FEBRUARY 1986 

Commission Decisions 

02-13-86 Pyro Mining Company 

02-28-86 Ozark-Mahoning Company 

02-28-86 Disciplinary Proceeding 

Administrative Law Judge Decisions 

02-03-86 John Ed Cox v. Tennessee Consolidated Coal 

02-03-86 Sec.Labor for Carey Rauch v. Mechanical 

Systems Services, Inc. 

02-04-86 Youghiogheny & Ohio Coal Company 

02-05-86 Sec. Labor for James Corbin & A.C. Taylor v. 

Sugartree Corp., Terco, Inc., & R. Lawson 

02-07-86 Jim Walter Resources, Inc. 

02-12-86 Youghiogheny & Ohio Coal Company 

02-13-86 Sec. Labor for Larry Collins & Earl Kennedy 

v. Raven Red Ash Coal Corp. (Order) 

02-14-86 Gary L. Lamb, Sr. v. Paramont Mining Corp. 

02-20-86 Nally & Haydon, Inc. 

02-20-86 Rufus Baldwin 

02-24-86 St. Joe Minerals Corporation 

02-26-86 Phelps Dodge Corporation 

02-26-86 FMC Wyoming Corporation 

02-27-86 Harold J.. Atkins v. Cyprus Mines Corp. 

KENT 83-212 

LAKE 84-96-M 

D 86-1 

SE 85-127-D 

SE 86-15-DM 

LAKE 85-63 

KENT 84-255-D 

SE 85-59 

LAKE 86-11 

VA 85-32-D 

VA 84-39-D 

KENT 85-199-M 

VA 84-43 

CENT 86-25-M 

CENT 85-19-M 

WEST 85-4-RM 

WEST 84-68-DM 

Pg. 188 

Pg. 190 

Pg. 195 

Pg. 197 

Pg. 200 

Pg. 202 

Pg. 206 

Pg. 220 

Pg. 244 

Pg. 246 

Pg. 248 

Pg. 249 

Pg. 251 

Pg. 257 

Pg. 258 

Pg. 264 

Pg. 279 
FEBRUARY 1986 

The following cases were granted for review during the month of February: 

Secretary of Labor, MSHA v. NACCO Mining Company, Docket Nos •. LAKE 85-87-R, 

LAKE 86-2. (Judge Merlin, January 14, 1986) 

Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No. 

LAKE 84-98. (Judge Kennedy, January 22, 1986) 

There were no cases filed in which review was not granted. 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PYRO MINING COMPA...lfi 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 13, 1986 

Docket No. ~ENT 83-212 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

On January 30, 1986, the United States Court of Appeals for the 

Sixth Circuit issued a per curiam decision in Pyro Mining Company v. 

FMSHRC, etc., No. 84-4022, affirming in part and reversing and remanding 

in part the decision of the Commission's administrative law judge in 

Pyro Mining Company, 6 FMSHRC 2488 (October 1984)(Docket No. KENT 

83-212)(ALJ). (The judge's decision became a final decision of the 

Commission through operation of the Mine Act, 30 U.S.C. § 823(d)(l).) 

In accordance with the Court's remand order to the Commission, this 

matter is remanded to the administrative law judge originally assigned 

for further appropriate proceedings consistent with the Court's opinion. 

