DECEMBER 1990 

COMMISSION DECISIONS 

12-04-90 

12-04-90 

12-26-90 

Bethel Fuels Incorporated 

Joseph G. Delisio v. Mathies Coal Co. 

ASARCO, Incorporated 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-05-90 

12-06-90 

12-10-90 

12-13-90 

12-14-90 

12-14-90 

12-17-90 

12-17-90 

12-18-90 

12-20-90 

12-20-90 

12-20-90 

12-20-90 

12-27-90 

John S. Guido v. Southern Ohio Coal Co. 

Blue Diamond Coal Company 

Bethel Fuels Incorporated 

Featherlite Building Products Corp. 

Joe G. Pina v. Featherlite Building Prod. 

Tunnelton Mining Company 

Corona Industrial Sand Project 

Mid-Continent Resources, Inc. 

Sec. Labor on behalf of Joseph C. Culp v. 

Mid-Continent Resources, Inc. 

Leo Slone & 180 Miners v. Sun Glo Coal Company 

Sec. Labor on behalf of Michael Price & Joe 

John Vacha & UMWA v. Jim Walter Resources 

Roy Farmer & Others v. Island Creek Coal Co. 

Consolidation Coal .Company 

C & C Crushed Stone, Inc. 

WEVA 90-228 Pg. 2533 

PENN 89-8-D Pg. 2535 

SE 88-82-RM Pg. 2548 

WEVA 90-64-D Pg. 2563 

KENT 89-258-R Pg. 2565 

WEVA 90-228 Pg. 2578 

CENT 88-113-RM Pg. 2580 

CENT 90-106-DM Pg. 2601 

PENN 90-17 Pg. 2602 

WEST 89-413-M Pg. 2605 

WEST 90-75 Pg. 2623 

WEST 91-108-D Pg. 2625 

KENT 90-122-C 

SE 87-128-D 

VA 91-31-C 

WEVA'. 9JJ-56-R 

CENT 90-21-M 

Pg. 2633 

Pg. 2635 

Pg. 2641 

Pg. 2643 

Pg . .2651 
DECEMBER 1990 

Review was granted in the following cases during the month of December: 

ASARCO, Inc. v. Secretary of Labor, MSHA, Docket No. SE 89-24-RM, etc. 

(Judge Fauver, October 25, 1990) 

Secretary of Labor, MSHA v. Shamrock Coal Company, Inc., Docket No. 

KENT 90-137, 142. (Judge Weisberger, October 26, 1990) 

Secretary of Labor, MSHA v. Bethel Fuels, Inc., Docket No. WEVA 90-228. 

(Default Decision of Chief Judge Merlin on November 6, 1990) 

There were no cases filed in which review was denied. 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIASTRATION (MSHA) 

v. 

BETHEL FUELS INCORPORATED 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 4, 1990 

Docket No. WEVA 90-228 

BEFORE: Backley, Acting Chairman; Doyle, Holen and Nelson, 

Commissioners 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988), Commission Chief 

Administrative Law Judge Paul Merlin issued an Order of Default on November 6, 

1990, finding Bethel Fuels Incorporated ("Bethel") in default for failure to 

respond to a show cause order. The judge assessed a civil penalty of $600. 

For the reasons that follow, we vacate the default order and remand the case 

for further proceedings. 

On November 15, 1990, the Commission received a letter from the 

Department of Labor's Regional Solicitor's Office in Arlington, Virginia, 

forwarding an attached letter from Bethel that was received in the Solicitor's 

office on August 28, 1990. Bethel's letter, dated August 14, 1990, and 

addressed to the Solicitor's Office in Arlington, Virginia, contains a short 

and plain statement of the reasons why Bethel disagrees with the civil penalty 

proposed by the Secretary of Labor in this case. 

The judge's jurisdiction over the case terminated when his decision was 

issued. 29 C.F.R. § 2700.6S(c). Under the circumstances presented, we deem 

Bethel's letter, forwarded by the Solicitor's Office, as a timely petition for 

discretionary review of the judge's default order. ~. Flippy Coal Co .. 

Inc., 12 FMSHRC 391(March1990). The petition is granted. 

The record discloses tha.t on November 8, 1989, an inspector of the 

Department of Labor's Mine Safety and Health Administration ("MSHA") issued a 

citation to Bethel alleging a violation of 30 C.F.R. § 75.202(a) for its 

alleged failure to support adequately or otherwise control mine roof. Upon 

preliminary notification by MSHA of the civil penalty proposed for the alleged 

violation, Bethel filed a "Blue Card" request for a hearing before this 

independent Commission. Counsel for the Secretary certified that on July 18, 

1990, the Secretary's penalty proposal was mailed to Bethel. As noted, on 

August 28, 1990, Bethel served on the Secretary's counsel a document 

2533 
constituting an answer to the penalty proposal. The answer, however, was not 

filed with the Commission. Under the Commission's rules of procedure, the 

party against whom a penalty is sought must file an answer with the Commission 

within 30 days after service of the penalty proposal. 29. C.F.R. § 2700.S(b) & 

.28. When no answer to the penalty proposal was filed with the Commission, 

the judge, on September 7, 1990, issued a show cause order directing Bethel to 

file an answer within 30 days or show good reason for the failure to do so. 

When Bethel failed to respond to the show cause order, the judge issued an 

order of default on November 6, 1990. 

Bethel appears to be a small company proceeding without benefit of 

counsel. In conformance with the standards set forth in Fed. R. Civ. P. 

60(b)(l), the Commission has previously afforded such a party relief from 

default upon a showing of inadvertence, mistake, or excusable neglect. E....&..,_, 

Amber Coal Co., 11 FMSHRC 131, 132 (February 1989). Here, Bethel may have 

confused the roles of the Commission and the Department of Labor in this 

adjudicatory proceeding. In light of these considerations, we conclude that 

Bethel should have the opportunity to present its position to the judge, who 

shall determine whether final relief from the default order is warranted. 

See,~. Patriot Coal Company, 9 FMSHRC 382, 383 (March 1987). -

Accordingly, we vacate the judge's default order and remand this matter 

for further proceedings. Bethel is reminded to file with the Commission, and 

to serve the opposing party, with copies of all its filings and correspondence 

in this matter. 29 C.F.R. §§ 2700.S(b) & 7. 

Distribution 

Pamela S. Silverman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

,,,, 

'-- -~: 1'.. '( ----< _.. < (/( {,_£/ ... //)11~-

Richard V. Backley, Acting Chairman 

Jofce A. Doyle, Commissioner 

,'11) /7 & <j) 

~ ( ( (f,,._f._ ' c::\_L_ L-c 

L. Clair Nelson, Commissioner 

Charles Myers, Superintendent 

Bethel Fuels, Inc. 

Route 7, Box 510 

Morgantown, WV 26505 

2534 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 4, 1990 

JOSEPH G. DELISIO 

v. Docket No. PENN 89-8-D 

MATHIES COAL COMPANY 

BEFORE: Backley, Acting Chairman; Doyle and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding involves a discrimination complaint brought by Joseph 

Delisio pursuant to the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (1988)(the "Mine Act" or "Act"). The issue presented 

is whether Mathies Coal Company ("Mathies") discriminated against Delisio in 

violation of section lOS(c)(l) of the Mine Act by not paying Delisio, an 

hourly employee, wages that he lost as a result of testifying as a witness 

under subpoena by the Secretary of Labor in a contest proceeding involving 

Mathies, while paying the salaries of its management officials whom it had 

subpoenaed as witnesses in the same proceeding. 1 Commission 

1 Section lOS(c)(l) of the Mine Act provides in pertinent part: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act] because such miner, representative of miners or 

applicant for employment has filed or made a complaint 

under or related to this [Act], including a complaint 

notifying the operator or the operator's agent, or the 

representative of the miners at the coal or other mine 

of an alleged danger or safety or health violation in 

a coal or other mine, or because such miner, 

representative of miners or applicant for employment 

is the subject of medical evaluations and potential 

transfer under a standard published pursuant to 

section [101] of this [Act] or because such miner, 

representative of miners or applicant for employment 

has instituted or caused to be instituted any 

proceeding under or related to this [Act] or has 

2535 
Administrative Law Judge William Fauver concluded that Mathies discriminated 

against Delisio by not paying Delisio his wages for that day while paying 

the salaries of its management employee witnesses. 11 FMSHRC 2352 (November 

1989)(ALJ). The judge awarded Delisio back pay, plus interest, and 

litigation expenses, including reasonable attorney's fees. 11 FMSHRC 2628 

(December 1989)(ALJ). We granted Mathies' petition for discretionary review 

and permitted the American Mining Congress ("AMC") and the National Coal 

Association ("NCA"), proceeding jointly, and Pennsylvania Coal Association 

to participate on review as amici curiae. We hold that, under the 

circumstances of this case, Mathies' treatment of Delisio did not violate 

the discrimination provisions of the Mine Act. Accordingly, we reverse the 

judge's decision. 

Complainant Joseph Delisio is employed as a mine examiner by Mathies 

at the Mathies Mine, an underground coal mine in Pennsylvania. 2 In his 

job as a mine examiner, Delisio, an hourly employee, conducts on-shift and 

pre-shift examinations. Delisio also serves as chairman of the local United 

Mine Workers of America ("UMWA") safety committee and is a representative of 

miners for purposes of the Mine Act. 

On July 21, 1988, in Mathies Coal Company, Docket No. PENN 88-36-R, 

Commission Administrative Law Judge Roy J. Maurer held a hearing in 

connection with Mathies' contest of a citation and a withdrawal order issued 

to it by the Department of Labor's Mine Safety and Health Administration 

("MSHA"). The Secretary subpoenaed Delisio to testify as part of the 

Secretary's case against Mathies, and Delisio testified at the hearing. The 

citation and order were ultimately upheld by the judge, based, in part, on 

Delisio's testimony. Mathies Coal Co., 11 FMSHRC 90 (January 1989) 

(ALJ). 3 

testified or is about to testify in any such 

proceeding, or because of the exercise by such miner, 

representative of miners or applicant for employment 

on behalf of himself or others of any statutory right 

afforded by this Act. 

30 U.S.C. § 815(c)(l). 

2 The parties stipulated the facts and submitted the case for decision 

without an evidentiary hearing. This narrative of facts is based on the parties' 

stipulation of facts, the parties' pleadings, and the record and judge's decision 

in Mathies Coal Company, Docket No. PENN 88-36-R, the contest proceeding that 

gave rise to the subpoenas, including Delisio's. 

3 The citation involved in Docket No. PENN 88-36-R alleged a violation of 

30 C.F.R. § 50.20 for failure by Mathies to report an accident. Delisio reported 

the alleged violation to MSHA and requested an inspection under section 103(g) 

of the Mine Act, 30 U.S.C. § 813(g). The withdrawal order cited a violation of 

30 C.F.R. § 75.400 for accumulation of float coal dust in four locations. 

Delisio was the miners' representative who accompanied the MSHA inspector, 

Francis Wehr, on the inspection that resulted in the issuance of the order. 

2536 
Attendance at the contest hearing caused Delisio to miss his normally 

scheduled working hours for the day, and Delisio did not perform any work 

for Mathies that day. The UMWA's collective bargaining agreement does not 

contain any provision requiring Mathies to compensate employees for wages 

lost because of attendance at judicial hearings, and Mathies did not pay 

Delisio for the day he spent testifying. Delisio did receive a $30.00 

witness fee paid by the Secretary. Delisio's usual wages for the day in 

question would have been $126.52. The UMWA local union ultimately paid 

Delisio the difference between his usual wages and the $30 witness fee. The 

witnesses called to testify by Mathies on its behalf were salaried 

management employees who received their regular salaries for the day spent 

testifying. 

Delisio subsequently filed a discrimination complaint with the 

Secretary, alleging that Mathies' failure to pay him the difference between 

his usual wages and the $30 witness fee, while paying the salaries of its 

management witnesses, constituted unlawful discrimination under the Mine 

Act. After completing her investigation of the complaint pursuant to 

section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), the Secretar¥ notified 

Delisio of her determination that no violation of section 105(c)(l) of the 

Act had occurred. Delisio thereupon filed his own discrimination complaint 

with the Commission pursuant to section 105(c)(3) of the Act, 30 U.S.C. § 

815(c)(3), and the matter proceeded to hearing before Judge Fauver. 

In his decision, the judge concluded that section 105(c)(l) of the 

Mine Act prohibits a mine operator from withholding wages from a miner 

witness who testifies against the operator at a Commission hearing while 

compensating other employee witnesses who testify on behalf of the operator. 

11 FMSHRC at 2356. 

In reaching this conclusion, the judge discussed decisions by the 

National Labor Relations Board ("NLRB") under the National Labor Relations 

Act, 29 U.S.C. § 151 et seq. (1988)("NLRA"), concerning allegations of 

employer discrimination against employees testifying at NLRB hearings, 

including Electronic Research Co., 187 NLRB 733 (1971) ("Electronic Research 

.1"), Electronic Research Co., 190 NLRB 778 (1971) ("Electronic Research 

II"), and General Electric Company, 230 NLRB 683 (1977). 11 FMSHRC 2355-56. 

In general, the NLRB does not deem unlawful, under the NLRA, the practice of 

an employer paying the wages of its employee witnesses while not paying the 

lost wages of employees called by other parties. General Electric, supra, 

230 NLRB at 684-86; Electronic Research II, supra. On the other hand, if an 

employer distinguishes between its employees "in their employment 

In upholding the float dust violation, the judge relied in significant part 

on Delisio's testimony. 11 FMSHRC at 96. The judge also concurred with the 

opinions of the MSHA inspector who issued the order and Delisio, that the 

violative· conditions in two of the cited locations were "significant and 

substantial" ("S&S"). 11 FMSHRC at 97-98. Finally, the judge relied in part on 

Delisio' s testimony that the two S&S violations were also the result of Mathies' 

"unwarrantable failure" to comply with the standard. 11 FMSHRC at 99. The judge 

accordingly affirmed the withdrawal order. 11 FMSHRC at 100. 

2537 
relationship" on the basis of whether they were summoned by it or the 

opposition as, for example, in granting or denying perfect attendance 

awards, it violates the NI.RA. General Electric, 230 NLRB at 686; Electronic 

Research I, supra. Rather than following the NLRB approach, however, the 

judge relied on the dissent in General Electric of then Chairman Fanning, 

which argue4 that the employer's denial of wages to opposition witness 

employees "was disparate treatment based on whether the testimony was on 

behalf of or against [the employer's] interest" (230 NLRB at 686) and 

therefore constituted discrimination within the meaning of the NI.RA. 11 

FMSHRC at 2356. 

In determining that Mathies violated section 105(c)(l) of the Mine 

Act, the judge stated: 

The distinction relied upon by the majority 

opinion in General Electric -- between (1) discri.., 

mination as to a perfect attendance award or the use 

of vacation time and (2) discrimination as to 

wages -- appears to me to [be] artificial and in any 

event distinguishable from Mine Act cases. The 

broad protection of § 105(c) of the Mine Act 

prohibits "any manner" of discrimination. 

Because of Respondent's discriminatory 

treatment of witnesses in a Mine Act proceeding, 

i.e. , refusing to pay wages to Complainant who was 

an opposition witness but paying the wages of the 

witnesses who appeared on its behalf, no further 

examination of discriminatory motive is necessary. 

11 FMSHRC at 2356. 

On review, Mathies and amici take the position that Delisio failed to 

establish a prima facie case of discrimination because he did not show any 

adverse action against him. Mathies and amici argue that Delisio, while 

testifying pursuant to the Secretary's subpoena, was not working for Mathies 

and that, therefore, its failure to pay Delisio his wages did not involve 

his employment relationship. Conversely, Mathies and amici argue that 

Mathies' witnesses were performing their job duties for their employer in 

testifying at the hearing. 

Mathies and amici also state that Congress knew how to establish 

specific compensation for miners involved in safety and health tasks and 

duties under the Mine Act. They argue that neither section 105(c)(l) nor 

any other provision of the Mine Act requires an operator to compensate 

witnesses subpoenaed by adverse parties merely because it compensates its 

own witnesses. Mathies specifically points out that section 113(e) of the 

Mine Act, 30 U.S.C. § 823(e), provides only that "witnesses shall be paid 

the same fees and mileage that are paid witnesses in the courts of the 

United States .... " Mathies and amici additionally rely on the NLRB's 

decision in General Electric as compelling. Moreover, the amici argue that 

the Commission's Rules provide only that each side pay for its own witness 

2538 
fees and mileage. The AMC and NCA also contend that nothing in common law 

or federal law requires a party to subsidize the opposing party's witnesses 

or provide compensation outside the employment relationship confines . 

. Delisio argues that the judge's decision should be affirmed, because 

section 105(c) prohibits a person from discriminating "in any manner" 

against miners who have exercised their statutory rights under the Mine Act. 

Delisio asserts that he established a prima facie case, because his 

testimony in support of MSHA's enforcement action constituted protected 

activity and he suffered adverse action when he was deprived of wages that 

he otherwise would have received. Accordingly, in Delisio's view, Mathies 

discriminated against him in violation of section 105(c)(l) when it refused 

to pay him for time spent testifying in the proceeding while at the same 

time paying its other employees who testified on its behalf in the same 

enforcement action. Delisio argues that Mathies, having elected to pay the 

salaries of some of its employees, was required to treat all of its 

employees alike, on the basis that the activities of the employees --

testifying about the conditions present when MSHA issued the challenged 

citation and closure order -- were identical. 

The question raised is whether Mathies discriminated against Delisio, 

in violation of section 105(c)(l) of the Mine Act, when it refused to pay 

wages to Delisio, who had been subpoenaed by the Secretary, for time spent 

testifying in support of the Secretary's case against Mathies, while at the 

same time paying the salaries of its managerial employees, who testified on 

its behalf in the same proceeding. 

In order to establish a prima facie case of discrimination under 

section 105(c) of the Mine Act, a complaining miner bears the burden of 

production and proof to establish (1) that he engaged in protected activity 

and (2) that the adverse action complained of was motivated in any part by 

that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786, 2797-2800 (October 1989), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); and 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 

817-18 (April 1981). See also Donovan v. Stafford Constr. Co., 732 F.2d 

954, 958-59 (D.C. Cir. 1984)(specifically approving the Commission's PasulaRobinette test). 

It is undisputed that Delisio, in testifying in the earlier Mine Act 

proceeding, engaged in protected activity. Section lOS(c)(l) provides: "No 

person shall ... discriminate against ... any miner ... because such miner 

... has testified ... in any ... proceeding [under or related to the Mine 

Act] .... " However, we conclude that Delisio did not show that Mathies took 

an adverse action against him or, even assuming that an adverse action had 

occurred, that it was discriminatorily motivated. Hence, we conclude that 

Delisio did not establish the second element of a prima facie case. We find 

the judge's conclusion to the contrary unsupported by the evidence and 

legally erroneous. 

A showing that an adverse action was taken is part of the second 

element of a prima facie case of unlawful discrimination under section 

2539 
105(c) of the Mine Act. Generally, "an adverse action is an act of 

commission or omission by the operator subjecting the affected miner to 

discipline or a detriment in his employment relationship." Secretary on 

behalf of Jenkins v. Hecla Day Mines Corp., 6 FMSHRC 1842, 1847-48 (August 

1984). However, an "adverse action under ... section 105(c) of the Mine Act 

is not simply any operator action that a miner does not like." Secretary on 

behalf of Price & Vacha v. Jim Walter Resources. Inc., 12 FMSHRC 1521, 1533 

(August 1990), citing Jenkins, supra, 6 FMSHRC at 1848 n.2. Moreover, as 

emphasized in Price & Vacha, "Not every classification or difference in the 

treatment of employees ... amounts to illegal 'discrimination,' especially 

where there is sufficient lawful reason for the challenged distinction." 12 

FMSHRC at 1532. 

Did Mathies refuse to pay Delisio's wages for time spent testifying in 

behalf of another party, in and of itself, constitute a discriminatory 

adverse action under the facts of this case? At common law, witnesses are 

not entitled to compensation. The right to witness fees is purely 

statutory. 97 C.J.S., Witnesses, § 35 at 421; 81 Am Jur. 2d, Witnesses, 

§ 23 at 47. Under the American legal system, parties have trad:H:ionally 

paid only their own witnesses and witness fees may be taxed against the 

other party only if allowed by legislative enactment. 20 C.J.S., Costs, § 

221 at 466. Absent such legislation, a litigant on one side is not required 

to subsidize the fees or compensation of the other side's witnesses. Here, 

Mathies' conduct mirrors this established system that, absent legislation 

providing otherwise, litigants bear their own costs, including the payment 

of compensation to witnesses. We perceive no statutory mandate under the 

Mine Act supporting the kind of compensation sought by Delisio here. 

With respect to witness fees, section 113(e) of the Mine Act provides: 

In connection with hearings before the 

Commission or its administrative law judges under 

this [Act], the Commission and its administrative 

law judges may compel the attendance and testimony 

of witnesses and the production of books, papers, or 

documents, or objects, and order testimony to be 

taken by deposition at any stage of the proceedings 

before them. Any person may be compelled to appear 

and depose and produce similar documentary or 

physical evidence, in the same manner as witnesses 

may be compelled to appear and produce evidence 

before the Commission and its administrative law 

judges. Witnesses shall be paid the same fees and 

mileage that are paid witnesses in the courts of the 

United States and at depositions ordered by such 

courts. 

30 U.S.C. § 823(e). Section 113(e) thus incorporates by reference the 

practice of the courts of the United States in terms of the amount of fees 

paid to witnesses. 28 U.S.C. § 182l(b) provides that, absent explicit 

statutory authority or contractual authorization to the contrary, a witness 

fee of $30/day applies in the courts of the United States. 

2540 
Implementating section 113(e) of the Act, Commission Procedural Rule 

58(b), 29 C.F.R. § 2700.58(b)(l990), provides: 

Fees payable to witnesses. Witnesses subpoenaed by 

any party shall be paid the same fees and mileage as 

are paid for like service in the district courts of 

the United States. The witness fees and mileage 

shall be paid by the party at whose request the 

witness appears, or by the Commission if a witness 

is subpoenaed on its own motion or the motion of a 

judge. This paragraph does not apply to Government 

employees who are called as witnesses by the 

Government. 

Therefore, under our Rule 58(b), witness fees must be paid by the party at 

whose request the witness appears. This, of course, parallels the general 

practice of the American litigation system, under which each party pays its 

own witnesses. Accordingly, in accordance with Rule 58(b), Delisio was paid 

$30 by the Secretary for the day he testified at the hearing, based-0n the 

level authorized by 28 U.S.C. § 182l(b). 

Section 113(e) of the Mine Act, in conjunction with Rule 58(b), 

essentially authorizes a per diem fee paid to a witness by the party calling 

the witness, but creates no additional statutory entitlement to compensation 

for wages or salaries. Neither the Mine Act nor its legislative history 

suggests any intention to provide for operator-paid compensation for miners 

testifying in Mine Act proceedings. Indeed, Congress established a number 

of specific operator-paid compensation provisions for miners under the Mine 

Act. Congress required walkaround pay for one miner representative during 

the physical inspection of the mine and pre- or post-inspection conferences 

(30 U.S.C. § 813(f)), provided for compensation where a miner is withdrawn 

because he has not received requisite safety training (30 U.S.C. 

§ 814(g)(2)), established a graduated scheme of miner compensation where a 

mine is closed under various withdrawal orders issued under the Act (30 

U.S.C. § 821), and mandated compensation for miners for required training 

(30 U.S.C. § 825(b)). Congress did not provide for operator-paid 

compensation for miners testifying in Mine Act proceedings, instead 

providing under section 113(e) only for per diem witness fees. While we are 

not implying an expressio unius est exclusio alterius construction here 

(~,~.Loe. U. 2274. UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1502 

(November 1988), aff'd, 895 F.2d 773 (D.C. Cir. 1990), cert. denied, October 

1, 1990)(No. 90-77)), this legislative silence involving the question before 

the Commission dictates cautious judicial review of Delisio's position (see, 

~.Rushton Mining Co., 11 FMSHRC 759, 764 (May 1989), and authority 

cited). 

Our concern with the Mine Act's silence on the subject is further 

accentuated by 5 U.S.C. § 6322(a)(l988). That provision generally provides 

that federal employees are entitled to leave without loss of pay when 

testifying as witnesses on behalf of any party in connection with any 

judicial proceeding in which a government is a party. Essenti~lly, Congress 

has provided for full compensation by the United States for its employees 

2541 
testifying in such proceedings, regardless of the party for whom such 

employees may be testifying. Delisio's position is essentially analogous to 

the statutory policy embedded in 5 U.S.C. § 6322(a). However, there is no 

comparable provision imposing similar compensation obligations on operators 

under the Mine Act. 

Here, Delisio was subpoenaed by the Secretary of Labor and paid a 

standard witness fee by the Secretary in accordance with Rule 58(b). 

Although Delisio was scheduled to work at Mathies' mine on the date of the 

hearing, he did not report for work to Mathies and did not perform any work 

on that day for Mathies. Mathies did not compensate Delisio for that day. 

As a general matter, Delisio was not paid by Mathies simply because he did 

not work for Mathies on the day of the hearing. Consequently, Mathies' 

failure to compensate Delisio was not, in itself, adverse action directed at 

his employment relationship. Delisio's right to a witness fee payment under 

section 113(e) of the Mine Act is not a term or condition of his employment 

relationship with Mathies and he was subpoenaed as a witness by another 

party, the Secretary. 

Delisio and the judge would tie a conclusion of discrimination to the 

fact that Mathies paid its managerial witnesses their salaries for the day 

they spent at the hearing. In the judge's view, this was "disparate 

treatment" that was inherently discriminatory. We are not persuaded. It is 

undisputed that these witnesses (1) were Mathies' own witnesses and (2) were 

salaried management safety representatives at the mine. According to 

Mathies, their managerial positions required testifying, as might be 

necessary, from time to time. Although the judge made no finding on this 

point, Delisio has not controverted it. There is no evidence in the record 

that these employees' salaries were dependent on their testifying in support 

of Mathies' position and there is no indication that the witnesses would 

have had their salaries withheld had they testified adversely to Mathies. 

Under these circumstances, we cannot view Delisio, an hourly employee 

subpoenaed by the Secretary, as "similarly situated" to the managerial 

witnesses subpoenaed by Mathies to testify as a part of their job duties. 

As previously indicated: "Not every classification or difference in the 

treatment of employees ... amounts to illegal 'discrimination,' especially 

where there is sufficie11t lawful reason for the challenged distinction." 

Price & Vacha, supra, 12 FMSHRC at 1532. We therefore find that a 

"sufficient lawful reason" and a reasonable basis for the difference in 

treatment Mathies accorded Delisio has been demonstrated on the record. 

