SEPTEMBER 1990
CQ}1}-1ISSION DECISIONS
09-10-90
09-19-90
09-20-90
09-27-90

Beth Energy Mines, Inc.
Sanger Rock and Sand
Golden Oak Mining Company, L.P.
Randy Coal Company

PENN 89-222
WEST 88-275-M
KENT 90-185-R
PENN 90-80

Pg.
Pg.
Pg.
Pg.

1751
1755
1758
1760

WEST 90-110-N
CENT 89-165-DM

Pg. 1763
Pg. 1765

PENN 89-271-D
WEST 87-130-R
VA
90-28
WEVA 90-18
VA
90-14
LAKE 90-102-R
SE
89-41
KENT 90-59-D
WEST 90-108
WEVA 90-40-D

Pg. 1766
Pg. 17~5
Pg. 1782
Pg. 1788
Pg. 1795
Pg. 1798
Pg. 1848
Pg. 1850
Pg. 1900
Pg. 1910

ADMINISTRATIVE LAW JUDGE DECISIONS
09-04-90
09-10-90
09-12-90
09-17-90
09-18-90
09-18-90
09-19-90
09-21-90
09-21-90
09-28-90
09-28-90
09-28-90

Bob Sherman employed by Blackhawk
Sec. Labor on behalf of Robert Black v.
Wayne Pulliam, Texas Sand & Gravel, Co.
Joseph S. Colamartino v. Gateway Coal Co.
Emery Mining Corporation/Utah Power & Light
Westmoreland Coal Company
Windsor Coal Company
Roger Deel employed by Blackfoot Coal Co.
Zeigler Coal Company
Old Energy Incorporated
Ricky Hays v. Leeco, Inc.
Western Fuels-Utah, Incorporated
Cynthia ~ay v. Southern Ohio Coal Company

September 1990
Review was granted in the following cases during the month of~tember:
Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No. WEVA 89-278.
(Judge Koutras, August 3, 1990)
Wyoming Fuel Company v. Secretary of Labor, HSHA, Docket No. WEST 90-238-R.
(Judge Morris, August 6, 1990)
Secretary of Labor, HSHA v. Lang Brothers, Inc., Docket No. WEVA 90-48.
(Judge Broderick, August 16, 1990)
Secretary of Labor, MSHA v. Randy Coal Company, Docket No. PENN 90-80.
(Default Decision of Chief Judge Merlin on July 18, 1990)
There were no cases filed in which review was denied.

COMMISSION DECISIONS

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

September 10, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 89-222

v.

BETHENERGY MINES, INC.

BEFORE:

Backley, Acting Chairman; Doyle and Nelson, Commissioners

ORDER

BY THE COMMISSION:
In this matter pending on review, ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988) ("Mine
Act" or "Act 11 ) , counsel for the Secretary of Labor has filed a motion
requesting vacation of the citation and its associated civil penalty
assessment and dismissal of the proceeding. BethEnergy Mines, Inc.
11
(
BethEnergy 11 ) has filed a response indicating that i t has no objection
to the granting of the Secretary's motion. For the following reasons,
we grant the motion.
0

On March 14, 1989, an inspector of the Department of Labor's Mine
Safety and Health Administration ( 11 MSHA") issued BethEnergy two
citations alleging violations of 30 C.F.R. §§ 75.301 and 75.316 in
connection with a sudden release of methane at the face area of a
longwall section. Section 75.301, in part, requires that a sufficient
volume and velocity of air be ventilated in active working to dilute and
render harmless dangerous or harmful gases, such as methane. l/ Section
1/

Section 75.301, which repeats the statutory standard at 30 U.S.C.

§ 863(b), provides in pertinent part:
All active workings shall be ventilated by a
current of air containing not less than 19.5 volume
per centum of oxygen, not more than 0.5 volume per
centum of carbon dioxide, and no harmful quantities
of other noxious or poisonous gases; and the volume
and velocity of the current of air shall be
sufficient to dilute, render harmless, and to carry

'

1751

75.316 requires mine operators to adopt ventilation system and methane
and dust control plans approved by the Secretary. The citations alleged
that the current of ventilating air at the face was insufficient to
dilute the methane, in violation of section 75.301, and that BethEnergy
was not complying with certain requirements of its ventilation plan.
BethEnergy contested the citations, the Secretary proposed civil
penalties for the alleged violations, and the matter proceeded to
hearing before Commission Administrative Law Judge Avram Weisberger.
In his decision, the judge vacated the citation alleging a
violation of section 75.316 (12 FMSHRC 975, 981-85 (May 1990)(ALJ)), and
no issue pertaining to that aspect of the judge's decision is before us
on review. With respect to the alleged violation of section 75.301 (n.l
supra), the judge noted BethEnergy's position that, at the time of the
citations, it was meeting or exceeding the minimum air flow required at
the last open crosscut by the second sentence of section 75.301, which
requires an airflow of 9,000 cubic feet a minute ("C.F.M. 11 ) . BethE_nergy
argued that it could not be cited under the first sentence of section
75.301 for failure to provide adequate ventilation to dilute the sudden
release of methane if it were exceeding the airflow set forth in the
second sentence. 12 FMSHRC at 979. The judge rejected this position,
concluding that an airflow meeting or exceeding the 9,000 C.F.M.
requirement does not comply with the first sentence of section 75.301 if
it is nevertheless insufficient to dilute and render harmless dangerous
or harmful gases. Id. We granted BethEnergy's subsequent petition for
discretionary review.
After the submission of BethEnergy's brief on review, the
Secretary filed with the Commission her present Motion to Vacate
Citation and to Dismiss Proceeding ("Motion"). In this motion, the
Secretary notes that she argued to the judge, and the judge held, that
"Section 75.301 requires that harmful concentrations of methane not
occur in the first instance [and] the second sentence of that section
sets forth the minimum means which in all events must be followed· in
seeking to achieve this result .... 11 Motion at 3 (emphasis fo original).
However, the Secretary states that, "upon further review," MSHA has
determined that its position before the judge "is not its preferred
interpretation in the ~ircumstances present in this case, and is not
consistent with its historic and ongoing enforcement position pertaining
away, flammable, explosive, noxious, and harmful
gases, and dust, and smoke and explosive fumes. The
minimum quantity of air reaching the last open
crosscut in any pair or set of developing entries
and the last open crosscut in any pair or set of
rooms shall be 9,000 cubic feet a minute, and the
minimum quantity of air reaching the intake end of a
pillar line shall be 9,000 cubic feet a minute. The
minimum quantity of air in any coal mine reaching
each working face shall be 3,000 cubic feet a
minute. The authorized representative of the
Secretary may require in any coal mine a greater
quantity and velocity of air when he finds it
necessary to protect the health or safety of miners.

1752

to the liberation of unexpected quantities of methane in a working
place." Motion at 4. The Secretary further notes her "recognition that
the liberation of methane is a natural phenomenon which occurs when coal
is cut from its natural deposit, and that such occurrences are not
readily predictable." Id. Based on the foregoing considerations, the
Secretary restates her legal position in this matter as follows:
It is, therefore, the Secretary's position that
compliance with the ventilation quantity
requirements of section 75.301, as implemented
through an operator's approved ventilation plan,
together with the remedial requirements of sections
75.308 and 75.313, [~/] constitute the appropriate
enforcement mechanisms with respect to unexpected
methane liberation in working places (i.e., areas
inby the last open crosscut; see 30 C.F.R.
75.2(g)(2)). Thus, a violation of the first
sentence of section 75.301, as cited ... below, does
not occur when methane unexpectedly is encountered
in excessive concentrations in working places.
Applying this interpretation to the facts in this
case, a violation of 30 C.F.R. 75.301 did not occur.
Id. (emphasis in original).
In light of this position, the Secretary now moves for vacation of
the citation and dismissal of the proceeding. After receipt of the
Secretary's motion, the Commission issued an order on August 8, 1990,
directing BethEnergy to file a written response to the motion. On
August 17, 1990, the Commission received BethEnergy's Response to Motion
to Vacate ("Response"), indicating that it does not object to vacation
of the citation and dismissal of the proceeding. BethEnergy notes in
its response, however, that its position "does not, under any
circumstances, constitute an admission by BethEnergy of the validity of
the Secretary's assertions set forth in its Motion to Vacate." Response
at 2.
As we have held, our "responsibility under the Mine Act is to
ensure that a contested case is terminated, or continued, in accordance
with the Act." Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203
(February 1985). A motion by the Secretary to vacate a citation or
withdrawal order and to dismiss a proceeding will be granted if
"adequate reasons" to do so are present. Southern Ohio Coal Co.,
10 FMSHRC 1669, 1670 (December 1988) ("SOCCO"), and authorities cited.
Here, the Secretary has disclaimed reliance on the legal position that
she advocated successfully before the judge. Instead, the Secretary
states that, applying her "preferred interpretation in the circumstances
present in this case," it now appears to her that the alleged violation
~/

30 C.F.R. § 75.308 specifies the remedial actions to be taken when
excess concentrations of methane occur in working places, ·and
30 C.F.R. § 75.313 provides for the installation of approved methane
monitors on specified kinds of mining equipment.

1753

of section 75.301 did not occur. As the prosecutor responsible for
enforcement of the Act, the Secretary has concluded that she should seek
dismissal of this proceeding, and that prosecutoty determination is
entitled to special weight. SOCCO, 10 FMSHRC at 1670. The operator has
not objected to the granting of the Secretary's motion and will not be
prejudiced by the requested action. No reason otherwise appears on this
record as to why the motion should not be granted.
The Commission expresses no view as to the merits of the judge's
determination that BethEnergy violated section 75.301 or the Secretary's
present interpretation of that standard as applied to the circumstances
involved in this case.
Accordingly, upon consideration of the Secretary's motion and the
operator's response, the Secretary's motion is granted. The citation
and assessed civil penalty are vacated. The Commission's direction for
review is vacated and this proceeding is dismissed. }/

lf

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

1754

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

September 19, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 88-275-M
WEST 89-71-M

v.
SANGER ROCK AND SAND

ORDER

BY:

Backley, Acting Chairman; Doyle and Nelson, Commissioners

In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine
Act"), Commission Administrative Law Judge John Morris, in a May 17,
1990 decision, vacated two citations issued to Sanger Rock and Sand
("Sanger") and dismissed the proceeding on the ground that the Secretary
of Labor and the Department of Labor's Mine Safety and Health
Administration ( "MSHA") had failed to comply with section 552(a)( 1 )(A)
of the Administrative Procedure Act, 5 U.S.C. § 552(a)(l)(A) ("APA").
On June 11, 1990, the Secretary filed a combined petition for review and
motion for summary reversal of Judge Morris' decision. By order issued
June 25, 1990, the Commission directed review of the Secretary's
petition but stayed briefing pending consideration of the Secretary's
motion for summary reversal. Sanger has filed oppositions to both the
Secretary's petition for review and motion for summary reversal.
On August 14, 1987, and April 13, 1988, MSHA Inspector Jaime
Alvarez issued citations to Sanger for violations of 30 C.F.R.
§ 56.12028 and 30 C.F.R. 56.14007, respectively.
Sanger contested both
citations. At hearing and in its post-hearing brief, Sanger challenged
the validity of the citations on the ground that the Secretary and MSHA
had failed to comply with section 552(a)(l)(A) of the APA. That
provision provides that each federal agency shall publish in the Federal
Register "descriptions of its central and field organization and the
established places at which, the employees ... from whom, and the
methods whereby, the public may obtain information, make submitt~ls or
requests, or obtain decisions." Section 552(a) further provides that
"[e]xcept to the extent that a person had actual and timely notice of
the terms thereof, a person may not in any manner be required to resort
to, or be adversely affected by, a matter required to be published in
the Federal Register and not so published." 5 U.S.C. § 552(a).

1755

Finding no evidence that the Secretary or MSHA had published the
required information, the judge concluded that Sanger had no notice of
the inspector's duties and delegated authority or MSHA's central and
field organizations. Citing Rowell v. Andrus, 631 F.2d 699 (10th Cir.
1980), United States v. Two Hundred Thousand Dollars ($200,000) in
United States Currency, 590 F. Supp. 866 (D. Fl. 1984), and Pinkus v.
Reilly, 157 F. Supp. 548 (D.N.J. 1957), the judge determined that the
Secretary's failure to comply with the APA warranted vacation of the
citations as invalidly issued.
On review the -Secretary has submitted an entry from the United
States Government Manual 1989/1990 ("Manual") that refers to MSHA at pp.
406, 409 and 424-25. The Secretary argues that the entry in the Manual
constitutes compliance with section 552(a)(l)(A) of the APA since the
Manual is designated as a special edition of the Federal Register. See
1 C.F.R. 9.1. In response, Sanger argues that the Manual entry does not
sufficiently provide the information required by section 552(a)(l)LA) of
the APA.
The manual entry submitted on review was not presented below to
Judge Morris, but the Secretary argues that the Commission can take
judicial notice of the contents of the Federal Register, citing
44 U.S.C. 1507. However, section 113(d)(2)(A)(iii) of the Mine Act,
30 U.S.C. § 823(d)(2)(A)(iii), provides, inter alia, "Except for good
cause shown, no assignment of error by any party shall rely on any
question of fact or law upon which the administrative law judge had not
been afforded an opportunity to pass."
The legal issues presented on review are jurisdictional in nature
and we are mindful of the Secretary's arguments relating to judicial
notice of Federal Register contents. Nevertheless, since the Manual
entry was not submitted to the judge and since the judge is more
appropriately positioned to deal with any factual issues surrounding the
sufficiency of the Manual entry vis-a-vis section 552(a)(l)(A) of the
APA, we conclude that it is preferable to remand the matter to the
judge. The judge shall determine whether the Manual publication
satisfies applicable APA requirements. In his reconsideration of this
matter, we also direct the judge to determine what effect, if any,
section 507 of the Mine Act, 30 U.S.C. § 956, has on the issues
presented. l/

ll

Section 507 of the Mine Act provides:
Except as otherwise provided in this Act, the
provisions of sections 551-559 and section 701-706
of title 5 of the United States Code shall not apply
to the making of any order, notice, or decision made
pursuant to this Act, or to any proceeding for the
review thereof.

30 u.s.c. § 956.

1756

Accordingly, we remand the matter to the judge for further
consideration of the issues set forth above. ~/ .

..:~4-tV),,
Richard V. Backley, Acting Ch".iirman

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
James F. Baun, President
Sanger Rock & Sand
17125 E. Kings Canyon Road
Sanger, California 93657
Susanne Lewald, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson Street, Suite 1110
San Francisco, California 94119
Administrative Law Judge John Horris
Federal Hine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Boulevard
Denver, Colorado 80204

~/

Pursuant to section 113(c) of the Mine Act, we have designated
ourselves a panel of three Commissioners to exercise the powers of the
Commission in this matter.

1757

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

September 20, 1990
GOLDEN OAK MINING COMPANY, L.P.
v.

Docket No. KENT 90-185-R

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

BEFORE:

Backley, Acting Chairman; Doyle and Nelson, Commissioners

ORDER

BY THE COMMISSION:
In this contest proceeding pending on review, arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.
(1988) ("Mine Act"), counsel for petitioner Golden Oak Mining Company,
L.P. ("Golden Oak") has filed a Motion for Leave to Withdraw Petition
for Discretionary Review. Counsel for the Secretary of Labor has filed
a Response indicating that the Secretary "supports" Golden Oak's motion.
In the proceeding below, Commission Administrative Law Judge James A.
Broderick concluded that Golden Oak had violated 30 C.F.R. § 75.1712-1
by not providing a surface bathing facility at its underground coal
mine, and that the Department of Labor's Mine Safety and Health
Administration ("MSHA") had not abused its discretion in denying Golden
Oak's request for a-waiver of the standard's requirements. 12 FMSHRC
1360 (June 1990)(ALJ). In its present motion, Golden Oak states that
MSHA has now granted it a waiver of the bathing facility requirements
and that its contest is "moot." Upon consideration of Golden Oak's
motion and the Secretary's response, we conclude that adequate reasons
have been presented for dismissal of this proceeding and we grant the
motion. See generally,~, Youghiogheny & Ohio Coal Co., 7 FMSHRC
200, 203 (February 1985).

1758

Accordingly, the Conunission's direction for review is vacated and
this proceeding is dismissed. ~/

L. Clair Nelson, Conunissioner

Distribution
Teresa Taylor, Esq.
Cook Law Off ice
118 Hays Street
P.O. Drawer 909
Whitesburg, Kentucky

41858

Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Depart~ent of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge James A. Broderick
Federal Hine Safety :.. Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

*I

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

1759

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

September 27, 1990

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

v.

Docket No. PENN 90-80

RANDY COAL COMPANY

BEFORE:

Backley, Acting Chairman; Doyle and Nelson, Commissieners

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)("Mine Act"). On
July 18, 1990, Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Default finding respondent Randy Coal Company ("Randy
Coal") in default for its failure to answer the Secretary of Labor's
civil penalty proposal and the judge's order to show cause. The judge
assessed Randy Coal a civil penalty of $98, as proposed by the
Secretary. In an undated letter (postmarked September 20, 1990),
addressed to Judge Merlin, which was received on September 24, 1990,
Randy Coal states that it believed it had been "released" from the
violation in question. For the reasons explained below, we deem Randy
Coal's submission to be one seeking relief from a final Commission
decision, reopen the proceeding, vacate the judge's default order, and
remand for further proceedings.
On March 26, 1990, the Secretary filed with the Commission a
petition for assessment of civil penalty in this matter, based on a
citation issued by the Department of Labor's Mine Safety and Health
Administration to Randy Coal at its Mine Hill Strip. When no answer to
the penalty proposal was filed with the Commission, Judge Merlin, on May
15, 1990, issued a show cause order directing Randy Coal to file an
answer within 30 days or show good reason for the failure to do so. The
judge entered an Order of Default on July 18, 1990, after Randy Coal
failed to file an answer. On September 24, 1990, the Commission
received a letter from Randy Coal's owner, addressed to Judge Merlin,
stating the owner's belief that Randy Coal had been "released" from the
violation.

1760

The judge's jurisdiction over the case terminated when his default
order was issued on July 18, 1990. 29 C.F.R. § 2700.6S(c). Under the
Mine Act and the Commission's procedural rules, once a decision has
issued, relief from the decision may be sought by filing with the
Commission a petition' for discretionary review within 30 days of the
decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Because the
judge's decision has become final by operation of law, 30 U.S.C.
§ 823(d)(l), we can consider the merits of Randy Coal's submission only
if we construe it as a request for relief from a final Commission
decision incorporating a petition for discretionary review. See
29 C.F.R. § 2700.l(b) (applicability of Federal Rules of Civil Procedure
to Commission proceedings); Fed. R. Civ. P. 60(b)(relief from judgment
or order). Under the circumstances presented, we consider Randy Coal's
request in that light. See J.R. Thompson, Inc., 12 FMSHRC 1194, 1195
(June 1990).
In compliance with the standards set forth in Fed. R. Civ. P.
60(b)(l), the Commission has previously afforded a party relief from
final orders of the Commission where it appears the party's failure to
respond to a judge's order and the party's subsequent default are due to
inadvertance or mistake. See Kelley Trucking Co., 8 FMSHRC 1867, 1868
(December 1986); M.M. Sundt Construction Co., 8 FMSHRC 1269, 1270-71
(September 1986). The owner's letter to the judge contains allegations
that may reflect confusion and misunderstanding as to the nature and
appropriate procedures of this civil penalty proceeding and,
additionally, may reflect problems in the legal representation provided
Randy Coal by its attorney. We conclude that, in fairness, Randy Coal
should be afforded the opportunity to submit its explanations to the
judge, who shall determine whether final relief from default is, in
fact, warranted.

1761

For the foregoing reasons, we reopen the proceeding, vacate the
judge's default order, and remand this matter for further proceedings.
Randy Coal's attention is directed to the requirements that all fu~ther
pleadings that it wishes to submit in this proceeding must be filed with
the Commission and copies of all such documents served on the Secretary
of Labor. 29 C.F.R. §§ 2700.S(b) & .7. lf

Richard V. Backley,

yLt:_LL-- d. ~z(z.._

Joyce i. Doyle, Commissioner/

~

L. Clair Nelson, Commissioner

lf

Pursuant to section 113(c) of the Mine Act, we have designated
ourselves a panel cf three Commissioners to exercise the powers of the
Commission in this matter.

1762

ADMINISTHATIVE LAW JUDGE DECISIONS

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

SEP 4 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
BOB SHERMAN, Employed by
BLACKHAWK,
Respondent

CIVIL PENALTY PROCEEDING

..

.

Docket No. WEST 90-110-M
A.C. No. 04-04663-05509
Evening Star Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Morris

This is a civil penalty proceeding initiated by the
petitioner against respondent, in accordance with the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~ The
civil penalty sought here is for the violation of a mandatory
standard promulgated pursuant to the Act.
Prior to a hearing, the parties filed a motion seeking
approval of a proposed settlement.
Citation 3462951 alleges a violation of 30 C.F.R. § 57,6250.
An original assessment of $250 was proposed. The parties now
seek a decision affirming the citation and assessing a penalty of
$25.
In support of their motion to approve the settlement, the
parties have submitted information relating to the statutory
criteria required for assessing civil penalties as contained in
30 u.s.c. § 820(i).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest.
It should be approved.
Accordingly, I enter the following:
ORDER
1. Citation 3462951 and the amended civil penalty of $25
are AFFIRMED.

1763

2. Respondent is ordered to pay the sum of $25 within 30
days of the date of this decision.

Law Judge

Distribution:
George B. O'Haver, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105 (Certified Mail)
Mr. Bob Sherman, Blackhawk, 4750 Kelso Creek, Weldon, CA 0 3283
(Certified Mail)

/ek

1764

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

SEP 1U19'.-50
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
ROBERT BLACK,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 89-165-DM
MD 88-99
Mansfield Pit & Plant

v.
WAYNE PULLIAM, TEXAS SAND
& GRAVEL, CO., INC.,
Respondent
ORDER DISMISSING PROCEEDING
Before:

Judge Lasher

The settlement of the parties, providing for back wage
payments in installments, has been consummated by Respondent's
payment of the last installment.
Such was confirmed by telephone
by Complainant's counsel on August 21, 1990. The settlement was
approved by my Decision Approving Settlement on April 5, 1990.
Accordingly, the matter having been resolved, this proceeding
is DISMISSED.

. .

-·

~£·

. /..

·t-.c./~<C/r ~'~f.4'!"

g ·
,#

chael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Lisa Gray, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
Tad Fowler, Esq., Miller & Herring, P.O. Box 2330, Amarillo, TX
79105 (Certified Mail)
Robert Black, 302

s. Brandt, Spearman, TX 79081 (Certified Mail)

/ot

1765

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

22041

SEP 121990
JOSEPH S. COLAMARTINO,
Complainant

.

v.

DISCRIMINATION PROCEEDING
Docket No. PENN 89-271-D

GATEWAY COAL COMPANY,
Respondent

..
DECISION

Appearances:

Before:

Paul H. Girdany, Esq., Pittsburgh, Pennsylvania,
for the Complainant; R. Henry Moore, Esq.,
Pittsburgh, Pennsylvania, for the Respondent.

Judge Maurer
STATEMENT OF THE CASE

Complainant filed a complaint with the Commission under
section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(c) [hereinafter referred to as the Act], on
September 1, 1989, alleging that he was assaulted by one of the
Respondent's foremen, Pete Krosunger, because he wanted to rib
pin an area that the foreman did not want pinned. The foreman,
Krosunger, on the other hand, admits hitting Complainant, but
contends that the incident occurred because of his pent-up
frustration with supervising Colamartino. The Respondent
(Gateway) maintains that the only adverse action taken against
Complainant was taken by Mr. Krosunger and that they for their
part, not only did not sanction his actions, but in fact,
suspended him for 60 days without pay as a result.
Pursuant to notice, this case was heard in Pittsburgh,
Pennsylvania, on March 19 and 20, 1990. Both parties have filed
post-hearing proposed findings of fact and conclusions of law
which I have considered along with the entire record in making
this decision.
STIPULATIONS

The parties stipulated to the following at the hearing,
which I accepted (Tr. 5-6):
1. The administrative law judge has jurisdiction in this
proceeding.

1766

2. The Gateway Coal Company operates coal mine facilities,
and therefore, is an operator as defined under section 3(d) of
the Act.
3. Complainant Joseph Colamartino has had a job
classification of roof bolter, which at the time, under the
collective bargaining agreement in effect between the parties,
paid $16.92 per hour or $122.73 per day.
4. On May 17, 1989, he was assigned certain roof bolting
duties with another employee named Sylvester Richards.
5.

His supervisor that day was Gerald A. (Pete) Krosunger.

6. An altercation occurred on that day from which
Mr. Colamartino suffered injuries.
7. Mr. Colamartino was absent from work from May 17 to
August 14, 1989.
8. Complainant, Mr. Colamartino, received workers'
compensation payments during this period of time in the amount of
$399 per week.
9. Aside from the actual physical assault, there was no
formal disciplinary action taken against Mr. Colamartino; i.e.,
adverse action.
10. From on or about June 16, 1989 until July 17, 1989, the
bargaining unit employees at the Gateway Coal Company, did not
report for work.
11. Pete Krosunger was suspended without pay from May 18,
1989 until July 15, 1989.
FINDINGS OF FACT
1. Complainant first started to work for Gateway Coal
Company (Gateway) in January of 1977. He worked until he got
laid off in 1985 and was then recalled in 1988. He worked as a
roof bolter for Pete Krosunger from May of 1988 until the
incident involved herein, which occurred on May 17, 1989.
2. During this year-long period, Krosunger had some
problems supervising Colamartino, including several incidents of
insubordination, which are documented in two notebooks received
into evidence as Respondent's Exhibit Nos. 7 and 8, and
summarized in Respondent's Exhibit No. 6. More specifically,
there are several instances documented by Krosunger where
Colamartino complained about or refused to perform rib-pinning.

1767

3. For example, on the very day of the incident, May 17,
1989, at the beginning of the shift, when told by Krosunger that
he would have to rib-pin the No. 1 heading, Colamartino replied
to the effect:
"Why do we have to do it, nobody else on the
other shifts is doing it?" He further testified at the hearing,
by way of explanation, that he wanted to know why, if rib-pinning
that entry was so important, the other two shifts were not
helping with the task. He did not appreciate it that they had
not done their share.
4. At the beginning of their shift on May 17, 1989,
Krosunger had assigned Colamartino and his bolting partner,
Richards, to rib-pin an area in the No. 1 entry. Two hours
later, when Krosunger checked on their progress, he found that
they had only installed about twenty rib pins despite the fact
that it only takes 3 to 4 minutes to install each pin. Krosunger
was upset about this and Colamartino knew it.
5. At this point in time, Colamartino informed Krosunger
that they would not pin those areas of the rib where loose coal
and sloughage had either fallen down or been taken down by their
scaling the rib. Complainant opined that they could not safely
install rib pins in that area because they could not secure safe
footing. Mr. Virgili, a safety committeeman who inspected the
area shortly after the incident giving rise to this case
occurred, agrees that it would have been unsafe to install rib
pins in that area. Krosunger believed that Colamartino had
purposely scaled the rib in order to have some reason not to ribpin it.
6. After some repartee between the two as to whether or not
Colamartino did or did not want to rib-pin, Krosunger ordered
Complainant and Richards to go to the No. 2 entry and bolt the
roof where the continuous miner pulled out.
7. Krosunger specifically told Complainant and Richards not
to rib pin in this one area of the No. 2 heading where the miner
was going to begin
crosscut, perhaps on that same shift.

a

8. When Krosunger returned to the face of the No. 2 heading
sometime later, he found Colamartino preparing to rib-pin. He
testified at Tr. 279-281 and which testimony I find credible and
do credit it here:
I went up on Lester's side, I said, "What
are you doing, Lester?"

*

*

*

*

Q.

Lester is Mr. Richards?

A.

Sylvester Richards, right.

1768

"I told you, don't rib pin this."
went like this (indicating).
Q. He gestured with his hand?
A.

Right.

*

*

*

*

Q.

Who was he motioning toward?

A.

Joe, his buddy.

*
Q.

*

*

He

(Colamartino]

*

What did you do then?

A.
I went over and asked Joe, "Why are you
rib pinning? I told you don't rib pin this.
We are going to cut them out anyway."

Q.

What did he say?

A. His response was, "The company wants
these places rib pinned, they are going to
get them rib pinned."

Q.

What happened at that point?

A. He started to stretch out boards.
I said, "Joe, don't rib pin this. We are
going to cut them out anyway." This is what
I said to him again, following him around the
machine, because he is putting those boards
down in the area they would be installed. I
was picking them up and putting them back on.

Q. Do you recall how many times you went
around the bolter like this?
A.

I would say twice.

Q. And he was putting them down and you were
picking them up?
A.

Right.

Q.

What happened after you did that?

A. I asked him, "What are you doing, Joe? I
told you don't rib pin."
. [A]nd he
grabbed that drill and started walking to the
face.

At that· point Krosunger grabbed the drill to pull it away
from him. Colamartino resisted and Krosunger began hitting him
until Richards yelled for him to stop.
9.
The purpose of rib-pinning in this mine is to prevent
the ribs from spalling and depositing accumulations of
combustible materials along the ribs, however, generally the
areas which are to be cut out to create crosscuts are not pinned.
Installation of rib pins before the crosscut is made would
require the continuous mining machine to cut out those pins which
could present a hazard to the miner operator, and/or damage the
equipment.
10. There is no requirement for the entire mine to be ribpinned, and it is not unusual to have areas of unpinned rib in
this mine in addition to those areas where a crosscut is planned.
11. After the incident occurred, Mr. Rodavich, the mine
superintendent, went underground to inspect the area,
specifically the condition of the ribs in the No. 2 entry. They
looked adequate to him. They looked like the rest of the section
looked. He did not see any hazards present that would have
mandated rib-pinning.
12. Neither Complainant nor Krosunger knew for sure when
the turnout would be made from the No. 2 entry and thus
Complainant's position is that his safety concern was for other
miners who would have to travel through the No. 2 entry for some
undetermined period of time and would therefore be subject to
injury from possible rib f~lls if no rib pins were installed in
this area for their protection. I find as a fact that this
alleged safety concern for others was not in fact the
Complainant's motivation for his behavior prior to the incident
at bar on May 17, 1989.
13. The Complainant never raised a safety issue with
Krosunger on behalf of himself or others nor sought to exercise
his individual safety rights under the union contract with regard
to rib-pinning this turnout area. He likewise did not seek to
inform the safety committeeman, Mr. Virgili, who was on the
section, of his concern over this area's ribs.
DISCUSSION, FURTHER FINDINGS, AND CONCLUSIONS

The general principles governing analysis of discrimination
cases under the Mine Act are settled. In order to establish a
prima facie case of discrimination under section 105(c) of the
Act, a complaining miner bears the burden of production and proof
in establishing that (1) he engaged in protected activity and (2)
the adverse action complained of was motivated in any part by
that protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 {October 1980),

1770

rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April
1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was not motivated in any part by protected activity.
If
an operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone. Fasula, supra; Robinette, supra. See also,
~, Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 954,
958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specificall~ approving the Commission's FasulaRobinette test). Cf. NLRB v. Transportation Management Corp.,
462 U.S. 393, 397-413 (1983) (approving nearly identical test
under National Labor Relations Act).
Treating this as a work refusal case, it is also well
settled that a miner has the right under section 105(c) of the
Act to refuse to work if he has a good faith, reasonable belief
that the work involves a hazardous condition. Fasula, supra, 2
FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12; Miller
v. FMSHRC, 687 F.2d 194 (7th Cir. 1982). Additionally, where
reasonably possible, a miner refusing work ordinarily must
communicate or attempt to communicate to some representative of
the operator his belief th~t a hazardous condition exists.
Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 4
FMSHRC 126, 133-135 (February 1982); Dillard Smith v. Reco, Inc.
9 FMSHRC 992 (June 1987); Miller v. Consolidation Coal Company,
687 F.2d 194, 195-97 (7th Cir. 1982) (approving Dunmire & Estle
communication requirement).
Although by insisting on pinning the ribs in the No. 2 entry
Colamartino was seeking to perform work, rather than refusing to
perform work, a framework for analyzing this incident based upon
a refusal to perform hazardous work is useful here.
In essence,
Colamartino was refusing to comply with a work order, in that he
was directed several times by Krosunger not to rib pin the No. 2
entry.
Complainant's actions herein could be held to be protected
activity even though he did not feel personally endangered. It
would be sufficient if he were acting to confront a threat to the
health or safety of other miners. Secretary on behalf of Cameron
v. Consolidation Coal Co., 7 FMSHRC 319 (1985), aff'd. sub nom.
Consolidation Coal Co. v. FMSHRC, 795 F.2d 364 (4th Cir. 1986).
If the Complainant in this case engaged in protected
activity at all, it was on ·behalf of other miners, not himself.
Complainant did not feel personally endangered. Rather, he

1771

allegedly was-concerned that if he did not rib-pin the area of
the proposed turnout in the No. 2 entry, that it would remain
unpinned for an unspecified period until it was cut-out. In the
interim, others would be exposed to the dangers associated with
rib falls or rolls.
The Complainant herein bears the burden of proof that such a
hazard existed or at the very least that he had a good faith,
reasonable belief in its existence. I do not believe he has
carried that burden •. I do not believe Colamartino had any
safety-related concern whatsoever in the No. 2 entry. He only
wanted to rib-pin the one exact area that his foreman
specifically instructed him not to pin. There were many other
areas that were unpinned, but he did not care to pin them, in
fact, resisted rib-pinning in general. He only wanted to pin the
one area where Krosunger told him repeatedly there was g9-ing to
be a turn-out made. I find that his action in insisting on
attempting to rib-pin the area in question in the No. 2 entry did
not rise to the level of protected activity.
It is fairly obvious to me, or at least it is my decided
impression from the totality of the record in this case, that
Colamartino's purpose was to aggravate his supervisor, Krosunger.
Historically, he complained about having to rib-pin. Earlier on
that same shift, he refused to rib-pin an area he had been
directed to, after he scaled down material in front of the rib.
If insecure footing truly was the problem keeping him from the
assigned rib-pinning, he could have shoveled the sloughage up and
continued to pin the ribs that Krosunger wanted him to pin in the
No. 1 entry.
It also appears to me from the record herein, that the ribs
in the area he wanted to pin were no different than the ribs in
the rest of the section. There was no particular hazard there.
Additionally, there appears to be a legitimate reason why
Krosunger did not want them pinned, i.e., they would only have to
be cut out when the turnout was made. Furthermore, turnouts were
not routinely rib-pinned and it was the usual practice for
foremen to instruct the men not to pin those areas. Colamartino
was apparently aware of this because on prior occasions he had
asked about the locations of turnouts to avoid rib-pinning.
From Krosunger's point of view, it is apparent to me that he
acted out of sheer personal animus towards Colamartino. There is
no basis in this record to find that he struck the Complainant
because he was reacting to any safety concerns that Colamartino
may have had. First of all, Colamartino did not express any
safety-related concerns to him; and in any event it is clear to
me that Krosunger's actions were motivated by unprotected
activity alone. Not only unprotected activity (shirking,
insubordination, "mistakes", slowness to perform, etc.) that
occurred on that same shift, but this same type of thing had been

1772

troubling.Krosunger for some time already.before May 17, 1989. I
believe he was severely provoked by all.of this and unfortunately
the assault on Mr. Colamartino of May 17, 1989, resulted.
Krosunger was thereupon suspended for sixty days without pay
by the operator-respondent. Since Krosunger's personal assault
on Colamartino is the only "adverse action" complained of in this
case, even if I find that Complainant had engaged in protected
activity, he would also necessarily have to impute the actions of
Krosunger to Gateway. He would have to demonstrate that
Krosunger was acting within the scope of his employment as the
agent of Gateway. This proposition fails of proof as well. Not
only did Gateway not condone or authorize Mr. Krosunger's
actions, they took severe disciplinary measures against him for
assaulting Colamartino. In my opinion, when Krosunger hit
Colamartino, he acted on his own behalf, not on behaLf of
Gateway.
CONCLUSIONS OF LAW
1. Mr. Colamartino did not engage in protected activity in
the No. 2 entry on May 17, 1989.
2. Mr. Colamartino's refusal to comply with Mr. Krosunger's
directives not to rib-pin in the No. 2 entry was neither made in
good faith nor reasonable.
3.
In any event, Mr. Colamartino did not communicate to any
representative of the operator, including Mr. Krosunger, his
belief that a hazardous condition existed or would come into
existence to endanger himself or others in the No. 2 entry.
4. The adverse action complained of in this case was taken
against the Complainant by Mr. Krosunger personally, not
Respondent herein. Mr. Colamartino received no discipline from
Gateway.
5. Gateway-did not violate sectiori 105(c) of the Federal
Mine Safety and Health Act of 1977.
ORDER

In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all ·of the credible testimony and
evidence adduced in this case, I conclude and find that the
Complainant has failed to establish a violation of section 105(c)

1773

of the Act. Accordingly, his complaint IS DISMISSED, and his
claims for relief ARE DENIED.

rer
tive Law Judge
Distribution:
Paul H. Girdany, Esq., Healey Whitehill, Fifth Floor, Law &
Finance Building, Pittsburgh, PA 15219 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant Street,

58th Floor, Pittsburgh, PA 15219 (Certified Mail)
slk

1774

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

SEP 1 71990
EMERY MINING CORPORATION
AND/OR UTAH POWER & LIGHT
COMPANY,
Contestants

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

v.

:

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

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

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

and

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

UNITED MINE WORKERS OF
AMERICA, ( UMWA),
Intervenor

:

Docket No. WEST 87-144-R
Order No. 2844795; 3/24/87
Docket No. WEST 87-145-R
Order No. 2844796; 3/24/87
Docket No. WEST 87-146-R
Order No. 2844798; 3/24/87

:

..

Docket No. WEST 87-147-R
Order No. 2844800; 3/24/87
Docket No. WEST 87-150-R
Order No. 2844805; 3/24/87
Docket No. WEST 87-152-R
Order No. 2844807; 3/24/87
Docket No. WEST 87-153-R
Order No. 2844808; 3/24/87
Docket No. WEST 87-156-R
Order No. 2844813; 3/24/87

No. WEST 87-157-R
. Docket
Order No. 2844815: 3/24/87
Docket No. WEST 87-160-R
Order No. 2844822; 3/24/87
Docket No. WEST 87-161-R
Order No. 2844823; 3/24/87

.
Docket No. WEST 87-248-R

Order No. 2844835: 8/13/87
:

:
1775

Wilberg Mine
Mine I.D. No. 42-00080

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

CIVIL PENALTY PROCEEDINGS

v.

