified Mail)
ek

585

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

MAR 2 3 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 93-154
A.C. No. 11-00589-03879

v.
Mine No. 24
OLD BEN COAL COMPANY,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the
Solicitor, U. S. Department of Labor,
Chicago, Illinois, for Petitioner;
Thomas L. Clarke, Esq., Fairview Heights,
Illinois, for Respondent.

Before:

Judge Amchan
Statement of the Case

On January 5, 1993, Michael Woodrome conducted an MSHA
inspection of Respondent's number 24 mine in Franklin county,
Illinois. Mr. Woodrome, who is an electrical specialist, came to
the mine primarily to inspect two diesel-powered S&S scoops that
Respondent used only in intake or neutral air to haul supplies
(Tr. 12 - 15, 87) . 1 One of these scoops had caught fire at the
mine in December 1992 (Tr. 12).
After looking at the fire-damaged scoop, designated number 4
by Respondent, Inspector Woodrome proceeded to a wash · station
where the other diesel-powered scoop, designated number 15 by
Respondent, was being cleaned (Tr. 20, 87). While examining the
operator's panel, he noticed that a spad, a nail-like device
(Exh. R-3) used to hang ventilation curtains, had been bolted
onto the panel (Tr. 21, Exh R-4). The spad was positioned so
that it depressed the Murphy switch, a device that automatically
shuts off the engine of the scoop when the engine temperature

1

The scoops had originally been battery-operated but were
rebuilt and converted to diesel-power in 1990. Respondent does
not allow these scoops to operate in return air. Two other
scoops, which are battery-operated "permissible" vehicles,
operate at the working face and in return air.
586

exceeds 205 degrees Fahrenheit, when the oil pressure drops below
20 psi, or when the scoop's fire suppression system is activated
(Tr. 16 - 17, 92 - 99, Exh. R-1, R-4) .
Inspector Woodrome issued Respondent citation No. 3536978,
pursuant to section 104(d) {l} of the Act (Exh. G-1). The
citation alleges a violation of 30 C.F.R. § 75 . 1725(a) which
provides:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from
service immediately.
The violation was alleged to be "significant and
substantial" and, due to the "unwarrantable failure" of
Respondent to comply with the regulation . A $4,400 civil penalty
was proposed by MSHA.
The inspector believes that by continuously running the
scoop with the Murphy switch depressed, Respondent is creating a
fire hazard {Tr. 17 - 18). If the engine is allowed to operate
in an overheated condition, Woodrome believes, the engine surface
may ignite coal dust or other combustible materials.
MSHA is also concerned that if a fire starts on the scoop
due to some other reason, the continued operation of the engine
will make the fire worse and interfere with firefighting efforts.
This concern arises because the continued revolution of the
engine fan blades may, in some circumstances, draw air over the
fire (Tr. 118, 168).
Respondent submits that the Murphy switch is designed to
protect the engine and is not intended to protect employees
(Tr. 105, 159, 166). If an engine runs for an appreciable period
in an overheated condition, its metal parts may stick together,
ruining the engine (Tr. 161 - 162) . The purpose of the Murphy
switch is to prevent damage that would require spending
approximately $5,000 to replace the scoop's diesel engine
{Tr. 166) .
.
Old Ben states that it relies primarily on an automatic fire
suppression system to protect employees from fire.
It argues
that the hazard posed by MSHA, fire caused by the engine igniting
combustible materials at 300-400 degrees is inconsequential

587

given the fact that the exhaust manifold on the scoop reaches
temperatures of 900-1000 degrees during the normal operation of
the scoop (Tr . 100, 162) . 2
Moreover, Respondent notes that there is no MSHA regulation
requiring a Murphy switch (Tr . 37). Thus, all the hazards
postulated by the inspector would exist on a scoop which had
never been equipped with such a switch. MSHA concedes that a
scoop which had never been equipped with a Murphy switch would
not be in violation of section 75.1725(a) {Tr . 37, 46 - 52).
The essence of the Secretary's case is that if a piece of
equipment has a safety device, the mine operator must maintain
that device in operating condition, even if the device is not
required (Tr. 26).
Analysis
MSHA's witnesses indicated that they might write a safeguard
requiring a diesel powered scoop to be equipped with a Murphy
switch (Tr. 48 - 51). Howev er, it is clear that the rationale of
the instant citation was the apparently intentional and long-term
bypassing of the switch on scoop number 15 (Tr. 34, 53) .
The major difficulty with the Secretary's case is its
admission that this scoop can operate with.o ut violating section
75.1725(a) if a Murphy switch had never been installed (Tr. 46).
The undersigned can envision a situation in which bypassing a
safety device which is not legally required would constitute an
unsafe condition. For example, if the device is one which a
machine operator is likely to rely upon, it may be dangerous to
operate a machine with a nonfunctional safety device, even if it
would not be unsafe to operate the machine if it never was
equipped with the devi c e.
In the instant case, however, there is nothing that
indicates that an operator would behave any differently on the
assumption that the Murphy switch was operative than if the scoop
2Since

the fire on scoop number 4, Respondent has taken a
number of steps to reduce the fire hazard on its diesel-powered
scoops. Most importantly, it raised the muffler, so that it
would be less likely to become coated with combustible material .
It also increased the capacity of its fire suppression chemicals,
added an additional spray nozzle for the fire ·suppression system,
reinforced the fuel lines, and installed a shut-off valve which
prevents fuel from exiting the tank once the ignition is turned
off (Tr. 128, 136-37).
The fire suppression system on scoop #4 was inadequate to
put out the fire that occurred on December 28, 1992. The
operator had to summon other employees who used fire
extinguishers to put out the fire (Tr . 108-111).

588

had never been equipped with such a switch. Therefore, I cannot
find an unsafe condition on the basis that the Murphy switch was
bypassed.
Even if I were to regard the instant citation as evidence of
a change in MSHA policy that 30 c.F.R. § 75.1725(a) requires all
diesel-powered scoops to be equipped with a Murphy switch, I
would vacate the citation. In order to find that a general
standard such as section 75.1725(a) requires a Murphy switch, I
would have to conclude that a reasonably prudent perspn familiar
with the factual circumstances surrounding that allegedly
hazardous condition would recognize a hazard warranting
corrective action Alabama Byproducts Corp. 4 FMSHRC 2128
(December 1982).
In the instant case, I conclude that a reasonably prudent
person familiar with the operation of a diesel-powered scoop in
intake and neutral air in an underground coal mine would not
necessarily recognize that it is dangerous to employees to
operate the scoop without a Murphy switch, or with the Murphy
switch depressed. In so doing, I do not discredit the opinions
of Inspector Wbodrome, or MSHA's Dennis Ferlich. However, I
conclude, on the basis of the testimony of Respondent's
witnesses, Kirby Smith, the maintenance supervisor at Mine 24,
and Keith Whitlow, territory manager for the distributor of the
diesel engines, that a reasonably prudent person might not
conclude that it was unsafe to miners to operate such a scoop.
In the terms used in Alabama Byproducts Corp., it is clear
that a reasonably prudent person would recognize the need for
corrective action if they were aware of a Murphy switch which was
being by-passed on a long-term basis. However, based on this
record the Secretary has not established that a reasonably
prudent person would recognize that such condition poses a hazard
to employees, as opposed to merely putting the equipment at risk.
Given the legitimate difference of opinion on this matter, I
believe that if MSHA wants to require the Murphy switch, or make
it a violation of the Act to bypass the switch, it must do so
through notice and comment rulemaking.
ORDER
Citation No. 3536978 is hereby vacated and this case is
dismissed.

(h.f r:~A~j~

Arth~.v~~chan

Administrative Law Judge
703-756-6210

589

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. s. Dept. of
Labor, 8th Floor, 230 S. Dearborn St., Chicago, IL 60604
(Certified Mail)
Thomas L. Clarke, Esq . , 50 Jerome Lane, Fairview Heights, IL
62208 {Certified Mail)
/jf

590

FEDERAL MINE SAFElY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLI NE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGIN IA 22041

MAR 2 3 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
REVIEW COMMISSION,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No.
A. C. No .

v.

Docket No.

A. C. No.

POWER OPERATING COMPANY, INC.,
Respondent

PENN 93-51
36-02713-03576
PENN 93-152
36-02713-03578

Docket No . PENN 93-202
A. C. No.
36-02713 -03582
Frenchtown Mine
Docket No.
A. C. No.

PENN 93-133
36-04999-03534

Leslie Tipple
DECISION

Appearances:

Linda Henry, Esq., Office of the Solicitor,
U. s. Department of Labor, Philadelphia, Pennsylvania
for Petitioner;
Tim D. Norris, Esq . , and Farrah Lynn Walker, Esq.,
Stradley, Ronon, Stevens & Young, Philadelphia ,
Pennsylvania for Respondent.

Before:

Judge Weisberger
STATEMENT OF THE CASE

These cases, consolidated for hearing, are before me based
upon Petitions for Assessment of Civil Penalty filed by the
Secretary (Petitioner), alleging violations by the Operator
(Respondent), of various mandatory safety standards. Subsequent
to a discovery, 1 and pursuant to notice, the cases were heard in
1

on July 19, 1993, Respondent filed a Motion to Compel
Response to Interrogatories, Response to Request for Production and
Deposition Testimony.
On August 3, 1993, Petitioner's filed a
Response in Opposition.
On August 16, 1993, an Order was issued
requiring Respondent to file a statement identifying the specific
requests it wanted to compel Petitioner to answer along with a
statement setting forth facts to establish its need for the
information sought.
Petitioner was ordered to describe and

591

Johnstown, Pennsylvania, on December 7, 8, and 9, 1993. The
parties each filed a brief along with proposed findings of fact
on February 18, 1994. Respondent filed a Brief in. Reply on
February 28, 1994.
Findings of Fact and Conclusions
I.

Citation No. 3709903 (Docket No. PENN 93-152)

Perry Ray McKendrick, an MSHA inspector, testified that
on December 3, 1992, he observed that there was no bulb in the
light on the right side of the rear of a 4600 Ford Tractor that
was parked adjacent to an office. He indicated that the wires
were hanging loose, and that this condition was "very visible".
(Tr. 21, December 7, 1993). He issued a citation alleging a
violation of 30 C.F.R § 77.1605(d) which, as pertinent, provides
that, with regard to mobile equipment, "Lights shall be provided
on both ends when required."
Peter Baughman, an employee of Respondent who operates the
tractor in question, indicated that it is used on paved areas to
clean up coal from the road. He said that the tractor has a
yellow beacon light on top of the tractor towards the rear of the
tractor. He said this light is visible from the rear of the
tractor. He indicated that the tractor is not operated at night.
Based upon the clear language of § 77.1605(d) supra "lights"
are to be provided "on both ends" when required. Hence, if there
are not "lights" at both ends Section l605(d) supra, has not been
complied with. In other words if there is only one light at
either end, Section l605(d), has not been complied with.
According to the uncontradicted testimony of McKendrick, the rear
of the tractor, which was equipped with two lights, had only one
light in working order. Hence, although the vehicle did have a
light on top, there were not "lights" at both ends.

statement setting forth facts to establish its need for the
information sought.
Petiti oner was ordered to describe and
summarize the documents it claimed were privileged, and to file a
formal claim of privilege. On October 29, 1993, oral argument was
held on the issues raised by Respondent's Motion and Petitioner's
Response. On the record, at the oral argument, Orders were issued
regarding all the issues raised by the Motion and Response.
Also, prior to the hearing, on September 21, 1993 Petitioner
filed a Motion to amend its Petition in Docket No. Penn 93-133 to
add "eight additional citations". Respondent filed a Response. On
November 19, 1993, an Order was issued denying the motion.

592

Baughman testified that the tractor is not used at night.
Since he works the day shift, from 6:00 A.M. to 6:00 P.M., not
much weight is accorded his testimony regarding the use of the
vehicle at night, as it is beyond his personal knowledge.
The vehicle was used during the 6:00 A.M. to 6:00 P.M.
shift. I take administrative notice of the fact that there are
times during the year, when there is no sunlight for that entire
12 hour period. Thus, lights would be required, during the
period before the sun rises, and after the sun sets, when this
occurs in the 6:00 A.M. to 6:00 P.M. shift. Hence, I find that
it has been established that Respondent herein did violate
Section 1605 supra.
The vehicle in question had one functioning rear light along
with a beacon located towards the rear of the vehicle that was
visible from the rear of the vehicle. Also there is no evidence
that it is used not during daylight for significant periods
during the year. I conclude that the gravity of the violation
herein is low. Consid.e ring also the additional factors set forth
in Section 110 of the Act, as stipulated to by the parties, I
conclude that a penalty of $50.00 is appropriate for this
violation.
II.

Citation No. 3709643 (Docket No. PENN 93-51).

Charles s. Lauver, an MSHA inspector, testified that on
September 16, 1992, he observed a truck dumping its load on a
ramp. The truck was not dumping parallel to the slope of the
ramp at the designated dump area which is level. Instead, the
truck was dumping "sideways" perpendicular to the ramp. Based on
measurements that he took, Lauver indicated that the grade of the
ramp was 13 percent.
Lauver issued a citation alleging, in essence, that
Respondent was not in compliance with 30 C.F.R. § 77.1000, in
that it was not following its Ground Control Plan which, as
pertinent, requires as follows: "Truck dumps and similar areas
shall be maintained reasonably level."
According to Robert A. Greenawalt, Respondent's foreman, in
general, a ramp is built in order to get access to a pit. In
essence, he explained that in normal operations, ramps are built
frequently" (Tr. 83, December 7, 1993), and that in building a
ramp, it is necessary to dump on a grade (Tr. 85, December 7,
1993). It appears to be a Respondent's position, that to require
trucks to dump only on level areas, would preclude an operator
from building a ramp.
According to Lauver, if a truck dumps sideways on a sloped
ramp, it could become unstable and roll over, because the bed of
the truck is raised nearly vertical.

59 3

The Ground Control Plan, does not regulate the manner in
which loads are to be dumped. It requires only that "truck
dumps", and "similar areas," shall be maintained "reasonably
level". The designated truck dump areas was level . There is no
evidence that the specific area where Lauver observed the truck
dumping sideways, was used as a dump area more than the one time
observed by him. In the absence of such evidence, it must be
concluded that the area of in question was not a "truck dump" or
a "similar area", as it was not an area used on any regular basis
for dumping. Accordingly, I conclude that it has not been
established that Respondent violated its Ground Control Plan, and
hence there was no violation of Section 77.1000 supra.
Accordingly, Citation No. 3709643 is to be dismissed.
III. Citation No. 3709904 (Docket No. PENN 93-152).
McKendrick indicated that he observed an accumulation of
grease, oil, and coal dust on the top and lower center "pins"
of the "5500 Trojan mover". He said that the material was
approximately 1 foot in diameter at the top and lower "pin",
and was up to l inch thick. He also said that the approximately
3 foot by 5 foot engine area was coated with coal dust. He
indicated that heat from the manifold and turbo constituted
ignition sources. He also indicated that if a wire would become
bare it could cause a spark .
McKendrick issued a Citation alleging a violation of
30 C.F.R. § 77.1004 which, as pertinent, provides that
combustible materials shall not be allowed to accumulate,
"· . . where they can create a fire hazard."
On cross-examination, McKendrick indicated that he was
concerned about the possibility that heat from the manifolds or
turbos, could ignite the accumulated materials should contact
occur. In this connection, he estimated that the coal was "at
the most" 2 to 3 inches from the manifold and to the turbo, but
that the materials were not in contact with the turbo or
manifold.
In contrast, Philip D. Smeal, who has operated the
loader in question for approximately 6 years, indicated that
the center pin is approximately 8 feet from the turbo and
manifold. I place more weight upon Smeal's estimate due to his
greater familiarity with the equipment in question, based upon
the amount of time that he has spent operating it. I thus find
that it has not been established that there was a hazard of the
materials being ignited upon contact with either the manifold or
turbo. Similarly, although McKendrick was concerned about a
bare wire causing a spark, the record does not established that
sparks do occur in the area in question, or that sparks are
sufficient to ignite the accumulated material. Hence, I find
that it has not been established that the accumulation of
materials were in an area "where they can create a fire hazard."
Hence, I conclude that it has not been established that
Respondent violated Section 77 . 1004 supra.