We also place considerable weight on the NLRB's decision in General 

Electric, supra. Like the Mine Act, the NLRA contains a provision 

protecting employees from discrimination for participating in judicial 

proceedings under the statute. 4 The Commission has recognized in several 

4 Section 8(a)(4) of the NLRA provides: 

It shall be an unfair labor practice for an 

employer -- (4) to discharge or otherwise discriminate 

against an employee because he has filed charges or 

2542 
contexts that settled cases decided under the NI.RA -- upon which much of the 

Mine Act's antiretaliation provisions are modeled -- provide guidance on 

resolution of discrimination issues under the Mine Act. See, ~. 

Secretary v. Metric Constructors. Inc., 6 FMSHRC 226, 231 (February 1984), 

aff'd, 766 F.2d 469 (11th Cir. 1985), and authority cited. 

In General Electric, the employer paid an hourly employee his normal 

wages for having testified on its behalf at an unfair labor practice 

hearing, but refused to pay another hourly employee, who testified on behalf 

of the NLRB's General Counsel at the same hearing, the difference between 

the statutory witness fee that he received from the NLRB and his normal 

wage. The NLRB distinguished "between those situations where the employer's 

actions were directed at the employment relationship" (Electronic Research 

.1. supra) and those where they are not, "as in the witness fee situation" 

(Electronic Research II, supra). 230 NLRB at 685. 5 The NLRB noted that 

in "the latter instance, the obligation to pay witness fees is imposed by 

statute or fiat and not by the employment relationship." Id. The NLRB 

pointed to its witness rule at 29 C.F.R. § 102.32, which, (like the 

Commission's Rule 58(b)), provides that witness fees shall be pai~ by the 

party at whose request the witness appears. Id. 

The NLRB reasoned: 

But there is no prohibition against a party paying 

its witnesses more than the minimum, or more than 

another party will pay their witnesses, nor should 

any adverse inferences be drawn against the party 

paying the higher amount merely from that fact. In 

this regard, we deem as reasonable a party's use of 

employee wages as the measure for determining the 

fee to be paid its witness. Indeed, many parties, 

recognizing that an individual's employer is not 

obligated to pay him wages for time away from work 

testifying as a witness for them, use actual loss of 

earnings as a criteria for settling the witness fees 

they will pay. 

given testimony under this [Act] .... 

5 In Electronic Research I, the NLRB concluded that it was a violation of 

section 8(a)(4) of the NLRA, supra, to deny a perfect attendance award to an 

employee who was absent from work because he was testifying against the employer 

in a Board hearing, while awarding the perfect attendance award to those 

employees who appeared at the same hearing at the employer's request. See 

General Electric, 230 NLRB at 684. In Electronic Research II, the NLRB held that 

it was not a violation for an employer to pay the wages of the employees whom it 

called to testify, while at the same time refusing to pay the employees whom had 

been subpoenaed by the union. See General Electric, 230 NLRB at 684. In that 

case, the NLRB stated that "to order the [employer] to pay the employees for time 

lost from work in testifying against it is to require a litigant in effect to 

subsidize its opponent." Id. 

2543 
Furthermore, the obligation exists only 

between the party and its witnesses; it does not 

extend to witnesses called by others. It follows, 

·then, that the witness fee paid by one party is not, 

nor should it be, the concern or affair of another 

party. In short, no party stands as the guarantor 

for equal payment to all witnesses summoned by all 

parties to the proceeding. A fortiori, an employer, 

as here, -- or a union in a case not involving an 

employer as a party -- is not as a general 

proposition obligated to pay opposition witnesses 

anything in connection with witness fees. 

Consequently, we conclude that an employer is not 

discriminating with respect to the employment 

relationship by not paying an employee called as a 

witness against it the difference between what such 

witness would have earned had he worked and what the 

party calling him as a witness is willing to pay. 

Nor do we believe that the failure of the employer 

to pay such difference to employees testifying 

against it is otherwise per se discriminatory .... 

As we have previously stated, to hold that an 

employer must pay this difference would result in 

making employer liability dependent on what others 

are willing to pay, something we are unwilling to 

do. 

230 NLRB at 685. 

The NLRB further noted that while the disparity in compensation 

created by a party paying its witnesses more than another party may result 

in a monetary disadvantage to the latter, "that is not the fault of the 

higher paying party or within its immediate control. Nor is such a 

disparity due to actions aimed at the employment relationship." 230 NLRB at 

685-86. We agree substantially with the reasoning of General Electric. 

Like the NLRB in General Electric, supra, 230 NLRB at 685, we also 

note that the question of whether an employer is required, in general, to 

pay an employee for time not worked or, specifically, for time spent 

testifying, has been reserved to the employment mechanisms and prerogatives 

of the private sector. Delisio did not perform work for Mathies on the day 

of the hearing. Lying behind Delisio's complaint of discrimination is an 

underlying claim of a right: a right to be paid by his employer for time 

during which he did not work but rather was testifying as an opposition 

witness in litigation involving his employer. The subject of recognizing 

any such employment benefit is amenable to collective bargaining or to other 

private employment agreement. As we have emphasized in related contexts, 

the Commission does not sit as a super grievance board to judge the 

industrial merits, fairness, reasonableness, or wisdom of an operator's 

employment policies except insofar as those policies may conflict with 

rights granted under section 105(c) of the Mine Act. See Price & Vacha, 12 

FMSHRC at 1532, citing Price & Vacha, 9 FMSHRC at 1307. See also Mullins v. 

2544 
Beth-Elkhorn Coal Corp., 9 FMSHRC 891, 899 (May 1987), citing Loe. U. No. 

781. Dist. 17. UMWA v. Eastern Assoc. Coal Corp., 3 FMSHRC 1175, 1179 (May 

1981)~ 

We conclude as a matter of law that an operator's policy of not paying 

an employee for time spent testifying as another party's witness, while 

paying employees who testify as its own witnesses, does not, by itself and 

without more, amount to an adverse action under the Mine Act. In other 

words, we do not view such a policy as aimed adversely or discriminatorily 

at the employment relationship per se. Rather, in the words of General 

Electric, it stems "from different obligations, considerations, and 

motives .... " See 230 NLRB at 686. If the record in this case contained 

evidence of specific retaliatory motivation or discriminatory intent, 

another question would be presented. The record in this case, however, 

reveals no evidence of retaliatory motive or discriminatory intent. 6 

In sum, the record contains no evidence of an adverse action 

cognizable under _the Mine Act. To the extent that the judge equated the 

mere fact of different compensation of the employee-witnesses wi~h unlawful 

discrimination, we conclude that he erred as a matter of law. Accordingly, 

and for the foregoing reasons, we hold that Delisio failed to establish a 

prima facie case of discrimination prohibited under the Mine Act. 7 

6 Delisio also relies on Carpenter v. Miller, 325 S.E. 2d 123 (WV 1984), 

a decision by the West Virginia Supreme Court of Appeals. Although the West 

Virginia statutory antidiscrimination provision is, as pertinent, similar to 

section 105(c)(l) of the Mine Act, the relevant state statutory witness fee 

provision provides that all subpoenas are issued by the Director of the 

Department of Mines and "[a]ny witness so ... subpoenaed ... shall be paid out 

of the state treasury upon a requisition upon the state auditor." 325 S.E. 2d 

at 126. The court reasoned that the legislature must therefore have intended 

that miners receive no reduction in compensation due to absence from employment 

when testifying in the mine proceedings. The West Virginia court's decision is 

bottomed on a subpoena provision unlike that involved in the Mine Act. The 

Commission is not bound by state court decisions interpreting state statutory 

schemes and we are not persuaded that the court's reasoning applies in the Mine 

Act context. 

7 Two days prior to the scheduled Commission meeting in this case, the 

Commission received Mathies' first request for oral argument. The motion is 

untimely. This case was thoroughly briefed by all concerned, and the Commission 

would not have found oral argument particularly helpful in any event. 

Accordingly, the motion is denied. 

2545 
For the foregoing reasons, we reverse the judge's decision, vacate his 

award of back pay, interest, and costs, and dismiss Delisio's discrimination 

complaint. 8 _ 

~. ~~ssi4JG_ /~ /i '-.·: 

,~ l,C°'-~.,, /Le~.,__''--.· L.~Clair Nelson, Commissioner 

8 Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we have 

designated ourselves a panel of three Commissioners to exercise the powers of the 

Commission in this matter. 

Commissioner Holen assumed office after this case had been briefed and 

shortly before it was considered at a Commission decisional meeting. A new 

Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Commissioner Holen elects not to participate in 

this case. 

2546 
Distribution 

Joseph Mack, III, Esq. for Mathies 

Thorp, Reed & Armstrong 

One Riverfront Center 

Pittsburgh, Pennsylvania 15222 

Mary Lu Jordan, Esq. for Delisio 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Nichael J. Healey, Esq. for Delisio 

Healey, Whitehall 

Fifth Floor, Law & Finance Bldg. 

Pittsburgh, PA 15219 

R. Henry Moore, Esq. for Pennsylvania Coal Assn. 

Buchanan Ingersoll 

56th Floor, USX Tower 

600 Grant St. 

Pittsburgh, PA 15219 

William Hynan, Esq. 

National Coal Association 

1130 17th Street, N.W. 

Washington, D.C. 20036 

Edward Green, Esq. 

American Mining Congress 

1920 N Street, N.W., Suite 300 

Washington, D.C. 20030 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2547 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ASARCO, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 26, 1990 

Docket Nos. SE 88-82-RM 

SE 88-83-RM 

SE 89-67-M 

Before: Backley, Acting Chairman; Doyle, Holen and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seg. (1988) 

("Mine Act"), and concerns a discovery dispute between the Secretary of Labor 

and ASARCO, Inc. ("Asarco"). On November 21, 1989, Commission Admir.istrative 

Law Judge Avram Weisberger granted Asarco's motion to dismiss these 

proceedings because the Secretary refused to comply with his order requiring 

her to produce certain docwnents for inspection by Asarco. ASARCO. Inc., 

11 FMSHRC 2351 (November 1989)(ALJ). For the reasons that follow, we vacate 

the judge's order and remand this matter for further consideration consistent 

with this decision. 

I. 

Factual and Procedural Back~round 

Asarco operates the Immel Mine, an underground zinc mine located in Knox 

County, Tennessee. A fatal accident occurred at the Immel Mine on 

July 15, 1988, when an electrician contacted an energized 4,160-volt terminal 

located inside a transfer switch cabinet. An electrical apprentice assisting 

him escaped serious injury. Following an investigation, Don B. Craig, a 

supervisory inspector of the Department of Labor's Mine Safety and Health 

Administration ("MSHA"), issued Asarco two citations alleging violations of 

30 C.F.R. §§ 57.12017 & .12019 because the top terminals in the cabinet were 

not de-energized and because suitable clearance was not provided when the 

electrician was cleaning the terminals and insulators. Asarco contested the 

citations. 

2548 
On March 9, 1989, during the course of pretrial discovery, Asarco served 

the Secretary with a request for production of documents in accordance with 

Commission Proc~dural Rules 55 and 57, 29 C.F.R. §§ 2700.55 and 2700.57. The 

request for production contained nine requests for documents related to MSHA's 

investigation of the accident, including its "special investigation," 

documents related to MSHA's special assessment procedures, and other 

documents. In accordance with Commission Procedural Rule 57, Asarco asked 

that MSHA's answer be provided within 15 days. MSHA did not respond to the 

request. 

On April 21, 1989, Asarco filed a motion for an order to compel 

production of the documents sought in its March 9 request. Asarco asserted 

that the Secretary had failed to respond to the request for production except 

to notify Asarco orally that it would not comply with some of the requests on 

the basis of an "investigatory privilege." In order to facilitate production, 

Asarco agreed to limit its request for production to documents prepared during 

the past two years and, with respect to one request, to documents exchanged 

between specifically listed MSHA officials. Asarco also agreed to enter into 

a "protective order" to protect the identities of confidential info:i;mants. 

On May 12, 1989, the Secretary filed responses and objections to 

Asarco's request for production. The Secretary objected to the requests for a 

number of reasons. As pertinent to this review proceeding, she asserted that 

answering certain requests would (1) reveal the identity of miners or violate 

Commission Procedural Rule 59, 29 C.F.R. § 2700.59, 1 and (2) disclose 

protected work product of the Secretary's employees. 

On June 6, 1989, Asarco filed another motion to compel production of 

documents. As relevant here, it asserted that the government cannot proceed 

affirmatively against Asarco and, under the guise of privilege, suppress 

evidence useful to its defense. It asserted that it was entitled to 

exculpatory information in the Secretary's possession. Second, Asarco 

maintained that the Secretary misunderstood the privileges that she asserted. 

It maintained that the Secretary could not simply state that documents 

contained privileged matters but must submit the documents in question to the 

administrative law judge for in camera inspection. Asarco argued that the 

Secretary's claim of confidentiality was too generalized to meet her burden of 

showing that the documents were protected from discovery. 

1 29 C.F.R. § 2700.59 provides: 

Name of miner witnesses and informants 

A Judge shall not, until 2 days before a hearing, disclose or 

order a person to disclose to an operator or his agent the name of 

a miner who is expected by the Judge to testify or whom a party 

expects to summon or call as a witness. A Judge shall not, except 

in extraordinary circumstances, disclose or order a person to 

disclose to an operator or his agent the name of an informant who is 

a miner. 

2549 
On July 12, 1989, Judge Weisberger issued an order responding to 

Asarco's motions to compel. The judge concluded that the information sought 

in the requests for production was relevant to the proceeding. The judge 

ordered the Secretary to respond to each of the requests for production within 

10 days of the order. The judge held that the Secretary was not to disclose, 

until two days before the hearing, the name of any miner who was expected to 

be a witness or the name of any informant who was a miner. 

On July 31, 1989, the Secretary filed responses to the request for 

production. In her responses, the Secretary stated that the documents were 

being produced under protest and that she preserved for appeal all previously 

made objections. 

On August 11, 1989, Asarco filed another motion to compel production of 

documents, alleging that the Secretary's response to the judge's order 

compelling production was incomplete. As relevant here, Asarco alleged that 

the Secretary improperly excised voluminous amounts of material from the 

documents produced. Asarco maintained that the Secretary imprope~ly asserted 

"work product," "attorney/client privilege" or "miner/informant privilege" 

throughout the documents produced. In response to Asarco's motion to compel, 

the Secretary argued that she had properly excised privileged material from 

the documents produced, in part, to protect the identity of miner-informants. 

The Secretary requested the judge to view the documents in camera, if 

necessary, to resolve the matter. 

By order dated September 1, 1989, the judge directed the Secretary to 

file with him the disputed documents for in camera examination with respect to 

the claimed privileges. In reviewing these documents, the judge did not 

consult with the attorneys for the parties and did not request additional 

information. 

In an order dated September 22, 1989, the judge issued his rulings with 

respect to the excised portions of the documents. The judge discussed each 

document that contained excised material and set forth his determination as to 

what portion of each was protected by a privilege. The documents provided by 

the Secretary are contained in two files: File A (Civil Penalty Investigation 

File) and File B (Special Investigation File). The judge assigned exhibit 

letters to each contested document. In a number of instances, the judge held 

that portions of the documents that the Secretary wished to withhold from 

Asarco should be produced. 

The judge's rulings with respect to the six documents that are the 

subject of this review proceeding are as follows: 

I - FILE A 

2. Exhibit B (Special Assessment Review, August 10. 1988) -

An informer is not identified, and the entire statement is thus not to 

be excised. 

2550 
9. Exhibit I (Continuation Sheet) - Taking into account the 

significance of the excised statement, and the circumstances of this 

case, the excised portion is subject to discovery. 

II - FILE B 

3. Exhibit E - The statements by a miner (employed by Respondent) 

in response to detailed questioning by an MSHA Special Investigator are 

detailed, extensive, and hence significant and relevant to the issues of 

the instant proceedings. There is no evidence that there exists herein 

any possibility of harassment or retaliation against the informer. I 

find accordingly that Respondent's need for the information in this 

exhibit outweighs the Petitioner's need to maintain this privilege (see, 

Bright Coal Co .. Inc. 6 FMSHRC 2520 at 2526 (1984)). Accordingly, this 

exhibit is subject to discovery. 

4. Exhibit F The disposition of Exhibit F is the same as 

Exhibit E, based on the same rationale. 

5. Exhibit G - The disposition of Exhibit G is the same as 

Exhibit E, based on the same rationale. 

7. Exhibit K - The excised statements on pages 3 and 4 are 

contained in statements Dan Craig made in an interview with Robert 

Everett. Neither of these persons ha[s] been identified as attorneys. 

Accordingly, the statement of Craig are not within the scope of the 

attorney work product, or attorney/client privilege, and are 

discoverable. However, the last line of page 3 and the first 3 lines of 

page 4 are to be deleted, as they contain references to the work 

processes of a solicitor, and they are not relevant to the case at bar. 

Accordingly they are privileged. 

Order of September 22, 1989. 

The judge ordered the Secretary to serve Asarco with copies of these 

clocuments within three days. For reasons that are not clear, the judge 

attached to his order copies of some of the disputed documents that are not 

before the Commission on review. Thus, Asarco was provided with unexcised 

copies of some of the contested documents before the Secretary was given the 

opportunity to determine how she wished to respond to the judge's order. 

In response to the judge's order of September 22, the Secretary stated 

that she would "respectfully decline" to produce unexcised copies of six of 

the documents that the judge ordered her to produce and moved to seal the 

documents that she had provided to the judge. She also protested the judge's 

action in unilaterally providing certain other documents without the 

2551 
Secretary's knowledge or consent. Asarco subsequently filed motions to cancel 

the trial, impose sanctions, dismiss the penalty proceedings and vacate the 

citations. Asarco argued that the judge was correct in ordering the Secretary 

to provide the contested documents, and that its case has been prejudiced by 

the Secretary's continued failure to comply with its discovery requests. 

On October 16, 1989, the judge denied the Secretary's motion to seal the 

documents. He stated that he was "most concerned" about the Secretary's 

failure to comply with his order of September 22. He denied Asarco's motions 

to dismiss the cases and again ordered the Secretary to produce the disputed 

documents. 

On October 23, 1989, the Secretary stated that because she believed that 

the judge's order was issued in error, she had no choice but to decline to 

produce the "identifying documents" in order to obtain review by the 

Commission. On November 21, 1989, the judge dismissed the proceeding against 

Asarco based on the Secretary's continued refusal to comply with his discovery 

order of September 22. 11 FMSHRC 2351 (November 1989)(ALJ). 

The Commission granted the Secretary's subsequent petition :[or 

discretionary review. The Secretary asserts that the informant's privilege 

applies to all or part of each of the six documents on review. She asserts 

that the attorney-client privilege and the work product privilege apply to 

part of Exhibit K. 

II. 

Disposition of Issues 

A. Informant's Privilege 

The Secretary argues that each of the passages withheld from Asarco in 

the six documents are protected by the informant's privilege and are not 

subject to discovery. She relies on Commission Procedural Rule 59, and Bright 

Coal Co., 6 FMSHRC 2520 (November 1984), to support her position. She 

maintains that although the Secretary has the burden of proving facts 

necessary to support the existence of the informant's privilege, she satisfied 

this burden. She argues that once the privilege is established, the burden of 

proving facts necessary to show that the information sought is essential to a 

fair determination of the case rests with the party seeking disclosure. She 

alleges that Asarco has failed to meet this burden with respect to each 

document. 

Asarco argues that the judge's determinations, set forth above, involved 

a balancing of interests and careful consideration of the relevant facts. It 

maintains that his findings in this regard should be affirmed because they are 

supported by substantial evidence. It argues that the Commission should not 

reweigh the factors the judge considered in reaching his decision. According 

to Asarco, the judge determined that the materials sought were relevant and 

discoverable after he carefully balanced the needs of each party. Asarco 

contends that because a judge is provided with considerable discretion when 

determining what is privileged, Judge Weisberger's orders compelling 

production should not be disturbed because he did not abuse this discretion. 

2552 
In Bright, the Commission set forth in considerable detail the 

procedures to be followed if the Secretary asserts the informant's privilege. 

In that case, the Commission recognized the well established, but qualified, 

right of the government to withhold from disclosure information concerning 

possible violations of the law reported to government enforcement officials. 

Bright, 6 FMSHRC at 2522; see also. e.g., Roviaro v~ United States, 

353 U.S. 53, 59 (1957). The Commission held that this general privilege is 

applicable to the furnishing of information to government officials concerning 

possible violations of the Mine Act. 6 FMSHRC at 2524. The Commission 

concluded that an informant is "a person who has furnished information to a 

government official relating to or assisting in the government's investigation 

of a possible violation of law, including a possible violation of the Mine 

Act." 6 FMSHRC at 2525. 

In Bright, the Commission set forth the procedural framework that 

Commission administrative law judges should use in analyzing whether an 

informant's identity should be withheld. If the judge concludes that the 

information sought is relevant and, therefore, discoverable, he must determine 

whether the information is privileged. The Commission stated that the burden 

of proving facts necessary to support the existence of the privileg& rests 

with the government. 6 FMSHRC at 2523. The Commission stated: 

Recognizing that the informer's privilege is qualified, if 

the judge concludes that the privilege is applicable, he should 

next conduct a balancing test to determine whether the 

respondents' need for the information is greater than the 

Secretary's need to maintain the privilege to protect the public 

interest. Drawing the proper balance concerning the need for 

disclosure will depend upon the particular circumstances of this 

case, taking into account the violation charged, the possible 

defenses, the possible significance of the informer's testimony, 

and other relevant factors. Among the relevant factors to be 

considered are the possibility for retaliation or harassment, and 

whether the information is available from sources other than the 

government. 

The burden of proving facts necessary to show that the 

information is essential to a fair determination rests with the 

party seeking disclosure. Hodgson v. Charles Martin Inspectors of 

Petroleum. Inc., 459 F.2d [303] at 307 [(5th Cir. 1972)]. In this 

regard a demonstrated, specific need for material may prevail over 

a generalized assertion of privilege. Black v. Sheraton Corp. of 

America, 564 F.2d [531] at 545 [(D.C. Cir. 1977)]. Some of the 

factors bearing upon the issue of need include whether the 

Secretary is in sole control of the requested material or whether 

the material which. respon4ents seek is already within their 

control, and whether respondents had other avenues available from 

which to obtain the substantial equivalent of the requested 

2553 
material. Where the disclosure of the identity of an 

informer is essential to a fair determination of the 

case, the privilege must yield or the case may be 

dismissed. Roviaro, 353 U.S. at 59. 

6 FMSHRC at 2526. 

On review the Secretary does not contend that the information contained 

in the contested portions of the six documents is not relevant, but argues 

that such information is protected by the informant's privilege. Each of the 

six documents is discussed below. 

1. Exhibit B 

With respect to Exhibit B, the judge ruled that "[a]n informer is not 

identified, and the entire statement is thus not excised." Order of 

September 22, 1989, p.l. It appears that the judge held that the privilege is 

not applicable to the relevant passage in Exhibit B because it does not 

contain the name of the informant. 

It is well established that "where the disclosure of the contents of a 

communication will tend not to reveal the identity of an informer, the 

contents are not privileged." Roviaro, 353 U.S. at 60. If, on the other 

hand, the content of a communication would tend to reveal the identity of the 

informant, the contents are privileged. Westinghouse Electric Corp. v. City 

of Burlington, 351 F.2d 762, 768 (D.C. Cir. 1965); Hodgson v. Charles Martin 

Inspectors of Petroleum. Inc., 459 F.2d 303, 306 (5th Cir. 1972). See also 

Annotation, Application. in Federal Civil Action. of Governmental Privilege of 

Nondisclosure of Identity of Informer, 8 A.L.R. Fed. 6, 27-28 (1971). The 

Secretary argues that because the universe of persons in this case with 

knowledge of the facts is small, release of the statement would reveal the 

identity of the informant notwithstanding the fact that the informant's name 

is not actually contained in the document. Asarco maintains that the judge's 

finding of fact that release of the statement would not reveal the identity of 

the informant must be upheld unless it is not supported by substantial 

evidence. 

As stated above, there can be no dispute that an informant's statement 

is protected by the privilege if it would tend to reveal his identity. As the 

above authorities make clear, whether an informant is identified by name is 

not the sole basis for making that determination. The judge was required to 

determine whether release of the entire document, including the disputed 

passage, would tend to reveal the identity of the informant. We believe that 

he failed to do so and, accordingly, committed error. 

Accordingly, we vacate the judge's order of September 22, 1989, with 

respect to Exhibit B of File A and remand the issue for further consideration 

by the judge. The judge should determine whether release of the statement 

attributed to an unidentified informant would tend to reveal the informant's 

identity, taking into consideration the factual context of this case. If the 

judge determines that release of the statement would tend to reveal the 

identity of the informant, the judge must then determine whether Asarco's need 

2554 
for the information outweighs the Secretary's need to maintain the privilege, 

taking into account the factors set forth in Bright, quoted above, and as 

discussed further below. 

2. Exhibit I 

With respect to Exhibit I, the judge ruled that "[t]aking into account 

the significance of the excised statement, and the circumstances of this case, 

the excised portion is subject to discovery." Order dated September 22, 1989, 

p. 2. It appears that the judge may have used the Bright balancing test and 

concluded that Asarco's need for the information outweighed the Secretary's 

need to maintain the privilege. It is difficult to determine, however, what 

specific factors the judge balanced in reaching his conclusion. 

The Secretary argues that she was not in sole control of the information 

sought by Asarco in this exhibit because the same information would be 

available to Asarco by taking the depositions of the small number of persons 

with knowledge of the facts of this case. She maintains that, as a result, 

Asarco failed to meet its burden of demonstrating a specific need for the 

document. Asarco maintains that the judge properly balanced the competing 

interests of the parties and that the Secretary is asking the Commission to 

examine the document de novo to determine whether the contested passage in the 

document should have been provided to Asarco. It maintains that the 

Commission should not reweigh the judge's determinations but should determine 

whether the judge abused his discretion. 

We generally agree with Asarco that the Commission cannot merely 

substitute its judgment for that of the administrative law judge in this 

context. The Commission is required, however, to determine whether the judge 

correctly interpreted the law or abused his discretion and whether substantial 

evidence supports his factual findings. Cf. Knox County Stone Co., 

3 FMSHRC 2478, 2480 (November 1981) (articulating similar standard of review 

of a judge's disposition of a settlement). 

In Bright, the Commission held that the burden of proving that the 

information in the documents sought is essential to a fair determination of 

the issues rests with the party seeking disclosure. 6 FMSHRC at 2526; see 

also Hodgson, 459 F.2d at 307. The Commission stated that important factors 

to be considered when evaluating whether the documents sought are essential 

include "whether the Secretary is in sole control of the requested material or 

whether the material which respondents seek is already within their control, 

and whether respondents had other avenues available from which to obtain the 

substantial equivalent of the requested material." 6 FMSHRC at 2526 (emphasis 

added). We cannot determine from review of the text of the judge's 

September 22, 1989, order if he considered whether the information contained 

in the disputed document could also be obtained from another source. The 

order also does not explain how the judge determined that Asarco's need for 

the information was greater than the Secretary's need to maintain the 

privilege to protect the public interest. Specifically, the order does not 

set forth the basis for the judge's conclusion that Asarco's need for the 

document was essential to a fair determination of the issues in the case. The 

judge simply stated that the excised statement in the document was 

2555 
"significant." 

