March 1982 

Commission Decisions 

3-16-82 American Materials Corp. 

3-16-82 MSHA & UMWA v. Old hen Coal Company 

3-16-82 MSHA & UMWA v. Eastern Associated Coal 

3-29-82 Carolina Stalite Co. 

Administrative Law Judge Decisions 

LAKE 79-9-M 

VINC 75-247 

HOPE 75-778 

BARB 79-319-PM 

3-01-82 Climax Molybdenum & Boyles Bros. Drilling WEST 80-157-M 

3-03-82 Patrick J. Mooney v. Sohio Western Mining CENT 81-157-DM 

3-04-82 Peabody Coal Company KENT 80-318-R 

3-08-82 MSHA ex rel Isaac Burton, et al., v. KENT 81-124-D 

South East Coal Co. 

3-08-82 Clinchfield Coal Co. VA 81-92-R 

3-10-82 FMC Corporation WEST 80-495-RM 

3-10-82 FMC Corporation WEST 80-506-RM 

3-15-82 Eastern Coal Corp. KENT 80-216-D 

3-16-82 Price River Coal Co. (Braztah,Corp.) WEST 79-39 

3-16-82 Price River Coal Co. (Braztah Corp.) WEST 79-59 

3-16-82 Price River Coal Co. (Braztah Corp.) WEST 79-366 

3-18-82 FMC Corporation WEST 81-169-RM 

3-19-82 Allied Chemical Corp. WEST 79-165-M 

3-26....,82 FMC Corporation WEST 79-101-M 

3-26-82 Consolidation Coal Co. WEVA 80-289 

3-29-82 U.S. Steel Mining Co., Inc. PENN 82-13 

3-29-82 North River Energy Co. SE 82-21-R 

3-30-82 Ozark Lead Co. CENT 80-380-M 

Pg~ 415 

Pg. 421 

Pg. 422 

Pg. 423 

Pg. 434 

Pg. 440 

Pg. 447 

Pg. 457 

Pg. 465 

Pg. 471 

Pg. 477 

Pg. 483 

Pg. 486 

Pg. 489 

Pg. 493 

Pg. 496 

Pg. 503 

Pg. 513 

Pg. 520 

Pg. 526 

Pg. 533 

Pg. 539 

Commission Decision~ 

MARCH 

The following cases were Directed for Review during the month of March: 

Secretary of Labor, MSHA v. United States Steel Corporation, Docket No. 

KENT 81-136. (Judge Koutras, February 24, 1982). 

Secretary of Labor, MSHA on behalf of Kenneth Bush v. Union Carbide 

Corporation, Docket No. WEST 81-115-DM. (Judge Boltz, February 17, 1982). 

Review was Denied in the following cases during the month of March: 

Victor McCoy v. Crescent Coal Co~pany, Docket No. PIKE 77-71. (Judge Broderick, 

Interlocutory Review of February 10, 1982 Order). 

Secretary of Labor, MSHA v. Valley Rock & Sand Corporation, Docket Nos. 

WEST 80-3-M, 79-385-M. (Judge Morris, January 28, 1982). 

Secretary of Labor, MSHA on behalf of George Logan v. Bright Coal Company, 

Docket No. KENT 81-162-D. (Judge Moore, Interlocutory Review of January 27, 1982 

Order). 

Secretary of Labor, MSHA v. Cleveland Cliffs Iron Company, Docket Nos. 

LAKE 80-295-RM, 80-417-M. (Judge Broderick, February 1, 1982). 

Secretary of Labor, MSHA v. Sierra Blanca Milling and Processing Company, 

Docket No. CENT 80-337-M. (Judge Boltz, February 2, 1982). 

Secretary of Labor, MSHA v. Valley Limestone Company, Docket No. LAKE 81-87-M. 

(Judge Moore, February 12, 1982). 

Secretary of Labor, MSHA v. Texas Industries, Inc., Docket No. CENT 79-60-M. 

(Judge Morris, February 12, 1982). 

413 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSIQN 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

'ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 16, 1982 

Docket No. LAKE 79-9-M 

AMERICAN MATERIALS CORPORATION 

DECISION 

This case involves the interpretation of 30 C.F.R. § 56.20-11, a 

mandatory standard under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et~· (Supp. III 1979). That standard 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. 

The administrative law judge held that a violation of the standard 

occurred because American Materials failed to post or barricade an area 

over which high voltage powerlines passed. !/ For the reasons that 

follow, we affirm his decision. 

American Materials extracts and stockpiles sand and gravel at its 

Harrison Pit and Plant. On April 26, 1978, during a fatal accident 

investigation at the Harrison operation, a notice of violation of 

section 56.11-20 was issued to American Materials. 3 FMSHRC 1527. The 

accident occurred the previous day when a driver for a customer of 

American Materials raised his truck bed near high voltage powerlines and 

was electrocuted. 3 FMSHRC 1528. 

Prior to April 25, 1978, between fifty and one hundred and fifty 

customer trucks came onto the Harrison plant each day. Tr. 52. Of 

these, ·some forty to fifty hauled coal before entering the plant. Tr. 

122-25. Some of these truck drivers cleaned coal residue from their 

truck beds by raising the truck bed and releasing the tail gate to dump 

the coal. 3 FMSHRC 1527. American Materials tried to prevent drivers 

from doing this to avoid contamination of its materials. Id. Company 

!/ The judge's decision is report.\d!15 3 FMSHRC 1524 (1981). 

82-3-10 
employees instructed drivers observed cleaning their beds to do so off 

the Harrison plant property. Id. Arrangements had not been made, 

however to inform drivers at the entrance to the plant that they could ' . not clean their truck beds on the premises. ]:_/ Id. 

Although not determinative as to whether or not there was a violation of the standard, the record reflects certain circumstances 

concerning the death of the truck driver, Mr. Meyer. Meyer was found by 

the judge below to have entered the Harrison facility on April 25, 1978, 

to pick up some fill sand for the RBS Trucking Company, a customer of 

American Materials. 3 FMSHRC 1527-28; Tr. 162. Fill sand is unwashed 

sand used primarily to manufacture asphalt. Tr. 162. Meyer was not an 

employee of American Materials; rather, he either owned a truck and 

drove for RBS, or was an employee of RBS; in either case he was on 

American Materials' premises to haul sand and/or gravel from American's 

mine to RBS. 3 FMSHRC 1527. American Materials' records indicate that 

Meyer had been on the property before the date of the accident to pick 

up sand and gravel. Tr. 150-51. On April 25, Meyer was driving west on 

a haulage road marked one-way east, when he pulled off the hard-surfaced 

road on his left side. 3 FMSHRC 1527-28. Powerlines carrying 4,160 

volts run parallel to this road, approximately 28-1/2 feet above the 

ground. Id. The day was wet and windy, and Meyer parked on muddy and 

unstable ground. Id.; Tr. 37. Meyer raised the bed of his tractortrailer to its ful~height of 28-1/2 feet, and left the cab of his 

tractor. 3 FMSHRC 1528. As he stood on the frame of the tractor to 

pull the tailgate release, a powerline energized the raised trailer bed, 

and electrocuted Meyer. Id. 

I. 

The standard requires the posting of warning signs or the barricading of approaches to areas containing hazards that are not "immediately 

obvious to employees." 3/ Meyer was not employed by American Materials. 

Thus, the first question is whether under section 56.20-11, Meyer was an 

"employee." To determine the meaning of "employee" we examine that term 

in the context of the statute under which section 56.20-11 was promulgated, 

regulations which implemented that statute, and the successor statute 

under which the standard is currently enforced. 

We note, as did the judge, that the Federal Metal and Nonmetallic 

Mine Safety Act of 1966, 30 U.S.C. § 72+ et~ (1976)(repealed 1977), 

used a variety of words when it referred to those persons for whom 

protection was intended, including "workers in such mines", "employees 

of the mine", "mine workers", and "employees." See sections 7(a), 

8(a)(3), lO(c), 15, and 19(b) and (c) of the Metal-Nonmetallic Act. 

None of these terms was defined in the Metal-Nonmetallic Act; nor did 

]:_/ After the accident, and before the hearing in August 1980, American 

Materials provided a waste area where truck beds could be cleaned~ 3 FMSHRC 

1535. 

ll The duty to comply with the stanaard is the operator's. The operator must barricade or post the hazardous areas. American Materials was 

charged with the violation based on its failure to act, not on Meyer's 

conduct. 

416 
that Act's legislative history refer to them. The Secretary of Interior 

promulgated Part 56, which contains § 56.20-11, to implement the MetalNonmetallic Act. Part 56 contains health and safety standards for sand, 

gravel, and crushed stone operations. In these regulations the Secretary 

also used a variety of words to indicate to whom a standard applies, 

~' "men", "persons" and "employees." 30 C.F.R. §§ 56.3-5, 56.6-90, 

56.9-20. The Secretary defined the term "employee" as "a person who 

works for wages or salary in the service of an employer." 30 C.F.R. 

§ 56.2. 

Neither the term "employees" in the Metal-Nonmetallic Act nor the 

term "employee" as defined in Part 56 expressly limits protection to 

employees of the mine operator or to any particular type of "employee." 

The Secretary of Interior was required, however, to "develop ••• and 

promulgate health and safety standards for the purpose of_ the protection 

of life, the promotion of health and safety, and the prevention of 

accidents in mines which are subject to this Act." 30 U.S.C. § 725(a) 

(1976)(repealed 1977). This reflects a broad intent to protect those 

working in mines regardless of the details of their employment contracts. 

Thus, even under the Metal-Nonmetallic Act, Meyer might well be an 

"employee" protected by the standard. We need not decide this because, 

as the judge noted, the Metal-Nonmetallic Act was repealed in 1977 and 

was replaced by the Mine Act. 

Under the Mine Act, mandatory standards previously promulgated 

under the Metal-Nonmetallic Act: 

remain in effect as mandatory health or safety standards applicable 

to metal and nonmetallic mines ... under the Federal Mine Safety 

and Health Act of 1977 until such time as the Secretary of Labor 

shall issue new or revised health or safety standards. 

30 U.S.C. § 96l(a). This transfer section, as well as general principles 

of statutory construction, require, as the judge stated, that one read 

30 C.F.R. § 56.20-11 in harmony with the Mine Act. !!_/ In addition, the 

legislative history of the Mine Act clearly shows congressional desire 

to strengthen health and safety protection for metal and nonmetallic 

workers: "[T]he Metal Act does not provide effective protection for 

miners from health and safety hazards." Legis. Hist., at 596. See also 

Legis. Hist., at 597. Thus, we hold that "employee" as used in section 

56.11-20 should be interpreted in conjunction with "miner" under the 

1977 Mine Act. 21 As the judge held, the protections afforded an 

!!_/ See lA Sutherland, Statutory Construction, § 23.34, at 196 (4th ed. 

1973). We reject American Materials' argument that the transfer provision could be read to indicate that regulations promulgated under the 

Metal-Nonmetallic Act are to be interpreted as if that Act were yet 

extant. Rather, we believe the legislative history amply supports the 

conclusion that the provision was intended to prevent the wholesale 

application of coal mine regulations to non-coal mines. H. Rep. No. 95-

312, 95th Cong., 1st Sess. 10, 14 (1977), reprinted in Senate Subcommittee 

on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 366, 370 

(1978)("Legis. Hist."). 

2./ "[M]iner means any individual working in a coal or other mine." 30 

U.S.C. § 802(g)(Supp. III 1979). 

417 
employee under the standard extend to those working in mines. 3 FMSHRC 

1533-34. This interpretation accords with the.protective purposes of 

Part 56 as expressed in section 56.1, which mirrors the statement of 

purpose in the Metal-Nonmetallic Act quoted above. ~/ We reiect 

American Materials' arguments to the contrary. 

The judge determined that Meyer was a "miner" entitled to the 

protection of section 56.20-11. The evidence supports this finding. 

Meyer had been on the Harrison facility previously to pick up and haul 

materials. He was driving for RBS Trucking, a customer of American 

Materials. He was on a haulage road that leads to a stockpile of fill 

sand. American argues, however, that the Secretary presented no evidence of Meyer's.purpose on the property. Although there may be no 

direct evidence such as a purchase agreement between Meyer and RBS or 

between RBS and American Materials, the circumstantial evidence summarized amply supports the judge's finding that Meyer was on the 

Harrison property to obtain materials. Indeed, at the hearing before 

the judge, counsel for American Materials acknowledged that Meyer was 

not a trespasser, but was "doing business" at the facility. Tr. 171""-72. 

American also argues that Meyer was not engaged in activities that 

can be considered mining functions. Meyer, however, was driving a 

tractor-trailer, which was used to pick up and haul away mine products. 

In our view, such haulage activity is an integral part of this mining 

operation and we, therefore, affirm the judge's finding that Meyer was 

"working in a .•• mine." See El Paso Rock Quarries, Inc., 3 FMSHRC 35, 

37 (1981). . . 

II. 

The remaining question is whether the hazard presented by the 

provision was "not immediately obvious." 7/ American Materials asserts 

that the powerlines. were "very much in pl~in sight." Tr. 72. The judge 

acknowledged that the powerlines were "readily observable" but held that 

the hazard was not obvious: 

The fact 'that the powerlines themselves were readily observable under normal conditions is not dispositive of the question 

presented. The powerlines were sufficiently high above the ground 

that the hazard posed by raising a truck bed or operating other 

equipment in the area was not immediately obvious. The truck 

operator had raised the bed of the trailer from inside the truck 

cab. It was raining; the winds were gusting; and the operator of 

the truck, upon getting out of the truck, was engaged in operating 

2./ Section 56.1 provides in part: 

The regulations in this part are promulgated pursuant to 

section 6 of the [Metal-Nonmetallic Act] and prescribe health and 

safety standards for the purpose of the protect.ion of life, the 

promotion of health and safety, and the prevention of accidents in 

sand ••• , gravel and crushed stone operations. 

]_/ American Materials does not argue that no hazard existed; rather it 

asserts that the hazard was obvious and, therefore, that the standard did 

not apply. 

418 
the tailgate. There is no way to know [sic] whether operators of 

trucks in the area would know about the high voltage of the wires 

in question. In view of all of these factors, I conclude that this 

was an area where a safety hazard existed which was not innnediately 

obvious to a miner such as the subject truck driver and that 

neither barricades nor warning signs were posted at all the approaches. 

3 FMSHRC 1535. We agree. 

Approximately forty to fifty of the drivers who entered the Harrison 

pit and plant each day had "double hauls" -- they delivered coal one way 

and sand the other. Tr. 122-25. Some of these drivers cleaned coal 

residue from their truck beds by raising the truck bed and releasing the 

tail gate to dump the coal. 3 FMSHRC 1527; Tr. 52. "Evidence was found 

in the area after the accident indicating that other truck drivers had 

cleaned coal residue from their truck beds in the area where the accident 

occurred." 3 FMSHRC 1532. Substantial evidence supports the judge's 

finding that a driver might not notice whether these were power'lines, or 

if he did, could not determine what voltage they transmitted. The facts 

of this case clearly indicate how this hazard endangers health and 

safety when truck drivers raise and lower their beds in the vicinity of 

the powerlines. In short, although high voltage powerlines may be an 

ubiquitous feature of the mining landscape, the deadly hazards associated 

with them are not always evident. Such was the case·, at the Harrison 

operation. 

Accordingly, we hold that Meyer was protected by the standard and 

that American's failure to post or barricade the unmarked powerlines 

violated the standard. 8/ The decision of the admininstrative law judge 

is affirmed. -

A: E Lawson Connnissioner 

. \ . ~/ To the extent American Materials may be arguing it is not liable 

for the violation because Meyer's conduct was unauthorized and aberrational, the Mine Act's imposition of liability regardless of fault, 

requires us to reject its contention. Allied Products, Co. v. FMSHRC, 

~ F.2d ~' No. 80-7934, 5th Cir. Unit B, Feb. 1, 1982. 

419 
Distribution 

Linda Leasure, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

David Wm. T. Carroll, Esq. 

Smith & Schnacke 

100 East Broad Street 

Columbus, Ohio 43215 

•. " 420 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 16, 1982 

Docket Nos. VINC 75-247 

VINC 75-249 

VINC 75-250 

VINC 75-251 

UNITED MINE WORKERS OF AMERICA 

v. IBMA No. 77-42 

OLD BEN COAL COMPANY 

ORDER 

The Secretary of Labor has filed a motion requesting dismissal 

of its appeal in the above-captioned cases, which arose under the 

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et 

~· (1976)(amended 1977)("the 1969 Coal Act"). The United Mine Workers 

of America ("UMWA"), the other appellant in this case, concurs in the 

Secretary's motion. Old Ben Coal Company has filed a response opposing 

dismissal. 

The Secretary and the UMWA are the only appellants, and both seek 

dismissal. Granting the motion will not prejudice Old Ben as it was 

the party that prevailed below. Dismissal preserves the scarce administrative resources available to the Commission and to the Secretary. 

Furthermore, there are provisions in the 1977 Mine Act that are nearly 

identical to the provisions of the 1969 Coal Act involved in this case, 

and thus the question raised in these cases will probably arise in future 

cases before the Commission. l/ 

Accordingly, we dismiss the abo 

scheduling oral argument in these c 

Our order 

A. E. Ltwson, Commissioner 

lf We need not, and do not, decide that ~~se cases are moot 

matter of law. 421 

as a 

82-3-13 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) . 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006. 

March 16, 1982 

Docket Nos. 

UNITED MINE WORKERS OF AMERICA 

v. 

EASTERN ASSOCIATED COAL CORP. 

ORDER 

HOPE 75-778 

HOPE 75-807 

HOPE 76-9 

HOPE 76-10 

HOPE 76=-il 

HOPE 76-12 

IBMA 77-37 

Eastern Associatea Coal Corporation has filed a motion to dismiss 

the appeal of the United Mine Workers of America (UMWA) in the abovecapt ioned cases which arose under the Federal Coal Mine Health and 

Safety Act of 1969, 30 U.S.C. § 801 et~· (1976) (amended 1977) ("the 

1969 Coal Act"). The Secretary concurs with Eastern's argument that 

its payment of penalties has mooted the issues. The UMWA does not, in 

essence, contest Eastern's motion. 

We are persuaded that.dismissal is warranted in these 1969 Coal 

Act cases. The parties do not wish to pursue these cases. The time 

period involved in the chain of violations has long expired, and Eastern 

has paid the assessed penalties. In the interests of conserving scarce 

administrative resources, we dec.li~e to decide these cases under these 

circumstances. 1/ Eastern's dismissal motion is granted. We also vacate 

our order for oral argument in this 

ll We need not, and do not, reach the 

are moot as a matter of law. 

Law~~ Commissioner 

issue of whether these cases 

422 82-3-14 
FEDERAL MINE SAFETY _AND HEAL. TH ~EVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CAROLINA STALITE COMPANY 

1730- K STREET NW, 6TK. FLOOR 

WASHINGTON, D.C. 20006 

March 29, 1982 

Docket Nos. BARB 79~319-PM 

DECISION 

SE 79-56-M 

79-91-M 

79-92-M 

79-93-M 

79-94-M 

79-95-M 

·79-85-M 

79-87-M 

79-114-M 

80-35-M 

80-37-M 

80-44-M 

This civil penalty case is brought under the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 !:.!_~· (Supp. III 1979). On 

review Carolina Stalite Company (Carolina Stalite) contests the judge's 

finding that it is a mine subject to the 1977 Mine Act, his failure 

to suppress evidence, and his conclusion that a citation can be 

issued if an operator refuses entry to an inspector to conduct an 

inspection. 1/ For the reasons set forth below, we hold that Carolina 

Stalite's fa~ility is not a "mine" subject to the Mine Act. 2/ We 

therefore reverse the judge's decision. -

The essential facts are undisputed. Carolina Stalite produces 

~ light weight construction material, "stalite," from slate" ravel. 

urchases t e s ate rom an a acen uarr • The quarry is 

owned and operated by an independent entity,- Young Stone Company 

(Young Stone). There is no corporate affiliation between Carolina 

Stalite and Young Stone, and no business relationship other than 

that of vendor and purchaser. Young Stone mines, crushes and 

delivers on its conveyor belts three-quarter inch slate gravel to 

Carolina Stalite's premises. ~arolina Stalite stores the stone. 

t then heat ate ravel in rotary kilns to a y 

2,000 degrees fahrenheit. The ea process ng transforms 

1/ These findings were made in an April 14, 1980, order denyingH 

Stalite's suppression motion. The final decision on the merits of 

the citations was issued on December 2, 1980. The decision incorporated the April 14 order and is reported at 2 FMSHRC 3509 (1981). 

:l;_/ In light of our conclusion, we need not address the other 

issues raised in this proceeding. 

423 82-3-23 
volume l Carolina Stalite subsequentlx:_ crushes, sizes to specifi9-

~nd sells the material to manu o use it primarily 

to produce masonary blocks. We previously have acknowledged that interpretation is to be applied to the Act's 

expansive definition of a mine." Oliver M. Elam, Jr., Co .. , 

FMSHRC (VINC 78-447-P, etc., January 7, 1982). The inclusive 

nature ~the Act's coverage, however, is not without bounds. In 

this case, we conclude that Carolina Stalite's operations do not fall 

within the Mine. Act's coverage. 

The Act classifies as mining, and therefore subjects to its 

coverage, the extraction, milling and pre aration of minerals. 4/ 

Young Stone, rather an aro 1na Stalite, is the entity engaged 

in the actual extraction of the slate. Therefore, Carolina Stalite 

is not engaged in "mining" in its classic sense. Young Stone also 

crushes the slate that it extracts. Although the question is not 

presented here, such crushing performed incident to extraction 

would appear to comprise "milling", and therefore "mining", under 

the Act. 5/ Again, however, Young Stone rather than Carolina 

Stalite, performs this operation. 

3/ "Bloating" is the practice of "[e]xpanding raw materials such as 

clays, shale, perlite, slates, etc., by rapid heating to produce a 

lightweight vesicular structure." U.S. Bureau of Mines, A Dictionary 

of Mining, Mineral, and Related Terms 186 (1968). 

4/ The Act does not further define the terms "milling of minerals" 

or "work of preparing ••• minerals." Facially, these appear distinct 

bases for jurisdiction. Conversely, "milling" and "preparation" can 

be perceived as words used, in a loose sense, interchangeably to 

describe the entire process of treating mined minerals for market. 

This interpretation might better reflect the understanding of 

these terms within the mining industry. A Dictionary of Mining, 

Mineral and Related Terms (U.S. Bureau of Mines, 1968) at 707, 

defines milling as including "preparation for market•" -Indeed, 

it is easy to see how both words--milling and preparation--became 

part of the 1977 Mine Act without connoting entirely separate processes. The Federal Metal and Nonmetallic Mine Safety Act of 1966, 

30 U.S.C. § 721 et seq. (1976) (repealed 1977), spoke only in terms of 

"milling" in itsdefinition of a mine, presumably because "milling" was 

the common word used to describe the entire process of preparing noncoal minerals for market. In contrast, the 1969 Coal Act spoke only in 

terms of "coal preparation," again presumably because this was the 

common language used to -describe the processing of coal. Thus, we 

believe the 1977 Mine Act's use of both terms signals that an expansive reading is to be given to mineral processes covered by the Mine 

Act, rather than requiring a clear distinction between what is a 

milling or a preparation process. 

5/ The 1966 Metal-Nonmetallic Act covered mineral "milling". The 

term was not further defined in the statute, but the Senate Committee 

stated that the term "mine" was meant to "extend[] beyond mining in 

the narrow and ordinary sense of the term, to the next sequential 

stage to that of the related milling operation." S. Rep. No. 1296, 

89th Cong. 2d Sess., reprinted in 1966 U.S. Code Cong. and Ad. News 

2846, 2851. 

424 
Carolina Stalite's contact with the mineral at issue occurs only 

after Young s·tone has extracted, crushed, sold and delivered the slate. 

It is then that Carolina Stalite subjects the slate to its heat processing treatment. We find Carolina's treatment of the mineral to be 

a manufacturing process that results in a product, rather than a 

"milling" process under the Mine Act. The crushing and sizing of 

the "stalite" that occurs after the heat processing is completed 

are simply final steps in the manufacture of the product. As we 

·did in Oliver Elam, we reject the notion that Congress intended to 

subject to pervasive regulation of the Mine Act every business that 

in some manner handles minerals. 

We have examined the MSHA-OSHA Interagency Agreement, 44 Fed. 

Reg. 22827 (1979), and the MESA-OSHA Memorandum of Understanding, 

39 Fed. Reg. 27382 (1974). They provide no assistance in the 

resolution of this case. These documents merely reflect the views 

of the agencies as to their respective jurisdiction. Simply because 

the agencies may agree between themselves as to which agency will 

inspect a particular business establishment does not insulate their 

determination from judicial review. MSHA's authority to regulate a 

workplace is determined by the scope of the Mine Act's coverage, not 

by its agreement with OSHA. To the extent that the agreements are 

intended to provide guidance as to which statute will be enforced in 

a particular situation, they are sorely deficient. They are replete 

with exceptions, provisos, and internal inconsistencies. For example, 

the agreements' definition of "milling" provides that "the essential 

operation in all such processes is separation of one or more valuable 

desired constituents of the crude from the undesired contaminants with· 

which it is associated." In the present case, no separation of constituents occurs, yet MSHA claims jurisdiction. 

We note that section 3(h)(l) of the Mine Act, regarding the 

Secretary of Labor's determination as to what constitutes mineral . 

milling, does not come into play. That provision allows the Secretary 

to determine which of his agencies will conduct inspections in cases 

of dual or overlapping jurisdiction. Conf. Rep. at 3S; 1977 Ac.t Leg. 

Hist. at 1316. That situation is not presente<;l here. 

Accordingly, the decision of the administrative law judge is 

reversed, the citations and orders vacated, and the petitions for 

assessment of civil penalties dismiss 

425 
Commissioner Lawson dissenting: 

A mine is defined by our statute, not by whether the operation 

performed is "'mining' in its classic sense", and the determination by 

the judge below that Carolina Stalite is a mine is clearly supported by 

the express terms of the statute. _1'hat determination is buttressed by 

the legislative history of the Act, judicial precedent, the Secretary of 

Labor's recognition of the parameters of the Act, and the record evidence. 

The statute· provides: 

Sec. 3. For the purpose of this Act, the term--

(h)(l) "coal or other mine" means 

(A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, 

are extracted with workers underground~ (B) private 

ways and roads appurtenant to such area, and 

(C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other 

property including impoundments, retention dams, 

and tailings ponds, on the surface or underground, 

used in, or to be used in, or resulting from, 

the work of extracting such minerals from their 

natural deposits in nonliquid form, or if in liquid 

form, with workers underground, or used in, or to 

be used in, the milling of such minerals, or the 

work of preparing coal or other minerals, and 

includes custom coal preparation facilities. In 

making a determination of what constitutes mineral 

milling for purposes of this Act, the Secretary 

shall give due consideration to the convenience 

of administration resulting from the delegation to 

one Assistant Secretary of_all authority with 

respect to the health and safety of miners employed at one physical establishment. (Emphasis 

added). 

The legislative history of the Act is also pertinent and instructive. 

As the report of the Senate Committee on Human Resources states: 

The Committee notes that there may be a need 

to resolve jurisdictional conflicts, but it is the 

Committee's intention that what is considered to 

be a· mine and to be regulated under this Act be 

given the broadest possible interpretation, and 

426 
it is the intent of this Committee that doubts 

be resolved in favor of inclusion of a facility 

within the coverage of the Act. (Emphasis added). 

S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977 at 14; Legislative 

History of the Federal Mine Safety and Health Act, Committee Print at 

602. 

Additionally, during the Senate floor debate Senator Kennedy 

elicited from the Chairman of the Human Resources Committee, Senator 

Williams, confirmation that, in granting the Secretary full jurisdiction 

and authority to discharge his obligations, the Act covers" ... any 

property or equipment whatsoever connected with or in proximity to 

mines." (Emphasis added). Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 997 (1978). 

Similarly, the Conference Report commented that coverage extends to 

all" ••• surface facilities used in preparing or processing the minerals." 