·Richard v. Backley, 

~~~ L. Clair Nelson, Co~missioner 

188 
Distribution 

Marcus P. McGraw, Esq. 

Greenbaum, Doll & McDonald 

1400 Vine Center Tower 

P.O. Box 1808 

Lexington; Kentucky,1 40593 

Steve P. Robey, Esq. 

·1.The Trader Building 

608 East Main St. 

Providence, Kentucky 42450 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Carole M. Fernandez, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

280 U.S. Courthouse 

801 Broadway 

Nashville, TN 37203 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22203 

189 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OZARK-MAHONING CO~PANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 28, 1986 

Docket No. T..AKE 84-96-M 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine Act"), 

and raises two issues: (1) whether Ozark-Mahoning Company ("Ozark-Mahoning") 

violated 30 C.F.R. § 57.15-4, a mandatory safety standard requiring the 

use of safety glasses or other suitable eye protective devices; 1/ and, 

if so, (2) whether the violation was "significant and substantial" 

within the meaning of section 104(d)(l) of the Mine Act, 30 u.s.c. 

§ 814(d)(l). Following a hearing on the merits, a Commission administrative law judge found that Ozark-Mahoning violaten the standard and 

that the violation was significant and substantial. The judge imposed a 

civil penalty of $350. 7 FMSHRC 1050 (July 1985)(ALJ). For the following 

reasons, we affirm the judge's decision. 

1/ 30 C.F.R. § 57.15-4 states: 

All persons shall wear safety glasses, goggles, or face shields or 

other suitable protective devices when in or around an area of a 

mine or plant where a hazard exists which could cause injury to 

unprotected eyes. (emphasis added). 

30 C.F.R. § 57.15-4 was recodified without change in 1985 as 30 C.F.R. § 

57.15004. 50 Fed. Reg. 4048, 4116 (January 29, 1S85). 

190 
Ozark-Mahoning operates the Denton Mine, an underground fluorspar 

mine located in Hardin County, Illinois. On May 24, 1984, Department of 

Labor Mine Safety and Health Administration inspector, George LaLumondiere, 

observed miners, Dennis Darnell and Wendell Hicks, "collaring" drill 

holes with a jackleg percussion drill. J.:./ 

Because the miners were drilling without eye protection and rock 

fragments were flying off the mining face, Inspector LaLumondiere issued 

a citation alleging a .violation of 30 C.F.R. § 57.15-4. The inspector 

also found that the violation was significant and substantial. Immediately 

after receiving the citation, the mine superintendent obtained safety 

glasses for both miners and instructed them to wear the glasses while 

drilling. 

The judge found that Ozark-Mahoning violated section 57.15-4 based 

upon undisputed testimony that the two miners were "collaring drill 

holes ••• and drilling without wearing safety glasses or other eye 

protection" and that "rock fragments and chips fly out from the face 

while drilling and particularly while collaring holes." 7 FHSHRC at 

1051. We conclude that substantial evidence of record supports the 

judge's finding. The miners admitted that they were not wearing safety 

glasses while drilling on the morning the inspector issued the citation. 

Also, Ozark-Mahoning did not dispute the testimony of the inspector that 

the process of collaring drill holes causes rock chips and fragments to 

fly out from the face posing a danger to the drillers' eyes and that 

many such eye injuries have been'reported. In fact, Darnell, testified 

that "It is not that uncommon to get a piece in your eye every now and 

then when you're drilling." Tr. 48. Darnell added, "If it's anything 

you can't get out, we go to the lunchroom ••• and we've got a bottle of 

solution there that we wash our eyes out and go back to work." Tr. 58. 

The testimony of the inspector and Darnell establishes that a violation 

of section 57.15-4 occurred. 

In addition to challenging the judge's finding of a violation on 

substantial evidence grounds, Ozark-Mahoning contends that the cited 

standard is unenforceably vague. Ozark-Mahoning argues that because the 

standard does not specifically require the use of eye protection when 

drilling, it is not clear to the operator whether the standard is applicable when drill holes are collared. We find no merit in this argument. 

Section 57.15-4 is the type of safety standard that is drafted in general 

terms in order to be broadly adaptable to the myriad circumstances in a 

mine. Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). Such a 

standard is not unenforceably vague when a reasonably prudent person, 

familiar with t.he mining industry and protective purpose of the standard 

would recognize the hazardous condition which the standard seeks to 

prevent. U.S. Steel Corp., 6 FMSHRC 1908, 1910 (August 1984); U.S Steel Corp., 

5 FMSHRC 3, 5 (January 1983); Alabama By-Products Corp., 4 FMSHRC 2128, 

2129 (December 1982). Therefore, the pertinent inquiry here is whether 

];/ "Collaring a hole" is explained as: "The formation of the front 

end of a drill hole, or the collar, which is the preliminary step in 

drilling to cause the drill bit to engage in the rock." Bureau of 

Mines, U.S. Department of Interior, A Dictionary of Mining, Mineral, 

and Related Terms 234 (1968). 

191 
a reasonably prudent person, familiar with the mining industry, would 

have recognized the existence of the hazard to the drillers' eyes while 

collaring drill holes. 

Given the record evidence of the presence of a hazard to the 

drillers' eyes attested to by the inspector and Ozark-Mahoning's 

driller, we hold that a reasonably prudent person familiar with the 

industry would recognize the hazard. Tilerefore, the standard is 

applicable to the cited condition and the vagueness challenge is 

rejected. 

Ozark-Mahoning also contests the judge's "significant and 

substantial" finding. It contends that the Secretary failed to prove 

that there was a reasonable likelihood that if an injury occurred it 

would be reasonably serious. We disagree. 

A "significant and substantial" violation is described in section 

l04(d)(l) of the Mine Act as a violation "of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation 

is properly designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In this case, the inspector testified that he had suffered a "bad 

cut" on his right eye while collaring a drill hole without safety glasses 

and that numerous eye injuries of this type are reported. Moreover, it 

is obvious that whenever foreign objects are propelled into the eye 

there is a reasonable likelihood of loss or impairment of vision as well 

as injury. Tiie fact that the driller has so far avoided serious injury 

is fortunate, but not determinative. Titerefore, we conclude that the 

judge's significant and substantial finding must be affirmed. 

192 
Accordingly, for the foregoing reasons, the decision of the administrative law judge is affirmed. 

~L /./ ,~ ~ ,if-

<l~~--._,c_.;(,.(.-?{,, . • .. t~ / 

Richard V. Backley, Commissioner v 

~ ~ 

,/j;·~/!~ r::?~ ~.c, Ce_ 

Joyce Al Doyle, Commiss;.6ner 

193 
Distribution 

W.G. Stacy 

Vic Evans 

Ozark-Mahoning Company 

P.O. Box 57 

Rosiclare, Illinois 62982 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

194 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DISCIPLINARY 

PROCEEDING 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

. February 28, 1986 

Docket No. D 86-1 

BEFORE: Ford, Chairman; Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this disciplinary matter pending before Chief Administrative Law 

Judge Paul Merlin, the attorney whose conduct is the subject of the 

proceeding has filen with the Commission a Motion to Quash the judge's 

setting of the hearing site in Washington, D.C. 1/ Originally, the 

judge noticed the hearing for February 27, 1986,-in Washington. 

Follow:f.ng an objection from the attorney as to the timing and location 

of the hearing, the judge, by order dated February 5, 1986, rescheduled 

the hearing date for March 7, 1986, to accommodate the attorney, but 

retained the Washington hearing site. In the present motion, the attorney 

asserts that the Commission ''has no authority or jurisdiction to subpoena 

individuals to testify at Commission hearings when said individual lives 

450 miles from the hearing [s]ite." This jurisdictional argument is 

meritless and must be rejected. 30 U.S.C. § 823(d) & (e). We note also 

that the attorney is a party in this matter -- indeed, is the subject of 

the proceeding -- not merely a witness. 

1/ This case arose from a disciplinary referral made by Commission 

Administrative Law Judge George A. Koutras in White Oak Coal Co., 7 

FMSHRC 2039, 2047-52 (December 1985). On January 8, 1986, we referred 

the matter to Judge Herlin for appropriate proceedings under Commission 

Procedural Rule 80(c), 29 C.F.R. § 2700.BO(c). Judge Merlin assigned 

the matter to himself. 

195 
·we observe further, however, that Commission Procedural Rule 51 

governs the setting of appropriate hearing sites and requires a careful 

balancing of interests. 29 C.F.R. § 2700.51. See Cut Slate, Inc., 1 

FMSHRC 796, 796-98 (July 1979). The judge hereby is requested to 

reexamine his choice of heari~g site specifically in view of the 

principles set forth in Cut Slate. 

Accordingly, this matter is returned to the judge for proceedings 

consistent with this order. !/ 

Lastowka, Commissioner 

~~er 

2/ For purposes of. ruling on this motion, we have designated ourselves 

as a panel of three members under section 113(c) of the Mine Act. 30 

U.S.C. § 823(c). 

i1 

196 
ADMINISTRATIVE LAW JUDGE DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOHN ED COX, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 3 1986 

. . DISCRIMINATION PROCEEDING 

Complainant 

Docket No. SE 85-127-D 

TENNESSEE CONSOLIDATED COAL, 

Respondent 

MSHA Case No. BARB CD 85-39 

DECISION 

Appearances: John Ed Cox, Gruetli, Tennessee, pro sei 

William I. Althen, Esq., Smith, Heenan & 

Althen, Washington, D.C., for Respondent. 

Before: Judge Melick 

On May 22, 1985, the Complainant, John Ed Cox, filed a 

complaint of discrimination und~r section 105Cc>C2) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et. ~, "the Mine Safety Act," with the Secretary of Labor, 

Mine Safety and Health Administration CMSHA} against 

Tennessee Consolidated Coal. That complaint was denied by 

MSHA and Mr. Cox thereafter filed a complaint of discrimination with this Commission on his own behalf under section 

105(c)C3> of the Mine Safety Act. Mr. cox alleges that he 

sufferred discrimination because he was "bumped to the second 

shift" by a less senior employee. 

Tennessee Consolidated Coal in its Answer responded 

inter alia, that the complaint "fails to state a claim 

against Respondent upon which relief can be granted". That 

response may be taken as a motion to dismiss under Rule 

12Cb)C6) of the Federal Rules of Civil Procedure. For the 

purposes of such a motion, the well pleaded material allegations of the complaint are taken as admitted. 2A Moore's 

Federal Practice, ! 12.08. A complaint should not be dismissed for insufficiency unless it appears to a certainty 

that the complainant is entitled to no relief under any state 

of facts which could be proved in support of a claim. 

Pleadings are, moreover, to be liberally construed and mere 

vagueness or lack of detail is not grounds for a motion to 

dismiss. Id. 

Section 105(c)(l) of the Mine Safety Act provides as 

follows: 

197 
No person shall discharge or in any manner 

discriminate against or· cause to be discharged or 

cause discrimination against or otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant 

for employment in any coal or other mine subject 

to this Act because such miner, representative of 

miners or applicant for employment, has filed or 

made·a complaint under or related to this Act, 

including a complaint notifying the operator or 

the operator's agent, or the representative of 

the miners at the coal or other mine of an 

alleged danger or safety or health violation in a 

coal or other mine or because such miner, representative of miners or applicant for employment 

is the subject of medical evaluations and 

potential transfer under a standard published 

pursuant to section 101 or because such representative of miners or applicant for employment 

has instituted or caused to be instituted any 

proceedings under or related to this Act or has 

testified or is about to testify in any such 

proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

In order to establish a violation of section 105(c)(l) 

the Complainant must prove that he exercised a right or 

activity protected by the Mine Safety Act and that his 

transfer to the second shift was motivated in any part by the 

exercise of that protected activity. See Secretary ex. rel. 

David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 

(1980), rev'd on other grounds, sub nom, Consolidation Coal 

Company v. Secretary, 663 F.2d 1211 (3rd Cir., 1981). In 

this case Mr. Cox asserts that he was transfered to the 

second shift in violation of his seniority rights because of 

his age. At hearings held on the Respondent's Motion to 

Dismiss Mr. Cox w~s given further opportunity to explain the 

nature of his complaint. He readily acknowledged at those 

hearings that it had nothing to do with safety but was based 

solely on his perceived denial of seniority rights. Under 

the circumstances it is clear that the grounds asserted are 

not within the ambit of protections afforded by the Mine 

Safety Act. Accordingly the allegations are not sufficient 

·to create a claim under section 105(c) and this case must be 

dismissed. 

198 
ORDER 

Discrimination Proceedings, Docket No. SE 85-127-D are 

hereby dismissed. 

Distribution: 

jl/ 

Gary elick 

Admin'strative 

Mr. John Ed Cox, Sunlite Lane, Gruetli, TN 

Mail) 

William I. Althen, Smith, Heenan & Althen, 1110 Vermont 

Avenue, N.W., Washington, D.C. 20005 (Certified Mail) 

Tennessee Consolidated Coal Company, P.O. Box 878, Jasper, TN 

37347 (Certified Mail) 

rbg 

199 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 FEB 3 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF CAREY D. RAUCH, 

Complainant 

v. 

MECHANICAL SYSTEMS SERVICES 

INCORPORATED, 

Respondent 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. SE 86-15-DM 

Hanleyville Quarry & Mill 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of 

the above captioned discrimination proceedingin the amount of 

$400.00. 

The operator was cited for a violation of § 105(c)(l) of 

the Act when it discharged the Complainant for refusing to 

engage in a practice she thought unsafe. As part of the 

settlement agreement, the operator has provided the Complainant 

full back pay which was the relief sought. · The Solicitor also 

advises that no prior discrimination claims and only one prior 

assessment have been filed against the operator in the past two 

years. I accept the Solicitor's representations. In view of 

them the proposed settlement is Approved. 

Accordingly, the operator is ORDERED TO PAY $400.00 within 

30 days of the date of this decision. 

~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William H. Berger, Esq., U.S. Department of Labor, Office of 

the Solicitor, 1371 Peachtree Street, N.E., Atlanta, GA 30367 

(Certified Mail) 

200 
Mr. Frank Walker, General Manager, Mechanical Systems Services, 

Inc., 745 Greenwood Road, West Columbia, SC 29169 (Certified 

Mail) 

Ms. Carey D. Rauch, Route 2, Box 213-Al, Bythewood, SC 29016 

(Certified Mail) 

slk 

201 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 4 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY.AND· HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

YOUGHIOGHENY AND OHIO COAL 

COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

Docket No. LAKE 85-63 

A.C. No. 33-00968-03591 

Nelms No. 2 Mine 

DECISION 

Appearances: Patrick M. Zohn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for 

Petitioner; Robert c. Kata, Esq., St. Clairsville, Ohio, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Petitioner seeks a civil penalty for one alleged violation 

of a mandatory safety standard, that contained in 30 C.F.R. 

§ 75.400. Respondent concedes that a violation occurred. It 

contests the classification of the violation as significant and 

substantial, and contends that the civil penalty proposed is 

inappropriately high. Pursuant to notice, the case was heard 

in Wheeling, West Virginia, on November 14, 1985. Carl Minear 

testified on behalf of Petitioner; Donald Statler testified on 

behalf of Respondent. The parties waived the filing of post 

hearing briefs, but each argued its position on the record 

after the evidence was introduced. I have considered the 

entire record and the contentions of the parties, and make the 

following decision. 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding Respondent 

was the operator of an underground coal mine in Harrison 

County, Ohio, known as the Nelms No. 2 Mine. 

2. Respondent is of moderate size. It produces 

approximately 550,000 tons of coal annually. 

202 
3. In the 24 months prior to the violation involved in 

this proceeding, Respondent had 79 paid violations of 30 C.F.R. 

§ 75.400, the standard involved in this proceeding. 

4. The imposition of a penalty in this proceeding will 

not affect Respondent's ability to continue in business. 

5. The area covered by the order charging the violation 

involved herei.n was regularly examined by a union fireboss. 

Reports of such examinations on September 22, October 1, 

October·4, October 8, October 11, and October 15, 1984 did not 

refer to any accumulations of loose coal and coal dust. A 

report of an examination on October 18, 1984 states that 

"entries between 3 south seals and shaft and Main West seals 

and 3 south because of the top and ribs peeling they look like 

they were never rockdusted but were substantially dusted at one 

time. My opinion 'it would be a waste of labor and material 

since a real hazard does not exist." The report of examination 

on October 19, 1984 states: "Part of entry to the top and ribs 

peeled and covered all rockdust. I believe no hazard exists 

here. And I'm assuming this is the belief of all other 

inspectors, escorts, firebosses and safety personnel who have 

travelled this entry, since no citation was issued, and no 

mention was ever made of it needing rockdusted." The report of 

examination on October 22, 1984 does not refer to accumulations 

or need for rockdust. 

6. MSHA inspectors inspected the area in question on 20 

occasions between June 1978 and September, 1984. No citations 

or orders were issued charging an accumulation of loose coal, 

coal dust or other combustible materials. 

7. On October 24, 1984, Federal Mine Inspector Carl 

Minear found loose coal and coal dust, 6 to 36 inches deep and 

16 feet wide on the mine floor in entries 9, 10, 11 and 12 and 

the connecting crosscuts for a distance of 2200 feet, and the 4 

Main West return entries between the return air shaft and 3 

South seals, a distance of about 3000 feet. These 

accumulations resulted from coal sloughage and were black in 

color, indicating that rock dust had not been applied. Float 

coal dust was not present. The inspector issued a 104(d)(l) 

order of withdrawal charging a violation of 30 C.F.R. § 75.400. 

8. The subject mine liberates in excess of one million 

cubic feet of methane in a 24 hour period. The area involved 

in the order including the seals (which seal off abandoned 

portions of the mine) is particularly apt to liberate methane. 

However, there was a double set of seals here, giving added 

protection against methane. At the time the order was issued 

203 
methane readings varied from 1.1 percent to 1.5 percent. No 

methane readings in the 5 to 15 percent range have ever been 

detected in the area in question. 

9. The Inspector testified that the area in question 

looked as though it had never been rockdusted or that it had 

not been rockdusted in many years. In fact, company records 

indicate that it was rockdusted a total of eight times in 1981, 

1982 and 1983. The coal sloughage was such that it covered the 

rock dust completely. At some time prior to the order, 

walkways had been made through the areas in question by 

shovelling the sloughage over against the ribs. 

10. The area in question was approximately 5000 feet from 

the active sections in the mine. It was approximately 200 feet 

from the·track entry. 

11. Normally no miners travel the area except the 

fireboss. No machinery or· equipment enters the area with the 

exception of the tools (including possibly a flame safety lamp) 

carried by the f ireboss. 

12. The order was terminated by rockdusting the area 

involved. 

ISSUES 

1. Whether the violation was properly designated 

significant and substantial? 

2. What is the appropriate penalty for the violation? 

CONCLUSIONS OF LAW 

1. Respondent was subject to the prov1s1ons of the Mine 

Act in the operation of its Nelms No. 2 Mine, and I have 

jurisdiction over the parties and subject matter of this 

proceeding. · 

2. The violation of 30 C.F.R. § 75.400 charged in the 

order of withdrawal issued October 24, 1984 did in fact occur. 

3. The violation found was properly designated 

significant and substantial. The hazard involved here is a 

mine fire, which could result from an ignition caused by a 

nonpermissible flame safety lamp in the presence of methane. 

The violation contributed to the hazard because of Cl) the 

substantial amount of combustible materials and the large area 

involved, and (2) the gassy nature of the mine and especially 

the seals area. Should an ignition occur, a fire would be 

204 
likely because of the accumulations, and there is a reasonable 

likelihood that it would result in serious injury to miners. 

See Mathies Coal Co., 6 FMSHRC 1 (1984). 

4. The violation was serious for the reasons set out 

above. 

5. Petitioner contends that the violation resulted from 

Respondent's negligence since it knew that the accumulations 

had existed for a long period of time. However, I conclude 

that its negligence was greatly diminished because MSHA 

inspectors had travelled the area and observed the 

accumulations for many years without issuing citations. I 

conclude the Respondent's negligence was minimal. 

6. Respondent has a substantial history of previous 

violations of the standard in question. This is particularly 

significant in a gassy mine. 

7. Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for the violation found is 

$500. 

ORDER 

Based on the above findings of fact and conclusions of 

law, Respondent is ORDERED to pay within 30 days of the date of 

this decision, the sum of $500 as a civil penalty for the 

violation found herein. 

Distribution: 

j tl-Av:..u>- ~ .kfl~udkvi, 6i._ 

James A. Broderick . Administrative Law Judge 

Patrick M. Zohn, Esq., U.S. Department of Labor, Office of the 

Solicitor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Robert C. Kota, Esq., Youghiogheny & Ohio Coal Company, P.O. 

Box 1000, St. Clairsville, OH 43950 (Certified Mail) 

slk 

205 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 5 1986 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JAMES CORBIN, ROBERT CORBIN, 

AND A. C. TAYLOR, 

Complainants, 

v. 

SUGARTREE CORPORATION, 

TERCO, INCORPORATED, AND 

RANDAL LAWSON, 

Respondents 

. . 

: 

. . 

. . 

. . 

: 

. . 

. . 

. . 

Docket No. KENT 84-255-D 

MSHA case No. BARB 84-35 

Sugartree No. 1 Mine 

DECISION 

Appearances: Carole M. Fernandez, Esq., Office of the 

Solicitor, U.S. Department of Labor, Nashville, 

Tennessee, for Complainants; 

Guy E. Millward, Jr., Esq., and D. Randall 

Jewell, Esq., Barbourville, Kentucky, for 

Sugartree Corporation and Randal Lawson, and 

Carlos R. Morris, Esq., Barbourville, Kentucky, 

for Terco Incorporated. 

Before: Judge Melick 

By decision dated December 10, 1985, the Respondents 

herein were found jointly and severally liable for costs and 

damages resulting from the unlawful discharge of the named 

Complainants under section 105(c)(l) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815Cc)(l). 

(Appendix A). Hearings were thereafter held to ascertain 

costs and damages and a decision concerning these matters was 

issued January 10, 1986 (Appendix B). Interest calculations 

were subsequently filed by the Secretary on January 24, 1986. 

ORDER 

Discrimination Proceedings 

Sugartree Corportation, Terco, Incorporated and Randal 

Lawson are hereby directed and ordered, jointly and severally, 

206 
to pay within 30 days of the date of this decision the 

following amounts to the designated persons: 

James Corbin - Robert Corbin - A.C. Taylor -

$34,173.45 

$36,355.90 

$35,811. 74 

The orders of reinstatement applicable to James Corbin and 

Robert Corbin by the interlocutory decisions in this matter 

dated December 10, 1985, and January 10, 1986, are now final. 

Civil Penalty Proceedings 

Sugartree Corporation, Terco, ~ncorporated and Randal 

Lawson are hereby directed and ordered, jointly and severally, 

to pay within 30 days of the date of this d ision, a civil 

penalty of $1,000. 

I -Gary 

Law Judge 

Distribution: 

Admi I 

Carole M. Fernandez, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Guy E. Millward, Jr., Esq., and D. Randall Jewell, Esq., P.O. 

Box 645, Barbourville, KY 40906 (Certified Mail) 

Carlos R. Morris, Esq., P.O. Box 1008, Barbourville, KY 40906 

(Certified Mail) 

rbg 

20 7 
FEDERAL MINE SAFETY AND HEALTH REVIEW ~OMMISSION 

APPENDIX A 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Dece~ber 10, 1985 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

JAMES CORBIN, ROBERT CORBIN, 

and A.C. TAYLOR, 

Complainants 

v. 

SUGARTREE CORPORATION, 

TERCO, INCORPORATED, AND 

RANDAL LAWSON, 

Respondents 

: 

. . 

Docket No. KENT 84-255-D 

MSHA Case No. BARB 84-35 

Sugartree No. 1 Mine 

DECISION 

Appearances: Carole M. Fernandez, Esq., Office of the 

Solicitor, U.S. Department of Labor, Nashvill~, 

Tennessee for Complainants; 

Guy E. Millward, Jr., Esq., Barbourville, 

Kentucky for Sugartree Corporation, Hubbs Creek 

Corporation, and Randal Lawson; and Carlos R. 

Morris, Esq., Barbourville, Kentucky for Sadd 

Coal Company, Inc., and Terco Incorporated. 

Before: Judge Melick 

This case is before me upon the Complaint by the 

Secretary of Labor on behalf of James Corbin, Robert Corbin, 

and A. c. Taylor under section 105Cc)(2) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the 

"Act," alleging that these miners were discharged from the 

Sugartree Corporation {Sugartree) on July 6, 1984, in violation of section 105(c)(l) of the Act.l 

lsection 105(c)Cl) of the Act provides in part as follows: "No 

person shall discharge • • • or cause to be discharged or 

otherwise interfere with the exercise of the statutory rights 

of any miner • • • in any • • • mine subject to this Act 

because such miner • • • has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or operators agent • • • of an alleged danger or 

health.violation in a ••• mine ••• or because of the 

exercise by such miner • • • on behalf of himself or others 

of any statutory right afforded by this Act." 

20 8 
On April 30, 1985, the Secretary sought to amend his 

Complaint by alleging that Randal Lawson was also a "person" 

responsible for the claimed unlawful discharge of the three 

miners and that Terco Incorporated CTerco), Sadd Coal 

Company, Inc., and Hubbs Creek Corporation were "alter egos" 

and/or successor corporations to Sugartree and as such were 

jointly and severally liable for damages suffered by the 

individual complainants. The Secretary also asserts in his. 

amended complaint that the named business organizations, as 

successors or "alter-egos" to Sugartree, must reinstate the 

individual complainants to positions equivalent to the 

positions they formerly held with Sugartree since Sugartree 

was no longer in business. Joinder was initially permitted 

for purposes of consolidated proceedings on the merits and to 

receive evidence on the Motion to Amend. For the reasons set 

forth in this decision the Secretary's Motion to Amend is 

granted so as to allow retroactive joinder of Terco and 

Randal Lawson as party respondents in this proceeding but is 

denied as to Sadd Coal Company, Inc. and Hubbs Creek 

Corporation. Rule 19, Fed. Rules Civ. Proc. applicable by 

virtue of Commission Rule lCb), 29 C.F.R. § 2700.l(b). 

In order for the Secretary to establish a prima facie 

violation of section 105(c)Cl> of the Act, he must prove by 

a preponderance of the evidence that the individual complainants engaged in an activity protected by that section and 

that their discharge or removal from Sugartree was motivated 

in any part by the protected activity. Secretary ex rel. 

David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786, 

(1980), rev'd on other grounds sub nom Consolidation Coal 

Company v. Marshall, 663 F.2d 1211, (3d Cir. 1981). See also 

Boitch v. FMSHRC, 719 F.2d 194 (6th Cir. 1983), and NLRB v. 

Transportation Management Corporation, 462 U.S. 393 (1983), 

affirming burden of proof allocations similar those in the 

Pasula case. 

The undisputed evidence shows that on the Friday before 

the 1984 4th-of-July vacation at the Sugartree No. 1 underground mine, James Corbin, the day shift continuous miner 

operator, reported a problem with the water sprays on the 

continous miner to Joe Watkins, the general mine foreman. 

Upon returning to work on July 5, Corbin found that the water 

sprays had still not been repaired and, as a result, dust 

created by the operation of the continuous miner was "hitting 

the face" and enveloping Corbin and other miners working in 

the entry. Corbin explained that the miner was of necessity 

also cutting 2 to 4 inches of rock in the proeess thereby 

mixing large quan~ities rock dust with the coal dust. In 

addition, the ventilation was insufficient to remove the dust 

from the work area. The dust was particularly severe to the 

209 
right of the continuous miner where A. c. Taylor and James' 

bother, Robert Corbin, were working. 

Corbin and the others complained about the dust to face 

boss James Proffit. It is not disputed that the dust was so 

thick and the visibility so limited that the miners were 

unable to properly test roof conditions as they progressed 

and were unable to see the continuous miner as it moved in 

close proximity to fhe men. In particular James Corbin was· 

unable to see the other miners working near the continuous 

miner he was operating thereby making it difficult to avoid 

hitting them. 

Proffit reported these initial complaints by the mine 

telephone to the outside to Mine Foreman Watkins. Watkins 

reportedly told the men to correct the problem by clamping 

off the spray bar. The bar was then clamped but the sprays 

even then did not work. Corbin testified that he was able to 

make about nine cuts with the continuous miner before the 

dust got so bad that he got sick and started "throwing-up.• 

His eyes were extremely irritated and he could see nothing. 

Corbin again complained to Proffit who again telephoned the 

complaint to Watkins. Watkins then told Proffit to tell the 

men to "cut coal or go home". The entire work crew of 7 

decided to go home than rather than work under these conditions. 

Robert Corbin was working as a jack setter adjacent to 

the rib on the right side of the continuous miner and only 4 

feet from the face. He too complained because of the dust 

conditions. According to him it was so bad you could not see 

your out-stretched hand. Even though he wore a painters dust 

mask his lungs were "burning" from the dust. A. c. Taylor 

was also working on the right side of the continuous miner 

that day but as a timberman. According to Taylor the dust 

was so thick that it filled his eyes, lungs, and nose. He 

could "neither breathe nor see." 

Jerry Bray, then a floating foreman for Sugartree, 

acknowledged that the conditions were extremely dusty and 

were therefore hazardous. In particular he found that the 

right side of the entry was not ventilating properly. Everybody working in the entry was complaining about the dust 

but the three miners working on the right side were exposed 

to more dust and were complaining more. 

The sprays on the continuous miner were thereafter 

fixed and the three complainants worked the next day. At the 

end of the day however, Mine Foreman Joe Watkins issued each 

a lay-off slip indicating thereon that the men were being "laid-off because of a sharp dec~ine in production". 

210 
According to James Corbin, however, Terry McCreary, then vice 

president of Sugartree, said they were discharged because 

they had not run coal the day before. James Proffit the face 

boss told Ja;nes Corbin that management wanted to know who was 

doing the "crying" in the mine and Proffit reportedly told 

Watkins that it was the "right side" meaning Taylor and the 

Corbin brothers. James Corbin explained that the right side. 

of the continuous miner was the most seriously affected by .. the dust because the dust was drawn that way by the ventilation. Robert Corbin also asked Joe Watkins why they were 

laid-off and Watkins reportedly said that it was because they 

"wouldn't work in the dust". McCreary also reportedly said 

they were laid-off because they would not work in the dust. 

Mine Foreman Joe Watkins recalled getting calls from 

the face boss, James Proffit, on the day in question concerning the broken spray bar and the reluctance of the three 

complainants to work in the dust. He told Proffit to send 

the men home. Watkins claims that when he handed out the 

lay-off slips the next d•y he told the Corbins that he could 

not tell them why they were laid-off, and that they should 

see "Cotton" (the nickname for Sugartree president Randal 

Lawson) for an explanation. Watkins admits however that he 