Given the strong policy embodied in the Mine Act to protect the identity 

of informants, as explained in Bright, the fact that the judge did not set 

forth the basis for his conclusion that Asarco demonstrated that the document 

was essential to a fair determination of the issues, and the fact that the 

judge apparently did not consider whether Asarco could have obtained 

substantially similar information by other means, we vacate the judge's order 

of September 22, 1989, with respect to Exhibit I of File A. We remand this 

issue to the judge for further consideration. One of the factors that the 

judge should consider in balancing the interests of the parties should be 

whether Asarco could obtain substantially similar information from other 

sources. The judge should determine whether the information excised by the 

Secretary is essential to a fair determination of the issues and he should 

clearly articulate the basis for his conclusion. 

3. Exhibits E, F & G 

The judge held that Exhibits E, F & G of File B, which are detailed 

statements of miners, are "significant and relevant to the issues.""" Order of 

September 22, 1990, p.2. He further stated that the record contains no 

evidence of "any possibility of harassment or retaliation against the 

informer[s]." Id. He concluded that Asarco's need for the information in 

these exhibits outweighed the Secretary's need to maintain the privilege. 

As with Exhibit I, discussed above, the judge apparently did not 

consider whether the information in these statements could be obtained through 

depositions or by other means. The order does not set forth the basis for the 

judge's conclusion that Asarco's need for the information was essential to a 

fair determination of the issues. We also do not find a full articulation of 

the basis for his conclusion that Asarco's need for the information outweighed 

the Secretary's need to maintain the privilege. 

Although under a Bright analysis the judge may consider the "possibility 

for retaliation or harassment," the Secretary is not required to present 

evidence that harassment or retaliation is likely or possible in the case 

being considered. The informant's privilege protects generally and broadly 

against possible retaliation and applies regardless of whether a particular 

operator would actually retaliate against an informant. "The purpose for 

allowing the informer's privilege ... is to make retaliation impossible, thus 

obviating the deterrent force of sanctions for retaliation." Wirtz v. 

Continental Finance & Loan Co., 326 F.2d 561, 564 (5th Cir. 1964). It appears 

that the judge put great weight on the lack of "evidence" that retaliation or 

harassment was possible. The judge did not take any evidence on this issue 

and it is doubtful whether the Secretary could produce such evidence in any 

particular case, even if she were given the opportunity. 

Based on the foregoing, we vacate the judge's order compelling the 

Secretary to produce Exhibits E, F and G of File B and remand the issue for 

further consideration by the judge. On remand the judge should consider 

whether Asarco could obtain substantially similar information from other 

sources and whether these documents are essential to a fair determination of 

2556 
the issues. Finally, the judge should weigh the factors set forth in Bright 

and clearly articulate the basis for his conclusion. 

4. Exhibit K 

The judge did not decide whether the relevant material in Exhibit K is, 

as the Secretary contends, protected by the informant's privilege. His ruling 

with respect to this exhibit relates exclusively to consideration of other 

privileges, as discussed below. The Secretary maintains that the judge's 

failure to rule indicates that he determined that the subject statements 

should not be provided. We cannot make that assumption on the existing 

record, and remand this issue to the judge for his reconsideration in 

accordance with this decision and Bright. 

B. Work Product Rule 

The passages of Exhibit K that the Secretary contends are protected by 

the work product rule are notes that MSHA Special Investigator Robert Everett 

made while interviewing MSHA Supervisory Inspector Craig concerning Craig's 

conversation about this case with an attorney of the Secretary's So~icitor's 

office. The Secretary argues that since the writing discloses the thoughts of 

an attorney, the contested passages are protected by the work product rule, 

notwithstanding the fact that the writing was by the hand of the "client." 

Asarco maintains that since the document was not prepared by an attorney, it 

falls outside of the scope of the work product rule. Asarco also asserts that 

this rule does not apply because the Secretary does not allege that the 

contested passages contain the impressions or personal recollections prepared 

or formed by an attorney for his own use in prosecuting his client's case. 

The work product rule has its modern origins in the case of Hickman v. 

Taylor, 329 U.S. 495 (1947), and in Rule 26(b)(3) of the Federal Rules of 

Civil Procedure. ("Fed. R. Civ. P"). 2 Unlike the attorney-client 

privilege, discussed below, the work product rule does not solely protect 

confidential communications between attorney and client and is best described 

2 Fed. R. Civ. P. 26(b)(3) provides in pertinent part: 

... [A] party may obtain discovery of documents and tangible 

things otherwise discoverable under subdivision (b)(l) of this rule 

and prepared in anticipation of litigation or for trial by or for 

another party or by or for that other party's representative 

(including the other party's attorney, consultant, surety, 

indemnitor, insurer, or agent) only upon a showing that the party 

seeking discovery has substantial need of the materials in the 

preparation of the party's case and that the party is unable without 

undue hardship to obtain the substantial equivalent of the materials 

by other means. In ordering discovery of such materials when the 

required showing has been made, the court shall protect against 

disclosure of the mental impressions, conclusions, op1n1ons, or 

legal theories of an attorney or other representative of a party 

concerning the litigation. 

2557 
as a qualified immunity against discovery. In order to be protected by this 

immunity under Fed. R. Civ. P. 26(b)(3), the material sought in discovery must 

be: 

1. "documents and tangible things;" 

2. "prepared in anticipation of litigation or for trial;" and 

3. "by or for another party or by or for that party's 

representative." 

See ~enerally 8 C. Wright & A. Miller, Federal Practice and Procedure § 2024, 

pp. 196-97 (1970); 6 J. Moore, J. Lucas & G. Grotheer, Moore's Federal 

Practice ~26.64 (2d ed. 1989). 

It is not required that the document be prepared by or for an attorney. 

Wright & Miller, supra, § 2024, pp. 207-09; Moore, supra, ~26.64[2]; U.S. v. 

Chatham City Corp., 72 F.R.D. 640, 642-43 (S.D. Ga. 1976). If materials meet 

the tests set forth above, they are subject to discovery "only upon a showing 

that the party seeking discovery has substantial need of the materials in the 

preparation of the party's case and that the party is unable without undue 

hardship to obtain the substantial equivalent of the materials by other 

means." Fed. R. Civ. P. 26(b)(3). If the court orders that the materials be 

produced because the required showing has been made, the court is then 

required to "protect against disclosure of the mental impressions, 

conclusions, opinions, or legal theories of an attorney or other 

representative of a party concerning the litigation." Id. 

Commission Procedural Rule 55(c), 29 C.F.R. § 2700.SS(c), provides, as 

pertinent here, that parties may obtain discovery of any relevant matter that 

is not privileged. The Commission is guided, "so far as practicable" and as 

is "appropriate," by the Federal Rules of Civil Procedure on procedural 

questions not regulated by the Mine Act or its rules. 29 C.F.R. § 2700.l(b). 

In applying Fed. R. Civ. P. 26(b)(3) to the contested passages of Exhibit K, 

the material in dispute is clearly a document. In addition it was prepared by 

a party to this litigation or by its representative, MSHA Special Investigator 

R.L. Everett. As stated above, it is not necessary that the document be 

prepared by or for an attorney. 

The key issue is whether Exhibit K was prepared in anticipation of 

litigation. If, in light of the nature of a document and the factual 

situation in the particular case, the document can fairly be said to have been 

prepared because of the prospect of litigation, then the document is covered 

by the privilege. Wright & Miller, supra, § 2024, p. 198-99. If, on the 

other hand, litigation is contemplated but the document was prepared in the 

ordinary course of business rather than for the purposes of litigation, it is 

not protected. Id. In addition, particular litigation must be contemplated 

at the time the document is prepared in order for the document to be 

protected. Finally, documents prepared for one case have the same protection 

in a second case, if the two cases are closely related. Wright & Miller, 

2558 
supra, § 2024, p. 201. 

The record appears to us to reveal that the disputed portions of the 

special investigator's notes were prepared in anticipation of litigation. A 

major function of an MSHA special investigation is to determine whether 

litigation should be commenced under section llO(c) or (d) of the Mine Act. 

30 U.S.C. § 820(c) & (d). A special investigator does not know at the outset 

of his investigation whether charges will be filed in that particular case. 

Nevertheless, the purpose of his investigation is to allow the Secretary to 

determine whether a case should be filed. 

It is our understanding that no charges have been brought as a result of 

Everett's special investigation. Nevertheless, this civil penalty case, 

brought under section llO(a), 30 U.S.C. § 820(a), is closely related 

litigation and it further appears that it could fairly be said that the 

document was prepared in anticipation of that litigation. See Kent Corp. v. 

NLRB, 530 F.2d 612, 623-24 (5th Cir. 1976), cert. denied, 429 U.S. 920 (1976) 

(investigative reports of NLRB regional office are prepared in anticipation of 

litigation even though at time reports were prepared there had been no 

determination that charges had substance); Chatham, 72 F.R.D. at 64~43 (notes 

of interviews conducted by FBI agents constitute materials prepared in 

anticipation of civil rights litigation). 

Thus, it would appear that the excised portions of Craig's statements 

contained in Exhibit K meet the relevant immunity tests described above. We, 

therefore, vacate that part of the judge's order of September 22, 1989, that 

held that the excised portions of the statements of Craig in Exhibit K are not 

within the scope of the work product rule. However, the judge may have 

considered relevant factors or nuances not fully reflected in his prior order. 

Accordingly, we remand this issue to the judge for further consideration 

consistent with this decision. In accordance with Commission Procedural Rule 

l(b), 29 C.F.R. § 2700.l(b), the judge should use Fed. R. Civ. P. 26(b)(3) as 

a guide in analyzing this issue. 

C. Attorney-Client Privilege 

In his consideration of Exhibit K, the judge summarily concluded that 

the statements of Craig were not within the protection of the work product 

rule or the attorney-client privilege. Inasmuch as we are remanding the work 

product rule issue, we also remand the attorney-client privilege issue. We 

note in passing that the attorney-client privilege generally protects 

communications made by the client in confidence to his attorney and does not 

protect an attorney's mental impressions, conclusions, opinions or legal 

theories. Wright & Miller, § 2017, pp. 132-33; Hickman v. Taylor, 

329 U.S. at 508. 

2559 
III. 

Conclusion 

The proc.edure to be followed by a judge, as set forth in Bri&ht, bears 

repeating: 

If, on the one hand, the judge concludes that the 

Secretary's need to preserve the identity of his informers should 

prevail, he should deny the amended motion to compel production of 

documents, seal the material previously withheld as part of the 

record for use on any appeal, and proceed to decide the case on 

the merits without resort to the sanctions previously imposed due 

to the Secretary's nondisclosure of the statements. If, on the 

other hand, the judge concludes that the respondents' need for 

this information is essential for a fair determination of the 

case, and that the privilege must yield, he should order the 

Secretary to disclose the information. The judge may, at his 

discretion, conduct a limited hearing to afford the parties an 

opportunity to develop additional evidence based upon t:he 

disclosure. He should then proceed to decide the case solely on 

the basis of the supplemented record. Should the Secretary resist 

the judge's order to disclose, dismissal of the proceeding is the 

appropriate sanction with further review available in accordance 

with section 113(d)(2) of the Mine Act. 30 U.S.C. § 823(d)(2). 

In any event, the judge's decision must be supported by findings 

of fact and conclusions of law, and be grounded in the body of 

case law developed by the Commission in the areas of work refusal 

and discriminatory discharge. 

6 FMSHRC at 2526. Under no circumstances should the judge transmit the 

disputed documents to the party requesting them if he determines that a 

privilege should yield. Instead, he should order the party asserting the 

privilege to produce the material. If that party refuses to do so, dismissal 

or other sanctions may be appropriate. 

2560 
For the reasons set forth above, we vacate the judge's order of 

November 21, 1989, dismissing these proceedings. We vacate that portion of 

the judge's order of September 22, 1989, directing the Secretary to produce 

the excised portions of the six disputed documents and we remand this matter 

to the judge for further proceedings consistent with this decision. 3 

Richard V. Backley, Acting Chairman !./" 

Arlene olen, Commissioner 

' 0 i '--71 ., ~v I LLLJ-~v 

L. Clair Nelson, Commissioner 

3 We note that this case concerns Asarco' s requests for documents 

during the discovery phase of this proceeding. We need not, and do not, decide 

in this case whether Asarco would be entitled, at the time of trial, to a 

document that is otherwise protected by the informant's privilege, if the 

Secretary calls that informant as a witness in the proceeding. 

256l. 
Distribution 

Henry Chajet, Esq. 

David J. Hardy, Esq. 

Jackson & Kelly 

1701 Pennsylvania Ave., N.W. 

Suite 650 

Washington, D.C. 20006 

Jerald S. Feingold, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety and Health Review Commission 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

2562 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOHN S. GUIDO, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 

Complainant 

51990 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 90-64-D 

MSHA Case No. MORG CD 90-02 

SOUTHERN OHIO COAL COMPANY, 

Respondent Martinka No. 1 Mine 

Appearances: 

Before: 

DECISION 

Daniel v. Lane, Esq., Salem, West Virginia, for 

the Complainant; 

Joseph M. Price, Esq., Robinson & McElwee, 

Charleston, West Virginia, for the Respondent. 

Judge Fauver 

Complainant brought this action under § 105(c) of the 

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

et seg. He contends that, following a mine accident in which he 

was injured on May 7, 1989, 1 he requested an MSHA investigation 

under§ 103(g) of the Act and Respondent discriminated against 

him because of his § 103(g) request to MSHA. He alleges three 

acts of discrimination: (1) cutting off his workmen's 

compensation, (2) putting him in step three of the employer's 

absentee control program, and (3) making derogatory statements 

about Complainant in Respondent's conference with MSHA concerning 

the May 7, 1989, incident. 

The case was heard in Morgantown, West Virginia, on 

September 6, 1990. 

DISCUSSION 

Under the Act, a complaining miner has the burden to prove 

that he engaged in a protected activity, and that the adverse 

action complained of was motivated in any part by that activity. 

Boich v. FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1984). 

1 complainant reported to his employer that he was injured 

when a conveyor belt was started without warning. 

2563 
For the reasons shown below, I find that the reliable 

evidence does not sustain Complainant's allegations of 

discrimination. · 

After Complainant requested MSHA to investigate the May 7, 

1989, accident under§ 103(g) of the Act 1 MSHA investigated, and 

issued a citation for activating the conveyor belt without 

adequate warning. Respondent challenged the citation as to its 

"gravity" findings. At a conference between MSHA and Respondent, 

concerning the citation, Respondent contended that Complainant 

did not have a witness to his alleged injury and was not a 

reliable witness himself. During the conference, Respondent's 

accident prevention officer, Wesley Dobbs, stated or implied to 

MSHA that Complainant had some 40 accidents or injuries in the 

past and was not "much account" as a worker or a witness. I find 

that Respondent's remarks about Complainant as a worker and as a 

witness were part of a settlement discussion, and were not 

discriminatory because of Complainant's § 103(g) request. It was 

part of Respondent's factual contention for requesting MSHA to 

reduce the degree of gravity alleged in the citation. 

Complainant testified that he had heard that Respondent's 

representative, Wesley Dobbs, used profanity in his description 

of Complainant to MSHA. However, the evidence does not sustain 

this hearsay. 

The reliable evidence does not show that Complainant's 

workers' compensation was cut off. He was paid in full under 

workers' compensation. Although there was some delay in making 

some of the payments, the evidence does not show that the delays 

were discriminatory. 

Finally, the evidence shows that at the time of the accident 

Complainant was already in step three of the employer's absentee 

control program. Respondent did not change his status or take 

adverse action against him under this program after his § 103(g) 

request for an investigation. 

On balance, I find that Complainant has not met his burden 

of proof to show a violation of § 105(c) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that this proceeding is DISMISSED. 

Distribution: 

tJ.il~ -;r.MA.V~ William /a~~er Administrative Law Judge 

Daniel V. Lane, Esq., 123 East Main Street, Salem, WV 26426 

(Certified Mail) 

Joseph M. Price, Esq., Robinson & McElwee, Post Office Box 1791, 

Charleston, WV 25326 (Certified Mail) 

2564 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 61990 

BLUE DIAMOND COAL COMPANY, CONTEST PROCEEDINGS 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLUE DIAMOND COAL COMPANY, 

Respondent 

. . 

. . 

Docket No. KENT 89-258-R 

Order No. 3370844; 8/16/89 

Docket No. KENT 90-68-R 

Order No. 3372825; 12/l.l/89 

Docket No. KENT 90-79-R 

Order No. 3372824: 12/11/89 

Docket No. KENT 90-80-R 

Order No. 3372827; 12/12/89 

Docket No. KENT 90-81-R 

Order No. 3372371; 12/12/89 

Scotia Mine 

Mine ID 15-02055 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 90-67 

A.C. No. 15-02055-03658 

Docket No. KENT 90-170 

A.C. No. 15-02055-03669 

Scotia Mine 

DECISION 

Appearances: Randall s. May, Esq., Barret, Haynes, May, Carter 

& Roark, P.s.c., Hazard, Kentucky, for the 

Contestant/Respondent; 

Before: 

Joseph B. Luckett, Esq., u.s. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, for 

the Respondent/Petitioner. 

Judge Maurer 

2565 
STATEMENT OF THE CASE 

Contestant, Blue Diamond Coal Company (Blue Diamond), has 

filed notices of contest challenging the issuance of 

section 104(d) (1) Order No. 3370844 (Docket No. KENT.89-258-R), 

section 104(d) (2) Order Nos. 3372825, 3372824, and 3372827 

(Docket Nos. KENT 90-68-R, -79-~, and -80-R, respectively) and 

section 107(a) Order No. 3372371 (Docket No. KENT 90-81-R) at its 

Scotia Mine. The Secretary of Labor (Secretary) has filed a 

petition seeking civil penalties in the total amount of $4000 for 

the violations charged in the above four contested "d" orders. 

No penalty was assessed, of course, for the section 107(a) order. 

Pursuant to notice, these cases were heard in London, 

Kentucky on May 30, 1990 (Docket Nos. KENT 89-258-R and KENT 

90-67) and August 7, 1990 (the other five). They are 

consolidated here for purposes of decision as they are related 

matters, particularly with respect to the applicability of the 

"d" chain. -

At the hearing on August 7, 1990, Blue Diamond moved to 

withdraw its application for review in Docket No. KENT 90-81-R. 

There was no objection heard from the Secretary and thus I 

approved that withdrawal on the record. That proceeding is 

therefore dismissed without further consideration. The 

section 107(a) order will, of course, be affirmed. 

STIPULATIONS 

The parties have agreed to the following five stipulations, 

which I accept (Gov't Ex. No. 1): 

1. The operator produced approximately 1,315,000 tons 

of coal at the Scotia .Mine in 1989. 

2. The operator employed approximately 300 workers at 

the Scotia Mine during the final quarter of 1989. 

3. The civil penalty assessment will not affect the 

operator's ability to continue in business. 

4. The operator has another mine of approximately the 

same size as the Scotia Mine. 

5. The presiding administrative law judge has 

jurisdiction to hear and decide this case. 

I. Docket No. KENT 89-258-R; Order No. 3370844 

on August 16, 1989, Order No. 3370844 was issued pursuant to 

section 104(d) (1) of the Federal Mine Safety and Health Act of 

2566 
1977, 30 u.s.c. § 801 et~ (the Act) and alleges a violation 

of the regulatory standard at 30 C.F.R. § 75.220(a) (1) and 

charges as follows (Government Ex. No. 4): 

The approved roof control plan for the mine, revised 

05-23-89, which requires that if travel is blocked from 

the longwall section to the tailgate entry, the miners 

will be notified and re-instructed regarding escape 

procedures in the event of an emergency, and location 

and availability of self-contained self-rescue devices, 

is not being complied with in the MMV, 040-0 longwall 

shear section. Access to the tailgate entry is blocked 

as a result of the longwall face conveyor being off 

center. The tailgate is located approximately 5 feet 

outby the solid coal rib line, and as mining progresses 

the crushed coal and other material is being left 

behind preventing access to the tailgate entry. 

According to the Section Foreman, Bill Vann, the miners 

have not been notified and instructed as required b.Y 

the roof control plan. 

The crux of the matter is that the inspector states that 

passage from the longwall face area to the tailgate entry was 

blocked. He maintains that coal was "stacked in" from the floor 

to the roof. There was no access into the tailgate entry, except 

a small opening up near the face of the wall, about 12 by 14 

inches. 

The fact that a tailgate entry is blocked does not in and of 

itself violate the regulations. The alleged violation herein is 

a failure to comply with the roof control plan. More 

specifically, a provision of the plan requires that where travel 

out of the section through the tailgate side of the longwall 

section is prevented by a ground failure, the operator must take 

several steps. Among them are to notify the affected miners that 

the travelway is blocked and re-instruct these miners regarding 

escapeways, escape procedures and the availability and location 

of self-contained self-rescue devices. The complete list is 

contained on page 15, item 6 of Government Ex. No. 2. 

This case turns on the condition precedent to the above roof 

control plan provision. Did the operator have a duty to perform 

these functions? Was the tailgate entry blocked? The answer 

depends on the assignment of credibility to the various 

witnesses. The Secretary's witnesses state it was definitely 

blocked. The operator's witnesses state just as definitely that 

it was not. 

Inspector Davis, who wrote the order, of course testified to 

the effect that with the exception of the small opening alluded 

to earlier, the tailgate entry was blocked and travel out into 

the tailgate entry was therefore precluded. However, his 

2567 
testimony is weakened 

this observation from 

away, at shield 141. 

feet wide, to hold up 

somewhat by his own admission that he made 

a distance of approximately fifteen feet 

There are 144 longwall shields, each five 

the roof across the face area. 

Photographs of the area in question introduced by Blue 

Diamond through the testimony of Mr. Childers, who was and is the 

longwall coordinator, depict the impossibility of seeing the 

clearance the company says was there from too far away. 

Mr. Childers testified using one of these photos at Tr. 147: 

A. Okay. This photograph here is inside the shield 

line looking out into the tailgate entry. 

MR. LUCKETT: And that is marked BD Exhibit 5. 

(BY MR. MAY) So for the judge's edification, 

Mr. Childers, if one were 15 feet back up in here, this 

pretty clearly shows the view how one would not be-able 

to determine access into the tailgate entry if you 

didn't go any further? 

A. If you didn't go any further to look at, you 

couldn't, because the way the shields are, the shield 

range--they start out here, and they're about 6 inches 

thick. They go right on down to maybe a foot thick at 

the back ends of •em. If they have any material at all 

on top of them, they are lower than the roof line. And 

when the shear cuts out and piles the coal up, if you 

look--just stand back there and look straight down like 

you're looking out into the tail entry, you'll just see 

a pile of coal. If you don't go to the end of the 

shields, you can't see over the top of the coal that's 

been piled up. 

Mr. Tommy Engle, a field office supervisor and a former 

underground coal mine inspector, also testified on behalf of the 

Secretary. He also, like Inspector Davis, was on the subject 

longwall section on August 16, 1989. He states that coal had 

accumulated in the area of the tailgate entry to the point it had 

totally blocked passage into the tailgate entry. The coal was 

packed from the mine floor to against the roof, with a slight 

opening near the roof at the end of the longwall face. This 

opening was approximately twelve by twelve inches. This 

testimony is perfectly congruent with that of Inspector Davis. 

There is some discrepancy in Mr. Engle's testimony, however, 

as to where he made this observation from. At trial, he 

emphatically stated that he went up to the last shield, up to the 

accumulation and even tried to push his way through the 

accumulation. However, his deposition testimony, given on May 2, 

1990, was to the effect that he stopped 14 feet from the area 

2568 
where MSHA alleges the tailgate entry was blocked, stood there 

for three or four minutes evaluating whether he could see over 

the top of the accumulation and then turned around and went back 

towards the headgate entry. It was while he was there in that 

position that he determined that the coal was stacked to the roof 

and the travelway was totally blocked off (Engle Deposition 

Tr. 6-7). Therefore, I find Mr. Engle's trial testimony on this 

point to be impeached by his prior inconsistent statement. 

Mr. Billy Vann, a longwall production foreman, testified 

that he took a spad measurement and a.methane reading out in the 

tailgate entry at approximately 1:45 a.m. on August 16, 1989. At 

that time he had between 2 and 3 feet of clearance between the 

loose coal and the roof going into the tailgate entry. Mr. Vann 

was again at the tailgate exit area at approximately 6:00 a.m. 

At that time, only one pass or cut-out of coal had been done by 

the longwall. Vann stated that at this time the tailgate entry 

was not blocked and was accessible, there still being 

approximately 2 to 3 feet of clearance. 

The subject order was issued at 8:35 a.m. and Vann testified 

that he informed Inspector Davis at 8:45 a.m. that the tailgate 

entry was not blocked in his opinion but that Davis said he 

thought it was and turned and asked Supervisor Engle his opinion. 

Engle stated that he felt the same way as Davis even though all 

of this conversation took place at approximately 8:45 a.m. in the 

headgate entry area and Engle had not even been to the tailgate 

entry area yet. He didn't go there until approximately 9:15 a.m. 

Mr. Vann also opined that if one merely stopped at shield 

141 and looked as Inspector Davis did, the bottom of the shield 

would have been just about even with the loose coal and the 

clearance would not have been visible from there. 

James S. Owens was a repairman on the longwall section on 

August 16, 1989. He, along with fellow repairman, Rex Conley, 

did repair work in the tailgate exit area until approximately 

4:00 a.m. that morning. They both saw Bill Vann go over into the 

tailgate entry to take his measurements and methane check that 

morning. They testified to the effect that Vann had no trouble 

going into the tailgate entry and that it was not blocked. They 

also both indicated that they likewise would have had no 

difficulty getting in the tailgate entry if there had been any 

need. 

Donald Walker was the tailgate shear operator on the 

longwall on August 16, 1989. Walker testified that one pass or 

cut-out was made by the longwall the entire third shift and he 

was right at the tailgate entry area at approximately 6:00 a.m., 

after the one cut-out or pass had been made. At this time and 

until 8:00 a.m., Walker stated the tailgate entry was never 

2569 
blocked and that it was accessible without the necessity of 

shoveling. 

Ricky Campbell was the headgate shear operator on the 

longwall on August 16, 1989, working the third shift. Campbell 

first went to the tailgate exit side of the longwall at 

approximately 6:00 a.m. At that time one pass or cut-out had 

been done and Campbell stated he could see that the tailgate 

entry was not blocked and he could have gotten over into the 

entry. 