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

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

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

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

and

Consolidated

UNITED MINE WORKERS OF
AMERICA ( UMWA) ,
Intervenor
DECISION APPROVING SETTLEMENT
Before:

Judge Morris

These are contest and civil penalty proceedings arising
under the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq.
These cases arose from the Wilberg Mine Fire disaster, an
underground coal mine fire that occurred in Orangeville, Emery
County, Utah.
As a result of the fire, on March 24, 1987, the Secretary
issued to Emery Mining Corporation ("Emery") and Utah Power and
Light C"UP&L), as Emery's alleged successor-in-interest, 34
citations and orders-alleging violations of the Mine Act. UP&L
challenged all 34 citations and orders. Emery filed notices of
contest challenging 18 of the citations and orders, paid the
penalties assessed for eight of the citations and orders and
challenged eight other violations in the related penalty
proceedings.
Subsequently, Emery paid the civil penalties assessed on
three of the citations and orders for which it had previously
filed notices of contest. UP&L's 34 and Emery's 23 challenges
were consolidated in Docket Nos. WEST 87-130-R through WEST
87-163-R ("130-series dockets").
On August 13, 1987, the Secretary issued seven additional
citations to Emery as the operator of Wilberg and UP&L as Emery's

1776

successor-in-interest. UP&L again challenged all seven citations,
while Emery filed a notice of contest in only one case, paying the
assessed civil penalties in the remaining six. These notices of
contest were assigned Docket Nos. WEST 87-243-R through WEST
87-249-R ("243-series dockets") and consolidated with the 130-series
dockets.
Parallel penalty proceedings were also consolidated with the
above contest cases (Docket Nos. WEST 87-208; WEST 87-209; WEST
88-25).
On March 9, 1988, 11 of the 130-series citations and orders and
the related penalty cases were vacated as to UP&L. Emery Mining
Corp., 10 FMSHRC 339 (1988).
(Docket Nos. WEST 87-138-R; WEST
87-139-R; WEST 87-140-R; WEST 87-141-R; WEST 87-142-R; WEST
87-143-R; WEST 87-148-R; WEST 87-149-R; WEST 87-151-R; WEST
87-154-R; WEST 87-162-R.)
These 11 cases were later dismissed as to
Emery as well, by Order dated August 5, 1988, on the grounds that
Emery had paid the assessed civil penalties.
In a separate Order
dated March 24, 1988, and amended March 25, 1988, the Presiding
Judge noted that six of the seven 243-series cases could also be
vacated as to UP&L on the basis of the March 9 Order.
(Docket Nos.
WEST 87-243-R; WEST 87-244-R; WEST 87-245-R; WEST 87-246-R; WEST
87-247-R; WEST 87-249-R.)
The Secretary sought to modify the 30 remaining citations and
orders, including the 243-series cases, to which the March 9 ruling
had not been applied. The modification sought to cite UP&L
directly, as an operator of the Wilberg Mine.
On August 30, 1988, all 30 "modified" citations and orders were
vacated as to UP&L. The Secretary sought review of the August 30
Order, but, at the joint request of the Secretary and UP&L, briefing
and further proceedings at the c~mmission level were stayed pending
the final disposition of the proceedings involving Emery (in the
belief that resolution of the Emery cases might obviate the need for
further Commission proceedings).
On appeal, the Commission did not stay proceedings before the
Presiding Judge. Accordingly, the Judge has jurisdiction to consider the proposed settlement. Further, it is necessary to formally
dismiss the contest proceedings.
CONTEST PROCEEDINGS
The contest cases remaining pending herein should be dismissed
for the reasons hereafter noted:

1777

WEST 87-13.0-R (Citation No. 2844485):
UP&L's motion to vacate this citation was granted and
Emery ha.s withdrawn its contest.
WEST 87-131-R

(O~der

No. 2844486):

UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-132-R (Order No. 2844488):
UP&L's motion to vacate this order was granted and
Emery has withdrawn its contest.
WEST 87-133-R (Order No. 2844489):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-144-R (Order No. 2844795):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-145-R (Order No. 2844796):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-146-R (Order No. 2844798):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-147-R (Order No. 2844800):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-150-R (Order No. 2844805):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.

1778

WEST 87-152-R (Order No. 2844807):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-153-R (Order No. 2844808):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-156-R (Order No. 2844813):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-157-R (Order No. 2844815):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-160-R (Order No. 2844822):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-161-R (Order No. 2844823):
UP&L's motion to vacate this order was granted and Emery
has withdrawn its contest.
WEST 87-248-R (Citation No. 2844835):
Vacated as to UP&L and pending as to Emery. The citation
herein has been settled, as provided in the civil penalty
proceedings.
CIVIL PENALTY PROCEEEDINGS
The parties at this time have reached an amicable settlement of
the three penalty proceedings (Docket Nos. WEST 87-208, WEST 87-209,
WEST 88-25). These penalty cases involve 24 of the alleged violations that were initially challenged in the 130- series and 243series. Emery is the sole respondent in these cases.
The outstanding civil penalties herein were originally assessed
for a total amount of $106,749. Emery has offered to settle these
matters by the voluntary payment of $95,000 with the specific
amounts to be allocated by the Secretary.

1779

The Secretary's allocation set forth in her motion is based on
the statutory criteria for assessing civil penalties.
The proposed dispositions are as follows:
Citation/
Order No.

30 C.F.R.

Proposed
Assessment

Settlement
Amount

2844485
2844486
2844488
2844489
2844490
2844815
2844491
2844492
2844493
2844816
2844822
2844826
2844813
2844817
2844823
2844805
2844800
2844795
2844796
2844798
2844807
2844808
2844811
2844835

75.1725Ca)
75.512
75.1101-23(a)
75.1704-2(d)
75.1714(b)
75.1704
75.1105
75.1107-l(a)(2)
75.1600-2(e)
75.103(j)
75.316
75.1704-2(a)
75.1702
75.508
75.1103-4(a)(l)
75.904
75.513
75.900
75.1101-5Cb)
75.1101-5(2)
75.512
75.512
75.1103-4(e)
75.1704

$10,000
$10,000
$10,000
$10,000
$10,000
$10,000
$ 7,000
$ 5,000
$ 5,000
$ 4,000
$ 4,000
$
329
$ 1,600
$
20
$ 2,000
$ 1,900
$ 1,200
$ 4,000
$ 2,000
$ 1,800
$ 1,800
$ 1,800
$ 1,400
$ 2,000

$10,000
$10,000
$10,000
$10,000
$10,000
$10,000
$ 7,000
$ 5,000
$ 5,000
$ 4,000
$ 1,000
$
329
$
250
$
20
$ 2,000
$ 1,900
$
200
$ 4,000
$ 1,000
$
800
$
500
$
500
$ 1,000
$
501

I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
For the foregoing reasons I enter the following:

1780

ORDER
1.

The following contest cases are DISMISSED:
WEST 87-130-R
WEST 87-131-R
WEST 87-132-R
WEST 87-133-R
WEST 87-144-R
WEST 87-145-R
WEST 87-146-R
WEST 87-147-R
WEST 87-150-R
WEST 87-152-R
WEST 87-153-R
WEST 87-156-R
WES'r 87-157-R
WEST 87-160-R
WEST 87-161-R
WEST 87-248-R

2. The Motion to Approve Settlement of the penalty cases
(WEST 87-208, WEST 87-209, and WEST 88-25) is GRANTED.
3. Emery is ordered to pay to the Secretary the sum of
$95,000 within 10 days after this "Decision Approving Settlement"
becomes a final Commission Decision.

Distribution:
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Ann R. Klee,
Esq., CROWELL & MORING, 1001 Pennsylvania Ave., N.W., Washington,
D.C. 20004
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
Mary Lu Jordan, Esq., Michael Dinnerstein, Esq., United Mine
Workers of America, 900 15th Street, N.W., Washington, D.C. 20005
(Certified Mail)
/ek

1781

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

SEP 181990
CIVIL PENALTY PROCEEDINGS

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

Docket No. VA 90-28
A. C. No. 44-00304-03618
Bullitt Mine

WESTMORELAND COAL COMPANY,
Respondent

.
DECISION

Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary;
F. Thomas Rubenstein, Esq., Assistant General
Counsel, Westmoreland Coal Company, Big Stone Gap,
Virginia, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
In this proceeding, the Secretary (Petitioner) seeks a civil
penalty for an alleged violation by the Operator (Respondent) of
30 C.F.R. § 75.1003. Pursuant to notice, the case was heard in
Bristol, Virginia, on June 25, 1990. At the hearing, Gary Wayne
Jessee testified for Petitioner, and John Yorke testified for
Respondent. At the conclusion of Petitioner's case, Respondent
made a Motion to have the citation vacated, and decision was
reserved.
Subsequent to hearing, Petitioner ·and Respondent filed
Proposed Findings of Fact and Briefs on August 10 and August 7,
respectively
Stipulations
At the hearing, Petitioner read into the record the
following stipulations:
1. The Westmoreland Coal Company is the owner and
operator of the Bullet Mine which is the subject of
this proceeding.
2. That the operations of the above mentioned mine is
subject to the Mine Safety and Health Act.

1782

3. That the Administrative Law Judge has the jurisdiction to hear and ~ecide this matter
4. That Inspector Gary Jessee was acting in an official capacity when he issued the citation in question
today, Citation Number 3352277.
5. That a true copy of the citation was served on a
mine operator or its agents as required by the Act.
6. That there is no question today of the authenticity
of the citation.
7. That the proposed penalty of $105 will not
adversely affect the Respondent's ability to continue
in business.
8. That the Respondent has a favorable ratio of inspections -- violations per inspection day pursuant to
Part 100 where the purposes of the tables that we have
used.
(sic).
9. That the Parties' Joint Exhibit 1 is an accurate
rendition of the scene that the inspector came upon in
issuing the citation in question.
10. That should an individual contact the trolley wire
in question today, such a contact would lead to an injury
leading to at least a temporary disabling injury or
illness to the miner.
Findings of Fact and Discussion

I.
The West Main entry (also referred to as "West Mains" and
"west Main's entr-y") at Respondent's Bullitt" Mine contains a mine
track and belt line. Vehicles traveling on the track are powered
by poles in contact with a 300 volt wire that is suspended from
the ceiling. At the intersection of the West Main entry, and the
Four Leit entry (mouth of the Four Left entry>, a mine track and
trolley wire branch off and run below the belt line to enter the
Four Left entry.
~t the intersection of the West Main entry and
che Four Left entry, the belt line is approximately 4 feet above
the floor, and the trolley wire is suspended approximately
18 to 24 inches from the roof, and is also approximately 4 feet
above the floor.
The width of the beit line is approximately
48 inches, the distance between the tracks is approximately
44 inches, and, in a lateral direction, the wire is approxi~ately
1 and 1/2 feet beyond the track. On February 12, 1990, Gary
Wayne Jessee, while at the mine to perform an ABD Inspection,
observed that the trolley wire that was under the belt line in

1783

the mouth of the Four Left entry, (the intersection between the
Four Left and West Main entries), was not guarded.~/
Jessee issued a Citation alleging a violation of 30 C.F.R.
§ 75.1003, which, as pertinent, provides that trolley wires

" • • • shall be guarded adequately:
Ca) at all points where the
men are required to work or pass regularly under the wires;

....

II

Thus, in order for there to be found a violation herein it
must be established that there existed an unguarded point at
which men are either: 1. required to work;~/ or 2. pass
regularly under the wire.
At the time of· the alleged violation, men were working in
the Four Left entry approximately 300 feet outby the intBrsection
with the West Main's track, dismantling the longwall equipment.
Although there were three other entrances to that area, Jessee
indicated, and essentially Yorke agreed, that the primary way
from the Four Left longwall out of the mine was through the West
Main entry, which necessitated going under the belt line. Yorke
indicated that generally people travel from the West Main entry
to the Four Left entry by a mantrip rather than on foot.
Persons
riding the mantrip sit on the floor of the mantrip. According to
the uncontradicted testimony of Jessee, the mantrip extends more
than 1 foot on either side beyond the tracks. Thus, inasmuch as

I/ It was Jessee's testimony that the West Mains' side of the
iire was not guarded, and the Four Left side had a guard that was
partially attached.
It was the testimony of John Yorke,
Respondent's assistant general foreman, who accompanied Jessee,
that the guard for the trolley wire in the area in question was
attached on the West Main side, but was down on the Four Left
entry side.
It is not necessary to resolve this conflict in
testimony, as either version supports a conclusion that the wire
in the area in question was not adequately guarded.
2/ Jessee indicated that a person making the weekly examination
;ould be on foot in the area, and also the belt examiner and
preshif t examiner would be in the area in question.
He also
indicated that once the work in the longwall was completed, a
date board would be placed in the area for an examiner to initial.
Yorke, in this connection, indicated that approximately
2 to 3 times a year on his shift, he has assigned men to clean
under the belt. However, he indic~ced that they clean from the
West Main's side, and do not work under the belt in the area
under the unguarded wire.
I thus conclude that the evidence is
insufficient to establish that persons are required to work at a
point under the unguarded wires.

1784

the trolley wire was 1 and 1/2 feet in a lateral direction beyond
the tracks, there is support for the testimony of Jessee that a
person sitting on the driver's side of the mantrip would be an
inch from the unguarded energized wire.
In this connection, he
indicated that he observed a full mantrip in the area of the
unguarded wire in question.
I thus conclude that when riding a
mantrip, on the way to and from the Four Left entry from the West
Main entry, miners do regularly pass at a point where the trolley
wire was unguarded, and as such, Respondent herein did violate
Section 75.1003(a), supra.~/ (See, u. S. Steel, 6 FMSHRC
1664 (1984) (Judge Koutras)). As such, Respondent's Motion to
have the Citation vacated is presently DENIED.
II.
Respondent did not rebut Jessee's conclusion that it would
have been reasonably likely, if the condition herein was not
corrected, for an injury to occur as a result of contact with the
unguarded wire. Due to the fact that entry into the Four Left
section is primarily by way of a mantrip from the West Main
entry, persons riding the mantrip and sitting on the driver's
side would be approximately 1 inch from the wire, which was energized at 300 volts. It certainly is clear that one coming in
contact with the wire, which was energized at 300 volts, would be
exposed to a hazard of being burned or electrocuted.
(See,
3/ I reject Respondent's arguments that, is essence, Section
75.1003, supra, is not violated when Miners in a mantrip pass
under an unguarded wire.
It is unduly restrictive to hold that
Section 75.1003, supra, in requiring guarding on wires that men
"pass regularly under," does not apply where men pass under the
wires in a mantrip.
Such an interpretation does violence to the
clear wording of Section 75.1003, supra, which does not explicitly contain such a limitation. Moreover, an inference can not be
logically drawn that in explicitly providing. that wires be
guarded at mantrip stations (30 C.F.R. § 75.1003(c)), it was
intended that such stations are the only areas where miners
riding in mantrips are to be protected from unguarded wires. To
adopt such an interpretation would clearly not be consistent with
the broad language of Section 75.1003(a), supra, requiring
guarding ''at all points" where men "pass regularly under." This
language clearly does not limit the applicability of the phase
"pass regularly under," to only those areas where men pass under
wires on foot, as opposed to riding in a mantrip.
In addition, I
note that, as defined in Webster's Third New International
Dictionary (1986 ed.), the term "pass," as applied to travel,
does not distinguish between the act of ambulating, or of being
transported, as this term is defined as "l • • . c:
to proceed
along a specified route: . • • 11

1785

u. s. Steel Mining Company, Inc., 6 FMSHRC 2305 {1984)). In this
connection, Respondent did not rebut or contradict Jessee's
testimony that one riding in a car, especially in the inby end,
would come in contact with the wire by being jostled or thrown
against it due to a sudden stop of the trolley caused by a wreck
or irregularities in the track.
I thus conclude that the
violation herein was significant and substantial.
{See, u. s.
Steel, supra; see, also U. s. Steel Mining Company, Inc.,
6 FMSHRC 1617 {1984) {Judge Broderick)).
III.
In U. s. Steel Mining Company, Inc., 7 FMSHRC 865, 867
{1985), the Commission set forth its findings with regard to the
purpose of the guarding requirement of 75.1003, supra, and the
"strong" Congressional concern with the hazards associated with
bare trolley wires as follows:
"The primary purpose of the guarding requirement in
Section 75.1003 is to prevent miners from contacting bare trolley
wires.
As noted above, this standard repeats Section 310{d) of
the Mine Act, 30 u.s.c. § 870{d), which, in turn, was carried
over unchanged from Section 310{d) of the 1969 Coal ~ct,
30 u.s.c. § 801 et seg. {1976) {amended 1977).
The legislative
history of the 1~69 Coal Act relevant to Section 75.1003 reveals
a dtrong Congressional concern witn the hazards associated witn
bare trolley wires:
This section requires that trolley wires and
trolley feeder wires be insulated and guarded
adequately at doors, stoppings, at mantrip stations,
and at all points where men are required to work or
pass regularly. • •
Also, this section would require
temporary guards where trackmen or other persons work
in proximity to trolley wires and trolley feeaer wires.
The Secretary or the inspector may designate other
lengths of trotley wires or trolley feeder wires thac
shall be protected •
. The guarding of trolley wires and feeder
wires at doors, stoppings, and where men worK or pass
regularly is to prevent shock hazards.
Because of the extreme hazards created by bare
trolley wires and trolley feeder wires, the com.~ittee
intends tnat the Sacretary will make broad use of the
authoricy to designate additional lengths of trolley
wires and trolley feeder wires that shall ne protected.
Thus I follow tne Commission's decision in u. s. Steel,
supra, and conclude that the violation herein was of a nigh level
of gravity.

1786

Jessee testified, and his testimony was not contradicted,
that there were no obscructions preventing a person from
obsarving the fact that the guard was not in place at the area in
question. Yorke testified that if the guard had not baen in
place the night before he would have noticed it, and he subsequently testified "it was in place the night before" (Tr. 106).
Jessee indicated that he did not have any idea how long the guard
had been down. Ba3ed on this testimony, I conclude that the
violation herein resulted from moderate negligence on the part of
the Respondant. Taking into account the remaining statutory
factors set forth in Section llO(i) of the Act, I conclude that a
penalty of $400 is appropriate for the violation found herein.
ORDER
It is ORDERED that Respondent shall pay $400, within 30 Jays
from tne date of this Decision, as a civil penalty ror the violation found herein.

<P.__~

Avram Weisberger
Administrative Law Judge
Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)

F. Thomas Rubenstein, Esq., Assistant General Counsel, Westmoreland
Coal Company, P. o. Drawer A & B, Big Stone Gap, VA 24219 (Certified
Mail)
dcp

1787

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

22041

SEP 18 l990
SECRETARY OF LABOR,
MINE SAFETY-AND HEALTH
ADMINISTRATION (MSHA) ·,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-18
A.C. No. 46-01286-03713

v.
Windsor Mine
WINDSOR COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
David Cohen, Esq., Windsor Coal Company,
Lancaster, Ohio, for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine·safety and Health Act of
1977, 30 U.S.C. § 801 et~., the "Act," charging the
Windsor Coal Company (Windsor) with two violations of
mandatory standards and proposing civil penalties $1,900 for
the violations alleged therein. The general issue before me
is whether Windsor violated the cited regulatory standards
and, if so, the appropriate civil penalty to be assessed in
accordance with Section llO(i) of the Act.
Order No. 3129208 issued pursuant to Section 104(d)(l)
of the Act 1/ alleges a violation of the mandatory standard
at 30 C.F.R~ § 75.1704 and charges as follows:
I/section 104(d){l) provides as follows:
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
1788

The 3 south main intake escapeway is not being
maintained in a safe condition for the evacuation
of miners in the 2A, 3A, and 3 south faces sections.
There are 7 locations were (sic] the roof is not
adequately supported. These areas were shown to
and marked by the company escort. Cl) at 26
stopping top fell out around 3 roof bolts (2)
Between 23 and 24 stopping top (sic] fell out
around 8 roof bolts (3) 22 to 23 roof fell out
around 2 roof bolts,-(4) 21 to 22 roof fell out
around 2 roof bolts (5) 18 to 19 stoppings roof has
fell out around 18 roof bolts, (6) 17 to 18
stoppings roof fell out around 7 roof bolts (7) 17
stopping on out by corner top fell out around 5
roof bolts. Three of the seven areas were recorded
in the approved book. The book was countersigned
by Tom Moore mine foreman and Joe Matkovich
superintendent. The areas recorded in the book
were marked with tags where additional support is
needed.
The cited standard, 30 c.F.R. § 75.1704, provides in
relevant part as follows:
Except as provided in§§ 75.1705 and 75.1706, at
least two separate and distinct travelable
passageways which are maintained to insure passage
at all times of any person, including disabled
persons, and which are to be designated as
escapeways, at least one of which is ventilated
with intake air, shall be provided from each
working section continuous to the surf ace escape
drift opening, or continuous to the escape shaft or
continued f n. 1
comply with such mandatory health or safety
standards, he ~hall include such finding in any
citation given to the operator under this Act.
If
during the same inspection or any subsequent
inspection of such mine within 90 days after the
issuance of such citation, an authorized
representative of the Secretary finds another
violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c} to be withdrawn from,
and to be prohibited from entering, such area until
an authorized representative of the Secretary
determines that such violation has been abated.

1789

slope facilities to the surface, as appropriate,
and shall be maintained in safe condition and
properly marked. [emphasis added]
Inspector Thomas Doll of the Federal Mine Safety and
Health Administration CMSHA) was performing an inspection at
the Windsor Mine on August 9, 1989, when he allegedly
observed the cited conditions in the 3 South Main intake
escapeway.
Doll noted that this was the primary escapeway
for four active working areas. According to Doll, 45 bolts
in an 800 foot area were not in safe condition because the
top had fallen away leaving areas of unsupported roof. Doll
observed that in one intersection alone 18 bolts were
"destroyed" in this manner between ~he No. 18 and No. 19
stoppings.He subsequently explained that since the bolts were
resin grouted there was no danger of the structural beam·provided by the bolts failing but there nevertheless was a
danger from the flaking of "golf ball" size to "basketball"
size pieces of rock and falling and striking miners. He ·
noted that the roof averaged 10 feet in height in the subject
area and that a rock falling 8 feet to 10 feet could cause
serious injuries.
The existence of the cited conditions does not appear to
be in dispute. James Fodor, a safety assistant for Windsor,
observed the cited conditions after the order had been issued
and acknowledged that there was a lot of sloughage around the
bolts.
Donald Williams one of the timbermen who had been
working to abate the cited conditions also acknowledged that
there were "some gaps" above the bolts and Michael Roxby, the
Windsor Safety Inspector, also agreed that there was a lot of
sloughage in the cited area. While each of these Windsor
witnesses claimed that these conditions were nevertheless not
unsafe, I give these self-serving and unsupported conclusions
but little weight. Clearly Inspector Doll's testimony is the
more credible.
Under the circumstances it is clear that the violation
is proven as charged and that it was "significant and
substantial".
It may reasonably be inferred from the
credible evidence in conjunction with the fact that this area
was the primary escapeway subject to inspections by Windsor
employees and periodic inspections by government inspectors,
that it was reasonably likely that reasonably serious
injuries would be sustained as a result of the violation.
See Mathies Coal Co., 6 FMSHRC 1 (1984).
I also conclude that the violation was the result of
"unwarrantable failure" and high negligence. During his
inspection on August 9, Inspector Doll examined the mine

1790

books retained for reporting weekly examinations of the
escapeways.
He observed in those books, entries dated
August 2, 1989, reporting conditions in the cited area that
had not been completely corrected as of his inspection on
August 9, 1989. Even more significantly however, Doll found
yellow caution tags still hanging in the cited area three of
which were within the areas cited in the order at bar.
Robert Jester a Windsor Safety Assistant who accompanied
Inspector Doll during his inspection, confirmed the existence
on August 9, of at least two yellow caution tags dated August
2, 1989, hanging in the cited area.
He also confirmed that
the area around the plates where the tags were hung was
indeed "bad".
Inspector Doll reasonably concluded from the existence
of these remaining caution tags that indeed the corrective
work had not been completed in the cited area.
Doll also
opined that the problem with the large number of bolts around
which sloughage had occurred could not reasonably have
occurred over the short period of time between the alleged
corrective work a few shifts before his inspection artd the
time of his inspection.
Windsor Safety Assistant, James Fodor, also corroborated
Doll's testimony in significant ·respects. Fodor testified
that he had attached yellow caution tags to bolts in the
cited area and reported in the weekly examination books that
corrective action was needed.
He also issued a request for
corrective work on August 7.
According to outby foreman, Charles Slopek, timbermen
Don Williams and Brian Mulby were sent on August 7, during
the 4 to 12 shift, to correct the conditions that had been
reported by Fodor. On August 8, he again sent Williams and
Mulby to the area to verify that the corrective work had been
completed.
Slopek did not check the area himself but relied
upon the report from Williams and Mulby that the work had
oeen completed.
Timberman Williams testified that he checked the area on
August 8th, pursuant to Fodor's instructions and found that
the work had been completed. According to Williams the
yellow caution tags would have been removed by him upon the
completion of corrective work but he claimed that he did not
see any such tags on August 8th.
Within this framework of evidence I conclude that indeed
at least some of the conditions cited in the order at bar on
August 9, 1989, had existed at least since August 2, 1989,
and at least in the areas where yellow caution tags were
posted.
It may reasonably be inferred that at least some of
the conditions reported as needing corrective action on
August 2, 1989, and tagged with yellow caution tags had not

1791

as of the date of the inspection on August 9, 1989, been
corrected.
The testimony of Timberman Donald Williams who
was charged with the responsibility of correcting those
conditions and verifying on August 8, that they were indeed
corrected, is particularly significant. Although Williams
reported that the conditions had been corrected after
examining the area on August 8th, he saw no caution tags at
that time.
However both Inspector Doll and the company
official accompanying Doll on the August 9, inspection,
Robert Jester, found at least two yellow tags dated August
2nd, 1989, still hanging around plates within the cited area.
It may be further inf erred from this evidence that not only
had the conditions reported on Augu?t 2nd, not been corrected
as of August 9, but that it had been falsely reported that
they had been corrected when they had not been. Under,-the
circumstances I conclude that the violation herein was the
result of such aggravated conduct, omissions and gross
negligence that it was the result of "unwarrantable failure".
See Emery Mining Co., 9 FMSHRC 1997 (1987).
Order No. 3129172, also issued pursuant to section
104(d)(l) alleges a "significant and substantial" violation
of the mandatory standard at 30 C.F.R. § 75.1105 and charges
as follows:
The battery charging station for the 2A 3 South
Scoop car located at survey station 53 + 50 where
the scoop battery was on charge was not-vented
directly into the return.
A chemical smoke cloud
was dispersed over the batteries and the air
current was directing the battery fumes up number
three track entry into the face area. The same
violation was issued on 8/8/89 on the charging
station in the 3 South face section and management
was made aware of the acceptable way to vent the
charging stat~ons.
The cited standard, 30 C.F.R. § 75.1105, provides in
relevant part as follows:
Underground transformer stations, battery-charging
stations, substations, compressor stations, shops
and permanent pumps shall be housed in fireproof
structures or areas. Air currents used to
ventilate structures or areas enclosing electrical
installations shall be coursed directly into the
return.
MSHA inspector Joseph Moffitt was inspecting the Windsor
Mine on August 16, 1989, in the 2A 3 South area along with
the Windsor.Safety Inspector Robert Jester and a United Mine
Workers representative when he noted that in the Number 3
Track Entry several hundred feet from the face area there was

1792

a battery charging station extending out of the crosscut.
According to Moffitt the station was ventilated through a
hole created by the absence of one 8 inch by 16 inch cinder
block.
Releasing smoke from a smoke tube over a battery that
was being charged he observed that most of the smoke
proceeded down the Number 3 Track Entry into the working
places.
He did not see any of the smoke pass into the
return.
According to Moffitt these conditions created a serious
fire and smoke hazard.
He noted that hydrogen gas emanated
from the batteries while being charged, that unattended
electrical equipment in itself has a potential for a fire
hazard from shorting-out, that ther-e was a 550 volt cable to
the AC charger, and the battery itself is a fire haz~kd.
He
concluded under the circumstances that it was reasonably
likely for the men working at the face to suffer from smoke
inhalation which could result in asphyxiation and death.
Inspector Doll was also present during the smoke tube
test and he confirmed that the smoke released over the
batteries first swirled, then proceeded directly toward the
working faces. Within this framework of evidence it is clear
that the violation is proven as charged and was clearly
"significantly and substantial".
See Mathies Coal Co. supra.
In reaching this conclusion I have not disregarded the
testimony of Windsor's witnesses that a fire extinguisher and
rock dust were immediately available to douse any fires and
that dust from the sleeve of one of the persons present when
released at a position adjacent to the ventilation hole
proceeded through the hole.
However this evidence is not
sufficient to overcome the Secretary's case.
I do not, however, find that the violation was the
result of "unwarrantable failure" or high negligence.
It is
not disputed that the ventilation at that charging station
was checked around 8 that same morning by Michael Shreve a
section foreman. According to Shreve, he checked the air
movement at the ventilation hole by knocking dust off his
sleeve and observed that the air did in fact proceed through
the ventilation hole.
Shreve followed a procedure he had
seen inspectors use on prior inspections.
Indeed, even
Inspector Moffitt had, according to Shreve previously used
this method to check ventilation.
The procedures followed by Shreve were verified by
Robert Jester the Windsor Safety Inspector and by Safety
Director Michael Roxby. They confirmed that before this
inspection the MSHA inspectors had tested near the
ventilation hole and not over the battery chargers.

179 3

Within this framework of evidence I conclude Windsor
personnel were following testing procedures that had been
found acceptable and indeed had been previously followed by
MSHA inspectors themselves in testing for the ventilation of
battery charging stations. It is not disputed that when dust
was released at the ventilation hole it proceeded into the
return from the battery charging station.
The fact that smoke released from a smoke tube over the
battery being charged in the station flowed mostly toward the
working faces proves however the existence of a "significant
and substantial" violation. However since Windsor was using
a testing procedure consistent with that which had previously
been approved I cannot conclude that Windsor is chargeable
with a high degree of negligence or "unwarrantable failure".
Inasmuch as the line curtain was indeed negligently hung and
most of the ventilating air was proceeding to the working
areas there was at least some negligence.
Order No. 3129172
must accordingly be modified to a citation under section
104(a) of the Act.
Considering all of the criteria under Section llOCi) of
the Act I find that civil penalties of $1,000 and $200 are
appropriate respectively for the violations charged in Order
No. 3129208 and Citation No. 3129172.
ORDER
Order No. 3129172 is hereby modified to a citation under
section 104(a) of the Act and Windsor Coal Company is
directed to pay civil penalties of $200 for the
ation
charged therein. Order No. 3129208 is
firmed
indsor
Coal Company is directed to pay a civil enalty
,000 for
the violation charged therein within 30
ys of
te of
this decision.

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
David Cohen, Esq., Legal Department, Windsor Coal Company,
P.O. Box 700, Lancaster, OH 43130
(Certified Mail)
nb

1794

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

22041

SEP 19 \990
CIVIL PENALTY PROCEEDING

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

Docket No. VA 90-14
A.C. No. 44-05415-03558-A

v.
No. 1 Mine
ROGER DEEL, Employed by
BLACKFOOT COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Mr. Roger Deal, McClure, Virginia, pro se, for the
Respondent.

Before:

Judge Fauver

The Secretary brought this civil penalty action against a
mine foreman, charging that he knowingly violated a safety
standard, under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq.
After a hearing on the merits, a bench decision was issued
on August 16, 1990 .-- This decision supplements and confirms the
bench decision.
FINDINGS OF FACT
1. At all relevant times, Respondent, Roger Deel, was
employed as a section foreman, on the second shift, at the No. 1
Mine of Blackfoot Coal Company, Inc., in Dickenson County,
Virginia.
2.
Despite a requirement of the roof-control plan to mine
from right to left in retreat mining, mine management had a
policy of mining from left to right. This practice saved

1795

production t.ime, by avoiding the tramming of the continuousmining machine back to the right side of the line of cuts when
the left end was reached. However, it was a dangerous practice
and violated the roof-control plan.
3. Mr. Deel and other foreman followed this violative
practice knowing that it violated the roof-control plan. On
November 14, 1988, the continuous-miner operator, Richard Turner,
was acting foreman on the first shift.
He followed the same
practice of mining from left to right, in extracting pillars,
instead of complying with the roof-control plan. He had prior
experience as a full-time foreman, and knew that the plan
required him to mine from right to left.
While he was operating
the continuous miner, at about 11:00 a.m., a roof fall began in
the gob area and moved to his immediate site, covering his mining
machine with fallen rock. He was trapped in the machine until
rescuers could reach him, about 3:25 p.m.
Mr. Turner suffered
permanent back injuries.
4.
Respondent Deel had followed the same violative practice
on the production day previous to Mr. Turner's accident. Another
foreman, Brock, also had followed the same violative practice
previous to Mr. Turner's accident.
DISCUSSION WITH FURTHER FINDINGS
Mine management had a policy or practice of ignoring the
roof-control plan requirement to mine from right to left in
extracting pillars. The foremen and acting foreman Turner
followed this practice, including the Respondent, Roger Deel.
Mr. Deel "knowingly" violated the roof-control standard (and
therefore 30 C.F.R. § 75.220) within the meaning of section
llO(c) of the Act, which provides:
(c)
Whenever a corporate operator violates a
mandatory health or safety standard or knowingly
violates or fails or refuses to comply with any order
issued under this Act or any order incorporated in a
final decision issued under this Act, except an order
incorporated in a decision issued under subsection (a)
or section 105(c), any director, officer, or agent of
such corporation who knowingly authorized, ordered, or
carried out such violation, failure, or refusal shall
be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under
subsections (a) and (d).
It is no defense that Mr. Deel was following management
policy or orders in violating the roof-control plan. The Act, in
section 105(c), protects a miner, including supervisors, who
refuse to carry out a work assignment or practice that is in

1796

violation of .a safety standard or is reasonably believed to be
hazardous.
The violation was serious, because it compromised
roof control and increased the risk of a roof fall.
However, the government has singled out Mr. Deel, without
charging other foremen who were following the same violative
practice, and without charging mine management who were
responsible for this violative practice and had a clear duty to
prevent it. This approach to law enforcement does not meet the
standard of fair and evenhanded justice that the public is
entitled to expect from a government agency.
I find that Mr. Deel knowingly violated the cited safety
standard, but that his penalty should be substantially reduced
from the amount proposed by the Secretary ($700), because the
government has not shown evenhanded enforcement toward mine
management and the other foremen.
Considering this factor and the criteria for civil penalties
in section llO(i) of the Act, I find that a civil penalty of $50
is appropriate for this violation.
CONCLUSION OF LAW
1.

The judge has jurisdiction over this proceeding.

2.
Respondent, Roger Deel, violated 30 C.F.R. § 75.220 as
charged in the Petition for Proposed Assessment of Civil Penalty.

ORDER
WHEREFORE, IT IS ORDERED that Respsn,dent, Roger Deel, shall
pay a civil penalty of $50 within 30 days of the date of this
decision.

u};j_,l~
1-MAV~
William Fauver
Administrative Law Judge
Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Mr. Roger Deel, P.O. Box 1, McClure, VA 24269 (Certified Mail)
/fb

1797

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

22041

SEP 211990
ZEIGLER COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. LAKE 90-102-R
Citation No. 3035656; 5/17/90

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

Murdock Mine
Mine ID No. 11-0058~
DECISION

Appearances:

Timothy M. Biddle, Esq., Susan E. Chetlin, Esq.,
Crowell & Moring, Washington, D.C., for the
Contestant;
Robert Cohen, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a Notice of Contest filed by the
contestant pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 815(d), challenging the
validity of a section 104(a) non-"S&S" Citation No. 3035656,
issued on May 17, 1990, citing an alleged violation of mandatory
safety standard 30 C.F.R. § 75.329-l(a). The contestant's
request for an expedited hearing was granted, and a hearing was
conducted in St. Louis, Missouri, on June 6 and 7, 1990. The
parties filed posthearing briefs, and I have considered their
arguments in the course of my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether the
cited mandatory safety standard is applicable to the cited.
abandoned area of the mine, and if so, (2) whether the evidence
presented establishes a violation. Additional issues raised by
the parties are discussed in the course of this decision.

1798

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977;
Pub. L. 95-164, 30 U.S.C. § 801 et seq.
2.

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

3.

Mandatory safety standard 30 C.F.R.

4.

Commission Rules, 29 C.F.R.

§

§

§

820(i).

75.329-1.

2700.1 et seq.

Stipulations
The parties stipulated to the following (Tr. 8-9):
1. The Murdock Mine is owned and operated by the
contestant, and the mine and the contestant are subject
to the jurisdiction of the Act.
2. The presiding judge has jurisdiction to hear
and decide this matter.
3. The parties agree to the authenticity of the
documents offered in evidence in this matter.
4. The citation was properly served on the contestant by an authorized representative of the
Secretary, and all of the "paperwork" served on the
contestant in this matter by the Secretary was properly
served and may be admitted as procedurally correct, but
not for the purpose of establishing the truthfulness of
the matters asserted therein.
Discussion
The Zeigler Mine in question employs approximately 170
miners, and produces approximately 1,200,000 tons of coal
annually by the room and entry development method using
continuous-mining machines.
In order to preclude subsidence of
the surface farmland, no pillaring or "second mining" is done.
Room and entry mining is done in distinct panels which are not
connected or ventilated by bleeder systems, and the mine liberates 350,000 cubic feet of methane over a 24-hour period. There
have never been any methane ignitions at the mine, nor have any
citations been issued for exceeding 1 percent methane.
The cited West panel was a distinct room and entry panel
consisting of 21 entries driven off the 2d North submains. The
development of the panel began in December, 1987, and all mining
activity in that area ceased in July, 1989. From July, 1989
until December, 1989, the panel was ventilated by an air course
which circumvented the perimeter of the panel. Return air

1799

entered the section at the mouth, was coursed into the northern
most entry around the perimeter of the panel, returned through
the southern most entry, eventually flowing into the main return.
Zeigler's testimony reflects that the return air course was
maintained by a solid concrete block stopping line, and the
return air course was examined on a weekly basis to meet the
requirement of section 75.305 that at least one entry of each
return air course be examined in its entirety.
Zeigler's testimony reflects that sometime during the middle
of October or early November, 1989, it decided to abandon the
panel and made plans to seal that area when the development of
Main West was completed. Although Zeigler maintains that it was
not required, the cited panel continued to be ventilated even
after it was abandoned, and weekly examinations of the area were
still conducted because they could be done safely. However, a
roof fall occurred in December, 1989, at crosscut No. 13~- and
Zeigler determined that continued examinations of the entire
panel return air course was unsafe.
In view of its determination
that it was no longer safe to walk the return air course around
the perimeter of the panel, Zeigler instructed its mine examiners
to preshift the panel approaches to check the amount of air,
methane and carbon dioxide entering and returning from the panel.
MSHA Inspector John Stritzel, who had visited the mine
periodically every 6 months for ventilation and spot inspections,
was advised by a fellow inspector George Cerutti, that he had
visited the cited panel in mid-April 1990, and did not believe
the panel was being ventilated. Although Inspector Cerutti did
not issue a violation at that time, Inspector stritzel discussed
the matter with MSHA ventilation specialist Mark Eslinger, his
supervisor, at a staff meeting where the subject of abandoned
areas at various mines was discussed, and concern was voiced at
that meeting that abandoned mine areas in MSHA District 8 were
not being ventilated or sealed and that violations for section
75.329-l(a), should be issued where that was the case.
In preparation for his ventilation inspection at the mine,
which took 4 days, Inspector Stritzel reviewed the mine plans and
mine map at his office on May 4, 1990, and made his initial visit
to the mine on May 10, 1990. He spent 4 days underground, and
completed his inspection after he had inspected the cited panel
area on May 17, 1990. In view of the roof falls, the inspector
could only travel as far as the No. 13 crosscut in the intake
(northern most) entry of the panel, and after releasing some
smoke tubes at that location, and at several other locations
outby, he determined that the air in the panel contained at least
19.5 percent oxygen and less than 1 percent methane. However,
because he could not physically inspect ~he panel beyond crosscut
No. 13 to the point of deepest penetration, the inspector did not
believe that he could determine whether the panel was ventilated.
Further, since he believed that section 75.329-l(a), required

1800

Zeigler to be able to determine the adequacy of the ventilation
on the panel by physically walking and examining it to its point
of deepest penetration inby or beyond crosscut No. 13, he issued
the citation. The cited condition or practice states as follows:
An abandoned panel 02 working section was not
being ventilated and could not be determined by the
inspector as being adequately and completely ventilated
due to massive roof falls.
These roof falls were
across the ~ntire section at No. 13 room or crosscut.
The section was driven 34 rooms deep. The head end of
the section could not be accessed to determine if the
33 rooms and entries, and the last open crosscut of
these rooms and entries, were being ventilated so as to
continuously dilute, render harmless, and carry away
methane and other explosive gases within the section.
2 West, 2 North, 1 West.
MSHA's Testimony and Evidence
MSHA Inspector John D. Stritzel, Vincennes district office,
testified that he is a ventilation specialist, and his duties
include the physical inspection of mines, the review of ventilation plans, and the making of recommendations for plan changes.
He has served as a ventilation specialist since 1983, and has
inspected the contestant's mine every 6 months since that time.
His ventilation inspections normally take 4 to 5 days, 8 hours a
day, and they include a review of the mine ventilation plan and
physically walking the air courses to determine the quantity of
air available for ventilation and whether or not the ventilation
is adequate.
Mr. Stritzel stated that the mine consists of two shafts and
one slope, and that it has three working sections. Mining is
conducted during two production shifts a day. No pillar extraction or "second mining 11 is conducted, and coal is mined by
continuous-mining machines by entry and room development.
Methane liberation varies and it is less than one million CFM's.
The mine employs approximately 90 miners, and only 50 percent of
the available coal is mined in order to leave the pillars to
prevent surface land subsidence.
Mr. Stritzel confirmed that he reviewed the mine ventilation
plan on May 4, 1990, and went to the mine on May 10, 1990. He
identified a copy of the mine map furnished by the contestant
(exhibit R-2), and he identified and marked the mine areas where
he traveled during the course of his inspection. He confirmed
that he inspected the cited area on May 17, 1990, and issued the
citation that day. He confirmed that the section has been mined
out and abandoned and that all of the equipment and power has
been moved out. He believed that active mining had ceased on the
section on February 25, 1989.