told Lawson that it was the men on the right side and specifically James Corbin, Robert Corbin and A. c. Taylor, who were 

complaining about the dust and refusing to work in it. It 

was only a short time later that Lawson came back with the 

lay-off slips for these same three miners. Watkins admits 

that he and Lawson then also discussed hiring three new men 

to replace the Complainants. Lawson told Watkins that he 

would replace them by the next Monday. Indeed a new miner 

operator and jack setter were immediately hired and several 

days later another jack setter was hired. 

Randal Lawson, president and sole owner of Sugartree at 

the time of the "lay-offs" admittedly discussed the "layoffs" with both Joe Watkins, the mine foreman and Mathew 

Logan, superintendant of operations. Lawson admitted that 

before he "laid-off" the complainants Watkins told him that 

those were the three who had been complaining about the 

excessive dust and that indeed his decision to "lay-off" the 

complainants was made "because they were the ones that 

complained". He also admits that he then told Watkins that 

he would obtain replacements for the three. 

Within this framework of evidence it is clear beyond 

all doubt that Randal Lawson "laid-off" the three complainants on July 6, 1984, based solely on their protected safety 

complaints and/or their protected refusal to work in the face 

211 
of clearly hazardous conditions.2 There is no dispute that 

the complainants refusal to work under the circumstances was 

based upon a good faith reasonable believe that the continuance of the work under the conditions presented would have 

been hazardous. See Robinette v. United Castle Coal Company, 

3 FMSHRC 803 (1981). Accordingly both Randal Lawson as an 

individual and the Sugartree Corporation, for which Randal 

Lawson was agent, are "persons" who unlawfully discharged the 

complainants under section lOSCc)(l) of the Act. See footnote 1, supra. For the above reasons Randal Lawsof1Was also 

properly joined as a party respondent by the amended complaint 

filed by the Secretary. Rule 19, Fed. Rules Civ. Proc. 

Fashioning a remedy in this case through the award of 

damages and reinstatement has been complicated by what must 

be construed as evasive efforts by Mr. Lawson and his associates. Indeed it appears that on the same day that two of 

the complainants presented an order of temporary reinstatement issued by the Commission's Chief Judge to representatives of Sugartree, Sugartree ceased mining operations and 

many of the same principals, supervisors and employees 

continued mining operations in essentially the same mine 

under the same MSHA identity number but under the name of 

Terco. At the time of hearings Sugartree apparently had no 

assets and was not engaged in any mining activity. The 

Secretary accordingly has alleged in his Amended Complaint 

that an appropriate remedy of damages and particularly of 

reinstatement cannot be fully obtained without the joinder of 

Terco as a successor to Sugartree. Rule 19, Fed. Rules Civ. 

Proc. 

In resolving the question of successorship in Munsey v. 

Smitty Baker Coal Company, Inc., et al, 2 FMSHRC 3463 (1980), 

the Commission applied the factors used by the Federal Courts 

in EEOC v. McMillan Bloedel Containers Inc., 503 F.2d 1086, 

1094C'6th Cir. 1974). These factors are: (1) whether the 

successor company had notice of the charge, (2) the ability 

of the predecessor to provide relief, (3) whether there has 

been a substantial continuity of business operations, (4) 

2MSHA roof and ventilation specialist Roger Dingess also 

inspected the Sugartree mine on July 10, 1984, and found that 

the ventilation continued to be seriously inadaquate and was 

in violation of the ventilation plan. He also found that the 

sprays on. the continuous miner were not then working properly 

and that excessive dust was in suspension. In addition to 

the long term health hazard associated with miners breathing 

respirable dust Dingess observed the immediate hazards caused 

by lack of visibility and the effects of coughing and 

vomiting caused by inhaling and ingesting the rock dust. 

212 
whether the new employer uses the same plant, (5) whether he 

uses the same or substantially the same work force, (6) 

whether he uses the same or substantially the same supervisory personnel, (7) whether the same jobs exist under 

substantially the same work conditions, <8> whether he uses 

the same machinery, equipment and methods of production and 

(9) whether he produces the same product. 

There is no dispute that when mining operations shifted 

from Sugartree to Terco in July 1984, Randal Lawson was 

president and Carol McCreary was secretary/treasurer of both 

Sugartree and Terco. Thus whatever notice these agents of 

Sugartree had they also had that notice as agents of Terco. 

Since the intial complaints were filed by the individual 

miners with MSHA on July 12, 1984, and an investigation was 

thereafter conducted by MSHA it may reasonably be inferred 

that Terco had notice that charges of unlawful discrimination 

had been made. Indeed since Mr. Lawson was the perpetrator 

of what he should have known was a violation of the Act he 

should not now be heard to complain that he, as president and 

agent of both Sugartree and Terco, did not have notice of the 

corresponding liability under the Act of both Sugartree and 

Terco. Under the circumstances I find that Terco in fact did 

have notice of the charges. 

Since Sugartree admittedly has no assets and is apparently no longer engaged in any business activity it is clear 

that it could not provide relief either through monetary 

damages or reinstatement. I also find that a substantial 

continuity of business operations was maintained from 

Sugartree to Terco. Indeed the mine foreman for both 

Sugartree and Terco, Joe Watkins, testified that he only 

learned of the changeover when the former vice president of 

Sugartree and subsequent president of Terco, Terry McCreary, 

told him. Watkins testified that he saw no other noticeable 

change except the method of mining changed around that time 

to "shooting from solid". Watkins testified that six or 

seven or about one-half of the employees of Sugartree also 

continued working for Terco. 

Watkins also observed that under Terco they continued 

to use the same mine entrance although they began closing off 

the left side of the mine and prepared to mine the right side. 

There was apparently only a brief delay necessitated by preparatory matters relating to ventilation before coal production continued. It is observed that the original ventilation 

plan submitted by Sugartree includes both the right side and 

the left side of what has been identified as ~he Sugartree 

No. 1 Mine. The evidence also shows that Terco began 

operating on the right side under the same mine identity that 

213 
had been filed with MSHA by Sugartree. Within this framework 

it is clear that Terco continued to mine coal from essentially the same mine as Sugartree using substantially the 

same workforce and supervisory personnel. 

While the evidence shows that the method of mining 

followed by Terco, known as "shooting from the solid" 

differed from the ~ethod followed by Sugartree, i.e., continuous mining, this change was not significant. While Terco 

would not have needed a continous miner operator under this 

method of mining it is clear that the same personnel could 

have been used in other capacities for which they had been 

trained. Within the above framework of evidence it is clear 

that Terco was a successor business entity and accordingly is 

jointly and severally liable for the illegal acts of discrimination in this case. Accordingly the Secretary's Motion 

to Amend by also including Terco, Incorporated as a party 

respondent is also granted. Rule 19, Fed. Rules Civ. Proc. 

The Motion to Amend to join Sadd Coal Company, Inc. and Hubbs 

Creek Corporation is denied since the Secretary has not shown 

that with the joinder of Terco and Randal Lawson complete 

relief could not now be accorded to the complainants. Rule 

19, supra. 

ORDER 

Terco Incorporated is hereby ordered to immediately 

reinstate James Corbin, Robert Corbin, and A. c. Taylor to 

the same (or comparable) positions they held at the time of 

their "lay-off" on July 6, 1984, at the Sugartree Corporation. 

It is further ordered that the Secretary of Labor immediately 

confer with the Sugartree Corporation, Terco, Incorporated, 

and Randal Lawson, through their representatives if applicable, to determine the amount of costs, damages, and interest 

due as a result of the unlawful discharges found in this case. 

The Secretary shall thereafter file with the undersigned a 

written report of such consultations on or before December 31, 

1985. This decision is not a final disposition of this case 

and no final disposition will be made until such time as the 

issues of costs, damages and interest are resolved. 

CIVIL PENALTY 

In light of my findings herein that Randal Lawson discharged James Corbin, Robert Corbin, and A. c. Taylor in 

clear violation of section 105(c)(l) of the Act and that he 

knew or should have known that when he discharged those 

individuals he was doing so in violation of the Act, I find 

that a high degree of negligence was involved. The violation 

was quite serious in that the individual miners asserting 

214 
their rights under the Act unlawfully lost their source of 

work and income. The violaton not only had an immediate 

economic and social impact upon the individual miners but 

also had the effect of deterring others from asserting their 

rights under the Act. The violation was accordingly quite 

serious. I consider that the responsible parties were of 

small size and had no history of prior violations of section 

105(c). Wherefore Sugartree Corporation, Terco Incorporated 

and Randal Lawson will be, upon final disposition of these 

proceedings, join~ly and severally ordered t pay civil 

penalties in the amount of $1,000. 

Judge ~ '. 

Distribution: 

Carole M. Fernandez, Esq., Office f the Sol citor, U.S. 

Department of Labor, 280 U.S. Cour house, 801 Broadway, 

Nashville, TN 37203 CCertif ied Mail) 

Guy E. Millward, Jr., Esq., P.O. Box 645, Barbourville, KY 

40906 (Certified Mail> 

Carlos R. Morris, Esq., P.O. Box 1008, Barbourville, KY 40906 

(Certified Mail) 

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215 
APPENDIX B 

! ·-

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE· 

FALLS CHURCH, VIRGINIA 22041 

January 10, 1986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

Docket No. KENT 84-255~0 

MSHA Case No. BARB 84-35 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (~SHA), 

ON BEHALF OF 

JAMES CORBIN, ROBERT CORBIN, 

AND A. C. TAYLOR, 

Complainants, 

v. 

SUGARTREE CORPORATION, 

TERCO, INCORPORATED, AND 

RANDAL LAWSON, 

Respondents 

. • 

: 

. . 

. . 

DECISION 

Sugartree No. l Mine 

Appearances: Carole M. Fernandez, Esq., Office of the 

Solicitor, U.S. Department of Labor, Nashville, 

Tennessee, for Complainants; 

Guy E. Millward, Jr., Esq., and D. Randall 

Jewell, Esq., Barbourville, Kentucky, for 

Sugartree Corporation and Randal Lawson, and 

Carlos R. Morris, Esq., Barbourville, Kentucky, 

for Terco Incorporated. 

Before: Judge Melick 

By decision dated December 10, 1985, the Respondents 

herein were found jointly and severally liable for costs and 

damages resulting from the unlawful discharge of the named 

Complainants under section 105Cc)(l) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et. ~' the 

"Act". Hearings were thereafter held on the issue of costs 

and damages on January 2, 1986, in London, Kentucky. 

A backpay damage award is the sum equal to the gross 

pay the miner would have earned but for the unlawful discharge, less his actual "net interim earnings.". Bradley v. 

Belva Coal Company, 4 FMSHRC 982 (1982); Secretary ex. rel. 

Dunmire and Estle v. Northern Coal Company, 4 FMSHRC 126 

Cl982). "Net interim earnings" is an accepted term of art 

which does not ref er to net earnings in the usual sense 

(gross pay minus various withholdings). Rather, the term 

discribes the employees gross interim earnings less those 

expenses Cif any> incurred in seeking and holding the interim 

216 
employment ~ expenses that the employee would not have 

incurred had he not suffered the unlawful discharge. Belva 

Coal Company, supra. 

It is undisputed that at the time of their unlawful 

discharge from Sugartree Corporation (Sugartree), each of the 

individual Complainants regularly worked 9 hours a day, 5 

days a week. They earned $9.50 per hour for ~he first 40 

hours a week and $14.75 an hour for the additional 5 hours a 

week overtime. They also worked one Saturday a month in 

return for major medical insurance coverage under a Blue 

Cross and Blue Shield policy. According to former Sugartree 

president Randal Lawson this coverage cost $200 per month for 

each employee. This amount is to be included in the backpay 

award as a fringe benefit that was an integral part of the 

Complainants wage-benefit package at Sugartree. Northern 

Coal Co., supra. 

The backpay computation based upon the stated earnings 

and fringe benefits should commence on July 6, 1984, the date 

the Complainants were unlawfully discharged and should 

terminate but not include the date of reinstatement or waiver 

of reinstatement i.e., January 6, 1986. At hearings on 

January 2, 1986, James and Robert Corbin accepted reinstatement to successor mine operator Terco, Incorporated commencing January 6, 1986. At the same proceedings A. C. 

Taylor waived his right to reinstatement because he had 

obtained preferable alternative employment. 

Robert Corbin also suffered specific losses from his 

unlawful discharge because he was thereafter required to 

twice refinance a jeep automobile because of his inability to 

make the higher monthly payments. According to the Bank of 

Williamsburg Mr. Corbin will be required to pay $1,240.84 in 

additional finance charges because of this refinancing. That 

amount is properly chargable as damages in these proceedings 

and interest should be charged on that amount in accordance 

with the costs noted in Exhibit D-G-6. See Secretary ex. 

rel. Noland v. Luck Quarries, Inc., 1 FMSHRC 2426 (1980). 

Respondents have the burden of proving mitigation of 

damages including interim earnings. N.L.R.B. v. Izzi, 395 

F.2d 241 (1st Cir., 1968); and N.L.R.B. v. Mastro--prastics 

Corp., 354 F.2d 170 (2nd Cir. 1965), cert. denied 384 U.S. 

972 Cl966). In this case the Secretary produced each of the 

individual Complainants as witnesses who testified concerning 

their interim ~arnings. While some of this testimony is 

vague and imprecise, Respondents have produced no contradictory evidence. Accordingly I accept the testimony of the 

individual Complainants as to their interim earnings as best 

as can be reconstructed. Where there is any uncertainty I 

have accepted the larger amount of interim earnings thereby 

reducing the liability of Respondents. There is also evidence in this case that the Complainants had received various 

217 
amounts of unemployment compensation and food stamps. These 

amounts are not however generally considered to be "earnings" 

to be deducted from backpay awards. Boitch v. FMSHRC and 

Neal, 704 F.2d 275 (6th Cir. 1983)1 N.L.R.B. v. Marshall 

Field and Company, 318 U.S. 253, 255 (1943)1 N.L.R.B. v. 

Gullett Gin company, 340 u.s 361, 369 Cl951). 

JAMES CORBIN 

$1,000 should be deducted as interim earnings for 

amounts James Corbin received in 1984 from Dick Hall who was 

apparantly superintendent of a now defunct coal miQe operator. 

Although Corbin concedes that this amount was paid for work 

performed during 1984 he maintains that it was a "loan" from 

Dick Hall to cover a "cold check" issued by the mine operator. 

Since the "loan" apparently does not have to be repaid until 

the mine operator finally makes good on his check to Corbin 

and since there is no formal evidence of debt I consider this 

amount as interim earnings to be deducted from the backpay 

award. 

During the first quarter of 1985, James Corbin earned 

$1,800 from the Girdner Mining Company. During the second 

quarter of 1985 he earned $500 at the A.A. Coal Company and 

$600 at the Fair Lady Coal Company. He earned $2,400 at the 

Big Fanny Coal Company during the third quarter of 1985, and 

during the fourth quarter of 1985 he received $560 for work 

performed for Junior Helton. As of the date of hearing he 

continued to work for Junicr Helton and presumably continued 

to earn a maximum of $350 per week. 

ROBERT CORBIN 

It is not dis~uted that Robert Corbin had no interim 

earnings during 1984. The evidence shows that in the first 

quarter of 1985 he earned $1,449 from the Girdner Mining 

Company and that during the second quarter 1985 he earned 

$1,466 from the Fair Lady Coal Company. Thereafter, and 

presumably during the third quarter of 1985, Robert Corbin 

worked part time at the Ellison Funeral Home as a grave digger earning $1,500. During the fourth quarter of 1985 he 

earned $1,800 from the H & R Coal Company and as of the date 

of hearing continued to work for this company at $300 per 

week. 

A. C. TAYLOR 

According to check stubs in evidence, Mr. Taylor had net 

interim earnings from the Girdner Mining Company during the 

fourth quarter of 1984 of $792 (Exhibit D-G-5). These check 

stubs show that Mr. Taylor had net interim earnings from the 

Girdne.r Mining Company during the first quarter of 1985 of 

$288. Since he testified to earning $380.27 from the Girdner 

218 
Mining Company (Exhibit D-G-4) for that same period. I 

accept this larger amount as correct. Taylor also earned 

$627.47 from the G&S Mining Company during the first quarter 

of 1985. He had no earnings during the second and third 

quarters of 1985. During the fourth quarter of 1985 commencing October 21, 1985, he was earning $350 per week. He 

continued to earn that amount through the date of the 

hearing. 

ORDER 

Within the framework of the findings in this decision 

the Secretary is directed to compute the total amount of 

damages and interest through January 31, 1986, to be awarded 

the individual Complainants in this proceeding. Those 

computations shall be filed with the undersigned on or before 

January 25, 1986. The Secretary is also directed to file a 

status report on or before January 25, 1986, concerning the 

reinstatement of James and Robert Corbin. This decision is 

not a final disposition of these proceedings and such a 

disposition will not be made until the issues of costs, 

damages, interest, reinstatement and the am unt of civil 

penalty are finally resolved. 

Gary f 

Admi 

Distribution: 

lick ·L"l·~· trativ Law Judge 

Carole M. Fernandez, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Guy E. Millward, Jr., Esq., P.O. Bo~ 64~r Barbourville, KY 

40906 (Certified Mail) 

Carlos R. Morris, Esq., P.O. Box L<i ft. ,_~ . .:.;_ .. :urville, KY 40906 

(Certified Mail) 

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219 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 7 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

: Docket No. SE 85-59 

: A.C. No. 01-00758-03626 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

: Docket No. SE 85-60 

A.C. No. 01-00758-03627 

Appearances: 

Before: 

No. 3 Mine 

DECISIONS 

George D. Palmer, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Birmingham, Alabama, for Petitioner; 

Robert Stanley Morrow and Harold D. Rice, 

Esqs., Jim Walter Resources, Inc., Birmingham, 

Alabama, for Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a), seeking civil penalty assessments for 

alleged violations of mandatory safety standard 30 C.F.R. 

§ 75.1403 and 75.1403-8(d). 

The respondent filed timely answers contesting the proposed civil penalties and hearings were held in Birmingham, 

Alabama. The parties waived the filing of posthearing proposed findings and conclusions. However, all oral arguments 

made by counsel on the record during the course of the hearings have been considered by me in the adjudication of these 

cases. 

220 
Issue 

The principal issues presented in these proceedings are 

Cl> whether the safeguard provisions found in 30 C.F.R. 

§ 75.1403, and the criteria which follow in sections 

75.1403-{b){3) and 75.1403-S(d) are advisory or mandatory 

requirements, and (2) whether the respondent's failure to 

comply with the terms of the safeguard notices issued in 

these cases constitutes a violation of mandatory safety standards for which civil penalties may be assessed. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et seg. 

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

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

Stipulations 

The parties stipulated to the following: 

1. The respondent is the owner and operator of the subject mine. 

2. The respondent and the mine are subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977. 

3. The Administrative Law Judge has 

jurisdiction in these cases. 

· 4. The MSHA Inspectors who issued the 

subject orders or citations were authorized 

representatives of the Secretary. 

5. A true and correct copy of the subject citations were properly served upon the 

respondent. 

6. The copy of the subject citations and 

determination of violations at issue are 

authentic and may be admitted into evidence 

for purpose of establishing their issuance, 

but not for the purpose of establishing the 

truthfulness or relevance of any statements 

asserted therein. 

221 
7. Imposition of civil penalties in 

these cases will not affect the respondent's 

ability to do business. · 

8. The alleged violations were abated in 

good faith • 

. 9. The respondent's history of prior 

violations is average. 

10. The respondent is a medium-size 

operator. 

Discussion 

The violations in issue in these proceedings are as 

follows: 

Docket No. SE 85-59 

Section 104(a) "S&S" Citation No. 2310757, was issued at 

10:00 a.m., on June 15, 1984, and it cites a violation of 

mandatory safety standard 30 C.F.R. § 75.1403-S(d}. The 

condition or practice is described as follows: 

The clearance along the section 007-0 

track was obstructed by 2 timbers laying along 

the track and a material car loaded with timbers that was hanging out over the straight 

track over which men and materials are transported. The timbers on the supply car was 

(sic) hanging out over the man bus that was 

operating on the straight track. L. A. 

Holified park (sic) the timber car in the kick 

back under the direct supervision and instruction of supervisor Earnest Warren. This violation is a part of 107 A Order No. 2310756 so 

no abatement time is set. 

Docket No. SE 85-60 

Section 104(a) "S&S" Citation No. 2483944, was issued at 

8:35 a.m., on January 22, 1985, and it cites a violation of 

mandatory safety standard 30 C.F.R. § 75.1403. The condition 

or practice is described as fqllows: "The No. 7 man bus 

being used to transport seven miners from the No. 8 section 

was not equipped with an operative sanding device in that the 

reservoirs were empty and sand passed through the lines on 

the track when the bus was parked." 

222 
Petitioner's Testimony and Evidence - Docket No. SE 85-59 

Luther McAnally testified that he is a retired former 

.MSHA inspector, and.he confirmed that he issued an imminent 

danger order and a citation in this case on June 15, 1984. 

He stated that a material car loaded with timbers was parked 

in a "kick back" along the track in question. The loaded 

timbers were protruding over the track and two timbers were 

lying on the ground and touching the ties over which the 

track was laid. 

Mr. McAnally stated that he was in a track jeep with the 

company safety inspector, a mine safety committeeman, and the 

jeep operator, and as the jeep travelled along the track it 

passed close to the protruding timbers, and in fact "bumped" 

the timbers as the jeep came to a stop. Mr. McAnally stated 

that he had to scramble and move over in his seat to avoid 

being struck by the timbers, but that the jeep operator who 

was seated at the controls in an enclosed cab had no room to 

move in the event the jeep continued and struck the timbers. 

The operator's cab was approximately 6 to 7 inches off the 

rail, and Mr. McAnally believed that the operator would have 

suffered serious injuries had he been struck by the timbers. 

With respect to the two timbers lying by the track, 

Mr. McAnally believed they presented a hazard since they 

obstructed the rail and were not clear of the jeep travelway. 

Mr. McAnally stated that he issued an imminent danger 

order to isolate the cited hazardous kick back area where the 

timbers were located and to remove the occupants of the jeep 

from further exposure to the obstruction hazard. He confirmed that he issued the section 104(a) citation at the same 

time in order to cite a violation of section 75.1403(8)(d), 

and to achieve abatement of the condition. He confirmed that 

he relied on a previously issued safeguard notice, No. T.J.I. 

issued by MSHA Inspector T. J. Ingram on July 27, 1976, to 

support his citation (exhibit G-1) (Tr. 18-24). 

On cross-examination, Mr. McAnally confirmed that he and 

the other individuals in the man trip jeep were the only 

individuals exposed to the hazard resulting from the cited 

conditions. He stated that his principal duties as an inspector entailed the inspection of mines and the enforcement of 

mandatory safety standards. He denied that his duties 

included the rendering of advice to mine operators or miners. 
Mr. McAnally stated that at the time of his inspection 

he was aware of tne fact that Mr. Ingram had issued the previous safeguard notice, and he confirmed this by reviewing 

the official files in his office (Tr. 27-33). 

Petitioner's counsel confirmed that the 1976 safeguard 

notice relied on by Inspector McAnally makes reference to 

several loGations .~long the track haulageway where the clearance was less than 24 inches. The notice also makes reference to an obstructed clearance in a walkway in that refuse, 

loose rock, and supplies were present. He also confirmed 

that the conditions cited by Mr. McAnally must be substantially the same kind of conditions described in the original 

safeguard notice. His position is that since Mr. McAnally 

found there was no track clearance, or less than 24 inches of 

clearance because of the pro~ruding timbers, his reliance on 

the prior notice was proper (Tr. 35-36). Inspector McAnally 

confirmed that there are no other specific mandatory standards covering the conditions he cited, and if there were, he 

would have cited another appropriate standard rather than 

relying on the safeguard notice (Tr. 36). 

MSHA Inspector T. J. Ingram confirmed that he issued a 

safeguard notice at the No. 3 Mine on July 27, 1976, exhibit 

G-1, and stated that he did so after finding the main track 

haulageway cluttered along a tight curve going north along a 

track haulageway. The required track clearance was less than 

the required 24 inches. Mr. Ingram confirmed that he served 

the notice on Ken Price, the respondent's safety inspector, 

and that he discussed with him the cited conditions as well 

as what was required to abate the conditions (Tr. 40). 

On cross-examination, Mr. Ingram confirmed that he has 

rendered advice to miners and management pe~sonnel in the 

mines with respect to safety practices. He also confirmed 

that he has pointed out violative conditions during his 

inspections, and that his advice and recommendations, while 

not mandatory, are freely given as part of his inspection 

duties (Tr. 40-43). 

In response to further questions, Mr. Ingram stated that 

once a safeguard notice is issued, an inspector may rely on 

it in future inspections where he issues citations or orders. 

He.confirmed that the notice he issued on July 27, 1976, is 

still in effect at the No. 3 Mine, and that in the event he 

finds an obstructed clearance on the track haulageway, he 

would issue a citation and rely on that notice. He confirmed 

that there is no way that a mine operator can be relieved of 

the requirements of a safeguard notice, and he believed that 

224 
the conditions cited in such a notice must be the same or 

similar to any condition which he might find on any given day 

(Tr. 45). 

During the course of the hearing, I took note of the 

fact that subsequent to the time Mr. McAnally issued his citation of June 15, 1984, another MSHA inspector (Theron E. 

Walker) modified the citation on October 3, 1984, (copy in 

pleadings), to delete the "initial action" shown on item 14 

of the citation form. Item 14 is the place on the form where 

Inspector McAnally made reference to Mr. Ingram's safeguard 

notice of July 27, 1975. 

Mr. McAnally had no knowledge of the modification issued 

by Inspector Walker (Tr. 46). When asked to explain this 

modification, MSHA Cou~sel Palmer stated that Mr. Walker probably intended to modify the section 107(a) order issued by 

Inspector McAnally at the time he issued his separate section 

104Ca> citation, but did not distinguish the two (Tr. 47). 

Counsel asserted that notwithstanding the deletion by Inspector Walker, the respondent had adequate notice of the requirements of the safeguard notice relied on by Inspector McAnally, 

and that the citation issued by Mr. McAnally specifically made 

reference to that safeguard notice. Counsel concluded that 

the deletion is immaterial to the issue presented in this 

case, and he maintained that the respondent had adequate 

notice as to what was required by the safeguard notice at the 

time it was issued by Mr. McAnally and up to and including the 

time of abatement (Tr. 48). 

Respondent's counsel could offer no explanation for the 

deletion, and his position is that Mr. McAnally's citation 

must stand or fall on the question of whether the safeguard 

provided adequate notice to the respondent as to what was 

required to achieve compliance (Tr. 49). Counsel's position 

is that the safeguard notice is inadequate to change it into 

a mandatory standard requirement CTr. 49). 

Petitioner's Testimony and Evidence - Docket No. SE 85-60 

Petitioner's counsel stated that the inspector who 

issued Citation No. 2483944, Steve J. Kirkland, was out of 

the State on other MSHA business and was not available to 

testify in this proceeding. However, the parties stipulated 

that the facts alleged in Citation No. 2483944 occurred as 

alleged. They also stipulated that the civil penalty factors 

as set forth in section III of the citati'on (negligence, gravity, and good faith), and on the second page of the proposed 

assessment (MSHA Form 1000-179), are properly evaluated. 

225 
MSHA Inspector Thomas Meredith confirmed that he issued 

safeguard Notice No. I T.L.M. on October 19, 1976, at the 

respondent's No. 3 Mine and that he served it on the respondent's mine safety inspector Ken Price. Mr. Meredith stated 

that he discussed the notice with Mr. Price, explained the 

conditions referred to therein, and advised him what had to 

be done to insure future compliance with the notice (exhibit 

G-1). 

Mr. Meredith stated that the previous 1976 MESA safeguard 

notice form did not provide for a reference to the particular 

safeguard section, such as section 75.1403-6(b)(3), and that 

he simply referred to section 75.1403, Subpart o, and 

described the specific safeguard as "adequate and operative 

sanding devices." 

On cross-examination, Mr. Meredith confirmed that in his 

capacity as an MSHA inspector he often gives advice to miners 

concerning mine safety conditions or practices. He also confirmed that he gave the respondent a reasonable amount of 

time to abate the conditions described in his safeguard notice 

and that he issued several extensions to afford the respondent 

an opportunity to correct the conditions (Tr. 75-77). 

Petitioner's exhibit G-2, consists of copies of previously issued section 104Ca) citations issued at the No. 3 

Mine (Tr. 79), and they are as follows: 

Citation No. 0748974, September 26, 1979, 

30 C.F.R. § 75.1403. The No. 7 personnel 

carrier being used on material and mantrip 

haulage system was not provided with operating 

sanding device. Safeguard No. 1 T.L.M. dated 

10-19-76. 

Citation No. 0748973, September 26, 1979, 

30 C.F.R. § 75.1403-6{b)(3). The No. 13 personnel carrier being used on material and mantrip haulage system was not provided with 

operating sanding device. Safeguard No. 

1 T.L.M. dated 10-19-76. 

Citation No. 0748972, September 26, 1979, 

30 C.F.R. § 75.1403-6(b)(3). The No. 11 personnel carrier being used on material and mantrip· haulage system was not provided with 

operating sanding device. Safeguard No. 

1 T.L.M. dated 10-19-76. 

226 
The citations were subsequently abateq after the respondent provided the cited personnel carriers with operating 

sanding devices. 

Respondent's Arguments 

The respondent's arguments with respect to the previously 

issued safeguard notices in these cases are as follows (Tr. 

49-68): 

1. The safeguard notice provisions found 

in section 75.1403, and the criteria which· 

follow with respect to self propelled personnel carriers section 75~1403-6(b)(3), concerning properly installed and well-maintained 

sanding devices, and section 75.1403-S(d), 

concerning haulage road clearances are advisory rather than mandatory requirements:---

2. The previously issued safeguard 

notices relied on by the inspectors in these 

proceedings are general and advisory in nature 

and fail to specifically put the respondent on 

notice as to what is required to insure compliance with any applicable mandatory safety 

standards. 

3. The previously issued safeguard 

notices, on their face, particularly with 

respect to the printed language on the form 

(Specific Recommended Safeguards) supports a 

conclusion that those notices are advisory 

recommendations rather than mandatory enforceable standards. 