Sam Foutch was a shield puller working the day shift 

(7:00 a.m. to 5:00 p.m.) on August 16, 1989. Foutch explained 

that a shield puller advances the shields on the longwall as the 

pan advances. On August 16, Foutch worked on pulling shields 96 

to the end of the tailgate, or shield 144. He was performing 

this work at approximately .9:00 a.m., around shield 144 next to 

the tailgate entry, and he states that the tailgate entry was not 

blocked at this time. This is some 25 minutes after the order 

was written. In fact, Foutch stated that he shoveled loose coal 

and rock off the pontoons of the shields over into the tailgate 

entry and thus, he knows the tailgate entry could not have been 

blocked. This witness also stated he saw Bob Childers go over 

into the tailgate entry at approximately 9:00 a.m. to get a 

measurement to see how the longwall was running. 

Doyle Cornett was a production foreman on the longwall face 

August 16, 1989, working the day shift. Cornett first got to the 

section around 8:00 a.m, accompanied by Inspector Davis. He 

reaffirmed that Davis only went as far as shield 141 and did not 

go on down to the last shield by the tailgate entry which would 

have been 15 to 18 feet away in his estimation. Cornett also 

opined that one could not see behind the shields into the 

tailgate entry from that position. 

James Robert (Bob) Childers was the longwall coordinator on 

August 16, 1989, working the day shift. Childers was accompanied 

underground at approximately 7:15 a.m., by Inspector Davis and 

Supervisor Engle. He stayed at the headgate area of the longwall 

with Engle while Davis and Doyle Cornett travelled toward the 

tailgate exit area at approximately 8:00 a.m. Between 8:45 a.m 

and 9:00 a.m., Childers went to the tailgate exit area himself 

after the order had been issued. Childers explained that he went 

to check the tailgate entry himself because he had been told that 

Inspector Davis didn't go all the way to the end of it. He 

stated that his own examination revealed that the tailgate entry 

was not blocked and was accessible and he even went out into the 

entry himself through a 4 foot by 2 foot clearance. 

While heading back toward the headgate area after his 

examination he ran into Engle coming.down the panline. Together 

they went back toward the tailgate entry. Engle stopped at 

2570 
shield 141 according to Childers and never went further. 

Childers stated that Engle never was out of his sight during this 

time and that Engle did not go to the tailgate entry and try to 

push his way through as Engle has testified to. 

Before leaving the stand, Childers also reiterated the 

almost universally held position that one would not be able to 

determine if the tailgate entry was blocked or not from shield 

141 or 15 feet away because of the obstructed view and line of 

sight. 

Based on my thorough review of this trial record once again, 

I find the evidence to be simply overwhelming in favor of Blue 

Diamond's position on the ultimate factual issue. I likewise 

make the credibility choices in their favor and I find as a fact 

that the tailgate entry was not blocked; it was at the time the 

order was issued, open and passable, accessible to the affected 

miners. 

It therefore follows that Blue Diamond did not violate 

30 C.F.R. § 75.220 (a) (1) as charged and Order No. 3370844 will 

accordingly be vacated. 

II. Docket Nos. KENT 90-68-R, -79-R AND -80-R; Order 

Nos. 3372825, 3372824 and 3372827 

All three of these orders were issued pursuant to 

section 104(d) (2) of the Act. However, because I informed the 

parties that I was going to vacate section 104(d) (1) Order No. 

3370844, the Secretary, at the hearing on August 7, 1990 moved to 

convert Order No. 3372824 to a section 104(d) (1) Citation, Order 

No. 3372825 to a 104(d) (1) Order and Order No. 3372827 would 

remain a (d) (2) Order. This would have the effect of re-starting 

the 11 d 11 chain on December 11, 1989. 

Order No. 3372824 alleges a violation of the mandatory 

standard found at 30 C.F.R. § 75.400 and charges as follows 

(Government Exhibit No. 3): 

Loose coal and fine dry coal dust have been permitted 

to accumulate 3 11 to 9 11 inches in depth, (as measured 

with a standard measuring tape) in the Nos 2, 3 and 4 

entries of the MMV 032-0 beginning at the section 

loading point and extending inby for a distance of 

approximately 180 feet. The accumulations are 

intermittent and the coal has been crushed and 

pulverized by the 105C Joy Shuttle Cars during haulage 

operations. 

Inspector Davis was again the inspector who found this 

violation and he testified to the effect that he observed 

2571 
accumulations of loose coal and fine, dry coal dust in the 

roadways from rib to rib in Nos. 2, 3 and 4 entries. He measured 

these accumulations and found them to be 3 to 9 inches in depth 

beginning at the section loading point and extending inby for a 

distance of approximately 180 feet. These black accumulations 

were intermittent and were pulverized by the shuttle cars 

traveling in the roadways. 

He also testified that the danger presented by these 

accumulations is a mine fire or a mine explosion. Furthermore, 

where you have accumulations of combustible materials, there is 

always the possibility that you will have a methane ignition in 

the face area and these accumulations would cause the ignition to 

probably spread or propagate into other areas of the mine, 

depending how fine, dry and pulverized the accumulations are. 

There was a lot of electrical equipment on the section at the 

time as well. A power center was located just 30 feet from the 

accumulations. He felt that serious injuries were reasonably 

likely to occur to the section crew such as smoke inharation in 

the event of a mine fire, which occurrence he also believed to be 

reasonably likely. He further opined that if you had a methane 

ignition which propagated into a mine dust explosion, then it 

could be fatal. Therefore, he believed the violation was 

"significant and substantial". 

He also marked the negligence as "high". He felt this was 

an "unwarrantable" violation as well as "S & S". He estimated 

the accumulations had been there for at least two production 

shifts based on the pulverized condition of the accumulations and 

their depth. However, when directly asked on cross-examination, 

he had to admit that he did not know how long the accumulations 

had been in the roadways. 

Inspector Carlos Smith corroborated Davis' factual testimony 

regarding the description of the accumulations, estimating the 

depth as between 8-10 inches of loose, pulverized coal. But he 

likewise couldn't say for sure how long these accumulations had 

existed, but he estimated that they had been there for a shift or 

two. 

There is no doubt that a violation of 30 C.F.R. § 75.400 

existed as the inspectors described it. Furthermore, I also 

believe the violation was "significant and substantial" (S & S). 

A "significant and substantial" violation is described in 

section 104(d) (1) of the. Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

2572 
illness of a reasonably serious nature." Cement Division. 

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

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

In United States Steel Mining Company. Inc., 7 FMSHRC 1125, 

1129 (August 1985), the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the 

language of section 104(d) (1), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining 

Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc, 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

In this regard, I fully credit the unrebutted and 

essentially unopposed testimony of Inspector Davis on the issues 

of gravity, seriousness and S & s. 

In several relatively recent decisions concerning the 

interpretation and application of the term "unwarrantable 

failure," the Commission has further refined and explained this 

term, and concluded that it means "aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act." Emery Mining Corporation, 

9 FMSHRC 1997 (December 1987); Youghiogheny & Ohio Coal Company, 

2573 
9 FMSHRC 2007 (December 1987); Secretary of 

Mining Company, 10 FMSHRC 249 (March 1988). 

prior holding in the Emery Mining case, the 

follows in Youghiogheny & Ohio, at 9 FMSHRC 

Labor v. Rushton 

Ref erring to its 

Commission stated 

2010: 

We stated that whereas negligence is conduct that is 

"inadvertent, " "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable". Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more than ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

as 

Although I find the allegation at bar to be an S & S 

violation of the mandatory standard charged, I cannot go along 

with the inspector's alleged finding of "unwarrantability. 11 His 

finding is based almost solely, if not entirely on the_measured 

depth of the accumulations. He himself admits he doesn't know 

how long they were there. That is the government's only evidence 

on the issue of negligence and unwarrantability. I find that to 

be insufficient to sustain the Secretary's burden of proof on 

this point. Accordingly, the proposed section 104(d) (1) Citation, 

nee 104(d) (2) Order No. 3372824, will be modified to and affirmed 

as ans & s section 104(a) citation. 

If Order No. 3372824 cannot be converted into a "d" citation 

and becomes an "a" citation, as it has, then proposed Order Nos. 

3372825 and 3372827, being non-s & s allegations to begin with 

also become section 104(a) citations, wherein the only issues are 

the fact of violation and the civil penalty to be assessed, if 

any violation(s) is/are found. · 

Order No. 3372825 alleges a non-S & S violation of the 

mandatory standard found at 30 C.F.R. § 75.316 and charges as 

follows (Government Exhibit No. 5): 

The approved ventilation system and methane and dust 

control plan for the mine, which requires that the line 

of permanent stopping separating the intake and return 

aircourses shall be maintained up to and including the 

3rd connecting crosscut outby the faces, is not being 

complied with in the MMV 032-0 working section. The 

line of permanent stopping separating the Nos. 1 and 2, 

intake and return aircourse entries is only being 

maintained up to and including the fourth connecting 

crosscut outby the faces. The quantity of air passing 

through the last open crosscut outby the faces is 

42,826 cfm. The maximum amount of CH4 detected was 

0.2%. 

2574 
Inspector Davis testified that he observed a violation of 

the approved ventilation plan for the mine which requires that 

they {the operator) maintain the line of permanent stopping 

separating the intake and return air courses up to and including 

the third connecting crosscut outby the working faces. The line 

of permanent stopping providing this separation in the affected 

section he found was only being maintained up to and including 

the fourth connecting crosscut outby the faces. 

The foregoing establishes a non-S & S violation to my 

satisfaction and after modification, section 104{a) Citation 

No. 3372825 will be affirmed as modified. 

Order No. 3372827 alleges a non-s & s violation of the 

mandatory standard found at 30 C.F.R. § 75.1105 and charges as 

follows {Government Ex. No. 7): 

An energized 480 Volt A.C. battery charger located 

adjacent to the return aircourse stopping line at ~ 

point approximately 20 feet inby station spad No. 

15325, is being used to recharge the batteries on an 

Eimco coal scoop in the MMV 032-0 working section, and 

the battery charger is not being ventilated into the 

return aircourse. The newly constructed permanent type 

stopping located between the battery charger and the 

return aircourse, is not provided with a ventilation 

regulator, {opening) to permit direction of the air 

current. 

Inspector Davis once again testified on behalf of the 

Secretary. On December 12, 1989, he found that a new stopping 

had been constructed in the third connecting crosscut outby the 

working faces to correct the previously discussed violation. 

However, they {the operator) had an energized battery charging 

station immediately in front of the stopping and had not provided 

a means in the stopping or a regulator to direct the air current 

directly into the return. 

The cited regulation requires that battery charger stations 

be ventilated directly into the return air course. Instead, the 

inspector found that the air was going to the return aircourse in 

a roundabout way. The air was not going across the charger. 

There was nothing to direct it across the charger and there was 

no regulator in the stopping to provide a low pressure drop 

across the charging station, which would have been necessary in 

order to ventilate this charging station directly to the return 

aircourse. 

The foregoing testimony establishes a non-S&S violation of 

the cited standard and after modification to a section 104{a) 

citation, Citation No. 3372827 will be affirmed as modified. 

2575 
With regard to the civil penalty assessments herein, I am 

not bound by MSHA proposed civil penalty assessments, and once a 

penalty is contested and Commission jurisdiction attaches, my 

determination of the amount of the penalty is de novo, based upon 

the statutory penalty criteria and the record developed in the 

adjudication of the case. See: Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983), aff'd., 736 F.2d 1147 (7th Cir. 1984); 

United States Steel Mining Co., Inc., 6 FMSHRC 1148 (May 1984). 

On the basis of the foregoing findings and conclusions, and 

taking into account the six statutory civil penalty assessment 

criteria found in section llO(i) of the Act, I conclude and find 

that the following civil penalty assessments are reasonable and 

appropriate in the circumstances of this case: 

Citation No. Date 30 C.F.R. Section Assessment 

3372824 12/11/89 75.400 $400 

- 3372825 12/11/89 75.316 $150 

3372827 12/12/89 75.1105 $100 

III. Docket No. KENT 90-81-Ri Order No. 3372371 

Order No. 3372371 was issued pursuant to section 107(a) of 

·the Act. Contestant filed an application for review. However, 

at the hearing on August 7, 1990, counsel for Blue Diamond stated 

on the record at Tr. 100-101 that: "[M]y client has informed me 

that the recommendations made pursuant to that order •.• were good 

ones and that they are complying with that." Therefore, he 

sought permission to withdraw their application for review. 

There was no objection and the request was granted. The order 

will be affirmed. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 3370844, contested in Docket No. KENT 

89-258-R, IS VACATED. 

2. Order No. 3372824, contested in Docket No. KENT 90-79-R 

properly charged a violation of 30 C.F.R. § 75.400 and properly 

found that the violation was significant and substantial. 

However, the contested order improperly concluded that the 

violation resulted from Consol's unwarrantable failure to comply 

with the mandatory safety standard involved. Therefore, the 

violation was not properly cited in a section 104(d) (2) order or 

2576 
as later proposed, a section 104(d) (1) citation. Accordingly, 

Order No. 3372824, IS HEREBY MODIFIED to a § 104(a) citation, AND 

AFFIRMED. 

3. Modified Citation No. 3372825, contested in Docket No. 

KENT 90-68-R, IS AFFIRMED as a non-S&S violation of 30 C.F.R. 

§ 75.316. 

4. Modified Citation No. 3372827, contested in Docket 

No. KENT 90-80-R, IS AFFIRMED as a non-S&S violation of 30 C.F.R. 

§ 75.1105. 

5. Order No. 3372371, contested in Docket No. KENT 90-81-R, 

IS AFFIRMED. 

6. The Blue Diamond Coal Company IS HEREBY ORDERED TO PAY a 

civil penalty of $650 within 30 days of the date of this 

decision. 

Distribution: 

4VtA~/ 

MJurer 

ttative Law Judge • 

Randall Scott May, Esq., 113 Lovern street, P.O. Drawer 1017, 

Hazard, KY 41701 (Certified Mail) 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

/ml 

2577 
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. 

BETHEL FUELS INCORPORATED, 

Respondent 

DEC 1 O 1990 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-228 

A. C. No. 46-06647-03552 

No. 1 Deep 

ORDER VACATING DEFAULT 

ORDER OF ASSIGNMENT 

Before: Judge Merlin 

This case is now before me pursuant to Order of the 

Commission dated December 4, 1990. 

It appears from the file that the operator served a timely 

answer to the penalty proposal on the Solicitor, but failed to do 

so with the Commission. Bearing in mind the Commission's 

repeated admonition that default is a harsh remedy and since the 

operator appears pro se, I conclude that relief from default is 

warranted. Amber Coal Co., 11 FMSHRC 131 (February 1989). 

See also unpublished decisions, Hickory Coal Company, Docket 

No. PENN 90-49, June 19, 1990 (Chief Administrative Law 

Judge Merlin); Bentley Coal Company, Docket No. WEVA 90-36, 

June 19, 1990 (Chief,Administrative Law Merlin) (copies 

attached). 

Accordingly, it is ORDERED that the default dated 

November 6, 1990, be and is hereby VACATED. 

It is further ORDERED that this case be assigned to 

Administrative Law Judge George A. Koutras. 

All future communications regarding this case should be 

addressed to Judge Koutras at the following address: 

2578 
Attachments 

Distribution: 

Federal Mine Safety and Health 

Review Commission 

Office of Administrative Law Judges 

Two Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6232 

Paul Merlin 

Chief Administrative Law Judge 

Pamela s. Silverman, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 

22203 (Certified Mail) 

Mr. Charles Myers, Superintendent, Bethel Fuels, Inc., Route 7, 

Box 510, Morgantown, WV 26505 (Certified Mail) 

/gl 

2579 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 131990 

FEATHERLITE BUILDING PRODUCTS 

CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FEATHERLITE BUILDING PRODUCTS 

CORPORATION, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. CENT 88-113-RM 

Cit./Order No. 3063548; 5/19/88 

Docket No. CENT 88-114-RM 

Citation No. 3063549; 5/20/88 

Docket No. CENT 88-115-RM 

Citation No. 3063550;-5/20/88 

Laura Todd Pit and Plant 

Mine ID 41-00267 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-36-M 

A.C. No. 41-00267-05520 

Laura Todd Pit and Plant 

DECISION 

Appearances: Steven R. Mccown, Esq., Jenkins & Gilchrist, 

Dallas, Texas, 

for Contestant/Respondent; 

Mary E. Witherow, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Respondent/Petitioner. 

Before: Judge Cetti 

Statement of the Proceedings 

These consolidated proceedings concern Notices of Contest 

filed by the Contestant', Featherlite Building Products Corporation 

(herein Featherlite), pursuant to section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815(d), challenging 

the three captioned citations issued by the Federal Mine Safety and 

Health Administration CMSHA). The civil penalty proceedings concern 

proposals for assessments of civil penalties filed by MSHA seeking 

assessments against Featherlite for the alleged violations charged 

in the above-mentioned citations. 

2580 
Following its investigation of a fatal massive fall-of-ground 

accident at the Laura Todd Pit, MSHA issued to Respondent Featherlite a number of citation/orders, some of which were accepted by 

Featherlite. The three citation/orders contested herein by 

Featherlite are as follows: 

Citation/Order No. 3063548 in Docket CENT 88-113-RM alleges a 

violation of 30 C.F.R. § 56.3131 under Sections 107(a) and 104(a) of 

the Act, with a proposed penalty of $5000. 

Citation No. 3063549 in Docket No. CENT 88-114, as amended, 

alleges a violation of 30 C.F.R. § 56.3401 under Section 104(d)(l) 

of the Act, with a proposed penalty of $1000. 

Citation No. 3063550 in Docket No. CENT 88-115-RM alleges a 

violation of 30 C.F.R. § 56.3200 under Section 104(d)(l) of the Act 

with a proposed penalty of $5000. 

Respondent timely contested each of the three alleged violations pursuant to 29 C.F.R. §2700.20(c). The Secretary riled timely 

answers pursuant to 29 C.F.R. § 2700.20(d). Later, the Secretary 

filed her complaint proposing the above-mentioned penalties, respectively, for each of the three alleged violations. Respondent filed 

a timely answer and the Contest Proceedings and the Penalty Proceeding were consolidated for hearing and decision. 

Respondent's Answer does not deny jurisdictional facts alleged 

by the complaint, as permitted by 29 C.F.R. 2700.5. The Secretary 

correctly asserts that jurisdiction over this proceeding is proper 

and that the violations of the Act took place in or involve a mine 

which has products which enter commerce or has operations or products which affect commerce. 

After notice to the parties, the matter came on for hearing 

on the merits before me at Dallas, Texas. Oral and documentary 

evidence was introduced, post-hearing briefs were filed, and the 

matters were submitted for decision. I have considered the arguments made on the record during the hearing in my adjudication of 

these matters and the post-hearing briefs filed by the parties. 

ISSUES 

1. Whether Featherlite violated 30 C.F.R. § 56.3131 as 

charged in Citation No. 3063548. 

2. Whether Featherlite violated 30 C.F.R. § 56.3401 as 

charged in amended Citation No. 3063549 under 104(d)(l) of the Act. 

2581 
3. Whether Featherlite violated 30 C.F.R. § 56.3200 as 

charged in Citation No. 3063550 under 104(d)(l) of the Act. 

4. Whether MSHA is estopped from asserting that Featherlite 

has responsibility for compliance with the provisions of 30 C.F.R. 

§§ 56.3131, 56.3200, or 56.3401 at the Laura Todd Pit, which was 

leased by Featherlite. 

5. The appropriate civil penalties, if any, to be assessed 

taking into consideration the statutory civil penalty criteria 

in section llO(i) of the Act. 

STIPULATIONS 

At the hearing, the parties entered the following stipulations, 

which I accept: 

1. The correct name of the legal entity that is the contestant in the above-captioned contest cases, as well as respondent in 

penalty Docket No. Cent 89-36-M, is "Featherlite Building Products 

Corporation." 

2. There was a timely abatement of all violations by the permanent closure of the Laura Todd Mine. 

3. The proposed civil penalties will not affect the ability of 

Featherlite to continue in business. 

The hearings on these consolidated matters were delayed as a 

result of Fifth Amendment constitutional objections by Featherlite 

and an independent counsel for certain individuals, who were said to 

be essential witnesses for Featherlite. 

After MSHA completed its criminal investigation of the accident 

and advised that no criminal penalties would be pursued, the matter 

was set for hearing in Dallas, Texas. At the consolidated hearing 

on these matters, testimony was taken from the following witnesses: 

1. M. HAROLD ROBERTSON, MSHA Inspector 

2. WILLIAM WILCOX, MSHA Mining Engineer (now retired) 

3. JERRY DAVIDSON, MSHA's expert in geological studies and 

mining techniques 

4. BOB CARROLL, owner of B.C. Construction Company 

5. EDWIN LUMMUS, former Featherlite Plant Manager 

6. MAX HENSON, Supervisor B.C. Construction Company 

2582 
Background Facts 

Featherlite, at a plant in Ranger near Dallas, Texas, produces 

a synthetic aggregate that is used in the construction of buildings 

and highways. In producing the synthetic aggregate, Featherlite 

used shale rock mined at the Laura Todd Pit which is located approximately 1.5 miles from Featherlite's plant. Featherlite leased the 

Laura Todd Pit and contracted with an independent contractor, B.C. 

Construction Company C"B.C."), to perform the mining operations at 

the pit. (Government Exhibit 2). B.C. and Featherlite's contract 

provided that B.C. was responsible for mining the shale, loading the 

shale on the trucks, and delivering the shale to Featherlite's plant 

in Ranger, Texas~ Featherlite, however, retained responsibility for 

stripping the overburden in the mining areas at the pit and for 

quality control. 

The Accident 

The accident which gave rise to the investigation and the issuance of the three citations may be succinctly stated as follows: A 

64-year old contractor shovel operator, with 15 years experience at 

the Laura Todd Pit, was fatally injured when the power shovel he was 

operating was covered by a massive fall of ground. Truck operation 

problems were occurring at the pit due to an accumulation of mud and 

water. The shovel was moved to another nearby location at the pit' 

where the trucks could operate without getting stuck. This move 

placed the shovel adjacent to a near-vertical, unstable portion of 

the highwall with the unprotected operator's cab on the highbank 

side close to the toe. After loading a truck, the victim moved the 

shovel back about four to five feet and stopped. At this time, the 

highwall failed and engulfed the cab of the shovel and the operator. 

Following an attempted rescue operation, Federal Mine Inspector 

William Wilcox and other MSHA personnel investigated the accident. 

The investigation report received in evidence as Secretary's Exhibit 

No. 2 states: 

Grady Lee naughty, an employee of B.C. Construction, 

was fatally injured at approximately 1:50 p.m. on 

May 18, 1988, when the power shovel he was operating 

was covered by a massive fall-of-ground from a 60-foot 

highwall at the mine site leased and operated by the 

Featherlite Building Products Corporation. 

2583 
Docket No. CENT 88-113-RM 

Citation No. 3063548 

Federal Coal Mine Safety and Health Inspector W.R. Wilcox, 

after his investigation and inspection of Featherlite's Laura Todd 

Pit and Plant charged Featherlite with the violation of 30 C.F.R. 

§ 56.3131, which provides as follows: 

§ 56.3131 Pit or quarry wall perimeter. 

In places where persons work or travel 

in performing their assigned tasks, loose 

or unconsolidated material shall be sloped 

to the angle of repose or stripped back for 

at least 10 feet from the top of the pit or 

quarry wall. Other conditions at or near 

the perimeter of the pit or quarry wall 

which create a fall-of-material hazard to 

persons shall be corrected. 

Inspector Wilcox, in Citation Order No. 3063548, described the 

alleged violative condition as follows: 

"The mine operator (Featherlite) was responsible for the location of the areas to 

be mined, the stripping of the overburden to 

facilitate mining of the underlying desirable 

shales and to insure that the overburden - loose and unconsolidated material - would be 

stable and not constitute a safety hazard 

where the contractor mined the shale and 

transported it from the mine-site. The overburden portion of the highwall which fell 

onto the contractor's power shovel and resultted in the death of the shovel operator had 

not been sloped to a natural angle of repose, 

benched or in other manner stabilized. This 

order is to prevent the entry of any person 

into the affected area unless the proposed 

procedures involved have been approved by MSHA 

in advance. This includes the recovery of any 

equipment, the stabilization of the high wall 

or the backfilling of the uncompleted shale 

mining cut." 

On the day of the massive fall-of-ground accident, employees of 

B.C. Construction were in the "west" cut, which was approximately 80 

2584 
feet wide digging east. Max Henson, B.C. Construction supervisor, 

testified that he had been at the site on the day of the accident. 

Henson stated he supervised the employees of B.C. that worked at the 

Laura Todd Pitt. B.C. had been working in this "west" cut for a 

couple of months. Prior to that time, they had been in the "east" 

cut digging west, but had to move due to excessive water-soaked conditions. The two cuts were separated by 25 feet of material which 

was to be removed. Mr. Henson testified that the decision to move 

from the "east" to the "west" cut was discussed with Mr. Parsons the 

plant manager of Featherlite. Henson stated he never "made any 

decisions such as to move anybody anywhere without consulting someone first." Parsons told him, "Okay, let's move." Henson stated 

that Jack Beardon, Featherlite's scraper operator had stated on the 

morning of the accident that his plan at the pit was to "get the mud 

and water pushed out of" the east side of the cut "and get it covered up, and cut through and use that as a road to get to the west 

side of the west pit." Prior to that time, Henson believed they 

were going to take the shale out of the west pit. Henson observed 

sloughing on the south wall while in the east cut. 

The south wall was the wall involved in the fatal fall-ofground accident. This wall was approximately 60 feet high. The 

south wall was composed of shale, original overburden and stockpiled 

overburden. The shale was approximately 20-30 feet in depth. Approximately 30 more feet of clay overburden sat on top of the shale. 

On top of that was previously remmred overburden which had been 

stockpiled by Featherlite on top of the natural structure. 

William Wilcox, employed as an MSHA inspector for 18 years, 

conducted the investigation and inspection of Featherlite following 

the fatal accident. Mr. Wilcox has a B.S. in mining engineering 

from the Missouri School of Mines and had 17 years of mining experience in private industry prior to working for MSHA. Mr. Wilcox 

did approximately 80 to 100 MSHA inspections per year. 

Mr. Wilcox testified that the south wall area cited was an area 

where persons worked or traveled. The testimony at trial and 

Exhibit G-26 clearly show that the pit's south wall was the area 

where the fatal massive fall-of-ground occurred. 

Mr. Wilcox stated that the south wall was composed of loose or 

unconsolidated material, as was clearly evidenced by its failure. 

This conclusion is also based on the sloughing observed on the wall, 

the cracks parallel to the cut being developed, the water saturation 

of the original topsoil, the relocated stripping, and the erosion 

product coming down into the cut being developed. 