(Emphasis added). Joint Explanatory Statement of the Committee of 

Conference, S. Conf. Rep. No. 95-461, 95th Cong., 1st Sess., 38 (1977), 

reprinted in Legislative History of the Federal Mine Safety and Health 

Act of 1977, at 1316. 

It would therefore appear clear that Congress intended comprehensive regulation, and the inclusion under the 1977 Act as mines 

of facilities other than those operat~d by the particular mine operator 

actually engaged in extracting the coal or other minerals from the 

earth. Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d 589 

(3rd Cir. 1979), cert denied,. 444 U.S. 1015 (1980). This recognizes the 

obviously complex and diverse nature of the mining ind us.try, the various 

facilities existing and required, especially by those operators without 

their own preparation facilities, and the nature of mineral processing, 

which often takes place in several stages, depending upon the contemplated use and the degree of processing required for a particular mineral. 

The majority examines in some detail the MSHA/OSHA Interagency 

Agreement and MESA-OSHA Memorandum of Understanding which conclude that 

separation is an essential step in determining whether an operator is 

milling. 1/ This contention would make the purity of the mineral in 

· its natural state the measure of MSHA jurisdiction. Such a limitation 

has no statutory foundation. Separation, a term not employed by the 

statute, cannot therefore be construed as a necessary element of milling, 

but merely as illustrative of one milling practice. In the mining industry, 

the steps necessary to process a given mineral are dependent upon the 

unique characteristics of the particular substance. 

1./ The majority finds however, that these agreements, despite this 

eclectic analysis, "provide(s) no assistance in the resolution of this 

case." 

427 
While the usual mill in a metal mine will separate contaminants 

from the mined mineral, such separation is often unnecessary in nonmetal 

mines. A Dictionary of Mining, Mineral, and Related Terms (U.S. Bureau 

of Mines, 1968), at page 707, defines •:millin~' as "the grinding or 

crushing of ore." Additionally, "the term may include the operation ef 

in va ueless or harmful constituents and " 

Id. at 707. r c e as "the methods employed to clean., 

J:! __ rocess, and prepare ores into the final marketable product."- Id. 

at 866. Appeinlnt-:wauld thus au.pear to be engaged in both milling and 

processing. 

The Secretary has consistently interpreted "crushing", "sizing" and 

"heat expansion" activities such as those carried on at the Stalite mill 

as within the scope of the Mine Act. The Secretary's interpretation of 

the statute he is charged with administering is entitled to special 

weight under Commission precedent. Secretary of Labor v. Helen Mining Co., 

1 FMSHRC 1796 (1979), rev. on other grounds, Nos. 79-2537, 79-2518 (D.C. 

Cir., February 23, 1982). In addition, although the majority correctly 

notes that the MSHA-OSHA Interagency Agreement, April 17, 1979, (44 FR 

22.827) is not dispositive of the issue before us, that agreement does 

state that: 

"Milling consists of one or more of the following 

processes: .crushing, grinding, pulverizing, sizing, 

concentratin~ washing, drying, roasting, pelletizing, 

sintering, evaporating, calcining, kiln treatment, 

sawing and cutting stone, heat expansion, retorting 

(mercury), leaching, and· briqueting." · (Emphasis 

added). 

and is, at least to that limited extent, of interpretive assistance. 

The Secretary of Labor also has the responsibility for determining 

whether the Assistant Secretary of Labor for MSHA, or for OSHA, shall 

have" ••• all authority with respect to the health and safety of miners." 

Sec. 3(h)(l), supra. In any event, our jurisdictional concern is 

answered by the statute and the Interagency Agreement is one aid in its 

interpretation. 

Finally, the precedents of those Courts which have interpreted the 

Act provide assistance. 

In Marshall v. Stoudt's Ferry Preparation Company, suora, the court 

held that Stoudt's preparation plant, which processed material dredged 

from a river bed and separated such into sand, gravel, and a "usable 

anthracite refuse," was a "mine" as defined by the Act. Stoudt's purchased this dredged material from the mine operator who extracted it 

from the river bed, and transported it both by front-end loader, and, as 

here, by conveyor belt, to Stoudt's plant where processing was had and 

the sand, gravel and anthracite refuse thereafter sold. That court, 

citing the legislative history quoted above, held that: 

428 
"We agree with the district court that the 

work of preparing coal or other mine,;rals is included within the Act whether or not extraction 

is also being performed by the operator. Although 

it may seem incongruous to apply the label "mine" 

to the kind of plant operated by Stoudt's Ferry, 

the statute makes clear that the concept that was. 

to be conveyed by the word is much more encompassing than the usual meaning attributed to 

it--the word means what the statute says it means. 

Moreover, the record also establishes that 

the company processes and sells the sand and 

gravel it separates from the material dredged 

from the river. We are persuaded, as was the 

district judge, that in these circumstances, the 

sand and gravel operation of the company also 

subjects it to the jurisdiction of the Act as 

a mineral preparation facility. (Emphasis 

added)(602 F.2d at 592.)" 

See also Cyprus Industrial Minerals Co. v. Federal Mine Safety and Health 

Review Connnission et al., 664 F.2d 1116 (9th Cir. 1981); Harman Mining 

Corp. v. FMSHRC No. 81-1189 (C.A. 4 198l)(unpublished); and Marshall v. 

Tacoma Fuel Co., Inc., No. 77-0104-B, (W.D. Va. 198l)(Unpublished). 

There is no dispute as to the essential facts in this case. 

Carolina Stalite receives the slate, partially crushed into gravel form, 

directly by conveyor belt from the innnediately adjacent quarry owned and 

operated by Young. Stalite then stores this slate until, without 

further preparation, it heats the crushed slate in rotary kilns to 

approximately 2,000° Fahrenheit. As a result of that heating, the 

volume of the slate is increased. 

Heat processing or "bloating" is generally recognized as a common 

method of processing several different minerals. See Mineral Facts and 

Problems, (1975 edition, Bureau of Mines) at 256 and 785. The MSHA-OSHA 

Agreement (supra) also includes "heat expansion" as a category of milling 

processes, and its definition precisely parallels Stalite's heating or 

bloating operation: 

"Heat expansion is a process for upgrading material 

by sudden heating of the substance in a rotary kiln 

or sinter hearth to cause the material to bloat or 

expand to produce a lighter material per unit of 

volume." 

The widespread use of the heat expansion process for several minerals, 

coupled with the broad definition of mining, leads to the conclusion 

that Stalite is engaged in the work of milling or preparing minerals as 

a mine. 

429 
After this heat expansion preparation, Stalite crushes the now 

bloated slate, and sizes it to the specifications required by its 

customers. It then sells the slate ("stalite") 2/) which is use.d by 

Stalite's customers to manufacture lightweight concrete masonry blocks. 

The related process of coal preparation is also defined in section 

3(i) of the Mine Act as including crushing and sizing activities; see 

Chapter 27, "Mineral Processing" of 2 SME Mining Engineering Handbook 

(Cummings and Given Ed., 1973) at 27.5-1, 5-2 which lists and discusses 

crushing as a milling process. This lends additional support to the 

finding of the judge below that Stalite was subject to jurisdiction 

urider the Act, since the crushing and sizing were performed to upgrade 

the product, and upgrading is an important component of a milling preparation process. (Cf. Oliver Elam Jr. Co., 4 FMSHRC 5 (1982), where 

crushing was solely performed for convenience in loading.) 3/ 

Stalite further contends that its crushing merely takes place as a 

final step in its manufacturing process and is not the type of crushing 

associated with a milling preparation process. Stalite's subsequent 

crushing of the slate, however, is not "milling", and therefore not 

"mining", according to the majority. While Stalite does not perform the 

primary crushing of the slate, minerals are often crushed more than once 

during the milling process, and such secondary crushing as was done here 

by Stalite, is a common process. 

Much emphasis is also placed by the majority on Stalite's status as 

an "independent entity", with "no corporate affiliation" or "business 

relationship other than vendor or purchaser" between Young and Stalite. 

If Stalite's operations were performed by Young on the latter's property, 

there would be no question that the.crushing, sizing and heating or 

bloating of the slate would constitute mining. Young's crushing of the 

slate " •.• would appear to comprise "milling", and therefore "mining", · 

under the Act" according to the majority. But no reason is given by the 

majority, nor does any appear obvious, why the change in ownership of 

slate, and the location of the secondary crushing operation on the adjacent pro.p.er..ty of Stalite to which the slate is transported by conveyor 

belt, converts this operation from mining to manufacturing. A change in 

ownership of the mineral does not nullify the application or jurisdiction of the Act, nor does the majority cite any statutory justification for such a distinction, nor why, because Young rather than Stalite 

]:_! "Stalite" is an unregistered trade name used by appellant. 

11 In the Elam decision the Commission affirmed the judge's finding 

that a commercial dock facility was not a mine under the Act. In that 

instance, roughly half of Elam's operations did not involve mineral 

handling, and the work performed was the breaking and crushing, on some 

occasions, of coal by Elam, solely for its own convenience in loading 

the coal onto barges for shipment. Elam did not prepare coal for 

customers, nor to their market specifications or particular uses, nor 

did it separate waste from or add any material thereto. 

430 
is the corporate entity engaged in the actual extraction of the slate, 

Stalite is therefore not subject to the Mine Ac.t. However, as the 

legislative history of the Act, and (e.g.) Stoudt's Ferry, (supra) 

confirm, whether or not extraction is being performed by the operator is 

not determinative of whether the operation is a "mine" within the meaning 

of the Act. As the Stoudt's court found, the mineral processing was 

there, too, being performed by a party other than the extracting operator. 

Stoudt's, the processor of the minerals it purchased, was nevertheless 

found to be a mine operator, and its processing operation mining under 

the Act. 

The majority further errs in finding Stalite's treatment of the 

slate to be the "final steps" in the manufacture of the ·product. As is 

undisputed, the appellant's "stalite" is thereafter manufactured into 

lightweight concrete masonry blocks by Stalite's customers. 

The conclusory rationale of the majority that Congress did not 

intend to" ••• subject to pervasive regulation of the Mine Act every 

business that in some manner handles minerals" does not address the 

issue presented. Rather, the crushing, sizing, and heating of the slate 

constitutes milling and fits precisely into the definition of a mine set 

forth in section 3(h) of the Act. We are not free to reject these 

statutorily mandated criteria, nor to conclude, absent statutory support, 

that Stalite's operations are outside the coverage of the Mine Act. 

That conclusion is unsupported by the statute, the legislative history, 

any judicial precedent or the facts. 

I would therefore affirm the holding of the judge below, and dissent 

from the majority's opinion herein. !±_/ 

A. E. Lawson, Commissioner 

!±_/ Although the majority because of its holding does not reach the 

denial of entry issue in this case, it is clear that this contention of 

Stalite is without merit under our precedents and those of all courts 

which have considered this issue, including the U.S. Supreme Court. 

Donovan v. Dewey, 101 S.Ct. 2534 (1981). 

431 
Distribution 

Lewis P. Hamlin, Jr., Esq. 

William C. Kluttz, Jr., Esq. 

Kluttz and Hamlin 

P.O. Drawer 1617 

Salisbury, North Carolina 28144 

Linda Leasure, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Joseph Kennedy 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

432 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

) 

MAR 1 1982 

SECRETARY OF LABOR, .MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, 

v. 

CLIMAX MOLYBDENUM COMPANY a Division 

of AMAX, INC., 

and 

BOYLES BROS. DRILLING COMPANY, 

Respondents. 

) DOCKET NO. WEST 80-157-M 

) 

) MSHA CASE NO. 05-02256-05005 

) 

) MINE: Climax Open Pit 

) 

) 

) 

) 

) 

) 

) ~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

For the Petitioner 

Charles W. Newcom, Attorney for Respondent, Climax Molybdenum 

2900 First of Denver Plaza, 633 Seventeenth Street 

Denver, Colorado 80202 

Carl D. High, District Manager, for Respondent, Boyles Bros. Drilling Co. 

15865 West 5th Avenue, Golden, Colorado 80401 

Before: John A. Carlson, Judge 

STATEMENT OF THE CASE 

CITATIONS 331979, 331980 and 331982 

This case arose out of an August 30, 1979 safety inspect ion of 

respondent Climax's surface mining operation in Lake County, Colorado. 

Three closely reiated citations, 331979, 331980, and 331982, were heard on 

the merits. As to each of these, the chief issue to be decided is whether 

a travelway standard published at 30 C.F.R. § 55.11-1 requires that Climax 

furnish certain pieces of heavy mobile equipment with. flashers or with 

flags attached to "buggy whip" antennae. That standard reads: 

Safe means of access shall be provided and 

maintained to all working places. 

434 
The matter was heard at Denver, Colorado under provisions of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (the 

"Act"). The parties stipulated to jurisdiction. The petitioner seeks a 

penalty of $106 for each citation. 

FINDINGS OF FACT 

Upon the entire record, the following findings of fact are made: 

( 1) Respondent's open pit mine site includes approximately 10 miles 

of two-way haulage roads with widths ranging from 100 to 150 feet. 

(2) In ordinary operation, the mine runs 3 shifts per day using 45 

miners per shift. Daily, 80 ,000 tons of materials are remov.ed and 

transported over the haulage roads, chiefly in 120 ton trucks. Including 

pickup trucks, some 45 vehicles are used on the site. 

(3) Respondent also operates two heavy water trucks approximately 44 

feet long and 12 feet high, and a Caterpillar number 988 B front-end loader 

35 feet long and 13 1/2 feet high. These machines are operated on the 

roads and the pit floors, and are the subject of the Secretary's citations. 

The water trucks move at;. slow speeds to spread water to keep dus·t down. 

(4) Respondent had equipped none of these 3 v'·ehicles with an 

electrically operated flasher atop its highest part, or a "buggy whip" 

antenna and flag to alert other vehicles of its presence. 

(5) Respondent did equip its pickup service vehicles with flashers, 

but no other vehicles, including its 120 ton trucks had either flashers or 

flags. The pickup trucks measure approximately 6 1/2 feet at their 

highest. Operator's eye level on the 120 ton trucks is about 14 feet 8 

in.ches. 

(6) Respondent had built berms along all open sides of its haulage 

roads, including corners. These varied in height from a maximum of 12 feet 

on the straight sections, declining to about 6 feet in curves. 

( 7) The roadways contained a number of curves' but these were laid 

out to provide 200 yards of forward visibility. The single crest or 

"hilltop" on the roads was flattened at the top and provided 80 to 100 

yards visibility. 

(8) To reduce the possibility of collisions between vehicles on its 

roadways the respondent maintained and enforced the following safety 

practices: 

(a) All mine vehicles are painted with high visibility 

paints. 

(b) All equipment has conventional head and tail 

lights for night operation. 

435 
(c) New operators and drivers are given two weeks 

of training which includes instruction on speed limits 

for varying conditions, equipment and areas. Speed 

limits range downward from a maximum of 20 miles per 

hour for unloaded trucks proceeding downhill. Climax 

officials routinely check speeds with a radar gun. 

(d) All vehicles are equipped with two-way radios 

which place operators in contact with all other driver.E:. 

and. a "base coordinator" who is informed of vehicle 

movements. 

(e) All vehicles are fitted with rear-view mirrors, 

and heavy equipment with reverse alarms. 

(f) On roadways, respondent has placed mirrors on 

pPsts on the outer edges of the sharper curves. 

(9) Climax experienced no collisions in its mine involving any of the 

three vehicles cited, or any other large pieces of mobile equipment. 

(10) All of these findings relate to conditions at the time of 

inspection in this case. 

DISCUSSION OF THE EVIDENCE 

One may first question whether the cited standard, relating as it does 

only to "safe access" to work places, was intended to have application to 

warning devices on pieces of heavy mobile equipment. Review of the more 

speci fie standards which appear as a part of 30 CFR § 55 .11 shows that all 

have reference to ladders, stairs, walkways and similar fixed structures 

over which miners could be expected to move. The standard at 30 C.F.R. § 

55.11-25 does apply to mobile equipment, but merely prescribes the 

structural requirements for fixed ladders mounted on the equipment itself, 

presumably to assure to workers a safe access to elevat.ed cabs or other 

work places. 

For the purposes ot this decision, however, 30 CFR § 55.11 will be 

assumed to have the broader sweep which the Secretary claims. It is 

presumed~ that is, to apply to the cited machines because they are used on 

roadways which are a "means of access." 

Even so, for the reasons which follow, I must hold that no violations 

were proved. The language of the standard itself makes no reference, of 

course, to flags, flashers, or any other warning devices. When confronted 

with a standard which specifies neither the type of hazard nor the abatement method contemplated, an operator is placed in a far less certain 

position than ,when that standard identifies particular dangers and 

remedies. If the requirements imposed by a standard can be divined only by 

guess, fundamental questions of due process inevitably arise. 

436 
Decisions under the Act thus far have not dealt at length with this 

problem. l/ The courts, however, have addressed the same proble·m under 

the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) in 

numerous cases concerned with arguments of "unconstitutional vagueness." 

As a generality, these cases place a higher burden on the prosecutor than 

those involving narrow or specific standards. First, the courts have 

reasoned that the Secretary of Labor in enforcing these broad standards is 

·held to essentially the same tests adopted under the "general duty clause" 

of the Occupational Safety and Health Act, (a clause which has no direct 

counterpart in the Mine Safety and Health Act). McLean Trucking Co. v. 

OSHRC 503 F. 2d 8, 10 (4th Cir. 1974); Cape and Vinyard Div. of New Bedford 

Gas v. OSHRC, 512 F. 2d 1148, 1152 (1st Cir. 1975). 

Recognizing that some standards are necessarily broad, the courts have 

ultimately fashioned this test for standards stich as the one we deal with 

here: 

The question then becomes what precautionary steps 

a conscientious safety expert would take to avoid 

the occurrence of the hazard. General Dynamics v. 

OSHRC, 599 F. 2d 453, 465 (1st Cir. 1979). 

In its widest sense, the hazard in the present case is that other 

drivers might not see the massive loader or water trucks in time to avoid 

accidents. The Secretary claims tha.t the best way to meet this hazard is 

to mount a small warning flag on an antenna, or to equip the vehicles with 

an electronic flasher. Climax contends that its existing safety ptactices 

[as described in the findings] were well calculated to minimize the hazard, 

and that the variations now proposed to the Secretary would be of dubious 

or even negative value. Through exhibits and testimony, for example, 

respondent seeks to show that the small, standard size warning flags (8 1/2 

x 13 inches), of which the inspector approved, add nothing to the 

visibility of hugh, brightly painted vehicles. Climax also contends that 

flashers on machines in the pits create troublesome mirror reflections and 

other distractions to operators in ioading areas during the night shift. 

Other shortcomings are more obvious. The real concern of the inspector was 

that roadside berms and banks hide vehicles in turns (Tr. 64, 65, 71). 

Obviously, to the extent that a road curves around a hillside, a mere flag 

flying above the loader or truck would still be obscure by a hill of any 

size. As to berms, the evidence tends to· show that the superstructures of· 

the cited vehicles should be visible far above the highest berms in turns. 

The inspector acknowledged that during daylight flashers would not reduce 

the hazard he envisioned; mounted atop t~e highest point on the vehicle 

they would not be visible over the brow of a hill or from around a corner 

(Tr. 69). 

1/ Se.e, however, two thoughtful, unreviewed judge's decisions, which 

discuss the matter in considerable depth: Evansville Materials Inc. 3 

FMSHRC 704 (1981), Judge Fauver; Massey Sand and GravelRock Co., 

FMSHRC , WEST 80-9-M (Feb. 2, 1982), Judge Morris. 

437 
The evidence does not convince me that the precautionary measures 

taken by respondent were less than the standard requires. On the contrary, 

the precautions - appear to have been conscientiously devised and carried 

out. Respondent's accident-free record tends to show that. Moreover, the 

inspector himself, presumably a "conscientious safety expert" of the sort 

mentioned in General Dynamics," volunteered that he saw no problems as he 

watched the machines in use. Only after a vehicle operator raised the 

matter did it occur to the inspector that flags or flashers were necessary 

(Tr. 23). The ad hoc quality of this supposed requirement is thus 

apparent. 

In sum, the Secretary attempts to hold the operator to an arbitrary 

and somewhat whimsical construction of the "safe access" standard, but 

fails to show that the measures already in force were not "the reasonably 

precautionary steps" implied by the standard. Cf. Brennan v. OSHRC (Vy 

Lactos Laboratories, Inc.), 494 F. 2d 460, 463,--C8th Cir. 1974). I 

therefore conclude that the cited standard was not violated, To hold 

otherwise would be to deprive Climax of due process. If the Secretary is 

convinced _that flags or flashers are indeed the preferred_ way to minimize 

the hazard, a specific standard corresponding to those mandating backup 

alarms and similar warning devices should be pr6mulgated. 

CONCLUSIONS OF LAW 

(1) The Corrnnission has jurisdiction to hear and decide this matter. 

(2) Respondent did not violate 30 CFR § 55.11-1 as alleged in 

citations 331979, 331980 and 331982. 

ORDER 

Accordingly, the petition for assessment of civil penalties is ORDERED 

dismissed and the underlying citations are ORDERED vacated. 

FURTHER ORDER ON SETTLED 

CITATIONS 

This case included three additional citations, 331981, 331983 and 

565721, which were not tried on the merits. Respondent agreed at trial to 

withdraw its contest of the $78 penalty sought in connection with citation 

331-981, and to pay that penalty. The proposed penalty is therefore ORDERED 

affirmed, and Climax shall pay the sum of $78 within 30 days of the date of 

this order. 

At trial the parties indicated that the remaining two citations, 

331983' and 565721, were the proper responsibility of Boyles Bros. Drilling 

Company, an independent contractor. They also indicated that that company 

was willing to substitute itself as the respondent, to accept full 

responsibility for the violations, and to pay in full the proposed 

penalties. Boyles Bros., by letter received October 5, 1981 formally 

agreed to do· those things. 

In accordance with the agreements then, Boyles Brothers Drilling 

Company is ORDERED substituted as the respondent with respect to citations 

438 
331983 and 565721; in that capacity it is ORDERED to pay, within 30 days of 

this order, a civil penalty of $66 in connection with citation 331983, and 

$72 in connection with citation 565721; and th{'! attendant "history of 

previous violations" for those cit at ions are ORDERED to be recorded against 

Boyles Bros. and shall be not reflected upon the record of the original 

respondent, Climax. 

Distribution: 

Robert J. Lesnick, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Charles W. Newcom, Esq. 

2900 First of Denver Plaza 

633 Seventeenth Street 

Denver, Colorado 80202 

Carl D. High, District Manager 

Boyles Brothers Drilling Company 

15865 West 5th Avenue 

Golden, Colorado 80401 

Judge 

439 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

PATRICK J. MOONEY, 

v. 

SOHIO WESTERN MINING 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) APPLICATION FOR 

) DISCRIMINATION 

Complainant, ) 

) DOCKET NO. CENT 

) 

) MD 81-10 

COMPANY, ) 

MAR 3 19 

REVIEW OF 

81-157-DM 

) MINE: L-Bar Uranium Operation 

Respondent. ) 

DECISION 

Appearances: 

Patrick J. Mooney, appearing Pro Se 

Albuquerque, New Mexico 

Robert J. Araujo, Esq. 

Sohio Western Mining Company 

69 West Washington Street, Suite 700 

Chicago, Illinois 60602 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF THE CASE 

This proceeding was initiated by a complaint filed by Patrick J. 

Mooney (hereinafter "Mooney") under the provisions of Section 105(c)(3) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(1978) (hereinafter cited as "the Act"). In his complaint, Mooney alleges 

that Respondent, Sohio Western Mining Company (hereinafter "Sohio"), 

unlawfully discriminated against him by discharging him from his employment 

at Sohio's mine on September 9. 1980, in violation of the Act. Mooney 

alleges that he had engaged in activities relating to health and safety 

protected by section 105(c) of the Act prior to the time of his discharge. 

Sohio contends that Mooney was discharged for absenteeism. 

Pursuant to notice, a hearing was held on August 11, 1981, in 

Albuquerque, New Mexico. Mooney testified on his own behalf and called 

Omer Sauvageau, special investigator for the Federal Mine Safety and Health 

Administration (MSHA) as a witness. Witnesses for Sohio were Rudolph 

Siegmann, operations safety engineer, Alton H. Young, shifter and Mooney's 

immediate supervisor, Ruben Romero, supervisor of Area 5 of the mine, and 

Dorothy A. Stover, supervisor of employee relations, all employees of 

Sohio. 

440 
Post hearing briefs were filed by both parties. Based on the evidence 

presented at the hearing and the contentions of the parties, I make the 

following .decision. 

FINDINGS OF FACT 

1. During the period of time involved herein, Sohio operated an 

underground uranium mine identified as J. J. No. l Mine approximately 75 

miles from Albuquerque and near Sebago, New Mexico. 

2. Mooney was hired by Sohio as an underground laborer on February 5, 

1980 (Tr. 11 and 13). 

3. On February 28, 1980, three weeks after Mooney was hired, he was 

absent one day from work due to illness and furnished Sohio with an 

explanation from the medical clinic he contacted regarding his absence (Tr. 

49, Exhibit R-5). 

4. On March 7, 1980, Mooney was absent from work due to dental work 

and furnished a note from the dentist for this one day absence (Tr. 50, 

Exhibit R-6). 

5. On April 2, 1980, Mooney was absent from work for one day due to 

illness (Tr. 25). Upon his return to work on April 3, 1980, Mooney was 

given a warning slip by his supervisor Alton H. Young '(Exhibit R-3). 

Mooney disputed the absence as being unexcused alleging he had called in to 

advise Sohio of his absence. Mooney was advised by Young that Sohio's 

policy was to issue a written warning if there was not a doctor's note 

submitted following an absence (Tr. 26). 

6. On April 10, 1980, during the third shift (midnight to 8 a.m.) 

Mooney protested climbing a ladder underneath a shale bulge near the top of 

the rib because he felt it was too dangerous (Tr. 9). Another miner was 

sent up o.n the ladder instead of Mooney (Tr. 12). This protest by Mooney 

was made within a few hours of an injury that occurred to him that day (Tr. 

12). Mooney and a second miner, Donald Benton, were standing in the bucket 

of a Wagner (tractor type equipment) fifteen feet in the air putting 

lagging up on steel sets to control the roof (Tr. 8). Mooney suffered an 

injury to his left foot when a slab of rock fell from the crown. 

7. Mooney was off work due to his injury from April 10, 1980 until 

September 2, 1980 (Tr. 19) 

8. Mooney reported to work on September 2, 1980 and presented to 

Sohio a statement from his doctor that he was released for regular duty 

(Tr. 18, Exhibit R-7). 

9. Upon arriving at work, Mooney had a meeting with Rudolph Siegmann, 

Sohio's safety director. Mooney complained that there had been omissions 

in the accident reports regarding his injury that were filed with the 

workmen's compensation carrier for Sohio. He also complained that Donald 

Benton, the other man in the bucket of the Wagner, had not been interviewed 

441 
or listed as a witness, and that the area they were working in was not 

properly supported with rock bolts and mesh. Mooney stated that such 

omissions in the reports denied him a ten percent increase in his workmen's 

compensation benefits, which would have been paid him if Sohio failed to 

utilize safety equipment. Mooney told Siegmann he intended to pursue the 

matter further (Tr. 16, 17 and 18). 

10. Followirig his conversation with Siegniann, Mooney was assigned to 

a job on the surface digging a ditch with a shovel (Tr. 19). He had failed 

to bring safety glasses that day and in accordance with company policy was 

not allowed to go underground (Tr. 170 and 171). 

11. On the following day, September 3, 1980, Mooney felt pain in his 

left foot and did not report to work. He telephoned Sohio and talked to 

Ruben Romero, a supervisor at the mine. Mooney told Romero that he would 

not be reporting for work that day. Romero told Mooney to call the Safety 

Department Which Mooney did talking to some person Whose name he did not 

remember (Tr. 20). 

12. Mooney made an unsuccessful attempt to. see his physician on 

September 3; 1980 (Tr. 20). 