5 94

IV.

Citation No. 3490531 (Docket Penn 93-152).

Thomas George Partash, testified that on December 3, 1992,
he observed that there was no guard protecting the V-belts and
pulleys on a caterpillar bulldozer. He issued a citation alleging
a violation 30 C.F.R. § 77.400(a), which in essence, provides for
the guarding of exposed moving machine parts which may be
contacted by persons . Respondent does not challenge the
Citation. Hence, and taking into account the testimony of
Partash, I conclude that Respondent did violate Section 77.400( a )
supra.
a.

Significant and Substantial

The Commission has set forth the elements required to
establish a significant and substantial violation in Cement
Division. National Gypsum Co., 3 FMSHRC 822, (April, 1981). A
violation is properly designated as significant and substantial
"if, based on the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious
nature." Id. \~t 825 . 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 mandatory safety standard; (2 ) a
discrete safety hazard -- that is, a measure
of danger to safety -- contributed by the
violation; (3) a reasonable likelihood that
the hazard contributed to will result in an
injury ; and (4) a reasonable likelihood that
the injury in question will be of a
reasonably serious nature.
See also Austin Power Co . v . Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (December,
1987) (approving Mathies criteria). 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)).
According to Partash , the operator of the vehicle is
required to travel the area in question in order to access the
cab. He indicated that he observed persons getting on and off
the bulldozer wh i le it is in operation. In essence, he stated
that in getting on and off the bulldozer, an operator would
utilize a step to climb on the dozer at the lowest access point,
and would thus traverse the area in question. Partash did not

595

describe with any degree of specificity the horizontal, vertical,
or diagonal distances of the exposed moving parts to the path
that would be taken by a person on the way to the cab. on the
other hand, Smeal who operated the bulldozer in question,
estimated that in walking to the cab, the operator would be, at
the closest, 2-1/2 to 3 feet, from the V-belt in issue. Also, on
cross-examination, Partash indicated that it is possible to
access the cab by entering from the guarded side. Since Smeal
operated the bulldozer, I place more weight on his testimony
regarding the path actually travelled to the cab. In contrast, I
place less weight on the theoretical testimony of Partash.
The evidence does establish that Respondent violated a
mandatory safety standard and that this violation contributed to
a hazard, i· ~· contact with moving machinery. However, within
the framework of the above evidence, I conclude that it has not
been established that such contact was reasonably likely to have
occurred. Thus, I find that it has not been established that the
violation was significant and substantial.
There is no evidence concerning the length of time that the
area in question was not guarded. I accept the uncontradicted
testimony of Greenawalt that this bulldozer was only used if
another one was broken. I find that a penalty of $250 is
appropriate for this violation.
V.

Citation No. 3709821 (Docket No. PENN 93-152).

According to Partash, on December 4, 1992 he observed an
accumulation of oil underneath the operators' cabin and on the
engine of the G-3 Caterpillar road grader. He indicated that
there was electrical wiring under the cab, and a turbo charger
and hydraulic pumps in the area. According to Partash, the hoses
underneath the cab of the caterpillar grader were covered in coal
dust and oil. The inspector testified that all 150 to 200 feet
of hoses underneath the cab were covered in oil. No firewall
separated the engine from the oil an dust covered hoses.
According to Partash, the turbo and the engine, ignition sources
that generated heat, were two inches away from the oil soaked
hoses.
Partash issued a citation alleging violation 30 C.F.R.
77.1104 which, as pertinent provides that combustible materials
should not be allow to accumulate "· . . where they can create a
fire hazard."
§

on cross-examination, Partash indicated that there was no
oil on the turbo or manifold, and that oil in the absence of hot
wires is not a hazard. He also indicated that just sparks could
not ignite the oil. There is no evidence of any lack of
insulation of any the wires in the area. I conclude that the

596

evidence does not establish that the oil and coal ·dust
accumulation was in any area where they can create a fire hazard.
Hence, a violation of Section 77.1104 supra, has not been
established.
VI.

Citation No. 3709822 (Docket No. PENN 93-152).

According to Partash, the reverse alarm on a caterpillar
777B rock truck did not operate. Respondent does not dispute
this fact. Accordingly, I conclude that Respondent did violate
Section 77.410(c) as alleged in the citation issued by Partash.
In the citation, Partash alleged that the violation was
significant and substantial. He testified that as a consequence
of the violation, an injury was reasonably likely to have
occurred as rock trucks, pickup trucks, shovels, and bulldozers
operated in the immediate area. He explained that it was
possible that, since the backup alarm did not work, other
equipment operators might not be aware when the rock truck would
back up. He ·~aid that if another piece of equipment would be hit
the operator df the rock truck could be injured.
The presence of other vehicles in the area raises the
possibility of collision as a consequence of the violation
herein. However, no specific facts were adduced to established
that such was reasonably likely to have occurred. Hence, I
conclude that it has not been established that the violation was
significant and substantial. (See, Mathies, supra, U.S. Steel,
supra.
Contemporaneous note take by Partash indicate that the
operator of the vehicle informed him that the alarm was
functioning at the start of the shift. Hence, it was only
inoperative for a short time until it was cited. Ronald E.
Gresh, an MSHA Supervisory Inspector, stated that he had several
discussions with Respondent's Management regarding the need to
improve inspection and maintenance, of trucks, dozers, shovels,
loaders, and tractors. However, he indicated that in the
discussions there was no specific identification of ·e ach item.
He said that problems with steering, breaking, were discussed.
Also discussed were the presence of grease on rock trucks, and
tire maintenance. According to Gresh, he meet with Respondent's
officials on a monthly basis to discuss improvements regarding
maintenance at the mine.
Although Respondent was made aware, in general, of the need
to make careful inspections and to perform maintenance, there is
no evidence as to how long the specific violative condition at

597

issue existed. Partash's notes indicate that the operator had
told him that the alarm did function at the start .of the shift .
I find that Respondent was negligent to a moderate degree . I
conclude that a penalty of $300 is appropriate for this
violation.
VII. Citation No. 3709754
A.

Violation of 30 C.F.R.

§

77.160(a) Cal

Lauver testified that, on December 4, 1992 he observed a
rock truck parked at the hard stand area. He said the truck was
fully loaded, and rocks were "jutting out" all around the top of
the bed.
He said that nothing was falling of the truck, but that the
rocks appeared ready to fall at any time. He said that the rocks
were above the top of the bed, and were lying off the back of the
truck. He said that the center of the pile of rocks on the truck
was approximately 5 to 6 feet higher than the sides . He
estimated the\ rocks on the trucks were approximately 1 foot long,
10 inches wide., and 1 inch thick. McKendrick, who was present,
corroborated Lauver's testimony that rocks were sticking out at
the back of the truck.
Lauver issued a citation alleging a violation of 30 C.F.R.
77.1607(a) (a), which in essence, requires trucks to be trimmed
properly when loaded higher than their cargo space.
§

According to Greenawalt, the truck was loaded in a normal
fashion and was not overloaded. He indicated that he did not
notice -a "piece of rock" sticking out the side of the truck.
(Tr. 289, December 7, 1993) .
On cross-examination, Lauver
indicated that once a truck is loaded, it cannot be trimmed. He
also indicated that the only way to insure that a load is within
the confines of the truck, is to load it properly.
I accept the testimony of Lauver, inasmuch as it was
corroborated by McKendrick, that the rocks in the truck were
lying beyond the cargo space. I also accept the uncontradicted
testimony of Lauver that the center of the load was approximately
6 feet higher than the sides, and that there were rocks jutting
out around the top of the bed. Further, the center of the pile
was approximately 6 feet higher than the sides. Hence, I
conclude that the truck was loaded higher than the cargo space.
The term "trimmed properly" is not defined in the Act, or in
Title 30 of the Code of Federal Regulations. "Trim" is defined
in Webster's Third New International Dictionary (1979 ed), as
pertinent, as "to reduce by removing excess or extraneous
matters . " Hence, the term "trimmed properly" herein means that
if a truck contains excess material that juts out beyond the

59 8

confines of the cargo area, the material must be trimmed. (See,
Peabody Coal Company, 2 FMSHRC 1072 (1980) (Judge Laurenson)). I
accept the testimony of Lauver, as it was corrobor.a ted by
McKendrick, and find that material jutted out beyond the confines
of the cargo area. I thus conclude that Respondent did violate
Section 77.1607.
B.

Significant and Substantial

According of the testimony of Lauver, "rocks jutted out
all the way around the top of the bed and off the back of the bed
• the material was --- appeared to be about to fall" (sic.)
(Tr. 266, December 7, 1993). Since his testimony was
corroborated by McKendrick, I accept it, and reject the testimony
of Greenawalt that rocks were not sticking out of the truck.
Respondent did not impeach or contradict Lauver's testimony that
he observed ~· . . • a man walk from the other side across beneath
the bed of the truck and around the side" (Tr. 269, December 7,
1993). I thus find that an injury producing event was reasonably
likely to have occurred resulting in injuries of a reasonably
serious nature. I find that the violation was significant and
substantial (See, U.S. Steel, supra .
Taking into account the fact that the truck was not in
operation but was parked at the repair station as it had
mechanical problems, I find that Respondent's negligence was less
than moderate. I find that a penalty of $200 is appropriate for
this violation.
VIII.

Citation No. 3709751 (Docket No. PENN 93-152)

On December 3, 1992, Lauver asked the operator of a
Caterpillar rock truck which was not loaded, to start down the
grade and apply the brakes. According to Lauver, when the brakes
on the truck were applied, the left rear wheel locked up and
slid, and the other three wheels continued to roll. He estimated
that the truck traveled 30 to 35 feet before it came to a full
stop. Lauver indicated that the road was well packed, very hard
and contained gobs of mud. According to Lauver, all the wheels
were on the same type of material. He said that he ~id not
recall any ice on the road. Lauver issued a citation alleging a
violation of 30 C.F.R. § 77.1605(b) which, as pertinent, provides
that mobile equipment shall be equipped with "adequate brakes".
A.

Violation of Section 77.1605, supra

Melvin James Muth, a field service technician employed by
Beckwith Machinery Company, repairs Caterpillar equipment. Muth
testified that the rear brakes on the vehicle in question were
rebuilt in July 1992. According to Muth, after he was informed
that Lauver had issued his citation, he backed the truck up a
grade, applied the brakes, and the truck stopped. He said that

599

it went a "short distance" but it did not take long for the truck
to stop. He said that he has not seen any caterpillar
specifications regarding the distance in which the vehicle in
question should stop once brakes are applied .
In addition, while the truck was parked, Muth checked the
brake pressure at the rear and front wheels when by the retarder
system was applied. 2 Muth also tested the wear on the brake
pads. All of the tests were where within Caterpillar
specifications. In essence, Muth opined that the breaks were
working properly.
Muth indicated that if the service brakes are applied, all
four wheels should stop fairly close to the same time. He opined
that if one rear wheel locked-up when the service brakes were
applied, it is conceivable that the vehicle was on mud or ice.
Also, he opined that it is possible that the front brakes might
have been turned off. In that event, it is possible that the
front brakes only the rear breaks would be activated.
Muth indicated that in testing the brakes , he noted a little
air in the brake system . He surmised that the air had entered
the system when he opened a screw to bleed the brakes earlier
that morning when he tested the vehicle. Muth did not consider
the air in the system to be significant, since all tests on the
braking system were within the specifications of the
manufacturer.
Although the tests performed by Muth where within
Caterpillar's specifications, I accept the testimony of Lauver,
in as much as it was not contradicted, that he observed one wheel
lock-up when the brakes where applied on a grade. Muth indicated
that, as designed, all four wheels are to stop very close to the
same time when the service brakes are applied. He indicated that
a rear wheel might lock if there is mud3 or ice on the road, or

The retarder system actives only the rear brakes and applies
less pressure than the service brakes which are designed to operate
the front and rear brakes. The retarder system is used to slow the
vehicle when it is going down hill, but not to stop it.
The
retarder system applies variable pressure.
2

3

According to Lauver, the road was handpacked and there was
no ice. He stated that there were "gobs" of mud. However, there
is no evidence that there was mud in the specific path the tires
travelled when the operator applied the brakes when requested by
Lauver.

600

if the front brakes are not applied4 • The evidence does not
establish any of these factors. Within this framework, I
conclude that vehicle in question was not equipped with adequate
brakes, and as such Section 77.1605, supra was violated.
B.

Significant and Substantial

Lauver opined that since the brakes were not adequate when
the vehicle was not loaded, an injury was reasonable likely to
occur when the vehicl~ was fully loaded. He explained that it is
possible for the operator to loose control, and hit an object.
He indicated, however, that due to the slow speed at which the
vehicle operates, he did not feel that a major collision was
likely, and that an injury that could occur would be comparatively minor. Taking in account the following: (l) all the tests
performed by Muth did not reveal any abnormality; (2) Lauver did
not measure the amount distance the truck rolled after the brakes
were applied; (3) the lack of evidence as to the specific
distance the truck should roll once the brakes are applied, and
(4) the fact that in normal operations the truck travels at a
slow speed, I conclude that it has not been established that an
injury producing event was reasonably likely to have occurred.
(See, U.S. Steel, supra). I thus, conclude that it has not been
established tl\e violation was significant and substantial. (See,
U.S. Steel, supra).
C. Penalty
According to Lauver, he inspected the equipment examination
records, filled out by drivers of the vehicle in question.
He indicated that these records, for the period subsequent to
November 4, 1992, indicate that brakes problems have been
reported by three drivers. However, he did not recall the
wording in the records, and· the records themselves were not
offered into evidence. Gresh indicated that he had discussed
maintenance of brakes previously with Respondent's management.
There is no evidence regarding the specifics of these discussions. It is significant that when the brakes were tested by
Muth, all tests were within the manufacturer's specifications.
Within this framework, I conclude that Respondent's negligence
was less than moderate. I conclude that a penalty of $200 is
appropriate for this violation.
IX. Citation No. 3709642 (Docket No. PENN 93-51)
On September 16, 1992, Lauver observed a three inch long
crack on the front surface on the cross member of a rig truck .
He also observed a 4 inch long crack across the top of the crossmember. Lauver estimated the width of the cracks, i.~,. the gap
in the crack, from a hairline to up to a 16th of an inch.
4

There is no evidence that anyone observed that the front
brake switch was in the "off" position."