2585 
Jerry Davidson, a geologist with MSHA for 19 years in the 

ground support division, was called by the Secretary as an expert 

wi~ness. Mr. Davidson has a B.S. in geology from the University of 

North Dakota and had 10 years experience as a geologist in the mining industry prior to coming to MSHA. Mr. Davidson testified he was 

an expert in mining techniques and geological studies. After reviewing the photographs CExs. G-4 through G-25), Mr. Wilcox's report 

CEx.G-26), and listening to the testimony at the hearing, Mr. Davidson, under oath, gave his expert opinion on the degree of consolidation of the south wall. Mr. Davidson stated the shale was relatively consolidated, and that the overburden was relatively unconsolidated, as evidenced by the fact that it could be loaded out with a 

self-loading scraper, as opposed to drilling or blasting, or other 

such techniques. The stockpiled overburden would be loose and 

unconsolidated and the overburden was "structurally weak." 

Mr. Wilcox stated that, although the south wall of the pit was 

sloped at the west entrance of the cut, it was not as the cut progressed to the accident site where the angle of the pit wa~l was 75 

degrees or steeper. Mr. Wilcox testified that there was no benching 

or stripping at the accident site, although there was some in the 

west cut a couple hundred feet from the accident site. Mr. Henson, 

who had been at the sit on the morning of the accident, testified 

the south wall went "fairly straight up" and was almost vertical. 

Melvin Harold Robertson, an MSHA inspector for 16 years with 16 

years prior mining experience, also stated the wall appeared to have 

no slope and to go up at 90° angle. 

Mr. Wilcox stated that, based on his expertise in mining, safety, and health, the conditions at the south wall in the area of the 

fatal accident constituted a "very high-risk" hazard of a release of 

hundreds of thousands of tons of rock and dirt entrapping and burying people. He stated that there was a very definite probability of 

injuries occurring as a result of such hazard, and later made it 

clear that, in his opinion, it was "highly likely" that the hazard 

would result in an injury of a serious nature. He stated the types 

of injuries occurring would certainly be fatal. I credit the testimony of Messrs. Wilcox and Davidson and find that the violation is 

significant and substantial. 

A violation such as we have here is properly designated significant and substantial if it contributes to a safety hazard which 

will reasonably likely result in a serious injury. cement Division, 

National Gypsum, 3 FMSHRC 822 (1981); Mathies Coal Co., 6 FMSHRC 1 

(1984). 

2586 
Mr. Wilcox rated the gravity of the violation as "occurred"; 

the types of injuries that could occur as "fatal"; and the operation's negligence as "high." 

Inspector Wilcox rated the operator's negligence as high, based 

on the operator's familiarity with the mining area and the benching 

and sloping he observed in other parts of the mine site. He also 

considered the custom and practice of the industry, and what a typical operator of this type of operation in this part of the country 

would do. 

I agree with Mr. Wilcox's evaluation of the operator's negligence, the gravity of the violation, and the likelihood of serious 

injury. The violation contributed to a safety hazard which was reasonably likely and did, in fact, result in serious fatal injuries. 

CENT 88-114-RM 

Citation No. 3063549 

This citation was issued by Inspector Wilcox originally for an 

alleged violation of 30 C.F.R. § 56.18002. Later, Inspector Wilcox 

amended the citation by changing the standard allegedly violated 

from 30 C.F.R. § 56.18002 to 30 C.F.R. § 56.3401. Section 30 C.F.R. 

§ 56.3401 provides as follows: 

§ 56.3401 Examination of ground conditions. 

Persons experienced in examining and 

testing for loose ground shall be designated by the mine operator. Appropriate 

supervisors or other designated persons 

shall examine and, where applicable, test 

ground conditions in areas where work is 

to be performed prior to work corrunencing, 

after blasting, and as ground conditions 

warrant during the work shift. Highwalls 

and banks adjoining travelways shall be 

examined weekly or more often if changin·g 

ground conditions warrant. 

Citation No. 3063549 reads as follows: 

"A power shovel operator was fatally 

injured when the overburden portion of 

a highwall fell and entrapped the miner 

within his machine. The mine operator 

2587 
did not examine mine work places for 

safety hazards at least once each shift 

(30 CFR 56.18002Ca)) and record such examinations (30 CFR.56.18002) He had recently been cited for the latter violation 

(Nov. 17, 1987). The imminent danger of 

the unstable overburden highwall was not 

brought to the immediate attention of the 

operator and all persons were not withdrawn from the area (30 CFR 56.18002c). 

The accident was not prevented from 

happening. 

Mr. Wilcox testified that, when he asked if Featherlite was 

complying with the requirements of the cited standards, Edwin Lummus, general manager of Featherlite stated something like, "Heck, 

we're not doing that yet or at this time." Based on this statement, 

and the existence of the obvious hazard, Mr. Wilcox concluded the 

mine operator was not examining and testing for loose ground. I 

concur in Mr. Wilcox's conclusion. -

Edwin Lummus admitted on cross-examination that Featherlite was 

not inspecting the pit, nor was it conducting any inspections of 

B.C. 's operations other than quality control. 

This admission was made, even though it is undisputed that Featherlite scraper operator Jack Beardon worked at the pit every day 

and another Featherlite employee worked at the pit in the stripping 

area. Further testimony indicates that Ray Parsons and Ed Lummus, 

Featherlite supervisors, were out at the pit occasionally. In fact, 

Max Henson spoke to Ray Parsons, Featherlite plant superintendent, 

on the day of the accident. Mr. Parsons stated he had been to the 

pit and left just before the accident. Mr. Parsons told Mr. Henson 

he "didn't hardly have time to get to the gate" before the fatal 

ground fall occurred. 

Mr. Wilcox testified that the failure to inspect the ground 

conditions constituted a hazard of sloughing or ground slide. Based 

on his expertise as a safety professional, Mr. Wilcox stated that 

the injury from such a hazard was "highly likely" and that such 

injuries would be very serious, if not fatal. I find that the 

violation is significant and substantial since it contributed to a 

safety hazard which was reasonably likely to result in a serious 

injury. Cement Division, National Gypsum, supra, Mathies Coal Co., 

supra. 

Mr. Wilcox rated the gravity as "occurred," the types of injuries as "fatal" and the operator's negligence as "high." I concur 

in Mr. Wilcox's evaluation. 

2588 
Mr. Wilcox observed that a previous citation had been issued to 

Featherlite for failure to inspect work places six months prior to 

the fatality. Mr. Wilcox further observed that, based on the high 

number of citations given Featherlite at its previous inspection, 

and the hazardous conditions observed (and later cited) during the 

investigation of the fatal massive ground-fall investigation, Featherli te did not have a great regard for safety. 

Mr. Davidson, MSHA geological expert, stated that, based on the 

evidence he had heard and read, the hazard was apparent or readily 

discoverable. Mr. Davidson based this opinion on the evidence of 

sloughing, the types of machinery used for excavation, the height of 

the highwall, and the placing of the operator's cab next to the 

highwall. Because the cab was next to the wall, the operator had 

less room to maneuver or escape during ground slide. It would have 

been safer to have the cab away from the highwall. Another important factor was the water problem caused by the rainfall. The 

diversion ditches dug by Featherlite personnel indicate they knew 

about the problem of standing water-~ When the earth material filled 

up with water, it added weight and increased pore pressure within 

the rock areas. 

Mr. Davidson testified that the photographs CExs. G-4 through 

G-25) showed tension fractures which should have been apparent. He 

stated it would be highly unlikely that there wouldn't have been 

tension fractures which were apparent or readily discoverable on top 

of the south wall prior to the accident. Tension fractures would be 

readily discoverable during an inspection of the top of the pit 

wall, since there was little vegetation on top of the wall. These 

tension fractures indicate a failure surface has developed and is 

propagating downward. 

Mr. Davidson stated he was familiar with the custom and practice in the industry with regard to inspections of ground stability. 

The conditions at the pit should have mandated a careful inspection. 

The sloughing described indicated a need to inspect both the pit 

floor and the crest area. 

Featherlite knew, or should have known, of the hazardous conditions. They had been previously cited for failure to inspect every 

workplace. They had their own employees working daily at the pit. 

Management officials of Featherlite were at the pit regularly and 

Ray Parsons had been there just prior to the accident. Featherlite 

knew it was not inspecting the pit and the obvious nature of the 

hazard mandates it should have done so. 

"Unwarrantable failure" means "aggravated conduct, constituting 

more than ordinary negligence, by an operator in relation to a violation of the Act." Emery Mining Corp., 9 FMSHRC 1997, 2010 (1987)~ 

2589 
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (1987). In this case, 

the evidence, summarized above, clearly shows that Featherlite's 

conduct in violating the provisions of § 56.3401 was aggravated 

conduct constituting more than ordinary negligence. The violation 

was due to Featherlite's unwarrantable failure to comply with the 

cited standard. 

CENT 88-115-M 

Citation No. 3063550 

Inspector Wilcox issued Citation/Order No. 3063550 for an alleged violatiori of 30 C.F.R. § 56.3200, which provides as follows: 

§ 56.3200 Correction of hazardous conditions. 

Ground conditions that create a hazard 

to persons shall be taken down or supported 

before other work or travel is permitted-in 

the affected area. Until corrective work 

is completed, the area shall be posted with 

a warning against entry and, when left unattended, a barrier shall be installed to 

impede unauthorized entry. 

Inspector Wilcox, in the citation, described the violative 

conditions as follows: 

The mine operator determined the plan 

to be followed in the selected mining area 

and conducted the stripping portion of that 

plan prior to instructing a contractor to 

mine the exposed shale. He failed to correct 

the hazardous ground conditions to which the 

latter's employees would be exposed before 

instructing the contractor to begin shale 

mining. He did not post and barricade the 

area against entry by any person. He ordered 

mining to proceed and a massive fall of 

ground (overburden) occurred which resulted 

in fatal injury to the contractor's power 

shovel operator. 

Mr. Wilcox testified that, based on the height of the wall, the 

condition or composition of the soil, the slope of the wall prior to 

the accident, the previous water condition requiring the digging of 

ditches on top of the south wall, and the sloughing in the east cut, 

2590 
that the ground conditions of the south highwall constituted a hazard. These conditions were not taken down prior to work or travel 

in the area, or supported as shown by testimony concerning the slope 

of the wall at the time of the massive fall-of-ground. It is also 

clear that the area was not posted with a warning against entry or 

barrier. 

Mr. Wilcox stated that the ground conditions of the south highwall created a hazard of falling ground. Based on his opinion as a 

safety professional, Mr. Wilcox rated the likelihood of injury as 

"very definitely." The injuries that could occur would be fatal and 

would be very likely to occur. I credit the testimony of Mr. Wilcox 

and find the violation is significant and substantial. Since the 

evidence established all the elements of the Mathies Coal Co., supra. 

Mr. Wilcox rated the gravity as "occurred" and "highly likely. 

He rated the types of injuries as "fatal and tne operator's neglinegligence as "great." Mr. Wilcox based the operator's negligence 

on the operator's experience, work history, knowledge, 00ntractual 

obligation, and obviousness of the hazardous condition. He further 

stated that he judged the operation against the typical operator of 

this type of work force. 

Mr. Davidson, MSHA's expert in geological studies and mining 

techniques, stated the ground conditions created a hazard that was 

apparent or readily discoverable, based upon a careful inspection 

that a reasonably prudent operator would have done, given these 

conditions. Again, Featherlite knew, or should have known, of the 

dangerous conditions. 

As previously stated, "unwarrantable failure" means "aggravated 

conduct constituting more than ordinary negligence, by an operator 

in relation to a violation of the Act." Emery Mining Corp., supra~ 

Youghiogheny & Ohio Coal Co., supra. Featherlite's failure to address the cited conditions constituted more than ordinary negligence. The violation of § 56.3200 was due to Featherlite's unwarrantable failure to comply with the requirements of the cited 

standard. 

All three violations could have been prevented if Featherlite 

had established a mining plan, removed the overburden, established 

benches, and made daily inspections at every shift. 

Estoppel Issue 

Preliminarily, it is noted that there appears to be no real 

dispute that the Secretary can cite the owner-operator, the independent contractor, or both, for violations committed by the independent contractor. This is supported by the language of the Act, 

2591 
its history, and applicable court precedent. The Secretary has wide 

enforcement discretion and courts have traditionally not interfered 

with the exercise of that discretion. Intl. U., UMWA v. FMSHRC, 

supra, 840 F.2d at 83; Brock v. Cathedral Bluffs Shale Oil Co., 

supra, 796 F.2d at 537-538; BCOA v. Secretary, supra, 547 F.2d at 

246. 

Respondent asserted that the Secretary should be estopped from 

issuing the citations involved in this consolidated case. It is 

Featherlite's position that in the past MSHA had dealt with Feath~rlite in such a manner to justify Featherlite's belief that it was 

only responsible for mine safety violations at Featherlite's Ranger 

Plant and not for violationg involving the mining operations of its 

contractor B.C. at Featherlite's leased Laura Todd Pit. Although 

MSHA inspected the Laura Todd Pit every six months, Featherlite asserts MSHA officials never discussed the pit with Featherlite officials. 

Featherlite asserts that its belief that it was not_responsible 

for mine safety violations at the Laura Todd Pit was justified based 

on an MSHA inspector's prior termination of an earlier November 

1987, citation. (Featherlite Ex. 2). In November of 1987, MSHA inspector, Harold Robertson, issued Featherlite a Section 56.18002(b) 

citation for failing to keep records of daily shift inspections. 

B.C. Was operating at the Laura Todd Pit when Mr. Robertson made the 

earlier November 1987 inspection. After receiving the citation, 

Featherlite had a plant engineer design a form that was exclusively 

devoted to recording inspections at Featherlite Ranger Plant. The 

form made no mention of inspections at the Laura Todd Pit. Mr. Robertson terminated the citation based upon his review of Featherlite' s forms that exclusively dealt with safety inspections at the 

Ranger plant. Featherlite argues that Mr. Robertson's termination 

of the citation, based on Featherlite's compliance which indicated 

that Featherlite was only inspecting the Ranger plant area, justifiably reaffirmed Featherlite's belief that it was only responsible 

for mine safety at the Ranger plant and that B.C. was responsible 

for mine safety violations at the Laura Todd Pit. 

Both the Secretary and Featherlite in their briefs state that a 

party seeking to estop the government has a very heavy burden to 

bear. Jones v. Dept. Health & Human Services, 843 F.2d 851 (5th 

Cir. 1988 >. The party cl.aiming the estoppel must at least demonstrate that the traditional elements of an estoppel are present in 

order to prevail. Heckler v. Community Health Services of Crawford, 

2592 
467 U.S. 51, 104 S.CT. 2218, 81 L. Ed.2d 42 (1984). Those elements 

are: 1) the party to be estopped must know the facts; 2) he must 

intend his conduct be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; 3) the 

latter must be ignorant of the true facts; and 4) he must rely on 

the former's conduct to his injury." Scime v. Bowen, 822 F.2d 7, 9 

n.l C2d Cir. 1987). The party "must have relied on his adversary's 

conduct in such a manner as to change his position for the worse 

•••• " That reliance must have been reasonable in that the party 

claiming the estoppel did not know, nor should it have known, that 

its adversary's conduct was misleading." Heckler, supra, 467 U.S. 

at 59, 104 s.ct. at 2223. 

"Those who deal with the government are expected to know the 

law and may not rely on the conduct of governmental agents contrary 

to the law"; therefore, courts will not find reliance was present if 

the governmental agency did not have the authority to make the "misleading" pronouncements. Heckler, supra, 467 U.S. at 634, 104 s.ct. 

at 2225. See, Long Island Radio Co. v. N.L.R.B., 841 F:2d 474 [2d 

Cir. 1988 (holding the NLRB may not be estopped from enforcing a 

deadline which the Board had no authority to extend)]. 

In addition, a party cannot raise an estoppel argument "without 

proving that he will be significantly worse off" than if he had 

never obtained the wrong information. Heckler, 467 U.S. at 63, 104 

s.ct. at 2225. 

In addition to showing that the traditional elements of estoppel are present, the party must show "affirmative misconduct" on the 

part of the Government. Scime, 822 F.2d at 8-9, n.2 C2d Civ. 1987). 

See, I.N.S. v. Hibi, 414 U.S., 5, 8-9, 94 s.ct. 19, 21-22, 38 

L.Ed.2d 7 (1973). "This affirmative misconduct suggestion must be 

seen as an attempt to provide a limited measure of relief in exceptionally sensitive cases without exposing the government to openended liability for merely negligent or improper actions or omissions by its agent." Note, Equitable Estoppel of the Government, 

79 Colum. Rev. 551, 560 (1976). 

The Court of Appeals for the Tenth Circuit, in Emery Mining 

Corporation v. Secretary of Labor, 3 MSHC 1585, affirmed the Cornmission' s decision at 5 FMSHRC 1400 (August 1983}, stating at 3 MSHC 

1588: 

Although the record reflects some confusion 

surrounding MSHA's approval of Emery's training plan, as a general rule, "those who deal 

with the Government are expected to know the 

2593 
law and may not rely on the conduct of government agents contrary to law" • • • • 

I have considered the evidence and record as a whole and conclude that the Secretary is not estopped from issuing the citations 

in question to Featherlite. Inspector Robinson in his earlier 

November 1987 inspection of the Featherlite Ranger Plant and Laura 

Todd Pit and Plant issued 52 citations. Mr. Robinson testified that 

Ray Parson, Featherlite plant manager, accompanied him on the walk 

around of the pit as well as the plant. Featherlite had employees 

working at the pit on the day of that inspection just as they had 

employees working at the pit every day. On the day of that inspection, the Featherlite road grater, water trucks, and scraper were 

all working at the pit in the area where B.C. employees were mining. 

Mr. Parsons was present when Mr. Robertson interviewed the two B.C. 

truck drivers. Mr. Robertson discussed the hazardous practice of 

mining with the shovel operator's cab next to the highwall with 

Mr. Parsons. 

Mr. Robertson issued Citation No. 3062555 alleging a violation 

of 30 C.F.R. § 56.18002Cb) for not keeping records of inspections of 

each working place at least once each shift. The citation specifically states that it is issued to the Laura Todd Pit and Plant and 

served on Ray Parsons (Featherlite Plant Superintendent). (Ex. 

R-2). 

Mr. Robertson discussed this citation wth Messrs. Parsons and 

Lummus at the closeout conference specifying that they need to 

inspect every workplace. 

Approximately one month later, Mr. Robertson terminated the 

citation based upon Mr. Parsons' representation that they were inspecting and the records shown to him that inspections were being 

made and recorded. Petitioner asserts that Mr. Robertson did not 

realize until the massive fall-of-ground accident that the records 

shown to him were not for both the pit and the plant. 

These facts do not warrant estoppel. Mr. Robertson believed, 

based on Mr. Parsons' representation, that Featherlite was complying 

with requirements of the cited safety standard. Mr. Parsons had 

been with Mr. Robinson on the inspection of the pit area and had 

been informed of Featherlite's independent contractor's violations. 

Featherlite had employees working at the pit daily. The citation 

was addressed to the Laura Todd Pit and Plant. Mr. Robertson stated 

he made no direct statement indicating Featherlite that it did not 

have to inspect the pit. I concur in Petitioner's assertion that it 

simply was not reasonable for Featherlite to rely on what, in the 

light most favorable to its position, was a mere oversight on the 

part of Mr. Robertson. 

2594 
Moreover, when conducting the accident investigation, 

Mr. Wilcox pointed out to Mr.· Lummus that they had been cited for 

the failure to inspect before. Mr. Lummus stated, "Heck, we're not 

doing tha yet or at this time." It is noted that Mr. Lummus did not 

say, "MSHA told us we did not have to inspect the pit." He merely 

indicated they hadn't started inspecting the pit. 

The Commission in King Knob Coal Company, Inc., 3 FMSHRC 1416 

(June 1981) pointed out that the Supreme Court has held that equilateral estoppel generally does not apply against the federal government. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 

383-386 Cl947); Utah Power & Light Co. v. United States, 243 U.S. 

389, 408-411 (1917). In recent years, lower federal courts have 

permitted estoppel against the government in some circumstances. 

In King Knob Coal, supra, the Commission stated: 

Even the decisional trend which recognizes 

an estoppel defense refuses to apply the defense "if the government's misconduct [does 

not] threaten to work a serious injustice and 

if the public's interest would ••• be unduly 

damaged by the imposition of estoppel" (emphasis added). United States v. Lazy F.C. Ranch, 

481 F.2d at 989. In view of the availability 

of penalty mitigation as an evenue of equitable relief, we would not .be persuaded that 

finding King Knob liable--would work such a 

"profound and unconscionable injury" (Lazy F.C. 

Ranch, 481 F.2d at 989) that estoppel should be 

invoked. 

The Supreme Court in a recent decision reversed the Court of 

Appeals and again denied estoppel against the government just as it 

has reversed every lower court decision granting estoppel that it 

has reviewed. (Office of Personnel Management v. Richmond, 110 

s.ct. 2465 (1990), decided June 11, 1990). Insofar as it may be 

pertinent to this case, the Court held that erroneous oral and 

written information given by a Government employee to a benefit 

claimant who relied, to his detriment, on the misinformation cannot 

estop the Government from denying benefits not otherwise permitted 

by law. 

The court in its dicta also stated: 

It ignores reality to expect that the 

Government will be able to "secure perfect performance from its hundreds of 

2595 
thousands of employees scattered throughout the continent." Hansen v. Harris, 

619 F.2d 942, 954 (CA2 1980) (Friendly, 

J~, dissenting), rev'd sub nom., Schweitker v. Hansen, 450 U.S. 785, 101 S.Ct. 

1468, 67 L.Ed.2d 685 (1981). To open the 

door to estoppel claims would only invite 

endless litigation over both real and 

imagined claims of misinformation by disgruntled citizens, imposing an unpredictable drain on the public fisc. Even if 

most claims were rejected in the end, the 

burden of def ending such estoppel claims 

would itself be substantial. 

The Court, however, refused to acquiesce to the Government's 

request that the Court adopt a per se rule that estoppel will not 

lie against the Government. Thus, the Court continued to leave open 

the question of whether an estoppel claim could ever succe~d against 

the Government. 

CIVIL PENALTIES 

In determining the amount of penalty to be assessed, Section 

llOCi) of the Act requires consideration of the operator's previous 

history of violations, the size of the operator, the negligence of 

the operator, the effect on the operator to continue in business, 

the gravity of the violation, and the good faith in attempting to 

achieve rapid compliance. 

The Secretary entered into evidence a certified copy of the 

operator's assessed violation history as Exhibit G-1. This report 

indicates that, during the two-year period prior to the issuance of 

the citations in question, respondent has been cited 60 times and 

paid $4,251.00 in penalties. With respect to size, Respondent mined 

approximately 200,000 cubic yards of usable shale material a year 

and had approximately a total of 40 employees. Respondent stipulated at hearing that the payment of the proposed penalties would 

not adversely affect Featherlite's ability to continue in business. 

The negligence of the operator was high. The evidence established that Respondent had been cited for failure to keep records of 

inspected work sites six months before the issuance of the citation/ 

orders at bar. Further, the hazards were apparent or readily discoverable. Respondent's personnel were at the pit site every day 

and had a degree of control over the areas to be mined. 

2596 
The gravity of the violation is serious. The injuries from a 

high wall failure such as this would be reasonably likely to cause 

serious injury or death to exposed miners. 

Considering the statutory criteria in § llOCi) of the Act and 

the availability of penalty mitigation as an avenue of equitable 

relief for any possible confusion that may have been caused by the 

way inspector Robinson abated the earlier November 1987 citation 

{No. 3062555), I find and assess an appropriate civil penalty for 

each of the violations as follows: 

$3,000.00 for the violation of 30 C.F.R. 56.3131, as charged in 

Citation No. 3063548. 

$1,000.00 for the violation of 30 C.F.R. 56.3401 as charged in 

Citation No. 3063549. 

$3,000.00 for the violation of 30 C.F.R. 56.3200 as charged in 

Citation No. 3063550. 

Finding of Facts 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, and 

probative evidence establishes the following Findings of Fact: 

1. Grady Lee naughty, an employee of B.C. Construction, was 

fatally injured at approximately 1:50 p.m. on May 18, 1988, when the 

power shovel he was operating was covered by a massive fall-ofground from an unstabilized 60-foot highwall at the mine site, the 

Laura Todd Pit, leased and operated by the Featherlite Building 

Products Corporation. 

2. Following an attempted rescue operation, William Wilcox and 

other MSHA personnel conducted a thorough accident investigation. 

3. Lightweight aggregate was produced at the Featherlite plant 

site from shale mined at the nearby pit complex, the Laura Todd Pit. 

4. The 60-foot highwall involved in the fatality was composed 

of shale covered by approximately 30 feet of undisturbed sandy-clay 

overburden and stockpiled overburden. The latter material was 

stripped by a self-loading type scraper and stockpiled both on mined 

and unmined areas of the leased land by Featherlite personnel. 

5. An independent contractor, the B.C. Construction Company, 

had been retained to mine the shale exposed by the Featherlite 

stripping program and to transport the shale to the plant site 

crusher and primary storage facility. 

2597 
6. Activities at the pit were planned and administered by 

Featherlite management on an informal basis; no maps or similar mine 

planning program tools were evidenced. 

7. Featherlite's stripping operation determined approximately 

where shale was to be mined and the width and length of the mining 

at hand. The depth of shale mining was detemined by the local 

thickness of the formation and its freedom from inclusions as the 

base of the formation was neared. Stripping was excluded from the 

contractor's responsibilities. 

8. The 60-foot pit wall involved in the fatality was a place 

where persons worked or traveled. The wall was composed of loose or 

unconsolidated material, and was not sloped to the angle of repose 

or stripped back for at least 10 feet from the top of the pit wall. 

This condition posed a reasonable likelihood of injuries of a reasonably serious nature. 

9. The mine operator did not designate persons expe~ienced in 

examining and testing for loose ground. The mine operator did not 

test or examine loose ground where work was to be performed. This 

condition posed a reasonable likelihood of injuries of a reasonably 

serious nature. 

Respondent knew, or should have known, of the hazardous 

condition. Featherlite had previously been cited for failure to inspect every workplace. It had management officials at the pit regularly and employees there every day. Sloughing, standing water, 

tension fractures, and the height of the wall were apparent or readily discoverable indicating the instability of the ground. 

10. The ground conditions (specifically the 60-foot highwall) 

were hazards and the wall was not taken down or supported before 

work was permitted in the area. The area was not posted with a 

warning sign against entry or barricaded when unattended. This condition posed a reasonable likelihood of injuries of a reasonably 

serious nature. Respondent knew or should have known of this hazardous condition. Featherlite had management officials at the pit 

regularly and had one official there 10 minutes prior to the fatality. Featherlite had employees at the pit every day. The sloughing, standing water tension fractures and height of the wall were 

apparent or readily discoverable indicating the hazardous condition 

of the pit wall. 

11. The violation history of respondent indicates that during 

the two years prior to the issuance of the citation/orders in question, respondent has been cited for 60 violations and paid $4,251.00 

in penalties. 