4. On the facts presented in these proceedings, the previously issued advisory safeguard notices do not specifically ref er to 

conditions or practices cited by the inspectors in the citations issued in these 

proceedings. 

5. The use of the "advisory" word should 

rather than the "mandatory" word shall in the 

prior safeguard notices connote an advisory 

rather- than a mandatory requirement ~or 

compliance. 

227 
With regard to the previously issued 1979 citations, 

exhibit G-2, where the inspectors relied on Inspector 

Meredith's safeguard notice of October 19, 1976, to support 

violations for the respondent's failure to provide operating 

sanding devices on its personnel carriers, respondent's 

counsel asserted that simply because these citations were 

issued, MSHA may not "bootstrap" the safeguard notice and 

transform it intcr a mandatory standard (Tr. 57). When asked 

whether or not these prior citations were contested, respondent's counsel replied that he was not in the respondent's 

employ at that time, and that mine management would rather 

pay the civil penalties rather than "make an inspector mad" 

(Tr. 58). He also asserted that citations are sometimes paid 

out of ignorance or "they get caught up in the paperwork" 

(Tr. 66). 

Respondent's counsel conceded that an adequately written 

safeguard notice may become a mandatory standard on a 

mine-by-mine, case-by-case basis (Tr. 58). Counsel does not 

dispute the facts as stated on the face of the citations 

issued in these proceedings. His argument is that the safeguard notices used by the inspectors to support the citations 

are inadequate and do not put the No. 3 Mine on notice as to 

what is required to maintain compliance. Counsel is of the 

view that the safeguards are advisory opinions rather than 

mandatory standard requirements (Tr. 59). In support of 

these arguments, counsel cited the case of Secretary of Labor 

v. Pittsburgh-Des Moines Steel Company and OSHRC, 584 F.2d 

638 13d Cir. 1978), to support his argument that the use of 

the word "should" in regulatory safety and health rules are 

viewed only as recommendations and not as mandatory standards 

(Tr. 50, 59). 

Counsel argues that since MSHA inspectors provide advice 

and recommendations to mine operators in the course of their 

inspections, the use of the word "should" in the safeguard 

notices fails to adequately put the operator on notice as to 

what is actually required of him in terms of compliance. In 

short, counsel argues that the inspectors failed to adequately 

differentiate what is mandatory and what is advisory {Tr. 51). 

Counsel conceded that had the inspectors who issued the safeguard notices used the word "shall" rather than "should," and 

made it clear that it was a mandatory requirement, he would 

concede that adequate mandatory notice has been given to the 

respondept (Tr. 59-60). 

In further support of his arguments, respondent's counsel requested that I take judicial notice of my decisions in 

Monterey Coal Company v. MSHA, LAKE 83-67, LAKE 83-78, and 

22 8 
LAKE 83-84, decided February 23, 1984, 6 FMSHRC 424, as well 

as the following decisions: ~ v. Jim Walter Resources, 

Inc., BARB 78-652-P, September 4, 1979, 6 FMSHRC 1317 CJ. 

Michels); Consolidation Coal Company v. MSHA, WEVA 79-129-R, 

July 31, 1980, 2 FMSHRC 2021 CJ. Cook; MSHA v. Jim Walter 

Resources, Inc. and Cowin and Company, BARB 77-266-P and 

BARB 76-465-P, November 6, 1981, 3 FMSHRC 2488 (Commission); 

and MSHA v. U.S. Steel Mining Company, Inc., PENN 82-13 and 

PENN 83-5 7"'."Rr March 29, 19 82, 4 FMSHRC 526 CJ. Merlin). 

Findings and Conclusions 

30 C.F.R. § 75.1403 repeates section 314(b) of the Act 

and provides as follows: "Other safeguards adequate, in the 

judgment of an authorized representative of the Secretary, to 

minimize hazards with respect to transportation of men and 

materials shall be provided." 

Section 75.1403-1 provides: 

(a) Sections 75.1403-2 through 75.1403-11 

set out the criteria by which an authorized 

representative of the Secretary will be guided 

in requiring other safeguards on a mine-by-mine 

basis under section 75.1403. Other safeguards 

may be required. 

Cb) The authorized representative of the 

Secretary shall in writing advise the operator 

of a specific safeguard which is required pursuant to section 75.1403 and shall fix a time 

in which the operator shall provide and thereafter maintain such safeguard. If the safeguard is not provided within the time fixed 

and if it is not maintained thereafter, a 

notice shall be issued to the operator pursuant to section 104 of the Act. 

Cc) Nothing in the sections in the section 75.1403 series in this Subpart O precludes 

the issuance of a withdrawal order because of 

imminent danger. 

- In southern Ohio Coal Company, (SOCCO), 7 FMSHRC 509 

(April 1985), the Commission noted that the safeguard provisions of the Act confer upon the Secretary "unique authority" 

to promulgate the equivalent of mandatory safety standards 

without resort to the otherwise formal rulemaking requirements of the Act. The Commission held that safeguards, 

229 
unlike ordinary standards, must be strictly construed, and a. 

safeguard notice "must identify with specificity the nature 

of the hazard at which it is directed and the conduct 

required of the operator to remedy such hazard." In short, 

the operator must have clear notice of the conduct required 

of him. 

In·socco, an inspector issued a citation after finding 

water 10 inches in depth from rib to rib at a stopping located 

along a belt conveyor. Because of the presence of the water, 

the inspector believed that a clear travelway of 24 inches was 

not provided along the conveyor belt as required by a previously issued safeguard notice. The safeguard notice was 

issued after the inspector found fallen rock and cement blocks 

at three locations along a conveyor belt. Addressing the question as to whether the safeguard notice referencing "fallen 

rock and cement blocks at three locations," and requiring 

24 inches of clearance on both sides of the conveyor belt, 

should have put SOCCO on notice that conditions such as the 

water described in the citation fell within the safeguard's 

prohibitions, the Commission concluded that it did not. In 

this regard, the Commission stated as follows at 7 FMSHRC: 

Given the frequency of wet ground conditions in the mine, and the basic dissimilarity 

between such conditions and solid obstructions 

such as rocks and debris, we find that SOCCO 

was not given sufficient notice by the underlying safeguard notice issued in 1978 that 

either wet conditions in general or the particular conditions cited in 1983 by the inspector 

in this case would violate the underlying safeguard notice's terms. 

We do not hold that a safeguard notice 

pertaining to hazardous conditions caused by 

wetness could not be issued. Conditions such 

as those cited by the inspector here, if hazardous, can just as readily be eliminated by 

issuance of safeguard notices specifically addressin~ such conditions. By taking this 

approach rather than bootstrapping dissimilar 

hazards into previously issued safeguard 

notices, the operator's right to notice of 

conditions that violate the law and subject it 

to penalties can be protected with no undue 

infringement of the Secretary's authority or 

loss of miner safety. 

~o 
In a footnote at 7 FMSHRC 512, the Commission made the 

following observation: "The requirements of specificity and 

narrow interpretation are not a license for the raising or 

acceptance of purely semantic arguments • • • • We recognize 

that safeguards are written by inspectors in the field, not 

by a team of lawyers." 

In Secretary of Labor v. U.S. Steel Mining Company, Inc., 

4 FMSHRC 526, 529-530, (March 1982), Chief Judge Merlin made 

the following observations with respect to section 75.1403 

safeguard notices: 

* * * Safeguards are designed to cover situations where conditions vary on a mine-to-mine 

basis. Mandatory standards cannot anticipate 

every possible physical condition in every 

mine and therefore with respect to the transportation of men and materials the Act allows 

flexibility. By means of a safeguard MSHA can 

impose certain requirements on a particular 

mine which are peculiar to that mine because 

of its physical configuration and circumstances. However, in order to be fair to the 

operator by giving due notice, the requirements being imposed upon its mine are set 

forth first in the safeguard notice which 

carries no civil penalty. Only in the subsequent citation based upon the safeguard can a 

penalty be imposed. In the area of transportation of men and materials, safeguards embody 

and effectuate flexibility and adaptability to 

individual circumstances in the administration 

of the Act. However, the potential scope of 

safeguards is very broad and accordingly, care 

must be taken to ensure that they are employed 

only in the proper context and do not become a 

means whereby the normal rule-making process 

is ignored and circumvented. 

In Secretary of Labor v. Jim Walter Resources, Inc., 

Docket No. SE 84-23, 6 FMSHRC 1815, July 30, 1984, Chief Judge 

Merlin affirmed a citation issued to the respondent for a violation of section 75.1403-8(d), for failing to keep its track 

cl~arance free of rails, crib blocks, and timbers. The 

inspector who issued the violation relied on the same safeguard notice used by the inspector in the~instant Docket No. 

SE 85-59. In affirming the violation, Judge Merlin ruled that 

the cited safeguard criteria "is plainly mandatory and the 

~l 
language used is easily susceptible of objective interpretation and uniform application," 6 FMSHRC 1818. Judge Merlin's 

decision with respect to the citation was not appealed. His 

ruling vacating another citation involving a safeguard notice 

for a belt conveyor was reversed by the Commission in a decision issued on April 29, 1985, 7 FMSHRC 493. 

I believe ~ reading of the Commission's "safeguard 

notice" decisions makes it clear that adequately written safeguards are mandatory standards or requirements which are 

enforceable on a mine-by-mine basis, and the respondent concedes that this is the case (Tr. 58). Respondent's argument 

that safeguard notices are "advisory opinions" by an inspector and therefore unenforceable is rejected. Simply because 

an inspector may give advice or make recommendations to a 

mine operator while in the mine during an inspection does not 

mean that the subsequent use 6f the word "should" on the face 

of any safeguard notice that he may issue renders the safeguard less than mandatory or unenforceable. 

In the instant cases, the inspectors who issued the safeguards simply included the specific language of the regulatory criteria found in sections 75.1403-6 and 75.1403-8, as 

part of the safeguard notice. Since the criteria use the 

word "should," it was included as part of the safeguard. However, the safeguard form makes it clear to me that the respondent was required to comply with its terms, and I construe it 

to be a directive and not simply advice. Although the form 

contains the words "recommended safeguards," the words "Notice 

to Provide Safeguards" is in bold print, and the operator is 

put on notice that the inspector who inspected his mine 

directs him to comply with the safeguards as stated on the 

face of the form. The operator is also put on notice that his 

failure to comply with the safeguard will result in the issuance of a withdrawal order. Under the circumstances, the 

respondent's assertion that the safeguards issued in these 

cases were simply advisory recommendations by the inspectors 

rather than enforceable mandatory requirements is rejected. 

The respondent's suggestion that the use of the word 

"should" in the regulatory criteria found in sections 

75.1403-6 and 75.1403-8 render them advisory and unenforceable as mandatory standards is rejected. Section 75.1403, 

which is a statutory provision, mandates that adequate safeguards to minimize transportation hazards shall be provided, 

and section 75.1403-1 provides the mechanism and framework 

for notifying an operator as to the specific safeguard 

requirements which it is expected to follow for its mine. I 

conclude and find that the regulatory safeguard criteria in 

232 
question are intended to be construed as mandatory rather 

than advisory requirements. 

In Secretary of Labor v. Jim Walter Resources, Inc. and 

Cowin and Company, 3 FMSHRC 2488 (November 1981), the 

Commission held that 30 C.F.R. § 77.1903(b), was not a mandatory safety standard imposing a mandatory duty on a mine operator. The standard required that certain ANSI specifications 

for the use of wire ropes used for hoisting in a mine be 

followed, and it mandated that these specifications shall be 

used as a guide in the use, selection and maintenance of such 

ropes. The Commission determined that the phrase "shall be 

used as a guide" was, at best, ambiguous. It noted that the 

standard contained mandatory language, i.e., "shall be used," 

but took note of the fact that the requirement imposed was 

the use of ANSI standards "as a guide." The Commission concluded that in common usage a "guide" was something less than 

a mandatory requirement to be followed, and in view of the 

ambiguous regulatory language, as well as the ambiguous 

nature of many of the underlying ANSI standards, it concluded 

that the Secretary's attempt to derive an enforceable mandatory duty from the standard to be unreasonable. The 

Commission found fault with the wording of the standard and 

concluded that it did not adequately inform an operator of a 

duty that must be met. 

While it is true that the language found under the general safeguard regulatory criteria found in section 

75.1403-l(b), states that an inspector relying on the criteria set out in sections 75.1403-2 through 75.1403-11, will be 

guided by those criteria in requiring other safeguards on a 

mine-by-mine basis, the fact is that the criteria enumerated 

in those sections specifically delineate what is required for 

compliance. Unlike the ambiguous ANSI standards, I cannot 

conclude that the safeguard criteria suffer from any ambiguity. 

They specifically address the particular subject matter covered by each of the criteria sections. 

Fact of Violation - Docket No. SE 85-60 - Citation No. 2483944 

In this case, the respondent is charged with a failure 

to maintain an operative sanding device on a man bus used to 

transport seven miners from the section. The safeguard 

criteria for personnel carriers found at 30 C.F.R. 

§ 75.1403-6(b)(3), requires that such carriers be equipped 

with properly installed and well-maintained sanding devices. 

The inspector found that the sanding device reservoirs for 

the cited bus were empty and that the sand passed through the 

233 
lines onto the track while the bus was parked. The respondent does not dispute these facts, and the citation was 

abated when the bus was removed from the mine in order to 

repair the sanding device. 

The previously issued safeguard notice, l T.L.M., issued 

by Inspector Meredith on October 19, 1976, states as fo~lows: 

The?B-1 mantrip bus and the J-1 also 

Csic) J-2 Jitneys used to haul men as mantrip 

jitneys were not provided wit1 operative sanding devices. 

Self-propelled personnel carriers should 

be equipped with properly installed and well 

maintained sanding devices, except that personnel carriers (Jitneys), which transport not· 

more than 5 men, need not be equipped with 

such sanding devices. 

The requirements of the safeguard criteria found in section 75.1403-6(b)C3), for personnel carriers provides as 

follows: 

Cb) * * * [E]ach track-mounted 

self-propelled personnel carrier should: 

* * * * * * * 

(3) Be equipped with properly installed 

and well-maintained sanding devices, except 

that personnel carriers (jitneys), which 

transport not more than 5 men, need not be 

equipped with such sanding device; * * * 

In issuing the citation in this case, the inspector 

relied ·on a previously issued safeguard notice issued by 

Inspector Meredith on October 20, 1976, at the No. 3 Mine. 

The inspector who issued the citation cited a violation of 

the general safeguard provisions of 30 C.F.R. § 75.1403, and 

he did not include any reference to the specific criteria 

requirements found in section 75.1403-6(b)(3). However, he 

did describe in detail the specific condition for which the 

citation was issued, and as indicated earlier, the man bus 

was removed from service so that the sanding device could be 

repaired. 

When the original safeguard notice was issued in 1976, 

Inspector Meredith noted that one man bus and two jitneys 

234 
used as mantrips "were not provided with operative sanding 

devices." Mr. Meredith did not specify the specific conditions which rendered the sanding devices less than operative, 

and while his notice makes no regulatory reference to section 

75.1403-6(b)(3), and simply cited section 75.1403, Mr. Meredith 

included a verbatim quote of the criteria requirements on the 

face of the notice. Mr. Meredith explained that he omitted any 

reference to section 75.1403-6(b)C3), because the citation 

forms in use in 1976 did not provide a space for this ref erence, and only provided for a citation to the regulatory section and subpart i·~·, Sec. 75.1403, Subpart o. 

During the course of the hearing, MSHA's counsel conceded 

that the conditions cited in the citation issued in this case 

must be substantially the same kind of conditions that were 

described in the original safeguard notice (Tr. 35). He 

stated that the only issue presented here is whether or not 

the citation provided the respondent with adequate notice as 

to what he had to do to maintain compliance. As long as the 

respondent is on notice that a safeguard notice is in effect, 

the requirements of the law have been met (Tr. 48). 

With regard to the lack of reference to the specific 

safeguard criteria dealing with mantrips as found in section 

75.1403-6Cb)(3), MSHA's counsel asserted that anyone in the 

mining industry is presumed to be familar with the general 

mandatory requirements of sections 75.1403 and 75.1403-1, as 

well as the enumerated criteria which follow, and that these 

must be considered collectively as mandated requirements 

which must be followed. In support of his position, MSHA's 

counsel pointed out that the respondent had previously 

received citations in September 1979, for violations of section 75.1403, because of the lack of operative sanding 

devices on its personnel carriers in the No. 3 Mine, and in 

each instance the inspector who issued those citations made 

reference to the previously issued October 19, 1976, safeguard notice issued by Inspector Meredith. Since those citations were not contested by the respondent, counsel argued 

that respondent was on notice as to the mandatory requirements of the safeguards, and had adequate notice as to the 

requirements in question (Exhibit G-2, Tr. 55). 

I take note of the fact that in each of the previously 

issued citations in 1979, the inspector initially failed to 

cite a violation of section 75.1403-6(b)(3), and simply cited 

section 75.1403 as the violative regulatory section. However, he subsequently modified the citations to show a violation of section 75.1403-6Cb)(3), rather than section 75.1403. 

I also note that in all three instances, the inspector failed 

235 
to detail what was wrong with the sanding devices and simply 

stated that the mantrips were not provided with an operating 

sanding device. Further, in his narrative findings concerning the gravity of the violations, the inspector indicated 

that in the event the personnel carriers "hit a wet rail or 

slick spot it needed something to slow it down," and that if 

it hit a slick spot it could "get out of control." Abatement 

was achieved by providing the cited carriers with noperating 

sanding devices./ 

In Secretary of Labor v. Mathies Coal Company, 4 FMSHRC 

1111 (1982), Judge Lasher affirmed a citation which was 

issued for a violation of 30 C.F.R. § 75.1403. The citation 

was based on the inspector's finding that one of four sanding 

devices provided for a self-propelled personnel carrier was 

inoperative. The inspector described the "inoperative" 

sander as follows: "The sander was empty due to valve that 

was stuck open." The underlying safeguard notice relied on 

by the inspector required that "all mantrips be provided with 

properly maintained sanding devices sufficient to sand all 

wheels in both directions of travel." Although an appeal was 

taken on Judge Lasher's "significant and substantial" finding, his ruling on the fact of violation was not appealed. 

The Commission subsequently affirmed Judge Lasher's decision, 

6 FMSHRC 1 (1984). 

The criteria language found in section 75.1403-6(b)(3), 

requires that personnel carriers be equipped with properly 

installed and well-maintained sanding devices. Although the 

term "well maintained" is rather general, Webster's New 

Collegiate Dictionary defines the _word "maintain" in pertinent part as "to keep in an existing state (as of repair, 

efficiency); preserve from failure or decline (machinery>: to 

sustain against * * * danger: * * *·" In the instant case, 

the respondent does not dispute the fact that the sanding 

device in question was not in an operative condition at the 

time it was cited by the inspector. It seems obvious to me 

that the failure of the sanding device reservoir to retain 

its supply of sand while the bus was parked rendered it less 

than operative, and I find that the failure to insure that 

the sand did not escape from the reservoir supports a conclusion that the sanding device was not well maintained. Had 

the bus been placed in operation with no sand in its sanding 

device reservoir, it seems logical to me that the sanding 

device would be useless. 

Whlle it is true that the inspector who issued the disputed citation in this case failed to refer to section 

75.1403-6(b)(3), on the face of the citation, he did cite 
section 75.1403, and he specifically cited the prior safeguard notice issued on October 19, 1976.. In addition., by 

specifically describing the condition which rendered the sanding device less than operative, the respondent was put on 

notice as to what was required to correct the condition. The 

safeguard notice, as well as the intervening citations, 

should have alerted the respondent of the requirement for 

maintaining operative sanding devices on its personnel 

carriers. 

I conclude that the safeguard notice, coupled with the 

subsequently issued violations which were not contested, adequately informed the respondent as to the requirements for 

maintaining the sanding devices on its personnel carriers in 

an operative condition. Although the prior inspectors should 

have detailed the particular conditions which rendered the 

previously cited sanding devices inoperative, as did the 

inspector who issued the citation in this case, the fact that 

they did not do so does not render the citation or the safeguard notice less than adequate to inform the respondent as 

to what it was required to do. The prior violative conditions were abated, and I conclude that the "inoperative sanding device" condition cited in this case was substantially 

the same as the condition cited in the original safeguard 

notice, and in both instances the sanding devices were 

repaired so as to render them operative. Under the circumstances, I conclude and find that a violation has been established, and the citation IS AFFIRMED. 

Fact of Violation - Docket No. SE 85-59 - Citation No. 2310757 

In this case, the respondent is charged with a failure 

to provide adequate clearance on a track section over which 

men and materials were transported. The inspector found two 

timbers lying along the track, and he found a material car 

parked in the track "kick-back" which was loaded with timbers 

which hung over a man bus that was operating on the track. 

The inspector relied on a previously issued safeguard notice, 

and cited a violation of the track haulage road safeguard 

criteria found in section 75.1403-S(d), which provides as 

follows: "(d) The clearance space on all track haulage 

roads should be kept free of loose rock, supplies, and other 

loose materials." 

The criteria found in subsection J_£l of section 

75.1403-8, provides as follows: 

ti 

Cb) Track haulage roads should have a 

continuous clearance on one side of at least 

237 
24 inches from the farthest projection of normal traffic. Where it is necessary to change 

the side on which clearance is provided, 

24 inches of clearance should be provided on 

both sides for a distance of not less than 

100 feet and warning signs should be posted at 

such locations. 

The previously issued safeguard notice, 1 T.J.I., issued 

by Inspector Ingram on July 27, 1976, states as follows: 

Several locations along the track haulageways that were used for travel had clearance 

less than 24 inches. Refuse, loose rock and 

supplys (sic) obstructed the available clearance in the provided walkway. Signs were not 

provided in places where the clearance side 

could be changed. 

The track haulage roads should have a 

continuous clearance on one side of at least 

24 inches from the farthest projection of normal traffic. Where it is necessary to change 

the side on which clearance is provided, 

24 inches of clearance should be provided on 

both sides for a distance of not less than 

100 feet and warning signs should be .posted at 

such locations. 

Track haulage roads developed after 

March 30, 1970, should have clearance on the 

"tight" side of at least 12 inches from the 

farthest projection of the normal traffic. A 

minimum clearance of 6 inches should be maintained on the "tight" side of all track haulage roads developed prior to March 30, 1970. 

The clearance space on all track haulage 

roads should be kept free of loose rock, 

supplies and other loose materials. 

The parties advance the same arguments with respect to 

the adequacy of the safeguard notice as those stated in the 

previous case. MSHA produced copies of 13 citations and one 

order issued at the No. 3 Mine at various times during 1977, 

1979, 1981, 1982, 1983, and 1984, for obstructions on the 

resp6ndent's track haulage system. In each instance the issuing inspectors cited a violation of section 75.1403-S(b) or 

(d), and with~ exception, the inspectors relied on the 

238 
previously issued safeguard notice issued by Inspector Ingram. 

The variety of conditions cited include track obstructions 

caused by crib blocks, loose rock, chain link fencing materials, concrete blocks, pipe, rails, trash, and in 10 cases 

loose timbers were included among the materials cited for the 

obstruction of the track or the failure to maintain the 

required clearances noted in the safeguard notice. In each 

instance, the violations were abated by the cleanup and 

removal of the materials. 

Although the safeguard notice issued by Inspector Ingram 

makes reference to an obstructed walkway along the mine track 

haulageways, and makes no specific reference to section 

75.1403-8Cd), it specifically requi~ed that adequate clearances be maintained along the track haulage, and that the 

track haulage roads be kept free of loose rock, supplies and 

other loose materials. Mr. Ingram testified that he issued 

the safeguard after finding the main track haulageway cluttered and the clearance side of the track obstructed, and he 

confirmed that he discussed the matter with the respondent's 

safety inspector (Tr 39-40). Mr. Ingram also confirmed that 

the safeguard notice is still in effect at the mine, and that 

he would continue to rely on it in issuing citations for conditions similar to those stated in the safeguard CTr. 44). 

I conclude and find that the timbers which obstructed 

the cited track area in question in this case fall within the 

category of supplies or other loose materials noted in section 75.1403-8(d), and that they were conditions similar to 

the conditions cited in the safeguard. Respondent does not 

dispute the existence of the timbers, nor does it dispute the 

fact that the protruding timbers obstructed the track. 

Inspector McAnally's testimony, which I find credible, establishes that the timbers not only obstructed the track, but 

that the man bus "bumped" the timbers, and Mr. McAnally had 

to contort his body t6 avoid being struck by the protruding 

timbers. Respondent offered no testimony or evidence to 

rebut Mr. McAnally's testimony. 

MSHA's counsel argues that it is clear from the record 

that the track area in question was obstructed, and that 

since Mr. McAnally found that there was no track clearance, 

or less than 24 inches of clearance because of the protruding 

timbers, his reliance on the previously issued safeguard 

notice was proper (Tr. 35-36). 

I conclude that the safeguard notice ii&sued by Inspector 

Ingram, as well as the citation issued by Mr. McAnally relying on that safeguard, adequately informed the respondent as 

239 
to what was required to maintain compliance with the cited 

regulatory standard. I take particular note of the fact that 

the citations issued subsequent to the safeguard notice 

included specific references to timbers which obstructed the 

track haulageways in the No. 3 Mine, and in each instances 

respondent corrected the conditions by removing the materials. 

I find nothing in this record to suggest that the respondent 

was confused as to the requirements of the safeguard relied 

on by Mr. McAnaliy, nor do I find any basis for concluding 

that the safeguard was other than adequate. Under the circumstances, I conclude and find that a violation has been established, and the citation IS AFFIRMED. 

Significant and Substantial Violations 

Citation No. 2483944 

In arriving at his decision that the inoperative sanding 

device violation in the Mathies Coal Company case, supra-, was 

"significant and substantial," Judge Lasher discussed in some 

detail the conditions which prevailed at the time the citation was issued. Judge Lasher made credibility findings and 

resolved disputed testimony concerning the track curves, 

grades, whether the tracks were wet, the braking capacity of 

the mantrip, the mechanics of the sanding device, etc., and 

the Commission affirmed his findings in this regard. 

In the instant case, the inspector who issued the sanding device citation was unavailable for trial because he was 

out of state on other MSHA business. Under the· circumstances, 

there is no testimony or evidence as to the actual underground 

conditions which prevailed at the time the citation was issued. 

Although the parties stipulated to the fact that the sanding 

device was inoperative, and that the inspector was correct 

when he marked the gravity portion of the citation "reasonably 

likely," and "lost workdays or restricted duty," there is no 

factual or evidentiary basis to support the inspector's "significant and substantial" finding. Under the circumstances, I 

conclude that the petitioner has failed to establish that the 

violation was "significant and substantial," and the inspector's finding in this regard IS VACATED. 

Citation No. 2310757 

The testimony and evidence in this case establishes that 

the parked protruding timbers obstrricted the track and posed 

a hazard to the miners who were riding in the man bus. The 

inspector's urirebutted testimony established that the bus 

"bumped" the timbers and that the inspector had to move to 

240 
avoid being struck by the timbers. Under the circumstances, 

I conclude and find that the violation exposed the miners 

riding in the man bus to a reasonable likelihood of being 

struck by the timbers and being seriously injured while riding along the track. Accordingly, the inspector's "significant and substantial" finding IS AFFIRMED. 

History of Prior Violations 

The petitioner filed no information concerning the 

respondent's history of prior violations. Although the parties stipulated that the respondent has an "average" history 

of prior violations, I have no idea what this means. Accordingly, for purposes of any civil penalty assessments for the 

citations, I cannot conclude that the respondent's compliance 

history warrants any additional increases or decreases. In 

the future, the petitioner will be expected to make some meaningful input with respect to this statutory standard. 

Size of Business and Effect of Civil Penalties on the 

Res@ondent's Ability to Continue in Business 

The parties stipulated that the respondent is a mediumsize operator and that the imposition of civil penalties will 

not affect its ability to continue in business. I adopt 

these stipulations as my findings and conclusions on these 

issues. 

Good Faith Abatement 

.The parties stipulated that the cited conditions were 

abated in good faith by the respondent. I agree and conclude 

that the respondent exercized good faith in abating the 

violations. 

Negligence 

I conclude and find that the respondent knew or should 

have known of the requirements for maintaining an obstructionfree track and insuring that its personnel carrier sanding 

device was in operative condition. The safeguard notices, as 

well as the subsequently issued citations, provided ample 

notice to the respondent as to what was expected to maintain 

compliance with the cited standards. I conclude and find that 

the respondent was negligent, and that the violations resulted 

from the failure by the respondent to exercise reasonable care. 

In view of the number and frequency of violations _. 

because of timbers and other clutter on its track system, it 

241 
would appear to me that the respondent needs to give closer 

attention to its preventive measures in this regard. 

Gravity 

I conclude and find that the sanding device citation was 

serious. The lack of an operative sanding device would 