13. On September 4, 1980, Mooney returned to work without a note from 

the doctor and as a result was given a three day suspension from work for 

an unexcused absence (Tr. 21, Exhibit R-4 ..!.). 

14. Mooney reported to work on September 9, 1980 ten to fifteen 

minutes late and was notified that he was terminated for a third warning 

slip (Tr. 177) • 

15. Mooney filed a written complaint of discrimination with the Mine 

Safety and Health Administration (MSHA) on October 15, 1980 (Tr. 29). An 

investigation was conducted by an investigator for MSHA and Mooney was 

advised MSHA was of the opinion that Mooney had not been discriminated 

against in violation of the Act. A letter dated March 5, 1981 was sent to 

Sohio so advising them of this decision (Exhibit R-13). 

16. Mooney filed a claim of discrimination with the Federal Mine 

Safety and Health Review Commission on March 25, 1981. 

17. Mooney also filed a claim for unemployment insurance with the 

State of New Mexico. 

1/ Exhibit R-4 states as follows: Warning slip Date 9-4-80 Name Patrick J. 

Mooney Dept. Mine Classification Labor Nature of Warning A.W.O.L. Second 

warning 3 days off Third warning Termination. Return to work 9-9-80 

supervisors signature Earl Zimm •. 

442 
ISSUE 

Did Mooney engage in activity protected under section lOS(c) of the 

Act, and, if so, was he discharged because of it? 

DISCUSSION 

This case involves section lOS(c)(l) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979), which sets 

forth certain types of employee activity which are protected by a prohibition against discrimination or interference, including: 

••• a complaint notifying the operator or the operator's 

agent ••• of an alleged danger or safety or health violation 

in a coal or other mine, •.• or because of the exercise by 

such miner ••• on behalf of himself or others of any 

statutory right afforded by this Act. 

The Federal Mine Safety and Health Review Connnission has previously 

considered questions raised concerning the burdens of proof in discrimination cases in Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 

(1980). rev'd on other grounds, No. 80-2600 (3rd Cir. Oct. 30, 1.981), and 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). In Pasula, it 

held that a prima facie case is established: 

••• if a preponderance of the evidence proves (1) that 

(the miner) engaged in a protected activity, and (2) 

the adverse action was motivated in any part by the 

protected activity. 

The first element of proof of a prima facie case is a shbwing that 

protected activity occurred. Mooney argues in his post-hearing brief that 

the motive for Sohio to discriminate against him was because of his complaints concerning safety violations and the preparation of false and inaccurate accident reports regarding his injury and except for this, Sohio 

had no valid reason t.o fire him (Mooney's post-hearing brief at page 8). 

Th·e fact.s show that on April 10, 1980, Mooney was injured while 

working in the underground shop area of Sohio's mine described as Area 5 in 

the J. J. No. 1 Mine. Earlier in the evening, Mooney had complained about 

an assignment requiring him to climb a ladder under a shale bulge at the 

top of the rib which situation he considered dangerous. His concerns in 

this matter were apparently accepted as valid and another employee was 

assigned to perform the task,. There was no evidence presented in this case 

that Mooney protested his assignment later on in the shift to work in the 

bucket of the Wagner with Donald Benton in putting up lagging on the steel 

sets which resulted in his injury. The complaint by Mooney regarding his 

assignment on the ladder would be protected activity under the Act if it 

were shown that such refusal to work prompted his firing. The firing 

occurred approximately five months later and the ladder incident alone 

would seem rather remote. However, Mooney argues that. subsequent events, 

specifically his complaints about the accident reports, was protected 

activity and the cause for his firing. 

443 
Upon his return to work in September 1980, Mooney met with Siegmann 

and complained that the accident reports filed with the workmen's 

compensation carrier were not accurate. If these complaints were motivated 

by a sincere belief by Mooney that such matters were related to safety and 

health conditions in the mine, it would constitute protected activity. 

However, the preponderance of the evidence shows that at the time Mooney 

made these complaints to Siegmann and subsequent thereto, Mooney was , 

attempting to establish his right to an additional ten percent payment he 

would receive on .his workmen's compensation benefit if it was shown that 

the accident was caused by a failure to utilize safety equipment (Tr. 17). 

Mooney in his statement to the MSHA inspector stated as follows: 

I was very angry that the report had been falsified. 

I was denied a substantial amount of money as a result 

of the report being falsified, and I wanted the report 

set straight it would have jeopardized my supervisors 

Alton Young's job" (Exhibit C-2). 

Mooney testified at the hearing as follows: 

I had protested to Mr. Siegmann these omissions and discrepancies and at that time I told him that I would pursue 

this matter because I felt that I had been unjustly denied 

a penalty, an additional monetary benefit from my accident 

that I was entitled to under state law (Tr. 17). 

These statements by Mooney and a careful review of the evidence shows that 

Mooney's purpose of pursuing this matter upon his return to work was 

motivated by monetary reasons rather than safety and health and would not 

constitute a protected activity under the Act. Mooney's statement that 

Alton Young's job was in jeopardy by his actions or that such acts would 

cause Siegmann to lose his job was not supported by the evidence. 

Mooney argues that Soh_io had no valid reason to fire him. The preponderance of the evidence contradicts this. Mooney worked for Sohio from 

February 5, 1980 until September 9, 1980. During that period of time, he 

had an excused absence for medical reasons on February 28, 1980, approximately three weeks after he commenced work, an excused absence for dental 

work on March 7, 1980 and an unexcused absence on April 2, 1980 for which 

he was issued a warning slip. On April 10, 1980, he was injured by the 

rock fall and was off work until September 2, 1980, when he returned for 

regular duty assignment. Mooney had an unexcused absence for medical 

reasons on September 3, 1980 and upon returning to work on September 4, 

1980 was given a second written warning that he would be terminated if it 

occurred a third time and was given a three day suspension. On September 

9, 1980, the date he was to return to work, Mooney was late and was 

discharged. 

Mooney argues that Sohio did not follow its own policy regarding 

absences when it fired him. He contends in his post-hearing brief on page 

6 that the two warning slips dated April 3, 1980 (Exhibit R-3) and dated 

444 
September 4, 1980 (Exhibit R-4) are unwarrantable reprisals. The fact is 

th~t the warning slip dated April 3, 1980 for the first unexcused absence 

was issued prior to the accident which occurred April 10, 1980 that 

triggered the events which Mooney claims as protected activity. This 

contradicts his argument that this first warning slip was a reprisal. 

Further, the preponderance of the evidence and particularly the two 

doctor's statements submitted by Mooney to Sohio for absences on February 

28, and March 7, 1980 support Sohio' s argument that Mooney was aware of 

their policy regarding attendance. 

In its decision Secretary of Labor on behalf of Johnny N. Chacon v. 

Phelps Dodge Corporation, 3 FMSHRC 2508 (November 13, 1981), the Federal 

Mine Safety and Health Review Commission considered a similar question 

regarding a company's business practices regarding disciplining employees, 

The Commission held as follows: 

••• Corrnnission judges must often analyze the merits of an 

operator's alleged business justification for the challenged 

adverse action. In appropriate cases, they may conclude that 

the justification is so weak, so implausible, or so out of 

line with normal practice that it was a mere pretext seized 

upon to cloak discriminatory motive. But such inquiries 

must be restrained. 

The Commission and its judges have neither the statutory charter 

nor the specialized expertise to sit as a super grievance or 

arbitration board meting out industrial equity. ~· Youngstown 

Mines Corp., 1 FMSHRC 990, 994 (1979). Once it appears that a 

proffered business justification is not plainly incredible or 

implausible, a finding of. pretext is inappropriate. We and our 

judges should not substitute for the operator's business judgment 

our views. on "good" business practice or on whether a particular 

adverse action was "just" or "wise." Cf. NLRH v. Eastern Smelting 

& Refining Corp., 598 F. 2d 666, 671 (lSt Cir. 1979). The proper 

focus, pursuant to Pasula, is on whether a credible justification 

figured into motivation and, if it did, whether it would have led 

to the adverse action apart from the miner's protected activities. 

if a proffered justification survives pretext analysis and meets 

the first part of the Pasula affirmative defense test, then a 

limited examination of its substantiality becomes appropriate. 

The question, however, is not whether such a justification 

comports with a judge's or our sense of fairness or enlightened 

business practice. Rather, the narrow statutory question 

is whether the reason was enough to have legitimately moved that 

operator to have disciplined the miner. Cf. R-W Service System 

Inc., 243 NLRB 1202, 1203-04 (1979)(Artic"iilating an analogous 

standard). 

I conclude that Sohio successfully defended by showing that it did 

have legitimate reasons to terminate Mooney for his attendance record. 

445 
Cert~inly, the evidence shows that Mooney was given adequate warning during 

a short period of time (April unt i 1 September, 1980) that he was invoking a 

company rule regarding unexcused absences. 

I have intentionally avoided an extended review of the facts 

surrounding the accident which occurred on April 10, 1980 causing Mooney's 

injury. This case was not intended as a forum for deciding whether a 

safety violation occurred or who was at fault. The issue here must be 

confined to whether Mooney's complaint of safety violations and inaccurate 

reports was protected activity and, as a result, produced a subsequent 

discrimination action by Sohio. I do not find that Mooney has made a prima 

facie case in either instance and find that Sohio did not violate section 

lOS(c) when it discharged Mooney. 

CONCLUSION OF LAW 

1. I have jurisdiction over the parties and the subject matter of 

this proceeding. 

2. Sohio did not violate section lOS(c) when it discharged Patrick J. 

Mooney. 

ORDER 

The complaint of discrimination in this case is DISMISSED. 

Distribution: 

Patrick J. Mooney 

Virgil ~Vail 

Adminis~~ve Law Judge 

2312 Alvarado Northeast 

Albuquerque, New Mexico 87110 

Robert J. Araujo, Esq. 

Derwood H. Rusher, II, Esq. 

Law Department, The Standard Oil Company (Ohio) 

Sohio Western Mining Company 

69 West Washington Street 

Chicago, Illinois 60602 

446 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

PEABODY'COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Contestant 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

(UMWA), 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

PEABODY COAL COMPANY, 

Respondent 

Petitioner 

Respondent 

Contest of Order 

Docket No. KENT 80-318-R 

Order No. 796237 

August 1, 1980 

Civil Penalty Proceeding 

Docket No. KENT 81-32 

A/O No. 15-02079-03048 R 

Ken No. 4 Mine 

DECISION 

This matter is comprised of a contest proceeding under section 105(d) 

and a civil penalty proceeding under section 110 of the Federal Mine Safety 

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

Peabody Coal Company (hereinafter, '.'Peabody'il}"seeks review of a citation 

issued on August 1, 1980, under section 104(a) of the Act 1/ because of 

Peabody's refusal to permit MSHA to inspect and copy certain records. MSHA 

seeks assessment of a civil penalty against Peabody for this refusal, an 

1/ The citation, originally issued under section 104(b) of the Act on 

August 1, 1980, was subsequently modified on August 4, 1980, to a section 

104(a) action. 

447 
alleged violation of section 103(d) of the Act 2/ and 30 C.F.R. § 50.41. 3/ 

Both parties agree that a hearing is unnecessary and request that a deci--

sion be made on the basis of stipulated facts and written briefs. On 

June 12, 1981, I received the parties' stipulations and written briefs were 

subsequently received. Based on the stipulations submitted, it is found: 

1. The Ken.No. 4 Mine is an underground, bituminous coal mine located 

near Beaver Dam in the County of Ohio, State of Kentucky. 

2. Peabody is the operator of the Ken No. 4 Mine. 

3. Peabody is subject to the provisions of the Act with respect to the 

subject mine and citation. 

4. Jurisdiction exists over the parties to and the subject matter of 

these proceedings. 

5. On July 29, 1980, a written request for a section 103(g) special 

investigation was submitted by a UMWA safety inspector to MSHA's office in 

Madisonville, Kentucky, indicating that there was an injury in a rock fall 

that had occurred at the Ken No. 4 Mine on May 9, 1977, and enclosing a 

copy of Peabody's report which states that no injury occurred. The UMWA 

official requested that a special investigation be made to determine whether 

an injury had in fact been reported. MSHA can find no record of the injury 

suggested by the letter of the UMWA official. However, an affidavit was 

executed by Byron L. Culbertson which, in pertinent part, alleges that while 

he was employed at cleaning up the rock fall on May 9, 1977, he injured his 

back and reported the injury to his face boss, and that later, with the aid 

of the assistant mine foreman, he completed an accident report. Additionally, 

MSHA has been informed by one C. J. Shipp, M.D., that the latter's medical 

clinic records show that on May 10, 1977 (the day after the accident), the 

said doctor examined Byron L. Culbertson. 

2/ This provision provides: 

"All accidents, including unintentional roof falls (except in any 

abandoned panels or in areas which are inaccessible or unsafe for inspections), shall be investigated by the operator or his agent to determine 

the cause and the means of preventing a recurrence. Records of such accidents and investigations shall be kept and the information shall be made 

available to the Secretary or his authorized representative and the appropriate State agency. Such records shall be open for inspection by interested persons. Such records shall include man-hours worked and shall be 

reported at a frequency determined by the Secretary, but at least annually." 

30 u.s.c. § 813(d) (Pocket Part 1981). 

3/ 30 C.F.R. § 50.41, Verification of Reports, provides: 

- "Upon request by MSHA, an operator shall allow MSHA to inspect and copy 

information related to an accident, injury or illness which MSHA considers 

relevant and necessary to verify a report of investigation required by 

§ 50.11 of this Part or relevant and necessary to a determination of compliance with the reporting requirements of this Part." 

448 
On August 1, 1980, Federal Inspector Jesse F. Rideout, pursuant to 

instructions of MSHA's district manager, went to the mine property to 

inspect the company records relating to the rock fall and purported injury. 

No request for any other record was made. Inspector Rideout informed Jerry 

Maggard, Safety Director at the Ken No. 4 Mine, as to the nature of his 

investigation and gave him a copy of Government Exhibit No. 3. !!_/ Safety 

Director Maggard informed Inspector Rideout that Peabody had filed all 

required reports relating to the rock fall 2 years previously with MSHA 

and he refused to allow the inspector to see Peabody's accident records. 

The Safety Director arranged for the inspector to telephone Peabody's legal 

department whereupon the inspector was informed by Peabody's legal department that they would advise Clyde Miller, the mine superintendent, that MSHA 

personnel would not be permitted to examine the accident reports without a 

search warrant. 

Inspector Rideout then contacted Dennis Ryan of the Arlington, Virginia 

Staff of Special Investigations, who after conferring with counsel from the 

Office of the Solicitor, instructed the inspector as to their next course of 

action. In accordance with his instructions, the inspector returned to the 

Ken No. 4 Mine property on August 1, 1980, and demanded to see the records 

required to be kept relating to the accident and injuries concerning the 

rock fall on May 9, 1977. Superintendent Miller responded that based on 

advice of Peabody's counsel, the inspector would not permit the inspector 

to examine the mine copies of the accident reports. Inspector Rideout then 

read Superintendent Miller section 103(d) of the Act, but Mr. Miller still 

refused. Inspector Rideout then issued Citation No. 796236 which is the 

subject of the instant proceeding. 

The issue involved is whether MSHA must obtain a search warrant in order 

to obtain mine office accident records which are required to be kept under 

the Act and its implementing regulations. 

It is noted initially that there was no actual physical search of 

Peabody's offices or physical seizure of Peabodys' records. 

The Supreme Court of the United States in Donovan v. Dewey, U.S. 

~~' 69 L.Ed.2d 262 (1981), hereinafter Dewey, held that search warrants 

were not required for a section 103(a) inspection to be conducted under the 

Act. The crux of the Dewey holding, which I find to be generally dispositive, is that the inspection process is not such an unreasonable intrusion 

upon the interests of the mine operator as to offend Fourth Amendment 

4/ This exhibit is a copy of a letter dated July 28, 1980, addressed by a 

safety inspector employed by the United Mine Workers of America addressed 

to the MSHA office at Madisonville, Kentucky, requesting a section 103(g) 

special investigation to determine whether there was a 30 C.F.R. § 50.20 

violation (which is similar to 30 C.F.R. § 80.31, 37 F.R., Page 5753 

(March 21, 1972), which was the standard in effect at the time of the 

rock fall on May 9, 1977. 

449 
requisites. In its discussio~, the Court specified three instances where 

inspections of commercial property may be found unreasonable: 

(1) If they are not authorized by law, 

(2) If they are unnecessary for the furtherance of Federal interests, 

and 

(3) If the inspections are so random, infrequent, or unpredictable 

that the owner for all practical purposes has no real expectation that his 

property will from time to time be inspected by Government officials. 

Since none of these were found applicable to section 103(a) inspections, the process was held to be reasonable. By virtue of Dewey, the 

mining industry apparently has joined the liquor and firearms industries 

as an exceptional enterprise subject to the warrantless inspection of its 

commercial premises. See Colonade Catering Corporation v. United States, 

397 U.S. 72 (1970), and United States v. Biswell, 406 U.S. 311 (1972), 

respectively. 

Reconsideration of the three tests for reasonableness set forth in 

Dewey in connection with section 103(d) inspections is in order. 

Is the Inspection Authorized by Law 

At the time of the rock fall on May 9, 1977, the Federal.Coal Mine Health 

and Safety Act of 1969 (hereafter, 1969 Act) was in effect. The Federal Mine 

Safety and Health Act of 1977 (hereafter, 1977 Act) did not become effective 

until March 9, 1978. Accordingly, examination of both the 1969 and 1977 Acts 

is desideratum. 

Section 111 of the 1969 Act provides: 

Maintenance of records; investigation of accidents; 

accessibility; periodic reports to Secretary; publishing of reports; limitations 

(a) All accidents, including unintentional roof falls 

(except in any abandoned panels or in areas which are 

inaccessible or unsafe for inspections), s~all be investigated by the operator or his agent to determine the cause 

and the means of preventing a recurrence. Records of such 

accidents, roof falls, and investigations shall be kept and 

and the information shall be made available to the Secretary 

or his authorized representative and the appropriate State 

agency. Such records shall be open for inspection by interested persons. Such records shall include man-hours worked 

and shall be reported for periods determined by the Secretary, 

but at least annually. 

450 
(b) In addition to such records as are specifically 

required by this chapter, every operator of a coal mine shall 

establish and maintain such records, make such reports, and 

provide such information, as the Secretary may reasonably 

require from time to time to enable him to perform his functions under this chapter. The Secretary is authorized to 

compile, analyze, and publish, either in summary or detailed 

form, such reports or information so obtained. Except to the 

extent otherwise specifically provided by this chapter, all 

records, information, reports, findings, notices, orders, or 

decisions required or issued pursuant to or under this chapter 

may be published from time to time, may be released to any 

interested person, and shall be made available for public 

inspection. [Emphasis added.] 

30 u.s.c. § 821 (1971). 

Thus, under section 111, the operator clearly was required to keep 

records at the time of the rock fall and to make the same available to 

the Secretary. Additionally, the following three regulations were 

pertinent at the time of the rock fall. 

(1) 30 C.F.R. § 80.22, which delineates what accident invesigation 

report records shall contain: 

(a) The written record of each investigation of any 

accident shall contain: 

(1) An identification of, and correlation with, the 

record or records of the accident, injury, or occupational 

illness reported and required to be maintained by 

Section 80.31. 

(2) The date and hour upon which the accident 

occurred. 

(3) The date and hour the investigation was started. 

(4) The name of the person or persons who made the 

investigation. 

(5) The specific location of the accident and a 

description of the location. 

(6) Names, occupation at the time of the accident, 

and pertinent occupational experience for all persons who 

received disabling injuries and other injuries. 

(7) A narrative description of the accident, including 

all pertinent related events prior to the accident, measurements of any dimension or clearance; type of equipment or 

451 
machinery, noise level, visibility, lighting (in general 

terms); any identifiable human behavioral factors contributing to the accident; or any other element contributing to or related to the accident. 

(8) A description of the steps taken, or to be taken 

in the future to avoid a recurrence, including, where appropriate, suggestions for modification or improvement in 

operating rules and regulations, working rules and regulations, safety standards, modification of equipment, training of personnel, or any other changes needed to prevent 

recurrence of the accident. 

(b) Additional records shall be kept as follows of 

all unintentional roof falls of a size that would restrict 

ventilation or the passage of men: 

(1) a plot of the roof fall on a mine map. 

(2) A rough sketch or sketches of suitable scale 

showing the dimensions of the fall, the type and location 

of the roof support used, the type and thickness of the 

strata above the coalbed, and a statement of the depth of 

overburden in the affected area. Abnormalities in the 

immediate roof structure also shall be located and 

described. 

(2) 30 C.F.R. § 80.23, which states these records shall be maintained 

at the mine for a period of 5 years and available to MESA upon request of 

the district manager: 

The written records of investigation of accidents 

required by this Subpart C shall be maintained at the mine 

for a period of 5 years from the date of the accident and 

shall be open for inspection by interested persons. A copy 

of the written record of each investigation of an accident 

made under section 80.22 shall be furnished to the Mining 

Enforcement and Safety Administration upon request by a 

Coal Mine H~alth and Safety District Manager. 

(3) 30 C.F.R. § 80.3l(a), which delineates record-keeping requirements 

for accidents: 

The operator of a coal mine shall maintain at the mine 

office a Coal Accident, Injury, and Illness Report (Form 

6-347) on which there shall be entered and recorded specified 

information with respect to each accident, and reach resultant 

injury by date of occurrence, and each occupational illness by 

date of diagnosis or occurrence. The Coal Accident, Injury, 

and Illness Report is organized to facilitate the recording 

452 
and compilation of information for each occurrence. The 

operator's copy (white) shall be maintained at the mine for 

a period of 5 years from the date of occurrence or diagnosis, 

whichever is applicable, and shall be open for inspection by 

interested persons. 

The statutes and regulations in effect on the date of the accident 

required the mine operator to keep records of the type Inspector Rideout 

requested. Nothing in the 1977 Act suggests that the record-keeping 

requirements ·under the 1969 Act were to be disregarded. In fact, section 

103(d) of the 1977 ~ct is substantially congruent to the 1969 Act's 

mandates. Consequently, since the accident occurred on May 9, 1977, and 

records were required to be kept for a period of 5 years from that date, 

I find that Inspector Rideout's August 1, 1980, request for records was 

in accordance with applicable law, that Respondent was required to keep 

such records by express provisions of both the 1969 and 1977 Acts, and 

that Respondent was likewise required to allow the Secretary to inspect 

such records. 

Is the Inspection Necessary for the Furtherance of Federal Interests 

Congressional concern over mine safety has been apparent since Federal 

intervention in the mining industry began in 1910 when the Bureau of Mines 

Act was enacted (Pub. L. No. 61-179, Ch. 240, 36 Stat. 369 (1910)). Of 

utmost concern has been the health and safety of the mining industry's most 

precious resource--the miner (see Preamble, 1977 Act, 30 u.s.c. § 80l(a)) 

(Pocket Part 1981). Congress has taken pervasive measures to ensure the 

health and safety of the miner. It is manifest that record-keeping requirements are needed to monitor safety performances and to document accidents 

and their causes. MSHA uses this information to improve the overall quality 

of a mine's safety program. 

In requesting records, MSHA sometimes touches upon another legitimate 

concern, that of the general expectation that a mine operator has of privacy 

in his offices. Judicial pronouncements involving these competing interests 

suggest that whenever an inspector seeks information that is required to be 

kept by law, the privacy expectations of the mine operator must yield to the 

Federal interest protecting the health and safety of the miner. 5/ For example, 

in Youghiogheny and Ohio Coal Company v. Morton, 364 F. Supp. 45-(S.D. Ohio, 

1973), the court noted: . 

The governmental interest in promoting mine safety, it 

might be concluded, far outweighs any interest the mine opera tors may have in privacy. 364 F. Supp. 45, 51. 

5/ The factual configuration underlying the decision of Judge Broderick in 

Sewell Coal Company v. MSHA, 1 FMSHRC 864 (July 6, 1979), is distinguishable 

from the instant matter in that a wholesale search of files and records (some 

records were required and others were not required to be kept under the Act) 

was involved. 

453 
and footnoted: 

The mine operator though, does have a general expectation of privacy in his offices on the mining property. 

There is, however, no expectation of privacy in the maps, 

books, and records which are maintained for and in compliance with the Mine Safety Act. These must, of course, be 

produced upon demand to the federal inspector when he makes 

his unannounced entry. 364 F. Supp. 45, 51. n. 5. 

See also United States v. Consolidation Coal Company, 560 F.2d 214. (6th Cir. 

1976), which, at page 218, underscores a significant industry interest in 

maintaining this inherent part of the statutory scheme of self-regulation: 

It follows that business records and other paraphernalia, 

which are maintained pursuant to the Act, are appropriate 

targets for periodic federal scrutiny. * * * In the instant 

case, these materials constitute the veritable life blood of 

a statutory scheme which contemplates responsible, selfmonitoring of working conditions by mine operattors. 

As noted above, the firearm's industry like the mining industry has 

been found to be pervasively regulated. In United States v. Biswell, supra, 

the Supreme Court of the United States upheld a statute authorizing warrantless searches of firearm's records required to be kept by law provided the 

inspection was during normal business hours. 2_/ 

Section 103(e) of the 1977 Act requires that any information required 

to be kept should be obtained so "as not to impose an unreasonable burden 

with the underlying purposes of the Act." 7/ Accordingly, since the 

investigation occurred during regular business hours and Inspector Rideout's 

sole request was for information of an accident report of a rock fall on 

May 9, 1977, and since this information was required to be kept by law, I 

conclude (1) that the request was reasonable under section 103(e), (2) not 

burdensome, and (3) in furtherance of federal interests. 

6/ Also see United States v. Petrucci, 486 F.2d 329 (9th Cir. 1973), to the 

same effect. 

7/ Section 103(e) reads: 

- "Any information obtained by the Secretary or by the Secretary of 

Health, Education, and Welfare under this Act shall be obtained in such a 

manner as not to impose an unreasonable burden upon operators especially 

those operating small businesses, consistent with the underlying purposes 

of this Act. Unnecessary duplication of effort in obtaining information 

shall be reduced to the maximum extent feasible." 30 u.s.c. § 8ll(c) 

(Pocket Part 1981). 

454 
Is the Inspection of a Type So.Random, Infrequent, or Unpredictable That the 

Owner, for All Practical Purposes Has No Real Expectation That His Property 

Will from Time to Time Be Inspected By Government Officials 

Peabody argues that since the request for the accident record was 

"special" (i.~., one not of certainty or regularity), it "cannot be expected 

to foresee an investigation that was created for the sole purpose of securing 

accident information." This contention is both specious and pernicious to 

the mututal interest of industry and the public in that it attacks the underpinnings of the concept of self-regulation, which ultimately must operate in 

a spirit of cooperation and good faith. 

As the parties stipulated, Inspector Rideout "demanded to see the records 

required to be kept relating to the accident and injuries concerning the rock 

fall on May 9, 1977" (Stipulation, No. 6). These records are required to be 

kept by the mine operator by both the Act and the regulations and made available to the Secretary. Official notice is taken that, in the abstract, a rock 

fall is a most dangerous circumstance. Investigations of such are clearly 

a legitimate regulatory concern. Since the request was made during regular 

business hours for records specifically required to be kept and turned over, 

Peabody's claim that the request was uncertain and unforeseeable is not found 

meritorious. In this connection, I find that the request was "routine" in 

the sense that it was specifically authorized by the Act, even though it was 

not in furtherance of a common enforcement practice. Consolidation Coal 

Company, supra, p. 218, fn. 8. 

Conclusion and Assessment of Penalty 

Since it is concluded that Inspector Rideout's warrantless request for 

information relating to the records required to be kept should have been 

complied with, I find Peabody, a large mine operator, to be in violation of 

the Act. MSHA admits that the violation was not serious since no physical 

harm was posed to any miner by reason of the failure to produce the report. 

The culpability of this intentional violation is mitigated by its being in 

furtherance of advice from counsel. 8/ Peabody has but a moderate history 

of previous violations. Accordingly-:- a penalty of $500 is assessed which 

Peabody is directed to pay to the Secretary of Labor within 30 days from 

the issuance date of this decision. 