601

According to Lauver, the cross-member connects the two sides
of the mainframe, and is also one of the supports for the engine.
Lauver opined that since the roads upon which the truck travels
are hard packed, rough, and contain bumps and dips, the cracks at
issue can only get worse. He opined that failure of the crossmember will cause a jolt which can injure the driver. He issued
a Citation alleging a significant and substantial violation of
30 C.F.R. § 77.1606(c) which provides as follows: "Equipment
defects affecting safety shall be corrected before the equipment
is used." (Emphasis added).
William Dean Bratton, a mechanic employed by JEM Industry,
explained that the two main side members of the frame of the
vehicle in question, provide the majority of the strength to
support the truck and its load. He said that "item "C" depicted
on Exhibit R-2, is the main support beam for the suspension
cylinders, and it also ties the main side together. In addition,
the front bumper and three other cross-members hold the frame
together. He indicated that cross-member "E" (Ex. R-2) is the
more significant cross-member in holding the sides of the frame
together. According to Bratton, that the cross-member in
question "assists somewhat" in holding the frames together and is
the least significant cross-member. He explained, as depicted in
Exhibit R-2, that the two side members of the frame contain the
mounts for the engine, and the cross-member at issue does not
have, any engine supports, and does not support the engine. None
of this testimony was specifically rebutted by Lauver or any

other witness. Based upon Bratton's experience and background, it
is accepted.
Bratton testified that on September 16, he examined the
cracks at issue. He said that the circumference of the crossmember upon which the cracks were noted is 52 inches. He
indicated that the cross-member is approximately 12 feet in
length. Bratton said that the top surface where one crack was
located is 14 inches wide, and the other surface where another
crack was located is 12 inches wide.
The testimony of Bratton tends to established that should
the cross member at issue fail due to expansion in the crack,
there would not be a significant impact upon support of engine,
and the structural integrity of the vehicle. However, he did
not specifically contradict Lauver's testimony that should this
member fail, the resulting jolt could injure the operator of
the vehicle. Hence, I conclude that the cracks, are defects
that do, to some degree, affect safety. Since they were not
corrected prior to use, I conclude that Respondent did violate
Section 77.1605 supra.

602

Considering the credible testimony of Bratton that the cross
member at issue does not support the engine, and only assists
somewhat in holding the sides together 5 , I conclude that it has
not been established that an injury producing event was
reasonably likely to occur as a consequence of the cracks.
Accordingly, I conclude that it has not been established that the
violation was significant and substantial.
Lauver testified the same condition had been cited in the
past, and should have been noted in the reports on this piece of
equipment. However, there is no evidence as to how long these
specific cracks had been in existence. In this connection,
Bratton opined on cross-examination that the cracks most likely
developed from wear and tear, and from being bounced on the
roads. On re-direct examination he opined that a rock strike
could have cause the cracks. I find that a penalty of $100 is
appropriate for this violation.

x.

Citation No. 3709869 (Docket No. PENN 93-133)

On November 3, 1992, Lauver observed a layer of coal and
small chunks of coal on the feeder belt walkway at the Leslie
Tipple. He issued a Citation alleging a violation of 30 c.F.R.
§ 77.205(b).
Respondent does not challenge the violation.
Accordingly, and based upon the testimony of Lauver I find
Respondent did violate Section 77.205(b) supra as alleged.
Lauver termed the violation significant and substantial. He
said that the entire width of the walkway was covered with the
material for approximately 15 feet. According to Lauver, the
handrail next to the walkway was twisted and bent in the area at
issue so that a person could fall between walkway and handrail.
He opined that it was reasonable likely that one would stumble
and fall . However, according to Lauver, this would not result in
a serious injury, as the walkway was only 5 or 6 feet above the
ground . According to Lauver, he had observed persons using the
walkway.
Gary Crago, the assistant manager at the tipple, indicated
that the walkway at issue was at an 8 percent incline, and was 30
inches wide, and the handrail was 3 feet high. He described the
presence of a cover over the belt to keep persons from falling
onto the belt . He also noted the purpose of a safety pull cord
5 I place more weight on the testimony of Bratton, as I found
it well-reasoned, and supported by a diagram set forth in the Unit
Rig service manual (Respondent's Exhibit 2). In contrast, I place
less weight on Lauver's testimony on this point, as his experience
with this specific vehicle is not as extensive as Bratton's. Also
Lauver•s testimony is not supported by the Unit Rig manual. (Ex .
R-2)

603

to stop the operation of the belt. He said normally persons
travel the walkway a couple times a day to check the feeder. The
walkway is lit by two lights, and during the day it is visible.
Lauver did not describe with specificity the traction on the
walkway, and the size and placement of the materials at issue.
Nor did he describe their depth. Within the framework of this
record, I cannot find that it has been established that an injury
producing event, i·~·, stumbling, or tripping, was reasonably
likely to have occurred. For these reasons it is concluded that
it has not been established that violation was significant and
substantial.
According to Crago the four employees at the plant were
engaged in repairs so that the plant could be restarted, and that
the spill was to be cleaned prior to startup. There is no
evidence as to the length of time that the spill existed on the
walkway. I conclude that a penalty of $50 is appropriate for
this violation.
XI.

Citation No. 3709878 (Docket No. PENN 93-133)

According to Lauver, on November 5, 1992, he observed
fine, dry, float coal dust on the belt structure in the
preparation plant. He said that it covered the entire belt
structure i.~., the belt and the supporting elements as well as
the drive motors and pulleys. Lauver said the materials were up
to a half-inch thick, but "tapered down to nothing at certain
points" (Tr. 166, December 8, 1993). He estimated the belt was
between 50 and 75 feet long, and was in operation at the time.
According to Lauver, dry float coal dust in suspension can
be ignited by a spark. However, he did not see any coal dust in
the air. Lauver opined that dry float coal dust on a surface can
be placed in the air by a breeze or by vibration, and then a
spark can cause it to explode. He said that he did not note any
frozen rollers which could have caused a friction ignition.
According to Lauver the electric drive motors for the belt are an
ignition source, although there was nothing wrong with the motors
at the time of the inspection. Lauver issued a Citation alleging
a violation of 30 C.F.R. § 77.202.
Crago indicated that all rollers where running free, and the
were no problems with any motor. He also indicated that he
tested fine coal by placing it 2 inches away from a heat lamp for
15 minutes, and it did not burn. He was with the Lauver during
the inspection, but he did not contradict any of Lauver's factual
testimony.
Although there were no actual ignition sources present the
rollers presented a potential ignition source should they freeze,
and cause friction sparks. Also, the electric motors presented a

604

potential ignition source. Since there were potential ignition
sources present in the vicinity of the accumulation, it is
concluded that the accumulation existed in dangerous amounts
(Pittsburgh and Midway Coal, 8 FMSHRC 965, (January 1986)).
Accordingly, it is concluded that section 77.202 supra which
provides that coal dust on surfaces or structures shall not be
allowed to exist or accumulate "in dangerous amounts", has been
violated as alleged by Lauver.
Since there were no actual ignition sources present in the
vicinity, I conclude that the likelihood of an injury producing
event i. ~., fire or explosion was not likely. Accordingly it
must be found that the violation was not significant and
substantial.
Lauver opined that due to the extent of the accumulations,
they built up over a minimum of 24 hours. Crago, who was present
at the time, did not contradict Lauver's testimony on this point.
There is no evidence as to the actual amount of time the
accumulations had been in existence. I find that a penalty of
$150 is appropriate for this violation.
XII.

Citation Nos. 3709748 and 3709749 (Docket No. PENN 93-152)

On December 3, 1992, Lauver observed that a guard was
missing at the fan inlet for the left engine on a O & K shovel,
("shovel") and at another shovel, guards were missing on both
engines. He issued two citations, one for each shovel, alleging
a violation of 30 C.F . R. § 77.400(a) which provides, in essence,
that exposed machine parts which may be contacted by persons, and
which may cause injury to persons, shall be guarded. Respondent
does not challenge the violation. Based upon this admission, as
well as the testimony of Lauver, I conclude that Respondent did
violate Section 77.400(a) supra.
According to Lauver, the exposed moving parts on the engines
in question are located in a compartment that is accessed by the
way of a ladder which one descends through a 3 foot square
opening. He indicated that if a person stands in th~ center of
this compartment, one or two steps in either directions would
bring that person in contact with the engine. Accordingly, he
opined that an injury was reasonably likely to have occurred. He
said that contact with the fan belts or pulleys would cause
bruises resulting in loss of work days or restricted duties.
Ronald L. Krise, who had operated one of the shovels for
2 years, indicated that maintenance personnel go down to the
compartment in question to check the oil for the engines.

605

Lauver conceded on cross-examination that in order for an
injury to occur, there must be contact with the exposed parts
when the engine is being operated. The record does not
established that, in the ordinary operation of the· equipment in
issue , persons descended to the compartment where the engines are
located. Although Lauver testified that a persons standing in
center of an compartment would be nearly in contact with the
engine , he did not describe in specificity the location of the
unguarded area. There is no description of the dimension of the
exposed area, its distance from the floor, and its distance from
the center of the compartment. Within the framework of this
evidence, I conclude that it has not been established that an
injury producing event i.~., contact with moving exposed parts,
was reasonably likel y to have occurred . Hence, I conclude that
it has not been established that the violation was significant
and substantial.
Lauver opined that the operator was aware of guarding
requirements, and that there was no reason why the area in
question was not guarded. Respondent did not offer any evidence
to explain why the area in question was not guarded. I conclude
that a penalty of $300.00 is appropriate for the violation
alleged in citation no. 3709748, and a penalty of $300 is
appropriate for the violation alleged in Citation No. 3709749.
XIII.

Citation No. 3709644 (Docket No . PENN 93-51 ).

On September 16, 1992, Lauver observed an employee of
Respondent steam cleaning a rock truck with a steam jenny,
which applies water under high pressure. Lauver testified
that the employee was not wearing goggles or a face shield . He
issued a citation alleging a violation of 30 C.F.R. § 77.1710(a)
which in essence requires the wearing of face shields or goggles
when a hazard to the eyes exists. Respondent has conceded the
violation. Based upon this concession, and Lauver's testimony I
conclude that Respondent did violate Section 77.1710(a) as
alleged .
According to Lauver, the application of the high pressure
steam and liquid from the steam jenny dislodges dirt and grease
from the truck, which splattered in all directions . He opined
that it was extremely likely that the operator of the steam jenny
would get hit by the splattered material. Lauver indicated that
the face of the operator was splattered with black materials. He
concluded that the violation was significant and substantial.
Peter Baughman testified that he operates the steam jenny
two to three times a week. He said that he has used the jenny
without wearing goggles, and his has never gotten anything in his

606

eyes. He said that when he operates the jenny and places the
nozzles at a distance of 3 feet away from a truck, water gets
splashed on him, but that the solid material loosened from the
truck falls down the truck.
The observation of Lauver that the employee who was
operating the jenny in question was observed with black materials
splattered over his face was not rebutted or contradicted.
Neither was Lauver's opinion that dirt and grease dislodged by
the jenny splatters in all directions. Baughman indicated that
usually the nozzle of the jenny is kept about 3 feet away from
the truck when it is being used. He also indicated that water
does splash upon him.
Based on this record, I concluded that an injury producing
event, i.~., ~materials dislodged from the truck being
splattered in the eye of an operator who was not wearing goggles
was reasonable likely to have occurred. However, the record does
not established any evidence regarding the level of severity of
an injury occasioned by contact of the materials with an eye . I
thus cannot cpnclude that an injury of a reasonably serious
nature was likely to have occurred as a consequence of the
violation found herein. I conclude that it has not been
established that the violation was significant and substantial.
Baughman indicated that the Respondent does require the
wearing of safety goggles .

Greenawalt testified that persons who

run the jenny are supplied with goggles, and Respondent does
enforce the rules of wearing safety goggles. He indicated that
if he catches a person operating the jenny without safety
goggles, he tells him to put them on. I find that Respondent's
negligence is less than moderate . I conclude that a penalty of
$100 is appropriate for this violation.
XIV.

Citation No. 3709905 (Docket No. PENN 93-152).

On December 3, 1992, McKendrick issued a citation alleging a
violation of 30 c.F.R . § 77.1103 which, in essence, requires
flammable liquids to be stored in accordance with the standards
of the National Fire Protection Association. He indicated that
gasoline was being kept in containers that were not approved as
safety cans. Respondent indicated that it conceded the
violation. Based upon this concession and testimony of
McKendrick, I concluded that Respondent did violate Section
77.llOJ(a). Supra
McKendrick indicated that he could smell fumes in the
building that contained the gasoline cans. McKendrick explained
that the gasoline at issue is stored in cans that do not have
safety lids to prevent spillage in transportation. He related an
incident, contained in an accident report he read, wherein an
individual was driving a vehicle containing gas in plastic

607

containers that did not have safety lids, and gas fumes escaped
causing the individual to become overcome with fumes which
resulted in a fatal accident. McKendrick opined that was an
injury was reasonably likely to have occurred as a result of the
violation herein.
Baugaman testified that approximately once a week he goes to
the area in question, removes a container of gas, and carries it
to a bus where it is consumed.
Within the framework of this evidence, I find that it has
not been established that any reasonably serious injuries were
reasonably likely to have resulted as a consequence of the
storage of gasoline herein in containers that were not within the
standards of the National Fire Protection Association. I find
that the violation was not significant· and substantial.
McKendricks indicated that the area in which the gasoline
was stored is required to be inspected, and that an inspection
would be revealed that the gas cans did not have safety lids. I
find the Respondent negligence to have been of a moderate degree.
I conclude that a penalty $100 is appropriate for this violation.

xv.

Citation No. 3709907 (Docket No. PENN 93-152).

On December 3, 1992, McKendric~ inspected a pavilion
(storage area) . He indicated that an area of the floor of the
pavilion approximately 8 feet by 15 feet, had been removed. He
issued a citation alleging a violation of 30 C.F.R. § 77 . 204
which requires as follows: "Openings in surface installations
through which men or material may fall shall be protected by
railings, barriers covers, or other protective devices."
Respondent conceded the violation, and based upon the testimony
of McKendrick, I find that Respondent did violate Section 77.204,
supra.
He said that some of the areas when the floor was removed
was were two feet in depth, and that it was possible that in some
areas the depth was a foot and a half. McKendrick's testified
that he saw fresh foot prints on the floor of the pavilion within
less than a foot from the area where the floor had been removed.
He indicated that throughout the day that he was at the subject
premises, he saw two persons on the pavilion. McKendrick
concluded that an injury was reasonable likely to have occurred
as there were boards lying in the vicinity which created a
stumbling hazard. He indicated that should one stumble and fall,
a broken limb was possible.
McKendrick did not testify regarding the dimensions of
boards scattered in the area, the precise manner in which they
were placed, and their distance relative to the area in which the
floor had been removed . Greenawalt indicated that some of the

608

floor was just about a foot off the ground, and that employees
worked on the pavilion only during the day. He testified that
the day prior to the citation, he created the hole in question by
removing six boards. He said that the resulting hole was 4 feet
by 4 feet, and 2 feet below the surface of the rest of the
pavilion platform. He said that the hole was backfilled with
material that was taken out of the hole. I accept Greenawalt
testimony regarding the dimension of the hole, and the dimensions
of the platform, 30 feet by 40 feet, due to his having had
personal knowledge of the creation of the hole.
Within the framework of this record, I conclude that it has
not been established that tripping or stumbling was reasonably
likely to have occurred as consequence of the violation herein .
It has also not been established that any serious injury was
reasonably likely to have occurred as a consequence of violation
herein. I thus find that the violation was not significant and
substantial.
According to McKendrick, the hole was visible from the
off ice, and f~om the hard stand where repairs are made, and where
persons work. '. This testimony has not been rebutted. However,
Greenawalt explained that the hole was made the previous day on
the orders of Pennsylvania Department of Environmental Resources
personnel who wanted to take a soil sample. I thus find that
Respondent was negligence to a moderate degree regarding this
violation. Within this framework I conclude that a penalty of
$100 is appropriate for this violation.
XVI.