obviously affect the safe operation of the man bus. The 

obstructed track' posed a serious hazard to the men riding the 

track in a man bus, and I consider this violation to be 

extremely serious. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCi> of 

the Act, I conclude that the following civil penalty assessments are appropriate and reasonable for the citations which 

have been affirmed: 

Docket No. SE 85-60 

Citation No. 2483944, January 22, 1985, 30 C.F.R. 

s 75.1403--$150. 

Docket No. SE 85-59 

Citation No. 2310757, June 15, 1984, 30 C.F.R. 

§ 75.1403-S(d)--$600. 

ORDER 

The respondent IS ORDERED to pay the assessed civil penalties within thirty (30) days of the date of this decision. 

Payment is to be made to MSHA, and upon receipt of same, 

these proceedings are dismissed. 

,,.fl,t:11. {/fa.(;r;4_ Admi~'fstrative Law Judge 

242 
Distribution: 

George D. Palmer, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2015 Second Avenue North, Suite 201, 

Birmingham, AL 35203 (Certified Mail) 

Robert Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. 

Box C-79, Birmingham, AL 35283 (Certified Mail) 

Harold D. Rice, Esq., Jim Walter Resources, Inc., P.O. 

Box C-79, Birmingham, AL 35283 (Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, P.O. 

Box 22601, Tampa, FL 33622 (Certified Mail) 

/fb 

243 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

--

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 121986 

SECRETARY OF LABOR, 

MINE SAFETY AUD HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

YOUGHIOGHENY & OHIO COAL CO. 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 86-11 

A.O. No. 33-00968-03620 

Nelms No. 2 Mine 

DECISION APPROVING SETTLEMENT 

Appearances: 

Before: 

Patrick M. Zohn, Esq~, Office of the Solicitor, 

Cleveland, Ohio, for the Petitioner 

Robert Kota, Esq., Youghiogheny and Ohio · 

Coal Company, for the Respondent 

Judge Maurer 

This case is before me upon a petition for assessment of 

civil penalty under Section lOS(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). A hearing in this matter 

was convened in Wheeling, West Virginia on January 8, 1986. 

At that time, the parties advised me of a proposed settlement 

disposition of the dispute and jointly moved for approval 

of a settlement agreement and dismissal of the case. The 

violation in this case was originally assessed at $240 and 

the parties propose-to ~educe the penalty to $160. I have 

considered the representations and documentation submitted 

in this case, and I conclude that the proffered settlement 

is appropriate under the criteria set forth in Section llO(i) 

of the Act. 

WHEREFORE, the motion for approval of a settlement is 

GRANTED and it is ORDERED that Respondent pay a penalty of 

$160 within 30 days of this decision. Upon payment, these 

proceedings are DISMISSED. 

Law Judge 

244 
Distribution: 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1240 East Ninth Street, Cleveland, OH 

44199 (Certified Mail) 

Robert Kota, Esq., Youghiogheny and Ohio Coal Company, P.O. 

Box 1000, St. Clairsville, OH 43950 (Certified Mail) 

0 -

/db 

245 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE .LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

( 7 03) 7 56-6232 

February 13, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

LARRY COLLINS, 

EARL KENNEDY, 

v. 

Complainants 

RAVEN RED ASH COAL 

CORPORATION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. VA 85-32-D 

MSHA Case No. NORT CD 84-7 

Mine No. 1 

ORDER 

During the course of the hearing held in this matter in 

Abingdon, Virginia, on November 13, 1985, MSHA's counsel offered 

exhibits C-9 and C-10, which are computer print-outs detailing 

the respondent's history of civil penalty assessments for the 

period August 23, 1982 through August 22, 1984. Exhibit C-9 is 

the compliance record for the respondent Raven Red Ash Coal 

Corporation, and exhibit C-10 is the compliance record for all 

mines operated by Mr. David Jordan, President of the Raven Red 

Ash Coal Corporation. 

Respondent's counsel raised an objection to the relevancy 

and accuracy of the information contained in the exhibits, and 

he argued that some of the dates reflected on the print-outs are 

for periods during which the respondent's mine was operated under 

a different corporate name, namely the Virginia and West Virginia 

Coal Corporation. Respondent's counsel raised a question concerning the corporate ownership of the Virginia and West Virginia 

Coal Corporation, and suggested that any prior citations attributable to that corporate entity should not be considered as part 

of the history of compliance for the respondent Raven Red Ash 

Coal Corporation. 

I reserved any ruling on the admissibility of exhibits 

C-9 and C-10, and permitted the parties an opportunity to file 

further arguments on the questions raised. 

246 
By letter and enclosures filed with me on January 9, 1986, 

MSHA's counsel has submitted further arguments on the question 

concerning the respondent's history of prior violations. Counsel 

has also submitted proposed exhibits C-11, c-12, C-13, and c-14, 

which are copies of MSHA Legal Identity Reports and related 

correspondence reflecting Mr. Jordan's corporate ownership and/or 

interest in the Virginia and West Virginia Coal Corporation and 

the Raven Red Ash Coal Corporation. Proposed exhibit C-15 is an 

MSHA document explaining the various computer codes and column 

headings as shown on the computer print-outs. Counsel requests 

that all of these exhibits, including the disputed exhibits C-9 

and C-10, be received in evidence and made a part of the record 

in this proceeding. 

The respondent has not responded to MSHA's letter of 

January 9, 1986, and has filed no additional arguments with 

respect to the history of prior violations issue. By letter 

dated January 16, 1986, respondent's counsel advised tha~ the 

respondent will stand on the present record and will not file 

any additional briefs in this matter. 

Upon due consideration of the submissions made by MSHA's 

counsel on January 9, 1986, I conciude and find that the information submitted is relevant to this proceeding. In the event 

that I find a violation of section lOS(c) of the Act has been 

established, the respondent's history of prior violations is 

relevant to any civil penalty assessment which may be assessed 

by me for the violation. Accordingly, MSHA's request to receive 

exhibits C-9 through C-15 as part of the record in this case IS 

GRANTED, and the respondent's objections ARE DENIED. 

Distribution: 

. {~'ZA/,1 f! ~??ii4 7/o;geK. Koutras 

Administrative Law Judge 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 

22203 (Certified Mail) 

Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.O. Box 1296, 

Abingdon, VA 24210 (Certified Mail) 

/fb 

247 

('._ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 141986 

GARY L. LAMB, SR.~ · DISCRIMINATION PROCEEDING 

Complainant . . v. . . Docket No. VA 84-39-D . . MSHA Case No. NORT CD 84-6 

PARAMONT MINING CORPORATION, 

Respondent . . Docket No. VA 86-1-D 

. . MSHA Case No • NORT 85-6 

ORDER OF DISMISSAL 

Before: Judge Melick 

The complainant, Gary Lamb, seeks to withdraw his Complaint in the· captioned cases based on a settlement agreement 

with Respondent. Under the circumstances her n, permission 

to withdraw is granted. 29 C.F.R. 2700.11. The cases are 

therefore dismissed. 

Distribution: 

Mr. Gary L. Lamb, Sr., P.O. Box 

(Certified Mail) 

McRoberts, KY 41835 

Gerald L. Gray, Esq., McClur ih .. ...Le, .t'.O. Box 929, Clintwood, 

VA 24228 (Certified Mail) 

Michael~. He~nan, Esq., and Ronald E. Meisburg, Esq., Smith, 

Heenan & Althen, 1110 Vermont Avenue, N.W., Washington, DC 

20005 CCertif ied Mail) 

rbg 

248 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 201986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

• v. 

NALLY & HAYDON, INC., 

Respondent 

Before: Judge Kennedy 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-199-M 

A. C. No. 15-00037-05501 

Docket No. KENT 85-200-M 

A. C. No. 15-00037-05502 

Hurricane Gap Quarry Mine 

Docket No. KENT 85-201-M 

: A. C. No. 15-00071-05504 

. . Harlan Mine 

This matter is before me on the parties' amended motion 

to approve settlement by increasing the amount of' the settlement proposed from $1,377 to $7,305. 

Based on an independent evalbation and res nova review 

of the circumstances, I.find the settlement, as_now proposed, 

is in accord with the ~urposes and policy pf the Act. 

Accordingly, it is ORDERED t~at the operator pay the 

amount of the settlement agreed upon, $7,305, on or before 

Friday, March 21, 1986, and that · ject to payment the 

captioned matter be DISMISSED. 

Jo eph B. Kennedy 

Administrative Law 

249 
Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, u. s. 

Department of Labor, 280 u. s. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail) 

Albert Haydon, President, Nally & Haydon, Inc., P. o. Box 70, 

Bardstown,·KY 40004 (Certified Mail) 

dcp 

250 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 201986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 84-43 

A.O. No. 44-03868-03520-A 

v. 

. . 

. . 

. . CC&P Coal Co. No. 1 Mine 

RUFUS BALDWIN, . : 

Respondent . . 

DEC!SION · 

Appearances: J. P~ilip Smith, Esq.~ 'Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, fo~ the Petitioner. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to Section llO(c) of the Federal Mine Safety and 

Health Act of 1977 (the "Act"), 30 u.s.c. § 820(c), seeking 

a civil penalty assessment of $500. More particularly, it 

is alleged that on October 20, 1982, the respondent, acting 

as an agent of the corporate mine operator, cc and ? Coal 

Company, within the meaning and scope of Sections 3(e) and 

llO(c) of the Act, knowingly authorized, ordered or carried 

out the corporate mine operator's violation of 30 C.F.R. 

S 75.511, as stated in Section 104(d) (1) Citation No. 

2071403. Said Citation, as modified, states as follows: 

Electric work was performed on the 220 

volt control circuit on the Lee Norse 

245 continuous mining machine without 

opening and locking out the disconnecting device. A fatal machinery accident 

occurred. 

fl 

On October 27, 1983, the CC and P Coal Company paid a 

civil penalty assessment of $2,000 for the foregoing violation (Petitioner's Exhibit No. 9). 

251 
The respondent herein contested the violation and the 

proposed civil penalty assessment. Therefore, pursuant to 

notice, a hearing was convened· in Falls Church, Virginia, 

on December 10, 1985, and while the petitioner appeared, the 

respondent did not. In spite of the respondent's failure to 

appear, the hearing on the merits proceeded without him. 

For reasons discussed later in this decision, respondent is 

held to be in default, and is deemed to have waived his 

opportunity to be further heard in this matter. 

APPLICABLE STATUTORY AND REGULATORY PROVISIONS 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95164, 30 ti.s.c. s 801 et seq. 

2. Commission Rules of Procedure, .29 C.F.R. § 2700.l 

et seq~ 

ISSUES 

The issues presented in this case are whether the petitioner has established a violation of Section 30 C.F.R. · 

§ 75.511 and that this respondent as an agent of CC and P 

Coal Company, knowingly authorized, ordered or carried out 

that violation; and if so, the appropriate civil penalty 

that should be assessed. 

PETITIONER'S CASE 

Petitioner introduced the following exhibits that were 

received in evidence in this proceeding: 

1. A copy of Control Order No. 2003745 dated 

October 20, 1982. 

2. A copy of t.he· .. Legal Identity Report for No. 

1 Mine, CC and P Coal Company, dated June 2, 

1982. 

3. A copy of a letter dated November 5, 1982, 

from CC and P to MSHA establishing interstate commerce. 

4. A copy of the Section 104(a) Citation No. · 

2071403, issued on October 21, 1982. 

5. A copy of the modification of Citation No. 

2071403 to a 104(d) (l) citation, dated 

October 27, 1982. 

252 
6. A copy of the abatement of Citation No. 

2071403 dated October 27, 1982. 

7. A cop¥ of a Memorandum of Record to the 

District Manager from Roy D. Davidson concerning the fatal accident of October 20, 

1982. 

8. A copy of the Report of Investigation concerning the fatal accident of October 20, 

1982, ·co-authored by Dorsey C. Owens and 

Roy D. Davidson. 

9. A copy of the Decision Approving Settlement 

in the case styled Secretary of Labor, Mine 

Safety and Health "Administration (MSHA) v. 

CC and P Coal Company, 5 FMSH.~C 1938 (1983). 

10. A computer printout certified1 by the Office 

of Assessments of the Mine Safety and Health 

Administration, showing that the civil penalties, assessed by the ALJ in Exhibit No. 9, 

supra, were paid by the corporate operator, 

CC and P Coal Co. · 

Mr. Roy D. Davidson appeared and testified on behalf of 

the petitioner. He is an electrical engineer employed by 

MSHA in Northern Virginia and as such has been involved in 

coal mine accident investigations for some ten (10) years. 

He investigated the fatal accident which is the subject of 

this case and co-authored the final version of the Report of 

Investigation (Petitioner's Exhibit No. 8). 

The substance of his testimony was that Mr. Baldwin, 

respondent herein, was performing some electrical work on 

the start-stop switches that control the ripper heads, 

conveyor chain and pump motor of the continuous miner at the 

time the fatal accident occurred. This was a low-voltage 

circuit and Baldwin was performing this work without opening 

and locking-out the disconnecting d.evice. In Mr. Davidson's 

opinion it was Baldwin's responsibility to see to it that 

the disconnecting device was open and locked out per 30 

C.F.R. § 75.511. He also believes that this is common 

knowledge in the mining industry and therefore that Baldwin 

knew it was required and also knew there was power on the 

machine just prior to the accident. 

At the time of the accident, Baldwin w~s employed at 

CC and P Coal Company as a section foreman and also a 

certified electrician and the electrician of the section. 

The acc.ident victim, Orville Terry Cooper, worked for Baldwin on his crew. 

253 
The disconnecting device was located at the power center, 

approximately 250 feet away from the continuous mining machine. The effect of opening up and locking out the disconnecting device is that it provides positive assurance that 

the power has been removed from the continuous mining machine. 

Mr. Davidson reconstructed the accident on the record 

as follows: On the morning of October 20, 1982, at approximately 8:00 A.M., the section crew with Mr. Baldwin as the 

section foreman entered the mine. They arrived on the section at approximately 8:30 A.M. This particular Lee Norse 

continuous mining machine had had electrical problems for 

several months with the ripper heads, conveyor belt and pump 

motor coming on inadvertenttY• It also had had intermittent 

problems with stopping the ripper heads. Baldwin knew of 

this and was directly involved· with these problems. On the 

day of the accident, the previous shif~ had already worked 

on the continuous miner all night, anQ.-;,.the ripper heads had 

been raised into an upper position and were supported by. 

wooden blocks. The morning.of the accident, Baldwin removed a control panel on the mining machine to work on the 

methane monitor and he assigned Tim Elswick, the scoop operator, to go to the power center and "kill the main power 

supply." After correcting the problem with the methane 

monitor, Baldwin put the control panel back and replaced 

the cover on the main control panel in the operator's deck. 

After work on the methane monitor system was completed, 

electric power was restored at the power center. Immediately prior to the accident, Baldwin was preparing to install 

some insulating paper behind the start-stop switches to 

prevent the switches from contacting the inside of the 

switch control panel and becoming shorted across. Terry 

Rose, working with and for Baldwin, raised the ripper heads 

to remove the wooden blocks and then let the ripper heads 

come down to the floor. This fact in and of. itself would 

indicate to all, including Baldwin, that there was power on 

the machine. It had been turned back on. Prior to commencing work on the switches, Baldwin. had assigned three 

(3) of his men, including the victim, Cooper, to tighten 

the ripper chain while he and Rose worked on the start-stop 

switches. They were so engaged when at approximately 9:30 

A.M. as Baldwin was removing the switch from its mountinq 

location, the rippers suddenly started, catching coo~er, 

who was bending over the rippers assisting in tightening 

the ripper chain adjustment bolt, and fatally injuring him. 

FINDINGS AND CONCLUSIONS 

RESPONDENT'S FAILURE TO APPEAR AT THE HEARING 

The record in this case reflects numerous attempts to 

establish contact by mail or telephone with Mr. Baldwin on 

254 
the part of both myself and counsel for the petitioner, 

Mr. Smith. He has never contacted either mvself or Mr. Smith 

to indicate his desires or his position with regard to the 

issues in this case. The only communication from him in 

this record is an undated "Answer" that states that he does 

not disagree with the violation, only with the gravity of 

the violation and recites that he cannot afford to p~_JSOO. 

On the morning of the hearing (December 10, 1985), which 

was "noticed" on October 17, 1985, Mrs. Baldwin called 

Mr. Smith to explain that her husband would not be at the 

hearing that morning because his car was broken down in 

Alabama, where he now works. She was unable to provide a 

telephone nurnber·to call Mr: Baldwin, either at home or at 

work. 

Under the circumstances in this r~cord, which include 

at least three attempts (all unsucces~ful) to communicate 

with Mr. Baldwin sub-sequent to his beiatedly filing an . "Answer," I conclude and fiQ.d that he has waived his right 

to be heard further in this matter and that he is in default. 

Although Commission Rule 29 C.F.R. § 2700.63 calls for 

the issuance of a Show Cause Order before a party is defaulted, given the facts of this case where the respondent 

has repeatedly failed to respond or otherwise communicate 

with me or counsel for petitioner, I conclude that the 

issuance of such an order would be a futile gesture. 

FACT OF VIOLATION 

I conclude and find that the petitioner has established 

a violation of 30 C.F.R. § 75.511 by a preponderance of the 

evidence. Respondent himself, by his "Answer" does not 

"disagree" with the facts of the violation. In any event, 

the evidence is undisputed that electrical work was being 

performed by Baldwin on a low voltage circuit without opening and locking out the disconnecting device. 

Negligence 

Mr. Davidson testified that it is common knowledge in 

the coal mining industry that when you perform electrical 

work on a piece of machinery, you must open and lock out 

the disconnecting device. It was Mr. Baldwin's responsibility to do this. He knew there was power on the machine. 

He knew the m~chine had a history of electrical diff iculties. Yet he assigned three of the men on his crew to work 

on the ripper chain, which required them to place themselves in close proximity to the rippers while he performed 

electrical work on the start-stop switches for the rippers. 

I conclude and find that this constitutes an extremely high 

degree of negligence. 

255 
Gravity 

I find that this violation was extremely serious. It 

was the direct cause of a fatality. 

History of Prior Violations 

Counsel for petitioner has stated and I find that 

Mr. Baldwin, personally, has no history of prior violations. ~ 

Section llO(c) Criteria 

The undisputed evidence in this case establishes without any question· that Mr. Baldwin, the individual respondent 

herein, was the agent of cc' and P Coal Company and as such 

did personally and knowingly authorize, order and carry out 

the violation of § 75.511 cited in thi~ instance. 

Civil Penalty-~Assessment 

. The violation in this case was assessed by MSHA at 

$500. This was amended at the hearing to $1,000 by counsel 

for petitioner. I fully concur that $1,000 would be areasonable penalty for the egregious violation in this case. 

However, because of the default nature of the proceeding 

and because it is reasonable to assume that Mr. Baldwin 

reasonably expected his penalty would be limited to the 

maximum of which he had notice, and taking into account the 

requirements of Section llO(i) of the Act, I conclude that 

a civil penalty .assessment of $500 will adequately serve 

the public interest. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in 

the amount of $500 for the violation in question, and payment is to be made to MSHA within thirty (30) days of the 

date of this decision and order. Upon receipt of payment 

by the petitioner, this case is di~dA_u.fft ~ 

I~~~:{J_~~tive Law Judge 

Distribution: 

J. Philip Smith, Esq., Office of the Solicitor, u. S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) · 

Mr. Rufus Baldwin, Post Office Box 146, Peterson, AL 35478 

(Certified Mail) 

db 256 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE FEB 2 41986 FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

ST. JOE MINERALS CORP., 

Respondent 

. . 

. . . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-25-M 

A.C. No. 23-00494-05512 

Viburnum No. 28 Mine 

ORDER APPROVING SETTLEMENT 

Before: Judge Broderick ... 

On February lJ, 1986, Petitioner and Respondent filed 

a joint motion to approve a settlement agreement originally 

assessed at $7000 propose to settle for $5000. 

The violation charged was failure to take down loose 

slabs of pillar which resulted in a fatal accident. The 

motion states that Respondent's negligence originally judged 

as moderate was in fact low, because the evidence shows that 

Respondent repeatedly advised employees to avoid the area of 

the mine where the accident occurred. The violation was 

very serious. I accept the representation in the motion and 

conclude that the settlement should be approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $5000 within 30 days of the date 

of this order. 

Distribution: 

f/ tti~5 /J4i:cdt--i-~k ~ James A. Broderick 

Administrative Law Judge 

Tobias B. Fritz, Esq., U.S. Department of Labor, Office of the 

Solicitor, 911 Walnut St., Kansas City, MO 64106 (Certified Mail) 

Richard J. Ashby, Esq., P.O. Box 500, Viburnum, MO 65566 

(Certified Mail) 

slk 

257 
. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH · FLOOR 

WASHINGTON, D.C. 20006 

February 26, 1986 

SECRETARY OF LABOR,~ CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Petitioner 

v • 

PHELPS DODGE CORPORATION/ 

TYRONE BRANCH, 

Respondent 

Docket No. CENT 85-19-M 

A. C. No. 29-00159-05508 

Docket No. CENT 85-37-M 

A. C. No. 29-00159-00509 

Tyrone Mine & Mill 

DECISION 

Appearances: Eve Cnesbro, Esq., Office of the Solicitor, 

U. S. Department of Labor, Dallas, Texas for 

Petitioner; 

Before: 

Stephen W. Pogson, Esq., Evans, Kitchel and 

Jenckes, P. C., Phoenix, Arizona for Respondent; 

Judge Merlin 

These cases are petitions for the assessment of civil 

penalties filed under section llO(a) of the Federal Mine Safety and Health Act ("the Act") by the Secretary of Labor against Phelps Dodge Corporation/Tyrone Branch, for alleged violations of 

the mandatory safety standards. 

Stipulation 

At the hearing, the parties agreed to the consolidation for 

hearing and decision of the two docket numbers (Tr. 3). 

They also agreed to the following stipulations (Tr. 4): 

(1) Phelps Dodge, Tyrone Mine and Mill, are subject to the 

Act and that MSHA has safety and health jurisdiction over them; 

(2) t~e citations were duly issued and served by MSHA; 

(3) there were 57,120,000 tons of ore and waste from the 

mine at the Tyrone Mine during the calendar year 1984; 

(4) the Tyrone Mine and Mill is a large open pit operation; 

258 
(5) imposition of a penalty in either or both cases would 

not impair Phelps Dodge's ability to remain in business. 

Based upon the print-out submitted (MSHA Exhibit P-3) I find 

the operator's prior history of violations is good. 

Cent 85-19-M 

Citation No. 2092265 

The subject citation dated October 10, 1984, describes 

the allegedly violative condition or practice as follows: 

The company posted a list "miner 

representative" dated 10/4/84 on top of 

the miner representative list received by MSHA dated 10/1/84. The company list has 

two additional names dated April 7, 1980 

and the other 12/26/83. A copy of the 

most current status list presented to 

the company and MSHA is only posted at 

the safety office bulletan [sic] 

board where not all employees can observe 

the list of the miners representing them. 

Tony Trujillo said he made up this list. 

30 C.F.R. § 40.3 provides as follows: 

(a) The following information shall 

be filed by a representative of miners with 

the appropriate District Manager, with copies 

to the operators of the affected mines. This 

information shall be kept current. 

(1) The name, address and telephone number of the representative of miners. If 

the representative is an organization, the 

name, address and telephone number of the 

organization and the title of the official 

or position who is to serve as the repre- sentative and his or her telephone number. 

Section 40.4. provides that: 

Posting at Mine 

A copy of the information pro~~ded the 

operator pursuant to § 40.3 of this part shall be posted upon receipt by the operator 

on the mine bulletin board and maintained 

in a current status. 

259 
The facts are undisputed. On the bulletin board of the mine 

safety office was a list of miner representatives and alternates 

dated October 4, 1984 (MSHA Exhibit P-5; Operator's Exhibit R-18). 

This list has three miner representatives and sixteen alternates. 

Directly underneath this list on the board was another list dated 

October 1, 1984 which was the same as the one on the top except 

that it had only one of the three miner representatives and it 

had a certification !by the one named miner representative that 

the list had been submitted to MSHA (MSHA Exhibit P-6; Operator's 

Exhibit R-17). It is agreed that the two additional miner representatives on the top list were proper miner representatives who 

had submitted the appropriate designation forms to MSHA (MSHA 

Exhibits P-8 and P-9). The top list was therefore, a composite 

put together by the operator from the separate forms it had 

received from its miners which they had sent to MSHA. 

The regulation does not specifically address the situation 

where multiple forms are separately submitted to MSHA and individually given to the operator. I conclude that the list compiled 

by the operator and placed on the top on the safety office bulletin board, was a sensible, fair and permissible way of handling 

such a situation. The MSHA inspector admitted he had no quarrel 

with the accuracy of the top list (Tr. 12). And the company 

played no part in selecting the representatives. It merely compiled on one piece of paper the separate pieces of paper each of 

which had been sent to· MSHA individually. Its actions were 

purely ministerial and added nothing of substance. The only alternative would have been for the operator to post separate 

pieces of paper side by side all over the bulletin board. This 

would not have aided the process of miner representation. On the 

contrary, it would have been complicated and confusing. The 

operator used good judgment and good sense. If MSHA wants the 

matter handled differently, it can amend the regulation to speci- fy what it wants done. But as matters now stand, the operator 

must be held to have acted reasonably and efficqciously. 

Accordingly, I hold the composite list posted on the top in the 

safety office bulletin board was acceptable. 

The next issue is the required posting location for the ap- propriate list.· The regulation requires that the list which must 

be maintained in a current status be posted on the mine bulletin 

board. In this case there were three bulletin boards. One, as 

already discussed was inside the safety office ("A" on MSHA 

Exhibit P-14). The second board was glassed in and secured on 

the outside. wall of the building which housed the mine office and 

changing room (Tr. 20-22; 57-59; "B" on MSHA Exhibit P-14). On 

the door of this building was a sign "Mine Office" and on the top of the board itself was a sign "The Mine Bulletin Board" {Tr. 57). 

On this bulletin board was posted a list of miner representatives 

dated September 15, 1980 with some updating notations {Tr. 17, 

22, 70, MSHA Exhibit P-7). A comparison with the 1984 list posted 

260 
on top in the safety office reveals that the 1980 list was out of 

date. The third board was glassed in on the outside of the mill 

building where the change room for the mill workers was located 

(Tr. 58, "C" on MSHA Exhibit P-14). The same 1980 list was on 

this board as on the board on the mine office bui1ding (Tr. 23). 

I conclude the 1980 list was not current and therefore, not 

acceptable under the regulations. The question then becomes: 

was the posting in the safety office sufficient? I conclude it 

was not. The regulation requires posting on the "mine bulletin 

board". There was just such a place in this case. The second 

board ("B") was entitled "Mine Bulletin Board" and was mounted 

next to a door marked "Mine Office" (Tr. 57). Admittedly, mill 

employees regularly do not pass by the mine bulletin board but 

mine employees do so regularly on their way to the changing room 

which is in the same building (Tr. 58). There is no requirement 

that every employee pass by the designated location nor is there 

a requirement for multiple postings. The safety office is where 

employees would only go for training or if they have dealings 

with the safety department (Tr. 50). Posting the current 1ist on 

the safety office bulletin board did not meet the requirements of 

the regulations. Accordingly, I find the operator violated this 

aspect of the mandatory standard. 

The violation was nonserious. Negligence is low. As 

already set forth, I find the operator's prior history is good 

and I accept the stipulations regarding the other criteria. 

A penalty of $20 is Assessed. 

Cent 85-37-M 

Citation No. 2092266 

The subject citation dated October 10, 1984, describes the 

allegedly violative condition or practice as follows: 

"The lime slaker area at this time 

was not kept clean of slick spilled wet 

lime. An injury was reported on 9/20/84 

with the injured employee still off on 

lost time because of a slip and fall 

which resulted with a back injury. 

An employee, Gilbert A. Romero 11 he1 per-" , stated that th i s are a i s 

cleaned each shift and that at this ~ 

time when the inspection party arrived, . duty called and he was not cleaning at 

this time. 

261 
30 C.F.R. § 55.20-3 provides as follows: 

55.20-3 Mandatory. At. all mining operations: (a) Workplaces, passageways, 

storerooms, and service rooms shall be 

kept clean and orderly. (b) The floor of 

every workplace shall be maintained in a 

clean and; so far as possible, a dry condition. Where wet processes are used, 

drainage shall be maintained, and false 

floors, platforms, mats, or other dry standing places shall be provided where 

practicable. (c) Every floor, working place, and passageway shall be kept free 

from protruding nails, splinters, holes, or 

loose boards, as practicable. 

There is no dispute that when the inspector arrived, the 

floor of the lime slaker area was covered with waste material 

from the slaker and that the drains were clogged (Tr. 107). The 

evidence further indicates that in accordance with established 

procedures the lime slaker helper had intentionally emptied the 

contents of the slaker chamber onto the floor because the chamber 

had become plugged (Tr. 151). The helper was supposed to clean 

up the floor immediately but he had to leave to go to the bathroom (Tr. 110). At this time the inspector arrived and issued 

the .subject citation. MSHA 1 s witness and the operator's witness 

agreed that the condition which the inspector found could have 

occurred during the brief interval the helper was gone (Tr. 

146, 154). In the absence of evidence on the point, I cannot 

accept the unsupported suggestion that the helper could have gone 

to the bathroom before he emptied the slaker chamber (Tr. 147). 

I appreciate the inspector's concern over the condition he saw. 

However, a little common sense would not be amiss in a case such 

as this. Under the circumstances presented I cannot find the 

operator failed to comply with the mandatory standard. 

Citation No. 2092266 is Vacated. 

ORDER 

In light of the foregoing, the operator is ORDERED TO PAY 

$20 within 30 days of the date of this decision. 

: \ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

262 
Distribution: 

Eve Chesbro, Esq., Office of the Solicitor, U. S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Stephen W. Pogson, Esq., Evans, Kitchel & Jenckes, P.C., 2600 

North Central Avenue, Phoenix, AZ 85004-3099 (Certified Mail) 

/gl 

2~ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 FEB 2 61986 

FMC WYOMING CORPORATION, 

Contestant 

v. 

SECRETARY OF.LABOR, P 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FMC WYOMING CORPORATION, 

Respondent 

. . 

CONTEST PROCEEDING 

Docket No. WEST 85-4-RM 

Citation No. 2084591; 9/17/84 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-41-M 

A.C. No. 48-00152-05525 

FMC Trana Mine 

DECISION 

Appearances: James H. Barkley, Esq., and Margaret Miller, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Respondent/Petitioner; 

John A. Snow, Esq., Vancott, Bagley, Cornwall & 

McCarthy, Salt Lake City, Utah, 

for Contestant/Respondent. 

Before: Judge Lasher 

This :'°"":--:.,,r is com;: ::.::c :iceeding filed by 

FMC Corporation l:1erein FMC) on October 9, 1984, pursuant to 