Michael A. Lasher; Jr., Judge 

8/ A fact which was stipulated to by the parties (see Stipulation received 

June 17, 1981, p. 4). 

455 
Distribution: 

Thomas R. Gallagher, Esq., Peabody Coal Company, P.O. Box 235, 

St. Louis, MO 63166 (Certified Mail) 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900 15th 

Street. NW., Washington, DC 20005 (Certified Mail) 

456 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAR 8 1982 

SECRETARY OF LABOR, Complaint of Discharge, 

MINE SAFETY AND HEALTH Discrimination, or Interference 

ADMINISTRATION (MSHA), 

Docket No. KENT 81-124-D 

On behalf of 

ISAAC A. BURTON, ET AL., 

Complainants 

No. 8 Mine 

v. 

SOUTH EAST COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. 

Department' of Labor, Nashville, Tennessee, for 

Complainant~; 

James W. Craft, Esq., Polly, Craft, Asher & Smallwood, 

Whitesburg, Kentucky? for Respondent. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The above proceeding was heard by Administrative Law Judge James A. 

Laurenson in Lexington, Kentucky, on December 2 and 3, 1981. William J. 

McCool, Rex V. Fields, Isaac A. Burton and Charles Miller testified on 

behalf of Complainants; William T. Cahoon, Estel Brown and Charles 

Holbrook testified on behalf of Respondent. At the conclusion of the 

hearing, both parties waived their rights to submit closing argument 

and to file posthearing briefs. Judge Laurenson left the Commission 

before he was able to decide the case and it was assigned to me. The 

parties have agreed that I may decide the case on the record made 

before Judge Laurenson and have stated that they do not desire to file 

posthearing briefs. 

The proceeding involves the claims of nine miners, Isaa~ A. 

Burton, Alex Combs, Curtis Day, Donnie Dixon, Rex V. Fields? Henry 

Heron, Jack H. King, Wiiliarn J. McCool and Eugene Spencer that they 

were discriminated against in violation of section 105(c)(l) of the 

Mine Act by their employer, Respondent. As a result of the alleged 

discrimination, Complainants contend they lost time from work and lost 

pay and other employment benefits. · 

457 
On the basis of the entire record, including the transcript of 

testimony, the exhibits introduced and the contentions of counsel I 

make the following decision: 

FINDINGS OF FACT 

1. Respondent was at all times pertinent to this case the 

operator of an underground coal mine in Letcher County, Kentucky, 

known as the No. 8 Mine. 

2. The products of Respondent's No. 8 Mine enter into and its 

operations affect interstate commerce. 

3. At all times pertinent Complainants Isaac A. Burton, Alex 

Combs, Curtis Day, Donnie Dixon, Rex V. Fields, Henry Heron, Jack H. 

King, William J. McCool and Eugene Spencer were employed by Respondent 

as miners. 

4. The miners named above worked in the same continuous miner 

crew at the subject mine. McCool was the continuous miner operator; 

Dixon was the miner helper, also called the cable puller; Fields was 

a shuttle car operator; Burton was a scoop operator, the others had 

various other jobs in the production crew. 

5. In mid-June, 1980, the development of the subject 

the direction of an old mine, which had been mined by the 

Coal Co. Both mines were in the Elkhorn No. 3 coal seam. 

intended to cut into the old mine and recover some of the 

had ·not been mined out. 

mine was in 

Smith-Elkhorn 

Respondent 

coal that 

6. Respondent's mining engineer, under whose supervision the 

mine map of the subject mine was prepared, had done the engineering 

work on the Smith-Elkhorn Coal Co. Mine and was aware of the location 

of the workings in the latter mine. 

7. About 3 or 4 weeks prior to June 18, 1980, a cut was made 

from the subject mine into the Smith-Elkhorn Mine. This occurred on 

a Saturday while the No. 8 Mine was otherwise idle. Test boreholes 

had been previously drilled and water had been pumped out. 

8. A flame safety lamp check of the air coming from the old 

mine was made. It did not show the existence of "black damp." 

458 
DISCUSSION 

There is a dispute between the testimony of William Mc€ool, the 

miner operator and Charles Holbrook the mine foreman on this point. 

McCool was operating the miner and Holbrook handled the flame safety 

lamp. Therefore Holbrook was in the best position to testify on 

·whether the lamp went out. McCool may have misunderstood Holbrook 

ari clearly was not in as good a position to see the lamp. 

9. Holbrook instructed McCool and the others to put a danger 

board in the entry with the notation "Danger. Keep Out," and they 

did so. 

DISCUSSION 

Once again the testimony of McCool and Holbrook is in conflict. 

I accept McCool's version since it is more definite (when asked if 

McCool hung such a sign, Holbrook answered "I don't think so") 

(Tr. II, 91) and since ~cCool was one of those who actually hung the 

sign. 

10. About 1 week prio~ to June 18, 1980, McCool again cut into 

the old mine. He told Holbrook and Estel Brown, the section foreman. 

Brown performed a flame safety lamp test and the flame went out 

indicating bad air. 

DISCUSSION 

There is dispute as to whether this was an accidental cutting 

into the old mine or a planned one and as to whether the mine map 

was accurate. I accept Respondent's testimony on those issues, but 

I accept McCool's testimony concerning the flame safety lamp test. 

It was not clearly disputed by Brown. 

11. After the old mine had been previously cut into as 

described in Finding of Fact No. 7, the mine foreman, Mr. Holbrook 

went into the Smith-Elkhorn works twice weekly to examine the areas 

approached by the advancement of No. 8 Mine. He walked to within 

3 breaks (180 feet) of the junction. There was water on the floor 

of the old mine but "it wasn't real deep." (Tr. II, 87). Neither 

Holbrook nor Brown told McCool and the other members of his crew 

that these inspections were made. 

12. On June 13, 1980, mine operator McCool and his crew began 

work at 2:00 p.m. They serviced the miner and checked the face areao 

Water was coming out from the face and was standing on the mine 

floor. The ribs were soft. On the previous day as cuts were made 

the coal kept getting softer and more water was encountered. 

459 
13. McCool then told section foreman Brown that he didn't want 

to cut into the face without drilling test holes because he was afraid 

of cutting into water and black damp in the old mine. 

14. Brown then asked the miner helper, Donnie Dixon, if he 

would run the miner. Dixon said he was also afraid to cut the face. 

15. Brown then told the entire crew to leave the mine. There 

was no discussion of the validity of the miner operators' fears and no 

offer of alternate work. 

16. On the way out of the mine, the crew met MSHA inspectors 

coming in. Brown told them the crew was leaving because it had no 

cable to run the drill. 

17. On June 19, 1980, when the crew returned to the mine, they 

were told by Holbrook that "if you was afraid to cut it yesterday, 

you would be afraid to cut it today and tomorrow." (Tr. I, 42). The 

crew was told to remain home until Monday, June 23, 1980. 

18. On June 19, 1980, an MSHA inspector issued a c.itation for 

a violation of 30 C.F.R. § 75.1701 for cutting within 60 feet of an 

abandoned inaccessible area, without drilling boreholes. This was 

in the area involved in the present proceedipg. 

19. The proposal for a penalty based on the above citation was 

dismissed by a Conunission Administrative Law Judge on July 13, 1981, 

on the ground that the areas to which the mine was being driven were 

neither abandoned nor inaccessible since they had been inspected and 

ventilated. Secretary of Labor v. South East Coal Company, Inc., 

3 FMSHRC 1766. 

20. On June 19 and 20, 1980, the face area in question was 

advanced by other crews about three cuts. The old mine was not cut 

into. Test holes were drilled and a pump was set up to pump out the 

water coming from the old mine. The pump was continued for several 

months, pumping water intermittently. 

21. When the crew returned to work on June 23, 1980, they cut 

coal in other headings after test holes were drilled. 

ISSUES 

1. Were miner operator McCool and miner helper Dixon engaged 

in activity protected under the Hine Act when they refused to perform 

work on June 18, 1980? 

460 
2. If so, are they entitled to pay for the time lost from work 

on June 18 through 20, 1980? · 

3. If protected activity was involved, are the members of the 

crew who were sent home other than McCool and Dixon entitled to pay 

for the time lost from work June 18 through 20, 1980? 

4. Did the Claimants who did not appear at the hearing abandon 

their cases? 

5. Are the miners entitled to hearing expenses including lost 

pay for meeting with their attorney and for attending the hearing? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal Mine 

Safety and Health Act of 1977, and the undersigned has jurisdiction 

over the parties and subject matter of this proceeding. 

2. Mine Operator William J. McCool and his helper Donnie Dixon 

refused to perform work on June 18, 1930 because of a reasonable, 

good faith belief that it was hazardous. 

DISCUSSION 

Refusal to perform work is protected under section 105(c)(l) of 

the Act if it results from a good faith belief that the work involves 

safety hazards, and if the belief is a reasonable one. Secretary of 

Labor/Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA MSHC 1001 

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

Marshall F.2d (3rd Cir-:---1981); Secretary of Labor/Robinette 

v. Unitedcastle CotlCo.' 3 FMSHRC 803, 2 BNA MSHC 1213 (1981). 

McCool and Dixon explicitly based their refusal to work on safety 

reasons. Respondent does not challenge their good faith and the 

record contains no reason to doubt it. The reasonableness of their 

belief has to be determined on the basis of what they knew at the time 

of the work refusal. The fact that the work was objectively safe and 

was known to Respondent to be safe is not enough to withdraw the 

protection of the Act. McCool at least had reason to believe that 

cutting into the old mine might expose him and his co-workers to 

water inundation and bad air based upon two prior experiences. He 

did not absolutely refuse to work but asked that test boreholes be 

drilled before cutting. It seems clear from the record that Respondent 

did not communicate the fact that the old mine was being ventilated 

and regularly inspected by mine management. Therefore these facts 

cannot be used'to judge the reasonableness of Complainant's work 

refusal. 

461 
3. McCool and Dixon were sent home because of the refusal to 

work described in Conclusion No.·2 and remained out of work and 

unpaid for the same reason on June 19 and June 20, 1980. 

4, Therefore, McCool and Dixon are entitled to back pay for the 

wages lost June 18 through 20, 1980. 

5. although the other members of the crew did not specifically 

refuse to work because of safety fears or otherwise, they were all 

sent home for the 3 days because of McCool's and Dixon's safety 

related work refusal. I conclude that McCool and Dixon were acting 

on behalf of the entire crew and they are all protected from retaliation under the Act. 

DISCUSSION 

In two cases, the Commission has rejected the notion that an 

individual safety complaint by each involved miner is necessary to 

sustain a discrimination case. Under the 1969 Coal Act the Commission 

adopted the judge's ruling that "it would be unrealistic to expect 

each man to make his own individual complaint to his supervisor . • . • 

It may be inferred that the fears and concerns expressed by the applicants who testified were shared by many of the other applicants." 

Local 1110, United Mine Workers of America, et al. v. ConsoliJation 

Coal Co., 2 FMSHRC 2812 (1930). In the recent case of Secretary/ 

Dunmire and Estle v. Northern Coal Co,, 4 FMSHRC (1982), the 

Commission emphasized that the Act protected concerted activity and 

held that the communication of a refusal to work by one miner "may be 

deemed to be on behalf of all concerned even if not announced in such 

terms." Id, slip op. p. 9. 

6. The failure of certain Complainants to appear at the hearing 

did not amount to an abandonment of their claims. 

DISCUSSION 

Respondent did not cite any authority for the proposition that 

by failing to appear at the hearing, certain of the Complainants 

abandoned their claims, and I am not aware of any such authority. 

Evidence was presented on Complainants behalf, from which I have 

concluded that they were discriminated against by Respondent. Their 

failure to appear at the hearing is irrelevant. 

7. Complainants are entitled to reimbursement for incidental 

hearing expens~> incurred in prosecuting their claims. 

462 
DISCUSSION 

In Secretary/Dunmire and Estle v. Northern Coal Company, supra, 

the Commission held that the awarding of incidental, personal hearing 

expenses is an appropriate form of remedial relief. 

8. Resp.ondent has violated section 105 (c) of the Mine Act by 

discriminating against the Complainants for exercising rights 

protected under the Act. The violation was moderately serious and 

was deliberate in the sense that it was intentionally done. There 

is no evidence as to the size of Respondent or whether a civil 

penalty will affect its ability to continue in business. 

ORDER 

Based on the above findings of fact and conclusions of law 

Respondent is ORDERED: 

1. To reimburse Isaac A. Burton the sum of $220 plus interest 

at the rate of 12 percent per annum from June 20, 1980 until paid, 

for wages lost June 18 - 20, 1980; to reimburse Isaac A. Burton the 

following hearing expenses: $90 for pay lost November 30, 1981; 

$24 travelling expenses (120 miles at .20 cents/mile) on 

November 30, 1981; $90 for pay lost December 2, 1981; $62 travelling 

expenses (310 miles at .20 cents/mile) December 2, 1981, or total 

hearing expenses of $266 (interest need not be paid on hearing 

expenses if paid in accordance with this order). 

2. To reimburse Alex Combs the sum of $231 plus interest at 

the rate of 12 percent per ~nnum from June 20, 1980 until paid, for 

wages lost June 18 - 20, 1980. 

3. To reimburse Curtis Day the sum of $231 plus interest at the 

rate of 12 percent per annum from June 20, 1980 until paid, for 

wages lost June 18 - 20, 1980. 

4. To reimburse Donnie Dixon the sum of $225 plus interest at 

the rate of 12 percent per annum from June 20, 1980 until paid, for 

wages lost June 18 - 20, 1980; 

. 5. ro-reiiilburse Rex V. Fields the sum of $220 plus interest 

at the rate of 12 percent per annum from June 20, 1980 until paid, 

for wages lost June 18 - 20, 1930; to reimburse Rex V. Fields the 

following hearing expenses: $90 for pay lost November 30, 1981; 

$22 travelling expenses (110 miles at .20 cents/mile) on November 30, 

1981; $90 for pay lost December 2, 1981; $58.80 travelling expenses 

(294 miles at .20 cents/mile) December 2, 1981 - or total hearing 

expenses of $260.80 without interest. 

463 
6. To reimburse Henry Heron the sum of·$231 plus interest at 

the rate of 12 percent per annum from June 20, 1980 until paid, for 

wages lost June 18 - 20, i980. 

7. To reimburse Jack H. King the sum of $220 plus interest at 

the rate of 12 percent per annum from June 20, 1980 until paid, for 

wages lost June 18 - 20, 1930. 

8. To reimburse William J. McCool the sum of $231 plus interest 

at the rate of 12 percent per annum from June 20, 1980 until paid, 

for wages lost June 18 - 20, 1980; to reimburse William J. McCool the 

following hearing expenses: $90 for pay lost November 30, 1981; 

$28 travelling expenses (140 miles at .20 cents/mile) on November 30, 

1981; $90 for pay lost December 2, 1981; $60 travelling expenses 

(300 miles at .20 cents/mile) December 2, 1981, or total hearing 

expenses of $268 without interest. 

9. To reimburse Eugene Spencer the sum of $231 plus interest 

at the rate of 12 percent per annum from June 20, 1980 until paid, 

for wages lost June 18 - 20, 1980. 

IT IS FURTHER ORDERED that Respondent pay to the Secretary of 

Labor, Mine Safety and Health Administration the sum of $100 as a 

civil penalty for the violation of section 105(c)(l) of the Act found 

herein to have occurred. 

IT IS FURTHER ORDERED that Respondent shall pay the above amounts 

within 30 days of the date of this order. 

J M J/£5 A-13 wr11/tG(_ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of 

Labor, 801 Broadway, 280 U.S. Courthouse, Nashville, TN 37203 

Thomas A. Mascolino, Esq., Counsel for Trial Litigation, Office of the 

Solicitor, Division of Mine Safety, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

James W. Craft, Esq., Polly, Craft, Asher & Smallwood, 7-10 Bank 

Building, Whitesburg, KY 41848 

Special Investigations, MSHA, U.S. Department of Labor, 4015 Wilson 

Blvd., Arlington, VA 22203 

464 
FEDERAL MINE SAFETY AND HEALTtt REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAR 8 1982 

CLINCHFIELD COAL COMPANY, Contests of Citation and Order 

' Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. VA 81-92-R 

Citation No. 1080109 

July 7, 1981 

Docket No. VA 81-93-R 

Order No. 1080112 

July 9, 1981 

McClure No. 1 Mine 

DECISION 

Appearances: Timothy W. Gresham, Esq., Lebanon, Virginia, for Contestant; 

Catherine M. Oliver, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Respondent. 

Before: Judge Melick 

These cases are before me upon Contests filed by the Clinchf ield Coal 

Company (Clinchfield) pursuant to section 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et~·, "the Act," challenging a 

citation and an order of withdrawal issued under sections 104(a) and 104(b) 

of the Act, respectively. ];/ 

J:.f Section 104(a) of the Act provides as follows: 

"If, upon inspection or investigation, the Secretary or his authorized 

representative believes that an operator of a coal or other mine subject to 

this Act has violated this Act, or ·any mandatory health or safety standard, 

rule, order, or regulation promulgated pursuant to this Act, he shall with 

reasonable promptness, issue a citation to the operator. Each citation shall 

be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, 

regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The 

requirement for the issuance of a citation with reasonable promptness shall 

not be a jurisdictional prerequisite to the enforcement of any provision of 

this Act." 

465 
Citation No. 1080109 

This citation charges a violation of the regulatory standard at 30 C.F.R. 

§ 75.1105 and alleges as follows: 

The battery-charging station (permanent) located in the 

No. 5 intake entry, Caney No. 2 section (005) was not housed 

in a fireproof structure in that the asbestos curtains used 

as fireproofing did not extend the length of the coal ribs 

back to the permanent stopping. 

The cited standard reads in relevant part as follows: 

Underground * * * battery-charging stations * * * shall 

be housed in fireproof structures or areas. Air currents 

used to ventilate structures or areas enclosing electrical 

installations shall be coursed directly into the return 

* * *· 

The essential facts in this case are not in dispute. The parties agree 

that the cited underground battery charging station was laid out as illustrated in Exhibit A, attached hereto. As shown in Exhibit A, the battery 

charger was centered in the subject station 29 feet 6 inches inby a permanent incombustible cinder block stopping but only 7 feet from the coal 

ribs. The station was 8 feet high and its roof and floor were composed of 

incombustible slate. Sections of fireproof asbestos curtain were hung 

alongside the right and left ribs in the general vicinity of the charging 

station but not immediately adjacent to the battery charger. It is undisputed that the coal ribs adjacent to the battery charger had been properly 

rock dusted but that did not make the coal in these ribs incombustible and 

certainly not fireproof. 

In practice at relevant times batteries to be charged were removed from 

mining machinery and placed on one of several metal battery stands located 

within the charging station. At the time the citation was issued, one 

fn. 1 (continued) 

Section 104(b) of the Act provides as follows: 

"If, upon any follow-up inspection of a coal or other mine, an authorized 

representative of the Secretary finds (1) a violation described in a citation 

issued pursuant to subsection (a) has not been totally abated within the 

period of time as originally fixed therein or subsequently extended, and (2) 

that the period of time for the abatement should not be further extended, he 

shall determine the extent of the area affected by the violation and shall 

promptly issue an order requiring the operator of such mine or his agent to 

immediately cause all persons, except those persons referred to in subsection 

(c), to be withdrawn from, and to be prohibited from entering, such area until 

an authorized representative of the Secretary determines that such violation 

has been abated." 

466 
battery was being charged about 8 feet from the battery charger. In the 

charging process explosive hydrogen gas is generated and accordingly ventilation must be maintained. There is no dispute that such ventilation was 

maintained in this case and that the hazard from hydrogen gas was accordingly minimal. The possibility of a short circuit in the charger resulting 

in fire and heat buildup is also mutually recognized. 

Clinchfield admits that its battery-charging station was not completely 

"housed in fireproof structures or areas" but argues that it was impossible 

to comply with that requirement because it is in conflict with another 

requirement in the·same standard that "air currents used to ventilate 

structures or areas enclosing electrical installations * * * be coursed 

directly into the return." It argues further that because of this confli-et 

and the resulting ambiguities in the cited regulation it can be constitutionally enforced only if the operator had actual knowledge that the cited 

condition or practice was hazardous or if it can be shown that a reasonably 

prudent man familiar with the circumstances of ·the industry would have protected against the hazard. Bristol Steel and Iron Works v. O.S. and H. 

Review Com'n, 601 F.2d 717 (4th Cir. 1979). Such an analysis of a regulatory 

standard is not required, however, where the standard itself provides "reasonable certainty" and is facially unambiguous. Connally v. General 

Construction Company, 269 U.S. 385, 391; Boyce Motor Lines, Inc. v. 

United States, 342 U.S. 337. 

Indeed Clinchfield itself suggests in its brief how the two parts of the 

regulation may be read in harmony: 

The proper interpretation of this mandatory standard insofar 

as it states the charging station be housed in a fireproof 

area must be that the battery-charging station must be so 

housed as to prevent the spread of fire to combustible materials while, at the same time, allowing proper and necessary 

ventilation to carry away any and all gases and fumes which 

could contribute to an ignition and fire and all fumes and 

smoke that would result from an ignition or a fire. 

I agree that the two parts of the standard are not in necessary conflict and 

that the standard may be read as a consistent and harmonious whole. See 

73 Am. Jur. 2d Statutes § 254. Accordingly, I find that the standard provides constitutionally sufficient certainty. Boyce, supra. The only issue 

before me then is whether Clinchfield was complying with those specific 

requirements. On the undisputed facts of this case, I find that it was not. 

As shown in stipulated Exhibit A the battery charger was located only 7 feet 

from combustible coal ribs with admittedly no fireproof separation. Moreover, 

while short sections of asbestos curtains were hung in the vicinity of a 

battery being charged, that battery was situated within 10 feet of another 

coal rib. Even under the most liberal construction of the standard as advocated by Clinchfield the cited battery-charging station could not therefore 

have been "housed" within a fireproof structure or area. 

467 
Clinchf ield nevertheless appears to claim as an affirmative defense that 

the absence of fireproof housing around portions of the battery-charging 

station was necessary to allow for the ventilation required by the second 

part of the standard. '.!;he proof in this case fails, however, to support the 

claimed defense. Indeed there is no evidence to show that the firepro"of 

enclosure as finally approved by MSHA in this case prevented compliance in 

any way with the ventilation requirements of the standard. Clinchfield contends, finally, that the cited standard should be interpreted with deference 

to the MSHA Coal Mine Inspection Manual, Chapter 2, section (3) Page 514 

(March 1978). The manual provides in relevant part that the " coal, or other 

combustible "materials below, above and to the sides of the battery(s) should 

be protected." However, since Clinchfield in this case did not as a matter 

of undisputed fact protect all sides of the battery being charged, it was 

clearly in violation of the manual provisions as well as the standard. 

Accordingly, the contention is irrelevant. 

ORDER 

Citation No. 1080109 is AFFIRMED and the contest of that citation is 

accordingly DISMISSED. 

Docket No. VA 81-93-R 

Clinchfield stipulated at hearing that the section 104(b) order of 

withdrawal in this case, Order No. 1080112, would not be disputed in the 

event that the underlying citation in Docket No. VA 81-92-R was.affirmed. I 

consider that stipulation to be a request to withdraw the contest of the 

captioned proceeding conditioned upon the affirmation by the undersigned of 

the underlying citation in the preceding case. Since that citation has been 

affirmed, I approve of the withdrawal by Clinchfield of its contest in this 

proceeding. 

Order No. 1080112 is AFFIRMED 

accordingly DISMISSED. 

ORDER 

468 
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469 
Distribution: 

Timothy W. Gresham, Esq., Clinchfield Coal Company, P.O. Box 4000, 

Lebanon, VA 24266 (Certified Mail) 

Catherine M. Oliver, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Teddy R. Lester, President, United Mine Workers of America, District 28, 

Local 1852, Route 1, Box 328, Cedar Bluff, VA 24609 (Certified Mail) 

J. E. Stanley, President, United Mine Workers of America, District 28, 

Local 2274, Route 1, Clintwood, VA 24228 (Certified Mail) 

470 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FHC CORPORATION, 

Contestant . ·v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FMC CORPORATION, 

Respondent 

Contest of Citation 

Docket No. WEST 80-495-RM 

Citation No. 576956; 8/13/80 

Docket No. -WEST 80-496-RM 

Citation No. 576970; 8/13/80 

FMC Mine 

Civil Penalty Proceeding 

Docket No. WEST 81-259-~1 

A.O. No. 48-00152-05045 I 

FMC Mine 

DECISION 

Appearances: John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

P.C., Salt Lake City, Utah, for FMC Corporation; 

Before: 

James. R. Cato, Esq., Office of the Solicitor, U.S. 

Department of Labor, Kansas City, Missouri, for 

Secretary of Labor. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The above proceedings were consolidated for hearing and for the 

purpose of this decision. They involve a contest of two citations 

issued the same day, August 13, 1980, and a civil penalty proceeding 

seeking penalties for the violations alleged in the same two citations. 

Pursuant to notice, the cases were heard before Administr.ative Law 

Judge John F. Cook on August 11 and 12, 1981, in Green River, Wyoming. 

Judge Cook left the Commission before he could issue a decision, and 

the parties have .agreed that I may decide the cases on ·the basis of 

471 
the transcript of the hearing and the exhibits introduced before 

Judge Cook and the contentions of the parties in their posthearing 

briefs. Terri Matson, and Federal Mine Inspectors William W. Potter 

and Merrell Wolford testified on behalf of the Secretary of Labor; 

Jerry Doan, Jeffery Munk, Karl O. Christensen, David M. Smith, 

Charles R. Maggio, Russell W. Rollins and Dale Force, all employees 

of FMC, testified on behalf of FMC Corporation. On the basis of the 

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

the following decision: 

APPLICABLE REGULATIONS 

1. 30 C.F.R. § 57.9-3 provides: Powered mobile equipment shall 

be provided with adequate brakes·. 

2. 30 C.F.R. § 57.9-37 provides: Mobile equipment shall not be 

left unattended unless the brakes are set. Mobile equipment with 

wheels or tracks, when parked on a grade, shall be either blocked or 

turned into a bank or rib; and the bucket or blade lowered to the 

ground to prevent movement. 

FINDINGS OF FACT 

1. The FMC Corporation (FMC) is the operator of a large 

underground mine in Sweetwater County, Wyoming, known as the FMC Mine. 

2. The subject mine produces trona, a natural soda mineral, and 

its operation affects interstate commerce. 

3. The parties have stipulated that FMC is a large operator, it 

could satisfy the penalties if any are assessed against it, its past 

history "is not extraordinary" and that the citations involved in 

this proceeding were abated in good faith. 

'· 

4. On August 9, 1980, Terri Matson was employed in the subject 

mine as a lube truck operator. Her duties including driving her 

vehicle to the mining machines and providing necessary lubrication to 

them during the maintenance shirt. Her truck included two oil tanks 

and a grease can all with pumps operated by an air compressor on the 

truck. 

5. On the above date at about 8:00 p.m., she was servicing the 

miner to prepare it for production which was planned for the second 

half of the normal maintenance shift. Both lubrication ptimps were 

operating: Matson was outside of the truck and was pumping the 

hydraulic fluid into the large.tank (approximate capacity 50 gallons) 

on the miner and a mechanic, Roger Brown, was filling the oil tank at 

the head of the miner. 

472 
6. While the above operatipn was going on, the lube truck was 

parked on a slight grade. The motor was running and the truck was in 

second gear. The wheels of the truck were not blocked and the 

vehicle was not turned into a rib. No blocks or chocks were present 

in the vehicle. The parking brake was set. 

7. The pumps "ran down" and Matson went back to "rev up" the 

engine to increase the air pressure. As she did so, the truck started 

forward. Matson stepped on the foot brake, but it went to the floor 

and did not respond. The truck struck Roger Brown; he was pinned 

between the truck and the miner and was injured. 

8. The lube truck was equipped with an air over hydraulic 

braking system, the air acting as a power assist and operating from 

the same air compressor that powered the lubrication pumps. 