Citation No. 3490533 (Docket No. PENN 93-202).

Partash indicated that on December 3, 1992 he was informed
by Respondent's employee Larry Kanour, that Ronald L. Krise was
no longer in charge of safety. Contemporaneous notes taken by
Partash indicate as follows "Krise removed from foremen position
on October 26, 1992 11 • Partash issued a Citation alleging a
violation of 30 C.F.R . Section 41.12 which requires an operator
to report, in writing, to the appropriate district manager of
MSHA, any change in information required by Section 41.11.
Section 41.11 requires an operator, in its legal identity report
to provide "· •• the name and address of the person at the mine
in charge of health and safety" . . .
The legal identity report filed by Respondent (Government
Exhibit 34) indicates as follows under the section headed.
Person at mine in charge of health and safety (Superintendent or
Principal Officer:
"Name and Title

Ronald L. Krise
Robert Greenawalt"

6 09

The legal identity report contains the names of two persons
in charge of health and safety, in conformity with the
requirements of Section 41.ll(d) (2) . Although only one person is
required in order to comply with Section 41.11 supra, Respondent
chose to include two names. Any change in this information is
thus required to be reported to MSHA pursuant to Section 41.12
supra. In essence, Partash's evidence indicates that Krise was
no longer in charge of safety as of October 26 . Respondent did
not offer any testimony to contradict Partash, nor did it impeach
the testimony of Partash in this regard. Accordingly, I accept
his testimony and I conclude that Section 41.12, supra has been
violated by as alleged by Partash. I conclude that since the
Section 41.11 is satisfied by reporting only one individual being
in charge of health and safety and since there was no change
regarding one individual previously reported, that the failure to
report the fact that Krise was no longer also in this position is
not of great consequent . I find that a penalty of $10 is
appropriate for this violation.
XVII.

Citation No . 3709908 (Docket No. PENN 93-152).

According to McKendrick on December 3, 1992, he observed a
bus used to transport persons at the mine. He noted that two
left front head lights were broken, and were not functioning.
The bus traveled over mine roads each day for about a mile in
each direction. The bus traveled in the dark, as the shifts
began at 5:45 a.m. and ended at 5:45 p.m. in December, 1992.
McKendrick issued a Citation alleging a violation of 30 C.F.R.
§ 77.1605(d) which provides, that, relating to mobile equipment,
"Lights shall be provided on both ends when required."
The bus was equipped with rear tail lights and four front
headlights. At the time of the citation, all of these lights
were operational except two of the headlights which were broken.
Hence, since the bus had rear tail lights that were operational,
and two headlights that were operational, it did have functioning
lights on both ends. Accordingly, the vehicle satisfied the
plain language of Section 77.1605(d) supra, which requires the
provision of lights on both ends. 6
ORDER
It is Ordered that (1) the following citations shall be
Dismissed: Nos. 3709643, 3709904, 3709821, and 3709908; ( 2) the
following citations be amended to violations that are not

In contrast, the vehicle cited in Citation No. 3709903, (I,
infra) which was found to violate Section 77.1605(d), supra, had
only one functioning light in the rear.
6

610

siqnificant and substantial: Nos. 3490531, 3709751, 3709642,
3709869, 3709642, 3709505 and 3709707; and (3) Respondent shall
pay, within 30 days of this decision a penalty of $2,210.00.

Avram Weisberger
Administrative Law Judge
Distribution:
Linda Henry, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market street, Room 14480, Philadelphia, PA 19104
(Certified Mail)
Tim o. Norris, Esq., and Farrah Lynn Walker, Esq., Stradley,
Ronon, Stevens & Young, 2600 One Commerce Square, Philadelphia,
PA 19103-7098. (Certified Mail)
/efw

611

l'BDBRAL JIDIB SU'BTY Al1D mLTB JtBVJ:BW CO.IDUSS:IOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 2 3 1994
CIVIL PENALTY PROCEEDING

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

Docket No. SE 93-333
A. C. No. 40-02045-03593

v.

s & H Mine No. 2

S & H MINING, INC.,
Respondent
DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for the Petitioner;
Imogene A. King, Esq., Frantz, McConnell & Seymour,
Knoxville, Tennessee, for the Respondent.

Judge Feldman

This case is before as a result of a petition for civil
penalty filed by the Secretary of Labor pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et~, (the Act). This matter was heard in
Knoxville, Tennessee on December 14, 1993. Mine Safety and
Health Administration (MSHA) inspectors Ted E. Phillips and
Stanley L. Sampsel testified on behalf of the Secretary .
Paul G. Smith, president of s & H Mining, Incorporated, and
employees Cecil Broadus, Richard Wright and Larry Bullock
testified for the respondent. The parties' posthearing proposed
findings and conclusions are of record.
This case concerns eleven 104(a) citations that are all
designated as significant and substantial. Therefore, the issues
for resolution in this proceeding are whether the violations in
fact occurred, and if so, whether they constituted significant
and substantial violations. In addition, the appropriate civil
penalty to be assessed for each established violation must also
be resolved. The parties have stipulated to my jurisdiction in
this matter and to the pertinent statutory civil penalty criteria
in Section llO(i) of the Act, 30 u.s.c. § 820(i).

612

At the hearing, I approved a settlement agreement with
respect to Citation No. 4041541. The terms of the agreement
will be incorporated in this decision. The respondent has
stipulated to the fact of occurrence of the violations cited in
four of the remaining ten citations. These are Citation Nos.
4041543, 4041547, 3825085 and 3825086.
The Applicable Siqnif icant and Substantial standard

The Secretary has the burden of proving that a particular
violation is significant and substantial in nature. The
Commission, in Mathies Coal Co., 6 FMSHRC 1 (January 1984),
enumerated the elements that must be established for the
Secretary to prevail on the significant and substantial issue.
The Commission stated:
In order to establish that a violation of a
mandatory safety standard i s significant and
substantial under National Gypsum the Secretary of
Labor mu~t 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 wi ll be of a reasonably serious
nature. 6 FMSHRC at 3-4.
In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission further stated:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause ·and
effect of a hazard that must be significant and
substantial. U.S. steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984) .
In addressing the significant and substantial question, the
Commission has noted the likelihood of injury must be evaluated
in the context of an individual's continued exposure during the
course of continued normal mining operations to a hazard created
by the subject violation. Halfway. Inc., 8 FMSHRC 8, 12 (August
1986); U.S. Steel Mining Co .. 7 FMSHRC 1125, 1130 (August 1985);
U.S. Steel Mining Company, 6 FMSHRC 1573, 1574 (July 1984).

61 3

Citation No. 3825085

Citation No. 3825085 was issued on March 22, 1993, by MSHA
Inspector Ted Phillips for violation of the mandatory safety
standard in 30 C.F.R. § 75.204(c) (1). This safety standard
requires that "a bearing plate shall be firmly installed with
each roof bolt." The respondent has stipulated to the fact of
occurrence of this violation.
The respondent utilizes resin grout-type bolts which are
steel bolts four feet in length inserted into holes drilled four
feet long upward into the roof. A resin cartridge is inserted
into the hole . The roof bolt operator then spins the bolt into
the roof plate and hole applying pressure to the resin in order
to form a solid bond between the steel bolt, bearing plate and
roof . (Tr. 45). Bearing plates are secured by the roof bolt head
and resin on four foot centers, four across the 20 feet width of
the entry. The roof bolts and bearing plates along with the
right and left rib create a "beam" that draws the rock together
providing roof support. (Tr. 21). These "beams" are installed
along the full length of the entry, four feet on center.
Citation No. 3825085 was issued by Phillips for a roof bolt
on which the bearing plate was not situated firmly against the
roof. Instead, due to sloughage of draw rock around the bolt,
the bearing plate was approximately six inches from the roof .
Phillips testified that the loose plate was located in the number
three entry closest to the left hand rib. To the right of this
loose plate were three secure plates, four feet on center and the
right rib. Four feet in front and four feet behind this row of
plates were other similarly installed "beams" consisti ng of
bearing plates, roof bolts and ribs.
As a justification for his significant and substantial
designation, Phillips testified that a loose bearing plate could
contribute to a roof fall if other bearing plates were loose.
However, Phillips conceded that a roof bolt without a secure
plate still provides partial roof support because of the bond
between the resin and steel bolt. More importantly, . Phillips
testified that even with the loose bearing plate, an effective
support structure was created by the remaining bolts and ribs in
that "beam" and by the "beams" to the front and rear of the bolt
with the loose bearing plate.
(Tr. 52). Phillips stated that he
inspected approximately 500 roof bolts in the immediate face
area. Of these 500 bolts , only the subject bolt had a loose
bearing plate. (Tr . 29-30).
In addressing the significant and substantial issue, the
Secretary must establish that there is a reasonable likelihood
that the hazard contributed to, i.e., a compromised roof support
system, will result in an event, i.e., a roof collapse, which
will contribute to an injury of a serious nature. While roof

61 4

support is a leading cause of serious injury and death in
underground coal mines, the determinative question is the
likelihood of a roof fall under these circumstances. The
Secretary does not contend, nor am I prepared to conclude, that
one loose bearing plate with secure roof bolts, plates and ribs
both to the right and left, and, front and rear, significantly
compromises the effectiveness of the roof support system. In
this regard, even Inspector Phillips opined the structural
integrity of the "beam" given one loose bearing plate, would not
be "exceptionally weak." (Tr . 51-52). Thus, the Secretary has
not prevailed on the significant and substantial question.
Accordingly, the significant and substantial designation in
Citation No. 3825085 shall be deleted. Consequently, I am
assessing a civil penalty of $100 instead of the $178 civil
penalty initially proposed by the Secretary.
Citation No. 3825086

Inspector Phillips issued Citation 3825086 on March 22,
1993, for an alleged violation of the mandatory safety standard
in 30 C.F.R. §, 75.208 which requires the end of a permanent roof
support area tb be posted with a readily visible warning, or, to
have installation of a physical barrier, to impede travel beyond
the permanent support. The citation was issued because a flag or
warning device had not been placed at the last row of bolts inby
the face in the No. 4 entry to warn miners of unsupported roof
where the last bolt on the far right corner inby the face had not
been installed.
According to Inspector Phil lips, the hazard created by the
failure to display the flag or warning device was that a miner
could go inby unsupported roof. (Tr. 33). The subject citation
concerns a missing roof bolt from the far uppermost right hand
corner. (Tr. 55). Immediately, inby the missing roof bolt was a
solid rib of coal . To the left and right behind the missing bolt
were properly installed roof bolts on four foot centers. (Tr. 55,
56). To the immediate right of the missing bolt was a solid rib
of coal . (Tr. 55.) The ribs on the sides provide support in the
area. (Tr. 64.).
The final bolt in the No . 4 entry had not been installed in
its normal sequence because the floor in the immediate area was
too soft to bring in the roof bolt machine.
(Tr. 78, 84). The
roof bolt machine operator, Richard Wright, testified that before
the final bolt could be installed, the soft bottom beneath it
would have to be scooped out in order to allow access by the bolt
machine. (~r. 79). However, the continuous miner blocked the
area from access by the scoop (Tr. 79). Wright's plan was to
return to the area as soon as it was accessible with the scoop,
and to install the bolt after the area was cleaned before the
next cut of coal was made. (Tr. 80, 88).

615

Wright was responsible for hanging the flag o~ warning
device at the site of the missing bolt. (Tr. 39). However,
Wright testified that he simply forgot to hang the flag.
(Tr. 78). The respondent has admitted the fact of the violation
but contests the significant and substantial designation.
Phillips testified that the significant and substantial
hazard posed by failing to hang a warning device is that a person
could go inby unsupported roof and be exposed to the risk of roof
fall. (Tr. 32, 33). Phillips testified that the individual most
likely to be exposed to this risk was the preshift examiner.
Wright testified that David Miles was the preshift examiner.
Wright further testified that he informed Miles that the last
corner bolt had not been installed. (Tr. 89). In view of Miles'
awareness of the missing corner bolt, the respondent asserts that
Miles' exposure to unsupported roof was highly unlikely.
In resolving the significant and substantial question, it is
helpful to examine the exposure to risk the mandatory safety
standard seeks to avoid. In this regard, Section 75.208 requires
a visible warning or physical barrier to impede travel beyond
permanent roof support. Thus, the safety standard does not
recognize verbal warning as an effective preventative measure.
In this regard, such warnings can be forgotten or neglected to be
communicated to personnel who, for whatever reason, may have a
necessity to traverse the area. Thus, I conclude that, in the
absence of any physical warning or barrier, the violation cited
in Citation No. 3825086 was properly characterized as significant
and substantial. Accordingly, the Secretary's proposed civil
penalty of $235 is affirmed.
citation Nos. 4041543 and 4041547

The respondent has stipulated to the fact of occurrence of
the violations cited in Citation Nos. 4041543 and 4041547. These
citations concern violations of 30 C.F.R. § 75.517 on two 440
volt cables providing power to the No. 1 and No. 2 Jeffrey bridge
carriers. The citations were issued because the abrasionresistent cable jackets which surround and protect th·e softer,
insulated electrical wires, had been torn. (Tr. 96, 105). These
citations were issued by Inspector Stanley Sampsel on March 22,
1993. Torn cable jackets are frequent occurrences in coal mines.
(Tr. 97). Sampsel was unable to recall the length or specific
location of the tears in question. (Tr. 104, 113). However, he
testified that the tears could be immediately repaired with
electrical tape. (Tr. 115). The parties agreed that my
resolution of Citation No. 4041543 would govern my decision on
Citation No. 4041547.
Sampsel justified his significant and substantial finding by

testifying that torn outer jackets expose the softer insulated
electrical wires in the cable.

These wires could be further

616

compromised by subsequent wear and tear within the mine. These
cables are frequently handled by mine personnel. Thus,
electrical injury could occur to a miner coming into contact with
open phase wires while handling the cables. (Tr. 106-7). Since
the inner insulation was not damaged, Sampsel conceded that the
cable could be repaired without turning the power off. (Tr. 121).
In challenging Sampsel's significant and substantial
designation, the respondent argues that its personnel would have
promptly discovered and repaired the compromised outer jackets
before further damage to the inner insulated wires occurred.
(Tr. 121). However, the issue of significant and substantial
must be viewed in the context of continuing normal mining
operations. U.S. Steel Mining Company, Inc., supra. Periodic
preventative or remedial maintenance on the part of an operator
is presumed. However, the use of caution by mine personnel is
not an appropriate consideration for mitigation of a significant
and substantial violation. See Eagle Nest, Incorporated, 14
FMSHRC 1119, 1123 (July 1992). Consistent with the Commission's
Eagle Nest decision, I conclude that a maintenance program does
not mitigate the degree of risk associated with an undetected or
unremedied violation.
I credit Inspector Sampsel's testimony that continued mining
operations could expose the inner insulated electrical wires to
further damage. Sampsel also testified that miners frequently
have occasion to move or otherwise come in contact with these
trailing cables. Under such circumstances, exposure to exposed
wires could result in serious electrical injury. Consequently, I
conclude that there was a reasonable likelihood, in the context
of continued mining operations, that the more delicately
insulated electrical wires inside the torn cable could become
further compromised and contribute to the serious electrical
injury of a miner exposed to these wires. Accordingly, the
significant and substantial designations in Citation Nos. 4041543
and 4041547 are affirmed. Consequently, I am also affirming the
proposed civil penalties of $288 for each of these citations.
Citation Nos. 4041548, 4041549, 4041550 and 4041551

Citation Nos. 4041548, 4041549, 4041550, 4041551, were all
issued for alleged violations of 30 C.F.R. § 75.1722(a). This
mandatory safety standard provides, in pertinent part, that
exposed moving machine parts which may be contacted by
individuals, and which may cause injury, shall be guarded. These
four citations concern alleged inadequate guarding of chain drive
shafts on the No. 1 and No. 2 Jeffrey bridges and the No. 1 and
No. 2 Jeffrey carriers. As the four guarding citations address
essentially the same type of equipment, i.e., the motor drive
assemblies that move the conveyors attached to the left
of the motor drive assemblies, the parties agreed that these
citations would be considered collectively. (Tr. 9-10, 170).