1801

Mr. Stritzel stated that prior to his inspection he was "on
notice" that there was a ventilation problem on the section
through conversations with MSHA Inspector George Cerutti who
informed him that he had visited and entered the area less than a
month prior to his inspection with the mine superintendent.
Mr. Cerutti found that the top was bad and he did not believe the
area was being ventilated.
Mr. stritzel confirmed that he discussed the matter with his
ventilation specialist supervisor Mark Eslinger during a staff
meeting. The discussions involved different mines, including the
Murdock Mine, and it was noted that abandoned mine areas were not
being examined and ventilated. He confirmed that most mine
operators seal their abandoned mine areas, and that some mines in
Southern Illinois have bleeders and bleeder evaluation points to
check the adequacy of ventilation in abandoned mine areas, and
that this is usually covered in the mine ventilation plans.
However, the ventilation plan for the Murdock Mine does not cover
what has to be done with the abandoned areas in the mine.
Mr. stritzel stated that section 75.329-1 requires that all
abandoned mine areas be ventilated or sealed. He stated that
this section has no "grandfather" clause or cut-off date and that
it is a continuing requirement applicable to all mines. He
confirmed that there is no current MSHA policy explaining the
application of this section (Tr. 10-30).
Mr. stritzel confirmed that the citation which he issued was
the first one that he has ever issued for a violation of section
75.329 or 75.329.l(a), because he has never encountered a mine
condition that required it. He explained the "condition" as "a
section not being ventilated properly where you could check to
determine that it is being ventilated properly" (Tr. 27).
The inspector stated that the general mine manager
(Carpenter), the safety manager (Colign), and the union safety
walkaround representative (Cross) , were with him during his
inspection, and when they started at the mouth of the section,
Mr. Carpenter informed him the section was preshifted by a mine
examiner during each operational shift, but that weekly inspections were not being made. The inspector confirmed that he saw
the date boards at the return entry with the mine examiner's
initials and dates, indicating that the inspections had been
made.
However, he did not believe that these inspections satisfied the requirements for weekly inspections because someone has
to physically be present in the idled or abandoned areas in order
to conduct these inspections, and that person must walk the
length of the abandoned area on both sides to the deepest depth
that it has been driven in order to determine that the air is
being coursed into the section to the deepest point and around
the area, sweeping out anything that could buildup.
It was his

1802

understanding that this was not being done on a preshift or
weekly basis, and that the only inspections being conducted were
at the outby side at the mouth of the section where the date
boards were located (Tr. 31-36).
The inspector explained the route of travel taken by the
inspection party, and as they reached a massive fall area in the
second entry, he activated a chemical smoke cloud 4 or 5 feet
from the fall and stated that "it just went up and hung at the
road." He activated another one and "it drifted very, very
slowly up over the fall," and this indicated to him that very
little air was going over the right fall (Tr. 38). He then
proceeded to the first intake entry and stated that "the smoke
did the same thing there . . . couldn't hardy get it to go over
the fall . . . there was some movement up over the fall, but it
was very, very small" (Tr. 39). He then proceeded across to the
neutral side, and activated additional smoke clouds, and he
detected no air movement at one location, and air movement toward
the return side at another location. This indicated to him that
the air coming up the track entry was going to the return side,
but that this was not necessarily where it was supposed to go.
He then proceeded to the return side, and encountered a rock fall
on the other side of a man door, and Mr. Carpenter informed him
that they could not go further because the area had fallen in
solid across at room 13. They then proceeded out of the section,
and he informed Mr. Carpenter that a citation would be issued,
but did not tell him which standard he would cite (Tr. 42).
The inspector confirmed that his inspection took approximately 1 hour and 45 minutes, and that he based his determination
that the abandoned area was not being ventilated on the fact that
his smoke cloud tests indicated little or no air movement, and
that he expected to see air movement. He stated that a minimal
amount of air would have "carried the smoke cloud up" and that
"you shouldn't have to wait on it" (Tr. 42). Even if he had seen
air movement, he would still have issued the citation because the
respondent could not demonstrate that the air was being coursed
throughout the abandoned area and out of the return.
In view of
the rock falls, the air could have been short-circuiting and not
ventilating the entire area properly, and the only way to determine if this was being done was to physically walk the abandoned
areas to the deepest cut and inspect the areas.
If this cannot
be done, the area must be sealed (Tr. 44-45).
The inspector confirmed that there is no requirement that
examiners walk the area if they are exposed to hazardous roof
falls, and the alternatives would be to support the roof and
establish a safe means of travel for inspections or to seal the
area (Tr. 46). Another alternative would be to establish ventilation evaluation points, possibly at the outby side of the
falls, but he had no way of knowing whether this could be done,
and he indicated that the district manager would have to approve

1803

of any evaluation locations (Tr. 47-48). The inspector believed
that "the eas1est way out" would be to seal the area, and he
confirmed that this entails some amount of work, depending on the
roof conditions. He would have sealed the area across the five
entries when they were abandoned, but in view of the massive
falls, it would now have to be cleaned up at great expense (Tr.
49). He estimated that it would take two people working 10 days
on each of the entries to seal all five entries (Tr. 51).
The inspector confirmed that he made methane checks at the
approximate locations where he made his smoke cloud tests, and
found no high concentrations of methane. Although he found
one-tenth of a percent of methane, the area at the upper end of
the section beyond the No. 13 room was "an area of an unknown
quantity of methane or C02 11 (Tr. 54). Although the area outby
was safe, he had no way of knowing what was inby because he could
not inspect it because of the falls (Tr. 55). He confirmed that
he considered the violation be no non-"S&S" because the conditions did not meet the "reasonably likely" standard required for
an "S&S" violation (Tr. 56).
The inspector confirmed that he reviewed his district office
records and found that 12 prior citations and orders have been
issued in his district for violations of section 75.329 and
section 75.329-l(a), and that two of them were issued at the
Zeigler No. 5 Mine (Tr. 59). Respondent's counsel stipulated
that two violations were issued at that mine in May and July,
1986, for violations of section 75.329-l(a), by another inspector
(Tr. 60). The inspector confirmed that the superintendent at the
No. 5 Mine was Roger Roper, the present superintendent at the
Murdock Mine, and that the No. 5 Mine is 3 miles from the Murdock
Mine and both mines are in the same coal seam (Tr. 61-62;
Exhibits R-5 and R-6). The inspector was also aware of another
1984 citation for section 75.329-l(a), at the Murdock Mine, but
he did not have a copy (Tr. 62).
On cross-examination, the inspector confirmed that there was
no loading point or_working faces in the cited abandoned section,
and he found no evidence that anyone had "worked their way
through the fall areas and were up there mining coal'' (Tr. 63).
He confirmed that the area was not a working section, and that
the requirements for ventilating a working section did not apply
on May 17, 1990. He further confirmed that his definition of an
"abandoned area" comports with the definition found in section
75.2(h), and that the area did not have to be ventilated as a
working place has to ventilated (Tr. 65). He conceded that the
use of the term "working section" which appears on the face of
the citation he issued was an oversight (Tr. 65) .
The inspector confirmed that he did not use an anemometer
during his inspection because "the velocity was so minute that an
anemometer would have been useless" (Tr. 66). He conceded that

1804

every crosscut and every entry in the cited section was not
required to be ventilated, and that this is not required even on
a working section. He confirmed that the language in his citation about "continuously diluting, render harmless, and carry
away methane and other explosive gases within the section" came
from his reading of section 75.329-l(a) (Tr. 68). He stated that
Mr. Roper and Mr. Carpenter informed him that they could not seal
the area within 30 days, and that he fixed the abatement time at
30 days "as a time element that I could see some work being
accomplished in thirty days," and that it was possible that he
told Mr. Carpenter that there would be no abatement time extension if no work had been performed to abate the citation (Tr.
69) .
The inspector defined "ventilation" as "Air," but he
believed that the air had to be moving in order to quali{y as
ventilation (Tr. 71). He confirmed that the inspector who told
him about the "ventilation problem" in the cited area issued no
citations for any violations in that area (Tr. 72). He further
confirmed that the Murdock mine was mentioned during his discussions with his supervisor, but he was not sure that the subject
of unventilated abandoned mine areas has had a lot of MSHA
emphasis in the past 3 to 4 months. Staff meeting discussions
were held with respect to which particular standard could be
cited in such circumstances and that "two or three" were mentioned (Tr. 74).
Conceding that "there's different ways that can
be approached," he believed that section 75.329-l(a), was an
appropriate standard to cite in this case (Tr. 75). He stated
that sections 75.316 and 75.330, were discussed, but that section
75.316, which applies to ventilation plans, did not apply because
the mine has no ventilation plan covering abandoned areas, and
section 75.330, deals with mine design and mining methods, and is
limited to sealing and not to ventilation or sealing. He also
discounted the use of section 75.305, because that section deals
with examinations of hazardous conditions and abandoned areas,
and states that "a person shall go just as far as safety permits"
(Tr. 76-77).
The inspector confirmed that the cited abandoned area is not
considered a gob area because it is not "second mined," and there
is no way for the respondent to ventilate it by use of bleeders.
He confirmed that the only way to determine whether the cited
area was being ventilated, and where the air is being coursed, is
to physically walk and inspect the abandoned area, and this was
the basis for the issuance of the citation (Tr. 79). He confirmed that even if his smoke tube tests had established that the
smoke had gone directly into the fall area in an inby direction,
he would still have issued the citation because he could not walk
into those areas, and his use of the smoke tubes made no difference (Tr. 79-80).
In his view, as long as no one can physically
travel to the back of an abandoned section, it has to be sealed
pursuant to section 75.329-l(a) (Tr. 81-82). He confirmed that

1805

the areas which were being preshifted complied with section
7 5 . 3 0 5 (Tr . 8 4 ) .
The inspector agreed that he wanted to insure that a pressure differential was maintained in the abandoned section, and
that such a differential would indicate that the air is moving
from high pressure to low pressure.
He confirmed that each place
which cannot be travelled must be sealed, and if the direction of
air travel through the section cannot be determined, the respondent would be out of compliance with the cited section (Tr.
86-88). He confirmed that he took no air reading to determine
the air quantity on the main return (Tr. 92).
In response to further questions, the inspector confirmed
that there is nothing in the respondent's ventilation plan that
requires it to ventilate abandoned mine areas.
He stated-that
this omission is not typical of other mines that he inspects in
his district, and that the ventilation plan was last approved
approximately 6 months ago (Tr. 95).
Mark o. Eslinger, testified that he is employed as a mining
engineer with MSHA's District No. 8 office, and that his duties
include the supervision of inspectors in the ventilation department.
He is a 1971 graduate in civil engineering from the
Michigan Technological University, has worked 19 years for MSHA,
and is a member of the committee currently rewriting the
Subpart D ventilation regulations. He confirmed that he has
reviewed section 75.329-l(a), and stated that this regulation
will be clarified when the new regulations are promulgated, but
that the basic provision found in that section will be retained.
He explained the proposed changes, and also explained the ventilation method for abandoned and working mine areas (Tr.
97-103) .
Mr. Eslinger agreed with the inspector's position that there
is no way one can assure that an area is being properly ventilated without travelling the deepest point of penetration. He
stated that the inspector could only travel one-third of the way
into the cited abandoned panel and had no assurance as to what
may have been occurring in the remaining areas.
Even if he had
some air flow from the smoke tubes, there was no way to assure
that the air reached the end of the panel, and it may have been
short circuiting across the panel, and the numerous falls may
have destroyed the stopping line.
Although it was not necessary
to go into each entry, one needs to be able to go into "key
locations" to insure that the rest of the panel is being
ventilated (Tr. 105).
Mr. Eslinger stated that sections 75.329, 75.329-1, and
75.329-2, require the ventilation or sealing of abandoned areas.
If a mine operator decides to ventilate the area, it must be able

1806

to demonstrate that it is being ventilated by physically examining the area at key locations to determine that the air is
moving, and taking methane and oxygen readings to assure movement
of air and no accumulations of methane or carbon dioxide.
If
this cannot be done, the area must be sealed. If key locations
cannot be reached because of falls, they must be cleaned up to
provide a safe access way.
If an operator decides to ventilate
the area, it must advise MSHA how this will be done, and if it
decides to seal an area, it must file a plan pursuant to section
75.330 (Tr. 105-108).
Mr. Eslinger did not believe that the contestant's preshift
examinations were adequate to meet the requirement for weekly
examinations of abandoned areas because the examinations were
being made at the fronts of the abandoned area, and the examiners
were not walking into or penetrating the panel. The examinations
which were conducted would not fulfill the weekly examination, or
section 75.305 requirements, because the weekly examination
requires an examination for hazardous conditions "insofar as
safety considerations permit," and weekly examinations have to be
made as far as you can safely travel in an abandoned area. Since
the examiners were only going to the fronts of the panel, rather
than to the location described by the inspector where his inspection party went, the weekly examinations should have been made at
that location if it was safe to travel there (Tr. 109).
Mr. Eslinger stated that he had information that someone had gone
halfway up the panel to take methane and air pressure drop locations, and that if this were true, the examiners who were conducting the preshift examinations as a substitute for weekly
examinations should also have gone to these areas for their
tests. He confirmed that if it were unsafe to go to these areas,
section 75.305 would not require weekly inspections because it
provides an exception based on safety considerations (Tr. 111).
Mr. Eslinger confirmed that mine operators generally include
a provision in their ventilation plans that they will maintain
safe access to the deepest point of penetration of mining or the
area will be sealed.
However, in the instant case, the contestant did not include such a provision in its plan, and if it were
a part of the plan, the inspector would have cited a violation of
the plan for not maintaining safe access to the deepest point of
penetration, and the area would have to be pealed (Tr. 112). He
confirmed that he initially reviews all ventilation plans in the
district and is familiar with them, and he is not aware of any
similar situations where the abandoned areas are not sealed or
ventilated (Tr. 113). He agreed with the citation issued by the
inspector, and believed that section 75.329-l(a), was an appropriate and available "tool" for the inspector to insure compliance. Mr. Eslinger considered this standard to be an "ongoing
requirement" (Tr. 115).

1807

On cross-examination, Mr. Eslinger identified exhibit C-1,
as the contestant's ventilation and dust-control plan for the
Murdock Mine, and he confirmed that he signed it and must have
reviewed it (Tr. 123). Although he reviews such plans, the
district manager approves them, and Mr. Eslinger did not believe
that he made an initial review of the plan in question, even
though he signed it (Tr. 124). He disagreed that the failure by
the inspector to cite the contestant with a violation of section
75.305, implied that the inspector believed that the contestant
was in compliance with this section. He believed that the
inspector made a judgment that the deepest point of penetration
could not be travelled and cited section 75.329-l(a), rather than
''double barrelling" the contestant with an additional violation
of section 75.~05 (Tr. 127).
Mr. Eslinger conceded that although section 75.305, does not
specifically mention travelling to the point of deepest·penetration to conduct weekly inspections of abandoned areas, he
believed the requirement for examining such areas "means you
travel to the deepest penetration" (Tr. 129). He also believed
that simply stepping one foot into an abandoned area to examine
it would constitute an inadequate examination (Tr. 130) .
Mr. Eslinger stated that the reference to the date
December 30, 1970, in section 75.329-l(a), "meant something at a
certain point in time," and that for those mines in existence
prior to that time, "you had to do something by that date.
From
then on you have to have the area either ventilated or sealed"
(Tr. 134, 135). He agreed that section 75.329-l(a) does not
contain any date for the submission of ventilation plans, or for
seeking MSHA approval to ventilate or seal such an area, other
than the date December 30, 1970, and he was not familiar with
MSHA's program policy manual with respect to this standard (Tr.
136). He agreed that there are no "bleeder entries" in the mine,
and that according to the mine map there has been no "second
mining" or any "pillar pulling or pillar size reduction." In the
case of an MSHA approved second mining system, provisions are
made to establish bleeder evaluation points to determine the
sufficiency of the air ventilating the gob area, and such bleeder
points are permitted only if they can be walked (Tr. 139). He
agreed that a ventilation evaluation point could be established
in the back end of the section, but if it were established outby
an inaccessible area outby the point of deepest penetration, MSHA
would not approve it because of its position that one cannot
determine that the area is being adequately ventilated without
travelling to the deepest point of penetration.
If bleeder
entries cannot be established, and they cannot be travelled, MSHA
would require the sealing of the area (Tr. 140-143).
Mr. Eslinger confirmed that the proposed new regulations,
which have not as yet been promulgated, will require that "worked

isos

out areas" be ventilated or sealed (Tr. 144). He further confirmed that the argument advanced by the contestant in this case
that the application of section 75.329-l(a), is limited to
December 30, 1970, and does not apply subsequent to that date,
has been discussed internally at MSHA, and that MSHA's position
is that "it's an absolute rule and it can be used" and that it
was used in this case.
However, this standard has generally not
been used in District No. 8, because "we try to put into the
ventilation plan other measures to assure the same basic thing"
(Tr. 146). He agreed that the contestant's approved plan is
devoid of any requirement that requires the sealing or ventilation of abandoned mine areas (Tr. 148).
Mr. Eslinger agreed that the cited abandoned area has no
pillars which have been "wholly or partially extracted," and that
the inspector made a determination on May 17, 1990, that the area
was an abandoned area.
He further agreed that while there is no
bleeder system or bleeder entries in the area, "equivalent means"
of ventilation may be used. He conceded that the term "equivalent means" is not further defined, and it is not in the approved
mine ventilation plan.
He explained further as follows at (Tr.
153) :
A.
I can't find an exact definition of equivalent
means.
That doesn't mean it's not here.
I still think
it's here.
I can give you a statement that we go by in
approving equivalent means, and we go by providing the
operator can satisfy the district manager of the
results of the ventilation system and the dust control
plan would provide no measure of protection to the
miners.

Q.

And what are you reading that from?

A.
I'm reading from the criteria for the approval of
ventilation plans, sir.
Q.
So equivalent means then becomes a ventilation
plan, as you understand it?
A.
It becomes -- yes. Well, in this case if you
wanted to submit it, it's a 329 plan or it's a 316
plan, whichever way you wish to submit it.
Contestant's Testimony and Evidence
Mine Superintendent Roger D. Roper testified that the
contestant uses a room and pillar mining method using continuous
miners to extract coal, but that pillars are not extracted.
The
mine is a relatively non-gassy mine liberating approximately
350,000 cubic feet of methane over a 24-hour period (Tr. 158).

1809

He identified and explained the mine ventilation system by reference to the mine map (exhibit R-2), and he also identified a copy
of the approved ventilation plan (exhibit C-1), and confirmed
that the mine is ventilated in accordance with that plan (Tr.
160) . He confirmed that he had no knowledge of any methane
ignitions in the mine, and was not aware of any citations for
more than 1 percent of methane (Tr. 160).
Mr. Roper stated that the cited 2nd West section was started
or developed in December, 1987, and that it was mined by continuous miners on a 75 by 85 foot block system. The section was
developed into seven entries, including intake and return
stopping lines, and he explained the development which has taken
place (Tr. 162-164). He confirmed that the mining of the panel
was completed in July, 1989, and that all of the equipment was
moved into the "east side of the main," and he identified this
area as the 1st East off the 2d North. He explained how the
mined out area was ventilated, and confirmed that the primary
ventilation is provided by return air from the operating 1st East
panel. He stated that in July, 1989, the area was being ventilated by approximately 8,000 cubic feet of air, and the decision
to abandon the area was made in December, 1989 (Tr. 167). During
the period July, 1989 to December, 1989, the 2nd West section was
examined on a weekly basis by travelling to the point of deepest
penetration, and since there was belt material in the mouth of
the panel, the area was not actually abandoned until October or
early November of 1989 (Tr. 168).
Mr. Roper stated that the abandoned area was being examined
after production stopped because it was safe to examine and he
was trying to comply with section 75.305.
He could recall
nothing in the ventilation plan which applied to the cited area.
He confirmed that roof falls occurred in the area, which required
additional stopping lines. At least one return entry could be
examined to comply with section 75.305, but after additional
falls occurred in D~cember 1989 or January 1990, he determined
that travelling into the back end of the section by any route
would be too hazardous to allow. He explained how certain air
changes were made, and confirmed that the air entering the section was approximately 15,000, and that the air quantity had
dropped because of the roof falls.
Further changes were made,
and other stoppings were opened up, allowing 20,000 to 22,000 of
return air to pass by the mouth of the panel. The approaches to
the panel were preshifted on a daily basis, and examiner's date
boards were erected at the number five entry leading into the
panel . (Tr. 173) .
Mr. Roper identified the areas on the mine map where the
examiners conducted their preshift examinations, and he explained
that the examiners were to determine the air flow going into the
abandoned panel. The examiners made methane checks where the air
was going into the area, and also checked for methane and C02 on

1810

the return side of the panel. The examiners took no air measurements at the return, but did check to see that there was air
movement coming out of the panel (Tr. 174). He believed that the
area was being ventilated at the time of the inspection, and
confirmed that he was not with the inspector on that day (Tr.
175) .
Mr. Roper stated that he discussed the citation with the
inspector, and disagreed with the citation for the following
reasons (Tr. 176):
A.
Yes. My contention was that the panel was being
ventilated.
Q.

All right.

A.
My contention was also that there was nobody that
was, you know, working in this area, that it was an
abandoned area, that there had been no perceptible
amount, and when I say perceptible amount, an amount of
methane concentrations in excess of one percent returning from that panel, none of the preshift mine examiners had found any concentrations along with the air
that was being intaked on the north side of the 2nd
West panel.
The methane readings there at those points
of time whenever I've been underground and checked it
would range from .O to .1 of one percent methane entering the panel. On the return side of the panel what
was coming -- what was being ventilated or bled out of
this panel and being read out here on the front end was
showing three tenths of one percent to four tenths of
one percent.
Mr. Roper confirmed that the inspector informed him that he
issued the citation because the cited section could not be
examined in its entirety to the deepest point of penetration and
the respondent could not determine that this area was being
ventilated. Mr. Roper stated that the day following the issuance
of the citation he and Mr. Carpenter went underground and took
some air readings with an anemometer and five bottle samples in
order to determine how much air was going in and out of the
abandoned area and to determine the concentrations of methane and
C02 being liberated from the area.
Based on those tests, he was
satisfied that the area was being ventilated. Mr. Roper disagreed with the inspector's assertion that a ventilation determination could not be made unless one travelled to the deepest
point of penetration because the outby areas had no methane
concentration build up and the oxygen content was in excess of
19-1/2 percent (Tr. 178-179).
In addition, the inspector found
that air was going over the roof falls at one location and found
no perceptible amount of methane at several other locations.
The
oxygen must have been sufficient since the inspector's oxygen

1811

detector did not sound, and the amount of oxygen which he (Roper)
found when he tested the area was in excess of what was required
by the law (Tr. 179).
Mr. Roper stated that he took his bottle samples on May 18,
1990, and that Mr. Carpenter and Mr. Colign took three additional
bottle samples on May 21, 1990. He identified exhibit C-2, as a
map of the abandoned area noting the locations and results of the
samples which were taken. He confirmed that the bottle samples
were processed by the State of Illinois Department of Mines and
Minerals, through the contestant's engineering department, and he
believed that the results were accurate. There were no changes
in the ventilation in the area since late December 1989, and
there were no differences in the ventilation between the date the
citation was issued and the dates the samples were taken. He
explained the results of the methane and carbon dioxide sampling,
and confirmed that none of the first five bottle samples showed
less than 16 percent oxygen content, and the highest methane
content of these samples was four-tenths of one percent (Tr.
181-187). Based on the results of these samples, Mr. Roper
concluded that the area was being ventilated. He reached the
same conclusion with respect to the samples taken on May 21 (Tr.
188) .
Mr. Roper stated that he visited the abandoned area again on
June 1, 1990, in the company of Mr. Don Mitchell, a professional
engineer, and Mr. Larry Harp, a chief engineer employed by the
contestant, for the purpose of conducting a further ventilation
study. He confirmed that no ventilation changes occurred between
May 17 and June 1, and referring to the mine map, he explained
the route of travel made by his group on June 1 (Tr. 190).
Although he believed that the area was hazardous, since he and
the engineers were experienced, they could evaluate and avoid
hazardous roof conditions, and did not walk the air courses. He
confirmed that he would not allow an examiner to travel through
the areas where he and the others travelled because there was no
reason for them to go there.
If the area was not being ventilated, he would have expected methane readings in excess of one
percent (Tr. 196).
Mr. Roper stated that plans have been made to seal the cited
area, and that cleanup and other work has been undertaken since
the time the citation was issued. He estimated that the sealing
work would take approximately 2-1/2 months, and that "at the
present time we're sealing because we're under violation.'' He
believed that sealing would eventually be a good mining practice
(Tr. 201-202).
He explained what would be done to seal the area
(Tr. 203-206}. He also explained the projected mining plans for
another nearby panel (Tr. 207-208).
On cross-examination, Mr. Roper confirmed that he was aware
of the two prior citations for violations of section 75.329-l(a),

1812

issued at the contestant's No. 5 Mine, but was not aware of any
1984 citation mentioned by the inspector in this case (Tr. 209).
He also confirmed that he had no notes which may have been made
by Mr. Carpenter or Mr. Colign when they were underground with
the inspector on the day the citation was issued (Tr. 212).
Although he did not believe that the abandoned area is required
to be ventilated pursuant to section 75.329-l(a), the bottle
samples previously referred to indicate to him that it was being
ventilated (Tr. 218-220). He could not recall how the prior
citations were terminated or whether the cited areas were sealed
(Tr. 221) .
Mr. Roper stated that he activated a smoke tube, or took an
air reading, at one of the same locations where the inspector
sampled, and he could also feel the air going over the falls and
could see minute dust particles in the area. He measured the
volume of air going in and out of the panel, and found approximately 8,000 going in on the intake side of the panel at the
mouth of the unit, and approximately 7,500 to 7,800 returning out
of the number one entry near an old regulator (Tr. 224). While
it was his opinion that the area was being ventilated on May 17,
he had no information on that day to support this opinion, but
that nothing had changed during the following 2 days when the air
was sampled (Tr. 226).
David L. Stritzel, contestant's director of health and
safety, testified that he has 21 years of mining experience, and
has worked for the respondent for 8-1/2 years. He holds a B.S.
degree in mining engineering, has received ventilation training,
and his experience includes previous employment with MSHA as a
supervisory mining engineer. He confirmed that he was familiar
with the cited abandoned area, and has reviewed the mine maps and
has discussed it on a daily basis with the miners. He identified
exhibit R-2 as a ventilation mine map which is updated and submitted to MSHA annually, and he identified the air intake and
return on the map (Tr. 235-239).
Mr. Stritzel disagreed with the citation and did not believe
that section 75.329-l(a), is applicable in this case. He
believed that sections 75.303, 75.305, 75.311, and 75.312 were
applicable. These sections provide for weekly examinations of
return air in abandoned areas, if it can be done safely, preshift
examinations of the approaches to the area, and prohibitions
against using air passing by or through the area to ventilate
active working places (Tr. 241). He did not believe that the
abandoned area was required to be ventilated, and he pointed out
that it was impossible to ventilate every place in the mine. He
was aware of other mines in MSHA District 8 with more extensive
abandoned areas, and they are not sealed. He stated that the
State of Pennsylvania and "some parts of West Virginia" prohibit
mine sealing. He visited one mine which was not sealed, and
learned that MSHA required evaluation points in outby areas far

1813

from the deepest penetration of the gob areas, and would not
permit sealing (Tr. 243-245).
Mr. Stritzel disagreed with the inspector's belief that one
had to walk to the point of deepest penetration in order to
determine whether the cited area was being ventilated. He
explained that intake and return stopping lines are established
around the perimeter of the panel, and if they are intact, "if
you've got air going in, you've got air coming out." As long as
the air is monitored, and there are no indications of any major
breakdown or changes in the ventilation system, and the atmosphere is clear of any explosive gasses or carbon dioxide, the
area is obviously being ventilated. The fact that there are
falls in the area does not mean that it is not being ventilated
and that the air is not going over the falls.
In mines which
extract pillars, there are massive roof falls, and the bleeders
are used to pull air over the falls and to bleed off any explosive gasses (Tr. 247-248).
Mr. Stritzel confirmed that he was aware of the prior citations and orders issued at the No. 5 Mine, and he explained that
the contestant was attempting to recover equipment out of the
cited areas and that MSHA was trying to force the contestant to
seal the areas. He stated that the previously cited areas were
being ventilated, and that such a determination was made in the
same manner as the instant case. He contested the violations and
requested a hearing, and his objections to the citations were
based on the same reasons raised in the instant case. However,
the matter did not proceed further because of a lack of available
and affordable counsel, and the matter was dropped and the civil
penalty assessments were paid. Seals were eventually constructed, the mine was shutdown at the same time, and the violations were terminated (Tr. 250-254).
Mr. Stritzel stated that he constructed the Murdock Mine
stoppings and that he was certain that they were intact, and that
its not very likely that a roof fall would damage them.
He
identified one of the mines which is not sealed, but he did not
know the extent of the ventilation in that mine because MSHA has
granted permission for evaluation points thousands of feet outby
the deepest point of penetration and no one can get back into the
area to determine whether the areas are ventilated (Tr. 257).
Mr. Stritzel believed that MSHA has seriously misapplied
section 75.329-l(a) in this case, and was "picking on Zeigler."
He explained that he discussed the matter with MSHA's district
manager in an effort to determine why MSHA was permitting other
mines to establish evaluation points at outby locations of abandoned areas, while at the same time denying Zeigler permission to
do the same thing.
The district manager informed him that the
other mines in question have bleeder systems which are covered in

1814

their ventilation plans, and that no exception would be made for
Zeigler (Tr. 258-268).
Mr. Stritzel stated that the day before the inspector issued
the citation, and when he found out that the citation would be
issued, he asked Mr. Roper to prepare a letter to MSHA requesting
bleeder evaluation points, and it was sent to the district manager. Although he has seen no written response, Mr. Stritzel
stated that he was verbally informed that the request would not
be granted.
A copy of the letter was produced, marked for identification, but was withdrawn by the contestant's counsel (proposed exhibit P-7; Tr. 261-264). Mr. Stritzel stated that he
discussed the request with MSHA assistant district manager
Charles Rack on approximately May 30, 1990. He also discussed
the citation which was issued in this case, including the ventilation tests results of May 18, but he did not give the information to Mr. Rack because "he didn't seem interested enough to
want to see them." He did not discuss the abatement time with
Mr. Rack, and their discussion focused on the legality of the
violation, the evaluation points, and the application of the
standards to other mine operators (Tr. 264-266).
Donald W. Mitchell, a registered professional engineer and
consultant, was qualified as an expert in mine ventilation. He
holds B.S. and M.S. Degrees in mining engineering from the Penn
State University, and Columbia University.
Exhibit C-3, is a
copy of his resume detailing his 40 years of work experience,
including membership in a number of mining and related professional associations and groups, and the authorship or
co-authorship of 87 mining publications or papers, including
ventilation and ventilation controls. His prior work experience
includes employment with the U.S. Bureau of Mines and MSHA from
April, 1951, to July, 1978, and his last government position was
Principal Mining Engineer and special advisor to the Assistant
Administrator, Technical Support (MSHA) (Tr. 277-279).
Mr. Mitchell defined the term "ventilation" as follows (Tr.
279) :
A.
I define ventilation as the imposing a pressure
differential on a network, as a result of putting a
pressure differential on a network.

Q.

What do you mean by network, Mr. Mitchell?

A.
Network being the passageways throughout the mine,
the shafts, the slopes, the entries, the crosscuts
we've heard testimony, this R-2 is a network. We
impose a pressure differential by means of a fan and
also by the elevation differential and the temperature
differential between the surface and the underground
workings.
These pressures induce air movement; not

1815

only air, it induces movement of all gases, air being
among the gases.

Q.

Would that also include methane?

A.

Of course, it would include methane as well.

Mr. Mitchell identified exhibit C-4, as a transcript excerpt
of his hearing testimony in a case now pending for decision
before Commission Judge John Morris, in which the identical issue
of the application of statutory section 75.329, and its associated regulatory sections were raised by a mine operator represented by the contestant's counsel in the instant proceeding
(Wyoming Fuel Company v. Secretary of Labor, Docket Nos.
WEST 90-112-R through 90-116-R). Mr. Mitchell confirmed that his
prior testimony with respect to the appropriateness of the application of section 75.329-l(a), also applies in the instant case
(Tr. 280) .
Mr. Mitchell stated that section 75.328 deals strictly with
the requirement that bleeder entries be used where pillars are
being extracted. Section 75.329 and 75.330, were the result of
section 303(z) of the Act, which was enacted out of congressional
concern that mine explosions were being experienced and had
worsened because of the existence of long continuous mine gob
areas.
In his view, as well as the view of the other individuals
who were drafting the regulations, including the Director of the
Bureau of Mines, John O'Leary, as expressed to the Congress,
section 75.329 was intended to specifically apply to mines which
were in existence and operating at the time this section was
enacted, and section 75.330, was intended "to take care of future
mining and future sections" (Tr. 285). The only application of
section 75.329-l(a), to the cited abandoned area of the contestant's mine is that the type of explosion-proof seals required
under that section were also the type required under section
75.330 (Tr. 285).
Mr. Mitchell defined an "abandoned area" as "an area that is
neither ventilated nor examined as are active areas," and he
stated that sections 75.303, 75.305, 75.311, 75.312, 75.314, and
75.330, are the appropriate regulations that may apply to abandoned areas. He believed that the requirement found in section
75.314, for the examination of an abandoned area for oxygen
deficiency, methane concentration and other hazards, within
3 hours of persons entering such an area, is the only regulation
relative to examination and ventilation within an abandoned area
other than the weekly or preshift examination requirements found
in section 75.303 and 75.304 (Tr. 286).
Mr. Mitchell confirmed that he visited the abandoned mine
section in question on June 1, 1990, with Mr. Harp and Mr. Roper

1816

to determine whether there were any conditions that would constitute a hazard to persons working in the mine.
He confirmed
that he made a ventilation pressure survey and a methane survey,
and also considered the results of Mr. Roper's ventilation and
methane sampling.
He also considered the information which was
available to the inspector during his inspection of May 17, as
corroborated by his testimony in this case and which he heard
(Tr. 287-290).
He then conducted an analysis based on all of the
information which was available to him, and concluded that the
cited abandoned panel was ventilated and safe and did not create
an explosion or fire hazard to persons working in the mine. He
identified exhibit C-5, as a summary of his data analysis and.
findings in support of his conclusion, and he explained them (Tr.
290-293).
Mr. Mitchell explained that his data and analysis reflects
no dangerous accumulations of methane anywhere within the areas
he travelled during his survey, and that it provides strong
evidence of the probability that the abandoned area was indeed
ventilated and that the ventilation pressures and movement of air
extended throughout the natural air flow paths within the area,
and extended to the deepest point of penetration of the panel.
He explained the basis for his conclusions (Tr. 294-296).
Mr. Mitchell stated that he took steps to satisfy himself that
the conditions in the abandoned area were the same on May 17 and
June 1, and that this was an important part of his analysis. He
did this by comparing the methane percentages recorded on May 18
and 21, with those found on June 1, and that "this is strong
evidence that nothing important has changed within the area
during that period." He also considered the fact that the
inspector found no important methane concentrations on May 17
(Tr. 297) .
Mr. Mitchell stated that proof that air was indeed flowing
through the abandoned area is further evidenced by the fact that
he found 0.1 percent methane at the northernmost fall on the
right hand side of the panel, and 0.4 and 0.5 percent methane in
the return, and tha€ when one considers the stopping line, the
probabilities are that either the stopping line or falls are
maintaining a flow of air through the area because the only way
for the air to have the increase in the return is for the air to
be coursing through that area inby the fall line which extended
across the width of the panel. This conclusion is further
corroborated by the fact that the concentrations of carbon
dioxide are similar to the methane concentrations, and this
indicates that air movement must be occurring in order to flush
out the carbon dioxide and to have a quantity of carbon dioxide
in the return air flow greater than that in the intake air flow
(Tr. 298).
Referring to an "airflow directions" chart, Mr. Mitchell
explained the direction of the air flow in the panel which he

1817

determined as part of his survey by means of two techniques,
namely, "sweat of the brow" and "feel and sense of a strong flow
of air." He explained that the "sweat of the brow" technique is
used in areas where there is a weak flow of air and where there
is no benefit in trying to measure such air with an anemometer or
smoke tube. He stated that by using this technique "one senses
these flows, either the flow is specific and definite because you
can feel it and the best way you feel it is by the sweat on your
brow. This is quite similar to a person wetting their finger to
see the direction the air is--the wind is blowing." He confirmed
that "all of us who do ventilation in mines for the government
today" were instructed in the use of this technique (Tr. 300).
Mr. Mitchell further explained the direction of air travel
as shown on the chart, and he confirmed that he perceived
definite air flows in the intake right entry of the panel, that
he could feel the flow of air in the middle of the entry before
he got to the fall, and that there was no question that air was
flowing to and through the fall because "it was flowing up to us
standing there some 10, 20 feet outby the fall." When they
travelled behind the fall, he found that the air flow through the
top of the fall was much stronger. When he reached the northernmost fall line, he found a strong flow of air continuing in the
intake entry going over the fall.
He also indicated that air was
also entering the panel, coming up the No. 2 entry, as depicted
by the "tilting" arrow on the upper portion of the chart, and the
air was flowing through a partially opened man-door across the
fall at that point (Tr. 304). He further explained the locations
where he detected air flows, and his recorded methane concentrations (Tr. 305-307). He confirmed that his conclusions concern~
ing air flow were consistent with the conditions found on May 17
(Tr. 309) .
Mr. Mitchell referred to a "pressure differentials" chart
which is a part of his survey, and he concluded that the results
show that there was a pressure differential sufficient to move
air, and that air was moving across the falls inby crosscut 13, a
definite flow of air over the fall at crosscut 23, and a flow of
air through the falls into the return on the left side of the
panel. He also concluded that there was a pressure differential
between the intake and return sides of the panel, and that there
was indeed a ventilation network present because the only way one
would obtain the pressures noted is by the flow of air or other
gases through the network (Tr. 311). He also believed that the
bottle sample results taken by Mr. Roper establish the probability that air of some unknown quantity was sweeping behind crosscut 23 and coming back through the returns of the panel and that
there was an established air intake and return despite the fall
(Tr. 313) •
Mr. Mitchell disagreed with the inspector's assertion that
the only method to determine whether an area is ventilated is to

1818

physically inspect it and take measurements. He stated that the
industry and MSHA practice for determining the adequacy or inadequacy of ventilation is by pressure differential surveys. Such
pressure differential measurements are made by the use of a
number of anemometers, taking into account mine elevations
through altimeter readings, dry and bulk temperatures, and the
quality of the atmosphere. He confirmed that "there are problems
with pressure readings where the air velocity exceed 400 feet per
minute" (Tr. 314).
Mr. Mitchell disagreed with MSHA's position that section
75.329-l(a), presently requires that abandoned mine areas be
ventilated. He stated that the only regulation that he is aware
of that requires an abandoned area to be ventilated is section
75.314 which requires adequate ventilation if people are to enter
the area to work (Tr. 322). He conceded that the general
practice of leaving abandoned mine areas alone and unventilated
"is a matter of great concern to all of us," and that if he had
not found a strong flow of air on the cited panel in this case
and had not found it to be safe, he would not be testifying in
this case (Tr. 323). He disagreed with MSHA's position that
section 75.329-l(a), is a viable standard for current application
and stated that "I only disagree it cannot apply and cannot be
intended to apply when written in 1970'' (Tr. 324).
With respect to the application of section 75.316, and
MSHA's argument that no one has argued that the language requiring a mine operator to adopt a ventilation plan "on or before
June 28, 1970," limits the application of the standard to that
date, Mr. Mitchell pointed out that the last sentence of section
75.316, requiring the review of ventilation plans "at least every
six months" indicates the congressional intent that such plans be
submitted every 6 months following June 28, 1970, and that this
has been the basis for requiring the submission of such plans.
In his view, this language distinguishes section 75.316 from
section 75. 329-1 (a) (Tr. 325).
Mr. Mitchell stated that in the event section 75.329 were
found not to apply in this case, MSHA would not be left in any
enforcement "predicament" because it could require Zeigler to
seal the abandoned area pursuant to section 75.330, or to adopt a
ventilation plan pursuant to section 75.316 covering the abandoned area (Tr. 327-328).
Mr. Mitchell was of the opinion that it would not be safe
for a mine examiner to travel the areas where he travelled during
his survey, but that it would be safe to travel to crosscut 13 on
the intake side of the panel to be assured of air flow up to that
point, and to the return regulator to take a reading at the mouth
of the panel (Tr. 330).