9. On August 13, 1980, Inspector Wolford issued a citation under 

section 104(d)(l) of the Act charging a violation of 30 C.F.R. § 57.9-3 

because the lube truck did not have adequate brakes. 

10. On August 13, 1980, Inspector Potter issued a citation under 

section 104(a) of the Act charging a violation of 30 C.F.R. § 57.9-37 

because on August 9, 1980, the lube truck was parked on a grade without 

being blocked or turned into a rib. 

ISSUES 

1. On August 13, 1980, did the lube truck in question have 

adequate brakes? 

2. If it did not have adequate brakes, was this caused by the 

unwarrantable failure of FMC? 

3. If a violation of 30 C.F.R. § 57.9-3 is found, what is the 

appropriate penalty? 

4. On August 9, 1980, was the lube truck in question parked on 

a grade and neither blocked nor turned into a bank or rib? 

5. If a violation of 30 C.F.R. § 57.9-37 is found, what is the 

appropriate penalty? 

473 
DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS 

1. ADEQUATE BRAKES 

Inspector Wolford testified that his inspection 

of the brakes indicated that the modification of the 

hydraulic braking system to provide the air assistance 

rendered the brakes marginal when the air compressor 

provided between 75 and 90 p.s.i. and inoperable when 

it fell below 75 p.s.i. He stated that the use of the 

air compressor for the lube system could reduce the 

air pressure to the above mentioned levels. Jerry 

Doan, FMC maintenance supervisor, testified that 

running the lubrication pumps depletes the pressure 

in the air system and that if the air pressure gets 

sufficiently low, the hydraulic brakes will fail. 

The figures referred to by Inspector Wolford were 

disputed by other witnesses for Respondent, but 

their precise accuracy is not import~nt. Karl 

Christensen, FMC Diesel foreman, testified that if 

the hydraulic system is working properly and the 

brake pedal goes to the floor, it could be explained 

by inadequate air pressure. I accept as true and 

accurate Ms. Matson's testimony that when she 

stepped on the brake pedal just prior to the accident on August 9, 1980, the pedal went to the floor 

and the brake did not operate. The only logical 

explanation for this is a depletion in the air 

pressure as a result of using the lubrication pumps. 

On this basis, I conclude that the braking system 

was inadequate because of the possibility of failure 

due to its being tied in with the air compressor 

operating the lubrication system. 

There was also testimony (disputed) concerning 

the holding ability of the parking brake while the 

vehicle was in second gear, but this is not referred 

to in the citation and I am not considering it. 

(a) UNWARRANTABLE FAILURE 

An unwarrantable failure to comply with a 

m~ndatory safety standard (section 104(d)(l) of the 

Act) has been defined as the failure to abate a 

condition which the operator knew or should have 

known existed or because of lack of due diligence or 

474 
reasonable care. Zeigler Coal Co., IBMA (1977) 

1 MSHC 1518. The evidence in this record shows 

(1) the operator deliberately altered the braking 

system on the vehicle in question; (2) the operator 

knew or should have known that the use of the lubrication pumps could deplete the air pressure and 

cause a failure in the hydraulic braking system. 

Therefore, I conc.lude that the violation was caused 

by.FMC's unwarrantable failure to comply with the 

regulation in question. 

(b) PENALTY CRITERIA 

The violation was directly responsible for the 

injury to Roger Brown. I conclude that it was 

serious. Since I have previously concluded that it 

was an "unwarrantable failure" violation, ipso facto, 

it was due to FMC's negligence. FMC is a large 

operator, with more than two and one half million man 

hours worked each year. The history of prior violations is not such that penalties otherwise appropriate 

should be increased because of it. 

2. FAILURE TO BLOCK WHEELS OR TURN INTO BANK OR RIB 

There is little or no dispute that on August 9, 

1980, Terri Matson parked her mobile vehicle in.order 

to lubricate the miner. The vehicle was on a slight 

grade and was not blocked. The vehicle was facing 

an upward grade and the rear wheels were 5 or 6·feet 

from the rib. That is 9 if it rolled backwards, it 

would roll 5 or 6 feet before being stopped by the 

rib. I conclude that these facts establish a violation of the standard contained in 30 C.F.R. § 57.9-37. 

(a) PENALTY CRITERIA 

Clearly the violation could have resulted in 

inJury. However, because the grade was gradual and 

the distance the vehicle could have rolled was 

limited, I conclude that the violation was only 

moderately serious. This violation did not cause or 

contribute to the injury to Mr. Brown. 

Matson testified that she had no blocks on her 

vehicle and had never blocked the vehicle in question. 

She stated that she did not block the vehicle on 

August 9, 1980 and did not turn the wheels into the 

475 
rib. She further stated that she had never seen other 

miners in her crew block the wheels of their vehicles 

or turn into a rib when the·y parked the vehicles. 

Jeffrey Munk testified that although vehicles 

are supposed to be chocked or turned into a rib when 

parked, Ms. Matson (Foley) only "occasionally" 

followed this procedure. For his own part, Munk 

admitted that prior to August 9, 1980, he "might have 

been a little lax on it, but for the most part we did, 

yes." Matson's foreman testified that he instructed 

her to block her vehicle when she parked it. However, 

I conclude on the basis of all the testimony that the 

policy was not strictly or vigorously enforced. I 

therefore further conclude that the violation was 

caused by FMC's negligence. 

ORDER 

IT IS ORDERED that the Contest of Citations 576956 issued 

August 13, 1980, and 576970 is DENIED and the citations are AFFIRMED. 

IT IS FURTHER ORDERED that Respondent in the penalty proceeding, 

FMC Corporation, shall within 30 days of the date of this decision pay 

the following civil penalties for the violations found herein to have 

occurred: 

30 C.F.R. 

Citation Standard Penalty 

576956 57.9-3 $ 500 

576970 57.9-37 $ 300 

Total $ 800 

J{LvV<L5 k.f.vcfe--r,,,, ~ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, P.C., 

50 South Main Street, Suite 1600, Salt Lake City, UT 84144 

James R. Cato, Esq., Office of the Solicitor, U.S. Department of Labor, 

911 Walnut Street, Suite 2106, Kansas City, MO 64106 

476 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FMC CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY .Al.'ID HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FMC CORPORATION, 

Respondent 

Contest of Citation 

Docket No. WEST 80-506-ID1 

Citation No. 576918; 8/27/80 

FMC Mine 

Civil Penalty Proceeding 

Docket No. WEST 81-260-M 

A.O~ No. 43-00152-05046 I 

FMC Mine 

DECISION 

Appearances: John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

P.C., Salt Lake City, Utah, for FMC Corporation; 

James R. Cato, Esq., Office of the Solicitor, U.S. 

Department of Labor, Kansas City, Missouri, for 

Secretary of Labor. 

Before: Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The above proceedings were consolidated by a bench order of Judge 

Cook on August 12-, 1981. They involve a contest of a citation issued 

August 27, 1980 and a civil penalty proceeding seeking penalties for the 

violation charged in the contested c'itation and two other citations. 

Pursuant to notice, the case was called for hearing by Judge Cook in 

Green River, Wyoming on August 12, 1981. The parties submitted a 

stipulation of fact on the record and agreed to certain exhibits being 

introduced. The case was submitted for decision on the basis of the 

stipulation and exhibits. Both parties have filed posthearing briefs. 

Judge Cook left the Commission before he could issue a decision, and 

the parties have agreed that I may decide -the cases on the basis of the 

stipulation and exhibits submitted before Judge Cook and the contentions 

of the parties in their posthearing briefs. 

477 
APPLICABLE REGULATIONS 

1. 30 C.F.R. § 57.9-1 provides: Self-propelled equipment that 

is to be used during a shift shall be inspected by the equipment 

operator before being placed in operation. Equipment defects affecting safety shall be reported to, and recorded by the mine operator 

* * * 

2. 30 C.F.R. § 57.9-3 provides: Powered mobile equipment shall 

be provided with adequate brakes. 

3. 30 C.F.R. § 57.9-37 provides: Mobile equipment shall not be 

left unattended unless the brakes are set. Mobile equipment with 

wheels or tracks, when parked on a grade, shall be either blocked or 

turned into a bank or rib; and the bucket or blade lowered to the 

ground to prevent movement. 

FINDINGS OF FACT 

1. ·The FMC Corporation (FMC) is the operator of a large underground mine in Sweetwater County, Wyoming, known as the FMC Mine. 

2. The subject mine produces trona and its products enter 

interstate commerce and its operation affects interstate commerce. 

3. For all FMC mines, a total of 2,660,064 man hours are worked 

annually; for the subject mine, a total of 2,624,064 man hours are 

worked annually. 

4. The subject mine had 245 paid violations of mandatory health 

and ~afety standards between August 14, 1978 and August 13, 1980. 

Twenty-nine of these violations involved the standards in 30 C.F.R. 

§ 57.9; none involved violations of 57.9-1; two involved violations of 

57.9-3; two involved violations of 57.9-37. In addition, I take notice 

of a violation of 57.9-37 occurring on August 9, 1980 (for whiCh, 

however, the citation was not issued until August 13, 1980) which is 

the subject of a separate.proceeding, Docket No. WEST 81-259-M. I 

conclude that this history is moderate in view of the size of the mine 

and penalties otherwise appropriate should not be increased because of 

it. 

5. The parties have stipulated that penalties assessed in the 

proceeding will not affect FMC's ability to continue in business. 

6. All of the citations involved in this proceeding were abated 

in good faith. 

478 
7. On August 12, 1980, John Nordgran, an employee of FMC, operated 

a lube truck in the subject mine. 

8. The running brake and the parking brake on the lube truck were 

not operating properly on August 12, 1980: the parking brake wear 

surface was worn out on one side and covered with grease and oil on 

the other. The wheel brakes were substantially worn. The brakes were 

caked with trona which can cause or contribute to brake failure. 

Washing stations were available throughout the mine for washing trona 

accumulations from brakes on vehicles. 

9. FMC posted a notice on the lube truck in question which read: 

ATTENTION OPERATOR WILL MAKE DAILY PRE-SHIFT EXAMINATION OF EQUIPMENT 

TO BE USED. (Tires, Brakes, Ground Trip, Dust Control System, Cables, 

Controls, etc.). REPORT Ai'IT EQUIPMENT DEFECTS AFFECTING SAFETY 

IMMEDIATELY TO YOUR FOREMAN OR SUPERVISOR. 

10. FMC enforces the requirement for preshift inspections 

pursuant to its labor agreement. 

11. Lube truck operator Nordgran knew on August 12, 1980 that 

the brakes on his vehicle were inadequate. He did not report this 

fact to his supervisor. The condition of the brakes was not known to 

FMC. 

12. On August 12, 1980, Nordgran performed his normal duties of 

lubricating mine equipment beginning at 4:00 p.m. At about 9:30 p.m. 

he drove his truck to the Number 11 drill in No. 7 room, No. 3 crosscut 

intersection in the subject mine to lubricate the drill. 

13. Nordgran parked his lube truck on a slight incline sloping 

down toward the drill. He did not set the parking brake and he did 

not block the wheels nor was the vehicle turned into a rib. 

14. No blocks or chocks were provided on the lube truck in 

question. 

15. FMC has policies and regulations requiring mobile equipment 

operators to block or turn a vehicle into a rib when parked on a 

grade and to set the brakes of the vehicle when unattended. 

16. The policies above described were enforced through disciplinary actions pursuant to the Labor Relations Agreement between FMC and 

the union representing the employees. 

17. There was no record that Mr. Nordgran required close supervision or that he had previously violated safety regulations of FMC. 

479 
13. While Nordgran was lubricating the drill referred to in. 

Finding of Fact No. 12, the lube truck rolled toward him and he was 

struck and pinned between the truck and the drill. Nordgran sustained 

two broken toes and contusions to his right leg. 

19. There were no supervisory personnel in the area at the time 

of the injury and the failure of Nordgran to block the truck or turn 

it into a rib was not known to FMC. 

20. The inadequate brakes contributed to the accident involving 

Nordgran. 

21. On August 14, 1980, Federal Mine Inspector Robert 

Kinterknecht issued Citation No. 576909 alleging a violation on 

August 12, 1980 of 30 C.F.R. § 57.9-37 because the lube truck in 

question was parked on a grade of about one percent without being 

blocked or turned into a rib. The inspector issued Citation 

No. 576910 on the same day charging a violation of 30 C.F.R. § 57.9-3 

because adequate brakes were not provided on the lube truck. 

22. On August 27, 1980, Inspector Kinterknecht issued Citation 

No. 576918 charging a violation of 30 C.F.R. § 57.9-1 because the 

employee involved stated he haq not reported the inadequate brakes to 

his supervisor but continued to operate the vehicle. 

ISSUES 

1. Did FMC violate the mandatory standards charged in the 

citations? 

2. If it did, what is the appropriate penalty for each violation? 

CONCLUSIONS OF LAW 

1. On August 12, 1980, an FMC employee left the mobile equipment 

he was operating unattended without· setting the brakes. He parked the 

vehicle on a grade without blocking it or turning it into a bank or 

rib. This constituted a violation of 30 C.F.R. § 57.9-37. 

2. The violation directly resulted in an injury to a miner. I 

conclude that the violation was serious even though the injury was to 

a miner whose misconduct contributed to the violation. I .do not believe 

that fact lessens the seriousness of the violation. This proceeding 

is not a private action for damages, but the enforcement of a public 

policy to bring a greater degree of safety to the nation's mines. 

480 
3. The parties have stipulated that FMC had and enforced 

policies requiring the blocking of a truck parked on a grade or 

turning the vehicle into a rib. However, blocks were not provided for 

the vehicle in question. The driver stated that he did not block 

the truck because it was too much bother for him to find blocks. The 

vehicle was nor~ally used to service equipment in various parts of the 

mine, and when service was performed, it would be parked. Under the 

Gircumstances, a prudent mine operator would provide blocks for such 

a vehicle. I conclude that FMC was negligent in failing to provide 

blocks for the vehicle in question. 

4. The parties have agreed that on August 12, 1980, the lube 

truck in question did not have adequate brakes. This constitutes a 

violation of 30 C.F.R. § 57.9-3. 

5. The violation (inadequate brakes) contributed to the injury 

which occurred on August 12, 1980. Inadequate brakes on a vehicle 

used in an underground mine is self-evidently a serious safety hazard. 

I conclude that the violation was serious. 

6. FMC argues that the inadequate condition of the brakes was 

solely caused by the.failure of the vehicle driver to remove the caked 

trona dust from them and to report the condition of the brakes to his 

supervisor. However, the stipulated facts show that the parking brake 

wear surface was "worn out on one side and covered with grease and 

oil on the other wear surface. The wheel brakes were substantially 

worn." The caking of trona dust on the brake surfaces provided an 

additional inadequacy. However, the brakes were clearly inadequate 

without reference to the trona caking and had obviously been inadequate 

for some time. I conclude that FMC should have known of the inadequate 

brakes and was negligent for failing to have them repaired. 

7. The parties have stipulated that the operator of the lube 

truck did not report the inadequate brakes on his vehicle - an 

equipment defect affecting safety - to the operator, and that it was 

not recorded by the operator. This constitutes a violation of 30 C.F.R. 

§ 57. 9-1. 

8. The failure to report a safety defect is a serious matter, 

but in this case I conclude that the seriousness of the violation is 

merged in the violation of 30 C.F.R. § 57.9-3. That is, the operating 

of the vehicle without adequate brakes was the serious violation. The 

failure to report it, I conclude was nonserious. 

9. There is no indication in the record that FMC knew or had 

reason to have known of the violation. I conclude that the violation 

was not caused by FMC's negligence. 

481 
ORDER 

IT IS ORDERED that the contest of Citation No. 576918 is DENIED 

and the citation is AFFrRMED. 

IT IS FURTHER ORDERED that the FMC Corporation, Respondent in 

the civil penalty proceeding, shall, within 30 days of the date of 

this decision, pay the following civil penalties for the violations 

found herein to have occurred: 

Citation 

576909 

576910 

576918 

30 C.F.R. 

Standard 

57.9-37 

57.9-3 

57.9-1 

Total 

Penalty 

$ 500 

500 

40 

$1,040 

J

// tiHL£5 .~/11-vdcfi.-t t/lt_ 

James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

John A. Snow, Esq., Van Cott, Bagley~ Cornwall & McCarthy, Suite 1600, 

50 South Main Street, Salt Lake City, UT 84144 

James R. Cato, Esq., Office of the Solicitor, U.S. Department of Labor, 

911 Walnut Street, Room 2106, Kansas City, MO 64106 

482 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

11AR 151982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Complaint of Discharge, 

Discrimination, or Interference 

on behalf of THOMAS H. MAY, 

Complainant 

v. 

EASTERN COAL CORPORATION, 

Respondent 

Docket No. KENT 81-216-D 

ORDER GRANTING MOTION TO WITHDRAW 

Counsel for the Secretary of Labor filed on March 8, 1982, in the 

above-entitled proceeding a motion to withdraw the complaint filed on 

behalf of Mr. Thomas H. May because the Secretary has found that no violation of section 105(c)(l) of the Federal Mine Safety and Health Act of 

1977 occurred. Paragraph 6 of the complaint filed in Docket No. KENT 

81-216-D alleged that respondent had refused to hire Mr. May "* * * because he was the subject of a medical evaluation in that his pre-employment 

chest X-ray revealed evidence of pneumoconiosis." The motion to withdraw 

states that it has now been determined that Mr. May was not at any time 

the "*. * * subject of medical evaluations and potential transfer under a 

standard published pursuant to section 101" of the Act. The motion, 

therefore, concludes that the statutory prerequisite, that is, the existence of a protected activity required in order to establish a violation 

of section 105(c)(l), does not exist. 

The motion further states that Mr. May has been advised of the aforesaid finding and that he has been told that he may file a complaint with 

the Commission within 30 days after he receives notification of the fact 

that the Secretary has found that no violation of section 105(c)(l) has 

occurred. The motion to withdraw requests t.hat the motion be granted with 

the understanding that Mr. May will have 30 days from the time he receives 

the order granting the motion to file his own complaint with the Commission pursuant to section 105(c)(3) of the Act. 

Section 105(c)(3) of the Act provides, in pertinent part, as follows: 

(3) Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in writing, 

the miner, applicant for employment, or representative of 

miners of his determination whether a violation has occurred. 

If the Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, the 

complainant shall have the right, within 30 days of notice 

of the Secretary's determination, to file an action in his 

own behalf before the Commission, charging discrimination or 

interference in violation of paragraph (1). * * * 

483 
The Act does not specifically cover a situation, such as. this, in which 

the Secretary has reversed his original belief that a violation did occur 

to a finding that a violation of section 105(c)(l) did not occur. The 

Secretary cannot be forced to pursue an action before the Commission after 

further review of the facts convinces him that his original finding of a 

violation was in error. Therefore, I find that the motion to withdraw 

should be granted with the understanding that Mr. May has a period of 30 · 

days after receipt of this order within which to file a complaint in his 

own behalf under section 105(c)(3) of the Act. 

The answer to the complaint raises some legal issues which will be 

difficult for a non-lawyer to understand and oppose either with an evidentiary presentation or with countervailing legal arguments. The certificates of service show that a copy of the complaint, a copy of respondent's 

answer to the complaint, and a copy of the motion to withdraw the complaint were sent to Mr. May. I strongly recommend that Mr. May take the 

three aforementioned documents to an attorney and seek legal advice in 

determining whether he should file a complaint under section 105(c)(3) 

and, if so, how he should frame the allegations which would constitute the 

basis for his argument that a violation of section 105(c)(l) of the Act 

has occurred. 

Nearly all complainants who file their own complaints under section 

105(c)(3) do so under the mistaken impression that they are filing an 

appeal of the Secretary's finding that no violation occurred. Most complainants also assume that the Commission operates just like MSHA in that 

they think the Commission has investigators who interview respondent's 

employees and officials for the purpose of gathering information to support the Commission's findings. I should note, first of all, that the 

Commission is not a branch of the Department of Labor. Therefore, we do 

not have in our files copies of the data gathered by MSHA's investigators 

and the Commission does not have investigators. When a complaint is filed 

with the Commission, it is assigned to an administrative law judge who 

holds a hearing at which the complainant has the burden of proving that a 

violation of section 105(c)(l) occurred. The proof is normally presented 

through witnesses under oath who will be subject to cross-examination by 

counsel for respondent. Respondent will have the opportunity of presenting 

witnesses to testify in opposition to any statements made by complainant 

and his witnesses. Both the complainant and respondent will also be permitted to introduce documentary evidence when it is properly supported 

by witnesses who can attest to its authenticity. 

After the judge assigned to the case has heard any arguments which 

either party wishes to offer, he will study the testimony· and documentary 

evidence and make findings of fact. Based on his findings of fact, he 

will determine whether a violation of section 105(c)(l) has been proven 

by complainant. 

I have pointed out the way complaints are handled so that Mr. May 

can determine for himself whether he should try to proceed in a case as 

484 
complicated as his without first securing an attorney to repr~sent him. 

It should also be noted that if Mr. May wins his case, respondent will be 

ordered to reimburse Mr. May for legal expenses, but if Mr. May loses his 

case, he will be liable personally to pay all expenses associated with 

filing the complaint and presenting·evidence in support of the complaint 

when the case is eventually scheduled for hearing. 

WHEREFORE, for the reasons given above, it is ordered: 

(A) The Secretary of Labor's motion to withdraw the complaint is 

granted, the complaint is deemed to have been withdrawn, and the proceedings in Docket No.· KENT 81-216-D are dismissed. 

(B) If he so desires, Mr. Thomas H. May has a period of 30 days 

from receipt of this order to file a complaint in his own behalf under 

section 105(c)(3) of the Act. 

Distribution: 

~ rJ. ~$/!~ Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Darryl A. Stewart, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Mr. Thomas H. May, Route 1, Box 39, Huddy, KY 41553 (Certified 

Mail) 

Thomas C. Means, Esq., Attorney for Eastern Coal Corporation, 

Crowell & Moring, 1100 Connecticut Avenue, NW, Washington, DC 20036 

(Certified Mail) 

485 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, DOCKET NO. WEST 79-39 

v. A/O No. 42-01202-03011 

PRICE RIVER COAL COMPANY, 

BRAZTAH CORPORATION, 

successor 

Respondent. 

to,) 

) 

) 

) 

) ~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

MINE: Braztah 

Phyllis K. Caldwell, Esq., Office of Henry C. Mahlman, 

Regional Solicitor, United States Department of Labor, 

Denver, Colorado 

For the Petitioner 

Stanley V. Litizzette, Esq., Price River Coal Company, 

Helper, Utah 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

5 

The Secretary of Labor, on behalf of the Federal Mine Safety and 

Health Administration (MSHA), charges respondent Price River Coal Company, 

successor in interest to Braztah Corporation, with violating the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. 801 ~seq. 

Petitioner issued his citation number 9945672 under the authority of 

Section 104(f) of the Act alleging that Braztah violated Title 30, Code of 

Federal Regulations § 70.lOOB. 

The cited standard provides as follows: 

Subpart B - Dust Standards 

§ 70.100 Dust standards; respirable dust. (b) Effective 

December 30, 1972, each operator shall continuously maintain 

the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings of such mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air. 

486 
The Secretary proposes a civil penalty of $240 for this violation. 

ISSUES 

The issues are whether Price violated the standard and, if it did, 

what penalty is appropriate. 

SUMMARY OF THE EVIDENCE 

The evidence, which is uncontroverted, shows that the citation here 

was issued by MSHA inspector Al Gray on the basis of an analysis generated 

by a computer printout (Tr. 4). Ten samples, which were submitted by 

respondent to MSHA, show accumulated respirable dust totals of 21.3 

milligrams. Within limits MSHA deems that a violation occurs at 20.9 

milligrams (Tr. 5). 

The citation issued to respondent cites as violative of the Act the 

following condition: 

The concentration of respirable dust in section 030-0 

is above the 20 milligram limit. Based on the results ·of 

10 samples collected by the company's sampling program, the 

cumulative total is 21.3 milligrams for an average of 2.1 

milligrams per cubic meter of air. See attached computer 

printout dated 11/20/70. Respirable dust samples shall be 

collected from the working environment of the high-risk 

occupation in section 030-0 on all production shifts and 

continued until compliance is attained. Approved respiratory 

equipment shall be made available to all persons working in 

the area (Exhibit P-1). 

The potential health hazard of contracting pneumoconiosis arises .from 

prolonged exposure to respirable dust (Tr. 5, 15). Four miners were 

exposed (Tr. 15-16). 

DISCUSSION 

The Commission has ruled that the respirable dust standard is 

enforceable. Alabama By-Products Corporation 2 FMSHRC 2760 (October 

1980). Further, the foregoing facts establish a violation of the 

standard. 

Respondent offered no evidence but contends that the government cannot 

prevail such it failed introduce an essential part of its case (Tr. 27). 

Respondent did not identify the "essential part" of MSHA's case but I 

assume respondent refers to the failure of MSHA to introduce the computer 

printout. 

487 
I find no merit in this contention. Respondent could have, but did 

not, move that the printout be produced. Further, respondent apparently 

had the computer printout in its possession. The citation reads in part: 

"See attached computer printout" (Exhibit pl). The citation should be 

affirmed. 

CIVIL PENALTY 

Section llO(i) of the Act [30 U.S.C. 820(i)] contains the statutory 

criteria for ass~ssing a civil penalty. 

In considering that criteria in the light of the facts presented here 

I deem that the proposed penalty of $240 is appropriate. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

Citation 9945672 and the proposed penalty therefor are AFFIRMED. 

Distribution: 

Phyllis K. Caldwell, Esq. 

Office -0f the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Stanley V. Litizzette, Esq. 

178 South Main Street 

Helper, Utah 84526 

Law Judge 

488 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

MAR 161982 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

v. 

PRICE RIVER COAL COMPANY, 

successor to 

BRAZTAH CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Phyllis K. Caldwell, Esq., 

DOCKET NO. WEST 79-59 

A/C No. 42-00165-03016 

MINE: Braztah No. 3 

Office of Henry C. Mahlman, Regional Solicitor, 

United States Department of Labor, 

Denver, Colorado ' 

For the Petitioner 

Stanley V. Litizzette, Esq., 

Price River Coal Company, 

Helper, Utah 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor on behalf of the Federal Mine Safety and Health 

Administration, (MSHA), charges respondent Price River Coal Company, 

successor in interest to Braztah Corporation, with violating a safety 

regulation adopted under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. 801 ~seq. 

Citation 247212 alleges a violation of 30 C.F.R. 75.400. The 

regulation provides as follows: 

§ 75.499 Accumulation of combustible materials. 

(Statutory Provision) 

Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials 

shall be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein. 

A penalty of $225 is proposed for the foregoing violation. 

489 
Citation 247213 alleges a violation of 30 C.F.R. 75.316. The 

regulation provides as follows: 

§ 75.316 Ventilation system and methane and dust 

control plan. 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions and 

the mining system of the coal mine and approved by the 

Secretary shall be adopted.by the operator and set out in 

printed form on or before June 28, 1970. The plan shall 

show the type and location of mechanical ventilation 

equipment installed and operated in the mine, such 

additional or improved equipment as the Secretary may 

require, the quantity and velocity of air reaching each 

working face, and such other information as the Secretary 

may require. Such plan shall be reviewed by the operator 

and the Secretary at least every 6 months. 

A penalty of $130 is proposed for this violation. 

ISSUES 

The threshold issue is whether the proposal to assess penalties should 

be dismissed for late filing; if not, a further issue is whether respondent 

violated the regulations and, if so, what penalty is appropriate. 

LATE FILING OF PROPOSED PENALTIES 

The threshold issue determinative of this case is whether the proposed 

penalties should be vacated due to the late filing by petitioner of his 

proposal for penalties. 

The record shows that respondent was cited on December 20, 1978 for 

the alleged violations of the regulations. On November 5, 1979 petitioner 

filed his proposal for penalties together with a motion for the Commission 

to accept such late filing. In support of his motion petitioner recited 

that he had a high volume of case workload; further, he had lacked clerical 

personnel since mid-September, 1979. 