Section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. Section 801 et~., (herein the Act), and a civil 

penalty proceeding initiated by the Secretary of Labor on 

February 25, 1985, by the filing of a Proposal for Penalty 

pursuant to Section 110 of the Act. 

A hearing on the record was held in Salt Lake City, Utah, on 

March 6 and 7, 1985, at which both parties were represented by 

counsel. The two dockets comprising this proceeding were consolidated for hearing on March 6, 1985 (Tr. 2) since the subject 

of both is Citation No. 2084591 issued by MSHA Inspector Ronald 

L. Beason on September 17, 1984, at FMC's trona mine located near 

Green River, Wyoming. This Citation was issued under Section 

104(d)(l) of the Act, and alleges that the violation of the 

264 
safety and health standard cited, 30 C.F.R. § 57.20-11 l; was 

caused by the "unwarrantable failure" of FMC to comply with such 

standard. 

The violative condition (or practice) was described in the 

Citation as follows, to wit: 

"The old MCC Motor Control room (Baby Sesqui) was insulated with a material which contained chrysotile 

asbestos. The insulation had deteriorated and had 

fallen from the roof and portions of the wall. The 

material was 2-1/2 inches thick and had fallen from the 

south wall. The lower measures 4 feet x 2-1/2 feet. 

The upper section which had fallen measured 2 feet x 3 

feet. The motor control room measured 9 feet x 12 feet 

and the insulation had fell from the roof. Loose insulation hanging on raiiings and electrical conduit 

measured approximately 2-1/2 inches thick by 2 feet wide 

by 3 feet long. Another section was approximately 10 x 

10 inches. Apparently the roof section and wall sections 

of insulation had fallen to the floor and had been 

sweeped up. Fresh signs of cleaning were apparent. Recently ·employees had disconnected the electrical switchgear in the room, except three panels for lighting & 

heating etc. 

Asbestos has been determined to be a health hazard and is 

associated with asbestosis, lung cancer and cancer of the 

gastrointestinal tract. When suspended fibrous dust 

particles do not readily settle, but remain suspended for 

long periods of time, therefore they continue to present 

an hazard to the employees which worked inside the 

control room. 

On 3-20-1981 the operators records indicated that a 

sample of the insulation had been taken and found to contain asbestos. The operator failed to barricade the area 

or post warning signs which displayed the nature of the 

hazard and the respiratory protection required. Due to 

the association of asbestos to lung disorders, the obvious work completed in an enclosed room, the unknown 

contamination, this is an unwarrantable failure of the 

1/ This regulation provides: 

"Areas where 'health or safety hazards exist that are not 

immediately obvious to employees shall be barricaded, or 

warning signs shall be posted at all approaches. Warning 

signs shall be readily visible, legible, display the nature 

of the hazard, and any protective action required." 

265 
operator to take the appropriate safety measures to insure that the employees were adequately protected while 

working in this area." 

The Secretary initially proposed a penalty of $400.00 for 

the alleged violation but at the hearing and in his post-hearing 

brief urged the maximum penalty authorized iri the Act, $10,000. 

The Secretary~contends that the presence of a potent 

carcinogen, asbestos, in a working environment in and of itself 

is a hazard which requires the mine operator to comply with the 

subject regulation by either barricading or posting warning 

signs. 

FMC contends that the Secretary CMSHA) has determined and 

officially advised the mining industry what is a safe or accepted 

level of asbestos by the promulgation of 30 C.F.R. 57.5-1 which 

provides: 

§ 57.5 Air quality, ventilation, radiation, and 

physical agents. 

Air Quality 

General-Surf ace and Underground 

57.5-1 Mandatory. Except as permitted by§ 57.5-5: (a) Except as provided in paragraph (b), the exposure to airborne 

contaminants shall not excee, on the basis of a time weighted average, the threshold limit values adopted by the 

American Conference of Governmental Industrial Hygienists, 

as set forth and explained in the 1973 edition of the Conference's publication, entitled "TLV's Threshold Limit 

Values for Chemical Substances in Workroom Air Adopted by 

ACGIH for 1973," pages 1 through 54, which are hereby incorporated by reference and made a part hereof. This publication may be obtained from the American Conference of 

Governmental Industrial Hygienists by writing to the Secretary-Treasurer, P.O. Box 1937, Cincinnati, Ohio 45201, or 

may be examined in any Metal and Nonmetal Mine Safety and 

Health District or Subdistrict Off ice of the Mine Safety and 

Health Administration. Excursions above the listed 

thresholds shall not be of a greater magnitude than is 

characterized as permissible by the Conference. 

Cb) The 8-hour time-weighted average airborne concentration 

· of asbestos dust to which employees are exposed shall not 

exceed 2 fibers per milliliter greater than 5 microns in 

length, as determined by the membrane filter method at 

400-450 magnification C4 millimeter objective) phase con266 
trast illumination. No employees shall be exposed at any 

time to airborne concentrations of asbestos fibers in excess 

of 10 fibers longer than 5 micrometers, per milliliter of 

air, as determined by the membrane filter method over a 

minimum sampling time of 15 minutes. "Asbestos" is a generic 

term for a number of hydrated silicates that, when crushed 

or processed, separate into flexible fibers made up of fibrils. Although there are many asbestos minerals, the term 

"asbestos" as used herein is limited to the following 

minerals: chrysotile, arnosite, crocidolite, anthophylite 

asbestos, tremolite asbestos, and a~tinolite asbestos. 

The subject Citation was issued on September 17, 1984, 

during an ongoing regular inspection which was nearing completion. 

The alleged violation occurred in an 11' by 12' room called the 

"old Motor Control Center" located in the so-called "Baby Sesqui" 

complex at the mine. This room is located on the ground floor of 

the complex which is approximately five or six floors high (Tr. 

120) and at the times material herein it housed the electrical 

controls for the complex (Tr. 107). The Baby Sesqui complex 

contains part of FMC's milling process CTr. 99). The room itself 

is also known as the "Baby Sesqui control room," "The old MC" and 

the "MCC" (Tr. 30). It will be referred to herein as the MCC. 

The MCC, as previously noted, is approximately 11 feet by 12 

feet and has but one door and no windows (Tr. 30, 116, 171). 

There is no ventilation system for the room <Tr. 70). The door 

opens from the outside and there is no entry into the Baby Sesqui 

from the MCC (Tr. 121, 142). The Baby Sesqui, even though part 

of the milling area, is essentially dust free because the 

product-trona-is brought in in a liquid state {Tr. 142, 183, 

214). 

The insulation in the MCC, which was 2-1/2 inches thick (Tr. 

50, 57, 58) contained 20% asbestos CExs. S-12 and s-13; Tr. 25, 

40, 48, 61, 66, 240, 265). FMC concedes it was aware of the 

asbestos content of the insulation (Tr. 59-62, 63) and that 

during a time certain work was performed in 1983/1984 airborne 

·asbestos fibers would have been present in the MCC (Tr. 345). 

Inspector Beason credibly described the pertinent part of 

his inspection as follows: 

Q. Okay. When you entered the motor control center, what 

did you observe? 

A. Well, I observed this insulation that was on the walls. 

It was deteriorated, fallen down. It wa.3 on top of the 

control boxes, electrical switches. I went over and looked 

at the electrical switches. It was on top of them. There 

was a piece off on the right - the south wall - that I took 

a piece off and got to fooling with it and talking about it. 

267 
Q. It was some kind of insulation, you assumed? 

A. Uh-huh (affirmative). 

Q. What was the texture of this? 

A. It was brittle. There was shiriy parts in it that - I 

got it in here; and with my glasses - I've got the cheater 

glasses - I got up and looked at it. And it looked sort of 

brittle. 

Q. Did you know what that material was at that time? 

A. No, ma'am. I asked Mr. Hatt~/ what it was at that 

time. 

Q. And what did Mr. Hatt tell you? 

A. He refused to answer me. 

Q. How did you find out what that material was? 

A. Well, I went to him several times. I had it, and I went 

to him several times and asked him what it was. And he refused to answer. I asked him if I could get a sample of the 

material. He said that I could. And I went next door to 

another place there and asked him if I could take a bottle. 

And he said yes. 

And I put it in. And I asked him was that asbestos, at that 

time I asked him. And he said he wouldn't tell me, I'd have 

to talk to the environmentalist. 

Q. Who is the environmentalist? 

A. I've got his -

Q. Could that be Mr. Watson? 

THE WITNESS: Carl Watson ~/ 

(Tr. 31-33) 

xx xx xx xx xx xx xx xx 

"Q. Did you ever see the results of the material sample 

which you put in the bottle and turned in? 

A. Yes, sir. 

Q. Is that this Exhibit 12? 

A. Yes, sir. 

Q. And does it indicate on there what the material was? 

A. Yes, sir. 

2/ Bud Hatt, FMC safety supervisor. ll Carl L. Watson, Environmental/Safety Engineer (Tr. 227). 

268 
Q. What was it? 

A. Twenty percent asbestos." 

(Tr. 40). 

The sample of insulation material taken was representative 

of the insulation found around the MCC (Tr. 31, 41-43), which had 

fallen from the walls and roof of the room (Tr. 44, 56) and was 

observed (1) on top of a conduit, control boxes, electrical 

switches, (2) hanging from the rafters (Tr. 31, 43-45), (3) on 

the handles of a control panel (Tr. 45),(4) inside the control 

panel (Tr. 48), and (5) on the floor mats and other areas (Tr. 

52). This insulation material was deteriorating and falling down 

from the walls and roof (Tr. 31, 58, 44). 

The.record in this case provides adequate information as to 

the general characteristics and hazardous nature of asbestos. 

Asbestos is the generic name for a number of hydrated silicates 

(Tr. 244). Chrysotile is one such silicate (Tr. 244, 30 C.F.R. 

§ 57.5). Asbestos is composed of fibers which are bundled 

together to form larger fibers which in turn are bundled together 

to form still larger fibers (Tr. 245). The result is that as 

asbestos is broken down it does not break down into pieces but 

rather as each fiber is broken down it releases many more fibers 

which in turn, if broken down, release still more fibers (Tr. 

245). Asbestos fibers 5 microns or larger in size are clearly 

hazardous (Tr. 247, 30 C.F.R. § 57.5-1). Five microns is 

approximately one-tenth the size of a particle visible to the 

unaided eye (Tr. 247). A visible cloud of airborne asbestos 

contains harmful fibers that are invisible (Tr. 246-249) and will 

take approximately 30 minutes to fall one-foot in perfectly still 

air and longer if there is any air current present. Such a fiber 

can become airborne simply by the air currents created by a 

person walking (Tr. 247-248). Asbestos can be liberated and 

suspended in the air easily and by slight movement, such as a 

person walking by it (Tr. 67). 

Richard L. Durand, an MSHA District Industrial Hygienist, 

testified concerning the invisible (non-obvious) nature of 

asbestos: 

"Q. If you can see a cloud of dust of asbestos, is it 

possible to have more asbestos that you can't see that is 

suspended in the air? 

A. Definitely. You'll have a range of dust particles 

from that you can't see on up to very large particles. You have 

a whole gamut of sizes. 

Q. And would those particles that you 6can't see present 

a health hazard? 

A. Yes, even above five.microns, what the standard is 

based on. So from five to fifty are particles that you can't see. 

And they will definitely pose a health hazard." (Tr. 249). 

269 
Various diseases can result from inhalation of asbestos. 

One disease, asbestosis, is directly related to the amount of 

asbestos inhaled. The disease can be contracted whether the 

amount of asbestos is inhaled over a short period or over a long 

period of time. It results when fibers are inhaled directly into 

the lungs. As the fibers are retained by the lungs they are 

coated with cells rich in iron called "asbestos bodies" discernible by x-ray. The symptoms therefrom may appear from 4 to 

15 years after expOSllre. Such symptoms are shortness of breath, 

coughing, tightening of the chest, difficulty in breathing and a 

hampering of the lungs to exchange oxygen. Death can occur 10 to 

15 years after the onset of symptoms (Tr. 250, 251). 

A second disease resulting from asbestos inhalation is 

bronchi carcinoma or bronchial cancer. Asbestos, when inhaled 

into the bronchial area, can lead to the development of cancer. 

Mesothelioma is a cancer of the lining of the lung. It is a 

non-treatable, non-operable and always fatal disease. Death 

generally results in less than one year after the onset of 

symptoms (Tr. 253). This disease can result from the inhalation 

of a single fiber. As little as one occupational exposure to 

asbestos can cause this cancer (Tr. 254). It is estimated that 

7% to 10% of those who work with asbestos develop this disease 

(Tr. 254). 

Cancer of the esophagus, stomach and colon can also be 

caused by asbestos. These cancers are generally brought about by 

coughing up sputum containing asbestos which is swallowed, thereby transmitting the asbestos fibers to the esophagus, stomach and 

colon CTr. 254). 

FMC's Environmental Safety Engineer, Watson, unequivocally 

admitted on the record that asbestos is a "hazardous material" 

having the potential to cause death (Tr. 309, 311, 312), that it 

is a known health hazard (Tr. 312) and that FMC did not either 

barricade the MCC or post warning signs as required by§ 57.20-11 

(Tr. 114, 237, 296, 313). 

Substantial evidence in the record establishes that FMC 

became aware that the insulation in the MCC contained asbestos in 

March, 1983, when Mr. Watson removed a piece of the material and 

forwarded it to FMC's laboratory in Princeton, New Jersey for 

analysis with the notation to "Please Rush" on the forwarding 

form. Watson said that he sent the sample to the laboratory at 

the request .of an unidentified employee and that he did not know 

who made the "Please Rush" notation on the form. Watson also 

denied writing on the form the statement "Suspected asbestos 

insulation." (Ex. S-131 Tr. 229-232). 

FMC's analysis of the insulation material from the MCC 

(dated 3/27/81) indicates that the material "contains chrysotile, 

an asbestos mineral and calcium carbonate, probably a binder. 

270 
These components were determined by X-ray diffraction procedure." 

<Ex. S-13, Tr. 237). ~/FMC failed thereafter to definitely determine if the calcium carbonate was a binder (Tr. 317). 

The Secretary established that a significant number of FMC 

miners without prior notice or warning were exposed to the 

hazardous conditions prevalent in the MCC. Thus, for periods 

ranging from two to three weeks to four months in the latter part 

of 1983 and early 1984, at least four FMC miners, who were 

engaged in the performance of various and sundry duties and 

functions, worked in the MCC where they were engaged in the removal of the control center located there to another location 

(Tr. 107, 108, 150-157, 170-193, 199-219). The actions of those 

employees, particularly in taking down the insulation material 

from the walls and ceiling, created airborne dust composed of 

particles of the insulation taken down (Tr. 115-119, 153-158, 

166, 206, 208). The record does not indicate that FMC ever 

sampled the compqsition of the air during this period. Since the 

material itself was composed of 20% asbestos I find therefromand from expert opinion of record - that at least a proportionate 

part of the airborne dust was composed of asbestos particles in 

sufficient quantity to Cl) be subject to inhalation and (2) be 

hazardous. (Tr. 111, 193, 249, 255-259, 260, 266, 277-282, 290, 

3 45). 

It is also found that the "dust" described by the workmen 

was not attributable to the welding or use of a cutting board 

(Tr. 285). Thus, the four workmen in question testified that in 

the process of their work they "tore" insulation from the walls, 

pulled it from the ceiling, threw the insulation to the floor, 

swept it up, emptied it, and traumatized it in various ways which 

resulted in dust so heavy their visibility was impaired at times 

beyond 4 or 5 feet (Tr. 111-119, 153-157, 166, 173-177, 199-208). 

While there was evidence that the dust got into their 

mouths, eyes and noses, there was no probative or reliable 

evidence that the coughing and other symptoms described by them 

was attributable to inhalation or other ingestion of asbestos 

fibers (Tr. 282, 349). Such evidence might have been obtainable 

through sputum analysis or other forms of testing at the time. 

Even though it is a fair inference that such evidence was not 

!/ In addition to analyses of the "bulk" samples taken by 

Inspector Beason and Mr. Watson referred to above, a third set of 

laboratory analys.es of samples taken from the MCC was made part 

of the evidence in this matter. Thus, in September 1984, FMC 

took samples of the air (Exs. R-3, 4, 5 and 6; Tr. 267, 268, 300). 

I find that these analyses have little probative value since no 

one was working in the area at the time the samples were gathered 

(Tr. 267, 268, 321, 322). Even so, these samples did show there 

was some airborne asbestos present in the MCC (Tr. 268). 

271 
secured because of the failure of FMC to notify those imperiled 

of the conditions prevalent in the MCC, no adverse inference is 

taken in the absence of more specific evidence. That is, it is 

not inferred that the physical symptoms expressed were caused in 

whole or in part by the presence of airborne asbestos in the 

atmosphere. 

In addition to the employees engaged in the special project 

of removing the controls from the MCC in 1983-1984, the Secretary 

also showed that various other employees, such as maintenance men 

and electricians, routinely went in and out of the MCC and worked 

there without benefit of respirators or warning CTr. 99-103, 149, 

333-335). 

As previously noted, FMC contends that no violation can be 

established absent a showing of the presence of exposure to airborne contaminants at the levels provided in 30 C.F.R. § 57.5-1. 

From the standpoint of the obligations imposed on the mine 

operator by the two regulations respectively relied on by the 

parties, it is first noted that testing the MCC in a passive 

state for its airborne asbestos level might not have revealed a 

level in violation of § 57.5-1. A violative level of airborne 

asbestos might not have manifested itself until miners actually 

worked in the area. The record in this case well documents the 

different types of work activities which did result in raising 

dust from asbestos-constituted insulation into the air. 

Section 57.5-1 is specific. It relates to exposure to airborne contaminants, in this case, asbestos. It presumes testingwhich FMC in any event apparently did not perform - for a protracted period and with some regularity: "The .8-hours timeweighted average airborne concentration of asbestos dust to which 

employees are exposed shall not exceed 2 fibers per milliliter 

greater than 5 microns in length, etc." MSHA did not establish, 

nor did it seek to, the presence of airborne concentrations of 

asbestos dust in the quantity, fiber lengths, and sampling time 

durations required to establish a violation of 30 C.F.R. § 57.5 

CTr. 19-26, 71-77, 78, 79; Exs. S-12 and s-13). See Secretary v. 

Tarnmsco, Inc., & Harold Schmarje, 7 FMSHRC 2006, 2009 (1985). 

On the other hand, the regulation the Secretary charges was 

infracted1 § 57.20-11, is less specific in delineating the 

factors or environment which must be present to trigger the 

standard's coverage. It requires simply that Cl> a "health or 

safety hazard" must exist which (2) is not "immediately obvious". 

From the mine operator's standpoint, § 57.20-11 requires 

barricades or posting of warning signs telling of the nature of 

the hazard and protective action required. Section 57.5-1 makes 

it a violation to permit miner exposure to a specified level of 

asbestos and it mandates testing to ascertain if this level has 

been achieved. Can a mine operator by not testing when employees 

work in an area where there is asbestos present (as FMC failed to 

272 
do in this case) evade responsibility for exposing its employees 

to asbestos, the hazardous nature of which is well-established in 

this record? Both logic and evidence of record suggest the conclusion that the airborne level of asbestos fluctuates with the 

activities and movement of miners and the nature of the chores 

they are performing. Adopting FMC's argument that the protections provided in§ 57.20-11 are not operable until the Secretary first tests and determines that the airborne asbestos concentration level equates with the level provided in § 57.5-1 

would leave miners unprotected-as they were in the instant caseand most emphatically where an operator directs them to work in 

an area it knows contains asbestos but does no testing while they 

are there. Hence, FMC's miners, were not aware of the presence 

of asbestos in the insulation material, and thus had no opportunity to take precautions to alleviate the threat posed to them, 

such as (1) by limiting their movement and activities, (2) by 

handling the material more cautiously and gently, (3) by refusing to perform certain work unless ongoing testing is conducted, (4) by altering their techniques and methods, (5) by wearing 

suitable, effective respirators, or (6) by reporting the 

situation to interested authority such as MSHA, their union, 

and/or the mine operator's safety personnel. 

Analysis of the record and happenings in this matter readily 

demonstrates the differences in the purposes of and protections 

provided by the two regulations and the reasons for not grafting 

one on the other. There is no indication in the Act or the regulations themselves that the two regulations should be read 

together as FMC urges. Section 57.20-11 does not cross-reference 

§ 57.5-1. It provides a different, separate, and independent 

measure of protection for miners. It is not dependent on the 

mine operator's diligent, good faith sampling of the air in the 

working enviro~ment. The position advanced by FMC is found to 

lack merit. 

Based on the preponderant evidence, and admissions of 

record, it is concluded that a hazardous condition prevailed in 

the MCC during the period in question, that such health hazard 

was not immediately obvious to numerous employees who worked 

there, and that neither barricades or appropriate warning signs 

were posted at any time by FMC at any approach to the MCC. A 

violation of 30 C.F.R. S 57.20-11 is thus found to have occurred. 

FMC also challenges the special findings required under 

Section 104(d), that is the so-called "unwarrantable failure" and 

"significant and substantial" findings. It is first noted the 

insidious potential of asbestos to cause some of mankind's most 

fearsome diseases is well-documented in this record. ~/ It is 

~/ See also Disability Compensation for Asbestos-Associated 

Disease in the United States, Irving J. Selikoff, M.D., 

(Environmental Sciences Laboratory, Mount Sinai School of 

Medicine, undated), a collection of leading studies on the 

subject published in approximately 1981. 

273 
equally clear, and I have hereinabove found, that the mine 

operator's Environmental Safety Engineer, Carl L. Watson, and 

other high level management personnel were aware that the MCC's 

wall and ceiling insulation contained asbestos as early as March, 

1981, when a bulk sample was sent for laboratory analysis. I 

conclude from the urgency surrounding the taking of this sample, 

the prompt notification to higher management of the results of 

the laboratory ana~ysis and the testimony of Mr. Watson as to the 

high potential for serious disease that asbestos exposure 

carries, that FMC was acutely aware of the hazard posed by noncompliance with 30 C.F.R. § 57.20-11. Indeed, the circumstances 

and hazard addressed by § 57.20-11 actually came to fruition in 

the 1983-1984 period when several employees were engaged in the 

removal of the control center inside the MCC without benefit of 

the various protections previously listed. These evidentiary 

considerations coincide with the requirement of section 104(d) of 

the Act that the violation must be "caused by the unwarrantable 

failure of (the) operator to comply" with the pertinent mandatory 

safety or health standard. The Commission in numerous cases has 

tacitly approved and has not changed the long-standing definition 

of unwarrantable failure found in Zeigler Coal Company, 7 IBMA 

280 (1977) which was decided under the Federal Coal Mine Health 

and Safety Act of 1969: 

"In light of the foregoing, we hold that an inspector 

should find that a violation of any mandatory standard 

was caused by an unwarrantable failure to comply with 

such standard if he determines that the operator involved 

has failed to abate the conditions or practices constituting such violation, conditions or practices the 

operator knew or should have known existed or which it 

failed to abate because of a lack of due diligence, or 

because of indifference or lack of reasonable care." 

The record indicates also that FMC was aware that other 

employees were working in the area routinely (Tr. 296, 

333-335) and that those employees who were working in the MCC to 

remove the control center were suffering substantial symptoms 

(Tr. 193, 234) even though this record does not permit any dedetermination that such were wholly or partly related to asbestos 

exposure. Nevertheless, no further testing on the material was 

conducted by FMC to determine if the asbestos was adequately contained in binding material after March 1981, (Ex. S-13; Tr. 317, 

329), nor does it appear that FMC tested the air during the removal of the control center in 1983/1984. 

It is concluded that FMC was grossly negligent in allowing 

the MCC to remain unposted, if not barricaded, in the above · circumstances and in view of the latent threat posed by the 

presence of asbestos in such significant quantity in the walls 

and ceiling of the MCC. Such high degree of negligence surpasses 

the Zeigler culpability concepts of "lack of due diligence", 

"indifference" and "lack of reasonable care," and clearly meets 

the "unwarrantable failure" requirement of section 104(d). 

274 
The question remains whether the subject section 104Cd)(l) 

Citation cited a violation which was "of such nature as could 

significantly and substantially 6/ contribute to the cause and 

effect of a ••• mine safety or health hazard" as that phrase is 

used in the Act. 

Section l04(d)(l) of the Mine Act provides: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause imminent danger, such violation is of such nature as could 

significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused by 

an unwarrantable failure· of such operator to comply with 

such mandatory health or safety standards, he shall include such finding in any citation given to the operator 

under this Act •••• 

30 u.s.c. § 814(d)(l) (emphasis added>. Section 104(e) of the 

Act, 30 U.S.C. § 814(e), contains similar "S & S" language. 

The Cormnission first interpreted this statutory language in 

Cement Division, National Gypsum Co., 3 FMSHRC 822 (April 1981), 

holding: 

••• [A] violation is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard if, based on the 

particular facts surrounding the violation, there exists 

a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably 

serious nature. 

3 FMSHRC at 825 (emphasis added). In Mathies Coal Company,. 6 

FMSHRC 1 (January 1984), the Commission reaffirmed the analytical 

approach set forth in National Gypsum, and stated: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: Cl> 

the underlying violation of a mandatory safety standardi 

(2) a .discrete safety hazard -- that is, a measure of 

danger to safety -- contributed to by the violationi (3) 

!/ Herein "S & S". 

275 
reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably 

serious nature. 

6 FMSHRC at 3-4 (footnote omitted). Accord Consolidation Coal 

Company, 6 FMSHRC 189, 193 (February 1984). 

p 

As to the four elements set forth in Mathies, the 

Commission, in Secretary v. U.S. Steel Mining Corp., 6 FMSHRC 

1834 (1984), noted that the reference to "hazard" in the second 

element was simply a recognition that the violation must be more 

than a mere technical violation -- i.e., that the violation present a measure of danger. See National Gypsum, supra, 3 FMSHRC 

at 827. It also noted that the reference to "hazard" in the 

third element in Mathies contemplates the possibility qf a 

subsequent event. This requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury. The fourth element in 

Mathies requires that the potential injury be of a reasonably 

serious nature. Finally, in U.S. Steel Mining Co., Inc., 6 

FMSHRC 1573, 1574 (1984), (1984), the Commission reemphasized its 

holding in National Gypsum that the contribution of the violation 

to the cause and effect of a mine safety hazard is what must be 

significant and substantial. 

The record reveals that from the middle of 1981 at least 

through early 1984, FMC employees worked routinely in the MCC, an 

asbestos-laden, unventilated room, and for the latter part of 

this period other employees were required to work there while 

removing controls. This latter group, four of whom testified in 

this proceeding, in ignorance of the risk and the need for care, 

removed the asbestos insulation without caution, thus placing 

their health in considerable jeopardy. 

Mr. Watson's own description of the risk posed by 

asbestos exposure is incisive: 

"Q. Do you recognize any danger in exposure to asbestos? 

A. Sure. 

Q. I mean, do you personally believe that is is a 

hazardous industrial material? 

A. Sure. 

Q. Do you believe that it has the potential to cause 

death? 

A. Yeah, I believe that." 

(Tr. 308, 309, 312). 

276 
It has· previously been concluded that a violation of the 

safety standard occurred. In no sense, was this a technical 

violation. Here, the mine operator apparently performed no 

testing of the air in the working environment during the removal 

of the control center. This eliminated the possibility of any 

determination of the asbestos fiber levels in the MCC when work 

was being performed there. By not posting the area with warning 

signs, FMC deprivedthe workmen of the opportunity to ev~luate the 

danger and take various steps to protect themselves-a remedy not 

directly afforded by 30 C.F.R. § 57.5-1. Such failure clearly 

contributed a considerable measure of danger to their safety. 

In the absence of any affirmative measures by FMC to prevent 

its miners' exposure to the asbestos hazard found to have existed 

in the MCC, their resultant contraction of various asbestosrelated diseases remains a reasonable possibility for many years 

to come. 

The factual findings heretofore made concerning the nature 

of asbestos, the ease with which it becomes airborne, the 

conditions prevalent in the MCC working environment, the exposure 

of uninformed miners, the various health problems which can 

result from such exposure, the percentage of exposed workers who 

contract such, and the lengthy period they will remain in 

jeopardy after such exposure, mandate the conclusion that there 

was -- and is -- a reasonable likelihood that the hazard 

contributed to by the violation will result in a serious injury 

in the form of a disease. Lastly, there is little doubt on this 

record that any disease so resulting would be of a reasonably 

serious nature in view of FMC's admissions that such could result 

in death. Accordingly, it is concluded that this was a 

"significant and substantial" violation. · 

The prerequisite special findings of the 104Cd)(l) Citation 

herein are found to have substantial support in the record. 

A violation having been found in this consolidated contest/-

penalty proceeding, assessment of a civil penalty is required. 

The parties have stipulated that FMC had an "average" history of 

previous violations, presumably in the customary 2-year period 

preceding the occurrence of the violation (Tr. 293). The parties 

also stipulated on the record that FMC is a large mine operator, 

that it proceeded in good faith to achieve rapid compliance after 

notification of the violation, and that any penalty amount would 

not jeopardize FMC's ability to continue in business. Section 

llOCi> of the Act requires evaluation of two additional, and 

critical, penalty .assessment criteria -- th~ seriousness of the 

violation and the negligence of the mine operator in the commission thereof. I have previously determined that FMC was 

grossly negligent in the commission of this violation and that 

the same was of a high degree of seriousness in view of the 

tragic, possibly fatal diseases which can result therefrom. The 

workmen exposed will live in the shadow of asbestos-related 

disease for many years to come. In view of these latter two 

277 
determinations and the size of the operator, there is little to 

mitigate the amount of the penalty warranted. It is concluded 

that a penalty of $2,SOo;oo is appropriate under the circumstances. 

ORDER 

1. Citation ~o. 2084591 is affirmed in all respects. 

2. Respondent FMC shall pay the Secretary of Labor the sum 

of $2,500.00 as and for a civil penalty within 30 days from the 

date of issuance of this decision. 