617

These four citations concern the adequacy of the factory
installed guarding of the motor drive assemblies of bridges and
carriers manufactured by the Jeffrey Manufacturing Company.
These bridges and carriers are connected to the continuous miner.
The coal cut by the continuous miner is loaded on conveyors on
these bridges and carriers which conveys the coal from the face
to the belt conveyor system which in turn transports the coal to
the surface.
(Tr. 169).
The subject bridges and carriers were purchased by the
respondent as new equipment in 1978. (Tr. 217). The four cited
pieces of equipment came from the manufacturer with, yellow,
metal, factory-installed guards, which are demonstrated in the
closed position in photograph C of respondent's exhibit three and
in the open position in photographs A and B of respondent's
exhibit three. These guards cover the motor drive assemblies
which are located immediately to the right of the conveyor. Each
drive assembly consists of a gray motor and a black, ribbed speed
reducer.
(Tr. 198, 199). The motor and reducer are connected by
a drive shaft which measures 1 3/8 inches in diameter and 18
inches in length .
(Tr. 188, 199, 207, 215; respondent's exhibit
4). The factory-installed guard is three inches higher than the
drive shaft . The guard has a curved lip which covers the side of
the drive shaft.
(Tr. 215; respondent's exhibit 3).
Located along the drive shaft, approximately three inches
from the gray motor, is a shearing hub which is approximately
five inches in diameter.
(Tr. 202). The factory-installed
guard, which measures 14 inches in length, covers the drive shaft
and shearing hub.
(Tr. 202). Clearance between the shearing hub
and guard is only one-half inch.
(Tr . 203). The shearing hub,
which is more than 3 1/2 inches larger in diameter than the drive
shaft, prevents access to the remainder of the guarded drive
shaft .
(Tr . 209). Paul Smith estimated that the dimensions and
placement of the factory-installed guards resulted in an exposure
of a three inch length of drive shaft between the gray motor and
the guarded shearing hub and an exposure of one inch of drive
shaft between the guard and the black, ribbed speed reducer.
(Tr. 208-9) .
In support of these citations, Inspector Sampsel testified
that the factory-installed guards were deficient in their design
and length. In this regard, although Sampsel conceded that the
guards effectively shielded the center of the drive shaft, he
opined that a person could "stick [his] hands" past the ends of
the guards into the shaft itself. (Tr. 171, 173-4). In addition,
Sampsel stated that there was enough clearance between the guards
and the shafts to enable someone to "reach right in" to the
moving parts. (Tr. 174) . Although Sampsel expressed concerns
with regard to the clearance between the guard and shafts, he
stated that the violations were attributable to the length of the
guards .
(Tr . 182). Sampsel testified that miners tend to hold

618

on to the carriers and bridges "as kind of a crutch" as they
traverse the belt entries. Therefore, Sampsel expressed his
concern that a miner could inadvertently come into contact with
the drive shaft if he inattentively grabbed the carrier or bridge
system for support. Sampsel opined that under such circumstances
a miner could sustain serious moving part contact injuries to his
hand or arm. (Tr. 175, 176).
Section 75.1722(a), the cited mandatory safety standard,
requires that " ... shafts ..• and similar exposed moving machine
parts which may be contacted by persons, and which may cause
injury to persons shall be guarded." This mandatory safety
standard contemplates guarding that satisfies a fitness for
purpose standard. Significantly, Inspector Sampsel testified a
primary purpose of the subject guarding is to prevent individuals
who may suddenly grab the bridges and carriers for support from
inadvertently sticking their hands between the end of the guard
and the moving drive shaft. Paul Smith conceded the primary
exposed area was a three inch length of drive shaft between the
gray motor and the guarded shearing hub. This three inch area,
which is adequately depicted in the photographs in respondent's
exhibit 3, poses a risk of hand injuries to personnel who may
suddenly grab the drive shaft area. Consequently, there is an
adequate basis for concluding the factory-installed guarding was
insufficient in length in violation of Section 75.1722(a).
Although I have concluded that the subject guards posed a
risk to mine personnel, it is the degree of risk and the
likelihood of injury that must be evaluated in order to determine
if these citations were properly designated as significant and
substantial. Sampsel testified that the guards shielded the
major portion of the moving drive shaft. Smith's testimony that
approximately three inches of the drive shaft was exposed is
supported by the photographic evidence. Consequently, while I
have concluded that miner's were exposed to risk, the minimal
area of mine shaft area exposure does not warrant a finding that
injury was reasonably likely to occur. Thus, the significant and
substantial designations shall be deleted from these guarding
citations. Accordingly, I am assessing a penalty of $75 for each
citation .
Citation No. 4041556
Citation No. 4041556 alleges a citation of 30 C.F.R.
75.370(a) (1) in that the respondent failed to comply with its
approved ventilation plan because a check curtain was not located
at the end of the permanent belt line. The purpose of a check
curtain at the end of the permanent belt structure is to prevent
air from traveling up the belt line to the working face in the
event of a fire or other emergency. (Tr. 231, 235). The
respondent admits the check curtain was not installed at the time
the citation was written by Inspector Sampsel at 11:00 a.m. on
§

619

March 23, 1993. However, the respondent asserts that at the time
of the citation, it was in the process of advancing the belt
forward one break. (Tr. 245-6). Consequently, it argues that no
mining was under way because the belt line is inoperable during
the set-up process. (Tr. 246, 248).
Inspector Sampsel testified that he believed coal production
had taken place the morning he issued the citation. (Tr. 237-8).
However, he could not specifically recall whether production was
actually occurring at the time the citation was issued. (Tr. 240)
Significantly, Sampsel's contemporaneous notes made at 11:00 a.m.
on March 23, 1993, do not reflect that the operator had suspended
production activities. (Tr. 265-266).
In considering the respondent's assertion that no production
activities were in progress, I had the following exchange with
respondent witness Larry Bullock:
THE COURT: Mr. Bullock, were you aware that a citation
had been written on that date for no check curtain and
no regulator?
THE WITNESS:

Yes.

THE COURT: Did you ever talk to Inspector Sampsel about the
fact that the reason the check curtain and regulator
was not installed was because the belt line was being
advanced?
THE WITNESS:

No, I didn't.

THE COURT: To your knowledge, did anybody else ever tell
that to Mr. Sampsel?
THE WITNESS:

Not to my knowledge.

THE COURT: Does that seem strange to you in the context
of check curtains [having] to be removed and replaced,
and in the interim period while a belt is being
advanced [the check curtain] is not going to be .in
place?
Do you have any explanation for why the personnel at
the mine didn't tell Inspector Sampsel, it is not in
place because we are in the process of moving?
THE WITNESS:

No, I don't.

Bullock's testimony is consistent with the testimony of
respondent witness Cecil Broadus that, to his knowledge, no one
conveyed to Inspector Sampsel that the belt curtain and regulator
were removed because the belt line was in the process of being

620

advanced.

(Tr. 250).

As previously noted, this citation was issued on
March 23, 1993. This hearing proceeding was conducted
approximately nine months later on December 14, 1993. If the
subject citation was issued as a result of Sampsel's erroneous
assumption that mine production was in progress , it was incumbent
on the respondent to try to dissuade Inspector Sampsel of this
notion at the time the citation was issued. The respondent does
not contend that Inspector Sampsel was advised that production
had been suspended. Having failed to even attempt to convince
Sampsel that production was suspended at the time the citation
was issued or during the Health and Safety Conference process
provided to discuss the merits of citations shortly after they
are issued, the respondent's belated self-serving assertion at
the hearing regarding the non-production status must be afforded
little weight. Accordingly, the fact of the violation and the
significant and substantial nature of the subject citation is
affirmed. The Secretary's proposed $178 civil penalty for
Citation No. 4041556 is also affirmed.

citation 4041557
Citation No. 4041557 alleged a violation of 30 C. F . R.
75.1704-2(d). The citation specified that an up-to-date
escapeway map was not provided in the No. 1 Section. The cited
escapeway map was shown to Inspector Sampsel by David Miles who
is no longer employed by the respondent . (Tr. 268). The
respondent asserts that it had a current escapeway map on the
surface. However, for reasons unknown to the respondent,
Inspector Sampsel was apparently shown an out-of-date map.
Although Smith requested a conference pursuant to the procedures
set forth in Section 100.6, 30 C. F.R. § 100.6, MSHA denied
Smith's conference request as untimely.
(Tr. 337-38).
§

It is unfortunate that Smith's request for a conference was
untimely. Once again, I find myself in the position of being
asked to save the respondent from itself. As the respondent's
counsel noted in her proposed findings and conclusions, 11 • • • it is
conceivable that an up-to-date escapeway map was on the section,
.•. but for some reason, Inspector Sampsel saw or was erroneously
shown an out-of-date map . . . . Equally regrettably, S & H did not
question the inspector or voice the opposition to him. Had the
parties communicated more fully, a misunderstanding of this type
could have been resolved." (Resp. 's Proposed Findings, p.31) .

62 1

Although the Secretary has the burden of proving the fact of
a violation, an operator has the obligation to provide an
inspector with sufficient information if it believes a violation
has not occurred. I have no reason to doubt Inspector Sampsel's
testimony that he was not shown a current escapeway map. If a
current escapeway map was not made available to Sampsel, it
follows that a current map may not have been provided to mine
personnel in the event of an emergency. Consequently, Citation
No. 4041557, designated as significant and substantial, shall be
affirmed. The $178 proposed assessment shall also be affirmed.
Citation No. 4041541
At the hearing, the parties moved to settle Citation
No. 4041541. The terms of the settlement agreement are that the
significant and substantial designation in this citation shall be
deleted and the proposed penalty of $309 will be reduced to $75.
In addition, pursuant to the terms of this settlement agreement,
the respondent has submitted to the MSHA District Office a
request for modification of its roof control plan in order to
resolve ambiguities in the plan concerning corner cuts and
permissible widths. The terms of this settlement agreement are
incorporated herein.
ORDER
In view of the above, IT IS ORDERED that:
1. Citation No. 3825085 IS MODIFIED by removing the
significant and substantial designation. The civil penalty
assessed for this citation is $100.00.
2. citation No. 3825086 IS AFFIRMED.
assessed for this citation is $235.00.

The civil penalty

3. Citation Nos. 4041543 and 4041547 ARE AFFIRMED.
these citations is assessed a civil penalty of $288.00.

Each of

4. Citation Nos. 4041548, 4041549, 4041550 and A041551
ARE MODIFIED by removing the significant and substantial
designations. Each of these citations is assessed a civil
penalty of $75.00.
5. Citation No. 4041556 IS AFFIRMED.
assessed for this citation is $178.00.

The civil penalty

6. Citation No. 4041557 IS AFFIRMED.
assessed for this citation is $178.00.

The civil penalty

622

7. Consistent with the terms of the parties' settlement
agreement, Citation No. 4041541 IS MODIFIED by removing the
significant and substantial designation. The respondent has
agreed to pay a civil penalty of $75.00 for this citation.
IT IS PORTBER ORDERED that the respondent SHALL PAY, within
30 days of the date of this decision, a total civil penalty of
$1642.00 in satisfaction of the citations in issue. Upon receipt
of payment, this case IS DISMISSED:
,.

Jerold Feldman
Administrative Law Judge

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)
Imogene A. King, Esq., Frantz, McConnell & Seymour, P.
Knoxville, TN 37901 (Certified Mail)
/11

623

o. Box 39,

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

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

v.
MORRIS SAND AND GRAVEL,
Respondent

MAR 2 5 1994

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 93 - 3 - M
A. C. No. 41 - 03200 - 05518
Docket No. CENT 93 - 4 - M
A. C. No. 41- 03476 - 05522
Docket No. CENT 93 - B- M
A. C. No. 41-03476-05521
Docket No. CENT 93-20-M
A. C . No. 41 - 03200-05519
Docket No. CENT 93 - 21-M
A. C . No. 4 1-03476 - 05523
Docket No. CENT 93 - 42 - M
A. C. No . 41 - 03476-05524
Docket No. CENT 93-57-M
A. C. No. 41-03476-05525
Docket No . CENT 93-88-M
A. C . No. 41-03200-05520
Docket No. CENT 93-101- M
A. C . No. 41-03200 - 05521
Docket No. CENT 93 - 102 - M

A. C. No. 41-03476 - 05526
Docket No. CENT 93-246-M
A. C. No. 41 - 03476-05527
Plants No. 1 and No. 2
DECISION

Appearances :

Olivia Tanyel Harrison , Esq . , Office of the
Solicitor, U. S. Department of Labor, Dallas,
Texas, for the Petitioner;
Harriett Morris and Thomas Lee Morris , Pro Se,
for the Respondent.

Before:

Judge Feldman

624

This consolidated proceeding is before me based upon
petitions for assessment of civil penalties filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act), 30 U.S.C. § 801 et.
~' charging the respondent with various violations of the Act
and mandatory regulatory safety standards. Pertinent
jurisdictional stipulations as well as stipulations pertaining to
the civil penalty criteria in section llO(i) of the Act,
30 u.s.c. § 820(i), are of record. The parties waived the filing
of posthearing briefs.
These matters were heard on February 23, 1994, in Houston,
Texas, at which time Mine Safety and Health Administration (MSHA}
Inspector Joseph Watson testified on behalf of the Secretary and
Thomas and Harriet Morris testified for the respondent company.
At the hearing, the parties moved to settle nine of the eleven
captioned docket proceedings. The terms of this comprehensive
settlement resulted in an agreed upon total assessment of $2,125.
At trial I considered the representations and documentation
submitted in s\1pport of the parties' agreement, and I concluded
that the proffered settlement was appropriate under the criteria
set forth in Section llO(i) of the Act.
(Tr. 8-33, 177-179). An
order directing payment of the agreed upon total civil penalty
will be incorporated in this decision.
The parties could not reach a consensus on Docket Nos.
CENT 93-57-M and CENT 93-102-M.
Docket No. CENT 93-57-M concerns
combined 104(a) and 107(a) Order No. 3898640 issued on
March 18, 1992, by Inspector Joseph Watson at the respondent's
No. 2 Plant. This order alleges the service brakes on the
respondent's Trojan, Model 2500, front loader, which was being
used to load trucks, constituted an imminent danger because the
brakes could not stop the loader on level ground in violation of
section 56.14101(a) (3), 30 C.F.R. § 56.1410l(a) (3). This
mandatory safety standard specifies that all braking systems
installed on equipment must be maintained in functional
condition. Docket No. CENT 93-102-M involves 107(a) Order
No. 3899545 issued by Watson the following day on March 19, 1992,
as a result of the respondent's continuing failure to. remove the
cited Trojan front-end loader from service.
The respondent, Morris Sand & Gravel, is a sole
proprietorship owned by Thomas Morris. The company has a history
of financial difficulties manifested by a petition for protection
under Chapter 11 of the U.S. Bankruptcy Code filed on August 21,
1987, by Thomas L. Morris, d/b/a Morris Sand & Gravel.
(Resp.'s ex. 2). Although not a formal partnership, Harriett
Morris testified that she considers Morris Sand & Gravel to be
jointly owned.
(Tr. 9-10).