1819

On cross-examination, Mr. Mitchell confirmed that he did not
draft section 75.329-l(a), but was responsible for the committee
that considered statutory section 303(z) of the Act, and then
developed sections 75.329 and 75.330. The committee worked on
the promulgation of the standards which followed, including
section 75.329-l(a), among others. He confirmed that the committee was concerned with the problem of "these long contiguous gobs
that we were having that were causing explosions to worsen," and
that the intent of section 75.329-l(a), was to require areas of
mines then in existence to be ventilated or sealed (Tr. 333).
Mr. Mitchell stated that section 75.329-l(a) is related to
section 75.328, because it was the intent of Congress and the
government to require bleeder panels to be constructed around
mined-out or abandoned areas, and that this would constitute
adequate ventilation if one could demonstrate a pressure differential. Section 75.329-l(a), was intended in part to allow an
operator to comply by building a bleeder system around an existing mined-out area, and it is nothing more than an "add-on" to
section 75.329 which addresses bleeders (Tr. 335).
When asked for his interpretation of the phrase "or equivalent means" found in section 75.329, Mr. Mitchell responded
"that's a good question," and he agreed that it means "other
ventilation systems other than bleeders as approved by MSHA" (Tr.
335). When asked why section 75.329-l(a), should not be applicable to present day mines, Mr. Mitchell stated that ''it should be;
it isn't" (Tr. 335).
Mr. Mitchell agreed that it would be desirable to be able to
walk to the point of deepest penetration to determine whether the
ventilation was adequate, but he did not believe that it was
necessary to do so.
It would be desirable because one would be
dealing with facts rather than probabilities or possibilities,
and he agreed that survey opinions are based on probabilities.
He confirmed that he traveled close to the same place as the
inspector at the No. 13 crosscut, and he believed it was safe to
travel up to the fall and no further.
The question of whether
someone making an inspection pursuant to section 75.305 could
safely travel to that area would be a management decision after
discussion with MSHA (Tr. 339).
Mr. Mitchell stated that while it would be desirable to
include a provision in a ventilation plan requiring one to travel
to the point of deepest penetration in order to determine whether
the ventilation was adequate, he did not believe it would be
practical and it might create safety problems. He believed that
MSHA should require a mine operator to demonstrate with reasonable engineering certainty that the area is being ventilated, and
this could be done by making a ventilation survey or requiring
the drilling of a bore hole in the back end of the area in shallow mines and injecting tracer gas (Tr. 352-353). He believed it

1820

would be appropriate for Zeigler to conduct a weekly examination
at the intake side of crosscut No. 13, and to maintain a safe
access route to that location (Tr. 361). He also believed that
methane readings should be required at the mouth of the intake
and at the fall, and if the results are approximately the same,
this would constitute an atmosphere that is being adequately
ventilated (Tr. 362).
Mr. Eslinger was called in rebuttal by the petitioner, and
stated that when he took courses at the Bureau of Mines in 1971,
as well as subsequent courses, he was not taught the "sweat of
the brow" technique referred to by Mr. Mitchell, and Mr. Eslinger
believed that it was difficult to determine air flow without
instrumentation (Tr. 368). Mr. Eslinger also expressed concern
about the pressure differential results of Mr. Mitchell's survey,
the integrity of the stoppings, and the existence of ~he falls.
He also commented about the methane readings, the amount of air
measured on the panel by the respondent, and he still believed
that to assure oneself that the area is being ventilated it was
necessary to travel to the point of deepest penetration (Tr.
3 72) .
Mr. Eslinger agreed that it would be desirable for an
inspector to travel to the point of deepest penetration to determine whether the ventilation was adequate, and that this is the
best way to make such a determination. He agreed that the
inspector in this case testified that he could not establish that
the abandoned panel was being adequately ventilated because he
could not travel to the point of deepest penetration, and could
only go as far as crosscut No. 13 where he activated a smoke tube
(Tr. 373). He stated that "we like and encourage people to put
that into their ventilation plan" so that the operator and MSHA
can satisfy themselves that an abandoned area is being adequately
ventilated, and he agreed that in this case, such a provision was
not in the contestant's plan (Tr. 374).
On cross-examination, Mr. Eslinger conceded that he had no
actual knowledge of the integrity of the stoppings outby the
No. 23 crosscut area, and although he has seen crushed stoppings
at the Murdock Mine, this was in 1974 or 1975, and the mine was
using a variety of concrete block stoppings at that time (Tr.
377). Mr. Eslinger agreed that if MSHA were to conduct a ventilation survey of the abandoned panel in question similar to the
survey done by Mr. Mitchell, the methodology it would follow
would be the same basic methodology followed by Mr. Mitchell (Tr.
378). However, rather than in indulging in probabilities based
on computerized analysis, he would prefer to clean up the falls
and clear out entranceways so that one can travel all the way
around to the four corners of the panel (Tr. 379).

1821

Zeigler's Arguments
Application of Section 75.329-l(a)
Zeigler's arguments in support of its position in this case
are set forth in its posthearing brief and reply brief, and in
its motion for summary decision filed on June 1, 1990 (no ruling
was made on this motion because the case proceeded to an expedited hearing on the merits pursuant to Zeigler's request).
Zeigler's counsel in the instant case has raised the same issue,
and has advanced an identical argument with respect to the applicability of section 75.329-l(a), in several pending contest
proceedings heard by Commission Judge Morris on March 13, 1990,
Wyoming Fuel Company v. Secretary of Labor (MSHA), Docket Nos.
WEST 90-112-R through WEST 90-116-R.
Zeigler's counsel furnished
the presiding judge in the instant case, as well as MSHA's
counsel, with copies of the posthearing briefs filed with Judge
Morris, and has incorporated the arguments advanced in that
proceeding as well as the summary decision motion, with the
arguments advanced in the instant matter.
Relying on the language found in statutory standard section
75.329, (on or before December 30, 1970), and the language found
in the cited regulatory standard section 75.329-l(a), (.Q.y
December 30, 1970), Zeigler maintains that when read together,
these standards, on their face, only apply to mine areas which
were pillared or abandoned prior to December 30, 1970, and do not
apply to mine areas established or opened subseguent to that
date. Since the unrebutted evidence adduced by Zeigler in this
case establishes that the cited 2nd west panel of the mine was
initially developed on December 8, 1987, it takes the position
that section 75.329-l(a), does not apply to the cited mine area.
Citing several court decisions dealing with statutory and
regulatory construction, Zeigler asserts that the plain meaning
of any statutory or regulatory language is conclusive unless a
clear legislative intent to the contrary can be demonstrated, and
it takes the position that section 75.329-l(a) must be analyzed
in light of its plain meaning and congressional intent.
In
support of its argument that section 75.329-l(a), is applicable
only to mine areas abandoned prior to December 30, 1970, Zeigler
points out that according to its plain language, the application
of this section was limited to areas which were pillared or
abandoned prior to December 30, 1970, and that the congressional
intent to limit the application of this section is evidenced by
(1) the use of past tense ("have been . . . extracted" and
"abandoned") in conjunction with the time limitation of "by
December 30, 1970 11 and (2) the directive found in section
75.329-l(b).
Zeigler concludes that congress's use of the past
tense in section 303(z) (2) of the 1969 Coal Act, and the
Secretary's use of it in the supplementary section 75.329-1,
demonstrate an intent to extend those requirements only to areas

1822

pillared or abandoned prior to December 30, 1970 and to require
only those areas to be ventilated or sealed "by" that time.
Citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 56 (1987), in support of its
statutory construction argument with regard to the words "by
December 30, 1970 11 found in section 75.329-l(a), Zeigler quotes
the following from the Court's opinion:
"Congress could have
phrased its requirement in language that looks to the (future)
. . . , but it did not choose this readily available option.
Moreover, Congress has demonstrated in yet other statutory
provisions that it knows how to avoid this (retro)spective
implication by using language that targets wholly (prospective
events)." As examples, Zeigler makes reference to 30 C.F.R.
§ 75.326 ("[i]n any coal mine opened after March 30, 1970);
30 c.F.R. § 75.330 ("[i]n the case of mines opened on or after
March 30, 1970 or in the case of working sections opened on or
after such date in mines open prior to such date"); 30 C.F.R.
§ 75.500 ("[o]n or after March 30, 1971"); 30 C.F.R. § 75.501
("[o]n or after March 30, 1974 11 ) .
Assuming that the plain language of section 75.329-l(a) is
not sufficiently clear, Zeigler maintains that the directive of
section 75.329-l(b) leaves no doubt that the intent of section
75.329-l(a) was to require that only areas of mines in existence
when the 1969 Coal Act was passed be ventilated or sealed prior
to December 30, 1970. Zeigler notes that section 75.329-l(a)
provides that if an area of a mine existing in 1969 could be
ventilated, MSHA had to be notified and approve.
(The evidence
in this case establishes that Zeigler has never sought approval
from MSHA to ventilate the abandoned area in question, and
Zeigler has apparently never been cited for its failure to do
so). The timing for notification and approval is specified in
section 75.329-l(b) as follows:
The request for permission to ventilate such areas
must be submitted in time to allow consideration of the
request, to obtain approval, and to permit the operator
to install the ventilation system, or to install seals

1 zeigler points out that the word "by" means "[b]efore a
certain time; . . . not later than a certain time; on or before a
certain time . . . . " Black's Law Dictionary 172 (5th ed. 1979).
The dictionary is evidence of common usage, Puerto Rican Cement
Co., 4 FMSHRC 997, 998 n. 1 (1982) (citing 2A Sutherland,
Statutes & Statutory Construction§ 46.02 at 52 (4th ed. 1973)),
to which adjudicatory bodies often refer to deciding matter of
statutory construction. See Phelps Dodge Corp., 681 F.2d at
1192; Jim Walter Resources, Inc., 7 FMSHRC at 496.

1823

in the event the request to ventilate is denied, on or
before December 30, 1970.
(Emphasis added).
Zeigler concludes that the only interpretation of sections
75.329 and 75.329-l(a) consistent with the statutory scheme is
that these regulations required only areas already pillared or
abandoned prior to December 30, 1970 to be ventilated or sealed.
Gwaltney of Smithfield, 484 U.S. at 59. It further concludes
that any other reading would make section 75.329-l(a) incomprehensible, violating the rule of construction that regulations
must be interpreted "as a whole, in light of the overall statutory and regulatory scheme," Campesinos Unidox v. United States
Department of Labor, 803 F.2d 1063, 1069 (9th Cir. 1986), "to
give them a harmonious, comprehensive meaning, giving effect
. . . to all provisions." Mccuin v. Secretary of Health & Human
Services, 817 F.2d 161, 168 (1st Cir. 1987) (citing Weinberger v.
Hynson, 412 U.S. 609, 631-32 (1973)).
Zeigler argues that in 1969, Congress was concerned with
methane accumulations in areas of mines that (1) were being
pillared, (2) had been pillared or abandoned, or (3) would be
pillared or abandoned. H.R. Rep. No. 91-563, 9lst Cong.,
1st Sess. 20-21, reprinted in HOUSE COMMITTEE ON EDUCATION AND
LABOR, 91ST CONG., 2D SESS., LEGISLATIVE HISTORY OF THE COAL MINE
HEALTH AND SAFETY ACT 578-79 (Comm. Print 1970) ("LEGISLATIVE
HISTORY").
Zeigler asserts that Congress enacted section 303(z)
of the 1969 Coal Act to deal with methane accumulations in the
three situations described above:
1. Section 303(z) (1) requires operators to ventilate an area "[w]hile pillars are being extracted" from
it. That section of the 1969 Act was incorporated
without amendment in 30 C.F.R. § 75.328.
2. Section 303(z) (2) required operators "within
nine months after the operative date of this subchapter" (by December 30, 1970) to ventilate or seal all
areas in existing mines which had been pillared or
abandoned. That section was incorporated without
amendment in section 75.329, which was supplemented by
section 75.329-1.
3. Section 303(z) (3) requires mines and sections
of mines opened after the 1969 Act's effective date
(March 30, 1970) to be designed so that abandoned
sections can be sealed in accordance with an approved
plan. That section became section 75.330 of the
regulations.
Zeigler further argues that even assuming that this plain
statutory scheme, "admitt(ed) a smidgen of ambiguity sufficient
to allow a look at the legislative history, it provides no basis

for overturning . . . the clear meaning of [the regulation],"
International Union, UMWA v. MSHA, 900 F.2d at 386 (D.C. Cir.
1990), because both the House Report and the Conference Report
bolster the interpretation that section 75.329 (and the supplementary section 75.329-1) were intended to apply to sections of
mines already in existence when the 1969 Coal Act became effective (giving the affected mines 9 months to ventilate or seal
those areas), leaving section 75.330 to deal with sections of
mines opened after the 1969 Act's effective date.
Zeigler points out that the House Report distinguishes the
requirements for existing sections of mines from those for new
sections of mines (and new mines) as follows:
Seals and bulkheads shall be used to isolate in an
explosion-proof manner all abandoned areas in ex1sting
mines.
[§ 303(z) (2) of the 1969 Act, §§ 75.329,
75.329-1].
In addition, wherever possible, new areas
of existing mines will be "sectionalized" with explosive-proof sealing when abandoned, that is isolated
from active sections.
[§ 303(z) (3) of the 1969 Act,
§ 75.330].
In new mines, opened after the operative
date of the act, it is intended that the mining system
be such as to permit isolation by explosion-proof
bulkheads of each section of a mine as it is abandoned.
[§ 303 (z) (3) of the 1969 Act, § 75.330].
H.R. Rep. No. 91-563, 91st Cong., 1st Sess. 21, reprinted in
LEGISLATIVE HISTORY at 579 (Emphasis added) .
Zeigler asserts that the same tripartite statutory scheme
for regulating active pillar sections, areas already pillared or
abandoned, and finally, areas to be pillared or abandoned, is
evident in the Conference Committee's explanation of how the
three subparts of 303(z) of the Act work in tandem to regulate
present, past, and future conditions:
The House amendment provided for the ventilation
of areas of the mine while actively being Pillared in a
manner approved by the Secretary or his inspector.
It
also provided that, within 9 months after enactment,
all mines which are or which have been abandoned must
be sealed or ventilated, as determined by the Secretary
or his inspector.
The Secretary could permit a further
time extension of 6 months.
It described how adequate
the ventilation should be and the method of sealing.
In new mines and new working sections, a plan requiring
sealing would be required.

*

*

*

*

1825

*

*

*

The conference substitute is adopted after the
House amendment.
Under this substitute, paragraph (1) of section
303(z) [§ 75.328] requires that areas which are
actively being pillared must be ventilated in the
manner otherwise prescribed under section 303.

*

*

*

*

*

*

*

Under the conference substitute paragraph (2) of
section 303(z) [§ 75.329] provides that, within
12 months after enactment, all areas from which pillars
have been wholly or partially extracted, and abandoned
areas shall be ventilated by bleeder entries or by
bleeder systems or by equivalent means or be sealed.

*

*

*

*

*

*

*

Under the conference substitute, paragraph (3) of
section 303(z) provides that, in the case of mines
opened on or after the operative date of this title, or
in the case of areas developed on or after such date in
mines opened prior to such date, the mining system
shall be designed, in accordance with a plan and
revisions thereof approved by the Secretary and adopted
by the operator, so that, as each set of cross entries,
room entries, or panel entries of the mine are abandoned, they can be isolated from the active workings of
the mine with explosion-proof bulkheads approved by the
Secretary or his inspector.
H.R. Rep. No. 91-761, 91st Cong., 1st Sess. 81-82, reprinted in
LEGISLATIVE HISTORY at 1043-44 (emphasis added).
Zeigler concludes that the statutory and regulatory
language, the statutory scheme, and the legislative history lead
to only one conclusion: Sections 75.329 and 75.329-l(a) apply
only to sections which were pillared or abandoned prior to
December 30, 1970.
Because the development of the cited 2nd West
panel of the Murdock Mine was not begun until 1987, Zeigler
further concludes that sections 75.329 and 75.329-l(a) do not
apply to it and that the contested citation must be vacated.
The Alleged Violation of Section 75.329-l(a}
Zeigler points out that Inspector Stritzel and his supervisor, Mark Eslinger, both testified that to show an abandoned
area is ventilated in accordance with section 75.329 and
75.329-l(a) (1), the operator must be able to determine that the
abandoned area is being ventilated and (2) it must make that
determination by travelling the abandoned area to its point of

1826

deepest penetration. However, Zeigler argues that these requirements are not in section 75.329 and 75.329-l(a), but are found in
MSHA's proposed ventilation regulations which have not as yet
been promulgated as mandatory standards. See:
53 Fed. Reg.
2382, January 27, 1988.
Reviewing MSHA's proposed new ventilation regulations,
Zeigler argues that proposed ventilation regulation section
75.334(a}, which is derived from current sections 75.329 and
75.316, would require that worked-out areas which have not been
pillared "shall be ventilated so that gases from throughout the
worked-out areas are routed into a return air course or to the
surface of the mine, or they shall be sealed." 53 Fed. Reg.
2417. However, Zeigler points out that proposed section 75.334
would have to be read in conjunction with proposed section 75.364
(covering weekly examinations underground), which would apply to
worked-out areas where no pillars have been recovered, a·nd "would
generally require weekly travel to the area of deepest penetration, and measurements and tests at locations where the effectiveness of the ventilation system can be determined."
53 Fed. Reg. 2394, 2417, 2420.
Zeigler concludes that the inspector applied the requirements of the proposed and unpromulgated ventilation regulations
cited above to the cited abandoned panel in question in this case
and that he issued the citation because he could not physically
follow the flow of air "to the deepest depth" of the panel and
therefore could not determine where the air was going on the
panel. However, Zeigler points out that the words "deepest
penetration" or "deepest depth" apply only in the proposed rules
and that Mr. Eslinger was unable to identify any regulation in
Part 75 which contained these words, and that only the proposed
rules--not the existing ones--would impose mandatory requirements
on operators to determine "the effectiveness of the ventilation
system." Under these circumstances, Zeigler maintains that the
inspector "jumped the gun" by engrafting proposed requirements
onto existing section 75.329-l(a).
Because the inspector applied
these "homegrown" requirements drawn from tentative proposals in
issuing the citation, Zeigler concludes that he held it to a
standard not found in section 75.329-l(a), and for this reason,
the citation must be vacated.
Zeigler further argues that MSHA's position that Zeigler
must initially show that an abandoned area is ventilated to
demonstrate compliance with section 75.329-l(a), and that MSHA
need not show the opposite to prove a violation, cannot be sustained because the burden is on MSHA to prove a violation.
Unlike proposed sections 75.334 and 75.364, which would require
the operator to test ventilation of a worked-out area where it
can determine its effectiveness, Zeigler points out that no
similar requirements is found in section 75.329-l(a), and that

1827

this section only requires that an abandoned area existing in a
mine opened prior to December 30, 1970, be ventilated or sealed.
Zeigler concludes that assuming section 75.329-l(a) can be
applied by MSHA in this case, in order to sustain a violation of
that standard, the burden of proof is on MSHA to show that the
cited panel was not ventilated or not sealed. Since the inspector admitted that he could not determine whether the cited panel
was ventilated and informed mine management that he was issuing
the citation because "we couldn't get to the head end of the
section and determine if it was being ventilated or not," Zeigler
concludes that MSHA has failed to prove a violation and that the
citation must be vacated on that basis.
Zeigler observes that
even if there were a requirement that ventilation of an abandoned
area be determined only by travelling to the point of deepest
penetration, in a case such as the instant one, MSHA VL.Ould never
be able to prevail. If the inspector were unable to travel the
section to its deepest point, then MSHA would never be able to
prove by a preponderance of the evidence that the area was not
ventilated.
Even assuming the application of section 75.329-l(a), to the
cited panel, Zeigler maintains that the evidence in this case
establishes that the cited panel was in fact ventilated when the
citation was issued. Contrary to MSHA's position that the
inspector cited a violation because he could not determine with
absolute certainty that the cited panel was being effectively
ventilated by walking the panel to the point of deepest penetration, Zeigler maintains that it has demonstrated with reasonable
certainty that the panel was being effectively ventilated, that·
this is sufficient to establish compliance with the standard, and
that its proof with reasonable certainty that the panel was being
ventilated outweighs MSHA's allegations to the contrary.
Zeigler argues that its showing with reasonable certainty
that the cited panel was in fact ventilated when the citation was
issued is consistent with the preponderance-of-the-evidence
standard applicable in Commission proceedings and that the concept of absolute certainty does not exist when it comes to
proving violations of the Act; rather, the focus is on probabilities.
Zeigler believes that to prove a violation, MSHA must show
by a preponderance of the evidence, and not with absolute certainty, that a violation exists.
Zeigler concludes that to prove
a violation by a preponderance of the evidence, MSHA must show
that it was more probable than not that the cited panel was not
ventilated. And, assuming a prima facie showing by MSHA, Zeigler
has to show that it was more probable than not that the panel was
ventilated, and it believes that it has done so in this case.
In support of its assertion that MSHA has not established a
violation by a preponderance of the evidence, Zeigler points out
that other than the smoke tube tests performed by the inspector,

1828

MSHA produced no evidence to show that methane and other gases
were not rendered harmless and carried out of the cited panel.
In contrast, Zeigler believes that through the testimony of its
expert witness Don Mitchell, it has proved by a preponderance of
the evidence that the cited panel was ventilated.
In support of
this conclusion, Zeigler relies on the testimony and facts presented by Mr. Mitchell with respect to analyses derived from his
observations and data, which included a ventilation survey and
computer analysis of the cited panel (exhibit C-5), methane
readings, bottle samples reflecting concentrations of methane,
carbon dioxide, and oxygen on the panel, airflows on the panel,
and measured pressure differentials.
(Zeigler's detailed discussion and conclusions concerning Mr. Mitchell's analyses and
findings are set forth at pages 16 through 22 of its posthearing
brief).
Zeigler concludes that compared to MSHA's inconclusive
smoke tube tests, Mr. Mitchell's irrefutable conclusions,_ based
on undisputed accepted scientific principles and methodology,
constitute the preponderance of evidence clearly supporting its
position that the cited panel was in fact ventilated in compliance with the cited regulatory standard.
Reasonableness of the Abatement Time
Assuming a violation occurred, Zeigler argues that the time
fixed by the inspector for abatement was unreasonable because he
arbitrarily settled on a 30-day abatement period without considering the disruptive effect it would have on the operations of
the mine.
Zeigler suggests that the inspector set a 30-day
abatement period with the idea that operations would be disrupted, and in support of this conclusion it cites the inspector 1 s testimony that notwithstanding his belief that there was a
lack of personnel to construct seals he "set thirty days as a
time element so that he could see some work being accomplished in
thirty days" (Tr. 52, 68).
Citing Freeman Coal Mining Corp., 1 IBMA 1, October 5, 1970,
holding that the availability of equipment and the operator's
difficulties in abatlng the cited conditions are relevant considerations in setting an abatement time, Id. at 25-27, Zeigler
asserts that the inspector ignored the Board's admonition that
''where a longer abatement period will vastly reduce the cost of
abatement or the operational disruption, without exposing the
miners to significant danger, we think an order fixing the longer
period would be reasonable," Id. at 27.
Zeigler points out that
although the inspector testified that the existence of a hazard
resulting from the alleged violation would be unlikely, he did
not adjust the abatement time accordingly to avoid the complete
disruption of mining operations and did not consider how long it
would take to construct the seals because he had already decided
that he would set 30 days as an abatement period even before he
went underground to inspect the panel.
In support of this conclusion, Zeigler cites the unrebutted testimony of superintendent

1829

Roper that the inspector informed general mine foreman Carpenter
on May 10, 1990, that the panel would have to be sealed within
30 days.
Zeigler asserts that the inspector's "calculation" and
belief that 30 days was sufficient to permit rehabilitation work
to be done and seals to be constructed bore no relation to
Mr. Roper's estimate that the work would normally take more than
2-1/2 months.
Zeigler states that the inspector never discussed
with mine management how long it would take to construct the
seals and told Mr. Roper that no extensions in abatement time
would be granted.
Zeigler points out that although the inspector
claimed not to remember making this statement to Mr. Roper, he
conceded that he might have told him that no abatement time
extensions would be granted (Tr. 69). Under all of these circumstances, Zeigler concludes that the inspector acted improperly by
"blindly" imposing a 30-day abatement period without considering
the available manpower and the disruptive effect such an abatement period would have on its operations.
MSHA's Arguments
Application of Section 75.329-l(a)
MSHA takes the position that section 75.329-l(a), required
Zeigler to either ventilate or seal the cited abandoned area, and
that this was a continuing requirement which has not expired.
MSHA also asserts that Zeigler could not demonstrate on May 17,
1990, that the cited panel was being adequately ventilated, and
that the 30-day abatement time given by the inspector was reasonable considering the information he had on May 17, 1990.
In support of its argument that section 75.329-l(a), has
current application, MSHA argues that the underlying statutory
provision found in section 303(z) (2) of the 1969 Coal Act contains no specific expiration date, but merely states "within nine
months . . . all areas . • . shall be ventilated • . . or be
sealed." MSHA concludes that this statutory requirement for
sealing or ventilated abandoned mine areas has current application to the cited abandoned mine panel and continues to be applicable to all coal mines. MSHA states that Zeigler's expert
witness, Don Mitchell, acknowledged that the protections incorporated into section 75.329-l(a) should be applicable to present
day mines, and it concludes that the reason for this is because
the hazards of a methane build-up in abandoned mine areas must
still be addressed in 1990.
MSHA asserts that it has not promulgated any new standards
which supersede the requirements of section 303(z) (2) of the 1969
or 1977 Acts, and that the only difference between section
303(z) (2) and 30 C.F.R. § 75.329-l{a) is that a specific date
(December 30, 1970) is mentioned in the standard. MSHA concludes

1830

that since Congress has stated its position that abandoned mine
areas must be properly ventilated or sealed on two separate
occasions, 8 years apart, it is clear that it intended this
standard to be an ongoing requirement for all underground coal
mines.
MSHA argues that Zeigler's interpretation of section
75.329-(a), implies that section 303(z) (2) of the 1977 Act was
superfluous when it was enacted. MSHA concludes that if
Zeigler's interpretation that the requirements of section
303(z) (2) expired on December 30, 1970, is correct, then it would
follow that there was no requirement for ventilation of abandoned
mine areas until the passage of the 1977 Act, with the added
implication that the 1977 Act required ventilation only for a
9-month period. MSHA views this interpretation as a "t-ortured"
interpretation of the two statutes which would result in a standard being in effect for 9 months in 1970 and for 9 months in
1978, with no protection during the 8 years in between, nor for
the time period since November 1978.
MSHA states that while many provisions of the 1969 Act
became obsolete and were removed from the 1977 Act, the language
of section 303(z) (2) was repeated word for word, and it concludes
that it must be assumed that Congress knew what it was doing in
1977 when it repeated the language which Zeigler claims was
obsolete 7 years earlier.
By repeating this language from the
1969 Act in the 1977 Act, MSHA further concludes that Congress
intended to continue the protections afforded by section
303(z)(2).
Referring to mandatory standard 30 C.F.R. § 75.316, which
requires a mine operator to adopt a ventilation system and
methane and dust-control plan, and which contains language ("on
or before June 28, 1970''), which is similar to the language found
in section 75.329-l(a) ("by December 30, 1970 11 ) , MSHA suggests
that acceptance of Zeigler' s "plain meaning" argument would lead
to the conclusion that section 75.316 expired on June 28, 1970.
Such a result, argues MSHA, would reduce the safety of every coal
miner, and it points out that section 75.316 has never been
enforced in such a restrictive manner. MSHA further concludes
that the acceptance of Zeigler's argument would also be used to
negate the applicability of a number of other important safety
standards, and would result in some serious consequences affecting the safety of miners.
MSHA believes that the dispute in this case is the result of
a fundamental difference in the meaning of the dates specified in
section 303(z) (2) of the 1969 and 1977 Acts, and that Zeigler
believes that these are expiration dates, while MSHA contends
that these are effective dates. MSHA believes that Zeigler's
interpretation makes no sense since Congress clearly could not
have intended for these ventilation provisions to apply only to

1831

certain mines for only two distinct 9-month periods, and that the
only logical conclusion is that the language of section 303(z) (2)
and 30 C.F.R. § 75.329-l(a) provided a grace period during which
mine operators could prepare to comply with the ventilation
requirements.
In MSHA's view, Zeigler's argument that section 303(z) (3) of
the Act is the only appropriate standard for mines (or mine
sections) opened after December 30, 1970, is totally without
merit since section 303(z) (3) and 30 C.F.R. § 75.330 only require
that mining systems be designed with a plan which will allow the
sealing of abandoned areas, whereas section 303(z) (2) reguires
ventilation or sealing of such areas. MSHA asserts that following Zeigler's contentions to their logical conclusion means that
mines opened after December 30, 1970, need only provide for the
possibility of sealing abandoned areas, but not the requirement
for ventilating or sealing such areas.
The Alleged Violation of Section 75.329-l(a)
MSHA takes the position that the citation was properly
issued because the inspector could not determine, nor could
Zeigler demonstrate to him, whether there was sufficient air
movement in the abandoned panel to render harmless or carry away
any concentrations of methane or other dangerous gases. MSHA
points out that when the inspector traveled up the intake side of
the panel to the No. 13 crosscut, he and the general mine foreman
could travel no further because a massive roof fall had blocked
the entry, and the return side of the panel at the No. 13 crosscut was also blocked. Through the use of two smoke clouds, the·
inspector confirmed that there was little, if any, air movement
over the fall, inby where the inspector was standing.
MSHA points out that since the inspector could not travel
beyond crosscut No. 13, he had no way of knowing how much air was
ventilating the remaining two-thirds of the abandoned panel, and
the inspector testified that the only method he had to determine
if the panel was being adequately ventilated was to physically
walk to the back corners of the panel (the point of deepest
penetration) to make his checks for hazardous conditions. Even
assuming that some air was moving over the fall at crosscut
No. 13, MSHA concludes that there was no way of knowing how far
the air was going beyond that point. Since it was likely that
additional roof falls existed throughout the back area of the
panel, MSHA suggests that air could be travelling up a few crosscuts, and then cutting across into the return, without ventilating mo$t of the back portion of the panel. MSHA concludes that
the inspector issued the citation and cited a violation of section 75.329-l(a), based on the information that he had on May 17,
1990, and because he found no evidence of adequate ventilation in
the panel.

1832

MSHA asserts that both of its witnesses indicated that if an
operator decided to ventilate an abandoned panel, it has to clean
up the roof falls and establish an air course so that mine
examiners can physically travel to key locations to take air and
methane readings. MSHA asserts that most mine operators decide
to seal abandoned areas because reestablishing ventilation after
a roof fall has occurred may be difficult or impossible. MSHA
points out that Zeigler had the option of sealing the entire
panel or sealing outby the fall area at the No. 13 crosscut, and
if it did the latter, a weekly examination for hazardous conditions, pursuant to section 75.305, would have to be made up to
that crosscut.
MSHA cites the testimony of mine superintendent Roper that
weekly examinations for hazardous conditions were stopped in
December 1989, after roof falls blocked the entries iriby crosscut
No. 13, and that instead of travelling up the entry to check for
hazardous conditions, a preshift examination was performed at the
mouth of the panel to check for methane and air flow going into
the panel and coming out the return side. MSHA asserts that such
a preshift examination is not an adequate substitute for the
weekly examination which requires the abandoned entry to be
traveled as far as it is safe to go. MSHA concludes that without
physically walking the panel, Zeigler had no way of knowing if
there were any hazardous conditions in the panel after December,
1989, and that it is inconsistent for Zeigler to argue that it
was making a serious effort to ventilate the panel on May 17,
1990, without having qualified examiners checking for hazardous
conditions on a regular basis.
MSHA maintains that the intent of 30 C.F.R. § 75.329-l(a)
contemplates a process where a mine operator requests permission
to ventilate an abandoned panel and gives the MSHA District
Manager sufficient data for him to make a determination that the
abandoned area is being adequately ventilated. This data, which
can be submitted as a part of an operator's ventilation plan or
by separate letter, must be submitted to the MSHA District
Manager to allow him sufficient amount of time to act on the
operator's request. MSHA asserts that an operator should not be
allowed to wait until a citation is issued before collecting
sufficient data in the abandoned area, to determine if it is
being properly ventilated, and it suggests that this is what
Zeigler is attempting to do in this case.
MSHA asserts that the methane and air readings collected in
the cited panel on May 18 and June 20, 1990, do not in any way
rebut the inspector's findings in the citation because low
methane readings, taken by Zeigler in the front areas of the
abandoned panel, are not a good indication of continued low
methane levels for the entire panel. When there are roof falls
similar to those present in the cited panel, methane can become
trapped behind the falls and pockets of methane can be present.

1833

MSHA concludes that without proper ventilation an operator cannot
assume that methane accumulations will not migrate from the
abandoned panel to active workings, nor can it protect against
explosive levels of methane occurring in the abandoned areas.
MSHA views the testimony of Zeigler's safety director (David
Stritzel), that he was sure the back area of the panel was being
ventilated because he believed that the block stoppings constructed in the abandoned panel were still intact, as mere speculation because no one had recently observed these stoppings, and
MSHA's expert witness (Eslinger) testified that he had observed
solid block stoppings crushed out at the Murdock Mine on previous
occasions.
In summary, MSHA submits that whether there is a violation
of 30 C.F.R. § 75.329-l(a) depends on the adequacy of tn~ ventilation in the entire abandoned panel, not on after-the-fact
methane and CO readings taken at various outby locations. MSHA
believes it is essential to know if ventilation can be maintained
by directing the air flow throughout the abandoned panel, including the back corners. Relying on the testimony of its witnesses,
MSHA concludes that the only way to determine if ventilation is
being maintained is to actually travel up to the point of deepest
penetration of the abandoned panel to take methane and air
readings.
Reasonableness of the Abatement Time
MSHA takes the position that usually, the only time the
issue of reasonable time for abatement is raised in a contest
proceeding is after a section 104(b) order is issued for failure
to abate a citation and a mine operator is contending that the
citation should be further extended. MSHA points out that there
is a lack of case law on what constitutes a reasonable abatement
time of an original citation, and that the obvious reason for
this is that once the citation abatement time is extended or the
citation is abated, a determination of whether the original
abatement time was reasonable becomes moot.
MSHA points out that the abatement time for the citation was
June 18, 1990, and that it was extended to August 1, 1990, after
the hearing.
The citation was subsequently terminated on July
16, 1990, after the cited abandoned panel was sealed by Zeigler.
Since Zeigler would be entitled to a determination of whether the
original abatement time was reasonable only if a section 104(b)
were issued, and since no such order was in fact issued, MSHA
concludes that any ruling on this issue at this point of the
proceeding would be a mere academic exercise since Zeigler has
already received all of the abatement relief it needed.

1834

Findings and Conclusions
The Application of Section 75.329-l(a)
Mandatory safety standard 30 C.F.R. § 75.329 mirrors section
303(z) (2) of the 1977 Mine Act, and it was carried over without
amendment from the 1969 Coal Act. Section 75.329 states as
follows:
§

75.329

Bleeder systems.
[Statutory Provision)

On or before December 30, 1970, all areas from
which pillars have been wholly or partially extracted
and abandoned areas, as determined by the Secretary or
his authorized representative, shall be ventilatea-by
bleeder entries or by bleeder systems or equivalent
means, or be sealed, as determined by the Secretary or
his authorized representative. When ventilation of
such areas is required, such ventilation shall be
maintained so as continuously to dilute, render harmless, and carry away methane and other explosive gases
within such areas and to protect the active workings of
such mine from the hazards of such methane and other
explosive gases. Air coursed through underground areas
from which pillars have been wholly or partially
extracted
which enters another split of air shall not
.
contain more than 2.0 volume per centum of methane,
when tested at the point it enters such other split.
When sealing is required, such seals shall be made in
an approved manner so as to isolate with explosionproof bulkheads such areas from the active workings of
the mine.
(Emphasis added).

.

The cited mandatory section 75.329-l(a) in this case, is a
supplementary regulation promulgated by the Secretary of the
Interior on March 28, 1970, 35 Fed. Reg. 5236, and it provides as
follows:
§ 75.329-1
Sealing or ventilation of pillared or
abandoned area.

(a) All areas of a coal mine from which the
pillars have been wholly or partially extracted and
abandoned areas shall be ventilated or sealed by
December 30, 1970. For those coal mines in which
ventilation can be maintained so as to continuously
dilute, render harmless and carry away methane and
other explosive gases within such areas and to protect
the active workings of the mine from hazards of such
methane and other explosive gases, the operator shall

1835

request permission from the Coal Mine Safety District
Manaqer in whose district the mine is located to ventilate such areas.
(Emphasis added).
Subsections (b) and (c) of section 75.329-1, provide as
follows:
(b)
The request for permission to ventilate such
areas must be submitted in time to allow consideration
of the request, to obtain approval, and to permit the
operator to install the ventilation system, or to
install seals in the event the request to ventilate is
denied, on or before December 30, 1970.
(c)
The determination of whether ventilation will
be permitted will be made after taking into consid€ration the history of methane and other explosive gases
in the mine, the size of the gob or abandoned areas,
and if the areas can be ventilated adequately.
Subsections (d) (e) and (f) of section 75.329-1, concern the
information required to be submitted by the mine operator for
consideration by MSHA with respect to the request for permission
to ventilate an abandoned mine area.
The parties have cited no Commission decisions construing
the language "on or before December 30, 1970," found in section
75.329, or the language "by December 30, 1970," found in section
75.329-l(a), and I have found none. However, in two decisions
construing the application of 30 C.F.R. § 75.326, the first
sentence of which begins "In any coal mine opened after March 30,
1970," former Commission Judges Boltz and Cook followed the
literal meaning of this phrase and concluded that the standard
did not apply to mines opened before March 30, 1970. See:
C.F. & I. Steel Corporation, 3 FMSHRC 99, 104 (January 1981);
Rushton Mining Company, Docket No. PITT 73-371-P, slip op. at
pg. 22, January 31, 1975.
In the Wyoming Fuel Company case pending before Judge
Morris, supra, MSHA relied on three decisions affirming violations of section 75.329, in support of its conclusion that "the
Commission has treated this section as a valid safety standard
that is not obsolete when an abandoned area has not been sealed
or ventilated after 1970." See:
Christopher Coal Company,
decided by Judge Cook on October 18, 1976, affirmed by the
Commission on October 25, 1978, IBMA 77-7, 1 MSHC 1688 (1978);
Itmann Coal Company, 2 FMSHRC 1986 (July 1980), Commission review
denied, September 2, 1980, 2 FMSHRC (September 1980); Mettiki
Coal Cor2oration, 6 FMSHRC 1507 (June 1984).
The statutory construction issue raised by Zeigler was not
raised or addressed in the three aforementioned cases.