~~~~t d. ~~-t-fa. Michael A. Lasher, Jr. , Administrative Law Judge 

Distribution: 

John A. Snow, Esq., and James A. Holtkamp, Esq., Vancott, Bagley, 

Cornwall & McCarthy, 50 s. Main Street, Suite 1600, Salt Lake 

City, UT 84144 (Certified Mail) 

Margaret Miller, Esq., and James H. Barkley, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 (Certified Mail) 

/blc 

278 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 8020.C FEB 2_71986 

HAROLD J. ATKINS, 

complainant 

DISCRIMINATION PROCEEDINGS 

v. 

CYPRUS MINES CORPORATION, 

Respondent 

. . 

Docket No. WEST 84-68-DM 

MD 82-82 

Cyprus Northumberland Project 

DECISION 

Appearances: Mary Gray Holt, Esq., Jolles, Sokol & Bernstein, 

Portland, Oregon, 

for Complainant; 

John F. Murtha, Esq., Woodburn, Wedge, Blakey & 

Jeppson, Reno, Nevada, 

for Respondent. 

Before: Judge Morris 

Complainant Harold J. Atkins, (Atkins), brings this action 

on his own behalf alleging he was discriminated against by his 

employer, Cyprus Mines Corporation, (Cyprus>, in violation of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seg., (the Act). ~ 

Section 105(c) of the Act, provides in part, as follows: 

No person shall discharge or in any other manner discriminate against ••• or otherwise interfere with the 

exercise of the statutory rights of any miner ••• because such miner ••• has filed or made a complaint under 

or relating to this Act, including a complaint notifying 

the operator or the operator's agent, or the representative of the miners ••• of an alleged danger or safety or 

health violation ••• or because such miner ••• has instituted or caused to be instituted any proceeding under 

or related to this Act or has testified or is about to 

testify in any such proceeding, or because of the exercise by such miner ••• on behalf of himself or others of 

any statutory right afforded by this Act. 

After notice to the parties, a hearing on the merits took 

place in Reno, Nevada on June 19, 1985. '

1 

The parties filed post-trial briefs. 

279 
Issues 

The issues are whether complainant was discriminated against 

by respondent in violation of the Act; If such discrimination 

occurred, then what damages should be awarded. 

Summary of the Evidence 

~Complainant's Evidence 

Harold J. Atkins, 43 years of age and inexperienced in 

mining, was hired by Cyprus on July 9, 1981. His initial duties 

included utility work and cleaning the leach pads. His activities also involved work in the ADR l; unit where the utility crew 

helped mix cyanide and haul water. -The water, dumped into a 

preholding tank, feeds the boiler (Tr. 34-37, 41). ~ 

After three months Atkins transferred to the pit as a grater 

operator where he remained about 2 1/2 to 3 months (Tr. 37). 

About October 1, 1981, because of higher pay, Atkins 

transferred to the ADR plant as an operator (Tr. 38). He had no 

previous experience and the foreman trained him to run the mill 

(Tr. 39). The work process in the ADR was described as follows: 

material containing gold and precious metals enters a preg pond 

from the leach pads. The material then goes into the ADS circuit. 

Solution is filtered through and captured in the carbon <Tr. 39). 

After a time the material is moved into a preheat holding 

tank and later transferred to a strip tank. The solution is then 

heated by a boiler and it then goes to electrowind where the gold 

is removed (Tr. 40). The procedures include stripping, reclaiming and preheating. The stripping process was almost continuous 

(Tr. 40, 42). 

After two or three weeks in the ADR plant Atkins experienced 

a "nuisance" from the ammonia released in the stripping process. 

He had headaches; in addition, his nose was dry and bothering him. 

Since he felt the condition was minor he did not see a doctor at 

that time (Tr. 41, 42). 

Atkins was elected to the mine safety committee and attended 

his first meeting in February 1982. The Committee discussed 

first aid, inadequate ventilation and communications in event of 

emergencies. When Atkins applied for the foreman's position he 

was told he could not remain as a member of the committee if he 

received the· promotion (Tr. 42-44, 48). 

1/ ADR: an acronym for absorption, deabsorption and refining (Tr. 

254). 

280 
Atkins first became concerned about mercury because of 

workers Eagle, Legace and Bowers. Worker Eagle pointed out that 

the mercury (which could be seen) was accumulating in ADR tank 

No. 1. Legace spoke to Atkins about his dizziness and other 

problems which he related to the ADR work (Tr. 44, 45, 235). 

Atkins thought Legace's physical problems and symptoms might 

be relevant to a worker in the ADR because of the carbon, the 

open tanks and the refining process (Tr. 46, 47). Atkins thought 

he was also exposed to mercury. Legace said it should be checked 

out. He further recommended that Atkins and anyone else in the 

ADR contact a doctor. This was the reason Atkins sought medical 

attention CTr. 47). 

Sometime in April, about the time of the discussions with 

Legace, Atkins thought he had a physical problem. The buildup of 

the ammonia was progressing to a point where he knew he should 

have his sinuses checked. His nose was dry all of the time and 

he was having breathing problems. Additional symptoms included 

headaches, dizziness and blurred vision. Neither food nor coffee 

tasted right CTr. 49-51). 

Most of the time during his stay in the ADR, Atkins' main 

problem and concern was exposure to ammonia fumes (Tr. 120; Ex. 

R23, pg. 2). MSHA did not issue any citations for excessive 

levels of ammonia (Tr. 121). 

Atkins visited Dr. Horgan on April 24, 1982. A quantitative 

test for mercury showed a level of 65. Industrial guidelines 

indicate an acceptable level is under 150. A toxic level is 

above 150. Atkins wasn't satisfied with the doctor's answers (Tr. 

193-196; Ex. RS). 

On April 29, 1982, Atkins had a quantitative test from Dr. 

Andrews. The doctor stated that 65 was high and he indicated the 

State level was 150 milligrams. Atkins knew Legace was experiencing problems with a level of 86 or 87 (Tr. 49-53). 

Atkins was the day foreman when MSHA inspector Frank B. 

Seale came on the premises on May 4, 1982. A 3M tag was used to 

test for mercury. There were no fans and the inspector, according to Atkins, was "staggered" at some of the readings (Tr. 60, 

61, 221). 

Atkins was not aware of the later MSHA visit on June 14. 

But in the interim Cyprus had taken corrective measures: these 

included warning signs, fume surveys, mercury testing and 

respirators (Tr. 223, 224, 318). 

Within two or four days of the violation Atkins stopped at 

Seale' s off ice to talk about the testing. equipment. He was also 

interested in seeing the MSHA books. Seal~ gave Atkins copies of 

281 
the Cyprus citation (Tr. 61-63). The citations had not been 

posted in the mine (Tr. 63). Atkins later received a full documentation from the MSHA Arizona office (Tr. 64). 

There was probably more concern in the plant for ammonia 

than for mercury. There was no ventilation and you could feel 

the ammonia instantly (Tr. 64, 65). 

After the MSHA inspection the company took care of the 

problem to a large degree (Tr. 65). 

On June 9, 1982, Atkins visited Dr. Andrews, a pulmonologist. Complaints to Andrews included chemicals, ammonia, 

cyanide fumes and exposures to mercury. Complete blood and urine 

tests failed to confirm mercury poisoning. The blood mercury 

level was identified as less than 1. The reference range is less 

than 2.6; the level is potentially toxic if it is over 2.6 (Tr. 

202-204; Ex. Rl4). 

On June 10, 1982, Dr. Givens, a company doctor, gave Atkins 

a general physical examination. The symptoms exhibited by 

Atkins, which all occurred about June 10, included nausea, 

colitis and split vision. The doctor was more interested in 

writing than in listening so Atkins did not tell him all of his 

symptoms (Tr. 54, 69, 70). Atkins showed Dr. Givens the 

quantitative test. He stated that things were "alright" (Tr. 

55). Dr. Givens also told Atkins that his health was generally 

excellent. Dr. givens did not comment on the symptoms (Tr. 55). 

On June 29, 1982, Atkins saw Dr. Badshah, his family 

physician, to whom he also showed the quantitative test. 

Badshah diagnosed Atkins' condition as colon colitis. He 

had a lower and upper G.I. performed as well as a rectal 

examination. The blood tests forwarded to Dr. Badshah by 

Andrews were normal (Tr. 55-58, 65, 215). 

Dr. 

also 

Dr. 

Atkins was concerned about his health and he mentioned to 

superintendent Leveaux that he would like to temporarily leave 

the ADR because of his health. Leveaux said management would 

·need a doctor's statement to that effect (Tr. 65-67, 238). 

Atkins believed that the severity of the colon problem was 

worsening, and the condition was playing on his nerves. Atkins 

felt the ADR was unsafe for him because his medical problems 

started there and they were not clearing up. He was having split 

vision, mostly in the right eye. This occurred four times in a 

30 day span just after he started going to Dr. Badshah <Tr. 68, 

69, 242). Badshah had suggested Atkins contact Dr. Schonders, an 

ophthalmologist. The specialist, in turn, suggested that Atkins 

go to the University because the problem was complicated (Tr. 69, 

213). Dr. Schonders, as well as Doctors Horgan, Andrews and 

Givens failed to confirm mercury poisoning. But Dr. Badshah said 

it was possible (Tr. 214, 220). 

282 
Atkins returned to Dr. Badshah on July 9, 1982, where he related the same symptoms; namely, exposure to chemicals including 

ammonia, cyanide and fear of mercury exposure~ Dr. Badshah gave 

Atkins a note which stated: 

To whom it may concern: Jim Leveaux. This patient is 

having cramping, abdominal pains, nausea. On exam there 

is marked spasticity of the colon. He is advised to 

avoid exposure to chemicals which are likely to aggravate 

this condition. (Tr. 71, 72, 215, 216; Ex. R23>. 

Leveaux looked at the doctor's note and stated it would be 

necessary to talk to Appelberg, the Cyprus personnel manager <Tr. 

73, 74). Appelberg told Atkins he would transfer him to utility 

but cut his pay. In the ensuing discussion Atkins claimed this 

was a medical situation and his miner's rights guaranteed that he 

keep his foreman's pay in the utility job. Appelberg agreed to 

the transfer (Tr. 73-79>. Atkins went to utility thinking he 

would retain his foreman's pay (Tr. 126-127). 

The next day Appelberg told him his pay was cut. He could 

either go back into ADR, leave the property, or be fired. Rather 

than be fired Atkins returned to the ADR. Atkins also stated he 

returned to utility the next day (Tr. 73-79). 

One day before he was terminated Atkins explained the 

ultimatum and medical situation to MSHA inspector Frank Seale at 

the MSHA office. The next day (July 15) Atkins was told to work 

in the ADR or be fired (Tr. 78-81). 

Before July 15th, between the two MSHA inspections, Atkins 

had told management that it was unsafe to work in the ADR. On 

the day he was terminated he did not say it was unsafe because he 

was more concerned about getting a note from the doctor than in 

closing down the ADR (Tr. 243). 

Atkins also told Appelberg that he needed to get out of the 

ADR. It was unsafe for him (Tr. 238). 

Atkins confirmed the contents of the typewritten note given 

to him by Appelberg when he was terminated and as well as his 

handwritten reply requesting an additional examination by a 

company doctor before he would return to the ADR (Tr. 112, 117, 

118, 119; Ex. C21, R24). 

Atkins was fired on July 15 as he refused to work in the ADR. 

The evidence contains a two page medical report, dated July 16, 

1982, from Dr. Nur Badshah. The report states, in part, as 

follows: 

IMPRESSIONS: 

1. Loss of central vision of right eye, due to optic 

neuritis of the right eye, etiology most probably toxic 

neuritis due to metallic poisoning. 