2598 
12. With respect to the size of the operator, respondent mined 

approximately 200,000 cubic yards per year of usable shale material 

and had a total of approximately 40 employees. 

13. The negligence of the operator was high. 

14. Respondent stipulated that the proposed penalties would 

not affect its ability to continue in business. 

15. The gravity of the violations was serious and substantial. 

16. All violations were timely abated by the permanent closure 

of the Laura Todd Pitt. 

Conclusions of Law 

Jurisdiction 

1. Featherlite was at all times subject to the provisions of the 

Federal Mine Safety and Health Act, and I have jurisdiction 

over the parties and subject matter of this proceeding. 

Violations 

2. a. Respondent violated 30 C.F.R. § 56.3131 as alleged in 

Citation No. 3063548. 

b. The violation is significant and substantial. 

c. A penalty of $3000 is assessed. 

3. a. Respondent violated 30 C.F.R. § 56.3401 as alleged in 

Citation No. 3063549. 

b. The violation is significant and substantial. 

c. The violation constitutes an unwarrantable failure of the 

operator to comply with the cited standard. 

d. A penalty of $1,000.00 is ASSESSED. 

4. a. Respondent violated 30 C.F.R. § 56.3200 as alleged in 

Citation No. 3063550. 

b. The violation is significant and substantial. 

c. The violation constitutes an unwarrantable failure of the 

operator to comply with the cited standard. 

d. A penalty of $3,000.00 is ASSESSED. 

2599 
ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation/Order No. 3063548, including its finding that the 

violation was significant and substantial, is AFFIRMED. The Notice 

of Contest, Docket No. CENT 88-113-RM, is DISMISSED. 

2. Citation No. 3063549, including its findings that the 

violation was significant and substantial and caused by unwarrantable failure, is AFFIRMED. The Notice of Contest, Docket No. 

CENT-88-114-RM, i.s DISMISSED. 

3. Citation No. 3063550, including its findings that the 

violation was significant and substantial and caused by unwarrantable failure, is AFFIRMED. The Notice of Contest, Docket No. CENT 

88-115-RM, is DISMISSED. 

- 4. Respondent Featherlite Building Products Corporation shall 

pay to the Secretary of Labor $7,000.00, within 30 days of this 

Decision, as a civil penalty for the violations found herein. 

Distribution: 

istrative 

F. Cetti ~& Law Judge 

Steven R. Mccown, Esq., Jennifer A. Youpa, Esq., Jenkens & Gilchrist, 1445 Ross Avenue, Suite 3200, Dallas, TX 75202-2711 

(Certified Mail) 

Mary E. Witherow, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202-2711 

(Certified Mail) 

/ek 

2600 
JOE G. PINA, 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 141990 

DISCRIMINATION PROCEEDING 

Complainant 

v. 

Docket No. CENT 90-106-DM 

SC-MD-90-06 

FEATHERLITE BUILDING PRODUCTS, 

Respondent 

DECISION 

Armadillo Quarry 

Appearances: Ed Watson and Robert Copeland, pro se, app~aring 

on behalf of Respondent. 

Before: Judge Morris 

This case is before me upon the complaint of Joe G. Pina 

under Section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801, et seg. (the "Act"). Complainant alleges he was discharged by respondent in violation of Section 

105(c)(l) of the Act. 

A hearing in the case was scheduled in Austin, Texas, for 

November 6, 1990. Complainant Pina was served by certified mail 

with a copy of the notice of hearing. 

Mr. Pina did not appear at the hearing nor has the Judge 

been advised of any reason why he did not appear. 

Accordingly, the case is DISMISSED for failure to prosecute. 

~~ is 

tive Law Judge 

Distribution: 

Mr. Joe G. Pina, Route 3, Box 61-A, Liberty Hill, TX 78613 

(Certified Mail) 

Mr. Ed Watson, General Manager, Featherlite Building Products 

Corp., Texas Quarries, P.O. Box 820, Cedar Park, TX 78613 

/ek 

2601 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 141990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TUNNELTON MINING COMPANY, 

Respondent 

Docket No. PENN 90-17 

A.C. No. 36-00929-03666 

Marion Mine 

DECISION 

Appearances: Mark V. Swirsky, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Before: 

Joseph A. Yuhas, Esq., Ebensburg, Pennsylvania, 

for the Respondent. 

Judge Fauver 

The Secretary seeks a civil penalty for an alleged safety 

violation, under § 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. 

The parties have submitted the case on a stipulated record. 

The key issue is whether 30 C.F.R. § 75.202(a) applies to a 

part of a coal mine (1) which is required to be traveled weekly 

by a certified examiner and (2) in which miners other than 

certified mine examiners are not normally required to work or 

travel but may from time to time be required to do so, ~.g., for 

rock dusting or for removing pumps or equipment. 

rt is stipulated that unsupported loose roof was found in 

the area cited in Citation No. 2894260, which charges a violation 

of 30 C.F.R. § 202(a). 

30 C.F.R. § 75.202(a) provides: 

§ 75.202 Protection from falls of roof, face and ribs. 

(a) The roof, face and ribs of areas where 

persons work or travel shall be supported or otherwise 

2602 
controlled to protect persons from hazards related to 

falls of the roof, face or ribs and coal or rock 

bursts. 

The regulation thus has three elements: 

1. An area where persons work or travel 

2. shall be supported or otherwise controlled 

3. to protect persons from falls of roof, face or 

ribs. 

The first element of the regulation is a coverage element: 

"where persons work or travel." The parties have stipulated that 

the area where loose roof was found "is required to be traveled 

weekly by a certified examiner" (Stip. 19) and that other miners 

"are not normally required to be in the cited area" but may work 

there "in certain situations such as for rock dusting, ~nd for 

pump and equipment removal" (Stip. 25). 

Respondent contends that § 202(a) does not apply to the 

cited area because it is not an "active working" within the 

meaning of 30 C.F.R. § 75.2(g) (4), which defines "active 

workings" as "any place in a coal mine where miners are normally 

required to work or travel." However, § 202(a) does not limit 

its protection to "active" or "inactive" places in a mine, but 

simply applies to "areas where persons work or travel .... " 

This plain meaning is also illustrated by the published 

explanation of the rule, as follows: 

For clarity, the final rule applies to all "areas where 

persons work or travel" replacing the existing 

requirement that this protection be afforded in all 

"active underground roadways, travelways and working 

places." [53 Fed. Reg. 2355 (Jan. 27, 1988).] 

The regulation for weekly examinations requires that the 

certified examiner travel "in the return of each split of air 

where it enters the main return ... , in the main return, at 

least one entry of each intake and return aircourse in its 

entirety, idle workings, and, insofar as safety conditions 

permit, abandoned areas." 30 C.F.R. § 75.305. Miners are not 

permitted to travel under unsupported roof, by virtue of 

§ 202(b), which provides: "(b) No person shall work or travel 

under unsupported roof unless in accordance with this subpart." 

The exceptions permitting working or traveling under unsupported 

roof in Subpart c are not applicable to a man on foot, such as a 

mine examiner. 

The interpretation of § 202(a) urged by Respondent would 

permit an examiner or other miner (who only occasionally works or 

2603 
travels in a given area) to work or travel under unsupported 

roof, against the plain meaning of§ 202(a) and (b). Respondent 

contends that a different regulation, instead of§ 202(a), 

applies to· the cited area. It relies on 30 C.F.R. § 75.211(c), 

which provides: 

When a hazardous roof, face, or rib condition is 

detected, the condition shall be corrected before there 

is any other work or travel in the affected area. If 

the affected area is left unattended, each entrance to 

the area shall be posted with a readily visible 

warning, or a physical barrier shall be installed to 

impede travel into the area. 

Sections 202(a) and 211(c) are not mutually exclusive. I 

hold that the safety protection of § 202(a) applies equally to 

certified weekly examiners and any other persons who "work or 

travel" in any. area of an underground coal mine. 

Citation No. 2894260 was properly issued. Considering all 

the criteria for a civil penalty in § llO(i) of the Act, I find 

that a penalty of $85 is appropriate for this violation. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 2894260 is AFFIRMED. 