1836

Christopher Coal involved an established bleeder ventilation
system, and the issue presented concerned the proper location for
testing return air from a bleeder to determine whether there was
compliance with the methane concentration limit found in section
75.329.
In Itmann Coal, former commission Judge Laurenson affirmed
an imminent danger order issued by an inspector in September,
1979, citing a violation of section 75.329, for the failure by
the operator to adequately maintain the ventilation in an abandoned area to continuously dilute, render harmless, and carry
away methane and explosive gases. The cited area had previously
been closed by an imminent danger order issued in October, 1969.
Rather than attempting to abate the conditions which prompted the
issuance of that order, the operator opted to abandon the
affected area. Given the choice of sealing or ventilating the
abandoned area by bleeder entries or bleeder systems pursuant to
section 75.329, the operator chose to ventilate it, and a bleeder
system ventilation plan was adopted and approved by MSHA. The
plan included a provision requiring the operator to travel the
bleeder system "if safe."
In Mettiki Coal, Chief Judge Merlin affirmed a violation of
section 75.329, because of the failure by the operator to establish a bleeder system to ventilate a gob area. The air coursing
through the gob area was not directed through the bleeder
entries, and the misdirected air was the result of a roof fall
which blew out a metal stopping. The violation was abated by the
installation of permanent concrete stoppings, and Judge Merlin
took note of the fact that there was some confusion by the operator as to whether a bleeder system plan had ever been approved
for the mine area in question.
In Secretary of Labor v. Gateway Coal Company, 10 FMSHRC
1189 (September 1988), Judge Broderick affirmed a violation of
section 75.329, because of the failure by the operator to ventilate a travelable pqrtion of its bleeder system so as to dilute,
render harmless and carry away methane within such areas.
Citing
Judge Laurenson's decision in Itmann Coal Company, supra, Judge
Broderick concluded that section 75.329, has two distinct mandates:
(1) ventilation in bleeder entries required where pillars
have been extracted shall be maintained so as to dilute, render
harmless and carry away methane within such areas and to protect
the active workings of the mine; (2) air from such areas which
enters another split of air shall not contain more than 2 percent
methane, 10 FMSHRC 1192).
In Beckley Coal Mining Company, 3 FMSHRC 2593 (November
1981), Judge Melick vacated an alleged violation of section
75.329, which was issued because of the failure by the operator
to reduce the methane concentration to below 2 percent in a
bleeder system crosscut on an abandoned gob panel from which

1837

pillars had been wholly or partially extracted. Judge Melick
concluded that the question of whether a violation of section
75.329 exists depends on the adequacy of the ventilation system,
and not solely upon the levels of methane found in any particular
crosscut. The operator took issue with the inspector's methodology for evaluating the air movement in the cited area, and in
vacating the violation, Judge Melick concluded that the only
evidence to suggest the inadequacy of the ventilation system was
the one time series of methane readings showing a non-explosive
2 percent to 3 percent methane concentration and the inspector's
opinion that there was no perceptible movement of air. He gave
greater weight to the operator's smoke tube tests, taken the day
following the issuance of the violation, and which simulated the
same conditions found by the inspector. Those tests showed that
the released smoke moved out of the crosscut and into the
bleeder. The inspector had relied on his opinion that the air
movement was minimal, and he did not use an anemometer or smoke
tube to measure the air movement.
In Greenwich Collieries, Division of Pennsvlvania Mines
Corporation, 8 FMSHRC 1390 (September 1986), I vacated an alleged
violation of section 75.329, issued by an inspector in the course
of a mine ventilation survey. The inspector issued the violation
after finding a 3.3 percent methane accumulation at a bleeder
evaluation point which had been approved by MSHA as part of the
mine ventilation plan. I found no credible evidence to support
any conclusion that the approved plan required all bleeder evaluation points to have methane readings below 2 percent, or that
bleeder evaluation points were the only acceptable locations for
conducting methane tests to insure compliance with the requirement found in section 75.329, that air leaving a gob area and
entering another air split contain less than 2 percent methane.
I found credible the operator's evidence that its methane readings indicated decreased levels of methane outby the bleeder
evaluation points up to and including the mixing point before the
air entered the return air split. Coupled with the fact that the
operator's methane tests at a point before the air off the
bleeder joined with the air off the return showed 1.3 percent
methane, I concluded and found that the ventilation system was
being maintained so as to continuously dilute, render harmless
and carry away any explosive levels of methane.
In the Greenwich Collieries case, MSHA presented the testimony of Mr. John Kuzar, a ventilation specialist and field office
supervisor. Mr. Kuzar confirmed that the mine ventilation plan
permitted 2 percent methane at a bleeder evaluation point. He
testified that the purpose of section 75.329, is to insure positive air pressure over a gob area to dilute and render harmless
any noxious gases so that "you are showing it to the return,"
8 FMSHRC 1398. Mr. Kuzar agreed that it was possible for air
ventilation to go over a caved crosscut, depending on how tight
it was, because "it's trying to get to the return," that the

1838

distance travelled by any methane would result in diluting it as
it is moving, and that any decreased levels of methane at locations where readings are taken would indicate that the air is
diluting the methane and that it is being coursed out of the
area, 8 FMSHRC 1410, 1411.
In commenting on a mine operator's application to MSHA for
the establishment of bleeder evaluation points pursuant to section 75.329, Mr. Kuzar alluded to the fact that bleeder evaluation points were critical in mines developed "prior to the
effective date of the law" because "in those days" "good
bleeders" were not required and that mines were "normally
pillared from the solid to he solid." Mr. Kuzar stated that
"since 1969," most mine ventilation plans require "a bleeder
system that goes around the entire perimeter of that gob"
(8 FMSHRC 1399-1400). Mr. Kuzar's testimony lends supp~rt to
Mr. Mitchell's testimony that the primary intent of Congress with
respect to section 75.329, as well as section 75.329-l(a), which
he viewed as an "add-on" regulation, was to address bleeders, and
to require the construction of a bleeder system around mined-out
areas of a mine which were in existence at the time these statutory and regulatory standards were promulgated and adopted.
As noted earlier, the statutory construction issue raised by
Zeigler in the instant proceeding was not raised in Christopher
Coal, Itmann Coal, or Mettiki Coal.
Neither was it raised in any
of the other aforementioned cases in which alleged violations of
section 75.329,·were cited (none of the cases involved citations
of section 75.329-l(a)).
In each of these cases, the mine operator had established bleeder systems which were incorporated as
part of its MSHA approved ventilation plan for ventilating abandoned areas of the mine.
In the instant case, the Zeigler mine
has no bleeder entries or bleeder systems, and no pillar extraction has taken place in the cited area.
Further, the applicable
mine ventilation plan, as reviewed and approved by MSHA, does not
cover abandoned mine areas, and contains no provisions requiring
the ventilation of these areas.
The only reference to the
"deepest point of penetration," appears at paragraph 4, page 2,
of the plan, but it refers to the "deepest point of face penetration, where coal is being cut, mined, or loaded" (Exhibit C-1).
Mr. Eslinger stated that section 75.329-l(a) has generally
not been cited in his district because compliance is attempted
through the use of a ventilation plan provision to assure "the
same basic thing" required by the standard.
He confirmed that
the question of whether or not section 75.329-l(a), is limited to
December 30, 1970, has been discussed within MSHA, and MSHA has
taken the position that it is an absolute ongoing rule.
However,
Mr. Eslinger was unaware of any MSHA policy discussing the interpretation and application of this standard, and I have found
none.

1839

MSHA's proposed revisions of the Part 75 standards for
underground coal mine ventilation, as published in the Federal
Register on January 27, 1988, 53 Fed. Reg. 2382, as reported in
the BNA Mine Safety & Health Reporter, pgs. 500-542, February 5,
1988, contain no commentary on existing standard sections 75.329
or 75.329-l(a). The proposed revisions contain a new definition
of "worked out area," whether pillared or nonpillared, and it
will include all areas within the existing definition of abandoned areas. A proposed new section 75.334, which is derived
from existing section 75.329, would revise the requirements for
bleeder systems and will establish ventilation standards for
worked-out mine areas where no pillars have been recovered and
areas where pillars are being mined. Sealing would be permitted
in lieu of ventilating worked-out areas, and sealing would be
required if the results of air measurements indicate that the
ventilation system is not effectively moving gases out--of a
worked-out area. Proposed section 75.364, would require weekly
travel to the area of deepest penetration, and measurements and
tests to determine the effectiveness of the ventilation system.
Zeigler's evidence reflects that prior to its abandonment in
November or December, 1987, the cited panel was being ventilated
by an air course which circumvented the perimeter of the panel.
After it was abandoned, Zeigler made plans to eventually seal the
area after completion of development in another area, but continued to ventilate it. However, there is no evidence that
Zeigler ever sought or received permission from MSHA pursuant to
section 75.329-1, to continue ventilating the abandoned area and
it has never been cited for failing to do so. The applicable
ventilation plan contains no provisions or requirements for
ventilating the area, and no explanation was forthcoming from
MSHA as to why the ventilation plan was approved without such a
requirement.
Although MSHA's conclusion that it must be assumed that
Congress knew what it was doing when it repeated the language
found in section 75.329 of the 1969 Act word for word in the 1977
Act and intended to continue the application of this section as
an ongoing requirement for all underground mines is inviting, I
find it less than persuasive.
I agree with Zeigler's argument
that the legislative history shows that Congress intended to
leave the interim mandatory standards of Title III of the 1969
Act intact, leaving the business of promulgating new or revised
standards to MSHA.
I also agree with Zeigler's assertion that
since Congress did not change Title III, the legislative history
of the 1969 Act still serves as an interpretive statutory guide,
and that the relevant legislative history is that which rerates
to sections 303 (z) (1), (z) (2) and (z) (3) of the 1969 Act.
MSHA has not promulgated any new standards which supercede
sections 75.329 and 75.329-l(a), and only recently engaged in
rule-making proposing revisions of its Part 75 requirements for

1840

underground coal mine ventilation. As noted earlier, MSHA's
proposed revisions contain no commentary on existing standard
sections 75.329 or 75.329-l(a), and MSHA has not published any
definitive policy guidelines dealing with the interpretation and
application of section 75.329-l(a). With respect to section
75.329, which is directed to bleeder systems (which are not used
in Zeigler's mine), MSHA's current Program Policy Manual, July 1,
1988, discusses abandoned mine areas ventilated by bleeder
systems and bleeder entries. The policy requires a mine operator
to submit ventilation plans covering the use of bleeder entries,
bleeder systems, "or equivalent means" to MSHA's district manager
for approval. The term "or equivalent means" is not further
explained. The policy further mandates the sealing of an abandoned area should the bleeder system prove inadequate, or in the
event the methane concentrations exceed 2.0. However, if an
operator can show that such conditions can be corrected hy modification of the mine ventilation or bleeder system, it must apply
to MSHA for approval.
MSHA's assertion that Mr. Mitchell acknowledged that section
75.329-l(a), should be applicable to present day mines must be
taken in context. The record reflects that Mr. Mitchell qualified his statement. When asked on cross-examination "If the
intent of 329-l(a) was . . . to require in abandoned areas to
ventilate or seal, . . . shouldn't (that requirement) also be
applicable to present day mines," Mr. Mitchell replied "It should
be; it isn't" (Tr. 335) (emphasis added). Mr. Mitchell further
testified as follows at (Tr. 323-324):
ADMINISTRATIVE LAW JUDGE KOUTRAS:
* * * [A]re you
telling me that assuming that the general rule is that
you leave abandoned areas alone and that's a matter of
concern, then shouldn't MSHA have some clear standard
or at least clarified or amended or gone through rule
making to specifically and clearly require abandoned
mine areas in all of the mines, that they be
ventilated?
THE WITNESS: And the manner by which they enter -define what they mean by ventilation.
ADMINISTRATIVE LAW JUDGE KOUTRAS:
should do that?
THE WITNESS:

You think they

Yes, sir.

ADMINISTRATIVE LAW JUDGE KOUTRAS: That hasn't been
done.
It's their judgment it's already on the books,
75.329-1?
THE WITNESS:

Yes, sir.

1841

ADMINISTRATIVE LAW JUDGE KOUTRAS:
THE WITNESS:

You understand that?

Yes, sir.

ADMINISTRATIVE LAW JUDGE KOUTRAS:

You disagree?

THE WITNESS:
I only disagree it cannot apply and
cannot be intended to apply when written in 1970.
After careful consideration of the arguments advanced by
Zeigler, I conclude and find that the legislative history of the
1969 Act, as cited and discussed by Zeigler in its brief, and the
credible testimony of Mr. Mitchell, supports Zeigler's conclusion
that Congress intended that section 75.329 apply only to abandoned mine areas already in existence when the 1969 Coal __Act
became effective.
I find persuasive Zeigler's arguments that
Congress's use of the past tense in the legislative history of
section 75.329 demonstrates an intent to apply those requirements
only to mine areas abandoned prior to December 30, 1970, and to
require only those areas to be ventilated.
I agree with
Zeigler's assertion that if Congress had intended future application of section 75.329, it would have incorporated language
mandating future compliance as it did in numerous other mandatory
statutory provisions found in Part 75 (g.g. "in any coal mine
opened after March 30, 1970, 11 30 C.F.R. § 75.226; "in the case of
mines opened on or after March 30, 1970 or in the case of working
sections opened on or after such date in mines open prior to such
date," 30 C.F.R. § 75.330; "on or after March 30, 1971,"
30 C.F.R. § 75.500; and "on or after March 30, 1974, 11 30 C.F.R.
§

75.501).

I agree with Zeigler's assertion that section 75.329-1 was
an "add on" to section 75.329, which addresses bleeder systems,
and was intended to allow a mine operator to comply by building a
bleeder system around an existing abandoned area. My interpretation of this section is that if an operator could not comply with
section 75.329, by erecting a bleeder system }2y December 30,
1970, it had to seal the abandoned area or request approval from
MSHA if it wished to continue ventilating the area by a ventilation method other than a bleeder system. Subsection (e) of
section 75.329-1, required an operator to include a description
of the alternative ventilation system proposed for the abandoned
area. However, pursuant to subsection (b) of section 75.329-1,
the request had to be submitted "in time to allow consideration
of the request, to obtain approval, and to permit the operator to
install the ventilation system, or to install seals in the event
the request to ventilate is denied, on or before December 30,
1970." I construe these date references to be expiration dates,
rather than effective dates, and I conclude that an operator
would have been required to seal the abandoned area if its
request to continue to ventilate the area were not approved, or
the ventilation was not in place, on December 30, 1970. Sealing

1842

would be accomplished pursuant to the requirements found in
section 75.330.
MSHA's belief that acceptance of Zeigler's interpretation of
sections 75.329 75.329-1, would result in serious safety consequences and would affect the application of other mandatory
safety standards is not well taken.
It seems to me that MSHA has
other means available to require ventilation of an abandoned mine
area to insure against buildup of unsafe levels of methane and
other gases in such an area. The most obvious method is the
ventilation plan approval process found in section 75.316.
MSHA's suggestion that acceptance of Zeigler's argument with
respect to the application of section 75.329-l(a), would lead to
the conclusion that section 75.316 expired on June 28, 1970, is
rejected. As correctly pointed out by Mr. Mitchell, the last
sentence of this standard requires a mine operator and MSHA to
review such plans at least every 6 months, and that Congress
intended that such plans be submitted every 6 months following
June 28, 1970. Mr. Eslinger confirmed that the phrase "or equivalent means" language found in section 75.329, for a ventilation
system other than bleeder entries or bleeder systems contemplates
a ventilation plan approved pursuant to section 75.316.
Mr. Mitchell agreed, and confirmed that the phrase "or equivalent
means" encompasses a ventilation system other than bleeders and
that such a ventilation system must have MSHA's approval (Tr.
3 35) .
Zeigler correctly points out that section 75.316, when read
together with sections 75.316-1 and 75.315-2, clearly establishes
that the ventilation plan provisions found in section 75.316,
were intended by MSHA to currently apply to all underground coal
mines. Under all of these circumstances, I conclude and find
that the ventilation plan requirements found in section 75.316,
are of current application and that compliance for insuring
adequate ventilation of an abandoned mine area can be achieved
through that procedure. However, for some unexplained reason,
Zeigler's ventilation plan, which was last approved by MSHA on
December 28, 1988 (Exhibit C-1), some 5 months before the issuance of the citation, contains no provisions for ventilating or
sealing Zeigler's abandoned mine areas.
In addition to the use of section 75.316, I believe that
mandatory safety standard sections 75.303, 75.305, 75.311,
75.312, 75.314, and 75.330, are viable and appropriate standards
for dealing with any perceived or potential methane and gas
hazards associated with abandoned mine areas, and may be applied
if the circumstances warrant it.
Zeigler's witnesses,
Mr. Mitchell, and safety and health director David Stritzel, a
former MSHA supervisory mining engineer, agreed that this was the
case. Mr. Mitchell testified credibly that section 75.330 was
intended to apply to sealing of abandoned areas after
December 30, 1970, and that absent section 75.329, MSHA can still

1843

require the sealing or ventilation of abandoned mine areas by
exercising its authority under sections 75.316 and 75.330 to
require ventilation or sealing of abandoned mine areas where
appropriate.
Further, promulgation of the revised regulations
should provide MSHA with a direct and unambiguous means of insuring ventilation of abandoned mine areas.
Even if I were to conclude that sections 75.329 and
75.329-l(a), are viable and currently applicable standards, I
would further find that in the absence of sealing, a mine operator would be required to ventilate an abandoned area by bleeder
entries or bleeder systems.
If bleeders cannot be used, an
operator would have to adopt an MSHA approved ventilation plan
pursuant to the requirements found in section 75.316, in order to
insure that the "equivalent means" of ventilation referred to in
section 75.329, is as effective as bleeders.
In the absence of
such a plan, the operator would have to seal the abandoned areas
pursuant to section 75.330.
since the evidence in this case establishes that the cited
abandoned area in question was developed in December, 1987, I
conclude and find that the cited mandatory standard section
75.329-l(a), does not apply to that area and that Zeigler was not
required to ventilate the area pursuant to that standard. Under
the circumstances, I further conclude and find that MSHA has not
established a violation and the contested citation IS VACATED.
Even if I were to conclude that section 75.329-l(a), applied
to the cited abandoned area, I would still vacate the citation
based on a preponderance of the evidence which in my view estab1 ishes that the area was in fact being ventilated. My reasons
for such a finding follow below.
(In view of my findings and
conclusions vacating the citation, I find it unnecessary to
address the abatement issue raised by Zeigler).
The inspector charged Zeigler with a violation of section
75.329-l(a), for failing to ventilate the cited abandoned area,
and the burden is on MSHA to establish that fact.
However, the
citation, on its fac~, states that the inspector could not determine whether the area was being adequately and completed ventilation because of the existence of massive roof falls.
The falls
prevented access by the inspector to the "head end of the section," and precluded any determination on his part as to whether
or not the last open crosscuts of the rooms and entries were
being ventilated so as to continuously dilute, render harmless,
and carry away methane and other explosive gases within the
section. The inspector believed that the only way to determine
whether the abandoned area was being ventilated and where the air
was being coursed is to physically walk and inspect the area.
According to the inspector's interpretation of section
75.329-l(a), if the deepest point of penetration on an abandoned

1844

section cannot be readily traveled or inspected to determine
whether the entire section is being ventilated properly, a violation of section 75.329-l(a), is established. In this case, the
inspector made a determination that since no one could travel to
the back of the abandoned section to determine whether the section was being ventilated, section 75.329-l(a) required that it
be sealed. Although the inspector did not cite Zeigler with a
violation for failing to seal the section, he believed that each
place on the section which could not be travelled had to be
sealed, and that if the direction of air travel through the
section could not be determined, because of the inability to
travel to these places, Zeigler would be out of compliance with
the cited standard. He confirmed that Zeigler's approved ventilation plan contains no requirement that the deepest point of
penetration be walked and inspected, and he conceded that the
plan does not cover or require the ventilation of abandoned mine
areas.
I find nothing in any of MSHA's mandatory ventilation standards which require a mine operator to walk to the deepest point
of penetration to determine whether an abandoned mine area is
adequately ventilated. Although this may be a desirable method
for determining whether an abandoned area is adequately ventilated, I cannot conclude that it is the only method.
Further,
although such a requirement is found in MSHA's proposed ventilation regulations, they have yet to be promulgated and do not
apply in this case.
The only evidence produced by MSHA in support of its conclusion that the abandoned area was not adequately ventilated so
as to render harmless and carry away methane and other gases out
of the cited abandoned panel is the smoke tube tests performed by
the inspector at crosscut No. 13 and other outby locations. One
smoke tube activated 4 or 5 feet outby the fall indicated that
the air "went up and hung." A second smoke tube indicated air
movement over the fall, but "slowly," and other smoke tubes
reflected slow air movement over another fall, and air movement
toward the return at another location. The inspector confirmed
that even if his smoke tube tests had established that the smoke
travelled in an inby direction directly over the fall area, the
use of the smoke tubes would have made no difference, and he
would have issued the citation anyway because he could not travel
beyond the fall area at crosscut No. 13. He believed that section 75.329-l(a), required physical travel to the back of the
abandoned panel to determine the adequacy of the ventilation.
In contrast to the evidence presented by the inspector, the
credible, probative, and unrebutted testimony of Zeigler's ventilation expert Mitchell, including his ventilation survey and
analyses conducted under accepted scientific principles and
methodology which are not rebutted by MSHA, supports a reasonable
conclusion that the cited abandoned panel was ventilated so as to

1845

carry away and render harmless methane and other gases which may
have existed on the panel, and that the air was being coursed
through the panel and out of the return.
The survey and analyses conducted by Mr. Mitchell with
respect to the area was accomplished under conditions substantially similar to those which existed at the time the citation
was issued. MSHA's ventilation specialist Eslinger agreed that
if MSHA were to conduct a ventilation survey similar to the one
conducted by Mr. Mitchell, it would follow the same basic methodology used by Mr. Mitchell. Although Mr. Eslinger expressed some
concern about the pressure differential results of Mr. Mitchell's
survey and the integrity of the stoppings, I cannot conclude that
these "concerns" rebut Mr. Mitchell's findings. Although
Mr. Eslinger testified that he has observed crushed stoppings in
the Murdock Mine, his observations were made "years and years
ago, in the early seventies" when a variety of stopping-materials
were used in the mine (Tr. 377). With regard to Mr. Mitchell's
pressure differential study, Mr. Eslinger agreed that the method
used by Mr. Mitchell, which included altimeter readings, pressure
differences, flow of air, and methane concentrations, would be
similar to any such study conducted by MSHA.
Inspector Stritzel
agreed that if a pressure differential were being maintained on
the panel, it would indicate that the air was moving from high
pressure to low pressure.
Mr. Mitchell concluded that the pressure differential on the
panel was sufficient to establish air movement across the falls
inby crosscut No. 13, a definite flow of air over the fall at
crosscut No. 23, and a flow of air through the falls into the
return side of the panel. He also concluded that the bottle
samples taken by Mr. Roper established the probability of air
sweeping behind crosscut No. 23 through the panel returns and
that there was an established air intake and return despite the
fall.
Mr. Mitchell's testimony that the industry and MSHA
practice for determining the adequacy or inadequacy of ventilation is by pressure differential studies stands unrebutted. His
credible and unrebutted testimony regarding decreased concentrations of methane and carbon dioxide as the air moved through the
panel from the intake to the return also supports his conclusion
that the panel was being adequately ventilated.
In view of the foregoing, I would conclude that the preponderance of the evidence adduced by Zeigler supports its conclusion
that the abandoned area was being ventilated and rebuts MSHA's
conclusion to the contrary.
In short, I would find that MSHA has
failed to establish a violation and I would vacate the citation.

1846

ORDER
In view of the foregoing findings and conclusions, Zeigler's
contest IS GRANTED, and the contested citation IS VACATED.

Judge
Distribution:
Timothy M. Biddle, Esq., Susan E. Chetlin, Esq., Crowell &
Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2505
(Certified Mail)
Brent L. Motchan, Esq., Zeigler Coal Company, 50 Jerome Lane,
Fairview Heights, IL 62208 (Certified Mail)
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
/fb

1847

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

SEP 211990

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

v.

CIVIL PENALTY PROCEEDING

.

Docket No. SE 89-141
A.C. No. 40-02017-03531
Old Energy No. 1

OLD ENERGY INCORPORATED,
Respondent
DEFAULT DECISION
Appearances:

Before:

Mary Sue Taylor, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee
for Petitioner;
No appearance on behalf of Respondent.

Judge Melick

At hearings scheduled to commence on August 15, 1990 at
9:00 a.m., in Clinton, Tennessee no representative of Old
Energy Incorporated (Old Energy) appeared.
By telephone
conference call on August 13, 1990, the operator's
representative, James Lowe, stated that because of personal
real estate business he would not appear at the scheduled
hearing. Mr. Lowe was then advised that his purported excuse
for non-appearance was not acceptable and that if no one
authorized to represent the operator appeared at the hearing
a default decision would be issued.
While a custodian of company records, Ms. Gail Ray,
appeared and produced a company "Balance Sheet" as of
April 30, 1990, and an "Affidavit" of James Lowe relating to
an order not at issue in these proceedings, she stated that
she was not representing Old Energy for purposes of this
litigation.
The unaudited balance sheet is in any event
inadequate for purposes of establishing the effect of the
penalty on the operator's ability to remain in business -- a
criterion that may be considered in determining the amount of
penalty to be assessed under Section llO(i) of the Federal
Mine Safety and Health Act of 1977.
In any event Ms. Ray
stated that Old Energy is no longer in business and does not
intend to resume business.

1848

ORDER
Old Energy Incorporated is ~n default and acco dingly
the civil penalties of $2,600.0· propo ed by the Se retary in
this case must be paid with 30/ ays f the date _of his
/·
decision.
---;--:-

,'l\./L

ary Melic
Administr ive Law
Distribution:

J

Mary Sue Taylor, Esq., Office of th Solicitor,
Department of Labor, 2002 Richard J ~es Road, Su
Nasvhille, TN 37215 (Certified Mail~
Mr. James Lowe, Superintendent, Old Energy Inc., Route #1,
Box 84-B, Kingston, TN 37763 (Certified Mail)
nb

1849

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

22041

SEP 281990
RICKY HAYS,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 90-59-D
MSHA Case No. BARB CD 89-32

LEE CO, INC. ,
Respondent

No. 62 Mine
DECISION

Appearances:

Tony Oppegard, Esq., Stephen A. Sanders, Esq.,
Appalachian Research & Defense Fund of Kentucky,
Inc., Hazard, Kentucky, for the Complainant;
Timothy Joe Walker, Esq., Reece, Lang & Breeding,
London, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
the complainant, Ricky Hays, against the respondent Leeco Inc.,
pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 815(c). The complainant filed his
initial complaint with the Mine Safety and Health Administration
(MSHA) , and after completion of an investigation of the complaint, MSHA advised the complainant by letter dated November 7,
1989, that the information received during the investigation did
not establish any violation of section 105(c) of the Act.
Thereafter, on December 18, 1989, the complainant filed a complaint with the Commission.
The complainant, who was employed by the respondent as an
electrician, alleges that he was discharged by the respondent's
electrical maintenance foreman Clayton Hacker, on September 7,
1989, because of his failure to service (grease and oil) a mobile
bridge carrier speed reducer grease fitting.
The bridge carrier
in question was a component part of the continuous haulage system
used on the section. The complainant further alleges that the
respondent required all of its electricians to service the

1850

haulage system while it was in operation, that this is in violation of Federal law, and that his failure to service the part in
question was based on his reasonable good faith belief that it
was unsafe to service the system while it was in operation.
The respondent denies that the respondent's discharge was
discriminatory, and it takes the position that the complainant
was discharged not only for failing to service the component part
in question, but also because of his failure to generally service
the equipment as he was expected to do during his shift.
A hearing was held in Pikeville, Kentucky, and the parties
filed posthearing briefs.
I have considered their respective
arguments in the course of my adjudication of this matter.
Issues
1. Whether the complainant's belief that the servicing of
the continuous haulage system in question while it was in operation would be unsafe and hazardous, and would expose him to
serious or fatal injuries, was reasonable and made in good faith.
2. Whether the complainant's failure to service the system
in question because of his reasonable and good faith belief that
to do so while it was in operation would be unsafe and hazardous
and would place him at risk of serious injuries or death constituted protected activity.
3. Whether the complainant communicated his reasons for
failing to service the system to mine management, and whether the
respondent's discharge of the complainant in spite of his
communicated safety concerns was justified or otherwise
nondiscriminatory.
4.
Additional issues raised by the parties are identified
and disposed of in_ the course of this decision.

Applicable Statutory and Regulatory Ptovisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 301 et seq.
2. Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1), (2) and
( 3) •

3.

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

stipulations
The parties stipulated to the following (Tr. 8-10):

1851

1. The mine where Mr. Hays was employed is a
nonunion mine, and it is subject to the Act.
2. At the time of the discharge, the first and
second shifts were production shifts, and the third
shift was a non-production maintenance shift.
3. At the time of the discharge, Mr. Hays' hourly
rate of regular pay was $15.65, and his hourly overtime
pay rate was $23.47.
4. At the time of the discharge, the continuous
haulage system in question was comprised of four
bridges and three mobile bridge carriers which are
referred to as "carriers."
5. Complainant's Exhibit C-8, is a Long-Airdox
brochure regarding the continuous haulage system, and
the circled portion in the listed specifications is the
particular Model No. MBC-30C involved in this case.
6. The complainant's personal notebook or work
log, received as evidence in this case, is an authentic
document.
7. Respondent's "downtime records," provided to
the complainant's counsel during discovery, are
authentic business records.
8. Photographic Exhibits C-2 through C-7, taken
during the complainant's discovery inspection of the
mine are authentic and are what they purport to be.
9. The presiding judge has jurisdiction to hear
and decide this matter.
Complainant's Testimony and Evidence
Ricky Hays testified that he is currently employed by the
Golden Oak Mining Company in Knott County, Kentucky, as an
electrician, and that he has been so employed since October 7,
1989. He previously worked for the respondent as an electrician
for 2 years until his discharge on September 7, 1989. At the
time of his discharge he was working the day shift at the No. 62
Mine, and was responsible for servicing the four bridges and
three carriers on the continuous haulage system, including the
digging arms of the mining machine, and the servicing entailed
the greasing and oiling of the equipment. He also serviced two
scoops and two roof bolters. He confirmed that the continuous
haulage system was approximately 250 feet long, and as the miner

1852

advanced, the bridge and bridge carriers also advanced by
tramming on tracks (Tr. 15-23).
Mr. Hays stated that he had to grease the system "from the
miner back to the bridge or belt line," and that there were
approximately 100 grease fittings on the system. Each bridge and
carrier had six grease fittings which he greased with a cartridge
fed grease gun which he had to put on the ground so that he could
have leverage to hold the hose from the ground and place it over
the fitting to pump the grease. The equipment was oiled by means
of a suction-type gun approximately 18 to 20 inches long, and the
oil was sucked into the gun from an oil bucket by vacuum. He had
to oil two speed reducers on the bridge and carrier conveyor, and
an inner and outer carrier drop box which used gear oil (Tr. 25).
Mr. Hays stated that on the day of his discharge,-he was
working on the day shift (7:00 a.m. to 3:30 p.m.), on the No. 2
section. A "pulling star," which is an axle gear on a conveyor
shaft that pulls the conveyor chain used for coal loading, broke
at 12:30 p.m., and he called outside for a replacement part and
to report the downtime. Outside foreman Clyde Collins came to
the area with the parts, and after looking around, he found a
grease or dust cap that attaches to the end of the shaft on the
offside of the speed reducer on the No. 1 bridge, and it had a
broken grease fitting on it. Mr. Collins asked Mr. Hays how long
the fitting had been broken off, and Mr. Hays told him that he
was not sure, but that it could not have been long because he had
serviced the equipment that morning and did not notice that the
fitting was broken. Mr. Hays told Mr. Collins that he had last
serviced the dust cap itself 5 days earlier, and when Mr. Collins
asked him why he had not recently serviced it, Mr. Hays told him
that it was too dangerous to do so while coal was being run
because it was offset on the shaft, and that there was no way to
connect a grease hose to the fitting while it turned, and "that
it would get you against the rib or something" (Tr. 28).
Mr. Hays expl_ained the differences between a grease fitting
which is "offset" and one which is "centered." He confirmed that
there are eight offset fittings on the haulage system, two on
each bridge, and he indicated that these fittings turn with the
shaft when the machine is operating and that it is impossible to
attach a grease hose to the fitting when it is turning with the
equipment running. However, he can attach a grease hose to a
fitting which is centered, even though the machine may be
running, but he must watch and stay out of the way of the machine
(Tr. 31-36; Exhibits C-2 through C-5, C-7). He believed that
servicing a centered fitting while the equipment was running is
not safe because he could be run over, pinned against the rib, or
"various things could happen," if he were unaware that the bridge
carrier operator was moving the equipment (Tr. 40).

1853

Mr. Hays. believed that the width of the entries at the time
of his discharge was 18 feet, and that the distance between the
equipment and the ribs would vary depending on the width of the
cuts. He stated that the equipment "rakes" or rubs the ribs most
of the time, except in a break. He stated that injuries ranging
from a "mashed finger to being killed" may result by trying to
grease the system while it is in operation, and that the severity
of any injury would depend "on what situation you was in." He
explained the dangers involved in attempting to service the
fittings while the equip~ent is running, and he confirmed that
none of the grease fittings-on the system in question had
extended fittings (Tr. 40-44).
Mr. Hays stated that he completed the repair of the pulling
star at approximately 3:00 p.m. Mr. Collins did not ask him
about any other fittings or whether he had serviced any other
equipment. Mr. Collins told him to gather up his tools ·and that
"we were going outside," and did not inform him at that time that
he had been fired. Mr. Hays stated that the broken grease
fitting on the pulling star, or the fact that it had not been
serviced that day, or the past 5 days, had nothing to do with the
breakdown of the equipment (Tr. 46).
After reaching the surface of the mine, Mr. Hays was
informed by the "light lady," Mabel, that there was a note for
him to meet with his supervisor, maintenance foreman Clayton
Hacker, in his office. Mr. Hays met with Mr. Hacker. The second
shift electrician, Jerry Caudill, also known as "blockhead," was
also summoned to the office and was present when he arrived.
After Mr. Hacker arrived, he picked up the dust cap which had
come off the bridge, and asked them when they last serviced it.
Mr. Caudill stated that he had serviced it 2 days before, and
Mr. Hays said that he had serviced it 5 days earlier than that.
When asked for an explanation, Mr. Hays informed Mr. Hacker that
he could not service it while the equipment was running because
it was too dangerous and that there was no way to attach the
grease hose while it was running, and Mr. Caudill "told him
pretty much the same thing" (Tr. 48). Mr. Hays informed
Mr. Hacker that "the only way you can do it is shut it down," and
Mr. Hacker stated "we can't shut it down, . . . we can't stop
running coal just to grease that" (Tr. 48).
Mr. Hays stated that he informed Mr. Hacker that he could
stay between shifts to service the system, but that there was no
way he could service the offset fittings while the equipment was
running, and he explained his reasons to Mr. Hacker. Mr. Hacker
informed him that "there wasn't no excuse" and that he (Hacker)
had serviced the system while it was running and said "he knowed
we could" (Tr. 49). Mr. Hays confirmed that on a previous occasion, Mr. Hacker had informed him that servicing the system while
it was running would allow the grease to reach the bearing "real

1854

good," and that if it were serviced while it was shutdown, the
grease will come out {Tr. 50).
Mr. Hays stated that he and Mr. Caudill informed Mr. Hacker
that they had been "riding the machine to service what we could
on it, because there wasn't no room on the sides" between the
equipment and the rib when it was cutting in a belt entry, and
that he had to position himself on top of the machine to ride it.
Mr. Hacker then discussed his maintenance program and informed
them "we had to work together" and that "if one of us didn't do
our part, then he couldn't have another one corning in and filling
in for the one that couldn't do their part," and he then informed
both of them that they were fired {Tr. 52).
Mr. Hays stated that Mr. Hacker mentioned no other grease
fitting other than the grease cap he was referring to,.-and that
this was the same cap which he (Hays) had discussed with
Mr. Collins underground. Mr. Hacker mentioned no other broken
grease fittings, said nothing about his (Hays) failing to service
any other equipment on the section, and said nothing about notifying him if he believed he could not service that particular
fitting (Tr. 53).
Mr. Hays confirmed that he had previously discussed the
servicing of the system with Mr. Hacker, and asked him if it was
being serviced while it was running in the same way it was done
at the No. 49 Mine where he (Hays) was assigned prior to his
transfer to the No. 62 Mine, and that Mr. Hacker told him that it
was. Mr. Hays confirmed that 2 or 3-days prior to his discharge,
he asked Mr. Hacker if he could stay late to service the system.
Mr. Hays stated that the maintenance system at the No. 49 and
No. 62 Mines were the same, and he acknowledged that although he
serviced the system at the No. 49 Mine while it was running, he
complained to Mr. Hacker that he could not do it because it was
dangerous.
Mr. Hacker informed him "you do it" or "he would
replace us" (Tr. 54-56).
Mr. Hays stated that he regularly _greased and oiled the
system while it was running on a daily basi-s--wh-i1e he was
employed on the day shift at the No. 62 Min-e~
However, he only
serviced the grease fittings which were centered, and not the
ones which were offset, while the system was running (Tr. 57).
Mr. Hays stated that he was able to service the grease fitting
which was discussed with Mr. Hacker when he was fired 5 days
earlier because the power and equipment was down and "I had a
chance to get them" (Tr. 58).
Mr. Hays explained how he serviced the system by "riding it"
while it was in operation and trammed.
He stated that because of
the location of some of the grease fittings, he had to lay on top
of the machine in order to reach them, and that he would have to
position himself between the equipment and the coal rib to reach

1855

others.
In order to reach the carrier bridge grease block which
has five grease fittings, he would have to lay on the machine and
reach down, and that there was a danger of "just gatting you
against the top" {Tr. 60-65, exhibit C-6).
Mr. Hays confirmed that he knew it was illegal and unsafe to
service the system while it was in operation, but did it because
"I was told to either do it or be replaced" {Tr. 66). He stated
that the system had never been intentionally shutdown and locked
out on any production shift so that he could service it, but he
did not know whether this was ever done during the third or idle
shift {Tr. 67) .
Mr. Hays stated that if the system were deenergized and
locked out so that he could service it, it would take him 45 to
75 minutes to grease all of the fittings.
It would take approximately 45 minutes to 1 hour to check the oil and oil the system,
and to do both together, or to completely service the entire
system, it would taka approximately 1 hour and 45 minutes to
2 hours and 15 minutes (Tr. 71).
If an equipment breakdown
occurred during the shift, he would be responsible for making the
repairs rather than servicing the system while it was down (Tr.
72).
He confirmed that during the last week of his employment,
he was responsible for servicing all of the equipment on the
section, except the scoops.
During the changing of the continuous miner bits in the last week of his employment, he would
grease the miner digging arms, and would sometimes have 2 or
3 minutes to check the bits and lugs or call out to report anything that required repairing {Tr. 74).
Mr. Hays identified a notebook which he maintained on a
daily basis during his working shift (exhibit C-1; Tr. 76). He
confirmed that his section foreman was aware of the fact that he
was servicing the system while it was in operation because he
observed him doing it all of the time. The foreman never told
him not to service the system while it was running, never took
any disciplinary action against him for doing so, and never
deenergized the system before he serviced it {Tr. 78).
Mr. Hacker was aware that the system was being serviced while it
was running because "he is the one that instructed us to do so"
(Tr. 78).
Mr. Hays stated that prior to his discharge, he had never
been disciplined or "written up" for any improper servicing of
equipment, and was never told that he was not servicing the
equipment properly at the No. 62 Mine. He confirmed that he was
out of work for 1 month after his discharge, and that his next
job after his discharge was his present employment (Tr. 78).
On cross-examination, Mr. Hays testified as to certain
entries made in his notebook. He confirmed that the equipment
was supposed to be serviced every day, and that if he could not