Respondent opposed the motion for late filing and renewed the 

objection at trial (Tr. 3). In its written motion in opposition Respondent states that its key witness, Stewart Jones, on whom the initial 

citation was served, had resigned his position with the company and his 

present whereabouts were unknown. 

On January 4, 1980 an order was entered accepting the late filing. 

Respondent's objection were overruled but it was indicated that respondent 

could offer evidence of prejudice at the hearing on the merits. The 

hearing took place in Salt Lake City, Utah on March 19, 1981. 

In Salt Lake County Road Department 3 FMSHRC 1714 (July 1981) the 

Commission considered the effect of the Secretary in failing to comply 

490 
with 29 C.F.R. § 2700.27.J:./ Basically, the Connnission directs that any 

late filing by the Secretary must be based on adequate cause. In addition, 

an operato~ may object to a late penalty proposal on the grounds of 

prejudice. 

At the hearing the evidence showed that during the inspection company 

representative Stewart Jones accompanied MSHA inspector Ted Coughman (Tr. 

9, 10). At some point Jones called John Presett, a company safety 

inspector (Tr. 20, 24). Presett knew the area of the west belt drive had 

been rock dusted and he went to that location but he didn't walk the cited 

area (Tr. 25-28). 

At the hearing John O'Greene, the director of safety for respondent, 

testified he did not know of Jones' whereabouts (Tr. 40). 

DISCUSSION 

On the authority of Salt Lake County Road Department, supra, respondent's motion to dismiss is sustained. 

Other than to refer to his high volume of cases the Secretary offers 

no explanation for his failure to file his proposal for penalty from the 

time the notice of contest was received until his clerical personnel 

problems arose in mid-September, 1979. 

I further find that the absence of a key witness, Stewart Jones, 

prejudiced respondent's case. I do not consider that the two page hand 

written statements of Stewart Jones received in evidence alleviates the 

prejudice to respondent's defense (Exhibit Rl). 

For the foregoing reason I enter the following 

ORDER 

Citations 247212 and 247213 and all proposed penalties therefor are 

VACATED. 

1/ The Connnission regulation pertaining to filing provides as follows: 

§ 2700.27 Proposal for a penalty. 

(a) When to file. Within 45 days of receipt of a timely 

notice of contest of a notification of proposed assessment of 

penalty, the Secretary shall file a proposal for a penalty with 

the Connnission. 

491 
Distribution: 

Phyllis K. Caldwell, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

S. V. Litizzette, Esq. 

Price River Coal Company 

178 South Main Street 

Helper, Utah 84526 

492 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

PRICE RIVER COAL COMPANY, 

successor to 

BRAZTAH CORPORATION, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) ~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Phyllis K. Caldwell, Esq., 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-366 

A/C No. 42-01202-03019 

MINE: Braztah No. 5 

Office of Henry C. Mahlman, Regional Solicitor, 

United States Department of Labor, 

Denver, Colorado 

For the Petitioner 

Stanley V. Litizzette, Esq., 

Price River Coal Company, 

Helper, Utah 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Federal Mine Safety and 

Health Administration, (MSHA), charges respondent Price River Coal Company, 

successor in interest to Braztah Corporation, with violating a safety 

regulation 1../ adopted under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. 801 ~seq. Respondent denies the violation 

occurred. 

1/ The cited regulation, 30 C.F.R. 77.1104 provides as follows: 

§ 77.1104 Accumulations of combustible materials. 

Combustible materials, grease, lubricants, paints, or fla11Unable 

liquids shall not be allowed to accumulate where they can create a fire 

hazard. 

493 
After notice to the parties a hearing on the merits was held on March 

19, 1981 in Salt Lake City, Utah. The parties waived the filing of post 

trial briefs. 

ISSUES 

The issues are whether the citation was vague, whether Price violated 

the regulation and, if so, what penalty, is appropriate. 

SUMMARY OF THE EVIDENCE 

On June 12, 1979, MSHA's duly authorized representative Blake Hanna 

and Braztah safety manager John Tatton, inspected the mine (Tr. 11, 13, 82, 

83). 

Over a period of time coal dust, the consistency of sand, had 

accumulated two to six inches deep along the full 1200 foot length of the 

#4 belt conveyor. The 42 inch wide conveyor was touching the pile for 

about 12 feet (Tr. 13, 14, 19-23, 28, Pl, P2). 

A pile of coal dust, estimated to weigh 10 tons, was located 33 to 60 

feet from the mine fan (Tr. 45, 58, Pl, P2). 

Dry tumble weeds, brush and small pieces of paper were under a nearby. 

bridge (Tr. 27, P2). 

Oil cans, weeds, and grease cartridges littered the area (Tr. 18, 19, 

41, Pl, P2). 

Ignition sources included possible spontaneous combustion from the 

accumulated coal dust, a nearby battery charging station, a welder, and 

electrical boxes (Tr. 17, 22-23, 28-29, 42, Pl). 

DISCUSSION 

Respondent contends that the citation is vague (Tr. 10, 107). The 

citation issued on the day on the inspection recites that Section 77.1104 

was violated and it further reads as follows: 

The operating number 4 surface belt had accumulations 

of fine dry coal dust and other combustible materials, 

from the number 4 portal to the tailpiece (amended to 

headpiece, Tr. 7), a distance ·of about 1200 feet. 

The fine dry coal dust was from 2" to 6" deep under the 

belt. A pile of loose coal (about 10 tons) was stored 

within 60 feet of the mine fan. Dry weeds, wood, paper, 

and empty oil cans were scattered throughout most of the 

area surrounding the belt. 

Section 104(a) of the Act requires, in part, that a citation be in 

writing and "shall describe with particularity the nature of the 

violation." In this case the company safety inspector had no difficulty in 

starting to abate the violative conditions. In fact, the next morning when 

a closure order was issued Tatton told the inspector he didn't know why the 

494 
work wasn't finished (Tr. 88). I find no merit to respondent's argument. 

Cf Jim Walter Resources, Inc., 1 FMSHRC 1827 (November, 1979). 

CIVIL PENALTY 

Section llO(i) of the Act [30 U.S.C. 820(i)] provides as follows: 

The Connnission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the 

CoDDilission shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in bu~iness, the gravity of the violation, 

and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

The parties stipulated that Price employes 870 miners and this 

particular mine produces 2400 tons of coal a day (Tr. 5). 

The gravity is severe. I consider the negligence of respondent to be 

relatively high although in its favor is the fact that it did abate the 

violative conditions. 

Considering the statutory criteria I am unwilling to disturb the proposed civil penalty of $395. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following 

ORDER 

Citation 789593 and the proposed civil penalty therefor are AFFIRMED. 

Distribution: 

Phyllis K. Caldwell, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Stanley V. Litizzette, Esq. 

Price River Coal Company 

178 South Main Street 

Helper, Utah. 84526 

Judge 

495 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FMC CORPORATION, 

Contestant 

v .. 

SECRETARY OF LABOR,. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

"SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FMC CORPORATION, 

Respondent 

Application for Review 

Docket No. WEST 81-169-RM 

Citation/Order No. 577094; 1/6/81 

FMC Mine 

Civil Penalty Proceeding 

Docket No. WEST 81-278-H 

A.O. No. 48-00152-05044 B 

FMC Mine 

DECISION 

Appearances: John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

P.C., Salt Lake City, Utah, for FMC Corporation; 

Before: 

James R. Cato, Esq., Office of the Solicitor, U.S. 

Department of Labor, Kansas City, Missouri, for 

Secretary of Labor. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The above proceedings were consolidated by an order of Judge John F. 

Cook for hearing and for the purpose of this decision. FMC Corporation 

filed an Application for Review and ~fotice of Contest of an order/ 

citation issued under section 107(a) and 104(a) of the Federal. ~ine 

Safety and Health Act. The order charged that an inuninent danger 

existed and the citation alleged three violations of mandatory safety 

standards. The Secretary filed a civil penalty proceeding seeking 

penalties for the alleged violations. Pursuant to notice, the cases 

were heard before Judge Cook on August 13, 1981 in Green River, Wyoming. 

Judge Cook left the Commission before he could issue a decision, and the 

496 
parties have agreed that I may decide the cases on the basis of the 

transcript of the hearing and the exhibits introduced before Judge 

Cook, and the contentions of the parties in their posthearing briefs. 

Federal Mine Inspector Merrill Wolford testified on behalf of the 

Secretary; Steven M. Simpson, Darrel R. Nystrom, Ted K. Walker and 

Karl D. Christensen testified on behalf of FMC. On the basis of the 

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

the following decision: 

STATUTORY PROVISIONS 

1. Section 107(a) of the Act provides in part: 

If, upon any inspection or investigation of a coal 

or other mine which is subject to the Act, an authorized 

representative of the Secretary finds that an imminent 

danger exists, [he] ••• shall ••• issue an order 

requiring the operator ••• to cause all persons, 

exce~t those persons referred to in section 104(c)., to be 

withdrawn from, and to be prohibited from entering' 

[the area of danger] •••• 

2. Section 3(j) of the Act provides: "'imminent danger' means the 

existence of any condition or practice in a coal or other mine, which 

could reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated." 

REGULATORY PROVISIONS 

L 30 C.F.R. § 57.9-3 provides: "Powered mobile equipment shall 

be provided with adequate brakes." 

2. 30 C.F.R. § 57.4-24(c) provides: "Fire extinguishers and 

fire suppression devices shall be: * * * replaced with a fully charged 

extinguisher or device, or recharged immediately, after any discharge 

is made from the extinguisher or device." 

3. 30 C.F.R. § 57.9-2 provides: "Equipment defects affecting 

safety shall be corrected before the equipment is used." 

FINDINGS OF FACT 

1. The FMC Corporation (FMC) is the operator of a large mine in 

Sweetwater County, Wyoming known as the FMC Mine. 

2. The operation of FMC's mine affects interstate commerce. 

497 
3. For all FMC mines, a total of 2,660,064 man hours are worked 

annually; for the subject mine, a total of 2,624,064 man hours are 

worked annually. 

4. The subject mine had a total of 254 paid violations of 

mandatory standards between January.6, 1979 and January 5, 1981. 

Thirty-two of these violations involved the standards in 30 C.F.R. 

§ 57.9; 12 involved violations of 57.9-2; two involved violations of 

57.9-3. Eighteen involved the standards in 30 C.F.R. § 57.4, four of 

which involved violations of 57.4-24. I conclude that the history is 

moderate in view of the size of the mine, and penalties otherwise 

appropriate will not be increased because of it. 

5. The parties have stipulated that any penalties assessed in 

this proceeding will not affect FMC's ability to continue in busi~ess. 

6. The violations alleged in the order/citation involved herein 

were abated in good faith. 

7. On January 6, 1981, at about 10:00 a.m., Darrel Nystrom, a 

mechanic employed by FMC, drove the No. 7 Size Brute mantrip an unknown 

distance to the 3 shaft warehouse in the mine to pick up some parts. 

Earlier that morning, Steven M. Simpson, also a mechanic at FMC, drove 

the same vehicle a distance of about 1 mile underground to the place 

where Nystrom obtained it. Both men made a general inspection of the· 

vehicle before driving it including the brake pedal. Simpson noticed 

that the leaf spring was disconnected from the shackle. Neither found 

any difficulty with the brakes, either before or during their operation 

of the vehicle. 

8. On January 6, 1981, Federal Mine Inspector Herrill Holford 

conducted a regular inspection of the subject mine. He saw the No. 7 

Sign Brute Mantrip being driven up to the shop area, so he inspected 

it. 

9. On January 6, 1981, the front brake lining on the subject 

vehicle was broken off and hanging down underneath the vehicle. The 

line had been flattened and doubled to seal it off and prev.ent the 

fluid from braking. This rendered the front wheel brakes of the 

vehicle inoperative. The real-wheel brakes were operative at this 

time. 

10. On January 6, 1981, the battery behind the passenger seat in 

the subject vehicle had exposed, uncovered connectors and had a hole 

of undetermined size in the top of it. 

11. On January 6, 1931, the fire extinguisher on the vehicle was 

completely discharged. 

498 
12. On January 6, 1981, the front spring was separated from the 

shackle because of a missing bolt. 

13. On January 6, 1981, Inspector Wolford issued a combined order 

and citation in which he f oun<il that the condition of the vehicle constituted an imminent danger and ordered it remaved from service until 

repaired. He also cited FMC for three alleged violations of mandatory 

safety standards. 

14. The vehicle in question was ordinarily lilOt driven at a speed 

in excess of 10 miles per hour. The rear wheel brakes are capable of 

stopping the vehicle under normal circumstances, but the braking 

capacity of 'the vehicle was diminished by the absence o.f the frontwheel brakes. 

15. The condition of the brakes was evident and should have been 

known to FMC. 

16. The condition of the spring skackle could affect the driver's 

ability to steer and stop the vehicle. It was an equipment defect 

affecting safety. 

17. The hole in the battery could have caused an injury by 

permitting acid to be splashed on a passenger in the mantrip. However, 

the hole was very small and .the battery out of the way of passengers 

so the likelihood was injury was small. This was an e~uipment defect 

affecting safety. 

13. The conditions described in Findings 16 and 17 were evident 

and should have been known to FMC. 

19. The discharged fire extinguisher an the vehicle was evident 

and should have been known to FMC. 

ISSUES 

1. Did the condition of the No. 7 Sign Brute Mantrip in the 

subject mine on January 6, 1981, constitute an imminent daRger? 

2. Did the vehicle in q~estion have a8equate brakes o-n January 6, 

1981? 

· 3. If a violation of 30 C.F.R. § 57.9-3 is found, what is the 

appropriate penalty? 

4. Did the condition of the battery and the spring shackle on 

the subject .vehicle on January 6, 1981, constitute equipment defects 

affecting safety? 

49-9 
5. If a violation of 30 C.F.R. § 57.9-2 is found, what is the 

appropriate penalty? 

6. What is the appropriate penalty for the violation of 30 C.F.R. 

§ 57.4-24? 

CONCLUSIONS OF LAW 

1. Imminent Danger 

The imminent danger withdrawal order by its terms resulted from 

all of the cited conditions. However, the inspector testified that 

neither the condition of the battery nor the condition of the fire 

extinguisher was by·itself an imminent danger, and there is no evidence 

that either of these conditions was related to or exacerbated the 

conditions caused by the brakes or spring shackle. Ultimately, I conclude, the existence vel non of an imminent danger depends upon the 

condition of the brakes, and possibly the extent to which that condition may have been exacerbated by the condition of the spring shackle. 

Typically, an imminent danger withdrawal order involves a general 

condition of the mine: float dust, gas, a roof condition. See 

Old Ben Coal Corporation v. Interior Board, 525 F.2d 25 (7th Cir. 1975); 

Freeman Coal Mining Company v. Interior Board, 504 2d 741 (7th Cir. 

1974); Cyprus Industrial Mineral Corp. v. Secretary of Labor, 1 FMSHRC 

2069 (1978). Of course, an item of equipment can cause an imminent 

danger where its condition may threaten an explosion or fire. Further, 

a vehicle without any brakes could be an imminent danger - to its 

occupants and to others in the mine. The condition found here is a 

closer question. It seems reasonable to conclude that a vehicle 

equipped with four wheel brakes has diminished stopping power if its 

front brakes are inoperative. But the vehicle normally is operated at 

10 miles per hour or less. It was driven prior to the order by two 

operators a total of more than a mile and no difficulty in stopping 

was encountered. After issuing the order, the inspector permitted FMC 

to move the vehicle which argues against a finding of imminent danger. 

I conclude that the condition of the vehicle in question was not such 

as could reasonably be expected to cause death or serious physical 

harm before the condition could be abated. 

UNWARRA.."t\l'TABLE FAILURE 

No order or citation was issued under section 104(d)(l) of the 

Act for an unwarrantable failure violation. The Secretary argues that 

if the condition of the vehicle did not constitute an imminent danger, 

it was an unwarrantable failure violation under section 104(.d)(l). 

Since FMC was not charged with an unwarrantable failure violation, I 

conclude that this question is not before me in these proceedings, and 

I do not r·ule on it. 

50(} 
ADEQUATE BRAKES 

I conclude that a vehicle equipped with front and rear wheel 

brakes does not· have "adequate" brakes within the meaning of that term 

in 30 C.F.R. § 57.9-3 when the front brakes are inoperative. Since the 

front brakes supply more than 50 percent of the stopping power, the 

vi0lation of the standard was serious. The condition was obvious to 

visual inspection and therefore the violation was due to the negligence 

of FMC. 

EQUIPMENT DEFECTS 

The condition.of the spring shackle and the condition of the 

battery were defects affecting safety. Therefore, a violation of 

30 C.F.R. § 57.9-2 was shown. Each of the conditions was moderately 

serious since either could have resulted in injury. Both were due to 

FHC's negligence. 

FIRE EXTINGUISHER 

FMC has conceded that the discharged fire extinguisher constituted 

a violation of 30 C.F.R. § 57.4-24(c). The condition was moderately 

serious even though there is no specific requirement that a fire 

extinguisher be on the vehicle, since in an emergency, a miner might 

rely on a functioning extinguisher being on the truck. The condition 

was long standing and caused by FMC's negligence. 

ORDER 

Based upon the above findings of fact and conclusions of law, IT 

IS ORDERED that the application for review of Order No. 577094 IS 

GRANTED and the ORDER, as an order, IS VACATED. 

IT IS FURTHER ORDERED that the Citation 577094 is AFFIRMED. 

IT IS FURTHER ORDERED that FMC Corporation shall, within 30 days 

of the. date of this order, pay the following civil penalties for 

violations found herein to have occurred. 

30 C.F.R. 

Standard 

57.9-3 

57.9-2 

57.4-24(c) 

Total 

Penalty 

$ 500 

250 

150 

$ 900 

)

C{.;HLL-:; .A15Uc1&Vl·~J/ James A. Broderick 

1.__ Administrative Law Judge 

(~ 501 
Distribution: By certified mail 

\ John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, P.C., 

Suite 1600, 50 South Main Street, Salt Lake City, UT 84144 

James R.' Cato, Esq., Office of the Solicitor U.S. Department of Labor, 

911 Walnut Street, Suite 2106, Kansas City, MO 64106 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 • t1AR 19198Z 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, ) DOCKET NO. WEST 79-165-M 

) 

v. ) ASSESSMENT CONTROL 

) 48-00155-05010 

ALLIED CHEMICAL CORPORATION, ) 

) MINE: Alchem Trana 

Respondent. ) 

) 

Appearances: 

Edward H. Fitch, Esq., Office of the Solicitor, 

United States Department of Labor, Arlington, Virginia 

For the Petitioner 

NO. 

John A. Snow, Esq., Vancott, Bagley, Cornwall and McCarthy, 

Salt Lake City, Utah 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges respondent, Allied Chemical Corporation, 

(Allied), with violating various safety regulations adopted under the 

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

Respondent denies that the violations occurred.. - --

After notice to the parties a hearing on the merits was held in Green 

River, Wyoming. 

ISSUES 

The issues are whether Allied violated the regulations and, if so, what 

penalty, is appropriate. 

503 
CITATION 336653 

This citation alleges a violation of Title 30, Code of Federal 

Regulations, Section 57.9-2 which provides as follows: 

57.9-2 Mandatory. Equipment defects affecting safety 

shall be corrected before the equipment is used •. 

FINDINGS OF FACT 

The evidence is conflicting. I find the following facts to be 

credible. 

In Allied's mine the mineral trona is sheared from the face and 

deposited on a ~hain conveyor. By other conveyors and crushers the trona 

is then moved t~ a shaft area (Tr. 36). The mining technique at this site 

features a longwall mining unit. The roof of the mine at this location is 

supported by an overhead canopy which is a portion of the longwall miner. 

The canopy is, in turn, supported by hydraulic jacks. There are probably 

180 chocks, or jacks, in the 400 feet of the longwall mine. There are six 

legs supporting the canopy at the tailgate and headgate areas (Jansen 20, 

64). " 

The cause of this litigation is a 3/4 inch soft steel bolt JJ 

either six or eight inches long which intersects the chock near the point 

where the cylinder fits into a two or three inch cup (Tr. 35, Jansen 20-21, 

38; G 27, G 29). 

The purpose of the steel bolt is to keep the chock from twisting. If 

the chock twisted it could tear up the packing (Jansen 20-21). In 

addition, hydraulic lines are wrapped around the legs. If, due to the 

twisting motion, the lines broke you would start to loose hydraulic 

pressure (Jansen 22). The bolts are of a soft steel and are designed to 

break (Jansen 24, 38). 

The citation here was issued because two bolts were missing (Tr. 111, 

231). ·MSHA inspector Walford's opinion was that this was a serious maintenance defect affecting safety (Tr. 232). Further, in Walford's view 

anything made to certain specifications should be maintained that way (Tr. 

242). 

The metal of the longwall unit weighs 50 tons and each chock can 

support 100 tons of overburden (Jansen 61, 64). As the mining for the 

trona advances the longwall miner and its chocks are pulled forward (Jansen 

64). 

1/ The bolt received in evidence was larger than the type used on the 

chocks in this case (Exhibit 18). 

504 
DID A VIOLATION OCCUR 

The vital portion of the standard in contest requires that "equipment 

defects affecting safety" shall be corrected. 

It is uncontroverted that the soft steel bolts in two different chocks 

were missing. It is clear that the steel bolts l:_/ prevent the chocks 

from twisting. By preventing the twisting the integrity of the fittings 

and their attached hydraulic lines is preserved. The absence of any bolt 

is accordingly an "equipment defect." 

The next and more difficult question is whether, within the terms of 

the regulation, the described equipment defect was one "affecting safety." 

Allied strenously argues that only its experts are credible since they 

have worked for many years with this complex machine which is the only one 

in the area and the only one in the United States not located in a coal 

mine. 

Allied also vigorously attacks the credibility of the MSHA inspectors 

due to their lack of expertise concerning any longwall miner. 

The CoI1U11ission does not blindly follow any expert witness. However, I 

am persuaded by MSHA's evidence. In view of the close issue concerning the 

respective experts I deem it necessary to set out MSHA's credible evidence 

on this point. The testimony of inspector Jacobson: you would want the 

bolt in place to prevent it from detaching itself (Tr. 47~48). A lack of 

bolts could bring about a serious failure in the equipment (Tr. 54). If 

after the machine is moved forward there wouldn't be proper support without 

the bolt (Tr. 63). If the chock fell it could fall on a person working 

under them (Tr. 63). Further, inspector Wolford testified that Allied was 

cited because the ram was out of the socket and the bolts were out (Tr. 

231-232). In Wolford's opinion this was a serious maintenance problem 

affecting safety (Tr. 232). 

I have studied Allied's contrary evidence but I am not persuaded. 

Allied's expert evidence is simply not credible. In addition,. witness 

Jansen principally focused on the stop valve in the equipment. Briefly 

stated, Jansen's uncontroverted evidence shows that if all the chocks lost 

pressure the canopy wouldn't come down because a stop valve prevents the 

hydraulic equipment from failing. In fact, if the stop valve becomes 

operative it would be necessary to go in and bleed off the equipment to 

release the canopy (Jansen 22-26). 

2/ A portion of Allied's case dealt with the evidence that the bolts did 

not, and could not, bear any of the downward pressure from the roof. I 

agree. The evidence clearly supports this view. 

505 
Allied misjudges the thrust of 30 C.F.R. 57.9-2. The standard 

requires the remedy of equipment defects "before the equipment is used." 

Allied's stop valve can only become operative after use of the equipment, 

and after a failure of the pressure in the hydraulic jacks (Tr. 54). 

Allied asserts that it cannot be held liable because the bolts were 

being replaced in the chocks. This evidence arises from the testimony of 

Bertagnolli and Jansen (Tr. 201, Jansen 10). Further, Allied asserts as a 

defense that there was no power in the longwall unit (Tr. 169). 

I am not persuaded by Allied's evidence concerning repairs. Assigning 

a mechanic to do the work and having it done are two different facets. As 

will be noted, infra, Allied produced an electrician who had been assigned 

to repair equipment and who was doing it when later events interrupted him. 

In addition, I find the testimony of MSHA inspector Wolford to be credible: 

no one claimed maintenance work was being done at the time. Further, he 

didn't recall seeing any tools lying about (Tr. 236, 237). 

The applicable law is stated in Ziegler Coal Company, 3 IMBA 336, 373 

( 1974) wherein the Interior Board held as follows: 

The presence of defective equipment in a working area 

of a mine is prima facie evidence of the violation of the 

Act; however, such evidence can be rebutted by the operator, 

and where he demonstrated by a preponderance of the evidence 

that the equipment was under repair, and had not been used, 

and was not to be operated until it met the required safety 

standards, no violation of the Act has occurred. 

Allied relies on Phelps Dodge Corp., WEST 79-67-M, 1 MSHC 2286 wherein 

Judge Merlin cites Plateau Mining Company, 2 IMBA 303 (1973), and Ziegler 

Coal Company, supra. None of the cited cases support Allied. Basically 

Allied did not demonstrate by a preponderance of the credible evidence that 

the equipment was under repair, and had not be used, and was not to be 

operated until it met the required safety standards. I note that at a CAV 

(no penalty) inspection several weeks before these citations were issued 

some 32 or 34 bolts were missing from the chocks (Tr. 38-41). 

It further follows that the mere fact there was no power in the shear 

at the time of the violation does not relieve Allied from liability for 

violating the standard. 

In sum, within the meaning of 30 C.F.R. 57.9-2, an "equipment defect" 

arises when equipment is not maintained in the manner in which it is 

received from the manufacturer. Further, on the basis of the evidence as 

stated, MSHA has proven that the equipment defect affected safety. 

506 
APPLICABILITY OF STANDARD 

An additional issue here is whether 30 C.F.R. 57.9-2 applies to 

chocks. Allied asserts that safety regulations under § 57.9 relate only to 

loading, hauling, dumping as stated in the heading at 30 C.F.R. § 57.9. 

Allied also relies on the evidence from MSHA inspector Jacobson's testimony 

that the chocks do not relate to loading, hauling and dumping. Further, 1n 

support of its position Allied cites Judge Broderick's decision in The 

Hanna Mining Co., Docket No. 79-103-M (1 MSHC 2488). 

Reliance on a heading to determine the scope and application of a 

standard is inconsistent with the usual rule of statutory construction. As 

noted by the OSHA Review Commission titles and headings are useful tools 

for resolving doubt as to the interpretation to be accorded a standard or 

regulation but they cannot be used to limit or alter the meaning of the 

text, Continental Oil Company, OSHRC Docket No. 13750 (June 1979); Wray 

Electric Contracting, Inc., 78 OSHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD 

, 23,031 (No. 76-119,1978). 

In reviewing the text I note that 30 C.F.R. § 56.1 defines the purpose 

and scope of the regulations as follows: 

§ 56.1 · Purpose and scope. 

The regulations in this part are promulgated pursuant 

to section 6 of the Federal Metal and Nonmetallic Mine 

Safety Act (30 u.s.c. 725) and prescribe health and 

safety standards for the purpose of the protection of 

life, the promotion of health and safety, and the prevention of accidents in sand (including industrial sands), 

gravel and crushed stone operations which are subject to 

that Act. Each standard which is preceded by the word 

"Mandatory" is a mandatory standard. The violation of a 

mandatory standard will subject an operator to an order 

or notice under section 8 of the Act (30 U.S.C. 727). 

Simply stated, the scope of the regulations is to prevent accidents in 

those operations which are subject to the Act. To construe the heading in 

the manner urged by Allied would conflict with the broad scope of the 

text. 

For a comparison note how the text in 30 C.F.R. 57.1 limits the 

various headings. It provides, ·in part, as follows: 

Those regulations in each subpart appearing under the 

heading "General - Surface and Underground" apply both 

to the underground and surface operations of underground 

mines; those appearing under the heading "Surface Only" 

apply only to the surface operations of underground 

507 
mines; those appearing under the heading "Underground 

Only" apply only to the underground operations of underground mines. 

I am aware of Judge Broderick's contrary decision in The Hanna Mining 

Companl, supra, and I disagree, I am also aware that the Commission 

reviewed and affirmed that decision on September 22, 1981. However, a 

reading of the decision on review indicates the Commission did not consider 

that particular aspect of Judge Broderick's decision (2 MSHC 1433). 