2. Respondent shall pay a civil penalty of $85 within 

30 days of this decision. 

~~~~ Administrative Law Judge 

Distribution: 

Mark V. Swirsky, Esq~, Office bf the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Joseph A. Yuhas, Esq., Tunnelton Mining Company, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

/fb 

2604 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 1 71990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CORONA INDUSTRIAL SAND 

PROJECT, 

Respondent 

. . 

. . 

. 

. 

. . 

. . 

. . 

. . 

Docket No. WEST 89-413-M 

A.C. No. 04-04862-05510 

Docket No. WEST 89-414-M 

A.C. No. 04-04862-05511 

Docket No. WEST 89-450-M 

A.C. No. 04-04862-05512 

: Docket No. WEST 89-46'0-M 

: A.C. No. 04-04862-05513 

. . 

. . 

. . 

. . 

Docket No. WEST 90-22-M 

A.C. No. 04-04862-05514 

Corona Industrial Sand 

Project 

DECISION 

Appearances: Eve Chesbro, Esq., Jonathan s. Vick, Esq., Office 

of the Solicitor, U.S. Department of Labor, Los 

Angeles, California, 

for the Secretary; 

Stanley D. Hendrickson, General Manager, Corona 

Industr~al Sand Project, Corona, California, 

pro ~· 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges Respondent, Corona Industrial Sand Project (Corona), with violating regulations promulgated under the Federal Mine Safety and Health Act, 30 u.s.c. 

§ 801, et~ Cthe Act). 

After notice to the parties, a hearing on the merits was 

held in Ontario, California, commencing on May 30, 1990. 

The parties were granted leave to file post-trial briefs. 

Subsequently, they withdrew their requests. 

2605 
STIPULATION 

At the commencement of the hearing, the parties stipulated 

as follows: 

1. Corona produced 389,687 tons of sand in 1989. 

2. The production was about the same in 1990. 

3. A certified copy of Corona's assessed history can be 

received in evidence. CTr. 7; Ex. P-1). 

WEST 89-413 

ARTHUR S. CARISOZA, an MSHA inspector since 1975, is a 

person experienced in mining. (Tr. 11, 12). 

Corona, a silica sand plant, processes various grades of 

silica sand. The company runs three shifts and employs 40-45 

people. (Tr. 12, 13). 

Citation No. 3296982 

Mr. Carisoza issued this citation, which alleges Corona 

violated 30 C.F.R. s 56.9300. 1/ 

The inspector observed a 200- to 250-foot roadway that ran 

along a creek. There was no berm, guard, barrier, or railing to 

protect from driving off the edge. (Tr. 14, 15; Ex. P-2). The 

incline (to the creek) averaged five to six feet. (Tr. 15). 

The inspector observed a front-end loader pushing sand over 

the edge of the incline. The tracks of the loader, as well as 

the tire marks of pickups and service trucks, were within five 

feet of the edge. (Tr. 2, 16; Exs. P-2, P-3, P-4). The night 

shift would have used this roadway. (Tr. 19). 

Vehicles using the roadway would have occasion to back up 

near the incline. (Tr. 19-20). The majority of the vehicles 

either back into the area or back out; no high speeds are 

involved. (Tr. 75). 

1/ § 56.9300 Berms or guardrails. 

Ca) Berms or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists 

of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment. 

2606 
The operator had been previously c~ted for lack of a berm in 

this area. (Tr. 21). 

The inspector further testified concerning the factors 

involved in assessing civil penalties. (Tr. 21, 22). 

KEITH SPEAK, Corona's engineer, testified a nearby building 

and the irregular creek were about 15 to 40 feet apart. The narrowest part of the area is a dead end. (Tr. 107, 109). 

Opposite the main entrance of the plant a sign designates a 

speed limit of 5 to 10 miles an hour. From the witness's observation, vehicles in this area would travel two to three miles per 

hour, or at a walking speed. (Tr. 108). 

Vehicles would get as close as three or four feet from the 

edge. (Tr. 108). The area was not considered hazardous, hence 

no berm was installed at the creek. (Tr. 109). 

WILLIAM W. WILSON, MSHA's area supervisor for southern 

California, is a person experienced in mining. (Tr. 149). 

Mr. Wilson was familiar with the area involving the lack of 

berms and guard rails. (Tr. 150). There was never a question of 

a berm being required. He had never seen large equipment using 

the area. 

The present height requirement for a berm is mid-axle, but 

in May 1988 there was no such requirement. (Tr. 15). 

DISCUSSION 

The testimony of Mr. Carisoza establishes a violation of 

§ 56.9300. 

Corona's witness basically affirms the Secretary's evidence. Exhibits P-2 and P-3 establish the hazardous condition 

and the necessity for a berm adjacent to the edge. 

The citation should be affirmed. 

CIVIL PENALTIES 

Section llOCi) of the Mine Act sets forth the criteria to be 

considered in assessing a civil penalty. 

The number of persons employed by Corona indicates it is a 

small operator. 

2607 
STANLEY D. HENDRICKSON, general manager of Corona, is familiar with the financial affairs of the company. A letter from 

the First Interstate Bank of Los Angeles outlines the status of 

Corona's loan with the bank. (Tr. 131; Ex. R-1). 

The company is also engaged in a severe price war. In addition, Corona is unable to make principal payments although interest payments have been timely. (Tr. 133). 

The severity of MSHA's inspections and their number are far 

worse than normal. (Tr. 133). 

Mr. Hendrickson indicated the company had defaulted on its 

credit agreement with First Interstate Bank. (Exhibit R-1). 

The above evidence warrants a reduction in the penalty. 

However, to eliminate a penalty in the circumstances presented 

here would not be in furtherance of the Mine Act. 

The assessment of moderate penalties should not severely 

affect the company's ability to continue in business. Although 

Corona has defaulted on its credit agreement, it is current on 

its interest payments. 

In the two years ending May 31, 1989, Corona had 56 violations and paid $2,805 in civil penalties. These figures indicated Corona's prior history is average. (Ex. P-1). 

Corona was negligent since the unbermed creek was open and 

obvious. Further, the operator had been previously cited for the 

lack of a berm. 

The gravity is established, inasmuch as vehicles operate in 

close proximity to the edge. 

Good faith was established by the operator, promptly abating 

the violative condition. 

On balance, a civil penalty of $50 is appropriate for 

Citation No. 3296982. 

2608 
Citation No. 3296996 

This citation alleges a violation of 30 C.F.R. § 56.14107. ~/ 

During the inspection, Mr. Carisoza observed a small belt 

drive, pulleys, and a V-belt powered by a conveyor belt. The 

area is adjacent to a catwalk where workers travel. A worker 

could come in contact with this unguarded machinery which was 12 

inches from the outside frame. (Tr. 23, 24, 79; Ex. C-5) If 

this occurred, he could suffer a severe cut. 

The Secretary has adopted § 56.14107 and it is published in 

the Federal Register (Tr. 99; Ex. P-15). 

DISCUSSION AND FURTHER FINDINGS 

As a threshold matter, it is necessary to identify the regulation in effect when this citation was issued. 

The citation was issued on June 21, 1989. At that time, the 

regulation cited in footnote 2 applied. 

A degree of confusion has been caused by the Secretary's 

1988 regulation governing moving machine parts, namely, 30 C.F.R. 

§ 56.14001. ~/ 

~/ § 56.14107. Moving machine parts. 

(a) Moving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, 

head, tail, and takeup pulleys, flywheels, couplings, 

shafts, fan blades, and similar moving parts that can 

cause injury. 

(b) Guards shall not be required where the exposed 

moving parts are at least seven feet away from walking 

or working surfaces. 

21 This regulation provides as follows: 

§ 56.14001 Moving machine parts. 

Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury 

to persons, shall be guarded. 

2609 
CHARLES G. INMAN, an MSHA inspector, is a person experienced 

in mining. He is stationed in San Bernardino, California. (Tr. 

136, 137). 

The witness visited Corona's site in 1988. At that time, 

the guards were discussed. (Tr. 139). 

The Secretary changed the regulations between 1987 and the 

present time. The principal change is to prevent any deliberate contact with moving machine parts. (Tr. 140). 

As to MSHA's citation, Corona cries foul: The company 

fully complied, at considerable expense and effort, with MSHA's 

rules in 1987. However, MSHA changed those rules and Corona 

finds itself cited by MSHA. 

The uncontroverted testimony of plant engineer Speak estab1 ishes that, after MSHA inspected the plant in 1987, the equipment MSHA found objectionable was modified with additional guarding, reducing any openings to a 3-inch by 29-inch space. (Tr. 

102-106). 

In adopting what was enacted as § 56.14107, MSHA reviewed 

its statistics and concluded that most injuries were caused in 

those instances where the persons were performing work-related 

actions with the machinery. (Ex. P-5). MSHA, therefore, considered it appropriate to require operators to totally enclose 

self-cleaning tail pulleys. (Pages 5 and 6 of Exhibit P-8 demonstrate MSHA's interpretation of the guarding now required.) 

Corona's objections must fail. MSHA has an obligation to 

modify its regulations if such modifications will improve the 

safe working conditions for miners. 

Further, all operators are subject to any such changes. 

However, Corona's actions, as hereafter noted, will reduce the 

civil penalties. 

Corona's size and its ability to continue in business, and 

its previous history have already been discussed. 

The operator was negligent. It should have known of MSHA's 

revised guarding requirements. 

The gravity of the violation must be considered as less than 

severe, since Corona, in 1987, fully complied with the requirements MSHA then believed constituted adeqaute guarding. 

Under the broad umbrella of good faith, Corona abated the 

violative conditions in 1987 and without any changes in those 

conditions the company again abated in 1989. 

2610 
On balance, a civil penalty of $25 is appropriate for the 

violation of Citation No. 3296996. 

Citation No. 3466364 

In this situation, the operator was charged with a violation 

of 30 C.F.R. § 56.14107. 

Inspector Carisoza observed that the guards on the equipment 

did not meet MSHA's guarding standards. The open areas existing 

in the guard presented a hazard. {Tr. 29) 

The openings measured 3 by 19 inches; the self-cleaning tail 

pulley was approximately four ~nches from the opening. {Tr. 30; 

Ex. P-7). 

Employees were generally working in close proximity to 

this area. {Tr. 3). 

MSHA's guarding guidelines address the described condition. 

{Tr. 32; Ex. P-8). The guards the company had installed were 

adequate for a solid tail pulley but not for a self-cleaning tail 

pulley. {Tr. 32, 33). 

During the initial inspection in November of 1988, the 

guards, at MSHA's recommendation, were changed. {Tr. 35; Ex. 

P-7). The company was advised that the guards must be extended 

so a person could not reach around and contact a moving part. 

{Tr. 35). In November 1988, the company was advised that MSHA 

was revising the regulation. The citation in this case was 

issued in June of 1989. {Tr. 36). 

DISCUSSION 

For the reasons previously stated, this citation should be 

affirmed and a civil penalty of $25 assessed. 

Citation No. 3466365 

This citation, an alleged violation of § 56.14107, was issued because the guarding on the c-19 conveyor belt had the same 

hazards as in the previous citation {No. 4566364). {Tr. 36, 37). 

The opening measured. 3 by 2 9 inches. The belts are below 

waist height. Employees work in the vicinity when the units are 

in motion. 

2611 
The rotating spurs can come in contact with a worker while 

he is servicing the unit. (Tr. 37). 

DISCUSSION 

The evidence is uncontroverted. For the reasons previously 

stated, this citation should be affirmed and a penalty of $25 

assessed. 

Citation No. 3466368 

The inspector issued this citation alleging a violation of 

30 C.F.R. § 56.14107. He observed that employees could cross 

directly under two unguarded return idlers adjacent to a conveyor 

belt. The idlers were low enough that a person could contact the 

equipment. (Tr. 38-44; Ex. P-9, P-10, P-11). 

The openings located on the sides of the pulleys were about 

3 X 29". The rollers were about 50-54 inches off the ground. 

(Tr. 44). 

The inspector testified as to matters relating to a civil 

penalty. (Tr. 45). He further believed the violation was 

significant and substantial. (Tr. 46). 

DISCUSSION 

The testimony and the photographs CExs. P-9, P-10, P-11) 

establish that the return idlers were unguarded. A worker could 

contact the idlers. 

Corona's negligence was high since the condition was open 

and obvious. Even though the idler was overhead, if a worker or 

his tools became entangled, he could get injured. 

Citation No. 3466368 should be affirmed and a penalty of $50 

should be assessed. 

Citation No. 3466370 

While the inspector was conducting a noise and dust survey, 

he noticed a feeder lacked guarding. The rollers, head pulley, 

and tail pulley were exposed. Workers in the area could contact 

the exposed parts. As a result of the described condition, the 

inspector issued Citation No. 3466370 alleging a violation of 

§ 56.14107. (Tr. 47-50; Ex. P-12, p. 13). 

2612 
The head pulley was 8 inches by 24 inches; the rollers were 

about 3 by 24 inches. 

The feeder sits above the tail pulley about waist high. 

A person can easily contact the exposed parts on both sides. 

(Tr. 52). 

The inspector further testified as to gravity and negligence. In the inspector's view, this was an S&S violation. 

(Tr. 54-56). 

Witness Speak testified that the equipment involved in 

Citation Nos. 3.~664 70 and 3466372 was built when the original 

plant was constructed. (Tr. 115). 

After a CAV inspection, Peerless Conveyor fabricated brackets which were then installed. (Tr. 116). The equipment remained in place until the date of the instant inspection. 

~ 

The CAV inspection of October 7, 1987, resulted in written 

notices. (Tr. 117). Some of the notices refer to tail pulleys. 

(Tr. 123). 

The feeder and feed belt were not remodeled between the MSHA 

inspections of November 1988 and June 1989. (Tr. 118). 

Robins Engineers and Constructors, originally Hewitt Robins, 

is described as the premier designer of conveyors in the world. 

(Tr. 127). The Robins Company agreed with the fix on the tail 

pulleys. (Tr. 128). 

DISCUSSION 

The factual situation here is similar to that involved in 

the previous citation. The same reasoning applies. 

This citation should be affirmed and a civil penalty of $25 

assessed. 

Citation No. 3466371 

The feed conveyor, below the #1 feeder, carries material 

from the feeder to the scalping screen. The tail pulley was 

not covered. Employees could contact the exposed parts, thus 

a violation of § 56.14107 was alleged. 

The inspector estimated the size of the pulley to be around 

13-27 inches. It was located about 12 inches above the ground. 

2613 
Access for cleaning was available from both sides. (Tr. 57-60; 

Exs. P-13, P-14). 

There were no guards protecting the equipment although there 

was a shield for dust purposes. (Tr. 60, 61). 

The inspector further testified as to gravity and negligence. In the inspector's opinion, the violation was S&S. 

(Tr. 60-62}. 

During the initial inspection in 1988, the unguarded tail, 

head, and take-up pulleys were discussed. (Tr. 63). At that 

time, the operator was asked to totally enclose the tail pulleys. 

(Tr. 63). . 

After a previous CAV, the operator reduced the size of some 

openings; however, some of the openings remained. (Tr. 64}. 

Exhibit P-7 illustrates the partial guarding installed by 

the operator on that particular moving part. Although the size 

of the openings was reduced, the guards still didn't comply with 

the MSHA regulations. At the initial inspection, the opening was 

12 by 29 inches. It had been reduced to that size. (Tr. 67). 

Other conveyor openings had also been reduced in size. (Tr. 68). 

DISCUSSION 

The factual situation here is basically the same as previously discussed. 

The citation should be affirmed and a penalty of $25 

assessed. 

Citation No. 3296997 

This Citation alleges a violation of 30 C.F.R. § 56.14109. ~/ 

!/ § 56.14109 Unguarded conveyors with adjacent travelways. 

Unguarded conveyors next to the travelways shall be 

equipped with--

(a) Emergency stop devices which are located so that 

a person falling on or against the conveyor can readily 

deactivate the conveyor drive motor; • • • 

2614 
Mr. Carisoza entered the area where the conveyor belt was 

located. An area 3 to 3.5 feet long at the head pulley of the 

conveyor belt was exposed. It was lower than the waist-high 

catwalk. The belt was moving at 200 to 350 feet per minute. 

If a person fell on the belt he could not reach the stop cord. 

(Tr. 25, 26, 85; Ex. P-6). He would be carried into the head 

pulley. (Tr. 27). 

The platform, where the unguarded section was located, is 

basically used for maintenance purposes. (Tr. 27; Ex. P-6). 

The opposite side of the conveyor was equipped with all necessary 

guards and pull cables. (Tr. 84). 

Witness Speak indicated there was a hand railing around the 

platform. However, there was no guarding between the platform 

and the conveyor except at the head chute. (Tr. 113). 

The platform is designed purely for maintenance. (Tr. 114). 

Mr. Speak believes that conveyor idlers or rollers are not considered the same as head, tail, snub, or take-up pulleys. The 

exposure along the belt was for two feet. (Tr. 114). 

According to Corona's witness Speak, the speed of the conveyor belt is monitored to detect any slippage of the belt. 

(Tr. 110). The monitor device was in place at the time of a CAV 

inspection. (Tr. 110). A monitor of this type would not create 

a hazard. (Tr. 111). 

DISCUSSION 

The uncontroverted facts establish a violation of the regulation. A monitor to detect slippage of the belt, as discussed 

by Mr. Speak, would not be equivalent to an "emergency stop 

device," as required by the regulation. 

The criteria for assessing a civil penalty has been generally discussed. However, in this case, the operator's negligence 

and gravity are greater than in the other citations. 

A civil penalty of $100 is appropriate. 

WEST 89-414-M 

The parties stipulated that the previous evidence of both 

parties could be considered as applicable to Citation Nos. 

3466372, 3466375, and 3466376. Further, the ruling on the citations in WEST 89-414 would be dispositive of these citations. 

(Tr. 198, 201). In addition, Exhibits P-17 and P-18 depict the 

conditions described in Citation No. 3466372. 

2615 
On the basis of the stipulation, the three citations herein 

should be affirmed and a civil penalty of $25 is assessed for 

each violation. 

WEST 89-450-M 

Citation No. 3296989, issued by Mr. Carisoza, alleges a 

violation of 30 C.F.R. § 14132Cb)(l). ~/ 

While on Corona's property, Mr. varisoza inspected a water 

truck for a back-up alarm. (Tr. 167). Mr. Speak stated the 

company owned the vehicle. 

Mr. Allen, the production supervisor, stated that the truck 

lacked a back-up alarm. (Tr. 168). The inspector found no alarm 

on the vehicle and Mr. Allen agreed this was unsafe. (Tr. 168, 

180). 

Mr. Eaton, general superintendent, and the inspector had a 

heated discussion as to whether Corona was liable for the condition of a vehicle it did not own. (Tr. 168). 

The vehicle was operated in the plant area where people 

traveled on foot. Also, the vehicle had a water tank at the back. 

From inside the cab it was not possible to see the total area 

behind the vehicle. (Tr. 170). No observers had been used when 

the truck was in operation. (Tr. 171). 

The inspector testified as to gravity and negligence. 

(Tr. 172-174). 

MICHAEL ALLEN, Corona's daytime production supervisor, testified. (Tr. 181). He indicated the water truck is operated and 

maintained by Mcclinton Trucking. 

The witness was under the impression the truck was equipped 

with a backup alarm. (Tr. 182). 

11 § 56.14132 Horns and backup alarms. 

(b)Cl) When the operator has an obstructed view to 

the rear, self-propelled mobile equipment shall have--

Ci) An automatic reverse-activated signal alarm; ••• 

2616 
The company electrician located an alarm on the rear axle 

but it was faulty and was replaced. (Tr. 183). 

Except for one occasion, the witness had never observed the 

truck backing up. All of Corona's equipment have backup alarms. 

(Tr. 184-186). 

DISCUSSION 

The credible evidence establishes a violation of the regulation. I reject Michael Allen's somewhat hesitant explanation 

that it was his "impression" that the vehicle had an alarm. Further, no defense is established merely because the truck was not 

owned by Corona. It is clear that Corona's employees were exposed to the hazard presented by the lack of a backup alarm. 

The Secretary alleges this condition was due to the unwarrantable failure of the operator. 

The Commission has set forth the parameters of the unwarrantable failure doctrine, Emery Mining Corporation, 9 FMSHRC 

1997 (197); Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007 

(1987); Rushton Mining Company, 10 FMSHRC 249 (1988). 

The record here fails to establish such aggravated conduct 

and the unwarrantable failure allegations are stricken. 

Several facets of the civil penalty criteria have been 

previously discussed. 

Corona was negligent since it should have known the truck 

lacked a backup alarm. The gravity is high since an employee in 

the work area could have been injured. 

On balance, a civil penalty of $75 is appropriate. 

Citation No. 3296990 

This citation alleges a violation of 30 C.F.R. § 56.14100. 6/ 

~/ The cited standard provides: 

§ 56.14100 Safety defects; examination, correction and 

records. 

Cl) Self-propelled mobile equipment to be used during 

a shift shall be inspected by the equipment operator before being placed in operation on that shift. 

2617 
According to the inspector, the plant supervisor admitted he 

failed to conduct a safety inspection before he permitted the 

truck to be.operated. (Tr. 174, 175, 179). 

DISCUSSION 

The uncontroverted evidence establishes that the truck was 

not inspected before it was placed in service. 

The negligence of the plant supervisor is imputed to the 

company. The gravity is also high. 

On balance, a civil penalty of $75 is appropriate. 

WEST 89-46-M 

As to six of the citations in this case, the parties renewed 

their agreement as they had expressed in connection with the previous self-cleaning type tail pulleys. (Tr. 203). The remaining 

citation is this case was litigated. 

On the basis of the stipulation, I conclude that Citation 

Nos. 3466361, 3466363, 3466366, 3466367, 3466369, and 3466374 

should be affirmed and a civil penalty of $25 should be assessed 

for each violation. 

Citation 3466362 

This citation alleges a violation of 30 C.F.R. § 56.5005Cb). ~/ 

(Tr. 205, 206, 210). 

21 The relevant portion of the cited standard reads: 

§ 56.5005 Control of exposure to airborne contaminants. 

Control or employee exposure to harmful airborne contaminants shall be, insofar as feasible, by prevention of contamination, removal by exhaust ventilation, or by dilution 

with uncontaminated air. However, where accepted engineering control measures have not been developed or when necessary by the nature of work involved Cfor example, while establishing controls or investigation), employees may work 

for reasonable periods of time in concentrations of airborne 

contaminants exceeding permissible levels if they are protected by appropriate respiratory protective equipment. 

Whenever respiratory protective equipment is used a program 

for selection, maintenance, training, fitting, supervision, 

cleaning, and use shall meet the following minimum 

requirements: 

2618 
In the presence of the MSHA inspector, Keith Speak directed 

an employee to contact a certain individual in the company. Approximately. 90 minutes later, the inspector saw the same employee 

in an affected area cleaning up silica sand spills. When questioned, the employee stated he had not been trained or fit-tested 

in the use of the respirator. At that point, a 104(d) order was 

issued and the employee was withdrawn until he was trained. 

(Tr. 206, 207, 212; Ex. P-20). 

Exhibit P-20, page 24, addresses procedures for use of the 

respirator and proper test fillings. (Tr. 209). The ANSI standard indicates training for an employee should take place where 

respiratory protection is required. (Tr. 209). 

The dust exposure at the site was excessive. (Tr. 215) • 

In prior uncontested citations Corona's employees were exposed to .51 and 2.78 milligrams per cubic meter. (Tr~ 217). 

In June 1989 the inspector, in a usual check, found parts of 

the system had been worn through. In addition, in some places 

material was spilling and leaking. (Tr. 221). 

KEITH SPEAK indicated that a labor agency provides laborers 

to assist plant personnel. (Tr. 224). 

The MSHA inspectors and the new employee arrived together. 

Mr. Speak sent the employee to the mainten~nce shop. He had no 

way of knowing the employee would later be ~t the screen house 

and untrained. (Tr. 225). He had, not knowingly, sent the employee into an area under citation. (Tr. 225). In short, he did 

not believe the company's actions were unwarrantable. (Tr. 226). 

If the employee had arrived in normal circumstances, he would 

have been trained by video tapes in Mr. Speak's possession. 

(Tr. 227). 

Cb) A respirator program consistent with the requirements of ANSI Z88.2-1969, published by the American National Standards Institute and entitled "American National Standards Practices for Respiratory Protection 

ANSI Z88.2-1969, 11 approved August 11, 1969, which is 

hereby incorporated by reference and made a part hereof. 

This publication may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New 

York, New York 10018, or may be examined in any Metal 

and Nonmetal Mine Safety and Health District or Subdivision Office of the Mine Safety and Health Administration. 

2619 
Mr. Speak didn't direct the employee to stay in certain 

areas, nor did he give any directions to the foreman. (Tr. 228). 

He was also aware that prior respirator citations had been issued 

to the company. (Tr. 229; Ex. P-22). 

Exhibit P-22, a memorandum dated May 16 or 17, indicates 

Corona was experiencing problems with employees fully complying 

with respirator training of the silica dust program. (Tr. 234). 

However, Corona was having difficulty finding qualified people to 

hire. (Tr. 235). The company has a high turnover rate in its 

workforce. CTr. 237). 

All of the areas in the plant are currently in compliance 

in a recent dust sampling. (Tr. 240). 

DISCUSSION 

The inspector's evidence establishes Corona violated the Act. 

Corona's evidence does not establish a contrary view. The citation should affirmed. 

I find Mr. Speak's testimony to be credible and no unwarrantable failure has been established as required by the Commission rulings. Such allegations are stricken. 

The facts establish Corona was negligent, but the exposure 

to the dust was only for a short time. In view of the minimal 

exposure, I consider the gravity to be low. 

On balance, a civil penalty of $100 is appropriate. 

WEST 90-22-M 

Citation No. 3466380 alleges a violation of 30 C.F.R. 

§ 50.20. 

At the hearing, petitioner moved to vacate the citation. 

For good cause shown, the motion should be granted. 

In view of the foregoing findings of fact and conclusions of 

law, I enter the following: 

2620 
ORDER 

The following citations are AFFIRMED and the penalties as 

indicated are ASSESSED. 

1. WEST 89-413-M 

Citation Nos. Penalty 

3296982 $ so 

3296996 $ 25 

3466364 $ 25 

3466365 $ 25 

3466368 $ 50 

3466370 $ 25 

3466371 $ 25 

3296997 $100 

2. WEST 89-414-M 

Citation Nos. Penalty 

3466372 $ 25 

3466375 $ 25 

3466376 $ 25 

3. WEST 89-450-M 

Citation Nos. Penalty 

3296989 $ 75 

3296990 $ 75 

4. WEST 89-460 

Citation Nos. Penalty 

3466361 $ 25 

3466363 $ 25 

3466366 $ 25 

3466367 $ 25 

3466369 $ 25 

3466374 $ 25 

3466362 $100 

2621 
5. WEST 90-22-M 

Citation No. 3466380 and all penalties therefor are VACATED. 

Law Judge 

Distribution: 

Eve Chesbro, Esq., Jonathan s. Vick, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite 1110, 

San Francisco, CA 94105-2999 (Certified Mail) 

Mr. Stanley D. Hendrickson, General Manager, 20125 Ternescal 

Canyon Road, Corona, CA 91719 (Certified Mail) 

/ek 

2622 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 1 71990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES 

INCORPORATED, 

Respondent 

. . 

. 

0 

Docket No. WEST 90-75 

A.C. No. 05-00301-03732 

: Dutch Creek Mine . . 

. . 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.C., 

Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration {MSHA), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 u.s~c. § 801, et seg. (the "Act"). 

After notice to the parties, a hearing commenced in Glenwood 

Springs, Colorado, on November 14, 1990. 

At the hearing, the parties announced they had reached an 

amicable settlement of all issues not previously settled. 

The citations, the original assessments, and the proposed 

disposition of all matters in controversy are as follows: 

Citation No. 

3225328 

3410961 

9996381 

Order No. 

2931575 

3410940 

Assessment 

$483 

$295 

$530 

Assessment 

None 

None 

2623 

Disposition 

$100 

Vacate 

$295 

Disposition 

Vacate 

Affirmed 
In connection with their settlement the parties further seek 

to amend the "Significant and Substantial" allegations in 

Citation No. 3225328. 

In support of their motion the parties have further submitted information relating to the statutory criteria for assessing 

civil penalties as contained in 30 u.s.c. § 820Ci). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. The settlement agreement is APPROVED. 

2. Citation No. 3225328 is AFFIRMED and a civil penalty 

$100 is ASSESSED. 

3. Citation No. 9996381 is AFFIRMED and a civil penalty 

$295 is ASSESSED. 

4. Citation No. 3410961 is VACATED. 

5. Order No. 3410940 is AFFIRMED. 

6. Order No. 2931575 is VACATED. 

of 

of 

7. Respondent is ORDERED to pay to the Secretary of Labor 

the sum of $395 within 40 days of the date of this decision. 

Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

/ek 

2624 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

December 18, 1990 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION ON BEHALF OF 

JOSEPH C. CULP, 

Complainant, 

v. 

MID-CONTINENT RESOURCES, INC., 

Respondent 

DECISION 

AND 

Docket No. WEST 91-108-D 

DENV-CD-90-13 

Dutch Creek Mine 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances: James B. Crawford, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Complainant; 

Edward Mulhall, Jr., and Timothy A. Thulson, Esq., 

DELANEY & BALCOMB, P.C., Glenwood Springs, 

Colorado, 

for Respondent. 

Before: Judge Cetti 

Statement of the Proceeding 

On November 28, 1990, the Secretary of Labor (Secretary), 

pursuant to Section 105(c)C2> of the Federal Mine Safety and 

Health Act of 1977 and Commission Rule 29 C.F.R. § 2700.44(a), 

filed an application for an order requiring Respondent, MidContinent Resources, Inc., to reinstate Joseph c. Culp to his job 

as maintenance foreman at Mid-Continent Resources, Inc., Dutch 

Creek Mine, from which he was suspended from the payroll on 

August 23, 1990. The application stated that the Secretary found 

the complaint of discrimination indicating an adverse action of 

suspension and discharge is not frivolous. The application was 

accompanied by copies of the complaint filed by the Applicant and 

by an affidavit of Dennis M. Ryan of the Mine Safety and Health 

Review Administration asserting that Respondent suspended and 

later terminated complainant and has failed to recall him, and 

concluding that the complaint filed by him is not frivolous. The 

application was accompanied by proof of notice to, and service 

on, Mid-Continent Resources, Inc., by express mail, return receipt requested, on November 28, 1990. 

Respondent, within 10 days following receipt of the Secretary's application for temporary reinstatement, requested a 

hearing on the application pursuant to 29 c.F.R. § 2700.44Cb). 

2625 
On December 12, 1990, pursuant to Respondent's request, a 

hearing was held before the undersigned Commission Administrative 

Law Judge on the application for temporary reinstatement. The 

scope of the hearing is limited to the single issue before me 

which is whether Mr. Culp's complaint is frivolously brought. 

Oral and documentary evidence was presented and the matter was 

submitted for decision on this limited issue and a request for 

an Order of Temporary Reinstatement. 

The Testimony 

At the hearing, Complainant presented the testimony (approximately 240 pages of as yet to be transcribed) of the Complainant 

Joseph c. Culp and the testimony of Mr. Lee H. Smith, Supervisor 

of Coal Mine Safety and Health Inspectors located at Glenwood 

Springs, Colorado. 

Undisputed evidence was presented that on August 16, 1990, 

carbon monoxide ranging from 500 PPM to 660 PPM "and climbing" 

was detected emanating from the 211 longwall gob. MSHA, on that 

date, August 16, 1990, issued 103(b} Order No. 358626 to "assure 

the safety of any person in the coal mine" until the source of 

the carbon monoxide was found and extinguished or otherwise controlled. The source was an unplanned ignition of methane in the 

211 advancing longwall tailgate entry gob. The 103(k) order, 

with various amendments and modifications (Ex. R-2), was not 

terminated until November 5, 1990, when it was determined that 

the fire had been extinguished. 

On August 18, 1990, a roaring fire with visible bright 

orange flames was first observed on top of the 211 longwall gob. 

Continuous unsuccesful attempts were made by Respondent to extinguish the fire with the use of water and dry chemicals. 

On August 18, 1990, MSHA issued its 107(a} imminent danger 

Order No. 3583688 which continued in effect with various modifications (Ex. R-1) until terminated on September 27, 1990. 

The Complainant, Joseph c. Culp, testified that he had 

worked as a coal miner in various mines for 10 years. On June 1, 

1989, Respondent appointed Mr. Culp to the position of maintenance foreman in Respondent's Dutch Creek Mine. He continued 

working in that position until his suspension from the payroll on 

August 23, 1990, followed by his discharge from the payroll on 

October 15, 1990. His assigned work duties prior to the fire 

included work on the surface as well as work duties underground. 

2626 
Mr. Culp testified that approximately "20 percent of the time or 

less" he was assigned jobs involving work on the surface, such as 

work on the belt system and ventilation fans. 

The last day Mr. Culp worked at the mine was September 22, 

1990. At that time, MSHA was allowing only 25 miners at any one 

time to work underground in the mine. Bill Porter, the acting 

mine foreman, on September 22, 1990, assigned him to do maintenance work underground in support of the activity of the miners 

who were fighting the fire. Part of his work required him to be 

at the fresh air base. 

Mr. Culp's maintenance superintendent, Mr. Tuck, was not 

underground on August 22, 1990, so Culp had to complete his shift 

underground before he was able to go to the surface and talk to 

Mr. Tuck. He told Mr. Tuck of his safety concerns as well as 

those of his wife's about being required to work underground during the mine fire. Mr. Culp said it was unsafe, that no one 

could guarantee that the mine is not going to blow up. Mr. Tuck 

told him that his wife (Mrs. Tuck) was also concerned; £hat he 

had seen the fire and that it "wasn't that bad." Mr. Culp did 

not believe that it wasn't bad, in view of the mine's past history of explosions. He knew of the 1981 explosion at the mine 

that killed 15 miners, including miners working outby the face as 

well as inby. Mr. Culp was concerned for his safety and believed anything could happen. He said he did not want to work 

underground while the mine fire burned. He asked to be assigned 

to any work above ground. He testified that there was work t6 be 

done above ground that he had done in the past and that he was 

able to do. Work on the surface was refused. Mr. Culp asked, as 

an alternative, to be allowed to go on vacation or to be laid off 

without pay until the mine fire was extinguished or until he 

could be assigned to work not requiring him to work underground 

while the fire continued. These alternative requests by Mr. Culp 

were refused. He was told that all vacations were canceled, 

except for employees already out of town, and that Respondent 

needed him to do underground maintenance work in support of the 

efforts of the miners fighting the underground fire. Mr. Culp 

told Mr. TUck that he liked his job and that he did not want to 

quit. Mr. Tuck told him "I understand your concerns" and "you 

have to do what you have to do, and I have to do what I have to 

do." 

Mr. Culp was scheduled to report to work the next morning, 

August 23, 1990. Early that morning, he called the mine and 

talked to the acting foreman Mr. Scott Jones, who told him the 

fire in the mine was continuing. Mr. Culp asked him to inform 

Mr. TUck that he "reported off," which is the standard procedure 

required of a miner who is not coming in on a scheduled workday. 

2627 
Mr. Culp then got a phone call from Mr. Tuck. Mr. Culp reminded 

Mr. Tuck of what he told him in their talk at the end of the 

shift on August 22, 1990. Mr. Tuck acknowledged their talk but 

said, "You have to come to work or be terminated." Mr. Tuck 

indicated to him that all salaried employees were needed to fight 

the fire, that Mr. Culp's only alternatives were to work, quit, 

or be fired. Mr. Culp testified that he did not quit his job 

and, because of his concern for his safety, refused only underground work while the mine fire continued. 

Mr. Tuck told Mr. Culp that he wanted him to talk to 

Mr. Myers, the Personnel Director. Mr. Culp talked to the Personnel Director and told him what the situation was and of his 

and his wife's safety concerns and that he did not want to quit. 

He asked for work on the surface while the fire inside the mine 

was continuing. Mr. Myers got back to him a few days later and 

told him he was suspended without pay as of August 22, 1990. 

Later he received the letter from Mr. Myers, dated September 4, 

1990 (Ex. G-1), advising him that he was suspended fro~ the payroll as of August 22, 1990, pending a hearing with management. 

On September 12, 1990, he had a hearing before Mr. M.J. Turnipseed, Respondent's Vice President of Operations. After the hearing, he received Mr. Turnipseed's letter dated October 11, 1990 

(Ex. G-3), advising him that his (Mr. Culp's) actions "constituted a voluntary relinquishment of his position" and the severance of the employment relationship was to be effective October 15, 1990. 

Mr. Lee A. Smith called by Complainant stated that since 

March 12, 1990, he has been the supervisory of the coal mine 

safety and health inspectors located at Glenwood Springs. He is 

familiar with the mine fire in question. The fire was under his 

jurisdiction, and he was one of the coal mine inspectors at the 

mine during the fire. He was aware of the 103(k) order issued 

August 16, 1990, and the 107(a) imminent danger order issued 

November 18, 1990. However, no Section 103Cj) Order was ever 

issued. With respect to the mine fire, the Respondent would make 