1856

service it, he was not required to tell anyone, and he "just let
it go" if he could not service it (Tr. 79-83). He confirmed that
he had previously serviced the offset speed reducer grease
fitting while working at the No. 49 Mine, and he stated that
"most of them stayed tore up. They didn't serve no purpose. No
one really worried about it" (Tr. 86). However, he could not
service it while it was running, and only did so "when it was
off. When you got a chance." He stated that the haulage system
in question is approximately 2-1/2 feet high, and that the grease
gun hose that he uses is 18 inches to 2 feet long (Tr. 88).
Mr. Hays stated that depending on the cut and the individual
operating the equipment, the system would advance or tram approximately 8 inches or a foot every 2 or 3 seconds (Tr. 89). He
described how the system advanced while coal was being mined, and
he explained how he would attach his grease gun hose to the
fittings (Tr. 89-98).
Mr. Hays stated that the first time he complained to
Mr. Hacker about his belief that it was unsafe to service the
system while it was running was when he worked on the second
shift at the No. 49 Mine. Mr. Hays believed that there were no
bridge parts which could be safely greased while the system is
running (Tr. 101). He confirmed that there were times during his
shift when he observed the changing of the miner bits once, but
he did not recall more than one change except for bit changes on
the third or idle shift when overcasts were being cut. He would
not record such bits changes in his notebook unless he helped
change them, and he could recall no bits being changed more than
once on any of his day shifts (Tr. 104-107).
·Mr. Hays confirmed that the system was shutdown when belt
setups were made, and that there were no belt setups made on his
shift during his last week on the job, or during the 2 or 3 weeks
when he worked at the No. 62 Mine. He stated that the system
advanced 270 to 300 feet before a belt setup was made (Tr. 107).
Mr. Hays acknowledged that he was given a 3-day suspension
by Mr. Hacker on J-u1y 27, 1989 for "unsatisfactory performance"
for not servicing the brakes on a shuttle car. He explained that
he had repaired the brakes, but when they went out 6 hours later,
Mr. Hacker told him he had not "fixed them good enough where they
lasted, you know, forever" and suspended him. He also acknowledged that he received prior written reprimands from other supervisors, for not installing a spillboard on a face drive on
January 13, 1989, and for not hooking up a battery charger on
December 7, 1988 (Tr. 111-112).
Mr. Hays confirmed that Mr. Hacker instructed him to service
the system and that he pointed out the importance of servicing
all of the speed reducers while the bearings were turning so that
they could be serviced sufficiently. He agreed with Mr. Hacker

1857

that it was best to grease the bearings while they were turning
in order to draw the grease freely from the grease gun (Tr. 113).
Mr. Hays acknowledged that even though he was an electrician, he
was required to repair brakes and spillboards, and to do "whatever they told you to do" (Tr. 114).
Mr. Hays confirmed that he knows the respondent's mine
safety director and some of his staff and has seen him at safety
meetings. He also knew that there was a suggestion box at the
mine for anonymous safety suggestions by miners, has taken
advantage of it, but never in regard to grease fittings on a
speed reducer because he "confronted" Mr. Hacker about that
matter "face-to-face" at the No. 49 Mine (Tr. 116).
In response to further questions, Mr. Hays confirmed that he
did not sign any of the prior three "disciplinary slips" because
he did not agree with them (Tr. 117-118). Counsel Oppegard
agreed that two of the disciplinary actions were 3-day suspensions, and the other one was a warning (Tr. 119). Mr. Hays
explained the system for deenergizing and locking out the equipment and the haulage system, and he stated that the amount of
time required to deenergize the equipment would depend on its
location at any given time and the location of the power center
(Tr. 120-125). He also explained his notebook notations in
reference to greasing the system bridge and bridge carriers (Tr.
126-128) .
Mr. Hays stated that Mr. Collins did not blame him for the
broken star piece gear mechanism and did not indicate to him that
it had broken because he did not service it properly. Mr. Hays
stated that it broke because "they were running rock and it
wouldn't carry rock good" (Tr. 131). He stated that on the day
of his discharge Mr. Hacker mentioned his prior disciplinary
actions, as well as those of Mr. Caudill "right before he fired
us'' (Tr. 131) . He confirmed that he tried to get his job back
after he was fired, spoke to the safety department, and tried to
get an appointment with the company president, but that "they
called me back and ~ore or less made fun of me'' (Tr~ 133).
Mr. Hays stated that he never complained to the safety
department about being required to service the equipment while it
was being operated, but did complain to Mr. Hacker, his immediate
boss. Mr. Hays acknowledged that he has observed federal and
state inspectors at the mine, but never mentioned that he had to
service the equipment while it was running, and he was certain
that the respondent had never been cited for servicing the equipment while it was running, and if it had ''it would have warned us
about it, you know, not to do it, while they was there'' (Tr.
135). He confirmed that he was not aware of any miner safety
representative or safety committee at the mine, and that if he
had any safety problem he would go to his boss "through the chain

1858

-;::·-·--

of command." He acknowledged that he could have gone to the
safety department, but never did (Tr. 137).
Jerry M. Caudill testified that he is employed by the Blue
Diamond Coal Company, and previously worked for the respondent.
He confirmed that he was fired on September 7, 1989, with
Mr. Hays, but that his discharge was changed to a 3-day suspension and he was assigned to the No. 29 Mine where he worked for a
week and a half before going to work at his present job. He
confirmed that he worked as a second shift electrician for the
respondent, and that he is a certified mine foreman. His electrician duties entailed the repair of all of the equipment,
including the continuous haulage system, bolters, scoops, and
miner digging arms (Tr. 141).
Mr. Caudill explained what transpired on the day that he and
Mr. Hays were fired, including their discussions with Mr. Hacker.
He confirmed that Mr. Hays told Mr. Hacker that he could not
grease the grease cup fitting which Mr. Hacker had referred to
while the system was running because it was offset on the shaft.
Mr. Caudill stated that he told Mr. Hacker the same thing, and
that it was too dangerous to grease it while it was running.
Mr. Hacker replied that "he wasn't going to hear no excuses.
It
had to be done during our shift" (Tr. 143). Mr. Hays asked
Mr. Hacker if the system could be shutdown for service, and
Mr. Hacker "said we had to find time to do it.
But it had to be
done during our shift, but they would not shut it down to grease
it" (Tr. 144).
Mr. Caudill stated that when he worked as a second shift
electrician he was expected to service and oil the haulage system
while it was running and "that this is the only way to do it"
(Tr. 145-146). If the system were down it would take someone
2-1/2 to 3 hours to do "a real good job" greasing and oiling the
entire system, and 1 hour or 1-1/2 hours to grease only the
fittings.
It was not possible to grease the system every shift
while it was running (Tr. 147).
Mr. Caudill identified photographic exhibit C-6, as a bridge
carrier, and he explained that he could grease part of the
carrier by walking next to it with a grease gun, but would grease
the top fittings while seated on top of the carrier start box
while the machine was moving and while coal was being cut.
If he
were servicing the fittings from the side, the distance between
the machine and the rib would sometimes be a foot and a half,
"hardly no more than that," and this presented a danger in that
"if they move nary a bit, they'll drag you into the rib.
You
can't get away from it" (Tr. 149). He has never been injured
trying to service the system, but stated that "I've been lucky,
I've went under through it before to get away from it" and that
he has had close calls more than once (Tr. 149).

1859

Mr. Caudill stated that he never saw the system deenergized
specificaliy for the purpose of greasing it, and he confirmed
that Mr. Hacker knew that he was servicing it while it was moving
because he observed him doing it. Mr. Hacker never warned him
not to do it, never disciplined him for doing it, and never told
him to deenergize the system before servicing it. His section
foremen were also aware of the fact that he was servicing the
equipment while it was running because they too observed him
doing it (Tr. 151). Mr. Caudill stated that he complained to his
section foreman and outside foreman about servicing the system
while it was running, and that the section foreman would say
nothing about it, and the outside foreman did not want to talk to
Mr. Hacker about the matter. Mr. Caudill stated that he complained to Mr. Hacker that it was dangerous to service the system
while it was operating on at least four occasions, and that
Mr. Hacker told him he "wasn't going to hear no excuses," and
that "we would do it during our production shift if w~ stayed
there" (Tr. 153). Mr. Caudill also asked to stay over on overtime to service the system on the third shift, but Mr. Hacker
"said no" (Tr. 153).
Mr. Caudill did not believe it was safe to service any of
the fittings on the system when it was running, regardless of the
fact that they were offset or on the center of the shaft, because
"they go to the face and come back so rapid that you can't get
away from the equipment." The system is so long that if he is on
the corner and the equipment is on a break, "the whole thing
comes over all at once and you ain't got nowhere to run unless
you go over top of it or through it" (Tr. 154). He believed that
he could be injured while trying to grease the system "on the
run," and that "it could be drug plumb over top of you or get
caught in a conveyor chain or slide pan.
You could get caught in
them" and be killed "real easy" (Tr. 154).
Mr. Caudill stated that on the day of the discharge
Mr. Hacker said nothing to him or to Mr. Hays about any other
grease fittings other than the one that he had in his hand.
Mr. Hacker said nothing about their failure to service any other
equipment on the section other than that one grease fitting, and
he did not mention their failure to service the bolters or miner
digging arms. Mr. Hacker did not tell them that they should have
contacted or notified him if they could not service the fitting
in question (Tr. 156). The only reason he could think of for his
discharge was the grease cap that Mr. Hacker was holding (Tr.
157). His discharge was changed to a suspension after he spoke
with another official at the company's London office (Tr. 157).
That individual made Mr. Hacker put him back to work, but
Mr. Hacker said some bad things about him and humiliated him and
he left later because "I didn't feel right working for the company" and quit. He did not know why Mr. Hays did not get his job
back (Tr. 159-160). Mr. Caudill confirmed that he had received
prior disciplinary warnings or suspensions before his discharge

1860

at the No. 3 Mine 3-years ago, but they were not related to his
work {Tr. 160).
on cross-examination, Mr. Caudill explained that his prior
disciplinary actions were not related to his work and that he had
a "habit of bad language" and had personal differences with a
supervisor. He admitted that when he and Mr. Hays were called to
Mr. Hacker's office he told Mr. Hacker "that he knew that Hays
was going to get him fired" {Tr. 162). He explained that he made
that statement because approximately a month earlier he would
find three bridge speed reducers "bone dry" on his shift after he
had serviced them and he believed that he was going to be fired
by Mr. Hacker because of this {Tr. 162-163).
In response to further questions, Mr. Caudill stated that he
informed a second shift mechanic foreman about the dry reducers
and took him into the mine and showed him how he was grea-~:Hng
them and that the foreman stated that "he didn't see how we could
do it, oil that stuff, and keep it up'' (Tr. 168) . Mr. Caudill
also confirmed that he wrote up and reported the conditions of
the reducers. He stated that he and Mr. Hays were both fired
"over the grease cap" and that Mr. Hacker blamed them for it, and
stated "I can't fire one of you without letting you both go
because both of you were supposed to be doing that job," and that
"he wouldn't listen to nothing," even after he told him that he
needed his job. Mr. Hacker told him "it ain't my damn problem"
(Tr. 170).
Mr. Caudill stated that he did not know whether the respondent had ever been cited for servicing the system while it was
running, and that he contacted a federal inspector after his
discharge, and the inspector told him he couldn't be fired.
He
also complained to a federal inspector who inspected the mine
before his discharge but nothing came of it. Mr. Caudill confirmed that he never complained to the safety department (Tr.
171) .
Mr. Caudill explained that his complaint to Federal Inspector Franklin Nahew was about greasing the system while it was
running, and that he complained during the "middle of 1988." His
complaint concerned the Leeco No. 22 Mine, where the same system
of servicing the equipment while it is operating is used. He
stated that "they do it the same way at all their mines" (Tr.
173). He confirmed that he knew some of the training instructors
in the safety department, and that there was a suggestion box
available for anonymous safety complaints and that he used it to
complain about greasing the haulage system.
He signed the complaint, but a foreman cut the lock off the box and took out his
complaint. The foreman was disciplined for doing this and was
nearly fired, and he (Caudill) "got in trouble over it" (Tr.
170). He also confirmed that the dried up condition of the
reducers which he thought he was going to be fired over, and

1861

which caused him to make the statement that Mr. Hays was going to
get him fired, was caused by the equipment which had been
reported by him two or three times during the week he was fired,
and not by Mr. Hays (Tr. 180).
William Craft testified as to his mining background and
experience, and he confirmed that he formerly served as the MSHA
District Manager in Madisonville, Kentucky. He taught classes at
the federal mine academy, and served on a committee which
recommended the promulgation of mandatory safety standards, and
was familiar with the standards. He has been self employed as a
mining consultant since 1981, when he retired from MSHA because
of a back disability. He has testified in many proceedings
before the Commission's judges and has been qualified as an
expert on mine safety matters (Tr. 180-184). Mr. Craft was
accepted as an expert witness, over the objection of the
respondent (Tr. 185-186).
Mr. Craft confirmed that he toured the No. 002 section of
the No. 26 Mine on April 24, 1989, and inspected the continuous
haulage system in question. He also confirmed that he has
reviewed the depositions of Mr. Collins and Mr. Hacker, as well
as others, and has heard the testimony of Mr. Hays and
Mr. Caudill. He has also reviewed the manufacturer's manual
concerning the haulage system (exhibit C-8), and he explained the
respondent's mining method used on the section in question (Tr.
186-192).
Mr. Craft stated that the system is greased and oiled
manually, and he explained that when a grease hose is attached to
a speed reducer with a fitting which is centered, the hose will
stay still while the shaft turns, and if it is attached to a
fitting which is offset, "the whole thing goes around" (Tr. 198).
He believed that servicing the system while it is in operation
presented a "dangerous situation" (Tr. 200).
In addition to his
opinion that it was dangerous, Mr. Craft cited mandatory safety
standard sections 75.509 and 75.1725(d), which he believed
prohibited the lubrication, servicing, or greasing of the system
while it is in operation (Tr. 201-205).
Mr. Craft explained why he believed it was dangerous to
grease an offset speed reducer fitting with the equipment energized, and he believed that the system could not legally be
greased and oiled without deenergizing the power and locking out
the system (Tr. 206-207). He did not believe that the grease
fittings can be safely serviced without first locking out the
system at the power center, and he stated that "You've heard them
testify they were hanging on the sides of it and on the top of
it, that, in itself, would be enough to tell you that it wasn't
safe" (Tr. 208).

1862

On cross-examination, Mr. Craft stated that the words "work"
and "equipment" found in section 75.509, cover greasing or lubrication on the haulage system in question, and that the system
must be deenergized before this work is done (Tr. 208-209). He
also believed that the use of a grease gun and the oiling of the
system constituted "work" within the meaning of the standard (Tr.
210-211) • If he were still employed by MSHA, he would either
cite a violation, or issue instructions to cite a violation, for
the lubrication of a bridge system without deenergizing it (Tr.
212).
He would cite a violation of section 75.509, and
75.1725(c) or (d) (Tr. 213-215). Mr. Craft confirmed that when
he visited the mine, he found no right angle crosscuts, but did
find some crosscuts cut at 60 degree angles (Tr. 217).
Terry Richardson, third-shift electrician and foreman,
testified that he was working as a "floater" on the -~econd shift
on the day Mr. Hays was discharged. He confirmed that he has
worked with Mr. Hays on the third shift at the No. 62 Mine, and
that he considered Mr. Hays to be a hard worker. Mr. Richardson
was familiar with the haulage system, and stated that he was
responsible for servicing it on the second shift. He confirmed
that he has serviced the system while it was operating and not
deenergized or locked out and that "in some ways" it was
dangerous. He stated that "about the only thing you've got to
watch--any piece of equipment that is moving, you've got to watch
it. There is always a possibility that you could get mashed.
You've got to be careful" (Tr. 223). He believed that it would
be possible for an electrician to be injured or killed while
attempting to service the system while it was in operation (Tr.
224) .
Mr. Richardson believed that it would take 2-1/2 hours to
service the entire system, and he doubted that there was that
much available "down time" during a production shift to completely service the system.
He stated that when he serviced the
system while it was operating he tried to position himself "in
the safest place you could" so that he could not be "caught" (Tr.
225).
He would position himself on top of the equipment when it
was in low coal, and that "most of the time you're beside of it"
and that there is always a danger of getting mashed into the rib
(Tr. 226). He confirmed that after Mr. Hays was discharged, his
foreman Bobby Strunk commented to him (Richardson) that he
believed Mr. Hays was a good worker (Tr. 226).
On cross-examination, Mr. Richardson stated that he has
worked at other mines and believed that the respondent's mine is
"as safe as any mine that I've worked in" (Tr. 229).
He confirmed that he has serviced shafts on the system while the conveyor was off and "while they were backing out of a cut." In
those instances, he would be walking alongside the miner if the
coal were high enough, but "most of the time you would probably
be on your knees.
You try to get it as they back up." He

1863

believed that he would be exposed to a danger while doing this at
certain times when the equipment is running and the operator may
not see him, but that he tries to let the operator know where he
is "most of the time" (Tr. 230). He confirmed that he was never
specifically told to walk alongside the equipment to service it,
but that "you've got to do what you need to do to service it"
(Tr. 2 3 O) •
.
Mr. Richardson confirmed that he has serviced the speed
reducer grease fitting which is offset on the shaft, that it
cannot be serviced when the conveyor is running, and that "you
try to service it when you get a chance, when this equipment -if it's stopped or if they're backing up" (Tr. 231).
If the
system conveyor chain is running, "there is no way you can grease
it." He can keep up with the system while it is moving if he
·
were walking, but if he were crawling, he cannot. He can ~ervice
some of the system fittings if it is not advancing, and "you have
to get what you can. Try to get them all, if you can" (Tr. 232).
He also stated that "it's pretty much left up to the repairman.
You just got to get' it done" (Tr. 233). He makes an attempt to
grease all fittings, and if he cannot, he tries to tell the
oncoming shift repairman about the ones that he has not serviced
(Tr. 235).
Mr. Richardson stated that he has not discussed the servicing of the system while it was running with his foreman or with
Mr. Hacker, and he could not recall discussing this with Mr. Hays
(Tr. 236). Mr. Richardson believed that it would be illegal to
service a piece of equipment while it was energized, and that
"just your general mine law" would prohibit this (Tr. 240). He
confirmed that this particular question has never been discussed
by the foreman and the crew.
Marty Lewis, roof bolter operator, testified that he worked
with Mr. Hays, and that Mr. Hays was responsible for servicing,
or greasing and oiling his machine every day. He had no complaints about Mr. Hays_' servicing his machine, and prior to his
discharge had no problems or breakdowns because the machine had
not been properly serviced by Mr. Hays. He confirmed that
Mr. Hays serviced the bolter during the shift, and he has also
observed him servicing the haulage system during the shift. The
system was not deenergized when Mr. Hays was greasing it, but if
electrical repair work were required, the system would be locked
out. Mr. Lewis believed that Mr. Hays was a good worker, and he
heard foreman Bobby Strunk state that Mr. Hays was a good worker
but "wasn't a good enough electrician to be on the section" (Tr.
241-24 7) .
On cross-examination, Mr. Lewis stated that he could not
recall helping Mr. Hays grease his machine, but he has helped
other repairman with the greasing. He confirmed that he has
never been required to work under dangerous conditions, and he

1864

believed that the respondent was "a lot safer than any coal
company I've ever worked for" (Tr. 248).
Ricky Eversole, roof bolter operator, confirmed that he has
worked with Mr. Hays and considered him to be a good worker. He
had no problems with Mr. Hays' servicing of his machine, and
stated that Mr. Hays serviced it regularly (Tr. 249-252).
On cross-examination, Mr. Eversole could not recall specifically helping Mr. Hays to grease his bolter, but that he would
have done so if he asked (Tr. 252). He would also have helped
other repairman if they had asked him to.
Dewey Eldridge, miner operator, testified that Mr. Hays was
responsible for greasing and oiling the gathering arms of his
machine while he (Eldridge) was "setting bits." He had no complaints about the manner in which Mr. Hays serviced -his machine,
and had no problems with any broken grease fittings that were not
being replaced.
He confirmed that Mr. Hays serviced the haulage
system while it was in operation, and he never knew the system to
be locked out while Mr. Hays was servicing it (Tr. 253-256).
On cross-examination, Mr. Eldridge stated that there were
shifts when he changed the miner bits more than once, but that
the electrician did not grease them everytime he changed the
bits, and only greased them once. After this was done, the
electrician could do something else.
He had no knowledge about
any instructions to an electrician as to when he was to grease
the haulage system, and he believed that the respondent's mines
are "as safe as the other mines" he has worked in (Tr. 257).
David Combs, mobile bridge carrier operator, explained his
duties, and he confirmed that he has observed Mr. Hays greasing
and oiling the system.
He stated that he had no complaints or
problems with Mr. Hays' servicing of the mobile bridge carrier,
but he did not know whether Mr. Hays ever serviced it while it
was in operation. He confirmed that the power was on while
Mr. Hays serviced the system, and he never saw the system shutdown or locked out at the power center while it was being
serviced (Tr. 258-262).
On cross-examination, Mr. Combs stated that he worked 1 week
with Mr. Hays on the same shift, and he could not recall whether
he ever saw Mr. Hays greasing the equipment while it was not in
operation.
He confirmed that there is a block of grease fittings
in front of the control station on the bridge carrier where
several hoses come together from different parts of the carrier,
and that he can see them while he is operating the carrier.
If a
repairman was greasing those fittings, he could observe him and
would not start up and possibly injure him (Tr. 263).

1865

In response to further questions, Mr. Combs confirmed that
there are other operators for the other mobile bridge carriers on
the system.
During the week that he worked with Mr. Hays, there
was an average of two bridge carriers on the system, and he
identified a photograph of a bridge carrier similar to the one
that he operated. He confirmed that he would be seated at his
control compartment looking forward, and that he could see a
serviceman such as Mr. Hays at all times while working on that
part of the system, if he were "standing erect or hunched over."
However, if he were kneeling down to grease something, he could
not see him (Tr. 265). He confirmed that Mr. Hays serviced the
system while it was being trammed, and that he has observed
Mr. Hays around the machine while it was standing still "for a
matter of minutes," but it was still operating with the rest of
the system, and that he could see him if he were not lying down.
If Mr. Hays was at the rear of the machine, he could not see him
unless he turned around to look (Tr. 268).
Mr. Combs stated that while seated on the "onside" of his
machine, he could not see Mr. Hays if he were servicing the other
side, or "offside" of the machine and was kneeling or crouched
down (Tr. 268). He confirmed that the bridge carrier and the
entire haulage system, continues to move forward as the miner is
cutting coal, and the system "follows the miner" (Tr. 268). He
confirmed that he has an emergency stop control on his carrier
that can keep the entire system from advancing and that he can
stop the system to prevent someone from getting hurt. However,
he could not deenergize the miner machine using this control.
Although he could shutdown the miner, he cannot start it up again
(Tr. 270).
Clifton Lewis, Jr., testified that he was working with
Mr. Hays as a scoop operator at the time of his discharge. He
did not believe that Mr. Hays was responsible for servicing the
scoops, but he did observe him "help grease it every now and
then" (Tr. 273).
He has observed Mr. Hays service the haulage
system while it was in operation, and he never saw the system
deenergized or locked out while Mr. Hays was performing this
service (Tr. 274).
On cross-examination, Mr. Lewis stated that he was present
with Mr. Hays prior to his discharge at a meeting which took
place with Mr. Collins and Mr. Hacker, and the scoop operators
were informed at that time that they would have to grease the
scoops. He stated that he has worked at other mines, and compared to these mines, the respondent's mine, in terms of safety,
was "A-1, excellent, good" (Tr. 276).
Mr. Lewis confirmed that he had no problems with Mr. Hays'
job performance when he worked with him (Tr. 278). He believed
that the scoop operators were assigned the task of servicing the
scoops so that the repairman could have more time to do what they

I

/

1866

were supposed to do (Tr. 280). He confirmed that he shuts down
his battery powered scoop to grease it, and that he can grease it
anytime during the shift (Tr. 282).
Gary R. Caudill, scoop operator, testified that he worked
with Mr. Hays, and although Mr. Hays has helped him grease and
service the scoop, Mr. Caudill greased his own scoop and was
responsible for servicing it. He stated that no one was ever
specifically assigned this service work, but that a meeting was
held prior to Mr. Hays' discharge, and the scoop operators were
given this responsibility. He had no complaints about Mr. Hays
when he serviced his scoop, and he has observed Mr. Hays servicing the haulage system while it was in operation (Tr. 286).
In
terms of safety, and compared to other mines he has worked in, he
believed that the respondent's mine was "pretty good" (Tr. 286).
Respondent's Testimony and Evidence
Richard Garcia, respondent's general manager, testified that
he is responsible for the operation of five underground mines
operated by the respondent, and that his responsibilities include
production, safety, personnel, and equipment.
Prior to his
employment with the respondent, he worked for MSHA as the
assistant district manager, District No. 7, Barbourville,
Kentucky. Mr. Garcia identified Exhibit R-1, as a copy of a form
that he uses for the reporting of downtime on each of the respondent's mine sections, and he explained how the information is
reported to him and recorded on the form (Tr. 7-15).
Mr. Garcia stated that he became aware of the discharge of
Mr. Caudill and Mr. Hays after receiving a telephone call from
Mr. Collins or Mr. Ron Helton, the mine superintendent, and that
it was normal policy to inform him of any discharges. He then
met with Mr. Jerry Elliott, the respondent's personnel manager,
and they reviewed the personnel file of the two employees.
Based
on the information in their files, they decided to let Mr. Hays'
discharge stand, and that Mr. Caudill would be suspended for
3 days and transferred to another mine. Mr. caudill's suspension, rather than discharge, was based on the fact that he had no
recent disciplinary actions against him justifying a discharge
(Tr. 17) .
On cross-examination, Mr. Garcia confirmed that Exhibit
C-12, is a copy of the same downtime form that he previously
referred to, and he confirmed that he had no personal knowledge
of the accuracy of the information recorded on the forms, and
that he simply records what is reported to him from the superintendent, and that the superintendent would obtain the information from a section foreman.
He conceded that the information
could be inaccurate (Tr. 20).

1867

Mr. Garcia confirmed that he could recall no conversations
with Mr. Collins or Mr. Helton at the time he was informed about
Mr. Hays' discharge indicating that Mr. Hays told mine management
that he believed it would be unsafe to grease the haulage system
while it was in operation. He also could not recall being told
that Mr. Hays was discharged for any reason other than his
failure to lubricate the system, and that "it was basically a
failure to perform the job as he was assigned is generally the
way it was put to me" (Tr. 21) . He further confirmed that the
respondent has no "hard and fast rule" as to when an employee
should be discharged, and that it would depend on the circumstances. The fact that an employee may have been suspended does
not mean that he will automatically be discharged (Tr. 21-22).
Mr. Garcia confirmed that he was involved in the transfer of
Mr. Collins as superintendent from the No. 47 Mine to the No. 62
Mine, but he could not recall whether he was involved in the
decision to rehire Mr. Collins, but that he would haveoeen
involved in any recommendation to do so.
He was aware of the
fact that Mr. Collins had been discharged for smoking underground, and confirmed that he was involved in that discharge. He
was also aware of the fact that Mr. Collins had been previously
discharged for leaving a mine area unbolted without gobbing it
off, but that this occurred prior to his employment with the
respondent. Although he was concerned about these discharges,
Mr. Garcia explained that the respondent needed qualified foremen, and that Mr. Collins was told "to clean up his act" and was
informed that the respondent would not tolerate future acts of
this kind.
Mr. Collins' good reputation for producing coal was a
part of the decision to rehire him (Tr. 25).
Mr. Garcia could not recall the details of what was in
Mr. Hays' personnel file when he reviewed it at the time of his
discharge, and he confirmed that he does not generally determine
the merits of any prior disciplinary actions.
He has had an
occasion to meet with employees to discuss such matters, but
could recall no further discussion in the case of Mr. Hays (Tr.
28). He confirmed that Mr. Hays never contacted him about his
discharge, and he could recall no further information from
Mr. Hacker concerning the matter.
If an employee believes that
he is wrongfully discharged, he can seek an appointment with
someone "in the main office" to discuss the matter, and Mr. Hays
made no attempts to contact him about the matter, but may have
done it with someone else, in which case "I would have been
involved in any discussion at that point" (Tr. 31). He believed
that Mr. Hays could have discussed his case with someone "higher
in management than his supervisor" or with the safety department,
and that all employees have an opportunity to express safety
concerns if they are required to do an unsafe job (Tr. 32).
Mr. Garcia confirmed that he had no knowledge of any company
policy regarding the servicing of the haulage system, and that he

1868

knew of no policy requiring anyone to lubricate a machine while
it is in motion or while it was being trammed from place to
place. He believed that Mr. Hays should have complained earlier
to someone higher in management than his supervisor if he
believed that he was in danger or at risk of getting caught
between the machine and the rib or being run over while servicing
the machine. Suggestion boxes are available for employees to use
and they are encouraged to report safety problems to the safety
department. He could not recall any other personnel problems
with Mr. Hays other than the prior disciplinaries which were in
his file, and he made no further inquiries concerning Mr. Hays'
work record (Tr. 35-38).
Mr. Garcia stated that servicing the haulage system while it
is in operation would be a violation of section 75.1725, but not
section 75.509, which deals only with electrical work. Section
75.1725 only requires that the power be off at the equipment
itself when it is being serviced, but it need not be tagged and
locked out. Section 75.509, would require the equipment to be
locked out and tagged only when electrical work is being done
(Tr. 38-40).
With regard to some of the downtime entries made on
Exhibit R-1, Mr. Garcia confirmed that the haulage system would
be in use when rock was being cut, and that it was very likely
that an electrician such as Mr. Hays would have performed some or
all of the work connected with the tightening of the chains, and
helped out in the cleaning and setting of bits (Tr. 42).
Mr. Garcia conceded that he may not have known about
Mr. Hays' contact with Mr. Elliott after he was discharged, and
that he (Garcia) did not contact Mr. Hays prior to his discharge
"to get his side of it," and he did not speak with Mr. Hacker
(Tr. 44).
He first learned that Mr. Hays had raised a safety
concern as part of his discharge when he saw a copy of his complaint filed with MSHA (Tr. 49).
Mr. Garcia had no knowledge of whether the servicing of the
system was ever done on the third shift, and he would not approve
of shutting down for an hour or an hour and a half during a
production shift in order to service the system. He would also
avoid shutting down the system for 30 or 45 minutes for servicing
during a production shift. He confirmed that pursuant to section
75.1725(c), maintenance could not be performed on the system
unless the power was off and the system blocked against motion.
However, the power would only have to be off at the machine, and
it would not be required to be locked and tagged out for lubrication. He believed that "repairs" would include lubrication under
subsection (c), and he assumed that lubrication is treated
separately in subsection (d) because MSHA did not require tagging
and locking out when equipment is lubricated (Tr. 52).

1869

Clyde Collins testified that he was the mine superintendent
when Mr. Hays was discharged, and that he came to the No. 62 Mine
from the No. 47 Mine in July, 1989. Mr. Collins confirmed that
he had been fired by the respondent on three occasions, and that
his last discharge was 6 or 7 years ago (Tr. 57). He was fired
for smoking and having smoking articles in his possession, driving deep cuts, and refusing an assignment to another mine section
(Tr. 58).
Mr. Collins stated that he went underground on the day
Mr. Hays was discharged to check on a bridge sprocket which had
been reported out on a prior shift and to check another bridge
sprocket which had been reported out by the immediate night
shift. He found that the speed reducer shaft had a broken
fitting and that it had not been greased. He checked the rest of
the system and found several fittings broken off, and that "a lot
of it hadn't been serviced.
It had just been neglected" (Tr.
64). He spoke with Mr. Hays and asked him if he had serviced the
system within the past 2 days, and Mr. Hays replied that he had
not, and did not know the last time he serviced it. Mr. Collins
then called Mr. Hacker, the maintenance foreman, to come inside
and check out the system. Mr. Collins confirmed that he is the
immediate supervisor of Mr. Hacker, and that Mr. Hacker is
Mr. Hays' supervisor. After checking the system for an hour,
Mr~ Hacker called Mr. Collins and asked him to come out and to
bring Mr. Hays and his tool box with him. Mr. Hays went to
Mr. Hacker's office, but Mr. Collins did not go with him, and did
not speak with Mr. Hays again (Tr. 67).
Mr. Collins confirmed that it was within Mr. Hacker's discretion to discharge Mr. Hays. He also confirmed that Mr. Hays
had never complained to him about any unsafe mine conditions, but
that during a meeting a week or two prior to his discharge, he
believed that Mr. Hays brought up the matter of servicing the
system while it was running, and that he (Collins) informed the
people at the meeting to service the equipment "while it was
belting up" or when bits were changed, and if it could not be
serviced during the shift it was to be reported (Tr. 68).
Mr. Collins denied that he ever observed any repairmen servicing
the system while it was moving, and that no one ever informed him
that this was being done (Tr. 70).
On cross-examination, Mr. Collins confirmed that at the time
he was last discharged by the respondent he admitted that he was
smoking underground, and that most of his crew was also fired
that time, including Mr. Hacker. He confirmed that he knew it
was illegal to smoke underground, but allowed his crew to do it
(Tr. 75). He also confirmed that he was fired for driving cuts
deeper than permitted by the roof-control plan, and that he knew
it was illegal, but did it anyway (Tr. 76).

1870

Mr. Collins confirmed that he did not know Mr. Hays prior to
July or August, 1989, when he became the superintendent at the
No. 62 Mine, and was only familiar with his work at this mine.
Prior to Mr. Hays' discharge, he had no concern about Mr. Hays'
job performance other than his servicing of the system on the day
of his discharge (Tr. 77). The me~ting held prior to Mr. Hays'
discharge concerned personnel on both of the mine sections, and
he had no particular concern about Mr. Hays' job performance at
that time, and no complaints were made to him about Mr. Hays
prior to his discharge on September 7, 1989 (Tr. 78). He identified the particular piece of machinery that he was looking at on
the day of the discharge as a broken sprocket on a bridge of the
haulage system, and confirmed that Mr. Hays was in the process of
repairing it when he arrived underground and called Mr. Hacker
"to come in and check the equipment" (Tr. 70).
Mr. Collins stated that when he spoke with the MSHA special
investigator who investigated Mr. Hays' compliant, he stated that
he had asked Mr. Hacker to come underground to "Look at the
bridge" because it had not been serviced. Mr. Collins stated
that he also told Mr. Hacker to "check his equipment" because he
had checked the entire system prior to calling Mr. Hacker and
found other fittings which were broken and not serviced (Tr. 82).
He could not recall whether or not he told the investigator about
looking at the other equipment or about the other broken grease
fittings, and stated that he told Mr. Hacker to "come in and look
at the bridge" (Tr. 83).
Mr. Collins stated that he was not involved in the decision
to discharge Mr. Hays, and that Mr. Hacker did not discuss his
decision with him. He further confirmed that after Mr. Hacker
came to the mine on the day of the discharge, he did not speak
with him about Mr. Hays' job performance (Tr. 83). He stated
that when the third shift mechanic told him on the day of the
discharge that there was a problem with the servicing of the
equipment, he did not tell him that he believed that Mr. Hays was
not doing his job, nor did he mention anyone in particular who he
believed was at fault (Tr. 84). Mr. Collins confirmed that after
Mr. Hays informed him that he did not know when he had last
serviced the system, he could have fired him, but did not do so.
He ~lso did not suggest to Mr. Hacker that some disciplinary
action needed to be taken against Mr. Hays (Tr. 91).
Mr. Collins believed that while some of the haulage system
could be legally serviced while it was in operation, the remaining portion did not have to be deenergized at the power center
and locked out (Tr. 92). Mr. Collins conceded that in his pretrial deposition he stated that the system had to be deenergized
and blocked against motion in order to service fittings that
could not be safely serviced while the system was in operation.
He further conceded that he had previously stated that in order
to service and oil the fittings, the equipment had to be locked

1871

out at the power center. Mr. Collins stated that he misunderstood the questions asked of him during his deposition, and
confirmed that the equipment must be locked out if electrical
work is being performed. He explained that while servicing the
system "all you would have to do is kick the breaker on the start
box." After speaking with the respondent's safety department, he
formed a different opinion about the need to lock the power out
at the power center before servicing the system (Tr. 95).
Mr. Collins conceded that servicing the system while it is
in operation would expose the serviceman to danger, and that it
could result in his being caught between the equipment and the
rib, or being run over, and that this could result in serious
injury or death (Tr. 95-96). He confirmed that prior to the
discharge Mr. Hacker never told him that Mr. Hays was not reporting to him that equipment needed servicing or repairing, and that
neither he (Collins) or anyone else in management ever disciplined any employee for servicing the system while it was in
operation (Tr. 97). He confirmed that at least five people on
different shifts were responsible for servicing the haulage
system, and when the prior shift mechanic told him that the
system was not being serviced, Mr. Collins did not conclude that
this was Mr. Hays' fault, and he simply concluded that "it wasn't
being serviced" (Tr. 114). He also concluded that "Hays and
Caudill, neither one, wasn't servicing it," and that they were
the only two individuals on the first and second production
shifts on the section who were responsible for servicing the
system (Tr. 114-116). He confirmed that it is not legal to
service a moving part of the system while it was in operation
(Tr. 117) .
Mr. Collins confirmed that after Mr. Hays was discharged,
Mr. Hacker informed him that he had fired him for "not servicing
equipment," but he did not blame Mr. Hays for the broken
sprocket. The sprocket in question has a grease fitting which is
"off-center," and it turns. There was no way it can be serviced
while it is moving, and if the system were running all of the
time, it could not be serviced. However, if this occurred and
there was no time to service it, it is supposed to be reported to
him or to Mr. Hacker. At no time has any serviceman ever
informed him at the end of his shift that there was servicing
left to do.
If it is not reported, he assumes that the system
has been serviced, and no one would know any different unless it
broke down or someone visually inspected it (Tr. 121). He confirmed that he does not ask his people to service the system
while it is in operation, and had no knowledge that Mr. Hays was
doing this (Tr. 122).
Mr. Collins confirmed that there is no company policy or
written instructions advising employees to stop the equipment
before servicing it, and he did not know why this is not covered
by the company safety rules booklet (Tr. 123-124). Respondent's

1872

counsel stated that the safety rule booklet was published at a
time when the haulage system was not in use and that it may be
outdated (Tr. 125, exhibit C-16).
Mr. Collins believed that Mr. Hays was fired for not servicing the entire haulage system, rather than the one bridge
sprocket which was broken, because "we checked the entire haulage
system and there was lots of fittings on it that hadn't been
greased.
There .was fitting on it that were broke" (Tr. 126). He
confirmed that a broken fitting cannot be greased, and that no
broken fittings had been reported. He did not believe Mr. Hays'
assertion that the system was running all of the time and that he
did not want to service it while it was running. He believed
that Mr. Hays could have serviced the system when it was down, as
reflected by the downtime reports, but conceded that he_did not
know what happened on September 6, other than what is reflected
on the form (Tr. 129).
Mr. Collins stated that he has never observed Mr. Caudill or
Mr. Hays use a grease gun to service the system, and that
Mr. Caudill worked a different shift than Mr. Hays.
Prior to the
date of the discharge, he never checked on Mr. Hays' work. He
would have expected Mr. Hays or Mr. Hacker to check the system
and report any broken fittings.
He had no reason to question
Mr. Hays' work prior to his discharge, and Mr. Hacker never
reported any problems with Mr. Hays' work.
He confirmed that
Mr. Hacker only told him that Mr. Caudill and Mr. Hays told him
that they "didn't have time or something other," to service the
system, and that Mr. Hacker did not mention Mr. Hays stating that
he did not believe it was safe to service the system while it was
running (Tr. 133). He believed that Mr. Hays should have asked
for help if he did not have time to service the system, and that
help would have been made available.
In the alternative,
Mr. Hays should have reported that he had not serviced the system
(Tr. 134).
Clavton Hacker· testified that he has served as a maintenance
foreman for the respondent for 5 years, and has been the maintenance foreman at the No. 62 and No. 63 Mines since May 19,
1989. He confirmed that Mr. Hays worked under his supervision as
an electrician, and also worked for him at the No. 49 Mine.
He
confirmed that he fired Mr. Hays (Tr. 143-145). He stated that
on the day Mr. Hays was fired, he received a call from
Mr. Collins to come underground to look at the equipment.
Mr. Hays was working on a broken bridge discharge sprocket shaft,
and Mr. Collins "mentioned about the servicing." Mr. Hacker then
proceeded to look over the system, which consisted of three
carriers and four bridges, and he also looked at the roof-bolting
machines and one of the scoops. He looked at the lubrication
points on all of this equipment and found "a lack of servicing."
He explained that he found six or more grease fittings which were
broken off on major components of the haulage system, identified

1873

the components, and indicated that there was no way they could
have been greased with a grease gun because of the broken
fittings (Tr. 149-150).
Mr. Hacker stated that after looking at the equipment, he
retrieved the cap from the broken sprocket grease fitting, left
the mine, and then called Mr. Collins and asked him to inform
Mr. Hays to come out and to bring his tools with him. He then
spoke with Mr. Hays and Mr. Caudill in his office, and asked them
why they had not serviced the equipment. Mr. Caudill informed
him that he had no time to· service it, and Mr. Hays informed him
that he could not service it while it was running. Mr. Collins
stated that he told Mr. Hays that he was not instructed to
service it while it was in motion, and he explained further as
follows at (Tr. 153):
A. He was instructed to do his servicing within his
shift. He was not told to do all the servicing at one
time, in a complete thirty minutes, forty minutes,
whatever. He was told to do it within the shift,
itself. This could consist of ten minutes at a time
during intervals; I mean, at anytime it was down for a
period of time, which you could maybe get one bridge,
one side of one bridge.
Almost all repairmen will go up and do one side at
a time.
They won't do everything. You know, it's
never -- you know, hardly -- seldom done that all the
machinery is serviced at one time. The only time this
is ever done is in case a belt drive is down for a long
period of time or a stacker is down outside, something
that is going to be a long period of time.
Most all the service is done by just a little bit
at a time. Repairmen keep their grease gun close to
them so they_ can do this. They don't -- you know,
their tools. They're not always having breakdowns to
be working on the breakdown, so it's within theirself,
when they find the time to do this.
Mr. Hacker denied that he ever suggested or instructed his
servicemen to service the equipment while it was running (Tr.
154). At the time that he discharged Mr. Caudill and Mr. Hays,
he was familiar with Mr. Caudill's work record through another
individual who did not work for the respondent, and he had not
previously reprimanded Mr. Caudill. He had previously reprimanded Mr. Hays and suspended him for 3 days for not fixing the
brakes on a shuttle car. He also supervised Mr. Hays' work at
the No. 49 Mine, and received a complaint from another repairmen
in 1989 who asked him to replace Mr. Hays with another repairmen
because Mr. Hays "wasn't going to make it" (Tr. 159). Mr. Hacker
stated that when Mr. Hays previously worked for him he "was young

1874

at his job and I wanted to give him the benefit of the doubt,"
and that "as far as his work is concerned, he would patch things
up, but as far as really passing on and getting the things fixed
correct, he was never really interested in anything like that"
(Tr. 159-160) .
Mr. Hacker stated that he has never observed anyone servicing the haulage system while it was in operation (Tr. 167). He
stated that it was illegal to service a piece of equipment while
it is moving unless it has an extended grease fitting or cup. He
confirmed that each mobile bridge carrier has nine different
locations which have extended grease fitting, but no grease caps.
It would still be illegal to grease these fittings while the
system was running because "the way it moves, you know, if it
would be there by the belt structure not outby the belt structure, you would be in a dangerous position to pin someone" (Tr.
168). Mr. Hacker confirmed that he has worked as an electrician
on a continuous haulage system, and that in his experience, it
has never operated for a full 8-hour production shift.
Both he
and Mr. Collins instructed the servicemen to report the fact that
they were unable to service the equipment during their shift (Tr.
172) .
On cross-examination, Mr. Hacker confirmed that he knew the
miners who testified that they observed Mr. Hays servicing the
haulage system while it was in operation, and that he had no
reason to believe that these individuals were not honest or were
lying (Tr. 175, 177). He confirmed that he did not consider
Mr. Hays to be very good at his job, and that he was not very
good at overall maintenance or mechanical work (Tr. 178). He
confirmed that Mr. Hays had worked for him for a year at the
No. 49 Mine, and that when he learned that he was being transferred to the No. 62 Mine, he (Hacker) did not object (Tr. 179).
Mr. Hacker confirmed that at the time he gave a statement to
the MSHA investigator investigating Mr. Hays' complaint, he told
the investigator that Mr. Hays was fired for not servicing the
mobile bridge carrier the way he was instructed and that the
bearings, grease caps and speed reducers had not been serviced
within the past week.
He stated that the investigator did not
ask him about any of the other equipment, and that he told the
investigator that he had fired Mr. Hays over the mobile bridge
carrier and mentioned no other equipment (Tr. 185-186). He
confirmed that. when the investigator took his statement, a representative of the safety department, Pat Graham, was present, but
he denied that he discussed what he would tell the investigator
with Mr. Graham (Tr. 188). Mr. Hacker further confirmed that in
his deposition he testified that he found that "most" of the
grease fittings on the system were broken off, but that he does
not now believe that six broken fittings was "most" of them (Tr.
189) .