Allied finally contends that no violation occurred because there was 

no evidence that the bolts were missing before use. The basic argument 

urged by Allied arises from the evidence that bolts are checked every 

shift, that is, every eight hours. 

I disagree with Allied's position. I presume Allied would have an 

inspector wait until the equipment is used and possibly a miner exposed to 

a hazard before an operator could be cited for the violation. The enforcement of a mandatory safety or health regulation is not amenable to 

being reduced to such a charade. 

Further, in support of its position Allied cites Grove Stone and Sand 

Co., 1 MSHC 2473 (July 1980). Allied has misread Judge Steffey's decision. 

The actual use of equipment is not a condition precedent to establish a 

violation of § 56.9-2. 

For the above stgted reasons I conclude that the citation should be 

affirmed. 

CIVIL PENALTY 

The Secretary proposes a penalty of $114 for the violation of 30 

C.F.R. 57.9-2. The statutory criteria for assessing a civil penalty is 

set forth in Section llO(i) of the Act [30 U.S.C. 820(i)] which provides as 

follows: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Commission shall consider the operator's 

history of previous violations, the appropriateness of such 

penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of 

the violation, and the demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after 

notification of a violation. 

508 
In connection with the violation of thi~ regulation the record 

indicates that in 1979 Allied had 17 violations of§ 57.9-2. On the other 

hand Allied abated the condition@ 

At the trial the Secretary 

proposed penalties (Tr. 4, 5). 

pursued in the Secretary's post 

requested that the Connnission increase the 

However, this contention was not further 

trial brief. 

Considering the statutory criteria I deem that the proposed civil 

penalty of $114 is appropriate. 

ELECTRICAL VIOLATIONS 

Citations 336654, 336655, and 336656 respectively allege violations of 

Title 30, Code of Federal Regulations, § 57.12-30, § 57.12-25 and § 57. 

12-32. The cited regulations provide as follows: 

57.12-30 Mandatory. When a potentially dangerous 

condition is found it shall be corrected before equipment or wiring is energized, 

57.12-25 Mandatory. All metal enclosing or encasing 

electrical circuits shall be grounded or provided with 

equivalent protection. This requirement does not apply 

to battery-operated equipment. 

57.12-32 Mandatory. Inspection and cover plates on 

electrical equipment and junction boxes shall be kept 

in place at all times except during testing or repairs. 

SUMMARY OF THE EVIDENCE 

The evidence is conflicting@ I find the following facts to be 

credible. 

On January 26, 1979 MSHA inspectors were conducting a 103(i) gas 

inspection at the longwall mining unit of Allied's trona mine. Inspector 

Hansen indicated that the methane concentration exceeded one percent and 

Allied personnel agreed (Tr. 19-23, 156). Hansen issued a closure order. 

Schultz and Bertagnolli, Allied supervisors, told the workers to stop their 

work and leave (Tr. 158-159). At this time electrician Bruton was trying 

to repair or replace a flag switch box (Bruton 10, G 25, G 26). While 

working on the box Bruton found it necessary to secure additional tools 

which were in his jeep in the intake airway. When Bruton was enroute to 

his jeep Bertagnolli told him to get out of the mine. Bertagnolli refused 

Bruton's request to return to the flag switch box to retrieve his tools 

(Tr. 159, Bruton 20). There was also a new box sitting alongside the box 

509 
being repaired (Jansen 6). The work Bruton was doing required the longwall 

miner to be down (Bruton 21). All of the orange colored lights were off. 

This would indicate that the flag switch box was not energized (Tr. 195). 

Three days later, after ventilation had removed the methane, Allied's 

Jansen and the MSHA inspectors returned to the longwall panel. The inspectors noticed the disconnected wires, and the missing bolts at the flag 

switch. Jansen said the power was off [because of the closure order] and 

there was no power in the longwall miner or the flag switch box (Jansen 

6). 

DISCUSSION 

The electrical violations, involving a single flag switch box, were 

cited after the methane closure order was issued and before it was lifted. 

When they reentered the mine the inspectors "had not abated the order and 

had not given the company permission to start their operation at that 

point" (Tr. 83). 

On reentering the mine the inspectors found three bare wires protruding six to eight inches from an emergency stop control device (Tr. 68, 

69, 89). The device, also called a flag switch box, was located 25 to 60 

feet from the face of the longwall (Tr. 71-72). 

The Secretary contends that the citation was properly issued because 

the wires were exposed at a time when the lines were energized. They 

believed the lines were energized because an unidentified electrician 

checked them. 

On the other hand Allied claims that the inspectors did not call for 

an electrician. Further, Allied asserts there was no power in the lines 

feeding the flag switch box and the longwall miner. Allied contends that 

its electrician Bruton was interrupted by the methane closure order as he 

was repairing the flag switch box. 

Prior events often cast a shadow. In this case, when the methane 

closure order was issued, the MSHA and Allied safety experts were dynamic 

in their reaction: all workers were immediately withdrawn and all power to 

the longwall unit was cut (Tr. 144-145, 163, 177, 194, Hansen 17). 

At this point in time Bruton, who was repairing the flag switch box, 

was ordered from the mine by his supervisor. On their return the MSHA 

inspectors decided the wires were ·energized because "we had an electrician 

come up and check the wires." I do not credit the Secretary's evidence 

because it is considerably less than unequivocal. The witness 

characterizes this pivitol testimony as "to my knowledge" (Tr. 82), "just a 

recollection, this is two years ago" (Tr. 82). Further, "it seems to me we 

had an electrician come up ••• " (Tr. 83), and "to the best of my 

recollection there was power on " (Tr. 84). 

510 
The Allied representative flatly contradicts the Secretary's evidence 

on this point. The inspector didn't ask for an electrician and the power 

was off (Tr. 49, 50, Jansen 6). 

In addition, I further credit Allied's version that there was no power 

1n the longwall miner and the flag switch box because they were familiar 

with the two electrical systems at this location. The inspectors disclaimed any electrical expertise and Allied's representative knew the power 

was off because it had been shut off and locked out at the time of the 

closure order. In addition, there were no orange colored lights burning at 

this location. 

The facts involved in the missing bolts in the chocks are different 

from the alleged electrical violations. The principal difference lies 1n 

the fact that Bruton was repairing the flag switch box when he was 

interrupted by the closure order. I conclude that the circumstances 

surrounding the electrical citations invoke the doctrine expressed in 

Plateau Mining Company and Ziegler Coal Company, supra. 

For the foregoing reasons citations 336654, 336655, and 336656 should 

be vacated. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following 

ORDER 

1. Citation 336653 and the proposed civil penatly therefor are 

AFFIRMED. 

2. Citations 336654, 336655, and 336656 and all proposed penalties 

therefor are VACATED. 

Law Judge 

511 
Distribution: 

Edward H. Fitch, Esq. 

Office of the Solicitor 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall and McCarthy 

50 S. Main Street, Suite 1600 

Salt Lake City, Utah 84144 

512 
FEDERAL Ml .... E SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

FMC CORPORATION, 

Respondent. 

) 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NO. WEST 79-101-M 

) A/C No. 48-00152-05004 

) 

) DOCKET NO. WEST 79-166-M 

) A/C No. 48-00152-05005 

) 