625

Morris Sand and Gravel is a small operator that employs a
total of six employees.
(Joint stipulations, Government Ex. 9).
The company dredges sand and gravel from the San Jacinto River.
The material is dredged at the river level and pumped to a wet
screen plant where it is processed over a series of screens that
separate the various grades of material. The material is
ultimately transported by conveyor to the plant where it is
loaded onto customers' trucks.
(Tr. 50-53).
Inspector Watson arrived at the respondent's No. 2 Plant at
approximately 8:00 a.m. on March 18, 1992, for the purpose of
performing a routine inspection. Upon arriving at the plant,
Watson observed Fidencio Ruiz, the respondent's loader operator,
loading trucks with sand and gravel materials with a Trojan
front-end loader. As Watson approached the loader, Ruiz advised
him that the brakes on the vehicle were not operating. Watson
observed the loader in operation and concluded that the service
brakes failed to stop the vehicle.
(Tr. 57). He tested the
vehicle and confirmed that the brakes would not hold on level
ground.
Watson estimated the vehicle weighed approximately 30,000
lbs. and held approximately 3 1/2 yards in its scoop.
He
concluded, given the size and weight of the vehicle, that its
inoperable brakes could reasonably have been expected to cause
death or serious physical injuries to Ruiz or to operators of the
trucks that were being loaded.
Specifically, Watson testified
that the loader could easily crush the cab of a haulage truck
seriously injuring or killing the truck driver .
(Tr. 58).
Thus,
Watson concluded the condition of the loader posed an imminent
danger.
Consequently, Watson issued combined 104(a) and 107(a)
Order No. 3898640 at 1:40 p.m.
(Government Ex. 10).
The Order
required the respondent to immediately remove the loader from
service until the service brake system was repaired and
reinspected by an authorized MSHA representative.
The Order was
served by Watson on Ruiz who is not fluent in English.
Watson returned to the respondent's plant the following
morning on March 19, 1992. At approximately 10:30 a.m . Watson
explained to Thomas Morris that the imminent danger order given
to Ruiz the previous day required the front-end loader to be
taken out of service and not used until such time as it could be
repaired and reinspected. 1 Morris became upset and accused
Watson of trying to put him out of business by shutting down his
loader. Shortly after the conversation with Watson, Morris
called Doyle Finke, Watson's supervisor assigned to the

1

Section 107(a) of the Act requires equipment posing an
imminent danger to be immediately withdrawn form service.
30 u.s.c. § 817(a).

626

San Antonio, Texas field office. Morris complained to Finke that
Watson had shut down his business operations. Morris told Finke
that his other loader was not operational because his mechanic
was working on it and that if he could not use the cited loader,
he could not load material for customers. Morris asked Finke if
he could use the loader if the brakes were repaired. Finke
replied that Morris could not legally use the loader until it was
reinspected by an MSHA inspector . Morris told Finke that he
would use the loader anyway and take full responsibility for its
operation.
(Tr. 161-162; Gov.Ex. 4).
Approximately four hours after Watson explained the
respondent's statutory obligation to remove the loader from
service, Watson returned to the plant and found the loader in
operation. Consequently, Watson issued 107(a) imminent danger
Order No. 3899545 at 3:20 p.m.
The respondent asserts Ruiz crimped the brakeline on the
loader sometime after the initial imminent danger order was
issued at 1:40 p.m. on March 18, 1992, and before the subsequent
imminent danger order was issued on March 19, 1992, at 3:20 p.m.
Therefore, the respondent argues the service brake system had
improved. However, Watson testified crimping the brakeline
increased the danger because it results in uneven braking,
sliding, skidding and loss of control.
(Tr. 117-118).
Therefore, Watson opined that the crimping of the brakeline did
not remove the imminent danger.
(Tr. 118-119).
In apparent recognition that the front loader was being
operated in less than optimum condition, Harriett Watson
testified that"·· .we're doing the best (we) can -- the best we
can to stay in business. We were trying to get another loader.
If we shut down our loader, we have to shut down our business."
(Tr. 156).
Similarly, Thomas Morris testified that:
Well, we knew that we had another loader about to be
repaired and about to be back on stream, and tha~ it
was not going to take us very long to have to use this
loader. So, we went ahead and used it and I called
Mr. Finke and it appears now that they had either changed
their mind about agreeing to let me use that loader or
I misunderstood or whatever the case is. My
understanding was that we could go ahead and use that
loader, and we were just responsible for it . . . . I
[mean] if anyone got hurt or injured on the job, it was
not -- we were not going to hold MSHA responsible for
anybody getting hurt or any damage that we did to a
truck.
(Tr. 161-162) .

627

In addressing the question of imminent danger, the
Commission has noted that "an imminent danger exist.s when the
condition or practice observed could reasonably be expected to
cause death or serious physical harm to a miner if normal mining
operations were permitted to proceed in the area before the
dangerous condition is eliminated." Rochester & Pittsburgh Coal
Co., 11 FMSHRC 2159, 2163 (November 1989), guoting Eastern
Associated Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d
25, 31 (7th Cir. 1975). Although an inspector must have a
reasonable basis for concluding a condition presents an impending
hazard that requires the immediate withdrawal of effected miners,
an inspector is "granted wide discretion because he must act
quickly" under such circumstances. Island Creek Coal Co.,
15 FMSHRC 339 (March 1993).
After considering the testimony in this matter I issued the
following bench decision affirming the subject imminent danger
orders which is edited with nonsubstantive changes:
These matters concern Imminent Danger Order No. 3898640
that was issued on March 18, 1992, at 1:40 p.m . and
Imminent Danger Order 3899545 that was issued the
following afternoon on March 19, 1992, at 3:20 p.m.
These citations deal with the issue of imminent danger.
The term "imminent danger" is defined in Section 3(j)
of the Mine Act as "the existence of any condition or
practice in a coal or other mine which would reasonably
be expected to cause death or serious physical harm
before such condition or practice can be abated." 30
u .s.c. § 802(j).
Turning to the issue of whether or not there was an
imminent danger with respect to Order No. 3898640,
Inspector Watson testified that during his inspection
Mr. Ruiz, the operator of the cited front-end loader,
complained to him about the brakes not operating
properly. Watson then checked the brakes and
determined they could not hold the loader on level
gro~nd.
The loader is a large piece of equipment that
holds tons of materials and weighs tons in its own
right. As this loader with inoperable brakes
approached trucks, there was an imminent danger to
Ruiz in that he could lose control of the loader which
could result in serious or fatal injuries to him or to
operators of the trucks he was loading.
I reject Mrs. Morris' assertion that the loader does
not approach the cab of the truck. A loader approaches
a truck from many different directions and, in its
maneuvering, it is frequently directed towards the
front driver compartment of a truck.

628

I am also not persuaded by Mrs. Morris' attempt to find
mitigating circumstances by alleging that the .loader
can be downshifted or that the shovel on the scoop can
be lowered to stop the loader in lieu of properly
operating brakes. Watson testified that if the scoop
on the loader was loaded with material, the operator
would be in no position to lower the scoop to stop the
loader.
It is also not an enviable position for
anybody to be in front of a multi-ton loader that must
rely on lowering the scoop or downshifting the
transmission to stop the vehicle. In fact, lowering
the scoop could contribute to a fatality if the scoop
is lowered on the cab of the truck.
In any event, it is clear the brakes were not working
in the context of the Secretary's burden of proving the
fact of the violation and the resultant imminent
danger. My conclusion is consistent with Ruiz'
complaint. Moreover, the Morrises have presented no
evidence that the brakes were, in fact, functional.
Therefore, the Secretary has satisfied his burden of
establishing the violation of Section 56.14010(a) (3)
and that the inoperable brakes constituted an imminent
danger.
The next issue is the service of the initial imminent
danger order on Ruiz.
The Morrises claim they did not
receive actual notice of the withdrawal order from Ruiz
because Watson was misunderstood by Ruiz who is not
fluent in English. Assuming for the sake of argument
that the Morrises did not have actual notice, they had
constructive notice. Constructive notice is a concept
in law where owners of a company are responsible for
information provided to their agents. Mr. and Mrs.
Morris knew, or should have known, about the imminent
danger order.
It was their responsibility to find out
if there was a problem in communication. Therefore, I
conclude that, although there may have been confusion,
the Morrises are charged with notice of the imminent
danger order issued at 1:40 p.m. on March 18, 1992.
More.over, even if there were confusion, the confusion
was remedied at 10:30 a.m. on March 19, 1992, when
Watson, apparently aware of the difficulty in
communicating with Ruiz, had a conversation with
Mr. Morris informing him that the front-end loader must
be taken out of service immediately. Morris apparently
disagreed with this requirement and called Mr. Finke,
Watson's supervisor, and received essentially the same
information, i.e., that the scoop had to be taken out
of service.

629

Therefore, although there may have been confusion
before 10:30 a.m. on March 19, 1992, there is no basis
for concluding there was any confusion after the
10:30 a.m. meeting between Watson and Morris.
Finally, there has been quite a bit of testimony about
why the respondent continued to operate after
10:30 a.m. The testimony concerns pressure from
customers who desired their trucks to be loaded.
Section 2 of the Mine Act explicitly recognizes the
dangers in the mining industry. 30 u.s.c. § 801. It
imposes an obligation on operators to prevent the
existence of dangerous conditions. Prevention must
take precedence over concerns about production.
Consequently, I do not find the pressures brought to
bear by the respondent's customers on the Morrises as a
mitigating circumstance.
Nor do I find the Morrises' testimony that Ruiz was
satisfied with the operational performance after
crimping the brakeline as a mitigating factor.
I am
certain very few victims of serious injuries or
fatalities were aware they were operating equipment
that exposed them to an imminent danger at the time of
their injury or death. The effective method of
eliminating such imminent dangers is to have defective
equipment reinspected by authorized inspectors before
permitting such equipment to be returned to service.
I also do not find Mr. Morris' willingness to take
responsibility for the operation of the loader as
particularly relevant or appropriate. The issue is not
who is responsible for the occurrence of an injury or
death. Rather, the issue is preventing the potential
injury or death. Preventative measure must not be
sacrificed to the interests of production and
continuing operations. Accordingly, the Secretary has
also prevailed with respect to Imminent Danger Order
No. 3899545 issued on March 19, 1992, at 3:28 p.m.
The March 19, 1992, violation was more serious than the
March 18, 1992, violation as production concerns became
more urgent than safety concerns. While I am confident
this was not a conscious decision by the Morrises, it
was, nevertheless, the result. In recognition of the
fact that the respondent is a small operator with a
history of financial problems, I am assessing an
$800.00 civil penalty for Order No. 3898640 issued on
March 18, 1992, and a civil penalty of $1,000 for Order
No. 3899545 issued as a result of the Morrises
continued failure to remove the loader from service.

630

As previously noted nine of the captioned docket proceedings
were settled at trial. The terms of the settlement . agreement
with respect to these docket proceedings are as follows:
Docket No.

Citation/Order No.

Settlement
Disposition

Assessed
Penalty

CENT 93-3-M

104(a)-4107128

S&S deleted

$50.00

CENT 93-4-M

104(d)-4107131

Modified to
104 (a) ; S&S
deleted

$50.00

104(d)-4107133

$200.00

CENT 93-8-M

104(a)-3899547

$100.00

CENT 93-20-M

104(a)-4107125

CENT 93-21-M

S&S deleted

$50.00

104(a)-4107126

$35.00

104(a)-4107130

$50.00

104(a)-4107132

S&S deleted

$50.00

CENT 93-42-M

104(d)-4107129

$690.00

CENT 93-88-M

107(a)-4107124

$800.00

CENT 93-101-M

104(a)-4107127

CENT 93-246-M

104(a)-4107663

S&S deleted

$50.00
vacated

Total Settlement:

$2,125.00

ORDER
Accordingly, IT IS ORDERED that 104(a)-107(a) Order
No. 3898640 in Docket No. CENT 93-57-M and 107(a) Order
No. 3899545 in Docket No. CENT 93-102-M ARE AFFIRMED.
IT IS
FURTHER ORDERED that Thomas L. Morris, d/b/a Morris Sand and
Gravel, SHALL PAY a total civil penalty of $3925.00 which
represents the sum of the agreed settlement of $2125.00 and the
$1800.00 civil penalty imposed as a result of the adjudication in
this proceeding.
The respondent is currently paying monthly installments of
$300 . 00 through October 1994 in satisfaction of previous assessed

631

civil penalties. In recognition that the respondent is a small
operator, the Secretary has agreed to defer the required payment
in this matter and to accept an installment plan whereby the
respondent will remit to MSHA payments of $392.50 on the 15th of
every other month beginning on November 15, 1994, and ending on
May 15, 1996, in satisfaction of the $3925 . 00 civil penalty.
This payment schedule IS HEREBY APPROVED .
If Thomas Morris fails
to abide by this payment schedule, the remaining balance will
become due immediately. Upon receipt of the total $3925.00 civil
penalty, these cases ARE DISMISSED.

d!~·~-----.1~-- _ . ; ,-

(/

Jerold Feldman
Administrative Law Judge

Distribution:

o. Tanyel Harrison, Esq., Office of the Solicitor, U. s.
Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX
75202 (Certified Mail)
Mr. and Mrs. Thomas Morris, Morris Sand & Gravel, 6106 Larkmount
Road, Spring, TX 77389 (Certified Mail)

/11

632

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW. f i H FLOOR

WASHI NGTON. D.C.

20006

March 28, 1994

.

C AND S COAL COMPANY,
contestant

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

CONTEST PROCEEDINGS
Docket No. VA 94-20-R
Citation No. 3773701; 6/8/93
Docket No. VA 94-21-R
Order No. 3773702; 6/8/93
Docket No. VA 94-22-R
Order No. 3773703; 6/8/93
Docket No. VA 94-23-R
Order No. 3773704; 6/8/93
Docket No. VA 94-24-R
Order No. 37 7 3705; 6/8/93
Mi ne No. 3
Mine ID 44-0346 5

ORDER OF DISMISSAL

Before:

Judge Merlin

On December 14, 1993, the operator filed notices of contest
in the above captioned actions. Each case contains one alleged
citation dated June 8, 1993, and all of them were issued on the
ground that the operator had submitted invalid respirable dust
samples. On February 2, 1994, the Solici tor filed a motion to
dismiss these cases as untimely. On February 15, 1994, the
operator filed a response.