1875

Mr. Hacker stated that when he spoke to Mr. Hays and
Mr. Caudill at the time he fired them, he was showing them the
speed reducer grease cap with a broken fitting, and that ~r. Hays
told him that he could not service the system while it was operating and that it was unsafe to service it while it was operating
(Tr. 190). Mr. Hacker stated "I know it's unsafe to do so, but
why would an individual wait up to this time to complain about
something to you" (Tr. 191). He confirmed that he had no reason
to believe that what Mr. Hays was telling him was not true (Tr.
192) •
Mr. Hacker confirmed that he knew at the time of the discharge of Mr. Hays that it was illegal to service the system
while it was in operation, and that this included all of the
fittings.
He stated that the system has extended fittings on the
manifolds, and blocks on each side of the mobile carrieri, but
that he did not mention this during his prior deposition and
stated at that time that there were no extended fittings, and
that this was what he believed at the time he fired Mr. Hays. He
subsequently learned of the existence of extended fittings when
he examined the system (Tr. 193-194). He also confirmed that he
previously stated during his deposition that any time the system
was greased, it had to be deenergized and blocked against motion,
but that he was confused about the question because he had previously talked about electrical or maintenance work (Tr.
195-197). He denied that he thought the haulage system had to be
deenergized and locked out at the time he fired Mr. Hays, and
conceded that his present testimony was different from his prior
deposition testimony "on that specific thing'' (Tr. 198) •
Mr. Hacker agreed that if an electrician were greasing the
system with the breaker off on the machine, and if someone were
to turn the breaker on and the machine was not locked out, the
electrician could be injured (Tr. 199). He stated that electrical work must be locked out and tagged, and that the term
"maintenance" found in section 75.1725, includes greasing and
oiling. He confirmed that when one is greasing the system,
machinery motion is not required in order to make adjustments,
and that it is his understanding that if any greasing is performed on the system, the power must be off and it must be
blocked against motion (Tr. 201).
Mr. Hacker confirmed that he never informed Mr. Hays or any
of his electricians that the machine had to be deenergized and
locked out while they were greasing it. He believed that the
particular grease fitting which he showed Mr. Hays at the time he
fired him could be safely greased while the system was in operation, and he saw no danger in doing this, and did not believe
there was any way that an injury would occur while greasing the
system while it was in operation. He confirmed that even though
he thought it was illegal to grease the system while it was in
operation, and thought that half of the fittings on the whole

system could be safely greased while it was in operation, he was
not going to let his men do it (Tr. 203-204). He confirmed that
he had never disciplined any employee for greasing the system
while it was in operation, and stated that "I only know the
safety department said it was against policy" (Tr. 205).
Mr. Hacker confirmed that the grease cap with the broken
fitting which he showed to Mr. Hays at the time of his discharge
had nothing to do with the equipment breakdown which Mr. Hays was
working on at that time (Tr. 211). Mr. Hacker acknowledged that
he did not ask Mr. Hays about his work that day and had no knowledge as to what he was doing. Mr. Hacker confirmed that servicing the system while it was in operation could result in serious
or fatal injuries to a miner and this is why it is illegal to
grease or oil the system while it is in operation. Mr. Hacker
further confirmed that 2 days before the discharge he conducted
an electrical inspection of the system and did not observe any
broken grease fittings (Tr. 212-213).
Prior to the discharge, no
one ever reported any broken grease fittings, including the
equipment operators who are responsible for the pre-ope.rational
inspection of their equipment and the reporting of any broken
fittings (Tr. 214-215).
Mr. Hacker stated that prior to the discharge of Mr. Hays,
he never told him that he was not complying with the maintenance
"card system," and no one from management ever complained that
Mr. Hays was not complying with this system. Mr. Collins has
never "written up" Mr. Hays for failing to notify management
about any needed equipment repairs or servicing, and many times
Mr. Hays would have been responsible for repairing equipment, and
when he finished, the system would begin operating immediately
(Tr. 218).
During the 2 or 3-weeks prior to the discharge,
Mr. Hacker was not aware of any time that he or the section
foreman suggested that the system be shutdown so that Mr. Hays
could grease it, and that this would be an unusual procedure
because he tries to get the least amount of downtime on a production shift (Tr. 221). He confirmed that the electricians did not
always contact him personally to report work that needed to be
done, and they would frequently call "Mabel in the light house"
and she would write down what was needed (Tr. 222).
Mr. Hacker confirmed that on the day of the discharge,
Mr. Hays informed him that it would be unsafe to grease the
system while it was in operation. Prior to firing Mr. Hays,
Mr. Hacker made no inquiries to determine whether Mr. Hays was in
fact greasing the system while it was in operation (Tr. 225). He
confirmed that the 3 hour and 15 minute downtime shown on one of
the reports resulted from two broken sprockets, but he did not
attribute this to Mr. Hays' failure to service the system
properly. The broken sprockets were not the result of any lack
of oil or grease, but were caused by cutting rock, and there was

1877

nothing Mr. Hays could have done to prevent the sprockets from
breaking (Tr. 229).
Mr. Hacker stated that his visit underground on the day of
the discharge was prompted by the two broken sprockets and the
grease cap that Mr. Collins and Mr. Hays found while working on
the equipment which was down (Tr. 230). He showed the cap to
Mr. Caudill and Mr. Hays "because that was a topic to get started
on the servicing of the equipment," and the lack of grease on the
cap raised an inference that Mr. Caudill and Mr. Hays were not
doing their job (Tr. 231). Commenting on some of the entries
made by Mr. Hays in his daily notebook, exhibit C-1, Mr. Hacker
stated "That is the best I've ever saw" and "That is very impressive." He confirmed that Mr. Hays never showed him the book, and
if he had, it would have changed his mind because the notations
reflect "a very hard working individual right there" (Tr-. 233).
However, based on what he knew of Mr. Hays, Mr. Hacker did not
believe him to be a very hard worker (Tr. 234).
Mr. Hays was recalled by the Court, and he stated that on
the day of his discharge he was not aware of any broken fittings
on the system except for the one which had broken that day.
He
confirmed that when he could not grease the offset fittings, they
were left ungreased and he did not report this (Tr. 240).
He
stated that Mr. Hacker instructed him to grease the system while
it was in operation and told him that this was the way he preferred it (Tr. 241). Mr. Hays stated that prior to his discharge
he told Mr. Hacker that he had a problem with greasing the system
-while i t was moving, and that he greased it while it was moving
because he believed he was expected to and wanted to keep his
job, and no one told him that he was not supposed to grease the
system while it was moving (Tr. 244).
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom.
Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way
motivated by protected activity.
If an operator cannot rebut the

1878

prima facie case in this manner it may nevertheless affirmatively
defend by proving that (1) it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982}. The ultimate burden of
persuasion does not shift from the complainant. Robinette,
supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Fasula-Robinette test). See also NLRB v. Transportation
Management Corporation,
U.S.
, 76 L.ed.2d 667 (1983},
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Protected Activity
A miner has the right under section 105(c) of the Act to
refuse to work if he has a good faith, reasonable belief that his
continued work involves a hazardous condition. Fasula, supra,
2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12;
Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30
(February 1984), aff 'd sub nom. Brock v. Metric Constructors
Inc., 766 F.2d 469, 472-73 (11th Cir. 1985). However, where
reasonably possible, a miner refusing work ordinarily must
communicate or attempt to communicate to some representative of
the operator his belief that hazardous conditions exists.
In a
number of safety related "work refusal" cases, it has been
consistently held that a miner has a duty and obligation to
communicate his safety concerns to mine management in order to
afford the operator with a reasonable opportunity to address
them. See: Secretary ex rel. Paul Sedgmer et al. v.
Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Simpson v.
Kenta Energy, Inc. & Roy Dan Jackson, 8 FMSHRC 1034, 1038-40
(July 1986}; Secretary on behalf of Dunmire & Estle v. Northern
Coal Co., 9 FMSHRC 992 (June 1987); Miller v. FMSHRC 687 F.2d
194, 195-97 (7th Cir. 1982) (approving Dunmire & Estle communication requirement);. Sammons v. Mine Services Co.-~· 6 FMSHRC 1391
(June 1984); Charles Conatser v. Red Flame Coal Company, Inc.,
11 FMSHRC 12 (January 1989), review dismissed Per curiam by
agreement of the parties, July 12, 1989, U.S. Court of Appeals
for the District of Columbia Circuit, No. 89-1097.
In Gilbert v. Sandy Fork Mining Company, 12 FMSHRC 177
(February 1990), on remand from Gilbert v. FMSHRC, 866 F.2d 1433
(D.C. Cir. 1989), rev'd Gilbert v. Sandy Fork Mining Co.,
9 FMSHRC 1327 (1987), it was held that a violation of section
105(c) is established when a miner has a reasonable, good faith
belief that certain work conditions are hazardous, communicates
that belief to mine management, and management does not address
his safety concerns in a manner sufficient to reasonably quell
his fears.

1879

The complainant views this case as a "work refusal" case,
and takes the position that Mr. Hays' refusal to fully grease the
continuous haulage system was both reasonable and made in good
faith.
The respondent argues that in order to demonstrate "good
faith," Mr. Hays must show that he timely informed the respondent
of his belief in the safety hazard so that the respondent would
have an opportunity to correct the situation. Respondent takes
the position that a work "refusal" requires communication of a
miner's intention not to perform work, and that the purpose of
the Act is not served when a miner keeps his "refusal" to do
unsafe work to himself. Respondent concludes that Mr. Hays'
surreptitious failure to service the grease fitting on the speed
reducer shaft for 5 consecutive days did not constitut-e a valid
work "refusal" protected by the Act.
Although Mr. Hays' discrimination complaint may not directly
involve a "work refusal" in the traditional sense, I conclude and
find that the principles enunciated in the aforementioned case
law apply in this case, and that Mr. Hays' reluctance or failure
to service the haulage system or any of its component parts in
question while it was in operation because of his belief that to
do so would be unsafe and hazardous and would expose him to
serious injuries would be protected activity within the intent
and scope of section 105(c) of the Act. Mr. Hays has the burden
of establishing that he was required or expected to service the
system while it was in operation, that servicing it while it was
in operation was unsafe and hazardous, that his safety concerns
with respect to the servicing of that equipment were reasonable
and made in good faith, and that he timely communicated these
concerns to mine management.
The Safety Issue
MSHA's mandatory safety standards, which are applicable to
the respondent's mine, provide in relevant part as follows:
§ 75.509
Electric power circuit and electric
equipment; deenergization.

[STATUTORY PROVISIONS]
All power circuits and electric equipment shall be
deenergized before work is done on such circuits and
equipment, except when necessary for trouble shooting
or testing.

1880

§ 75.1725
Machinery and equipment; operation and
maintenance.

(a) Mobile and stationary machinery and equipment
shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be
removed from service immediately.
(b) Machinery and equipment shall be operated
only by pers.ons authorized to operate such machinery or
equipment.
(c)
Repairs or maintenance shall not be performed
on machinery until the power is off and the machinery
is blocked against motion, except where machinery
motion is necessary to make adjustments.
(d) Machinery shall not be lubricated manually
while in motion, unless equipped with extended fittings
or cups.
The respondent argues that it never required or instructed
Mr. Hays to service the system while it was in operation and that
the testimony of Mr. Garcia, Mr. Collins, and Mr. Hacker establishes that Mr. Hays was not instructed to grease equipment while
it was running, but was instead instructed to work safely in
general and specifically to perform his greasing duties during
"those scattered occasions throughout the shift when there were
pauses in production for various reasons." Respondent believes
that such idle times did occur during the shift, and that if they
did not, or if Mr. Hays found them too short or to infrequent to
allow for complete servicing of the equipment, he should have
made this fact known to somebody in charge. Assuming that
Mr. Hays did not have sufficient down time to service the equipment, the respondent concludes that he apparently worked on the
equipment in an unsafe manner and/or left the work undone and
failed to advise management that the work was not being done.
Respondent's General Mine Manager Garcia had no knowledge of
any company policy regarding the servicing of the haulage system,
and he was unaware of any policy requiring anyone to lubricate
the equipment while it was in motion or being trammed. However,
he confirmed that he would not approve of, and would avoid, the
shutting down of the haulage system during a production shift for
the purpose of servicing it. He conceded that servicing the
equipment while it was in operation would be a violation of
section 75.1725. He further conceded that subsection (c) of
section 75.1725, would require the equipment to be deenergized
and blocked against motion while it is serviced, but that it was
not required to be tagged or locked out. He also considered
"repairs," as that word is used in subsection (c), to include

1881

lubrication of the equipment, and assumed that any lubrication is
covered separately by subsection (d) of section 75.1725.
Mine Superintendent Collins denied that he ever observed
anyone servicing the haulage system while it was in operation,
and he confirmed that no one ever informed him that this was
being done. Although Mr. Collins believed that a portion of the
haulage system could legally be serviced while it was in operation, and that the remaining portion was not required to be
deenergized at the power center and locked out, he conceded that
the electrical breaker on the "start box" had to be "kicked"
while the system was being serviced. When asked to reconcile his
testimony with his prior deposition testimony that the system had
to be locked out at the power center before servicing and oiling
the fittings, Mr. Collins stated that he misunderstood __the questions asked of him during his deposition and that his present
opinion is that the equipment has to be locked out only if electrical work is being performed.
I have reviewed Mr. Collins' pretrial deposition of
April 25, 1990, and I cannot conclude that the questions asked
and answered at pages 26 through 31 are confusing. The questions
pertained to the greasing and oiling of the system fittings, and
not to any electrical work. Mr. Collins' deposition testimony
reflects his belief that two or three fittings, or those fittings
located together at the front of the bridge carrier operator's
control station, could be safety greased while the equipment was
running because they are stationary and have no turning shafts
and "there's nothing you can get hung into" (Q212 answer, pgs.
27-28). He further clarified his answer when he stated that the
carriers are equipped with some, but not all, fittings which are
extended or have cups, but that none of these fittings have
anything extending out from the grease fitting itself (Q231-233
answers, pgs. 30-31). Mr. Collins doubted that it would be legal
to oil the system while it was running and stated "I don't even
see how you can put oil in it with it running" (Q218 answer, pg.
28). He also confirmed that in order to service the system
fittings which were not otherwise safe to service, the system
power had to be deenergized and the system had to be blocked
against motion and he stated that "that's the only way you could
service it" (Q228-229 answers, pg. 30).
During his hearing testimony, Mr. Collins confirmed that
servicing a moving part of the system while it was operating is
illegal, and he conceded that servicing the system while it is in
operation would expose the serviceman to danger, and could result
in his being caught between the equipment and the rib, or being
run over, and that this could result in serious injury or death.
This testimony is consistent with his deposition testimony that
servicing the equipment while it is running would expose an
electrician to serious hazards and injuries (deposition, pgs.
31-32). Mr. Collins also conceded during his trial testimony

1882

that a fitting which is "off-center" and is turning while the
system is operating cannot be serviced because it is impossible
to grease them while the system is in operation. He also conceded that a broken fitting cannot be greased.
Maintenance foreman Hacker denied that he ever suggested or
instructed his service personnel to service the system while it
was in operation, or that he ever observed anyone servicing the
system while it was in operation. He confirmed that he expected
each serviceman to service the system "when they find the time to
do it." He was unaware of any time that the section foreman
suggested that the system be shutdown so that Mr. Hays could
grease it, and he confirmed that this would be an unusual procedure during a production shift because he tries to have the least
amount of "downtime."
Mr. Hacker conceded that it was illegal to service the
haulage system while it was in operation, and that it would be
illegal to service any equipment while it was moving unless it
was equipped with an extended grease fitting or cup. Although he
confirmed that each bridge carrier has some extended grease
fitting at different locations, he confirmed that these fittings
have no grease caps and that it would still be illegal to grease
these fittings while the system was in operation because it would
expose the serviceman to a hazard of being pinned if it were
operating near a belt structure. Although Mr. Hacker claimed
some confusion about his prior deposition testimony that the
system had to be deenergized and blocked against motion when it
was being greased, he agreed that if an electrician were greasing
the system with the circuit breaker off, if someone were to turn
the breaker back on, and the equipment was not locked out, the
electrician could be injured.
Mr. Hacker agreed that the term "maintenance" as found in
section 75.1725, includes greasing and oiling, and that when the
system is being greased, machinery motion is not required in
order to make any adjustments. He confirmed that it was his
understanding that if any greasing is being performed on the
system, the power must be off and the system must be blocked
against motion.
Mr. Hacker conceded that at the time he discharged Mr. Hays,
even though he knew that it was illegal and unsafe to service the
system while it was running, he had never informed Mr. Hays or
any of his electricians that the system had to be deenergized
before it was serviced. Mr. Hacker further conceded that during
his discussion with Mr. Hays on the day of his discharge, and
immediately prior to discharging him, Mr. Hays told him that he
could not service the system while it was in operation because he
believed it was unsafe. Mr. Hacker acknowledged that he had no
reason to believe that Mr. Hays was not telling the truth about
his safety concerns, and that he had no reason to question the

1883

honesty of the miner witnesses who testified about their servicing of the system while it was running, or their safety concerns
and the hazards of servicing the system while it was in
operation.
Former MSHA official William Craft testified credibly that
pursuant to mandatory safety standard 30 C.F.R. § 75.509, the
greasing and lubrication of the haulage system in question
encompasses "work"· and "equipment" within the meaning of this
section, and the system must be deenergized before this kind of
work is performed. He also confirmed that lubricating the system
without deenergizing it would be unsafe and would constitute a
violation of mandatory safety standard 30 C.F.R. § 75.1725(c) or
(d) •

Mr. Hays testified that Mr. Hacker was aware of the fact
that the system was being serviced while it was in operation
because Mr. Hacker had instructed the servicemen to do so.
Mr. Hays also testified credibly that when he previously informed
Mr. Hacker that he could not grease the fittings while the system
was in operation, Mr. Hacker informed him that the system could
not be shutdown for greasing, and instructed him to grease the
speed reducers while the bearings were turning and informed him
that the system could be greased while it was in operation
because he had done so himself and knew that it could be done.
Mr. Hays stated that he knew it was illegal and unsafe to service
the system while it was in operation but did it anyway because he
was told that he would be replaced if he didn't, and he confirmed
that he asked Mr. Hacker to permit him to stay over his shift to
service the system while it was not in operation, but was
refused.
Mr. Jerry Caudill testified that when he worked as a second
shift electrician, he was expected to service and oil the system
while it was in operation, and that Mr. Hacker and his section
foremen knew that he was servicing the system while it was in
operation because they observed him doing it. Mr. Caudill
further testified that he complained to his foremen about servicing the equipment while it was running, but they did nothing
about it. He also informed Mr. Hacker on at least four different
occasions that it was dangerous, but that Mr. Hacker "wasn't
going to hear no excuses."
Shift foreman .and electrician Terry Richardson testified
that he had serviced the system while it was in operation and not
deenergized. Roof bolter Marty Lewis, who worked with Mr. Hays,
confirmed that he observed Mr. Hays greasing the system when it
was not deenergized. Miner operator Dewey Eldridge observed
Mr. Hays servicing the system while it was in operation and not
locked out.
Bridge carrier operator David Combs testified that
while he observed Mr. Hays greasing and oiling the system, he
never observed him doing this while the system was in operation.

1884

However, he confirmed that the system power was on while Mr. Hays
serviced it, and he never saw the system shutdown or locked out
at the power center while this work was being done. Scoop operator Clifton Lewis, who also worked with Mr. Hays at the time of
his discharge, testified that he observed Mr. Hays servicing the
system while it was in operation, and that it was never deenergized or locked out while he was doing this work. Scoop operator
Gary Caudill also worked with Mr. Hays and he confirmed that he
observed Mr. Hays servicing the equipment while it was in
operation.
The credible testimony of Mr. Hays and Mr. Jerry Caudill, as
corroborated by the credible testimony of the other equipment and
system operators, establishes that Mr. Hays serviced the system
while it was in operation. Although Mr. Hacker denied that he
ever observed anyone servicing the system while it was--in operation, I credit the testimony of Mr. Hays and Mr. Caudill that
Mr. Hacker and other foremen had observed them servicing the
system while it was in operation.
I also credit the testimony of
electrician foreman Richardson who confirmed that he serviced the
system while it was in operation and not deenergized, and
Mr. Hays' testimony that Mr. Hacker would not allow the system to
be shutdown for greasing because he had greased it himself while
it was in operation and believed that it could be done.
The credible and unrebutted testimony of Mr. Hays and
Mr. Jerry Caudill reflects that the servicing of the haulage
systems at all of the respondent's mines where they had worked
was done while it was in operation and that this was a standard
practice or procedure. Although management was aware of the fact
that servicing the system while it was in operation was contrary
to the law and exposed its service personnel to potential hazards
and injuries, there is no evidence that management ever issued
any instructions or adopted any safety rules prohibiting this
practice, and it never disciplined anyone for doing this.
Notwithstanding the lack of any written or published company
policy requiring the system to be serviced while it was in operation, the testimony of respondent's management personnel in this
case reflects that short of a mechanical breakdown in the system,
they would not approve of routinely shutting down the system or
scheduling a shutdown to allow its service personnel ample time
to grease, oil, or perform other normal and routine servicing of
the system while it was not in operation. Management expected
• Mr. Hays to find the time during his shift to service the system,
preferably during the "belting up" and changing of the miner
bits, would not allow him to stay over and service the system
while it not operating, would accept no excuses or explanations
from him if he failed to service the system during his shift, and
apparently simply expected him to report the fact that he could
not service the system during his shift. Under all of these
circumstances, I conclude and find that management condoned and

1885

tacitly approved of Mr. Hays' practice of servicing the system
while it was in operation.
I further conclude and find that it
was not unreasonable for Mr. Hays to conclude that he was
expected and required to service the system while it was in
operation.
Mr. Jerry Caudill testified that greasing some of the
fittings on the carrier, including the speed reducers, regardless
of whether they were centered or off-centered on the shaft, while
he was "riding" it or "on the run" between the machine and coal
rib would place him at risk of being caught against the rib or in
the conveyor chain or slide pan, and that he has had "close
calls" on more than one occasion while attempting to service the
system under these conditions. Electrician and foreman
Richardson believed that it was possible for someone to b..e
injured or killed while attempting to service the system while it
was in operation.
Although bridge carrier Combs testified that he can engage
an emergency stop control to stop the carrier from advancing and
stop the miner machine, and that he could observe Mr. Hays at all
times if he were servicing the system while it was moving if
Mr. Hays were standing erect or hunched over, he could not see if
he were lying down or on his knees greasing the fittings, and
could not see him if he were at the rear of the machine unless he
(Combs) turned around to look.
Mr. Collins conceded that servicing the system while it was
in operation could result in the individual doing the work being
caught between the machine and the rib, or being run over, and
that this could result in serious injury or death. He also
conceded that it would be impossible to service a fitting which
is off-centered while the system is in operation.
Mr. Hacker conceded that servicing the system while it was
in operation was illegal and unsafe. Although he alluded to
several carrier fittings which have extended fittings, he confirmed that they were not equipped with grease caps and that it
would still be illegal to grease these fittings while the system
was running because he could be pinned against a belt structure.
He agreed that an electrician greasing the system while the
system power was off but not locked out, could be injured if the
power breaker was turned on.
Having viewed Mr. Hays during the course of the hearing, I
find him to be a credible witness, and I take note of the fact
that Mr. Hacker had no reason to disbelieve his assertions that
the servicing of the system while it was in operation exposed him
to hazards and potentially serious or fatal injuries. Mr. Hays
believed that it was physically impossible to attach a grease
hose to an off-centered carrier speed reducer fitting while it
was turning on the shaft and while the system was in operation,

1886

and Mr. Collins agreed that this was true. Although Mr. Hays
indicated that he could physically attach a grease hose to a
fitting which was centered and not turning on the shaft, he
believed it was unsafe to do so and had to watch and stay out of
the way of the moving equipment while doing this, and that he
could be run over or pinned against the rib by the machine,
particularly if he were unaware that the bridge carrier operator
would moved the machine.
Mr. Hays also believed that he could be seriously injured
while servicing the system while it was in operation, and that
none of the system fittings he was required to service had
extended fittings.
He stated that he had to "ride" or lie on top
of the machine to grease the fittings when there was no room for
him to stand between the machine and the coal rib when the miner
was cutting coal in a belt entry.
Because of the location of
some of the fittings he had to lay on top of the machine while it
was moving in order to reach them, and would have to position his
body between the coal rib and the machine to reach other
fittings.
With regard to the five grease fittings located at the
bridge carrier block, he had to lay on the machine to reach them
and this exposed him to a hazard of coming in contact with the
mine roof.
Given all of the aforementioned circumstances, I conclude
and find that Mr. Hays had a reasonable and good faith belief
that greasing, oiling, or servicing the haulage system in question, including its component parts and bridge carrier speed
reducer with off-centered fittings which turned on a shaft, while
the equipment was energized and in operation or moving, would
expose him to dangerous safety hazards and possible serious or
fatal injuries. Although Mr. Hays may not have directly refused
to service the system while it was in operation, and he acknowledged that he had previously serviced it while it was in operation, I accept as credible his assertion that he was instructed
to do so by Mr. Hacker, that he reasonably believed that he would
be replaced if he did not follow these instructions, and that he
had reasonable grounds for believing that management expected or
required him to service the system while it was in operation,
regardless of any resulting hazard or injury exposure.
I conclude and find that the respondent required or expected
Mr. Hays to service the haulage system, including its component
parts, while it was in operation, and that his failure to do so
was tantamount to a work refusal.
I further conclude and find
that this work refusal was reasonable and made in good faith, and
that it constitutes protected activity within the scope and
intent of section 105(c) of the Act.

1887

Mr. Hays' Communication of His Safety Concerns to Mine Management
Mr. Garcia's suggestion that Mr. Hays should have discussed
his safety concerns with someone "higher up" in management is
rejected. The credible testimony establishes that Mr. Hays
specifically informed maintenance foreman Hacker of his safety
reasons for not servicing the haulage system immediately before
Mr. Hacker discharged him, and Mr. Hacker himself acknowledged
that this was true and that he had no reason to disbelieve
Mr. Hays. Rather than addressing Mr. Hays' concerns, or taking
them into consideration, Mr. Hacker summarily discharged him, and
he did so without any further inquiry as to the work which
Mr. Hays may have performed on the system prior to the discharge.
The credible and unrebutted testimony of Mr. Hays and Mr. Caudill
establishes that Mr. Hacker would accept no excuses for what he
believed was a failure by Mr. Hays to service the equipment.
The credible testimony of Mr. Hays reflects that during a
meeting held a week or two prior to his discharge, and in the
presence of Mr. Hacker and Mr. Collins, he raised his safety
concerns about servicing the system while it was in operation,
and Mr. Collins acknowledged and believed that this was true.
Further, Mr. Hays' testified credibly that he had previously
voiced his safety concerns about servicing the system while it
was in operation with Mr. Hacker and complained to Mr. Hacker
about the matter when he worked at the No. 49 Mine, and that he
had "confronted" Mr. Hacker "face to face" about greasing the
speed reducers while the system was in operation.
Under all of the aforementioned circumstances, I conclude
and find that Mr. Hays' concern and belief that the greasing and
servicing of the system while it was in operation was unsafe and
hazardous and exposed him to potential injuries was communicated
to mine management prior to his discharge, and that management
had a reasonable opportunity to address his safety concerns, but
did nothing about it. I further conclude and find that Mr. Hays'
communications were timely made and that they met the requirements enunciated by-the Commission in Secretary of behalf of
Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (February
1982), Secretary on behalf of John Cooley v. Ottawa Silica
Company, 6 FMSHRC 516 (March 1984); and Gilbert v. Sandy Fork
Mining Company, supra.
The Respondent's Defense
The respondent takes the position that the complainant has
not established that he engaged in any protected activity and has
not established a prima facie case of discrimination. The
respondent argues that Mr. Hays' termination was not motivated in
any part by any protected activity, and that he was discharged
for not servicing other equipment which was found to be dry and
dusty and ungreased when it was examined by his supervisors

1888

(Collins and Hacker).
The respondent points out that prior to
the inspection of this equipment by the supervisors, they were
unaware that Mr. Hays and Mr. Caudill were not lubricating those
parts properly, and until they discovered that grease fittings
were missing or broken, they had no knowledge that the work was
not being performed. After meeting with both miners, Mr. Hacker
questioned them and fired them both.
The respondent argues further that at the time of the discharge of Mr. Hays, Mr. Hacker knew about his "record of previous
misconduct," and attempted to find a niche for him at the mine in
spite of his feelings that he was the best of workers. Although
Mr. Hacker believed that Mr. Caudill had a poor work record, when
Mr. Hacker's superiors reviewed the dismissals and discovered
that Mr. Caudill had never been disciplined before, they offered
him reinstatement. Respondent concludes that this "is the most
compelling evidence of the respondent's true motive," and that if
the respondent had wanted to punish miners for exercising their
rights to safe working conditions it would not have brought
Mr. Caudill back to work.
The respondent's termination notice of September 7, 1989,
reflects that Mr. Hays was terminated for "unsatisfactory performance," and the explanation for this action is shown as
"Improper Servicing of Equipment." In its answer to the complaint, respondent states that Mr. Hays was discharged "in part"
because he "had not serviced a grease fitting for the speed
reducer on the No. 1 bridge" (emphasis added).
During his opening statement at the hearing, the respondent's counsel stated
that Mr. Hays was discharged because of his failure "to service a
large number of the components that were within his responsibility" and that "the single grease fitting on the speed reducer
shaft was merely the means by which his failure to do his job was
discovered" (Tr. 12).
Counsel further stated that when the speed
reducer broke down, Mr. Hacker examined it and found that it had
not been greased. At the same time, he found other pieces of
equipment that had not been maintained and summoned Mr. Hays to
his off ice and interviewed him regarding his failure to service
"the equipment." Counsel concluded that Mr. Hays' previous
disciplinary record, coupled with his "egregious failure to
service any equipment on the day . . . or during the week preceding his discharge" led to his termination (emphasis added, Tr.
13) •

The complainant asserts that he was discharged because of
his refusal to grease the No. 1 bridge carrier speed reducer
grease fitting.
Complainant argues that it is undisputed that
when Mr. Hacker met with him and Mr. Caudill immediately prior to
his discharge he showed them the offset grease fitting that
Mr. Collins had discussed with him earlier that afternoon, and
asked them when they had last serviced it.
Complainant maintains
that at no time during his conversation with Mr. Hacker did

1889

Mr. Hacker claim that he had found other broken grease fittings
on the section, nor did he accuse him or Mr. Caudill of failing
to service other equipment on the section. Complainant points
out that during his extensive trial testimony Mr. Hacker did not
claim that he had discussed other broken grease fittings and/or
the failure to service other equipment with him or Mr. Caudill,
and that Mr. Caudill unequivocally testified that they were both
fired "over that grease cap." Complainant further points out
that the respondent's general manager Garcia testified that he
was discharged for failing to lubricate the continuous haulage
system and that Mr. Garcia was not told that management had found
numerous broken grease fittings, or that the complainant had also
failed to service other equipment on the section.
The complainant states that Mr. Hacker admitted that prior
to the day of the discharge, there had not been any repo~ts of
broken grease fittings on the section despite the fact that the
individual equipment operators were required to inspect their
equipment each shift prior to its operation.
Complainant points
out that Mr. Hacker also admitted that he had been on the section
every other day prior to the discharge and never saw any of the
several broken grease fittings that he claimed to have found that
day.
Complainant asserts that Mr. Hacker attempted to avoid this
inconsistency by stating that the grease fittings could not have
been broken for long (when he allegedly discovered them on the
day of the discharge) because otherwise breakdowns of the haulage
system would have occurred. Complainant concludes that this
explanation contradicts the respondent's argument that he had not
serviced any of the equipment on the section during the week
preceding his discharge.
Complainant further concludes that had he failed to service
all of the equipment, it is clear that equipment breakdowns would
have occurred. However, there were no such breakdowns, and the
respondent admitted that the broken conveyor sprocket which
malfunctioned on the day of the discharge did not break because
of the failure to grease the offset fitting in question.
Complainant emphasizes the fact that although Mr. Hacker claimed
at his deposition that "most" of the grease fittings on the
haulage system were broken when he inspected the system, at
trial, he alleged that he had only found about six broken
fittings.
The complainant points out that the respondent failed to
call any day shift or second shift foremen to testify to his
alleged failure to service the haulage system and other equipment
on the section, and failed to elicit testimony from any supervisory or hourly employees regarding his otherwise allegedly poor
job performance.
On the other hand, complainant states that he
called six former coworkers and equipment operators who testified
credibly that he was a good worker, and that Mr. Collins admitted
that he had not received any complaints from Mr. Hacker, or

1890

anyone else,· regarding his job performance prior to discovering
the broken grease fitting on the day of his discharge.
The complainant asserts that the respondent's allegations
that he had not serviced any of the equipment on the section
during the week prior to his discharge and that he admitted this
to Mr. Collins on the day of the discharge are refuted by the
daily notes which he kept in order to keep track of the repair
work that needed to be done.
Complainant points out that after
reviewing these .notes during the hearing, Mr. Hacker stated that
the amount of work reflected by these notes was "very impressive"
and revealed a "hard working individual" who had put in a "very
rough day."
The complainant argues that the hearing testimony of
Mr. Collins and Mr. Hacker is inconsistent with their prior
statements made to the MSHA special investigator during-the
investigation of his complaint. Complainant points out that
Mr. Collins did not tell the investigator that he had examined
other equipment on the section after observing the broken grease
fitting on the day of the discharge, or that he had found other
broken fittings.
Complainant states that Mr. Collins' statement
indicates that after he saw the broken grease fitting on the
No. 1 bridge, he told Mr. Hacker to "come underground and look at
the bridge," and does not reflect that he asked Mr. Hacker to
examine the entire haulage system and the other equipment on the
section. With regard to Mr. Hacker, complainant argues that he
did not tell the investigator that the complainant had been
discharged for failing to service equipment other than the mobile
bridge carrier.
Complainant asserts that Mr. Collins' testimony that the
complainant did not complain that it was unsafe to service the
haulage system while it was in operation at the time he asked
about the broken grease fitting is not credible in light of
Mr. Hacker's admission that the complainant raised this issue
immediately after being sent out of the mine.
Complainant notes
that Mr. Collins, who testified in a previous safety discrimination case, was found by Judge Melick not to be a credible
witness. Tolbert v. Chaney Creek Coal Corporation, 9 FMSHRC 580
at 583-584, 589 (March 1987).
The complainant asserts that Mr. Hacker's lack of credibility is plainly evidenced by his testimony regarding the complainant's reassignment to the day shift electrician's job. Complainant points out that although Mr. Hacker testified that he considered the complainant to be an inept electrician who was not
interested in doing a good job, and claimed that the complainant's previous foreman had told him that the complainant would
have to be replaced, Mr. Hacker transferred the complainant to a
production shift a couple of weeks before his discharge.
The
complainant finds incredible Mr. Hacker's testimony that he does