) MINE: FMC 

) 

~~~~~~~~~~~~~~~~---> 

DECISION 

APPEARANCES: 

James R. Cato, Esq., Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

For the Petitioner 

Clayton J. Parr, Esq. 

1800 Beneficial Life Tower 

36 South State Street 

Salt Lake City, Utah 84111 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF THE CASE 

These proceedings were brought pursuant to section llO(i) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a). The 

petitions for assessment of civil penalties were filed by the Mine Safety 

and Health Administration (MSHA), on September 17, 1979 and timely answers 

were filed thereafter by respondent. A hearing was held in Salt Lake City, 

Utah," at which both parties were represented by counsel. 

WEST 79-166-M 

At the beginning of the hearing, the petitioner moved to withdraw 

Citation No. 336426 issued under Docket No. WEST 79-166-M, Assessment 

Control No. 48-00152-05005, for the reason that the citation was issued 

under the wrong standard. As the respondent had no objection to this, a 

decision was rendered at the hearing approving petitioner's motion of 

dismissal. I hereby AFFIRM that decision. 

513 
WEST 79-101-M 

STIPULATION 

The parties agreed to the following stipulations for the remaining 

docket: (1) That the respondent is the operator of the FMC Mine which is a 

large mine; (2) The history of prior violations is not extraordinary; (3) 

That issuance of the order/citation was in accordance with proper 

procedures of MSHA; (4) Respondent's ability to continue in business after 

imposition of a reasonable civil penalty is not an issue; (5) That 

respondent is subject to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977 and I have jurisdiction over these proceedings. 

STATEMENT OF PROCEEDINGS 

Thereafter, the parties presented evidence regarding order/citation 

No. 335727. Witnesses for the Secretary were M.C. Jacobson, field 

supervisor for MSHA, William W. Potter, mine inspector. Witnesses called 

by the respondent were John V. Corra, respondent's assistant production 

superintendent at the time the order was issued, Don Warne, area supervisor 

for the section of the mine involved herein, Julius Jones, company safety 

manager, Warren Sherwood Coleman, co-chairman of the Union safety committee 

and steward of the Union at the time the citation was issued, William G. 

Fischer, respondent's chief mining engineer and Mahlon Grubb, general 

mining superintendent. 

The parties have ~ubmitted briefs stating their positions and, having 

considered them and the evidence adduced at the hearing, I make the 

following decision. 

Regulatory Provision 

Title 30, Code of Federal Regulations, section 57.3-22, reads: 

Miners shall examine and test the back, face, and rib 

of their working· places at the beginning of each shift 

and frequently thereafter. Supervisors shall examine 

the ground conditions during daily visits to insure that 

proper testing and ground control practices are being 

followed. Loose ground shall be taken down or adequately 

supported before any other work is done. Ground conditions 

along haulageways and travelways shall be examined periodically and scaled or supported as necessary. 

ISSUES }j 

The issues are: 

1. Whether the conditions cited and described by the inspector in the 

1/ The respondent did not file a timely appeal as to the issuance of a 

l07(a) withprawal order in this case. Therefore, this is not a proceeding 

to review the order but rather a civil penalty proceeding and the issue is 

whether the violation charged in the order's citation occurred. 

514 
order issued in these proceedings existed in respondent's mine on September 

18' 1978? 

2. If so, was the condition a violation Of 30 C.F.R. § 57.3-22? 

3. If a violation occurred, what is the appropriate penalty? 

FINDINGS OF FACT J:/ 

1. On September 16, 1978, a roof fall occurred at the intersection of 

number 5 room and number 26 crosscut in respondent's mine. The fall caused 

no injuries but put a stammler feeder located l.n this area out of commission. MSHA was notified of the roof fall (Tr. 26, 139). 1./ · 

2. On September 18, 1978, at approximately 9:30 a.m. mine inspectors 

Jerry Thompson, William Potter and Gary Ferrin, accompanied by company 

employees proceeded to 1 East 2C panel in respondent's mine to conduct an 

examination of the roof fall (Tr. 27 and 39). 

3. As the inspection party proceeded to the roof fall site, areas of 

loose rock were observed in the 1 East 2C panel near the site of the roof 

fall which areas were ordered barred down by inspector Thompson (Tr. 43, 

44, 85, 86, 89 and Exhibit R-1). 

4. At the intersection where the roof fall occurred and men were 

working, a loose slab was observed which was ordered barred down by 

Thompson (Tr. 89, Exhibit R-1). 

5. A miner (electrician) was observed working near an energized 

circuit center in room 7 between crosscut 27 and 28 under loose rock 

located on the rib above him (Tr. 58, Exhibit P-3). 

6. Respondent's -:mployees barred down the loose rock observed on the 

way to the roof fall with very little effort (Tr. 46). 

7. A flat piece of loose material approximately 5 or 6 feet tall and 

a couple of feet wide on the rib near the crosscut where the roof fall 

occurred and the stammler was located was barred down at the request of 

inspector Thompson. It was near the travelway used by miners to get to the 

stannnler (Tr. 48 and 49). 

8. A piece of loose rock on the rib near the energy circuit breaker 

was removed by touching the rock which fell in pieces approximately one or 

two feet in size (Tr. 57 and 58). 

2/ The parties stipulated that the Commission has jurisdiction in this 

c·ase. 

1J Respondent's Brief, page 4. 

515 
9. There was no production or mining of ore in progress at the time 

of the inspection in section 1 East 2C panel of the mine. However, miners 

were in the area working to remove the stammler and a man was tramming back 

and forth getting material out (Tr. 51 and 90). 

10. The size and condition of the loose rock observed was such that 

it could be reasonably expected to cause death or serious physical harm to 

miners working in the area. 

11. The condition was obvious and should have been noticed by miners 

working in the area. 

12. The respondent demonstrated ordinary good faith in abating the 

violation. 

DISCUSSION 

The FMC Mine, located near Green River, Wyoming, is one of the largest 

underground mining operations in the United States. The mine produces 

approximately 4.5 million tons of trona ore per year utilizing the room and 

pillar mining method. On September 16, 1978, at approximately 6:30 p.m., a 

roof fall occurred at the intersection of number 5 room and number 26 

crosscut in section 1 East 2 C panel. The fall caused no injury to miners, 

but placed a Stammler feeder (machine used to crush and feed ore onto a 

conveyor belt) out of commission. The respondent notified MSHA of the roof 

fall shortly thereafter and all miners, except personnel assigned to 

cleanup were removed from the panel (Tr. 104 and 106). 

On September 18, 1978, mine inspector Thompson and inspector trainees 

Potter and Ferrin proceeded to the FMC Mine to conduct an examination of 

the roof fall. The inspection party was accompanied by respondent's 

employees into the mine. Inspector Thompson, who issued the order involved 

in this case, was unavailable as a witness at the time of the hearing. 

Inspector Potter testified at the hearing that the inspection party entered 

the mine at approximately 9:30 a.m. and proceeded towards the roof fall. 

He testified that while enroute Thompson stopped the inspection party on 

two occasions so that loose material could be barred down from the back and 

rib of the area they were traveling through (Tr. 42 and 44). At the 

intersection where the roof fall occurred he described a flat piece of 

material five or six feet tall and a couple of feet wide on the rib which 

was loose and Thompson requested it be pryed (barred) down (Tr. 49). 

Potter testified that he saw a man working near the power center which 

is the power source that feeds power to the stannnler and other equipment. 

The inspection party proceeded to the power center where loose material was 

observed on the rib (side of the drift) above the electrician working 

there. Potter testified that he observed that the material only required 

to be touched and it fell down in what was described as being a "bunch" of 

small rocks anywhere from one to two feet in size and weighing one to 50 

pounds (Tr. 58 and 59). Inspector Thompson issued a withdrawal order after 

he left the mine based upon what he had observed (Exhibit P-1 and P-3). 

516 
Respondent introduced evidence that 1 East 2C panel had presented poor 

ground conditions due to unusual geologic conditions including difficulties 

in maintaining roof control integrity. Testimony was presented that slabbing and spalling of the roof and ribs occurred with greater than usual 

frequency and that supervisory personnel and miners were conscious and 

aware of this condition (Tr. 110~ 112, 129, 156 and 170). Respondent 

argued that the section of the mine cited by inspector Thompson had not 

been operating for over 36 hours pending cleanup and securing the area 

after the fall. Because the panel had been inactive for over a day and a 

half, the slabbing that had occurred was not surprising. 4/ Further, 

that the order's references to loose ground at the 27 crosscut between 

rooms 5 and 6 and inspector Potter's testimony in reference to 26 crosscut 

between rooms 5 and 6 was not supported by other witnesses as to location 

or degree of seriousness. Respondent's safety director Julius Jones 

testified that the slab observed in the 27 crosscut did not constitute a 

danger and did not need to be barred down as the pieces were locked in the 

roof with steel mats that were secured to the roof with roof bolts 2../. 

Jones further testified that in his opinion inspector Thompson did not test 

the slab in the rib at the southeast corner of the 27 crosscut at room 

number 5 intersection to determine its stability and that rather than being 

barred down, the slab was removed with a cutting machine (Tr. 120 and 133). 

Testimony was also presented regarding other areas included in the order 

and described by inspector Potter contradicting the danger or seriousness 

of these conditions. 

A careful review and consideration of all the evidence in this case 

persuades me that inspector Thompson and Potter observed loose rock at 

various locations in 1 East, 2C panel which constituted a danger to miners 

working in the area. Potter identified the areas as best he could under 

the circumstances and testified that in each situation described in the 

order, he was of the opinion that loose material needed barring down. This 

opinion was based upon his ten years of underground mining experience. The 

facts further show that a roof fall had occurred in this area which 

fortunately did not result in injury but indicates the area was unstable. 

In refuting the violations included in the order, respondent presented a 

distinguished and experienced array of witnesses who contradicted the 

petitioner's witness that the various areas cited therein presented a 

danger. However, I find the testimony of inspector Potter more credible 

than respondent's witnesses as to the condition in the mine and the dangers 

presented at the time of the inspection. Further, respondent's witnesses 

in their testimony confirmed that a problem existed in tcyis section of the 

mine with slabbing and spalling of the roof and ribs occurring with greater 

than usual frequency which contraducts their argument that the area was not 

unsafe. The issue here is not whether there was an iunninent danger that 

warranted a withdrawal order but whether there was a violation of mandatory 

standard section 57.3-22. 

4/ Respondent' Brief, pages 7 and 8. 

5/ Respondent's Brief, page 9. 

517 
I reject the argument of respondent that the miners in the roof fall 

area were not exposed to danger. The standard requires that miners shall 

examine and test the back, face, and ribs of thei.r working places at the 

beginning of each shift and frequently thereafter. These men, including 

the electrician, were all miners and were required to take down loose 

ground both at their working place and along haulageways and travelways. 

Obviously, the areas traveled by the inspection party to get to the site of 

the roof fall would fall into a category of a travelway. Further, 

supervisory employees of the respondent testified that they had visited the 

site of the roof fall subsequent to its occurrence and would have had an 

opportunity to observe the conditions described by Potter and contained in 

the order. This opportunity for observation also includes a responsibility 

to insure that proper testing and ground control practices are being 

followed. 

The gravity of the violations in this case was quite serious since it 

could have resulted in a fatal injury. Petitioner argues that rapid 

abatement was not achieved. I disagree with this argument and find that 

the evidence shows the respondent complied with the inspector's instructions by barring down the loose material as it was pointed out to 

them. In view of all of the evidence herein I have determined that 

respondent made special efforts to insure rapid abatement of the violation. 

In view of this, the appropriate penalty to be assessed, under all 

circumstances, is $1,000.00. 

CONCLUSIONS OF LAW 

The conditions found by inspector Thompson on September 18, 1978, at 

the subject mine, and described by him on Order No. 335727, and described 

by inspector Potter at the hearing constituted a violation of 30 C.F.R. 

§ 57.3-22. 

ORDER 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

1. It is ORDERED that petition FOR ASSESSMENT OF A PENALTY in Docket 

No WEST 79-166-M be DISMISSED WITH PREJUDICE. 

2. Order/Citation No. 335727 contained in Docket No. WEST 79-101-M is 

affirmed. 

3. Respondent, FMC Corporation, is ORDERED TO PAY the sum of $1,000 

within 30 days of this order as a civil penalty for violation found in 

Docket No. WEST 79-101-M. 

(;~ A-:L£-?~L/ Virgil 

Admini trative Law Judge 

518 
Distribution: 

James R. Cato, Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Clayton J. Parr, Esq. 

1800 Beneficial. Life Tower 

36 South State Street 

Salt Lake City, Utah 84111 

Mr. Stan Loader 

Staff Representative 

USWA, District 33 

P.O. Box 1315 

Rock Springs, Wyoming 82901 

Mr. Ernest Ronn 

Safety Coordinator 

USWA, District 33 

706 Chippewa Square 

Marquette, Michigan 49855 

519 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 80-289 

Petitioner A.C. No. 

v. 

Blacksville No. 1 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

David Street, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner 

Rowland Burns, Esq., Consolidation Coal Company, for 

Respondent. 

Judge Moore 

The above civil penalty proceeding was tried before Connnission 

Administrative Law Judge John F. Cook, on September 18, 1980, in 

Meadow Lands, Pennsylvania, on March 5, 1981, in Washington, Pennsylvania, 

and on July 28, 1981, in McHenry, Maryland. On January 19, 1982, I notified 

the parties that Judge Cook was no longer with the Federal Mine Safety and 

Health Review Commission and that the case had been reassigned to me. The 

parties were requested to advise me if the reassignment created any 

problem. I have had no response from the parties, and I hold that by their 

silence the parties have waived any right to present further evidence or 

to object to a decision based on the record made before Judge Cook. 

The procedure followed in this case was somewhat out of the ordinary. 

An unintentional roof fall had buried the continuous miner with the operator 

inside. The operator was trapped for approximately an hour but was not 

injured. In support of its case, the government produced two witnesses 

who had been to the scene of the accident after the roof fall. From the 

conditions they observed, they inferred that the roof had been bad and that 

Respondent failed to take proper precautions. After presenting a basically 

circumstantial evidence case, the government rested and Judge Cook denied 

Respondent's motion for judgment. In effect, he ruled that the government 

had made out a prima facie case. I consider Judge Cook's ruling as law of 

the case, and as such, it is binding upon me. 

The defendant then produced three witnesses who had been at the scene 

prior to the roof fall, one being the toreman, one being the bolting machine 

operator, and the other being the continuous miner operator who was covered 

up i.n' the roof fall. All of these witnesses stated that they had examined 

520 
the roof and that it was sound prior to the roof fall. In fact, the operator 

of the continuous miner said that the roof fall began in front of him at the 

face and worked back toward the intersection where he was located and where 

he was covered up by the roof fall. The bad top that the government claimed 

existed, was located along the inby edge of the intersection where No. 3 

heading was started. This was 17 feet from where the roof fall started. 

Respondent produced a fourth witness who had overheard some conversations during the course of the investigation subsequent to the roof fall. 

During cross-examination of this fourth witness, a Mr. Gross, government 

counsel inquired about some handwritten notes that he thought Mr. Gross had 

made. Mr. Gross denied making the notes and stated that he was not present 

at the investigation where the notes were made. · (There were investigatory 

conferences on August 10 and August 15, 1979). The records available clearly 

showed that Mr. Gross had not been present when the notes were made, and 

Judge Cook properly refused to require Mr. Gross to testify concerning someone else's notes. A Mr. Webber had made the notes and the government 

attorney obviously was prepared to cross-examine Mr. Webber. Respondent 

chose not to put Mr. Webber on, the stand and in my opinion, that should have 

ended the matter. I respectfully disagree with Judge Cook's decision to 

reconvene the hearing at a later date for the purpose of hearing Mr. Webber's 

testimony. The government had rested and had not announced its intent to 

put on any rebuttal witnesses. Mr. Freme, who later testified in rebuttal, 

was present on September 18, 1980. 

If the record had been closed at that time, as I think it should have 

been, the vast weight of the evidence would have been on the side of 

Respondent. 

The next hearing was on March 5, 1981, in Washington, Pennsylvania, and 

at that hearing Respondent's counsel Mr. Burns stated (Tr. 182) when 

referring to the end of the earlier hearing, "Thereupon, Mr. Street called 

Bob Gross, a Consol employee to the stand as his first rebuttal witness, 

and I stress the word 'rebuttal'." In fact, Mr. Gross had not been 

Mr. Street's first rebuttal witness, but had been Mr. Burns' own witness (Tr. 

154). Judge Cook apparently thought that Mr. Gross had been a rebuttal 

witness (Tr. 201) and Mr. Street who certainly should have known whether 

Mr. Gross was his own witness or not, did not bother to correct the misinformation of the Judge and Respondent's counsel. Nor had Mr. Street been 

surprised by the absence of Mr. Webber at the first hearing as stated by 

Respondent's counsel (Tr. 197). His only surprise was that Mr. Gross had not 

made the notes that he had in his possession for cross-examination purposes. 

Another odd circumstance that developed during the second hearing, was 

the fact that Inspector Freme had based his entire testimony during the 

first hearing on the basis of notes taken by Inspector O'Neal rather than 

on his own notes. It is not clear whether Mr. Street knew that the notes 

were not Mr. Freme's notes. He asked Mr. Freme if he testified with the 

help "of notes" (Tr. 303). The response was "yes I looked at the notes." He 

made further reference to "the notes" not "your notes" (Tr. 303, 304). On 

voir dire on the notes, the following took place (Tr. 307). 

521 
THE WITNESS: I dont' remember exactly what the date was. 

August. I remember it being on the day shift. I have my notes 

in my pad. 

MR. BURNS: Who's notes are these? 

WITNESS: These are the notes that Mr. O'Neal wrote down 

while we were questioning the people involved in this event. 

It was almost as if Mr. Burns had been led into asking Mr. O'Neal to testify 

concerning his own notes. It was after he made a statement that he would not 

object to Mr. O'Neal taking the stand that Mr. Burns realized that Mr. O'Neal 

' had been sitting at counsel table throughout the entire proceeding whereas 

the other witnesses all been sequestered. Again, it's the law of the case, 

and I feel bound by the ruling that was made to allow the testimony. I will 

take these facts into consideration in the weight given to Mr. O'Neal's 

testimony and I will give very little weight to Mr. Freme's testimony in the 

first hearing since it was based, not on his recollection, or on a refreshed 

recollection, but on notes made by some other person about the incident. 

Mr. O'Neal's testimony at the second hearing was not damaging to 

Respondent, but Mr. Burns apparently felt obliged to cross-examine any way, 

and managed to bring out testimony that it was company policy to treat a 

crack such as that found in the No. 3 entry in a manner different than that 

followed by the crew involved in the roof fall accident. That will be 

discussed further when the events surrounding the roof fall are discussed. 

Exhibit M-10 is a four page handwritten document prepared by Mr. Webber 

which purports to summarize the statements made during the post-accident 

investigation. It is apparently the document that Mr. Street had in his 

possession when he was cross-examining Mr. Gross under the impression that 

M-10 was prepared by Mr. Gross. Mr. Webber's recollection was not refreshed 

by reading the document and he could not currently vouch for the statements 

therein. He admitted that he had prepared it from notes that he had taken 

during the investigation, but stated that the proceedings were so confusing 

that he might well have been inaccurate as to who said what. He was not the 

only witnesses to testify as to the confusion during the investigation. In 

these circumstances, the exhibit is of little help in resolving the differences in testimony among the witnesses. -:._/ 

I will be referring hereinafter, to Exhibit No. M-6 which is a sketch 

of the roof fall area. There are two copies of M-6 in the record, and they 

are not identical. In one the exhibit No. "M-6" is in blue ink and the words 

"pressure crack" appear. In the other exhibit the marking "M-6" appears to 

have been made in black ink and the words "pressure crack" have been inked 

over, so they 'can not be read. While I am leaving both exhibits in the file, 

I will be referring to the one that does contain the words "pressure crack." 

-:._/ Under rule 803(5) of the Federal Rules of evidence, the document should 

have been read into the record rather than offered as an exhibit. In a 

nonjury trial, however, I fail to see that this makes any difference. 

522 
The roof fall involved in this case occurred on August 10, 1979, in 

the intersection formed by the No. 3 entry and the last open crosscut, in 

the 3 West section of Respondent's Blacksville No. 1 Mine. Exhibit M-6, 

M-8, and 0-1 are all depictions of the accident scene. Just prior to the 

beginning of the shift in question, the intersection was in the form of a 

T because the No. 3 entry had not yet been started on the inby side of the 

intersection. The face of No~ 3 entry was actually just a part of the 

crosscut rib at this time. On the day before the roof fall, Richard Bissett, 

a miner operator who was running a roof bolter at the time, testified that 

there was·a crack in the roof right at the edge of the rib that was later 

to become the face of entry No. 3. He bolted the area outby the crack and 

was of the opinion that the area was safe when he left it. Another roof 

bolter, Darrell Tucker, saw a crack in the intersection on August 9, but 

does not remember where the crack was. It was somewhere along the rib line 

in the intersection though, and he bolted the center of the intersection. 

Robert Burke was there working with Darrell Tucker and he described the 

intersection as follows: "The place was working, starting to break along the 

rib. Coal was flaking off • • • just a little rip, a crack. You could hear 

just a little. You could see a little coal flake off." (Tr. 293-294). He 

says Tucker bolted the crack (Tr. 294) whereas Tucker said he bolted the 

center of the intersection (Tr. 273) (it must be remembered that the roof 

fall was in August of 1979 and the second hearing in this case did not occur 

until March 5, 1981). 

The three men most closely involved with the roof fall were Mr. Newhouse 

a loader operator, Mr. Bracken, the foreman, and Mr. Spooner the continuous 

miner operator who was covered up in the roof fall. All three testified for 

Respondent that the roof was good and solid when they started mining the 

No. 3 entry on August 10. The continuous miner drove 17 feet into the new 

face of the No. 3 entry, tested the roof with a scissors jack, and all who 

could hear it agreed that the roof sounded good. Just before they backed 

out, the.roof began to fall at the face of No. 3 entry and worked back to the 

intersection and eventually the entire intersection fell trapping Mr. Spooner 

in his mining machine within the intersection. See Exhibit Nos. M-6 and 0-1. 

While there was no testimony indicating that this roof fall, beginning at the 

face 17 feet away from the crack, was caused by the crack, it is nevertheless 

the government's position that the procedure used by this particular crew was 

incorrect. It states that the correct procedure would have been to mine in 

just a few feet to establish a brow, back out and .then bolt the inby side of 

the crack. That argument assumes there was a crack all across the face area. 

As stated before, there was testimony that it was mine wide policy to mine 

in the manner described, but Mr. Phillips, the superintendent testified that 

there was no such policy although he recognized that a big slip should be 

bolted on both sides (Tr. 412). It apparently depends upon the extent of the 

flaw involved. The witnesses in this case described what they saw as a 

crack, a cutter, a slip, a rip, and a nick. Some witnesses say the "crack" 

went all the way across the intersection while others say that it was only 

on the right hand side. Mr. Newhouse, the loader operator that witnessed the 

fall, stated that there was a small crack in the head coal on the right hand 

side of the face. He admitted that he.may have been confused during the 

accident investigation and said left side but that in fact the "slip" was on 

523 
the right side. He also used the word "crack" and said extra bolts had been 

placed in that area. Mr. Bracken,the foreman stated that the mining machine 

had earlier nicked the roof and that the bolts were placed in the area of 

this nick on the right hand side of the entry. He said the nick was not a 

crack (Tr. 137), he said the extra bolts were all across the crosscut. When 

recalled at the last hearing, Mr. Braken denied that he had said during the 

accident investigation that there was a crack all the way across the intersection. (Tr. 415). He said a little head coal had fallen out and the area 

had been bolted. According to him after there has been a nick, air gets in 

the coal and in a few days some head coal falls out. He says there was no 

crack. Mr. Spooner, the miner who was trapped in the mining machine testified concerning the scissors jack test he made and said the roof sounded good 

and did not move. (Tr. 146). He also said that there was no "crack" going 

across the intersection, but he referred to a nick on the right hand side. 

He said that the fall could not have been foreseen. (Tr. 150). 

While I generally favor the so called Susanna rule (Daniel, Chapter 13 

Catholic Bible: Rule 615 of Federal Rules) I think sequestration of the 

witnesses may have backfired in this case. Some of them might have been 

using different words to refer to the same phenomenon. Also, I might be more 

impressed with a witnesses' description of the area if he knew that someone 

else had already sworn to a different description. 

In the circumstances, taking into consideration all of the evidence 

including that which I would not have allowed had I been in charge of the 

case, I am nevertheless of the opinion that while it is a close question, 

the government has not sustained its burden of proof in this case. It has 

not shown that the roof fall was caused by mining inby the bolts in.the 

intersection nor has it ·Shown that the action of mining 17 feet inby those 

bolts was a violation of the standard. The citation is vacated and the 

case is dismissed. **/ 

Charles C. Moore, Jr. 

Administrative Law Judge 

**/ Respondent's attorney insisted that his motion for a directed verdict 

filed at the conclusion of the government's case and renewed after the 

entire case had been presented was properly so designated. Our rules do 

not provide for such a verdict and the federal rule providing for that 

procedure does not seem applicable to an administrative hearing. If 

Respondent's attorney means that the evidence was such that if it were a 

jury case I would direct a finding for Respondent then he is in.error. I 

have already indicated that it is a close question. If he seeks a judgment 

in his favor, based on all of the evidence, then he has it. No motion was 

necessary at the end of the .trial. 

524 
Distribution: By certified mail 

David E. Street, Esq., Office of the Solicitor, U.S. Department of 

Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 

Rowland H. Burns, Esq., Consolidation Coal Company, Consol Plaza, 

Pittsburgh, PA 15241 

Harrison B. Combs, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington,-DC 20005 

525 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U. S. STEEL MINING CO., INC., 

Respondent 

U. S. STEEL MINING CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

March 29, 1982 

Civil Penalty Proceeding 

Docket No. PENN 82-13 

A.C. No. 36-00970-03108 

Maple Creek No. 1 Mine 

Contest of Citation 

Docket No. PENN 82-57-R 

Citation No. 1050753 

12/21/81 

Robena No. 1 Mine 

DECISION 

Appearances: 

Before: 

David Street, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner/Respondent, 

MSHA; Louise Q. Symons, Esq., u. S. Steel 

Mining Company, Inc., Pittsburgh, 

Pennsylvania, for Respondent/Contestant, 

·u. S. Steel Mining Company, Inc. 

Judge Merlin 

Statement of the Case 

Docket No. PENN 82-13 is. a petition for the assessment 

of a civil penalty. At the hearing the Solicitor moved to 

withdraw this petition. I granted the motion and dismissed 

the petition. 

Docket No. PENN 82-57-R is a notice of contest filed by 

u. S. Steel to review a citation and an underlying notice to 

provide safeguards issued by an inspector of the Mine Safety 

and Health Administration under Section 104(a) of the Act. 

526 
By notice of hearing dated February 3, 1982, this 

matter was set for hearing on March 3, 1982. The hearing 

was held as scheduled. At the hearing the parties agreed to 

24 stipulations which I accepted and made part of the record. 

Applicable Statute and Regulations 

Section 314(b) of the Act which also appears as 30 

C.F.R. 75.1403 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. 

Notice to Provide Safeguards and Citation 

The subject notice to provide safeguards dated 

September 10, 1981 provides as follows: 

Notice to provide a safeguard for each 

station where mine cars are moved by means of 

a hoist (or car spotter) . Two separate and 

independent methods of stopping the movement 

of the mine car. The second method shall 

provide control in case the main control 

fails because the contactor or the switch 

fails in the run position. Area all 

sections. 

The subject citation dated December 21, 1981, provides 

as follows: 

Action was not taken to provide a second 

means of deenergizing the main power on the 

car spotters in case the contactor sticks. 

This notice covers all car spotter winches in 

the entire mine. (10 car spotter winches). 

Discussion and Analysis 

On March 5, 1981, a fatality occurred at the Banning 

Mine of Republic Steel Corporation. Coal was being loaded 

from a shuttle car by means of the shuttle-car's discharge 

boom onto a trip of mine cars. At Banning a locomotive 

brings the mine car trip to the designated location and is 

supposed to disengage. The mine car trip then is moved 

along by a car spotter. The spotter at Banning has an 

electric motor which drives a hydraulic pump which in turn 

-527 
powers hydraulic jacks positioned between the rails to catch 

the axle of each mine car.on the trip and push the car 

forward. The activation of the spotter and therefore the 

movement of the mine car trip is controlled by the shuttlecar operator who has an electrical pull-type switch on each 

side of the loading ramp. By controlling the movement of 

the mine car trip the shuttle-car operator can achieve even 

distribution of coal from the shuttle car into the mine 

cars. On March 5, the shuttle-car operator could not stop 

the movement of the mine cars and this caused the discharge 

boom of the shuttle car to become caught on the top of one 

of the moving mine cars, pulling the shuttle car itself 

sideways. ·At the time, the shuttle-car operator shouted 

that he could not stop the mine car trip, had his head 

outside of the canopy of the shuttle car and was caught and 

crushed between the canopy and a post. The mine cars 

continued to move forward and then stopped. 

The evidence of record including the testimony of 

MSHA's witnesses indicates that during the investigation on 

the day of the Banning fatality the contactors in the 

spotter's circuitry were alright and not sticking but that 

the electrical system did not work properly, apparently 

because a State inspector had pulled out a wire. Five days 

after the fatality the car spotter was checked again and at 

that time the mine car trip continued to run after the · 

release switch had been turned off. Examination of the car 

spotter's electrical circuitry revealed that the contactors 

were "hanging up" in the closed position thereby keeping 

electric current flowing, allowing the spotter to continue 

operating and pulling the mine car trip forward. The 

contactors were not burnt. They subsequently disengaged •on 

their own, falling out. 

As a result of its investigation MSHA attributed the 

fatality to two causes. The first, the amount of clearance 

between the shuttle-car discharge boom and the mine cars, is 

not involved in this case. The second, stuck contactors in 

the electrical circuitry, in MSHA's opinion caused the 

spotter to continue to run and move the mine cars after the 

release switch had been pulled, resulting in the discharge 

boom falling on top of the mine cars and skewing the shuttle 

528 
car sideways, crushing the shuttle-car operator. The Di-stf1ctManager of District 2 thereafter issued the following memorandum 

dated March 27, 1981: 

Each station where mine cars are moved by 

means of a hoist, spotter, or other device 

shall be provided with two separate and 

independent methods of stopping the movement 

of the mine cars. The second method shall 

provide control in case the main control 

fails because the contactor or the switch 

fails in the run position. 

The foregoing memorandum applies to all mines in District 

2 which ~oad coal in the same manner as the Banning Mine 

including U. S. Steel's Robena No. 1 Mine. At Robena a 

locomotive is not used to position the mine car trip and the 

car spotter does not have a hydraulic motor and jacks as at 

Banning. Instead, the electrically powered winch or hoist 

pulls the ca.rs forward by means of a steel cable. However, 

the configuration of the contactors which participate in the 

generation and supply of electric power to the car hoist is 

the same. 

The issue to be decided is whether the notice to provide 

safeguards and the citation based upon it issued to U. S. 

Steel at Robena were proper under 30 C.F.R. 75.1403. This 

section deals with transportation of men and materials. 

Coal was being transferred from the shuttle car to the mine 

cars on the way from the face to the surface. This transfer 

was an integral part of the transportation of the coal. I 

conclude the circumstances here constitute transportation of 

materials within the meaning of 75.1403. The specific 

subsections of 75.1403 which follow are merely examples and 

not exclusive. 

Beyond the definition of what constitutes transportation 

is the inquiry whether this notice to provide safeguards is 

in accordance with the basic characteristics of safeguards 

and the principles which should govern their use. qSafeguards 

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 

529 
upon its mine are set forth first in the safeguard notice 

which carries no civil penalty. Only in the subsequent 

citation bas.ed 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. 

As already noted, the memorandum upon which the instant 

safeguard was based covered all mines in District 2 which 

load coal by means of a shuttle-car discharge boom and a 

mine car trip. The testimony at the hearing indicated that 

in District 2 three mines out of 17 load coal in this manner. 

The issuance of this safeguard and citation has nothing to 

do with conditions peculiar to the Robena No. 1 Mine as 

opposed to all other mines. Rather the safeguard applies to 

the method used at Robena to load and transport coal. This 

method might be employed in all, in a majority or as here in 

a significant minority of mines in the district. This is 

not what the safeguard device was designed to be used for. 

I conclude therefore that the safeguard and the citation 

based upon it were improperly issued and are invalid. If 

MSHA believes certain back-up requirements should be imposed 

for this type of coal loading process to make sure that 

contactors in the circuitry of car spotters disengage, 

electric current stops, and mine car trips do not run after 

the release switch is pulled, MSHA should undertake rulemakin~. This is not to say that MSHA was not justified in 

having serious concerns after the fatal accident at the 

Banning Mine. However, such concerns cannot be satisfied 

through a blanket use of safeguards which disregards the 

rulemaking procedure. And this is especially so where, as 

here, the requirements imposed by the safeguard and citation 

in question apply in only one MSHA district but no other. 

Such uneven enforcement is irrational, unfair and does 

little if anything to advance the purposes of the Act. If 

MSHA believes remedial action is necessary as well it may 

be, MSHA must propose a uniformly applicable course of 

action and give operators and other interested parties 

appropriate opportunity to comment. 

530 
The subject safeguard and citation must be invalidated 

for other reasons also. After reviewing all the exhibits 

and testimony, I conclude the evidence falls far short of 

showing that a safeguard at Robena was warranted. First, 

MSHA's own evidence at the hearing shows that stuck contactors 

could not in fact be identified ~s the cause of the fatality 

at Banning. The MSHA fatality investigator testified that 

contactors were not stuck on the day of the fatality and 

that the cause of the accident could have been stuck contactors, a malfunctioning switch, or something else. It was 

only five days later upon testing that the contactors for 

the car spotter at Banning stuck so that the spotter's motor 

continued to run and move the mine trip. Solely from the 

fact of stuck contactors at Banning five days after the 

fatality, the requirements embodied in the subject safeguard 

and citation were applied to all other mines in District 2 

which load coal like Banning. However, no attempt was made 

to determine whether the circumstances in those other mines 

in District 2, of which Robena was one, were the same. The 

MSHA electrical inspector who issued the subject safeguard 

and citation at Robena expressly admitted that the contactors 

at Robena had never been tested, and that a car spotter 

which did not stop could be due to a defective switch as 

well as a defective contactor. He also testified that insofar 

as he knew there had been no problem with contactors at 

Robena. Therefore, even if the requirements of the safeguard 

could have been properly imposed at Banning, MSHA had no 

basis to apply those requirements to Robena. Indeed, the 

evidence presented at the hearing showed that relevant 

conditions at the two mines were not the same. MSHA's own 

electrical expert testified that the contactors used at 

Banning and Robena were different makes. Ohio Brass contactors were used at Banning whereas.Joy contactors were 

used at Robena. The expert who was familiar with both kinds 

testified that Joy contactors stick less than Ohio Brass 

contactors and he was not aware of Joy contactors ever 

sticking in a car hoist .. Further, both MSHA and operator 

expert testimony demonstrated that amperage capacity is 

greater in the contactors at Robena than at Banning reducing 

the chances of sticking contactors at Robena. Gravity in 

the armature assembly also is a factor in the Joy contactor 

decreasing the likelihood of sticking and increasing the 

possibility of disengagement of contactors as opposed to 

Ohio Brass contactors. Finally, the MSHA electrical expert 

stated that he believed the contactors could have caused the 

accident at Banning because of the different nature of the 

two contactors used at Banning and Robena. The expert's 

531 
subsequent attempt to retract or diminish the effect of his 

initial testimony regarding contactors is not found credible. 

I have not overlooked the testimony of the UMW safety 

inspector who based upon his employment at Robena in the 

mid-1970's stated that he knew of stuck contactors in car 

hoists. However, in light of the other evidence already set 

forth I do not find the safety inspector's testimony persuasive with respect to what allegedly happened several 

years ago. The record demonstrates so many significant 

differences between the circumstances at Banning and Robena 

that there was no basis to apply conclusions from an event 

occurring at Banning to Robena. On this basis also the 

subject safeguard and citation must be invalidated. 

Both parties have filed briefs which I have carefully 

reviewed. As I stated at the hearing, the presentations of 

counsel were most helpful in understanding the technical 

aspects of this case. 

ORDER 

It is Ordered that the petition for civil penalty in 

PENN 82-13 be and is hereby DISMISSED. 

It is hereby Ordered that the notice of contest in 

PENN 82-57-R be and is hereby Granted and that the subject 

notice to provide safeguards and citation be and are hereby 

VACATED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: Certified Mail. 

David Street, Esq., Office of the Solicitor, U. s. Department 

of Labor, Rm. 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 

Louise Q. Symons, Esq., U. S. Steel Mining Company, Inc., 

600 Grant Street, Room 1580, Pittsburgh, PA 15230 

532 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 t1AR 29\982 

NORTH RIVER ENERGY COMPANY, 

Contestant 

Contest of Citation 

v. Docket No. SE 32-21-R 

SECRETARY OF LABOR; Citation No. 755885; 11/5/81 

MINE SAFETY AND HEALTH 

ADHIHISTRATIO:N (MSHA), 

Respondent 

North River No. 1 Mine 

Appearances: 

Before: 

DECISION 

Bronius Taoras, Esq., Assistant Counsel, Republic Steel 

Corporation, Meadow Lands, Pennsylvania, for Contestant; 

George D. Palmer, Esq., Associate Regional Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, for 

Respondent. 

Administrative Law Judge Broderick 

STATE...11ENT OF THE CASE 

North River Energy Company filed a Notice of Contest on 

November 25, 1981, alleging that a citation issued on November 5, 1981, . 

was improperly issued. The notice also challenged the findings accompanying the citation that the violation significantly and substantially 

contributed to the cause and effect of a mine safety hazard and was 

caused by an unwarrantable failure to comply with the standard. 

Contestant filed a motion for an expedited hearing, and pursuant to 

notice, a hearing was held in Birmingham, Alabama, on December 3, 1981. 

Newell E. Butler, a Federal coal mine inspector, testified on behalf of 

the Secretary. Michael R. Vickers, Assistant Safety Supervisor for 

Contestant, Steve Green, Manager of. Safety, and Jerry Omer, Assistant 

General Manager of Operations, all with North River Energy Company, 

testified on behalf of Contestant. 

Both parties filed posthearing briefs on ~1arch 17, 1982. Based on 

the- entire record, including the testimony and exhibits introduced at 

the hearing, and the contentions of the parties contained in their 

briefs, I make the following decision: 

533 
STATUTOR~ PROVISION 

Section 104(d)(l) of the Act provides in part: 

(d)(l) 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. 

REGULATORY PROVISION 

30 C.F.R. § 75.400 and 75.400-1 provide: 

§ 75.400 Accumulation of combustible materials. 

[STATUTORY PROVISION] 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

§ 75.400-1 Definitions. 

(a) The term "coal dust" means particles of coal 

that can pass a No. 20 sieve. 

(b) The term "float coal dust" means the coal dust 

consisting of particles of coal that can pass a No. 200 

sieve. 

(c) The term "loose coal" means coal fragments 

larger in size than coal dust. 

FINDINGS OF FACT 

1. Contestant is the owner and operator of an underground coal 

mine located in Berry, Alabama. 

534 
2. Contestant's operation of said mine affects interstate commerce. 

3. On or about October 1, 1981, Jerry Omer of North River asked 

Inspector Butler if the company would be permitted to stockpile coal in 

the face areas of the mine. Butler told him that this would constitute 

an accumulation of coal in active workings, and a citation would be 

issued if it were to occur. 

4. On or about October 7, 1981, Inspector Butler and supervisory 

Inspector Mize discussed with Mr. Om~r North River's request that it be 

permitted to stockpile coal within 40 feet of the face. Both Mize and 

Butler told Omer that coal could not be stockpiled underground. 

5. On or about November 4, 1981, Contestant implemented a written 

plan called "Cutting Plan for.Periods of Belt Down Time," under which 

it was proposed to store coal in adjacent supported face areas when the 

belt was not operating. The plan provided that the coal should not be 

placed outby 40 feet from the face; the coal was to be placed on the 

wide side away from the line curtain with sufficient area to allow for 

proper air flow; a minimum of 3,000 c.f.m. of air was to be maintained. 

(Joint Exh. 2). This plan was not submitted to MSHA. 

6. On November 5, 1981, Inspector Butler issued a citation charging a violation of 30 C.F.R. § 75.400. The condition or practice cited 

was described in the citation as follows: 

Combustible material was allowed to accumulate in 

the 1 Right working entrie on the A-11 section. Coal was 

being stockpiled in the 1 Right entrie. Coal was being 

cut in the 1 left entrie with a Joy Miner and loaded in 

shuttle car and hauled to the 1 right entrie and dumped. 

Coal was 37 foot long and 12 foot wide and 4 foot 

6 inches deep. Company officials had been told that coal 

could not be stockpile in mines. 

7. On November 5, 1981, before Inspector Butler arrived at the 

section the belt was not operating. Contestant continued to cut coal 

and take it by shuttle car from the left to the right entry where it was 

stockpiled, in accordance with Contestant's cutting plan for periods of 

belt down time. 

8. The pile of coal in the entry was approximately 37 feet by 

12 feet and averaged about 4 and one-half feet deep, when the inspector 

issued the citation. It representated 10 to 15 shuttle car loads and 

totalled more than 80 tons of coal. 

535 
9. Coal dust was present in the air while the coal was being 

dumped, and the dust travelled around the line curtain toward the miner 

crew. The amount of float coal dust was not substantial. 

10. The subject mine liberates more than one million cubic feet 

of methane in a 24-hour period. At the time the citation was issued, 

a reading of .3 percent methane was recorded in the area of the mine 

involved herein. 

11. When the coal was stockpiled as described in Finding ~Jo. 7, 

tbe shuttle car was driven into the coal already piled and the shuttle 

car cable was pushed up into the pile of coal dumped previously. 

12. As the coal was piled in the right entry, it cut down the 

amount of qir reaching the face area. 

13. The coal and this area of the mine were moist. 

14. There were approximately seven men working in the section: 

the shuttle car operator; the continuous miner operator and his helper 

working in the left entry; the roof bolting crew in the face area; the 

ventilation man; and the section foreman. 

ISSUES 

1. Whether the intentional stockpiling of coal within 40 feet of 

the face pursuant to a plan for doing so when the belt is not operating 

is a violation of 30 C.F.R. § 75.400? 

2. If it is a violation, do the facts in this case show that it 

was of such nature as could significantly and substantially contribute 

to the cause and effect of a coal mine safety hazard? 

3. If it is a violation, was it caused by the unwarrantable 

failure of the operator to comply with the mandatory safety standard? 

CONCLUSIONS OF LAW 

A. Violation 

The standard involved herein is a statutory standard, contained in 

section 304(a) of the Act. It clearly provides that loose coal shall 

not be ~ermitted to accumulate in active workings. There is no dispute 

that the stockpile involved herein consisted of loose coal and that it 

was in active workings. Was it "permitted to accumulate?" The 

Commission has stated that "an accumulation exists where the quantity of 

combustible materials is such that, in the judgment of the authorized 

536 
representative of the Secretary, it likely could cause or propagate a 

fire or explosion if an ignition source were present." Sec.retary v. 

Old Ben Coal Company, 2 FMSHRC 2806, 2309 (1980), emphasis added. See 

also Secretary v. Old Ben Coal Company 1 FMSHRC 1954, 1958 (1977). 

Contestant seems to argue that only accidental or negligent accumulations are proscribed. I find no warrant in the language of the statute 

(regulation) for such an interpretation. Contestant also argues that 

in many situations in a mi~e, coal is unavoidably stockpiled without 

an operator being cited for an accumulation violation: coal held in 

shuttle cars, coal shot from the face in conventional mining, coal 

stored in a transfer point. These are not situations before me here, 

and do not help in determining the meaning of the regulation. It is 

.clear to me and I hold that the coal stockpiled in 1 right entry of 

A-11 section in the subject mine was an accumulation of loose coal. 

Since it was an intentional accumulation, th.e condition or practice was 

a violation of the mandatory standard contained in 30 C.F.R. § 75.400. 

B. Significant and Substantial 

The Commission has held that a violation significantly and substantially contributes Fo the cause and effect of a hazard, if (1) there 

exists a reasonable likeljhood that the hazard contributed to will 

result (2) in an injury or illness of a reasonably serious nature. 

Secretary v. Cement Division, 4 FMSHRC 822, 825 (1981). The inspector 

pointed to two hazards here: a mine fire or explosion and an interruption of ventilation. This is a gassy mine and though no significant 

methane was detected at the time of the inspection, methane is a constant 

threat. Evidence was.introduced of prior methane gas ignitions occurring 

at the mine. The area of the mine involved herein was damp, but, of 

course, damp coal can burn. There was an ignition source: the shuttle 

car cable which was subjected· to abrasions as it was pushed int'1,1lie;;e--

pile of coal. Is there a "reasonable likelihood'' that this~ a fire or 

explosion? I find the question a close one, but on balance, I conclude 

that the conditions cited here are reasonably likely to cause or propagate 

a fire or explosion. The second part of the test is not so difficult: 

if a fire or explosion occurred, resultant injuries would certainly be 

of a reasonably serious nature. Therefore, I conclude that the violation 

found herein could significantly and substantially contribute to the 

cause and effect of a coal mine safety hazard. 

UNWARRANTABLE FAILURE 

The violation here was intentional in the sense that the condition 

was deliberately created. Contestant wished to test MSHA's interpretation of the Act and, so far as this record shows, did so in good faith. 

Is this an unwarrantable failure to comply? In an analogous situation, 

537 
I found a delib~rate violation to challenge an l1SHA interpretation, "the 

equivalent of ordinary negligence" in a penalty case. Secretary v. 

Cleveland Cliffs Iron Company, 1 FMSHRC 1965, 1972 (1979). It would; I 

believe, be anomalous to treat a negligent violation as unwarrantable, 

and hold a deliberate violation not unwarrantable. I hold that a 

good faith challenge to a standard or an MSHA interpretation of a 

standard is, if a violation is found, an unwarrantable failure to comply 

with the standard. 

ORDER 

Based upon the above findings of fact and conclusions of law IT IS 

·oRDERED that the Contest of the citation is DENIED and the citation 

755335, November 4, 1981 is AFFIRMED. 

j ;t,,1"VLLS .klfrv~iel. . James A. Broderick 

~ Administrative Law Judge 

Distribution: By certified mail 

B. K. Taoras, Esq., Republic Steel Corporation for :::forth River Energy 

Company, P.O. Box 500, Meadow Lands, PA 15347 

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

Labor, 1929 South Ninth Avenue, Birmingham, AL 35205 

Harrison B. Combs, Esq., UMWA, 900 15th Street, N.W., Washington, 

DC 20005 

5-38 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No: CENT 80-380-M 

Pet id.oner A.O. No: 23-00458-05013 

v. Frank R. Milliken Mine 

OZARK LEAD COMPANY, 

Respondent 

DECISION 

This case was first submitted on Motions for summary judgement to 

Judge Laurenson. Judge Laurenson denied the motions but stayed the 

proceedings pending a Commission decision in Homestake Mining Company, 

Docket CENT 79-27-M, et. seq. The Commission has now decided Homestake 

Mining Company 4 FMSHRC 146 (February 16, 1982), and the decision was 

adverse to the government's position in this case .. Secretary vs. Climax 

Molybdenum Company, 4 FMSHRC 159 (February 16, 1982) was also decided 

adversely to the government's position as was Secretary vs. Local 5024, 

United Steel Workers and White Pine Copper Division, Copper Range Company, 

4 FMSHRC 155 (February 16, 1982). 

The only remaining issue is whether a violation can be established by 

the fact that the inspector observed vehicle tire tracks under loose roof. 

The parties have stipulated.that there is no evidence as to when the 

tire tracks were made or as to when the roof became loose and unconsolidated. 

The evidence contained in the stipulation amounts to at most the proposition 

that a vehicle may have been driven under loose roof. That is not enough 

to sustain the government's burden of proof in a penalty case. 

The citations are vacated and the case is DISMISSED. 

Distribution: By Certified Mail 

Charles 

~e?Jt~ft. C. Moore, Jr., 

Administrative Law Judge 

Robert S. Bass, Esq., Office of the Solicitor, U.S. Department 

of ~abor, Rm. 2106, 911 Walnut Street, Kansas City, MO 64106 

Robert G. Brady, Esq., and Gerald T. Carmody, Esq., 500 N. Broadway, 

Suite 2100, St. Louis, MO 63102 

539 •u.s. GOVERNMENT PRINTING OFFICE I 1982 o- J61-6JB/4J69