283 
2. Occult lower GI bleeding, probably due to gastroenteropathy related to metallic poisoning. 

3. Spastic colitis. 

So far, I have not received the copies of the report from 

the pulmonologist. I recommend that patient needs to be 

further evaluated by a neurologist, because metallic 

poisoning can cause nervous system changes affecting 

especially the cerebellar system. This should be 

thoroughly evaluated by a neurologist. I also recommend 

that the patient should be thoroughly evaluated by a 

gastroenterologist for his gastrointestinal symptoms. 

Until he is further evaluated by a neurologist and 

gastroenterologist, patient is advised to avoid contact 

with chemicals and he has been given a note to that 

effect on 7-9-82. (Exhibit Cl4). 

Atkins believed he suffered mercury poisoning in 1982. His 

quantitative test was 65. He could not state whether the ADR was 

a safe place to work in July 1982. When he discussed termination 

with Appelberg on July 15, 1982, he may not have claimed that it 

was unsafe to work in the ADR. But at the time of that 

discussion he believed the levels were close to acceptable and it 

could have been perfectly safe in the ADR (Tr. 109). Atkins 

would go back in the ADR today (Tr. 109-110). Further, he would 

have gone back if there hadn't been a problem (Tr. 124). 

Before Atkins moved from Round Mountain he would have 

accepted a job in the ADR if it had been offered to him. He 

would not have gone back to work in the ADR in August or 

September 1982 because of a possible NIC medical evaluation (Tr. 

99-100). 

Atkins last hourly wage at Cyprus was $10.35 or $11.47 as 

the ADR foreman. If he had not been fired he would have earned 

$36,000. After being laid off in two months, Atkins found employment with Ray Dickinson earning $5 an hour. He worked there 

two and one-half months (Tr. 80-85). He was also employed at 

Teague Motor Company in 1984 earning $800 per month. In 

addition, he had a county job for three months earning $800. 

After the county job Atkins received unemployment compensation. 

He has not worked since that time except about eight months ago 

he occasionally played in a band on weekends. This part-time 

work· pays $80 .a weekend (Tr. 80-85, 94, 97, 98; Ex. C21, C27, 

C28). Atkins "guesses" that he has earned $300 playing in the 

band since he was terminated by Cyprus (Tr. 94). · 

The 1040 U.S. income tax returns for 1981 and 1982 show, respectively, wages of $12,924 and $15,639 (Tr. 89; Ex. C25, C26). 

284 
Atkins' trailer had been gutted before he acquired it in 

1972 or 1973. At that time he paid $4,000 foi it. He fixed it 

and estimated its value at $8,000. He sold it for $4,000 because 

there was pressure on him to leave the company property (Tr. 87, 

93, 94). 

After he sold the trailer Atkins moved back to Oregon three 

and one-half months after he was terminated. There were two 

trips involved which cost him $800 to $900 for trailer rentals 

(Tr. 88, 109-110). 

Atkins acknowledges that he received a written notice of 

having had eight absences in the previous twelve months (Tr. 114; 

Ex. R22). 

Mrs. Atkins testified that her husband's health problems 

began in 1982. He complained and became irritable. Additional 

symptoms were mostly abdominal cramping and nasal headaches. She 

related his ill health to conditions in the mine because he had 

been in good health before working there (Tr. 250-252). 

Respondent's Evidence 

William Hamby, James Appelberg, Frank Seale and Sharon 

Badger testified for Cyprus. 

William Hamby, the plant superintendent and metallurgist, 

indicated that Cyprus was closing down its operation in September 

1985. He did not expect to be employed at the end of 1985 (Tr. 

253, 254, 296, 297). 

Hamby and Atkins were in daily contact when Atkins began 

working as an operator in the ADR in October 1981. Atkins had 

successfully bid on the operator's job. As an ADR operator 

Atkins' duties included monitoring the pump, reagent mixing, and 

reagent determinations for strength, advancing carbon and mixing 

it (Tr. 256-261). 

In February 1982, Cyprus learned of mercury problems in the 

ADR. The mercury, which came as a surprise to Cyprus, was 

detected by monitoring with a 3M 3600 Model badge type dosimeter 

(Tr. 265, 266). 

In March 1982 Cyprus ordered and installed a 98,000 C.F.M. 

fan in the ADR (Tr. 296). 

When Atkins became safety representative he voiced his 

concerns about the plant environment, the mercury and the quality 

of the air. He also complained about ammonia (Tr. 261). There 

were four leaky pipes about the plant but, for the most part, 

ammonia in the atmosphere occurred when an operator would leave a 

hatch open. That would be the major source of the ammonia smell 

2ss · 
(Tr. 262). When Atkins complained about the ammonia Hamby instructed them to keep it out of the atmosphere (Tr. 262). Prior 

to March 1982 Cyprus was not certain what was "going on" in relation to the possibility of mercury being in the plant (Tr. 

262) • 

Hamby wasn't sure of the circumstances but Atkins told him 

that he believed it ~as unsafe or hazardous to work in the ADR 

(Tr. 262-263). 

In April 1982 Atkins was promoted to working foreman. The 

position opened because Cyprus went to full production. Hamby, 

Leveaux and three other working foremen thought he was best 

qualified for the position (Tr. 263). Because of the direct line 

between management and foreman it was suggested to Atkins that 

he might want to relinquish his duties as safety representative 

(Tr. 264). 

Hamby denies that he ever threatened Atkins' job. Once he 

told him he was shooting his mouth off. In a handwritten note, 

dated April 23, 1982, he recorded that he told Atkins to keep 

his opinions to himself about possible contamination by mercury. 

Further, some of the people were complaining that he didn't know 

what he was talking about and it was upsetting them. Atkins replied that he would "cool it" (Tr. 282, 283; Ex. R4). 

On April 27 Hamby, in a letter to plant personnel, sought to 

bring all employees together with the plant hygienist and company 

doctor to discuss mercury (Tr. 269; Ex. R7). 

The company considered mercury to be a problem because of 

the hazards associated with it. Before May 4 the company had 

taken steps to discover the source of the mercury levels by using 

a Bacharach MB-2 sniffer. On May 4, 1982, the new equipment was 

not operating properly. It had been inoperative for a week (Tr. 

267-269). 

On May 4 MSH.A inspector Frank B. Seale inspected the ADR. 

On that day he issued five citations. They allege Cyprus failed 

to post warning signs concerning health hazards in the ADR; 

atmospheric concentrations of mercury vapor exceeded the excursion limit for an eight hour TWA coupled with a failure to use 

respiratory protection; failure to conduct fume surveys; failure 

to use shielding during arc welding and failure to guard a chain 

sprocket. The foregoing citations were subsequently abated by 

Cyprus (Tr. 171-179; Ex. R9). 

On the day of the inspection 3M badges were placed on 

employees Herrera, White and Atkins. The 3M badges were analyzed. 

The analysis indicated the three refinery workers had been 

exposed to mercury fumes. The TWA rates for Herrera, White and 

Atkins were, respectively, .081, .084 and .168 (Mg/M3). Atkins' 

2s6 
dosimeter badge was 3.36 times the TLV. Further, it was twice 

the TLV of the other two employees. Citation No. 2008502 was 

issued by inspector Seale on July 20, 1982, for the exposure to 

the mercury fumes to Herrera, White and Atkins that occurred on 

May 4, 1982 (Tr. 171, 172, 189, 190; Ex. R9). · The delay of over 

three months was caused in part by the time required to analyze 

the exposure (Tr. 171, 172, 189, 190; Ex. R9). On August 10, 

1982, Citation 2008502 was terminated when it was found that the 

TLV for mercury complied with the standard CTr. 184; Ex. R27). 

Witness Seale also testified generally converning the 

meaning of the TLV and TWA for mercury CTr. 164-1671 Ex. R6). 

Hamby and Atkins discussed the TLV's. Atkins was always 

trying to convert the TLV's to parts per million. But there is 

no relationship between the two CTr. 282). 

After the MSHA inspection Cyprus continued to test for 

mercury by using 3M badges, sniffer equipment, as well as urine 

and blood sampling. Hamby discussed rules and practices with 

employees and instructed them to wear respirators CTr. 268, 

270-273, 285; Ex. RlO, Rll). The purpose was to address the 

mercury problem and protect the employees (Tr. 272). On one 

occasion Atkins was not wearing his respirator and Hamby advised 

him of the company policy (Tr. 174, 273; Ex. Rll). 

To alleviate the mercury problem Cyprus also hired 

D'Appalonea, a mercury clean-up company. They used sulfur dust, 

an industrial vacuum cleaner and sponges to clean-up the ~DR in 

June CTr. 280; Ex. Rl2). 

In June 1982 Cypru~ also ordered a new ventilation system. 

It was installed in the ADR in August 1982 (Tr. 296). 

In a performance report of July 6, 1982, Hamby rated Atkins 

unsatisfactory in hygiene, safety, housekeeping, willingness to 

work, dependability, attendance and initiative (Tr. 275, 277; Ex. 

Rl3). 

Concerning attendance, it was company.policy to advise an 

employee when he had accrued.six absences. After missing eight 

days the employee receives a written warning stating that termination is possible on the tenth absence. Atkins was given a 

written warning on July 8, 1982, for his eighth absence. Atkins 

refused to sign the notice because of a disagreement over what 

constituted an excused absence (Tr. 276; Ex. R22). 

Atkins' doctor said he couldn't be exposed to chemicals so 

he couldn't be placed back in the ADR (Tr. 289). 

287 
On July 15, 1982, Atkins refused to go into the ADR. He 

wanted a doctor's approval to return to work (Tr. 263, 290). He 

was terminated because he refused to work in the ADR (Tr. 289, 

290). Hamby claimed the ADR was a safe place to work (Tr. 289, 

290). 

James M. Appelberg, the supervisor of office services for 

Cyprus, participated in the decision to fire Atkins (Tr. 299, 

301). 

According to Appelberg, Atkins requested a transfer to 

utility from ADR because mercury contamination and ammonia vapors 

were causing him diminished sight in one eye, sinus and nose problems, as well as inflammation of the lungs (Tr. 301). They had 

several conversations regarding the transfer. Dr. Badshah's note 

indicated he should not work in a chemical environment (Tr. 301, 

302, 312). Atkins was unwilling to take a cut in pay. An MSHA 

representative recommended that Atkins be kept at his present 

level of pay (Tr. 301-304). 

Atkins worked on the utility crew for three days then he 

went back to the ADR for a day shift. He returned to the ADR 

because the Cyprus supervisor in Denver stated Atkins would have 

to take an appropriate cut in pay if he remained on utility work 

(Tr. 303). In the period of July 13th to July 15th Appelberg 

expressed his opinion to Atkins that the ADR had not been 

determined to be a hazardous place to work. Atkins concern was 

to get himself out of the ADR because of the chemical vapors (Tr. 

304, 305). 

On July 15, Appelberg advised Atkins in a typed note that he 

(Atkins) had been given a physical exam on June 10th by Dr. 

Givens and approved to work in the ADR plant. The note further 

stated that since he continued to refuse to do his assigned work 

"you leave us no alternative but to terminate your employment". 

(Tr. 305; Ex. R24). Atkins' final options were to go on disability, NIC (Nevada Industrial Commission), or remain as ADR 

plant foreman. Appelberg indicated it would not be a job related 

illness (Tr. 304, 313, 316). Atkins replied something to the 

effect of "OK, fire me" (Tr. 305). 

At the time of the termination Atkins wrote on the termination notice that he would work in the ADR if the company doctor 

would examine him and state in a letter that he was physically 

able to work in the mill atmosphere (Tr. 305, 306; Ex. R24). In 

his handwritten reply Atkins further referred to the letter of 

June 30, 1982, and stated that his doctor CBadshah) had found 

colon colitis and further found that chemicals were aggravating 

his condition. In addition, he could not stand the smell of 

ammonia in the ADR. The ammonia smell and the mercury in the 

plant had not been corrected (Ex. R24). 

288 
Appelberg replied that ~tkins had been cleared for work by a 

company doctor five weeks before. Further, MSHA had abated the 

citations in the ADR, so there was no proven health problem (Tr. 

305, 306). Prior to the termination Appelberg had received a 

note Cl July 1982) from Dr. Givens stating, in part, that he had 

not advised Atkins to consult outside medical help. Further, he 

told Atkins that the company would assume no financial obligation 

for his self procured medical attention (Tr. 306; Ex. R20). 

Dr. Givens,. in a telephone conversation, told Appelberg that 

he did not find that Atkins had been contaminated by mercury. 

In addition, Atkins should be able to perform his duties as plant 

working foreman CTr. 307). 

During conversations between July 1st and 15th Atkins 

claimed he had miner's rights in that he would not have to take a 

pay cut if he was transferred to utility. An MSHA representative 

said the easiest approach was to transfer him to utility at his 

current pay (Tr. 307, 308). According to Appelberg, Atkins 

assertion of his miner's rights did not enter into the decision 

to terminate him CTr. 308). 

Atkins was earning $11.97 an hour as a working foreman 

compared with $9.33 as a utility worker (Tr. 309, 310). 

Appelberg testified that Joseph Legace had worked in the ADR 

for about two months. He filed a workmen's compensation claim 

alleging mercury contamination. The claim was disallowed CTr. 

310). 

Sharon Badger, chief of benefit services for the State of 

Nevada Industrial Insurance System, indicated the state agency 

accepted Atkins' claim on September 17, 1982. On that day Atkins 

was placed on temporary total disability that was back dated to 

July 9, 1982. Atkins received travel benefits and, in addition, 

he was paid $8,226.16 ($38.44 a day x 214 days). He was also 

sent to Parnassus Heights Disability Consultants for a 

comprehensive integrated workup by medical specialists. The 

consultants were paid $6,753.23 for their services (Tr. 155-159). 

The disability evaluation by the Parnassus Consultants 

including psychological, neuropsychological and psychiatric 

examinations, "revealed that the patient's clinical picture 

warranted a diagnosis of Schizophrenia, Paranoid type. This type 

of illness is considered virtually independent of environmental 

etiology and is, therefor, not industrial in origin." CEx. R32). 

~~ 

Atkins status under temporary total disability was 

terminated on the basis of the Parnassus report. NIC's last 

payment was February 7, 1983 (Tr. 80-81, 153-1~9; Ex. R32). 

289 
operator bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 

{November 1982). The ultimate burden of persuasion does not 

shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. 

See also Boich v. FMSHRC, 719 F.2d 194, 195-96 {6th Cir. 1983); 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 CD.C. Cir. 

1984)Cspecifically approving the Commission's Fasula-Robinette 

test). The Supreme.Court has approved the National. Labor Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-403 (1983). 

The vast majority of cases arising under Section 105Cc> of 

the Mine Act concern matters of safety. However, the Commission 

applied the above legal analysis in Rosalie Edwards v. Aaron 

Mining, Inc., 5 FMSHRC 2035 {1983), a case involving unsanitary 

toilet facilities. · 

In his post-trial brief Atkins asserts that his request for 

a transfer was a protected activity within the meaning of Section 

10l{a){7) of the Act; further, that he had a reasonable good 

faith belief that the conditions in the ADR plant constituted a 

threat to his safety or health; finally, that Cyprus' termination 

of Atkins was motivated by Atkins' protected activity. 

We will initially consider whether a request for a transfer 

is a protected activity. In this regard Atkins relies on Section 

10l{a){7) of the Act which provides as follows: 

(7) Any mandatory health or safety standard promulgated 

under this subsection shall prescribe the use of labels 

or other appropriate forms of warning as are necessary 

to insure that miners are apprised of all hazards to 

which they are exposed, relevant symptoms and appropriate 

emergency treatment, and proper conditions and precautions safe use or exposure. Where appropriate, such 

mandatory standard shall also prescribe suitable protective equipment and control or technological procedures 

to be used in connection with such hazards and shall provide for monitoring or measuring miner exposure at such 

locations and intervals, and in such manner so as to 

assure the maximum protection of miners. In addition, 

where appropriate, any such mandatory standard shall prescribe the type and frequency of medical examinations or 

other tests which shall be made available, by the 

operator at his cost, to miners exposed to such hazards 

in order to most effectively determine whether the health 

of such miners is adversely affected by such exposure. 

Where appropriate, the mandatory standard shall provide 

that where a determination is made that a miner may 

29.0 
suffer material impairment of health or functional capacity by reason of exposure to the hazard covered by 

such mandatory standard, that miner shall be removed from 

such exposure and reassigned. Ahy miner transferred as a 

result of such exposure shall continue to receive compensation for such work at no less than the regular rate 

of pay for miners in the classification such miner held 

inunediately prior to his transfer. In the event of the 

transfer of a miner pursuant to the preceding sentence, 

increases in wages of the transferred miner shall be 

based upon the new work classification. In the event 

such medical examinations are in the nature of research, 

as determined by the Secretary of Health, Education, and 

Welfare, such examinations may be furnished at the expense of the Secretary of Health, Educatlon and Welfare. 

The results of examinations or tests made pursuant to 

the preceding sentence shall be furnished only to the 

Secretary or the Secretary of Health, Education, and 

Welfare, and, at the request of the miner, to his designated physician. 

Atkins' particularly relies on the underlined portion of 

Section 10l(a)(7). 

Atkins states there has not been any standard published 

pursuant to Section 10l(a)(7). However, he argues that the only 

applicable standard in this factual situation is the threshold 

limit value (TLV) for mercury adopted in 1973 by the American 

Conference of Governmental Industrial Hygienists as contained in 

30 C.F.R. § 55.5-1 (now recodified at 30 C.F.R •. 56.5001). 

Atkins has misconstrued the scope of the Mine Act. By its 

very terms under § 105(c) the miners particularly protected are 

those miner's that are the subject of medical evaluations and 

potential transfer under a standard published pursuant to Section 

101. There are no medical evaluations or potential transfers now 

contemplated within the terms of the TLV for mercury, 30 C.F.R. 

§ 56.5001. Accordingly, the above regulation cannot be held 

applicable. 

The Commission recently ruled that a miner may state a cause 

of action under Section 105(c)(l) if he is the subject of medical 

evaluations and potential transfers under such a standard 

published by the Secretary. Goff v. Youghiogheny and Ohio Coal 

Company, 7 FMSHRC 1776 (November 1985). But there was no 

indication in the decision that the Commission intended to extend 

the doctrine any further than to encompass tbose situations where 

the Secretary specifically addressed, by his rulemaking 

authority, the issues of medical evaluations and transfers. 

Compare the Secretary's extensive standards at 30 C.F.R., Part 90 

involving miners who have evidence of the development of pneumoconiosis as involved in Goff. 

291 
Atkins' brief further asserts that the statutory right to a 

transfer combined with his good faith reasonable belief that the 

conditions in the ADR plant constituted a threat to his safety or 

health. Atkins claims that he was suffering ill-effects to his 

health due to mercury contamination in. the ADR plant. This conclusion is urged on the basis of certain facts: 

First, coworkers Legace and Bowers had been diagnosed as 

having mercury poisoning in the Cyprus refinery. Further, Legace 

had described his symptoms in detail to Atkins. 

Secondly, Atkins' quantitative urinalysis, taken at Legace's 

suggestion, revealed a level of 65 mcg/24 hours. Atkins was· 

alarmed because 0-20 mcg/24 hours is considered normal but 65 mcg 

is still within the state's guidelines. 

Thirdly, Atkins knew the atmospheric conditions in the ADR 

violated the MSHA TLV standards for mercury. Atkins had been 

with the MSHA inspectors when he monitored the mercury levels in 

the ADR. Atkins had seen the mercury in the tanks. He also knew 

the citations issued by Inspector Seale were not posted by 

Cyprus, hence, he knew the company was not being candid with its 

employees. 

Fourth, Atkins' family doctor, Dr. Badshah, examined and 

treated him for his headaches, sinus and breathing problems, 

gastroenteropathy and spastic colon. Dr. Badshah told Atkins he 

thought the health problems were related to exposure to mercury 

vapor in the Cyprus mine. Dr. Badshah subsequently wrote a note 

for the plant manager, Jim Leveaux. Atkins then based his 

request for transfer to the utility crew on Dr. Badshah's advice. 

Atkins' claim lacks merit. , The first four incidents he 

relies on occurred several months before he was terminated. 

Specifically, the Legace/Bowers conversations took place in April 

1982. The quantitative urinalysis was in the same month. The 

TLV excursion for mercury was in May 1982. The Badshah medical 

reports relate to previous alleged exposures. 

Atkins certainly may have had a reasonable basis of concern 

for his health. But the pivitol issue is whether he had a 

reasonable good faith belief that the work he refused to do on 

July 15, 1982, was hazardous to his health at or about that time. 

Bush v. Union Carbide, 5 FMSHRC 993 (1983). 

A careful study of the record causes me to conclude that no 

credible evidence supports Atkins' reasonable belief that the ADR 

was hazardous on or about July 15, 1982. 

292 
On the contrary, Atkins' evidence establishes that the ADR 

was safe. · Particularly, Atkins indicated that corrective 

measures were taken by Cyprus between May 4 and June 15. These 

measures included fume surveys, mercury testing of the atmosphere, and the use of respirators (Tr. 223, 224). Further after . . , the MSHA citations the company attempted to cleanup the plant 

and, according to Atkins, Cyprus took care of the problem "to a 

great degree" (Tr. 65). In addition, on June 9, 1982, complete 

blood and urine tests failed to confirm mercury poisioning (Tr. 

202-204). 

When he was asked about the conditions in the ADR on July 

15, 1982, Atkins said that he "believed the levels were close to 

acceptable." Further, the ADR "could have been perfectly safe at 

that time" (Tr. 108, 109). 

Finally, Dr. Badshah's note of July 9, 1982, written for 

Atkins, addresses his physical conditions. It does not establish 

the conditions in the ADR at or about mid-July. 

On his termination notice (Ex. C21, R24) Atkins wrote that 

he would work in the ADR if the company doctor said he was physically able to work in the mill atmosphere. His stated reason was 

that he could not stand the smell of ammonia. In addition, he 

asserts the ammonia and the mere (mercury) had not been corrected 

(EX. R24). 

I do not find the statements concerning the mercury to be 

credible. At the hearing, when speaking of Exhibit R24, Atkins 

stated "[t]he mercury ~as not a problem" (Tr. 112, 113). 

For the foregoing reasons Atkins refusal to work was not a 

protected activity. 

Cyprus at all times asserted that the ADR was a safe place 

to work at or about July 15th. But, since Atkins was not engaged 

in an activity protected by the Act, it is not necessary to examine respondent's evidence. 

Briefs 

Counsel have filed detailed briefs which have been most 

helpful in analyzing the record and defining the issues. I have 

reviewed and considered these excellent briefs, However, to the 

extent they are inconsistent with this decision, they are rejected. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, I enter the following 

conclusions of law: 

1. The Commission has jurisdiction to decide this case. 

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2. Respondent did not discriminate against complainant in 

violation of Section 105(c) of the Act. 

ORDER 

Based on the foregoing facts and conclusions of law, I enter 

the following order: 

The Complaint of discrimination filed herein is dismissed. 

Law Judge 

Distribution: 

Mary Gray Holt, Esq., Jolles, Sokol & Bernstein, 721 Southwest 

Oak Street, Portland, OR 97205 (Certified Mail) 

John F. Murtha, Esq., Woodburn, Wedge, Blakey & Jeppsen, One East 

First Street, Reno NV 89505 (Certified Mail) 

/blc 

il'U.8. QOVl!RNMENT PAINTINQ OFFICE! . 1 9 8 6- 4 9 1- 2 2 3-4 7 0 5" 

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