1891

not usually try to put good electricians on his production shifts
and assigns his worst electricians to those shifts.
The complainant also concludes that Mr. Hacker's testimony
that he told the complainant that he was not instructed to service the haulage system while it was in motion is likewise
clearly not credible. In support of this conclusion, the complainant points out that had Mr. Hacker just learned for the
first time that his electricians were servicing the haulage
system while it was in operation, and had he been concerned
enough to tell them they were not supposed to do this, he would
certainly have investigated the situation further. However,
Mr. Hacker made no further inquiry to determine whether the
system was being greased while it was in operation, and when the
complainant complained to him about the dangers of servicing the
system while it was in operation, he was precipi tately--discharged. Complainant concludes that his abrupt discharge clearly
indicates that Mr. Hacker knew that the haulage system was
regularly being serviced while it was in operation, and that his
refusal to service the fitting in question was the reason for his
discharge.
With regard to the three prior disciplinary actions taken
against him, the complainant takes the position that they are
irrelevant to the issue presented in this case, and he points out
that in each case he refused to sign the disciplinary slips
because he disagreed with the reasons for the stated discipline.
Complainant also points out that Mr. Hacker confirmed that he was
never disciplined by the respondent for failing to notify management of repairs that needed to be made. The complainant points
out that if he were discharged for his protected refusal to
service the offset grease fitting in question, then his discharge
clearly was in violation of the Act.
If, on the other hand, he
was discharged for the unprotected failure to service any of the
equipment on the section during the week preceding his discharge,
as claimed by the respondent, his discharge did not contravene
the Act. However, even assuming that this was a mixed motivation
case, complainant concludes that his prior disciplinary record,
i.§., his unprotected activities, would not be at issue,
Secretary of Labor on behalf of Pasula v. Consolidation Coal
Company, 2 FMSHRC 2786, 2800 (1980), rev'd on other grounds
sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211
(3d Cir. 1981).
Complainant asserts that the respondent failed to introduce
any concrete evidence to support its attempts to establish that
he may have had time during the final week of his employment in
which he could have serviced the eight offset grease fittings
that he refused to grease while the haulage system was in operation, and that its trial testimony in this regard was mere conjecture. The complainant believes· that the respondent's defense
in this case is misplaced and that the gravamen of this case is

1892

that the respondent required him to spend 1-1/4 hours or more
every shift performing an unsafe and unlawful act, namely,
servicing the continuous haulage system while it was in
operation.
The complainant concludes that the fact that he regularly
acceded to the respondent's unlawful requirement by servicing
most of the system while it was in operation does not absolve the
respondent of liability for his unlawful discharge for refusing
to service the offset grease fitting on the No. 1 bridge.
Complainant further concludes that the fact that there theoretically may have been 5 minutes available to him during which the
haulage system could have been deenergized and the fitting in
question serviced, is irrelevant, and that the respondent cannot
dissolve its unlawful conduct by surmising that there may have
been time when its illegal requirement could have been_~awfully
performed.
With respect to the respondent's assertion that he should
have reported to management each day that he had not greased the
offset fitting on the haulage system, complainant points out that
there is no precedent or legal justification for requiring a
miner to daily report his refusal to perform a hazardous job
assignment which his employer requires as a condition of employment. The complainant points out that he had complained about
the respondent's illegal requirement prior to his discharge but
his complaints were ignored. He was then given the Robson's
choice of his safety or his job, an action which the complainant
concludes was prohibited by the Act.
The evidence in this case establishes that Mr. Hays was
expected or required by management to service the continuous
haulage system while it was in operation.
In addition to these
duties, Mr. Hays was responsible for the daily servicing of a
roof-bolting machine and the gathering arms of the
continuous-mining machine. He was also assigned other duties on
the section. In the event of any haulage equipment breakdown,
Mr. Hays was responsible for making the repairs. Contrary to
Mr. Hacker's belief that Mr. Hays was not a good electrician,
Mr. Hacker himself conceded that such repairs were accomplished
by Mr. Hays as required, and the system would be placed back into
operation immediately. Further, after reviewing Mr. Hays' notebook entries reflecting the work he performed during the time
period prior to his discharge, Mr. Hacker agreed that it appeared
that Mr. Hays was a hard working individual. Although the
respondent asserted that these work entries were self-serving,
and suggested that they may have been fabricated, it nonetheless
stipulated that the notebook was authentic, and I find it to be
credible and probative.
In addition, the credible and unrebutted
testimony of several of the equipment operators reflects that
Mr. Hays was doing a good job in servicing their equipment, and
they had no complaints about his job performance. Mr. Collins

1893

confirmed that he was not concerned about Mr. Hays' job performance prior to his discharge, and had received no complaints about
Mr. Hays prior to this time.
Contrary to the respondent's assertion that Mr. Hays failed
to service any equipment on the section during the week prior to
his discharge, the credible unrebutted testimony of Mr. Hays and
the daily work log which he maintained establishes that he
greased and serviced several bridge carrier components, a roof
bolter, a continuous-mining machine, conveyor chains, scoops, and
made necessary repairs. Except for 2 days when he noted that he
was off on September 3 and 4, 1989, because of labor day, all of
this work was accomplished during the period August 29, 1989
through September 6, 1989, the day before his discharge.
In
response to several bench questions concerning these work
entries, Mr. Hacker conceded that some of the work performed was
on the continuous haulage system, and that it was obvious to him
that the equipment was being serviced while it was in operation
(Tr. 209-210).. He also confirmed that he had no knowledge of the
work performed by Mr. Hays on the section on the day of his
discharge and did not ask him about his work that day (Tr. 212).
General mine manager Garcia testified that he learned of
Mr. Hays discharge through a telephone call, and he could not
recall any conversations with Mr. Collins about the discharge,
nor could he recall receiving any information from Mr. Hacker
about the matter. Mr. Garcia further testified that he could not
recall being told that Mr. Hays was discharged for any reason
other than his failure to lubricate the haulage system. He
confirmed that the discharge "was basically a failure to perform
the job as he was assigned is generally the way it was put to
me."
Mine Superintendent Collins testified that he believed that
Mr. Hays was fired for not servicing the entire haulage system,
rather than the one offset grease fitting on the No. 1 bridge.
Mr. Collins further testified that when he checked the haulage
system on the day of the discharge he found other broken fittings
which had not been greased, and that after Mr. Hays was fired
Mr. Hacker informed him that he had fired Mr. Hays for "not
servicing equipment." However, Mr. Collins confirmed that he was
not involved in the decision to fire Mr. Hays, did not discuss
Mr. Hacker's decision to fire Mr. Hays with Mr. Hacker, did not
speak with Mr. Hacker about Mr. Hays' job performance, and did
not suggest to Mr. Hacker that any disciplinary action needed to
be taken against Mr. Hays.
Mr. Hacker testified that when he inspected the equipment on
the section after Mr. Collins summoned him underground on
September 7, 1989, he did not speak with Mr. Hays about the
servicing of the equipment. Mr. Hacker stated that upon inspection of the haulage system, the roof-bolting machines, and one of

1894

the scoops he found "a lack of servicing," and found six or more
broken grease fittings on all of the bridge carriers. He then
retrieved the No. 1 bridge carrier broken sprocket grease fitting
and cap which needed repair and took it with him to his office.
He then met with Mr. Caudill and Mr. Hays in his office and
showed the fitting to Mr. Caudill and Mr. Hays and asked for an
explanation as to why "they had not serviced," and Mr. Caudill
informed him that he did not have time "to service," and Mr. Hays
informed him that he could not "service that while it is running"
(Tr. 152). Mr~ Hacker confirmed that Mr. Hays also informed him
that it was unsafe to service the haulage system while it was
operating (Tr. 190).
Mr. Hacker testified that he discharged Mr. Hays for
"improper servicing of equipment" because "he had not serviced it
the way he was instructed to" (Tr. 184-185). He admit~ed that he
informed the MSHA special investigator that he fired Mr. Hays
because he had not serviced the mobile bridge carrier, and that
the bearings, grease caps and speed reducers had not been
serviced within the past week (Tr. 185). He confirmed that he
told the investigator that he fired Mr. Hays "over the MBC," and
did not mention the roof-bolting machine, continuous miner and
the other equipment on the section (Tr. 186).
In response to several bench questions, Mr. Hacker stated
that he concluded that the broken No. 1 bridge carrier speed
reducer sprocket fitting had not been serviced because it showed
the lack of any greasing when he removed the cap. Mr. Hacker
further stated that when he showed that part to Mr. Caudill and
Mr. Hays, he asked them why they had not reported that it was
broken, and that he showed them the part "because that was a
topic to get started on the servicing of the equipment" (Tr.
231).
I find no evidence or credible testimony from Mr. Hacker
supporting any reasonable conclusion that he discussed any equipment, other than the offset broken speed reducer fitting in
question with Mr. Hays or Mr. Caudill at the time of their discharge.
I conclude and find that it was reasonable for Mr. Hays
to believe that he was being discharged for his failure to grease
or service the broken speed reducer which Mr. Hacker displayed
during their meeting, and all of the testimony regarding this
issue leads me to conclude that this was in fact the case.
I find no credible or probative evidence to support the
respondent's assertion that Mr. Hays was discharged because of
his failure to service any of the equipment on the section during
the week immediately preceding his discharge, or because of his
failure to service other parts on the continuous haulage system.
The "other parts" of the haulage system which the respondent has
alluded to as not being properly serviced or greased by Mr. Hays
appear to be the six additional broken and ungreased fittings
which Mr. Hacker claimed he found during his inspection of the
system on the day he discharged Mr. Hays. However, Mr. Hacker

1895

confirmed that none of these fittings could have been serviced or
greased because they were broken off.
Although Mr. Hacker testified that each mobile carrier has
nine different locations which have extended fittings, but no
grease cups, there is no evidence that the six fittings alluded
to by Mr. Hacker were equipped with extended fittings.
Even if
they were, Mr. Hacker conceded that it would be illegal to
service those fittings while the system was in operation because
it would be dangerous (Tr. 168). I also take note of the fact
that in his deposition, Mr. Hacker stated that the haulage system
had no extended fittings, and he believed that this was the case
at the time he discharged Mr. Hays. He also reconfirmed the fact
that he knew it was illegal to service any of those fittings
while the equipment was in operation, and that the system had to
be deenergized and blocked against motion when it was befng
greased (Tr. 194, 196-197, 201).
I also take note of
Mr. Hacker's prior statement to the MSHA investigator that "the
bearings, grease caps and speed reducers had not been serviced
within the past week," but I find no evidence to establish that
these components included extended grease fittings.
The extended
fittings mentioned by Mr. Hacker had no grease cups, and the
evidence establishes that the speed reducers have offset fittings
which are hazardous to service while the equipment is in motion.
Although Mr. Collins and Mr. Hacker testified that they
expected Mr. Hays to report any problems or lack of available
time to service the system and the equipment, I find no evidence
to support any conclusion that Mr. Hays was discharged for failing to report his inability to service the system during his
regular work shift. Mr. Hays' note book notations, which I find
credible, reflect that he periodically reported equipment malfunctions and other problems. The record also reflects that
Mr. Hays made necessary repairs on the section during the period
prior to his discharge.
Mr. Hacker acknowledged that no one from management ever
complained about Mr. Hays' failure to comply with the maintenance
"card system," and that he had never "written up" Mr. Hays for
not informing management about any needed equipment and repairs.
He also confirmed that the electricians did not always personally
report to him work which was needed to be done and that they
frequently called a lady in the light house and that she would
take their reports. The respondent's suggestion that Mr. Hays
may have waived any protected rights under the Act by continuing
to service the haulage system knowing that it was unsafe is
rejected.
I believe Mr. Hays' testimony that Mr. Hacker gave him
no choice and would have replaced him if he failed to service the
system while it was in a production mode, and the record establ~shes that management did not address Mr. Hays' complaints in
this regard.

1896

General manager Garcia testified that there is no specific
company rule dictating when an employee should be discharged, and
that the fact that an employee has been previously suspended does
not necessarily or automatically provide grounds for a discharge.
He indicated that any decision to discharge an employee would
"depend on the circumstances." He confirmed that in Mr. Hays'
case, he and company personnel manager Richard Elliott reviewed
the personnel files of Mr. Hays and ~r. Caudill subsequent to
their discharge by Mr. Hacker. He confirmed that on the basis of
this review, Mr. Hacker's decision to discharge Mr. Hays was
allowed to stand, but Mr. Caudill's discharge was changed to a
3-day suspension because his file did not contain any recent
prior disciplinary actions.
With regard to Mr. Hays' prior disciplinary actions,
although Mr. Hacker may have known about them at the-time he made
the decision to discharge Mr. Hays, and may have mentioned them,
I find no evidence that he discussed these prior actions with
Mr. Hays in any detail, or informed him that they impacted on his
discharge.
The termination notice given to Mr. Hays does not
mention these prior disciplinary actions.
I agree with the
complainant's arguments that these prior actions are irrelevant
to the issue presented in this case. Mr. Hays was not discharged
for being a poor electrician, and I conclude and find that but
for his refusal or failure to service the No. 1 bridge'offset
grease fitting which he reasonably believed was hazardous, the
respondent would not have fired him.
On the basis of the foregoing findings and conclusions,
which I find are supported by a preponderance of all of' the
credible and probative evidence adduced in this case, I conclude
and find that Mr. Hays has established a prima facie c~se of
discrimination, and the respondent's arguments and defense to the
contrary are rejected.
I conclude and find that Mr. Hays was
unlawfully discriminated against and discharged by the respondent
on September 7, 1989, for engaging in activity protected under
section 105(c) of the Act, and his complaint of discrimination IS
SUSTAINED.
Relief and Remedies
The remedial aspects of this case were held in abeyance
pending my adjudication of the merits of the complaint.
The
record reflects that subsequent to his discharge on September 7,
1989, Mr. Hays was out of work for approximately one month, and
since that time he has been employed by another coal mine operator as an electrician.
In his complaint, Mr. Hays requested the
following relief:
(1)

A finding that the respondent discriminated
against him in violation of section 105(c) (1) of
the Act by discharging him on September 7, 1989.

1897

(2)

An order requiring his reinstatement with full
backpay and benefits, plus interest, at the same
rate of pay, on the same shift, and with the same
status and classification that he would now hold
had he not been unlawfully discharged.

(3)

An order requiring that all references to his
unlawful discharge be expunged from his personnel
file and/or from any and all records maintained by
the respondent.

(4)

An order requiring him to be reimbursed for all
expenses incurred in the institution and prosecution of this proceeding, including attorneys fees.

(5)

An order requiring the posting of the decision in ·
this proceeding at the mine where he is reinstated
and at all of the respondent's other underground
mines in eastern Kentucky, said postings to be in
conspicuous, unobstructed places where notices to
employee are customarily posted, each for a period
of 60 consecutive days.

(6)

The imposition of a civil penalty against the
respondent for unlawfully discharging him.

(7)

Any additional relief as is deemed just and proper
to make him whole.
ORDER

1. Respondent IS ORDERED to reinstate Mr. Hays to his
former position with full backpay and benefits, with interest, at
the same rate of pay, on the same shift, and with the same status
and classification that he would now hold had he not been unlawfully discharged.
2. Respondent IS ORDERED to expunge from Mr. Hays' personnel file and/or any company records any reference to his
discharge of September 7, 1989.
3. Respondent IS ORDERED to reimburse Mr. Hays for all
reasonable expenses incurred by him in the institution and prosecution of his discrimination complaint, including reasonable
attorneys fees.
The parties ARE ORDERED to confirm with each other during
the next thirty (30) days with respect to the aforesaid remedies
due the complainant, and they are encouraged to reach a mutually
agreeable resolution of these matters. Any stipulations or
agreements in this regard shall be filed with me within the next

1898

30 days.
In the event the parties cannot reach an agreement,
they ARE FURTHER ORDERED to file their respective positions with
me in writing, with any relevant documentation and supporting
arguments, within the next 30 days.
If the parties believe that
a further hearing may be required on the remedial aspects of this
matter, they should so state.
I retain jurisdiction in this matter until the remedies due
the complainant are finalized. Until those determinations are
made, and pending a finalized dispositive order by the undersigned presiding judge, my decision in this matter is not final.

k.iut~Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail)
Stephen A. Sanders, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., 205 Front Street, Prestonburg, KY 41653
(Certified Mail)
Timothy Joe Walker, Esq., Reece, Lang & Breeding, P.O.
Drawer 5087, London, KY 40741 (Certified Mail)
/fb

1899

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

SEP 2 81990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 90-108
A.C. No. 05-03505-03572

v.
Deserado Mine
WESTERN FUELS-UTAH,
INCORPORATED,
Respondent
DECISION
Appearaaces:

James B. Crawford, Esq., Oifice of the Solicitor,
U. s. Department of Labor, Arlington, Virginia, for
the Secretary1
Karl F. Anuta, Esq., Law Offices of Karl F. Anuta,
Bolder, Colorado, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
In this case, the Secretary (Petitioner) seeks a civil
penalty for the alleged violation by the Operator (Respondent) of
30 C.F.R. § 75.400. Pursuant to notice, the case was heard in
Glenwood Spring, Colorado, on June 14, 1990. Ernesto L. Montoya
and Clete R. Stephan testified for Petitioner. David Glenn
Casey, Carl O'Neal, and Robert Newell Hanson testified for
Respondent.
Post hearing Proposed Findings of Fact and Brief
were filed by Respondent on July 26, 1990, and by Petitioner on
August 10, 1990.
Stioulations

1. The Administrative Law Judge does have jurisdiction to
hear this Notice of Contest and Civil Penalty Proceeding under
the Federal Mine Safety and Health Act of 1977.
2. The penalty proposed will not affect Western
Fuels-Utah's ability to continue in business.

1900

3. Th~ operation -- the mine operator of Western
Fuels-Utah -- is a medium to large-size mine operator producing
a9proximately one million tons of coal per year at this mine.
4. Western Fuels-Utah showed good faith in correcting this
cited condition that is in dispute.
5.
It has been agreed that Government Exhibit No. 1 is an
authentic document, an official government record of the previous
history, the previous violation history of Western Fuels-Utah
under the Mine Act.
Findings of Fact and Discussion

I.
On Auqusc 17, 1~89, in connection with an hAA Inspection
(regular inspection of entire mine), MSHA Inspector Ernesto L.
Montoya issued an order, under Section 104(d)(2) of the Federal
Mine Safety and Health Act of 1977 (the Act), alleging a
violation of Section 75.400, supra.
In addition to contesting
the alleged violation of 75.400, supra, Respondent argues that
the Section 104(d)(2) Order was not properly issued, as there
were intervening clean inspections between the underlying
Section 104(d)(l) Withdrawal Order issued on June 5, 1989, and
the subject 104(d)(2) Order issued on August 17, 1989.
Specifically, as argued at the hearing, Respondent's position
that there was an intervening cleaning inspection of the entire
mine, is predicated upon reference to a combination of clean
inspections.
According to the uncontradicted testimony of Montoya, that I
accept, he checKed the MSHA Records and did not find any evidence
of clean inspections between the date of the underlying 104(d)(l)
Order, and the date Order 104(d)(2} in question was issued.
tle
indicated that the last comolete inspection of the subject mine,
prior to the date the 104Cd~(2) Orde~ in question was issued, was
on May 15, 1989. Moncoya indicatad that he spoke to another MSHA
Inspector, Ervin St. Louis, who informed him that between the
underlying 104(a)(l) Order and the Order in question, there were
only Section 103(i) Inspections. He concurred, on
cross-examination, that these inspections occurred on
June 12, 22, 26, July 18, 26, and August 3, and 10. Montoya
indicated that in connection with the 103Ci) Inspection~ that he
made in the period in question, at different times he went from
both por~als to the face at the one longwall and three
development sections. He indicated that he walked through the
mine in this oeriod once or twice and was able to observe
'' . . . conditlons in the entry, the road~ay that we go
into, .
" (Tr. 45).
He indicated that although he did not

1901

conduct an inspection on these occasions, he did not ignore
violations and wrote what he found.
According to Montoya each
103(i) Inspection in the period in question covered the same area
and was intended to check for methane.
According to Montoya, a
103Ci> Inspection does not include belts, drives, belt entries,
and electrical equipment unlass tne inspector walks by.
In
contrast, an AAA or regular inspection includes these items as
well as escapeways and egui~ment at the face.
Also, in a regular
inspection, an inspector checks coal accumulations.
The Commission, in United States Steel Corporation
6 FMSHRC 1908 at 1911, (August 1984), set forth the requirements
for the issuance of a Section 104(d)(2) Order as follows:
"The plain language of section 104(d)(2) of the Min-e
A.ct Cn. 2 supra> establishes three general
prerequisites for the issuance of an initial section
104(d)(2) withdrawal order:
(1)
a valid underlying
section 104(d)(l) withdrawal order; (2) a violation of
a mandatory safety or health standard "similar to [the
violation] that resulted in the issuance of the
withdrawal order under [section 104(d)(l)];" and (3)
the absence of an intervening "inspection of such mine
disclos[ing] no similar violations.""
In Kitt Energy Corporation 6 FMSHRC 1596 (1984), the
Commission rejected the argument of the Secretary th;:it only a
complete regular ins9ection is sufficient to satisfy the
requirements of Section 104 Cd> ( 2).
'rhe Comini.ssion hela tnat
inspections other than "regular" inspections can be taken into
account undar Section 104(d)(2).
In this connection, the
Commission noted that it was the burden of the Secretary to
establish that an intervening cleaning inspection has not
occurred, and this burden could be met by demonstrating that when
the Section l04Cd)(2) Order was issued portions of the mine
remained to be inspected.
In this connection, cne Commission
interpreted Section 104(d)(2), supra, as requiring the inspection
of a mine "in its entirety" (Kitt Energy Corporation, supra, at
1599.
In U. S. Steel Corporation, suora, the Commission reiterated
its holdin~ in Kitt, supra, at 1914, that " • . • any combination
of regular or other inspections that covers the entire mine can
constitute an intervening clean inspection."
In the instant case, I find that the Secratary has presented
a priiaa facie case of the absence of an intervening clean
inspection of the entire mine. The only inspections of the
subject mine in che period in question were those made pursuant
to Section 103(i) of the Act.
I find that these inspections,

1902

according to the testimony of the inspector, took place over one
day only, and were for all the same areas, i.e., the faces of the
longwall and development sections and the return and intake
entries.
As explained by Montoya, these 103Ci) Inspections do
not cover the belt drives, belt entries, or elactrical equipment.
" • • • unless we happen to walk by" (Tr. 110).
As such, I
conclude that the Section 103(i) inspections, in combination, did
not cover the entire mine. Therefore, I conclude that the
Secretary has established its prima facie case that there has not
been a clean inspection of the entire mine during the period in
question.l/ I find that Respondent did not rebut Petitioner's
prima facie case.
II.
In essence, Montoya testified that at approximately
10:30 a.m., on ~ugust 17, 1989, he observed black coal dust in
the second left entry of Third East between crosscuts 33 and ,..j . -')!

!7

(c.f., CF & I Steel Corporation, 2 FMSHRC 3459 (1980), (The
Commission affirmed the finding of the trial judge that an
intervening clean inspection of the entire mine had not been
est3blished by the Secretary where the record indicated, inter
alia, that 30 inspection days, which were part of two regular
inspections, took place in the period between the underline order
and the Section 104(2)(d) Order.); c.f. U. S. Steel, supra, (The
Commission found that testimony of the inspector, inter alia,
that in the intervening period "I have covered the entire
facility, yes.
• • • the entira ID Number 820, yes," and "well,
that's possible I went through there.", did not 3fford
substantial evidentiary support to the finding of the trial judge
that there was an absence of an intervening clean inspection.)
CU. S. Steel, sup_ra, at 1914).

~/

In essence, Respondent in its Brief argues that Petitioner
has not estqbli3hed that the cited area, i.e, the Second Left
entry Third East is
within the purview of Section 75.400,
supra.
I do not find merit to Respondent's position. Section
75.4UO is violated if there is an accumulation of coal in "active
workings."
30 C.F.R. ~ 75.2(g)(4) defines this term as
" • . • any place in a coal mine where miners are normally
required to work or travel." It appears from the map of the
subject mine (Operator's Exhibit 1) that, aside from the belt
entry, the First Laft or Second Left entries are the only
pathways for miners to travel from the portals to work at the
longwall face.
I note in this connection that David Glenn Casey,
a fire-boss employed by Respondent, testified that on August 14,
1989, he walked up the First Left and Second Left entries.

1903

He indicated that the coal dust was on the floor, ribs, crib
timber, rocks, and timbers.
He scraped the coal at various
points with gloves, his fingers, a pen, and his ID card in order
to get to a level area.
He indicated that the flow coal dust was
in a layer on top of rock dust, and was "thick as a sheet of
writing paper" (Tr. 57).
He testified that he did not have any
douot as to the color of the coal, nor did he doubt that the
material he obsarved was indeed coal dust.
I found Montoya to be
a credible witness.
Further, Respondent did not offer the
testimony of any witness to contradict, based upon their
observations, the extent of the coal dust observed by Montoya on
August 17, 1989.~/ Thus, I accept Montoya's testimony in this
regard.
Hence, I conclude, based on Montoya's testimony with
regard to the various locations in the entry, aside frem the
floor, where coal dust was observed, the fact that it was
observed over 28 crosscuts,4/ and due to the fact that it existed
in a layer on top of the rock dust, I conclude that Respondent
herein did violate 30 C.F.~. § 75.400, as alleged in the order
issued by Montoya, in that coal dust was " . . . permitted to
accumulate . • . • "
III.
Montoya had indicated in the Order at issue that the
violation herein was significant and substantial.

3/

I find that the opinion of Q'Neal that, based en his
the entry in question did not hava co be rock
dusted on August 14, 1989, is not sufficient to rebut the
testimony of Montoya, as to his observations 3 days later on
August 17.
Further, due to the expertise and experience oi
Clete R. Stepnan, I place considerable weight upon his testimony
that, in evaluating the hazard of coal dust, its color is not
important, but rather the critical criteria is whether there is
dust on the aurface.
In this connection, he testified that dust
in a layer as thin as a piece of paper does present an 2xplo31on
hazard.
As such, I conclude that a determination of the color of
the accumulation is not criti~al to a disposition of chis case.
Accordingly, I do not place much weight on the testimony 0£ Carl
O'Neil (Respondent's safety trainer, who was with Montoya during
the inspection) tnat the dust in question was grey, and not
black, as testified to by Montoya.

~bservations,

~/

Inasmuch as the distance between the center of each crosscut
was approximately 120 feet, the coal dust thus extended over a
distance of more than 3000 feet.

1904

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission set forth the el-aments of a "significant and
substantial" violation as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor ~ust prove:
(1)
the underlying violation of a
illandatory 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
li~elihood that the injury in question will be of a
reasonably serious nature.
(6 FMSHRC, supra, at---3-4.)
In essence, Montoya opined that the accumulation of coal
dust he observed contributed to the hazard of an ~xplosion.
In
thig connection, he concluded that there was a graat potential
for an explosion based upon the extent of tne coal dust
accumulation in combination with the presence of methane in the
gob area.5/ Montoya further noted that coal dust was found only
five crosscuts from the face, a distance of approximately
600 feet, and that tnere were various energized electrical
equipment in the face areas, such as electric motors, a shear,
and a lighting system which could short circuit, thus cauaing
sparks. On cross-examination it was elicited from Montoya that
he did not observe any coal dust suspended in tne air, and at cne
time he issued the order in question the longwall production had
been shut down, and there were no diesel equipmant present.
Further, he conceded that the lighting at the face was explosionproof and the shear motor has to be explosion-proof.
Montoya indicated that a roof fall could very possibly cause
sparks, and that the panel in question had a roof fall next to
the tailgate, but he did not know when this occurred relative to
the date the order was issued.
In this connection, Glenn Casey
indicated that the entry did not have any history of sudden roof
falls outby the face line.
However, ha indicated that on the
1ata in question the tailgate had required additional cribbing.

5; In this connection, I 3.ccept the uncontradicted testimony of
iontoya that the mins in question was found to be liberating more
than a million cubic feet of methane per 24 hours, and as such i3
subject to special inspections for methane pursuant to
Section 103(i) of the ~ct).

1905

David Glenn Casey, a fire boss ~mployed by Respondent,
indicated that when he observed the area in question on
August 16, he did not feel that the area needed rock dusting, nor
was he of the opinion that there was any hazard due to the
presence of coal dust.
In this connection, he indicated that the
floor was we~.
It was the testimony of Carl O'Neal, Respondent's
safety trainer, that on August 17, the full length of the Second
Left entry, alongside the coal seam, contained water that was
approximately 6 to 12 inches wide and 2 to 3 inches deep. He
said that approximately a third of the floor was wet. Also,
although Casey indicated that he did not know the amount of
methane present on August 17, he also indicated that "in the days
around" August 17 (Tr. 275) in the area in question, there was
"very minimal ;nethane," which he indicated as .01, .02, _.and
"occasionally" • 03 (Tr. 276).
Despite Montoya's admissions on cross-examination, and the
testimony of Casey and O'Neal referred to above, I conclude, for
the reasons that follow, that it has been established that the
violation herein was significant and substantial.
In resolving
the issues presented herein, I place considerable weight upon the
testimony of Clete R. Stephan, a senior mining engineer employed
by MSHA, due to his expertise and the fact that his testimony was
largely unrebutted or contradicted by Respondent.
Stephan
testified, and elaborated upon in Government Exhibit 9, that
without coal dust, which he termed fuel in suspension, an
explosion would not occur.
~lthough Montoya did not observe any
coal dust in suspension, he nontheless observed coal on the ribs.
As explained by Stephan, because coal ctust on the ribs is
positioned above the floor level, it is easy for it to go into
suspension when hit by a blast of air resulting from a roof fall
or occurring as a consequence of machinery being involved in an
accident.
The coal dust from the ribs would also be placed in
suspension if a vehicle would knock out a rib.
In addition,
Stephan noted that the coal at the subject mine is considered to
be in the high range of volatile bituminous coal, and in general,
bituminous coal is considered explosive. Further, I find, based
on the uncontradicted testimony of Montoya, that the coal dust
existed in layers on top of the rock dust.~/

b/

Casey testified that the material in question in the area
He indicated that in general, rock
dust is darker if wet, and that the stak rock above the seam in
question is gray.
He also indicated that Montoya had said that
the material in crosscuts 1 to 27 was getting dar~er and was grey
at crosscut 27.
I find this testimony inadequate to rebut
Montoya's testimony, based upon his personal observation, that
the s9ecific material in question consisted of coal dust in a
layer on too of the rock dust.
I observed the witness' demeanor
and I concl~de that Montoya was more credible in his testimony
that he had no doubts that the material in qu~stion was coal
dust.

~ited by- Montoya was grey.

1906

According to Stephan, an ignition at the face would cause
pressure waves which would place into suspension dust that had
accumulated.
In this connection, he noted that if the coal dust
was in a layer on top of the rock dust, then most of the
suspension would be coal dust.
It is significant to note, as
commented upon by Stephan, that an ignition at the face would
have to travel only 600 £eet2/ in order to propagate an explosion
of the coal dust located at crosscut 33, only 5 crosscuts outby
the face.
In such an event, according to Stephan, a flame would
continue to propagate as it pushes iorward any dust that is in
suspension. Also, to be considered is the fact that, according
to Montoya and not contradicted by Respondent's witnesses, the
mine in question liberates a million cubic feet of methane per
24 hours.
In this context, Stephan provided a foundation for
Montoya's conclusion that there was a great potential for an
explosion, based on ths extent of the coal dust and ~he fact that
methane was being liberated from the gob.
Stephan, in this
connection, indicated that coal dust, even in small amounts, has
the effect of making methane explosive where it exists in
concentrations below the range normally considered explo3ive.
Hence, as explained by Stephan, the larger the amount of coal
dust present the greater the resultant hazard.
Here, it is
noted, that the coal dust had accumulated in the entry in
question between crosscuts 5 and 33, a distance of over 3000 feet.
As testified to by O'Neal, there was water on the floor of the
entry on the date in question. However, according to Stephan,
the -3.mount of moisture must "increase to pretty significant
levals before they really affect the explosion itself" (sic)
(Tr. 155). According to O'Neal, there was water on the floor of
the entry in question. He testified that the water was
2 to 3 inches deep, 6 to 12 inches wide.
(The floor was 18 feet
~ide.)
I accept this specific testimony from O'Neal as to the
extent of the water, rather than his general comment that a third
of the floor was wet.
Inasmuch as coal dust had ac~umulated on
the timbers and ribs, as well as the floor, and Stephan had
inaicatea that the dust from the ribs could easily be placea in
suspension, I conclude that the extent of water herein in the
entry was not significant enough to effect an explosion.
Based on all of the above, in combination, I conclude that
not only n.:i.s it been esta.olishe<i that a hazard of an exolosion
was contributed to by the accumulation of dust, but that it has
been established that there was a "reasonable likelihood tnat the

21

It is significant that Stephan indicated that 600 f2et is
only a very shor~ distance for an explosion co be pro~agated, as
an explo3ion travels at a rate of 1,000 feet per second.

1907

hazard contributed to will result in an event in which there is
an injury."
CU. S. Steel Mining Company, Inc., 6 :b'MSHRC 1834
at 1836 (1984).
Further, it was the uncontradicted testimony oi
Montoya that, should an explosion occur, ~ersons present in the
section would be expected t~ be hurt, some fatally.
I thus
conclude that it has been established by Petitionar that the
violation herein was significant and substantial.
(See, Mathies,
supra~ U. S. Steel, supra).

IV.
In order to sustain the Section 104(d)(2) Order, Petitioner
must establish that the violation herein was as a result of the
Respondent's unwarrantable failure, which has been defined by the
Com:nission as aggravated conduct, more than mere negligence.
(Emery Mining Corp. 9 FMSHRC 1997 (1987)).
In this conneetion,
Montoya testified that the day prior to the issuance of the Order
in question, he had been to the same entry in connection with a
103(i) Inspection, and cited Respondent for having an
accumulation of black coal dust on the timbers, floor, and ribs,
between crosscuts 32 and 38.
According to Montoya, on April 16,
he informed O'Neal and Robert Hanson, .Respondent's safety
director, that the return entry (Two Left) had to be entirely
dusted and they both agreed. O'Neal did not specifically
contradict Montoya's version, as he indicated that sometimes he
does not hear what Montoya says.
He also stated that he did not
recall if Montoya had said, on August 16, that crosscuts 5 to 33
needed dusting.
Thus, his testimony is insufficient to rebut
Montoya's testiillony that in tact he had told O'Neal, and O'Neal
had agreed that the entire entry had to be dusted.
In the same
fashion, Hanson indicated that he did not recall any discussion
with Montoya on August 16, with regard to the Citation.
Hence,
his testimony does not rebut Montoya's version.
Accordingly, I
acce~t the version testified to by Montoya.
Montoya also indicated that O'Neal, in his presence, had
told David Prosser, the longwall foreman, that the entire entry
had to be rock dusted. O'Neal, on the other hand, testified that
Montoya had told him that crosscuts 32 to 38 needed dusting, as
he was going to cite those areas, but that he (O'Neal) did not
tell Prosser to dust.
O'Neal testified he called the section
foreman, Brad Jones, and told him the crosscuts that were cited,
i.e. 32 to 38 needed to be dusted.
Be also testified that he
told Prosser that the areas specified by Montoya i.e. crosscuts
38 to 32 needed to be rock dusted, but did not tell him to get it
dusted.

1908

Inasmuch as I have accepted Montoya's version, that O'Neal
had agreed with him that the entira second Left entry had to be
rock dusted, I thus find more credible Montoya's testimony that
O'Neal did tell Prosser to dust the entire entry. The critical
point, however, is that Montoya did tell both O'Neal and Hanson,
on August 16, tnat the entire Left entry had to be rock dusted.
Given that specific knowledge by O'Neal and Hanson, I conclude
that the cited violation of an accumulation, observed by Montoya
on the next day, August 17, in crosscuts 5 to 33, was as the
result of Res9orident's unwarrantable failure.
In this
connection, I note that according to Montoya, on August 17,
Hanson was upsat and he stated that he did not understand why
only a specific area of the second Left entry was rock dusted,
and the rest of the entry was not rock dusted. Hanson's
testimony that he did not recall saying anything on August 17,
when he received an order from Montoya, is not suffici~fit to
contradict the specific testimony of Montoya, as to what Hanson
did say.
Based on the statutory factors set forth in llOCi) of the
Act, and considering the degree of Respondent's negiigence, for
the reason essentially set forth above, (infra, IV), and
considering the high gravity of the violation herein, based on
the extent and location of the coal dust, and the fact that it
was layered on top of the rock dust, I conclude that a penalty
herein of $950 is proper.
ORDER
Respondent shall, within 30 days of this Decision, pay $950
as civil penalty for the violation found herein.

~~
~~sberger

Administrative Law Judge

Distribution:
James B. Crawford, Esq., Office of the Solicitor, U. s.
Department of Labor, 4015 Wilson Boulev~rd, Arlington, VA 22203
(Certified Mail)
Karl F. 4nuta, ~sq., Western Fuels-Utah, Inc., Post Office
Box 1001, 1720 14th Street, Boulder, CO 80306 <Certified Mail)
Mr. Larry Neil, P. 0. Box 1316, Meeker, CO 81641 (Certified Mail)
dcp

1909

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

SEP 2 81990
DISCRIMINATION PROCEEDING

CYNTHIA RAY,
Complainant

DOCJ{et No. WEVA 90-40-D

v.

MORG-CD 87-1

SOUTHERN OHIO COAL COMPANY,
Respondent

Martinka No. 1 Mine
ORDER OF DISMISSAL
On July 18, 1990, Respondent filed an Answer in the above
captioned proceeding.
In its Answer, Respondent made a Motion to
Dismiss.
In a Certificate of Service, attached to the Answer,
Counsel for Respondent indicated that the Answer and Affirmative
Defenses were served to Complainant on July 16, 1990. To date
Complainant has not responded to the Motion to Dismiss.
On August 3, 1990, a Show Cause Order was issued as follows:
"Complainant (Cynthia Ray> is ORDERED to file a reply to
Respondent's Motion to Dismiss within 10 days of the date of this
Order. Failure by Complainant to file such a reply shall result
in this case being dismissed."
On August 28, 1990, Complainant called the Commission and
spoke to the undersigned's secretary, and asked for a continuance.
A telephone conference call was held on August 29, 1990, between
Complainant, Counsel for Respondent, and the undersigned. The
Complainant indicated she had received the Respondent's Motion to
Dismiss, and was considering obtaining counsel. Complainant was
allowed an extension until September 10, 1990, to file an Answer
to the Motion to Dismiss. On September 11, 1990, Respondent
filed a statement requesting an immediate ruling on its Motion.
Neither Complainant, nor any Counsel on her behalf, filed a
Response to the Motion to Dismiss.
Accordingly, inasmuch as no Reply has been filed by
Complainant to either the Show Cause Order or Respondent's Motion
to Dismiss, I find the Complainant has defaulted by not complying
with the Order to Show Cause.
It is ORDERED that this case be DISMISSED.

~~
'll'U$. GOVERNMENT PRINTING omCE: 19 9 0 -2 81 -7 5 3/2 ~ s 0 9

Avram Weisberger
Administrative Law Judge

1910