The Federal Mine Safety and Health Act affords an operator
two ways to challenge a citation.
First, the operator may file a
notice of contest under Section l05(d), 30 u.s.c. § 815(d), which
provides in relevant part as follows:
If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that he
intends to contest the issuance or modification of an
order issued under section 104, or citation or a notification of proposed assessment of a penalty issued
under subsection (a) or (b) of this section, or the
reasonableness of the length of abatement time fixed in
633

a citation or modification thereof issued under section
104 * * * the Secretary shall immediately advise the
Commission of such notification, and the Commission
shall afford an opportunity for a hearing * * * *
The second way that an operator may challenge a citation is
through the penalty assessment procedure. Under the Act the
Secretary of Labor must propose a civil penalty for every
violation and notify the operator. Section 105(a), 30 U. s.c.
§ 815(a), provides in this respect as follows:
If, after an inspection or investigation, the
Secretary issues a citation or order under section 104,
he shall, within a reasonable time after the
termination of such inspection or investigation, notify
the operator by certified mail of the civil penalty
proposed to be assessed under section llO(a) for the
violation cited and that the operator has 30 days
within which to notify the Secretary that he wishes to
contest the citation or proposed assessment of penalty.
A copy of such notification shall be sent by mail to
the representative of miners in such mine. If, within
30 days from the receipt of the notification issued by
the Secretary, the operator fails to notify the
secretary that he intends to contest the citation or
the proposed assessment of penalty, and no notice is
filed by any miner or representative of miners under
subsection (d) of this section within such time, the
citation and the proposed assessment of penalty shall
be deemed a final order of the Commission and not
subject to review by any court or agency. Refusal by
the operator or his agent to accept certified mail
containing a citation and proposed assessment of
penalty under this subsection shall constitute receipt
thereof within the meaning of this subsection.
In his motion the Solicitor seeks dismissal on the
ground that the contests filed on December 14 for review of
the citations dated June 8 were untimely under 30 u.s.c.
§ 815(d), 29 C.F.R. § 2700.20.
In its response the operator mixes up the two avenues of
relief available to operators. It cites 29 C.F.R. § 2700.20 as
indicating that an operator can challenge a proposed penalty
assessment with{n 30 days of notification and the Secretary must
thereafter answer. However, the cited section has nothing to do
with penalty assessments. It is 29 C.F.R. § 2700.25 which
provides that an operator has 30 days to notify the Secretary it
wishes to contest a proposed penalty and that the Secretary will
then notify the Commission. Under 29 C.F.R. § 2700.27 the
Secretary must file with the Commission ·a petition for the
assessment of civil penalties and under 29 C.F.R. § 2700~29 the

634

operator thereafter must file an answer. Clearly, therefore, the
operator has confused the filing of a notice of contest to a
citation with the challenge to a penalty proposal which as set
forth herein, has its own distinct procedures.
A long line of decisions going back to the Interior Board of
Mine Operation Appeals holds that cases contesting the issuance
of a citation must be brought within the statutory prescribed 30
days or be dismissed. Freeman Coal Mining Corporation, 1 MSHC
1001 (1970); Consolidation Coal Co., 1 MSHC 1029 (1972); Island
Creek Coal Co. v. Mine Workers, 1 MSHC 1029 (1979), aff'd by the
Commission, 1 FMSHRC 989 (August 1979); Amax Chemical Corp., 4
FMSHRC 1161 (June 1982}; Peabody Coal Company, 11 FMSHRC 2068
(October 1989) ; Big Horn Calcium company, 12 FMSHRC 463 (March
1990); Energy Fuels Mining Company, 12 FMSHRC 1484 (July 1990);
Prestige Coal Company, 13 FMSHRC 93 (January 1991); Costain Coal
Inc., 14 FMSHRC 1388 (August 1992); Cf. Rivco Dredging Corp, 10
FMSHRC 889 (July 1988); Northern Aggregates Inc., 2 FMSHRC 1062
(May 1980); Wallace Brothers, 14 FMSHRC 596 (April 1992). The
notices of contest in these cases filed 189 days after the
issuance of the. citations, were therefore, 159 days late and must
be dismissed as .untimely.
However, it is noted that under the regulations the operator
in the penalty assessment case may challenge not only the penalty
assessment, but also the fact of the violation or any special
findings contained in the citation. 29 C.F.R. § 2700.21. The
operator has properly filed a contest to the proposed assessments
which it received on December 6, 1993, and contested within 30
days on December 14, 1993. This penalty case has been docketed
with the Commission and assigned Docket No. VA 94-27. The
Solicitor filed a penalty petition on February 4, 1994, and the
operator apparently answered on March 7, 1994, but improperly
used the docket numbers of these cases instead of the docket
number for the penalty proceeding.
In light of the foregoing, it is ORDERED that these cases
be, and are hereby, DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Thomas R. Scott, Esq., Terrence Shea Cook, Esq., Street, Street,
street, Scott & Bowman, P. o. Box 2100, Grundy, VA 24614

635

Edward H. Fitch, Esq., Of f ice of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 2220-3
Mr. Carl Mullins, Miner ' s Representative, HCR Box 46, Hurley, VA
24620

/gl

636

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
J 730 I\ STREET NW. cTH FLOOR
WASHINGTON, D.C.

20006

MAR 2 6 1994CIVIL PENALTY PROCEEDING

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

v.
CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 92 - 1250-A
A. C. No . 46-01968-04040

.

Blacksville No . 2 Mine

ORDER LIFTING STAY
ORDER OF DISMISSAL

Before :

J udge Merlin

On March 24, 1993, the above captioned case was placed on
stay pending a decision on the single sample dust issue by the
Commission in Keystone Coal Company, Docket Nos. PENN 91-1480- R,
etc. On January 4, 1994, the Commission decided Keystone
adversely to the Secretary. 16 FMSHRC 6. The Secretary did not
appeal, but instead on February 18, 1994, instituted a notice of
proposed action in the Federal Register. 59 Fed . Reg. 8356 . It
is fur ther noted that by memorandum dated March 8, 1994, the
Administrator for Coal Mine Safety and Health instructed District
Managers to vacate single sample dust citations.
I further take account of the fact that i n connection with
Docket No. Penn 91-1480-R the Solicitor in that case sent
Administrative Law Judge Weisberger a list of citation numbers
which allegedly present the single sample dust issue. This list
is not adequate or helpful because it does not identify the
citations by Commission docket numbers . Because of the
Solicitor's fa i lure to furnish the required information, it has
been necessary to search every judge ' s docket case by case to
l ocate the ones that involve single samples. It is a strange
turn of events when the court must find for counsel the cases on
which he needs to take action .
Fi nally , there are many cases on the Sol icitor ' s list which
have not been l ocated in the search of the judges ' dockets. The
Solicitor should revisit his list to straighten out these
matters.
It is clear in l ight of the foregoing data including the
memorandum of the Coal Administrator , that this case should be
dismissed. This case and others like it are cluttering the
dockets of t he Commission's j udges. No useful purpose woul d be
served by requiring the Solicitor to file a motion to dismiss
here.
637

Accordingly, it is hereby ORDERED that the Order of Stay
previously entered herein be LIFTED and that this case be and is
hereby DISMISSED.

-------- ---- \- -~~~
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Edward H. Fitch, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
Douglas N. White, Esq., Counsel, Trial Litigation, U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
VA 22203
Roberts. Wilson, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241

/ gl

638

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

MAR 2 8 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
WILLIAM H. CRANFORD,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 94-79-D
Deer Creek Mine

v.
ENERGY WEST MINING COMPANY,
Respondent
. DECISION APPROVING SETTLEMENT

Before:

Judge Morris

This case is a discrimination proceeding initiated by the
Secretary of Labor on behalf of William H. Cranford against
Respondent pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et~ (the "Act").
Prior to a hearing the Secretary filed a motion seeking to
settle the case .
Under the terms of the motion Respondent has agreed as
follows:
1. It will post a notice stating it understands Section
lOJ(g) rights of all employees.
2.
It will not harass or treat differently any employee who
makes a Section 103(g) complaint or provides information to MSHA.
3. It agrees to remove complainant's reprimand from any and
all files.
The fourth paragraph of the settlement motion states "the
Secretary agrees to waive the penalties proposed for Respondent's
violation of Section 105(c) of the Act."
As to above paragraph Respondent states that it "did not
commit and does not admit a violation of Section 105(c), but has
entered into the proposed settlement solely to avoid the costs of

639

further litigation and as a reasonable, good faith compromise of
the dispute."
With the above clarification Respondent fully supports the
motion and requests that it be approved.
Finally, the agreement provides each party agrees to bear
its own fees and other expenses incurred by such party in connection with any stage of this proceeding .
I have reviewed the proposed settlement and discussed i t
with parties in a conference call on March 22, 1994.
I further
find it is reasonable and in the public interest.
It should be
approved.
Accordingly, I

enter the following:
ORDER

1.

The settlement agree~ent is APPROVED.

2.
Respondent is ORDERED to COMPLY with the terms of the
settlement agreement within 30 days of the date of this order.

Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Timothy M. Biddle, Esq . , Thomas c. Means, Esq., CROWELL & MORING,
1001 Pennsylvania Avenue, NW, Washington, DC 20004-2595
{Certified Mail)

sh

6 40

FEDERAL lllliB SAFETY .um HEALTH REVIEW COXMISSIOlll
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 2 9 1994
CONTEST PROCEEDING

LION MINING COMPANY,
Contestant

Docket No. PENN 94-71-R
Citation No. 3711869; 11/17/93

v.

Grove No. 1 Mine
Mine ID 36-02398

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

DECISION
Appearances:

Joseph A. Yuhas, Esq., Barnesboro, Pennsylvania
for Contestant;
' Richard T. Buchanan, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania for Respondent.

Before:

Judge Hodgdon

This case is before me on a notice of contest filed by Lion
Mining Company against the Secretary of Labor pursuant to Section
105 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815.
The company contests the issuance of Citation No. 3711869
to it on November 17, 1993. For the reasons set forth below, I
affirm the citation as modified herein.
The case was heard on January 13, 1994, in Somerset,
Pennsylvania. Mine Safety and Health Administration Inspector
Kenneth J. Fetsko testified on behalf of the Respondent.
Mr. George Sosnak, Mr. Hiram Ribblett, Mr. Arthur B . Jones and
Mr. Ted Marines testified for the Contestant. The parties have
also filed post hearing briefs which I have considered in my
disposition of this case.

FINDINGS OF FACT
This case arose as a result of Inspector Fetsko's inspection
of Lion Mining's Grove No. 1 mine on November 17, 1993. During
his inspection of the four and one-half right section of the
mine, he observed a shuttle car being loaded with coal by a
continuous miner in the roadway between Pillar Blocks 37 and 38.

641

Because of his location between Pillar Blocks 37 and 44,
Inspector Fetsko could not see the front of the continuous miner
to determine from where the coal was coming. At this vantage
point, the inspector observed the miner load three or four
shuttle cars.
While watching the shuttle cars, Mr. Fetsko noticed that
roadway posts had not been placed in the crosscut between Pillar
Blocks 38 and 39 as he believed was called for in Lion Mining's
roof control plan. He also saw Mr. Jones, the Mine
Superintendent, and Mr. Marines, the Section Foreman, standing in
the crosscut. The inspector then went over to the crosscut and
watched the continuous miner load a shuttle car from a notch it
cut from Pillar Block 37. 1
At this point, Inspector Fetsko issued Citation No. 3711869
pursuant to Section 104(d) (1) of the Act, 30 u.s.c. §
814(d) (1). 2 He cited the operator for a violation of Section
75.220(a) (1) of the Secretary's Regulations, 30 C.F.R. §
75.220(a) (1), because Lion Mining did not comply with Note No. 6
to Drawing A of its tentatively approved roof control plan for
pillar recovery by installing roadway posts in the crosscut
between Pillar Blocks 38 and 39 to limit the roadway width to 18
feet. The violation was abated 30 minutes later when roadway
posts were installed in the crosscut. On December 9, 1993, the
inspector modified the citation to indicate that Note No. 7 of
Lion Mining's roof control plan, rather than Note No. 6, had been
violated (Govt. Ex. 1).

1

While there was disagreement as to how many shuttle cars
were loaded from the notch in Pillar Block 37, the parties were in
agreement as to the approximate size of the notch itself (Tr. 88,
105, Jt. Ex. 1).
2

Section 104(d) (1) provides, in pertinent part:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that
there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the
conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with
such mandatory heal th or safety standards, he shall
include such finding in any citation given to the
operator under this Act.

642

In its brief, Lion Mining "concedes that a violation existed
when i t failed to install several additional posts· across the
crosscut between blocks 38 and 39 prior to mining . • • from
block 37 11 (Cont. Br. 6).
It argues, however, that the violation
was not "significant and substantial" and was not the result of
it's "unwarrantable failure" to comply with the Secretary's
Regulations.
On the other hand, the Secretary is of the opinion
that the violation was both "significant and substantial" and the
result of Lion Mining's "unwarrantable failure."

FURTHER FINDINGS OF FACT
AND

CONCLUSIONS OF LAW
Section 75.220(a) (1) of the Regulations provides:
Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is
suitable, to the prevailing geological conditions, and
the mining system to be used at the mine. Additional
measures shall be taken to protect persons is unusual
hazards are encountered.
Lion Mining's proposed pillar recovery roof control plan for its
Grove No. 1 mine was tentatively approved by the District Manager
on May 6, 1993. Note 7 to Drawing A of the plan provides, in
pertinent part, that "[r]oadway posts installed in roof bolted
entries, rooms, and crosscuts shall be installed to limit the
roadway width to 18 feet" (Govt. Ex. 2).
Fact of Violation
As noted above, Lion Mining concedes that it violated
Section 75.220(a) (1) by not following its approved roof control
plan and installing roadway posts in the crosscut between Pillar
Blocks 38 and 39. Accordingly, I conclude that Lion Mining's
failure to install the roadway posts was a violation of the
Regulation as alleged.
significant and Substantial
On the citation, Inspector Fetsko designated the violation
as being "significant and substantial" (Govt. Ex. 1). A
"significant and substantial'' (S&S) violation is described in
Section 104(d) (1) 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."

643

A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." 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 safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove:
(1) the underlying violation of
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.
As happens in most cases involving an S&S designation, the
point of contention in this case concerns the third element of
the Math i es test.
In United States Steel Mi n i ng Company, Inc., 7
FMSHRC 1125, 1129 (August 1985), the Commission clarified this
element as follows:
We have explained further that the third element of the
Mathies formula 'requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.'
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc . , 6 FMSHRC 1573, 1574-75
(July 1984).
This evaluati on is made in terms of "continued normal mining
operations." U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574 (July 1984). The question of whether a particular violation
is significant and substantial must be based on the particular
facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 1007
(December 1987).

6 44

In its brief, Lion Mining argues that the likelihood of an
injury resulting from the failure to install the roadway posts
was very remote because:
(1) the area had been completely roof
bolted, (2) Pillar Block 37 was almost totally intact, (3) two
rows of breaker posts and six radius turn posts had already been
installed in the immediate vicinity of the continuous miner, (4)
the missing roadway posts were not in the area where coal was
being extracted, and (5) no more coal was, or would have been,
extracted before the posts were installed (Cont. Br. 9-10).
The Contestant notes that Inspector Fetsko was of the
opinion that using the continuous miner to clean-up loose coal
in the roadway between Pillar Blocks 37 and 38 would not have
required installation of the roadway posts (Tr. 87). Thus, it
contends that 11 [t]he likelihood of an injury occurring did not
immediately raise (sic) from none to a reasonable likelihood as
the result of the extraction of one quarter of a shuttle car of
coal from the block" (Cont. Br. 9).
In opposition, the Secretary asserts that the purpose of
installing roadway posts is to guard against roof falls while
natural roof support is removed. He argues that there was a
reasonable likelihood that a roof fall would occur because the
roadway posts were not installed and that this is demonstrated by
the fact that "the rib was rolling" between Pillar Blocks 38 and
39, i . e. pieces of the rib were breaking off, which indicates
pressure from the roof, and that there was a history of roof
falls in the four and one-half section (Resp. Br. 16-18).
The Secretary has not established that a serious injury was
reasonably likely to have resulted from Lion Mining's failure to
install the roadway posts in this case.
In the first place,
according to the Dictionary of Mining, Mineral, and Related Terms
931 (1968), roadway supports, which include roadway posts, serve
two functions, to:
"(1) ensure safety by preventing falls of
ground, and (2) maintain the maximum possible roadway size by
resisting the tendency of the roadway to contract and distort."
It is not at all clear from Lion Mining's roof control plan that
the sole, or even the primary, function of the roadway posts in
this case was to serve as roof support. 3
3

Significantly, Section 75.207 of the Regulations, which
governs pillar recovery and which Lion Mining's roof control plan
closely follows, does not require the installation of roadway posts
until "mining is started on a final stump . " 30 C.F.R. § 75.207(c).
That was not occurring in this case (Tr. 83-85).
The Regulation
does require the installation of "breaker posts" and "roadsideradius (turn) posts" prior to beginning mining in a pillar, 30
C.F.R . § 75.207 (b), but there is apparently no dispute that Lion
Mining had installed those.

6 45

In the second place, and most importantly, even without the
roadway posts, Lion Mining had several other means· of preventing
a roof fall in place at the time the notch was taken out of
Pillar Block 37. As noted in the citation, as well as
Contestant's Brief, the area was completely roof bolted. In
addition, breaker posts and radius (turn) posts had been
installed. Finally, contrary to what the inspector believed at
the time he issued the citation, Pillar Block 37 had not had any
coal extracted from it prior to the extraction in question. 4
Based on this evidence, I conclude that while the failure to
install the roadway posts before coal was mined from the notch on
Pillar Block 37 (Jt. Ex. 1) may have slightly increased the
possibility of a roof fall in the area, it did not increase it to
a level where the failure to install the posts would contribute
to a reasonable likelihood that there would be a roof fall in the
area. Accordingly, the violation was not "significant and
substantial" and the citation will be modified as indicated in
the order at the end of this decision.
Unwarrantable ·F ailure
The inspector also found that the failure to install the
roadway posts resulted from Lion Mining's "unwarrantable failure"
to comply with the Secretary's safety and health standards.
The Commission has held that "unwarrantable failure" is
aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio Coal Co . , 9 FMSHRC 2007, 2010 (December 1987).
In Emery Mining, supra at 2001, the Commission stated that:
"Unwarrantable" is defined as "not justifiable" or
"inexcusable . " "Failure" is defined as "neglect of an
assigned, expected, or appropriate action." Webster's
Third New International Dictionary (unabridged) 2514,
814 (1971) (Webster's). Comparatively, negligence is
the failure to use such care as a reasonably prudent
and careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention . "

4

Inspector Fetsko testified that he assumed that half of
Pillar Block 37 had already been pillared at the time of the
violation because of the location of breaker posts and a line
curtain between Pillar Blocks 37 and 44 which prevented him from
seeing the back half of Pillar Block 37 (Tr. 86, 92-3, 101). In
fact, none of Pillar Block 37 had been mined (Tr. 105).

64 6

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct that
is not justifiable and inexcusable is the result of more
than inadvertence, thoughtlessness or inattention.
The Secretary's case that Lion Mining's failure to install
the roadway posts is not justifiable and inexcusable is based on
the fact that the Mine Superintendent and the Section Foreman
were present when the violation occurred and that citations for
violation of the roof control plan had previously been issued to
the company. These factors are not sufficient to establish an
"unwarrantable failure" in this case.
First, as the Contestant points out, although Lion Mining
had previously been cited for violating various sections of its
roof control plan, it had never been cited for failing to install
roadway posts. Secondly, the evidence in this case is
insufficient to demonstrate that either the Mine Superintendent
or the Section Foreman deliberately and consciously failed to act
or engaged in ,aggravated conduct.
Mr . Jones,· the Superintendent, testified that he did not
know about the provisions of the roof control plan concerning
roadway posts and was not required to know all of the provisions
of the roof control plan (Tr. 124). However, even if it is
assumed that he did have a duty to know and breached that duty,
that breach is not necessarily an ''unwarrantable failure."
Virginia Crews Coal Company, 15 FMSHRC 2103, 2107 (October 1993).
The Section Foreman, Mr. Marines, testified that he observed
the continuous miner operator cleaning up the roadway between
Pillar Blocks 37 and 38, that he left area for a short time to
check on something else and that when he returned the last
shuttle car was being loaded, including coal from the notch.
He stated that he told the shuttle car operator to return with
timber to install the roadway posts, although no one,
specifically including Inspector Fetsko, had reminded him that
the posts should be installed (Tr.133-34). This testimony was
unrebutted.
Based on this evidence, it is clear that further mining of
Pillar Block 37 would not have taken place until after the
roadway posts were installed .
It is equally clear that the
failure to install the roadway posts prior to cutting the notch,
under the facts in this case and particularly in view of the roof
control measures which were in effect, was not conduct which
could be called ''reckless disregard," ''intentional misconduct,"

6 47

"indifference" or a "serious lack or reasonable care." Emery
Mining at 2003-04; Rochester & Pittsburgh Coal Co.~ 13 FMSHRC
189, 193-94 (February 1991). 5
Therefore, I conclude that this violation did not result
from an "unwarrantable failure" to comply with the Regulations on
Lion Mining's part. Reassessing the violation in light of the
evidence, I find that Lion Mining demonstrated moderate
negligence in this case. The citation will be modified
accordingly.
ORDER
Citation No. 3711869 is MODIFIED by deleting the
"significant and substantial" and "unwarrantable failure"
designations, reducing the negligence to "moderate" and changing
it from a Section 104(d) (1) citation to a Section 104(a), 30
u.s.c. § 814(a), citation. The citation as modified is AFFIRMED.

v.~~

T. Todd ~;~~ .
Administrative Law Judge

Distribution:
Joseph A. Yuhas, Esq., Lion Mining Company, 1809 Chestnut Avenue,
Barnesboro, PA 15714 (Certified Mail)
Richard Buchanan, Esq . , Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
/lbk

5 -

Al though the Contestant has conceded that a violation
occurred in this case, I have also considered the fact that Note 7
of the roof control plan does not specifically state that roadway
posts must be installed prior to beginning mining in a pillar block
as a factor against finding the violation to be an "unwarrantable
failure."
Compare Note 7 with Note 6 which states "[r]ooms and
crosscuts shall be fully bolted before pillaring is started" (Govt.
Ex.

2) •

648

PBDBRAL IUD SAPBTY AllD HEALTH RBVI:BW COMKI:SSI:Oll
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 2 9 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 93-119
A.C. No. 40-01977-03619

v.
No. 2-3 Mine
U. S. COAL, INC.,
Respondent
DECISION

Appearances:

Donna E. Sonner, Esq . , Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for petitioner;
Charles A. Wagner, III, Esq., Wagner, Myers &
Sanger, Knoxville, Tennessee, for Respondent.

Before:

Judge Fauver

This is an action for civil penalties under § 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below:
FINDINGS OF FACT
1. On April 16, 1992, Lonnie Phillips, a certified
electrician at Respondent's No. 3-2 Mine in Scott County,
Tennessee, was called to repair an electrical malfunction in a
continuous mining-machine.
2. The electrician opened the electrical panel cover and
began work with a screwdriver without first de-energizing the
power circuits and without locking out and tagging disconnecting
devices for the 480-volt circuit he was working on. His
attempted repair work was not "troubleshooting" within the
meaning of federal safety regulations.

649

3. While trying to repair the energized circuit, the
electrician received a severe electrical shock. Other miners saw
him shaking, and cut the power off. He continued to shake, and
it took five miners to hold him down and transport him to the
surface. He was taken to a hospital by helicopter, suffering
from electrical shock and burns to his hand.
4. Federal Mine Inspector Don A. McDaniel investigated the
accident and issued Citation No. 3383505, alleging a violation of
30 C.F.R. § 75.509, which requires all power circuits and
electrical equipment to be de-energized before work is done on
the circuits and equipment, and Citation No. 3383506, alleging a
violation of 30 C.F.R. § 75.511, which provides that no
electrical work shall be performed on circuits or equipment
without first locking out and tagging disconnecting devices.
5. on each citation, Inspector McDaniel indicated that the
violation was significant and substantial, affected one person,
and was due to a high degree of negligence.
6. The parties stipulated that annual production for all of
Respondent's mines is about 190,000 tons, and that the proposed
civil penalties would not affect the operator's ability to remain
in business. The parties further stipulated that there were no
prior citations for violations of 30 C.F.R. §§ 75.509 and 75.511,
and that all penalties assessed against Respondent during the
previous 24 months, except for those currently in litigation,
have been paid by the operator.
7. Because of his injuries, Lonnie Phillips was absent from
work for 2 to 3 months. After he returned, he showed signs of
memory loss and impaired thinking that were not present before
the electrical shock. Because of his impaired mental condition,
which included an inability to understand, remember and follow
work rules and standards, the company terminated his employment.
DISCUSSION, FURTHER FINDINGS
The statutory standards for assessing civil penalties for
violations are set forth in § llO(i) of the Act, as follows:
The Commission shall have authority to assess all
civil penalties provided in this chapter. In assessing
civil monetary penalties, the Commission shall consider
the operator's history of previous violations, the
appropriateness of such penalty to the size of the
business of the operator charged, whether the operator
was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and
the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after
notification of a violation. In proposing civil

650

penalties under this chapter, the Secretary may rely
upon a summary review of the information available to
him and shall not be required to make findings of fact
concerning the above factors.
If an operator contests the Secretary's proposed civil
penalties, the Secretary brings an action before the Commission.
Hearings before a Commission judge are de novo and the judge
applies the six statutory criteria without consideration of the
Secretary's administrative formulas and regulations for proposing
civil penalties. See Sellersburg Stone Co. v. Fed. Mine Safety &
Health Review Commission, 736 F.2d 1147 (7th Cir. 1984).
Respondent is a relatively small operator. It demonstrated
good faith in attempting to achieve rapid compliance after
notification of the two violations. 1
I find that the electrician violated the safety standards
cited and committed gross negligence in doing so. The inspector
routinely cau~ioned Respondent's mine management and electricians
not to work on energized circuits and reminded them of the safety
standards reg'1iring that circuits be disconnected, locked out and
tagged. He specifically talked to Lonnie Phillips about locking
and tagging out circuits before working on them. I find that Mr.
Phillips knew of the requirements of the relevant safety
standards and was grossly negligent in attempting to repair the
electrical circuit without de-energizing it, locking the
disconnecting device and tagging out ~he circuit.
.
I also find that the violations were "significant and
substantial" (as defined in § 104(d) of the Act) because it was
"reasonably likely" that the violations would result in injury.
Mathies Coal Co., 6 FMSHRC 1 (1984).
Under the Mine Act, an operator is liable without fault for
its employees' violations of the Act and safety standards
promulgated under it. Southern Ohio Coal Company, 4 FMSHRC 1459,
1462 (1992). Respondent is therefore liable for the violations
of its electrician.
The major issue here is whether the electrician's negligence
is imputable to the operator for civil penalty purposes.
1

Inspector McDaniel testified that the practices cited were
corrected by the company holding a safety meeting, at which
Inspector McDaniel again cautioned management and the
electricians as to the rules for de-energizing circuits and
locking and tagging them out before doing electrical work.

651

As a general rule, negligence of rank and file employees is
not imputed to the operator for civil penalty purposes. The
question in such cases is whether the operator was negligent by
its own acts or omissions in supervising, training and
disciplining its rank and file employees to ensure compliance
with safety standards. Southern Ohio Coal Co., 4 FMSHRC 1459,
1463-64 (1982); Old Dominion Power Co., 6 FMSHRC 1886, 1895-6
(1984); Nacco Mining Co., 3 FMSHRC 848, 850 (1981). However,
the negligence of a supervisor, foreman or other agent of the
operator is imputable to the operator for civil penalty purposes.
This rule furthers the Congressional purpose in providing for
penalties, i.g . , to ensure the operator's compliance with the
requirements of the Mine Act. A "designated person to conduct
electrical examinations of electrical equipment" is regarded as
an agent of the operator and his negligence is imputable to the
operator. Rochester and Pittsburgh Coal Co., 13 FMSHRC 189
(1991); Mettika Coal Corp., 13 FMSHRC 760 (1991).
In Nacco, supra, the Commission held that the negligence of
a supervisor is not imputed to the operator if two general
conditions ar·e met: (1) the operator had taken reasonable steps
to avoid the k·ind of accident in question; and ( 2) no other
miners were put at risk by the supervisor's conduct.
Applying these principles, I find that electrician Phillips'
gross negligence is imputable to Respondent .
The inspector testified that although he marked the
citations to show that one person was affected by the violations,
other persons could have been affected. By using a screwdriver
to work on an energized circuit, the electrician ran the risk of
energizing the frames of equipment and causing electrical shock
to other miners. Also, by negligently using a screwdriver to
work on a live 480-volt circuit, the electrician endangered other
miners who might try to rescue him if he became electrically
shocked -- i.g., by their touching energized equipment, a cable,
or the electrician's body while it was conducting electricity.
I therefore find that electrician Phillips created a serious
risk to himself and to other miners by violating the· cited
standards.
considering all of the criteria for civil penalties in
llO(i) of the Act, I find that a civil penalty of $4,000 for
each violation is appropriate.
§

652

CONCLUSIONS OF LAW
1.

The judge has jurisdiction.

2.
Respondent violated 30 C.F.R.
Citation No. 3383505.

§

75.509 as alleged in

3.
Respondent violated 30 C.F.R.
Citation No. 3383506.

§

75.511 as alleged in

ORDER

WHEREFORE IT IS ORDERED that:
1.

Citation Nos. 3383505 and 3383506 are AFFIRMED.

2. Respondent shall pay civil penalties of $8,000 within
30 days of the date of this Decision.

~~v~
William Fauver
Administrative Law Judge
Distribution:
Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Charles A. Wagner, III, Esq., Wagner, Myers & Sanger, 1801 Plaza
Tower, P.O. Box 1308, Knoxville, TN 37901-1308 (Certified Mail)
/lt

653

J'BDBRAL llillB SAFB'l'Y .um BBAL'l'B REVIEW COIDUSSIOll
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 3 1 1994

DANNY SPARKS,

et al.,
Complainants

COMPENSATION PROCEEDING

v.

Docket No. VA 92-133-C
VP-5 Mine

VP-5 MINING, COMPANY,
Respondent

ORDER OF DISMISSAL

Respondent's Motion to Dismiss is GRANTED and this
proceeding is DISMISSED.

~~~.,~

William Fauver
Administrative Law Judge

Distribution:
Danny Sparks, Representative of Miners, VP-5 Mine, Rt. 1,
Box 287, Cedar Bluff, VA 24609 (Certified Mail)
Thomas A. Stock, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, NW., Washington, DC 20004-2595 (Certified Mail)
/lt

~u.s. GOVERNMENT PR INTING OFFICE:

654

1994-301-878-13377