proposals and MSHA would either approve the proposed plan or disapprove it. MSHA would either say "Yes" or "No." MSHA never 

supervised the fire-fighting efforts but was observing it. 

Respondent continued t~ be in c6ntrol of the mine. 

Mr. Lee Smith stated that when he observed the fire, the 

flame was bright orange, about 14.5 feet long, and 12 feet wide. 

Within a limited area in the 211 longwall gob, the fire moved 

around. Sometimes there was a single flame and at other times 

there were multiple flames. 

2628 
Methane is an explosive gas. The mine had a history of liberating large quantities of methane gas and, in the past, has 

been and continues to be subject to an MSHA spot inspection every 

five working.days under Section 103(c} of the Act. There have 

been three mine explosions in the past. The April 15, 1981, explosion resulted in the death of 15 miners, some outby the face 

area. The December 1986 explosion resulted in the death of nine 

miners. There was a third explosion which fortunately did not 

result in any deaths. Mr. Culp's safety concerns and belief that 

working underground in the mine was hazardous while the mine fire 

continued was a reasonable belief. 

Documentary Evidence 

The following documents were tendered by the Secretary on 

behalf of Complainant and received in evidence. 

1. Exhibit G-1 is a copy of a letter dated September 4, 

1990, by Respondent's Personnel Director advising Mr. Ct!_lp he was 

suspended from the payroll August 22, 1990, pending a hearing 

with management. 

2. Exhibit G-2 is a copy of a letter dated Septmber 7, 

1990, notifying Mr. Culp of his hearing with management to be 

held September 12, 1990, regarding his suspension. 

3. Exhibit G-3 is a copy of a letter dated October 11, 

1990, by Respondent to Mr. Culp incorporating management's review 

of the evidence presented at the September 12, 1990, hearing. 

4. Exhibit G-4 is a copy of a page from Respondent's 

"Salaried Employee Handbook" given to Mr. Culp stating 

No employee will be required to work under 

conditions which he reasonably believes to be 

dangerous beyond the normal hazards inherent 

in underground mining. 

5. Exhibit G-5 is a diagram showing a plan view of the 

location of the 211 longwall fire. 

The following documents were tendered by Respondent and, 

except for Exhibit R-4, received into evidence. 

1. Exhibit R-1 is MSHA's 107(a} Imminent Danger Order re 

the 211 longwall fire issued August 18, 1990, and its various 

modifications through September 27, 1990. 

2629 
2. Exhibit R-2 is MSHA's 103Ck) Order issued August 16, 

1990, and its various modifications through November 5, 1990. 

3. Exhibit R-3 is Respondent's summaries of MSHA's 103(k) 

and 107(a) orders and their various modifications. 

4. Exhibit R-4, marked for identification only, not received into evidence, consists of 200 loose pages entitled MSHA 

PERSONNEL AND ACTIVITY. 

5. Exhibit R-5 is a chart prepared by Respondent showing, 

for the period August 16, 1990, to November 5, 1990, time lines 

relating to the 211 longwall fire and MSHA's 103(k) and 107Ca) 

Orders and their modification. 

DISCUSSION 

Under 29 C.F.R. § 2700.44(c) (1986), 30 u.s.c. § 815(C)(2) 

the scope of a temporary reinstatement hearing is limited to a 

determination as to whether the miner's discriminatory-complaint 

is frivolously brought. Secretary of Labor on behalf of Yale E. 

Hennessee v. Alamo Cement Company, 8 FMSHRC 1857-1858 (December 8, 1986). 

Webster's New Collegiate Dictionary 1979 defines "frivolous" 

as follows: 

1 . . of little weight or importance 

2 a: lacking in seriousness; irresponsibly selfindulgent 

b: marked by unbecoming levity 

Black's Law Dictionary; Revised Fifth Edition, 1979, defines 

the term "frivolous" and "frivolous appeal" as follows: 

Frivolous. Of little weight or importance. A pleading 

is "frivolous" when it is clearly insufficient 

on its face, and does not controvert the material 

points of the opposite pleading, and is presumably interposed for mere purposes of delay or to 

embarrass the opponent. 

Frivolous appeal. One in which no justiciable question 

has been presented and appeal is readily recognizable as devoid of merit in that there is little 

prospect that it can ever succeed. 

2630 
I have carefully reviewed and considered the testimony of 

Mr. Joseph c. Culp and Mr. Lee A. Smith summarized above and the 

documentary evidence. I find that the record clearly raises a 

non-frivolous issue as to whether Mr. Culp's discharge was in 

violation of the Mine Act. I credit Mr. Culp's testimony, as 

well as the testimony of Mr. Lee Smith. A viable issue was 

raised as to whether Mr. Culp's refusal to work underground while 

the 211 longwall gob fire continued to burn was based in part on 

Mr. Culp's reasonable good faith belief that such work was hazardous or that it exposed him to the danger of serious injury or 

death. 

Mr. Culp's complaint is not frivolously brought. The Secretary on behalf of Mr. Culp has carried its burden of proof. The 

application for temporary reinstatement should be granted. 

FINDINGS AND CONCLUSIONS 

1. At all relevant times Respondent, Mid-Continent Resources, Inc., did business and operated its Dutch Creek Mine 

in the production of coal and therefore is an operator within 

the meaning of Section 3Cd) of the Act; 

2. At all relevant times Joseph c. Culp was employed by 

Respondent as maintenance foreman at Respondent's Dutch Creek 

Mine, and was a miner, as defined by Section 3{g) of the Act; 

3. Respondent's Dutch Creek Mine, located near Redstone; 

Pitkin County, Colorado, is a mine, as defined in Section 3Ch) of 

the Act, the products of which affect commerce; 

4. On August 22, 1990, Joseph c. Culp had complained to 

Respondent about unsafe mining conditions and practices at the 

Dutch Creek Mine, specifically being required to work underground 

during a mine fire, and asked to be assigned to work at the surf ace until the mine fire was extinguished; 

S. Respondent, through its maintenance superintendent and 

mine foreman, Robert E. Tuck, was unresponsive to these safety 

complaints and, in fact, stated that it was "not all that bad"; 

6. Mr. Culp's requests for an alternative to working 

underground in the mine while the mine fire continued, such as 

working on the surface, vacation, temporary layoff without pay, 

were all refused by Respondent. 

7. On August 23, 1990, Joseph c. Culp was suspended from 

the company payroll. He later received written notice from 

Mid-Continent that his employment with Respondent was terminated 

on October 15, 1990; 

2631 
8. Based on the evidence presented at the hearing and the 

record as a whole, I find that a "viable issue" was raised as to 

whether Mr. Culp's refusal to work underground in the mine that 

preceded his discharge, was based in part on his reasonable good 

faith belief that working underground in the Dutch Creek Mine 

while the mine fire continued would expose him to an injury, 

danger, and hazard. 

ORDER 

The application for an order of temproary resintatement of 

Mr. Joseph C. Culp is GRANTED. Respondent is ORDERED to immediately reinstate. Mr. Culp to his position as maintenance foreman, 

from which position he was discharged, at the same rate of pay, 

and with the same or equivalent duties assigned to him immediately prior to his discharge. 

As previously stated in the body of this decision, the scope 

of this temporary reinstatement hearing is limited to my determination as to whether Mr. Culp's discrimination complaint is frivolously brought. The respondent will have a full opportunity to 

respond, and the parties will be afforded an opportunity to be 

heard on the merits of any discrimination complaint filed. The 

parties will be notified further as to the time and place of any 

hearing requested. 

Distribution: 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mr. Joseph C. Culp, P.O. Box 1206 (79 Clearwater Dr.), Carbondale 

CO 81623 (Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

Mid-Continent Resources, Inc., P.O. Box 500, Carbondale, CO 81623 

(Certified Mail) 

/ek 

2632 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LEO SLONE & 180 MINERS, 

Complainants 

v. 

SUN GLO COAL COMPANY, 

Respondent 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 20, 1990 

COMPENSATION PROCEEDING 

Docket No. KENT 90-122-C 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before: Judge Merlin 

By order dated October 23, 1990, the operator's "Agreed 

Order Settling" this complaint was disapproved and the operator 

was ordered to file additional information in order to have the 

settlement approved. As set forth in the order, the operator was 

directed to provide the names of all affected miners; the number 

of hours for which each of them were being compensated: the 

amount of compensation paid to each miner; and signatures to the 

agreement by the duly authorized representatives of the miners 

and operator. On December 7, 1990, the operator filed another 

"Agreed Order Settling" which sets forth the details of the 

settlement as follows: 

The shutdown [of the mine] at issue occurred on 

March 20, 1990 at approximately 2:30 P.M. All miners 

were sent home. The mine reopened at 4:00 P.M. on 

March 21, 1990. The lost hours were the remainder of 

the day shift on the 20th, the full evening shift on 

the 20th, the full night shift on the 21st and the full 

day shift on the 21st. The Complainants represent that 

the stated payments fully reimburse each affected 

employee for all hours lost on their scheduled shift, 

including overtime. There was no reduction in the 

hours payable negotiated between the parties as a 

function of the settlement. Each Complainant represents that he/she ha~ beeri fully satisfied and made 

whole by the Respondent's payment as described in 

Exhibit A, and that this action may be dismissed. 

A list of miners containing the hours and monetary 

amounts of compensation was attached and both parties signed 

the agreement. 

2633 
The order of October 23, 1990 having been complied with, I 

accept the foregoing representations and approve the recommended 

settlement. 

Accordingly, it is ORDERED that the proposed settlement be 

APPROVED and that this case be DISMISSED. 

- \ 

\ 

Law Judge 

Distribution: 

Mr. Leo Slone, Chairman, Mine committee, 101 Jackson's Branch, 

Elkhorn City, KY 41522 (Certified Mail} 

Mr. c. Torn Anderson, President, Sun Glo Coal Company, Inc., P. o. 

Box 280, State Route 197, Ash Camp, KY 41512 (Certified Mail} 

/gl 

2634 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 201990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

MICHAEL L. PRICE AND 

JOE JOHN VACHA, 

Complainants 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. SE 87-128-D 

No. 4 Mine 

.DECISION ON REMAND 

Before: Judge Broderick 

STATEMENT OF THE CASE 

On July 13, 1988, I issued a decision on the merits in this 

case in which I conclu4ed (1) Section IIE of JWR's Drug Abuse and 

Rehabilitation Control Program was on its face in violation of 

section 105(c) of the Act. I further concluded (2) that the 

discharge of Price and Vacha was motivated in part because of 

activity protected under the Act, but that JWR established that 

they would have been discharged for unprotected activity alone 

and that the drug testing program was not discriminatorily 

applied to Price and Vacha. 10 FMSHRC 896 (1988). On August 20, 

1990, the Commission reversed my determination that the drug 

program was facially discriminatory under the Mine Act. It 

affirmed my cc~clusion that Price and Vacha established a prima 

facie case of discriminatory discharge. However, the Commission 

determined that my decision did not fully examine and explain the 

impact on JWR's affirmative defense of the evidence concerning 

the pre-testing supervisory joking directed at Price and Vacha, 

and the differences in procedures followed in testing Price and 

Vacha from those followed at other mines. The case was therefore 

remanded to me to analyze and explain the impact of this 

evidence. 12 FMSHRC 1521 (1990). On August 27, 1990, I issued 

an order to the parties to file briefs directed to the question 

whether JWR's drug program was discriminatorily applied to Price 
and Vacha. In the meantime, JWR filed a Motion for 

Reconsideration of the Commission's decision which was denied by 

order issued November 28, 1990. All parties have now filed 

briefs in response to my order of August 27, 1990. 

FACTUAL ANALYSIS 

I 

JWR instituted its Substance Abuse Program on 

January 1, 1987. By its terms it applied to all hourly and 

salaried employees in JWR's Mining division. However, the drug 

testing aspect.of the program was directed first to (a) employees 

demonstrating a reasonable cause for testing and (b) employees 

whose duties, "whether by job title or by reason of elected 

office," involve safety. In my decision of January 13, 1988, I 

concluded that the program was not designed or intended to 

interfere with safety committee members including Price and 

Vacha, even though it impinged particularly on such miRers' 

representatives. JWR's motive in setting up the program was not 

to retaliate against Price and Vacha or other safety committee 

persons, or to limit their safety rights and responsibilities. 

II 

The evidence shows that Price and Vacha were, and had the 

reputation of being, safety activists. Both filed a number of 

safety grievances, and both have had serious disputes with JWR 

management over safety issues. 10 FMSHRC 903. In the opinion of 

the International Health and Safety Representative of the UMWA, 

the No. 4 Mine Safety Committee was the "most active committee" 

in the State of Alabama, which includes other Jim Walter mines. 

III 

Prior to the date that paragraph IIE was implemented 

(March 2, 1987), Price and Vacha were subjected to kidding and 

joking by supervisory employees in the mine safety office about 

the impending drug testing. In part this apparently resulted 

from the fact that Price told the JWR safety inspectors that he 

had difficulty urinating in front of others. Rayford Kelly, 

JWR's industrial relations supervisor at the subject mine, was 

aware of some of this. 10 FMSHRC 900. This joking was directed 

at Price and Vacha because they were going to be tested. They 

were going to be tested because they were safety committee 

members. Whether or not the joking was intended to affect their 

ability to submit the requested urine samples, the evidence 

establishes that it had such an effect. There is no evidence in 

the record as to any joking or harassment directed to other 

safety committee members on other shifts or in other mines. 

2636 
IV 

The urine samples program at the No. 4 Mine where Price and 

Vacha worked was conducted under the supervision of the mine 

safety department--by Wyatt Andrews and Bob Hendricks. Andrews 

and Hendricks were of course involved in mine safety matters with 

Price and Vacha in the normal course of their duties. Andrews 

and Hendricks had been involved in the pre-testing joking 

directed at Price and Vacha related to their claimed inability to 

urinate in public described in III, above. In the other JWR 

mines, the samples were taken under the direct supervision of the 

industrial relations office, and not by JWR safety personnel. 

The record does not indicate the reason for this difference. 

v 

On March 2, 1987, Price and Vacha were informed that they 

would have to provide urine samples at the end of the shift, 

which extended from 7:00 a.m. to 3:00 p.m. Price was told at 

about 8:00 a.m. and Vacha at about 11:30 a.m. Andrews and 

Hendricks accompanied Price and Vacha to the bathroom as they 

were instructed to do, to witness the collection of the samples. 

This procedure was not followed in all the other mines, in some 

of which those tested were permitted to produce specimens without 

an observer being present. Price and Vacha attempted to produce 

a specimen on a number of occasions between 3:00 p.m. and 

7:00 p.m. Price offered to go into the bathroom naked if he 

could go alone, but this offer was refused. Price and Vacha 

asked whether they could return the next morning to give the 

samples, but JWR refused. At 7:30 p.m., they were formally 

suspended with intent to discharge because of insubordination. 

In another mine, a committeeman who was unable to produce a 

sample when requested was permitted to return at the end of his 

shift to do so. In another instance, a miner being tested for 

cause was permitted to return the next day to give a sample. 

VI 

Price and Vacha were made to feel nervous and upset by the 

manner in which the testing was conducted. They did not refuse 

to submit the samples but were physically or psychologically 

unable to do so. I conclude that the fact that the procedure was 

supervised by those who often had an adversarial relation to them 

in safety disputes, contributed to their discomfort. I also 

conclude that the past safety activities of Price and Vacha were 

part of the motivation of these supervisors in their conduct of 

the drug testing program. 

VII 

The evidence establishes that JWR's drug testing program 

included a specific proviso that failure to submit urine samples 

2637 
when requested would result in discharge. This proviso applied 

to all who came under the program. 

VIII 

Price and Vacha were discharged by Rayford Kelly, Industrial 

Relations Supervisor. Kelly believed that Price and Vacha 

deliberately refused to provide the specimens--that they were 

"playing games." Kelly was aware of the fact that the testing 

was conducted by safety department supervisors, and that both 

Price and Vacha claimed inability to produce specimens while 

being observed. Kelly refused to permit Price to attempt to 

provide a specimen without being observed by going into the 

bathroom naked. He refused to accept the offer of Price and 

Vacha to return the following morning to give the samples. He 

was aware of at least some of the prior joking and harassment of 

Price and Vacha in which Andrews and Hendricks were involved. 

ISSUE 

Whether the JWR Substance Abuse Program as applied to 

Complainants Price and Vacha resulting in their discharge was in 

violation of their rights under section 105(c) of the Mine Act? 

CONCLUSIONS OF LAW 

I 

My conclusion in the decision issued July 13, 1988, that 

Price and Vacha established a prima facie case of discriminatory 

discharge was based in part on the fact that JWR sought to test 

Price and Vacha because they were safety committeemen and 

therefore representatives of miners, and in part on the evidence 

of disparate treatment in the testing procedures shown in the 

Findings of Fact III, IV, V and VI above. My conclusion that a 

prima facie case of discrimination was made was affirmed by the 

Commission. 

II 

The evidence does not establish that the pre-testing joking 

and harassment directed toward Price and Vacha were related to 

their safety positions or safety activities. The joking and 

harassment did result in part from their claimed inability to 

urinate in public, and in turn contributed to their inability to 

produce the urine samples involved in this proceeding. 

III 

The procedures followed in testing Price and Vacha which 

differed from those followed in other mines contributed to their 

inability to comply with the request for urine samples. They 

2638 
were in part related to Price and Vacha's prior safety activities 

in that they were conducted by those who bore an adversarial 

relationship to Price and Vacha in mine safety matters. 

IV 

There is no evidence of a motive for the challenged 

discharges unrelated to the drug testing matter involved in this 

case. Therefore, this is not a truly "mixed motive" case. Cf. 

Eastern Assoc. Coal v. Federal Mine Safety and Health Review 

Commission, 813 F.2d 639, 643 (4th Cir. 1987). My prior decision 

erroneously treated the case as a mixed motive case when I 

concluded that JWR would have discharged Price and Vacha "for 

violating a work order (not protective activity) in any event." 

10 FMSHRC 910. My conclusion that the drug testing program was 

not discriminatorily applied was contrary to the evidence and 

erroneous. Price and Vacha were discharged for failing to comply 

with JWR's drug testing program. The implementation of that 

program was discriminatorily applied to Price and Vacha-.in part 

because of their prior safety activities. JWR has not established 

that it would have discharged Price and Vacha for unprotected 

activity alone, i.e., without reference to the implicated drug 

testing program. Therefore their discharges were in violation of 

section lOS(c) of the Mine Act. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Respondent shall permanently reinstate Michael L. Price 

and Joe John Vacha to the positions from which they were 

discharged on March 2, 1987. 

2. Respondent shall pay Complainants Price and Vacha within 

30 days of the date of this decision all back wages and other 

benefits from March 3, 1987, until the date of their 

reinstatement, with interest thereon in accordance with the 

Commission decision in Local Union 2274, UMWA v. Clinchfield Coal 

co., 10 FMSHRC 1493 (1988) calculated proximate to the time 

payment is actually made. 

3. Respondent shall expunge from its personnel records all 

references to the discharges of Price and Vacha on March 2, 1987. 

4. Respondent shall restore to Price the three days of 

graduated vacation pay he took to attend the hearing. 

2639 
5. Respondent' shall pay to the Secretary within 30 days of 

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

the violation found herein. 

j I .. ·/ 

.-• ·' ; . .-;, ' ~ •-'/ . .. df/vt.L!> /~/_;;?,(_£/{.,I./[:!__ 

f James A. Broderick 

' Administrative Law Judge 

Distribution: 

Colleen A. Geraghty, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Robert K. Spotswood, Esq., John W. Hargrove, Esq., Bradley, 

Arant, Rose & White, 1400 Park Place Tower, Birmingham, AL 35203 

(Certified Mail) 

Patrick K. Nakamura, Esq., Longshore, Nakamura & Quinn, 2101 City 

Federal Bldg., Birmingham, AL 35203 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

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

slk 

2640 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ROY FARMER AND OTHERS, 

Complainants 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

OEC 201990 

COMPENSATION PROCEEDING 

Docket No. VA 91-31-C 

VP-3 Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

on November 2, 1990, Applicant Roy Farmer, Miner 

Representative, filed on behalf of himself and some 275 other 

miners at the Virginia Pocahontas No. 3 Mine of Respondent a 

claim for compensation under section 111 of the Mine Act. The 

claim covers the period April 17 through April 20, 1990, when the 

employees were said to have been idled fqllowing a section 107(a) 

imminent danger withdrawal order accompanied by a section 104(a) 

citation charging a violation of a mandatory health and safety 

standard. Copies of the order and citation accompanied the claim 

for compensation. 

Island Creek filed an Answer on November 28, 1990, and a 

Motion to Dismiss on November 30, 1990. 

The Motion to Dismiss argues that the case should be 

dismissed because it was filed 198 days from the date of the 

claimed entitlement, and Commission Rule 35, 29 C.F.R. § 2700.35 

requires that a complaint for compensation shall be filed within 

90 days after the co:rnritencement of the period the Complainants are 

idled or would have been idled as a result of the order which 

gives rise to the claim. 

Complainants have not replied to the Motion. 

Because the complaint appears to have been filed 

substantially later than.Rule 35 permits, and Complainants have 

not advanced any excuse or justification for the late filing, I 

conclude that the motion should be granted. 

2641 
Therefore, IT IS ORDERED that the claim for compensation and 

this proceeding are DISMISSED. 

Distribution: 

1 .(•) !: - , ' , : ,..:/! • ,,,. r ·" I • , 11(,,-:,:i...,;;'.:;, • 'rf-., ~- ::_.,· ,_._.. i,·C(z_ 

James A. Broderick 

Administrative Law Judge 

Mr. Roy Farmer, Miner Representative, Island Creek Coal Company, 

P.O. Box 63, Swords Creek, VA 24649 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail) 

Island Creek Coal Company, Drawer L, Oakwood, VA 24631 (Certified 

Mail) 

Marshall s. Peace, Esq., Island Creek Coal Company, P.O. Box 

11430, Lexington, KY 40575 (Certified Mail) 

slk 

2642 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 201990 

CONSOLIDATION COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Docket No. WEVA 91-56-R 

Citation No. 3306262; 

10/15/90 

Blacksville No. 2 Mine 

Mine I.D. 46-01968 

Appearances: Walter J. Scheller, III, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, for the 

Contestant; Glenn Loos, Esq., U.S. Department of 

Labor, Office of the Solicitor, for the Respondent. 

Before: Judge Weisberger 

This case is before me based upon a Notice of Contest and 

Application for Extension of Abatement, and a Motion for 

Expedition of Proceedings all of which were filed by the Operator 

(Contestant) on November 15, 1990. Pursuant to telephone 

conference calls between the undersigned and counsel for both 

Parties on November 15 and November 16, 1990, this case was 

scheduled for hearing and was subsequently heard on November 20, 

1990, in Morgantown, West Virginia. At the hearing, Spencer 

Allan Shriver and Paul Michael Hall, testified for the Secretary 

(Respondent), and Robert Church, Charles E. Bane, Sr., and John 

F. Burr, testified for Contestant. At the conclusion of the 

hearing, counsel for Contestant requested an allowance of 7 days 

subsequent to the receipt of the transcript to file a brief. 

Subsequent to a discussion, it was agreed that the Parties would 

file Briefs by December 6, 1990, and Briefs were timely filed by 

the Parties. The Parties waived the right to file a Reply Brief. 

FINDINGS OF FACT AND DISCUSSION 

I. 

Spencer Allan Shriver, an electrical engineer employed by 

MSHA, testified that he had visited the subject mine on 

October 12, 1990, to investigate an accident. Upon 

investigation, Shriver was informed that a short circuit had 

occurred in the controller box of a locomotive at the mine, 

2643 
burning a hole in its steel cover and blowing out some hot gases 

that burned the locomotive operator, Robert Fetty. Charles Wise, 

who was in the locomotive compartment along with Fetty, told 

Shriver that he had removed the fuse from its holder on the 

trolley pole, and installed a spare 300 ampere (amp) fuse that he 

had located in the trolley. According to Shriver, Wise then 

replaced the trolley pole on the wire, its power source, thus 

enabling him to operate a radio. Wise next notified the traffic 

dispatcher that Fetty had been injured and that the locomotive 

was disabled. Wise then proceeded with the locomotive to the 

bottom. When he was about 100 yards from the bottom he put the 

locomotive onto a spur, at which time a second short circuit 

developed. 

According to Shriver, and not contradicted by Contestant, 

Wise had indicated to Shriver that he (Wise) was not a certified 

electrician. Shriver then issued a Section 104(a) alleging a 

violation of 30 C.F.R. § 75.511 which repeats the language of 

Section 305(f) of the Federal Mine Safety and Health AGt of 1977 

(the Act), which, as pertinent, provides: 

No electrical work shall be performed on low-, 

medium-, or high-voltage distribution 

circuits or equipment, except by a qualified 

person or by a person trained to perform 

electrical work and to maintain electrical 

equipment under the direct supervision of a 

qualified person. 

It is undisputed that Wise was not a qualified person, as 

defined by the Regulations (30 C.F.R. § 75.512), nor a person 

trained to perform electrical work, and that Wise in fact did 

remove a blown fuse and replace it with an unblown fuse. Thus 

the issue for resolution is whether § 75.511, supra, applies to 

the facts presented herein. In other words, it must be resolved 

whether "electrical work" encompasses the changing of a fuse on a 

trolley pole. For the reasons that follow I conclude that it 

does not. 

II. 

The physical acts involved in removing a fuse and replacing 

it with another one is depicted in a video that was shown at the 

hearing. (Operator's Exhibit 3). Essentially, in replacing a 

fuse, the first step is to remove the trolley boom from the power 

line, its sole power source. This act is performed regularly by 

operators of trolleys who are not qualified electricians. The 

next step is to unwrap the tape which holds the fuse holder to 

the boom. The cover cap is then unscrewed from the fuse holder 

2644 
revealing the fuse connector and the fuse. These two items are 

pulled apart, and the fuse is then pulled out and replaced with 

another fuse. A fuse with an amperage rating which is not the 

same as the ~ne that had been replaced, will not fit in the same 

fuse holder. 

The term "electrical work", is defined in neither the Act 

nor in the appropriate Regulations (30 C.F.R. et. ~), 

Respondent's and Contestant's witnesses essentially agreed that 

there is no recognized definition in the mining industry of the 

term "electrical work", and that it has usually been defined by 

example. 

Section 48-7-2.l(b) (14) of Title 48 of the Code of State 

Rules of West Virginia (48 C.S.R. § 48-7-2.l(b) (14)), in 

interpreting West Virginia Code § 22A-2-40(19) which contains the 

same language as Section 75.511, supra, lists as an example of 

work that is not required to be perf orrned by an electrician or 

apprentice electrician as follows: "Replace blown fuses on 

trolley poles and nips." On the other hand, an MSHA publication, 

Coal Mine Inspection; Underground Electrical Inspections, 

effective June 1, 1983, sets forth as an example of work required 

to be performed by a qualified person or a person trained to 

perform electrical work, the following: 1. 11 1.2 Replacing blown 

fuses;" (Govt. Exhibit 7, pg. 3). Also, the MSHA Program Policy 

Manual, dated July 1, 1988, contains the same example (Govt. 

Exhibit 6). Although weight is to be accorded the Secretary's 

interpretation of Regulations, 1; the interpretation clearly is 

not binding where it is not reasonable 2; especially in light of 

the fact that a prior Manual dated March 9, 1978, did not include 

the changing of fuses as an example of electrical work (Exhibit 

0-14). In the same fashion, a letter dated October 25, 1979, 

from Joseph O. Cook, Administrator for Coal Mine Safety and 

Health, MSHA, to District Managers, Coal Mine Safety and Health, 

indicates that the letter was written in response to request for 

an interpretation of "electrical work," and advises that 

"electrical work'' is generally considered to be the work required 

to install or repair electric equipment or conductors. The 

changing of fuses is not listed among the examples of electrical 

work set forth in the memorandum. (Exhibit 0-8). 

1; See the legislative history and cases cited in 

Respondent's Brief at pages 15~16. 

2; See, Miller v. Bond 641 F 2d 997, 1002 (D.C. Cir. 1981); 

See also, King Knob Coal Co., 3 FMSHRC 1417, 1420 n.3 1981). 

2645 
III. 

In evaluating whether electrical work encompasses replacing 

blown fuses on trolley poles, an inquiry is appropriate as to 

what a reasonably prudent person familiar with the mining 

industry and the protective purpose of this section would have 

concluded with regard to its applicability. (See, Ideal Cement 

Company, Docket No. WEST 88-202-M, 12 FMSHRC (slip op., 

November 27, 1990.)) This inquiry requires, as a first step, an 

analysis of the hazards, if any, involved in allowing 

nonqualified personnel to change blown fuses on trolley poles. 

According to Shriver, if a fuse blows, it is reasonably 

likely that a short circuit had occurred in the equipment 

protected by the fuse. Accordingly, if an uncertified person 

replaces the fuse and reenergizes the circuit without inspecting 

the protected equipment, a short circuit may reoccur causing an 

injury due to the extremely high temperature of an electrical 

arc. He thus concluded that changing fuses is to be considered 

electrical work, as the equipment protected by the fuse should be 

evaluated by a certified person before the fuse is replaced, in 

order to avoid the possibility of an injury. However, as he 

conceded upon cross examination, there are no regulatory 

requirements requiring a certified electrician to examine 

effected equipment to determine the cause of a blown fuse. 

Indeed Shriver conceded upon cross examination that a 

nonqualif ied electrician would not be performing electrical work 

if he were to remove a trolley pole from its wire, remove its 

fuse, give it to a mechanic and then replace it upon being 

advised that the fuse is still good. He also conceded that 

placing a fuse in an empty fuse holder is not electrical work. 

Thus, as per Shriver's testimony, the act of replacing a blown 

fuse can be performed by a noncertif ied as well as a qualified 

electrician. 

Also, Shriver indicated, in essence, that a circuit breaker, 

which performs the same function as a fuse, can be reset by a 

nonqualified person. Hence, according to Shriver's testimony, 

the resetting of the breaker is not electrical work. Shriver 

distinguished a circuit breaker from a fuse by indicating that a 

fuse can carry more than a hundred percent of its amperage rating 

for a few minutes. Thus an injury is possible, if a fuse is 

replaced without first checking the equipment for a short 

circuit. Shiver explained that, in contrast, a circuit breaker 

can tolerate amperage only a few percents above its rating and 

then will immediately operate and shut off power. However, the 

effect of this distinction is diluted, inasmuch as Shriver 

conceded that, essentially, in some conditions a breaker can be 

reset, and yet power would still remain on, resulting in a 

situation that could cause a cable to blow up. 

2646 
Paul Michael Hall, the Chief Engineer of MSHA District 3, 

essentially agreed with the assessment of Shriver that a 

nonqualified electrician could, by mistake, replace a blown fuse 

with a fuse of the wrong size which would result in inadequate 

overload and short circuit protection. He explained that, should 

this occur in the event of an overload, there would be a 

possibility that high amounts of current would continue to flow, 

causing a fire. However Respondent did not impeach or rebut the 

testimony of Robert Church, Contestant's Safety Supervisor, that, 

in essence, it would not be physically possible for a 

nonqualified person to place a wrong fuse in the fuse holder on 

the trolley pole. He indicated that a smaller sized fuse would 

go into the holder, but would not make a ground contact. He also 

indicated that larger fuses, such as those rated for 60 or 90 

amps, would not fit into the connector for the trolley fuse due 

to their size or configuration. Further, he indicated that 

although a 100 amp fuse is the same dimension as the 300 amp fuse 

in issue, they are clearly not interchangeable as, according to 

his uncontradicted testimony, the ends of the fuses are~ 

different, i.e., the 100 amp is round and the 300 amp fuse in 

question contains a metal part that protrudes from its end. 3/ 

In essence, Hall opined that a qualified electrician is 

required to replace a fuse 11 • • • to assure that equipment was 

going to be maintained in a safe operating condition, . • . II 

(Tr. 103). He further indicated that if a short circuit in the 

controlle~ occurs and a fuse blows, the controller should be 

repaired by qualified personnel before the blown fuse is 

replaced. However, upon cross examination, he indicated that 

resetting a circuit breaker is not electrical work, and, in 

essence, had the trolley pole in issue contained a breaker rather 

than a fuse, a qualified person would not have been required to 

reset the breaker in spite of the fact that there was a short 

circuit in the controller. Hence, I find that it is totally 

inconsistent for Respondent to maintain that (1) replacing a 

blown fuse is electrical work on the ground that the controller 

containing a short circuit must first be repaired, but on the 

other hand (2) had a circuit breaker been used, resetting it 

would not have been considered electrical work, even though the 

controller should be examined and repaired. In other words, if, 

in the circumstances presented herein, resetting a circuit 

3; See, for illustrative purposes, a comparison between 

Exhibits 0-7 and 0-8. 

2647 
breaker is not considered electrical work, then similarly, 

replacing a blown fuse, in the same circumstances, should also 

not be considered electrical work. 

Hall opined that the replacing of fuses is hazardous in a 

situation where more than one type of fuse is contained in a box 

and one is replaced while the other still is live. Not much 

weight is accorded this opinion, as it is not relevant to the 

situation herein, which involves a single fuse holder containing 

one fuse. 

In essence, Hall asserted that a qualified person would 

generally be more aware of the hazards in replacing a fuse. 

However, in weighing the hazards of a possible electrical shock 

to a nonqualified person, it is significant to note, as explained 

by Church, that the hazard of an electrical shock attendant upon 

the act of changing a fuse, is the same as that involved in 

placing a trolley pole off or on the trolley wire, its power 

source. As indicated by John F. Burr, Respondent's manager of 

maintenance, this is a task performed regularly by trolley 

operators upon reversing direction. Hence, to have such a person 

replace a blown fuse would not expose him to any additional 

hazard. 

Specifically, Hall indicated a qualified person would be 

more aware of the need to ensure that the pressure plates 

containing the fuse would exert the proper pressure on the fuse. 

However, both the Program Policy Manual, and the Coal Mine 

Inspection Manual: Underground Electrical Inspections, (Govt. 

Exhibits 6 and 7), list as electrical work "replacing blown 

fuses." (Emphasis added.) Accordingly, as conceded by Shriver 

upon cross examination, inserting an unblown fuse into an empty 

holder, or removing an unblown fuse, examining it, and replacing 

it, would not be considered electrical work. Hence, the 

distinction between the electrical work and nonelectrical work, 

with regard to replacement of fuses, cannot stem from the hazards 

dependent upon the physical acts in replacing a fuse, as these 

are the same whether the fuse is blown or unblown. 

I thus conclude that the record fails to establish the 

existence of hazards, of more than a minor degree, attendant upon 

a nonqualified person being permitted to change a fuse. 

Accordingly, the record is insufficient to support a finding that 

a reasonably prudent person would have concluded that this work 

is "electrical work." 

IV. 

In evaluating whether a reasonably prudent person would 

consider the changing of a blown fuse on a trolley pole to be 

nonelectrical work, and allow a nonqualified person to change the 

fuse, an analysis must be made of the hazards attendant upon 

2648 
requiring such an action to be taken only by a qualified 

person. 4; If a fuse on a trolley is blown, electricity from the 

trolley wire would not be available to the trolley. Hence, the 

trolley phone which gets its power from the trolley wire, would 

be inoperable. Accordingly, communication from the trolley to 

the dispatcher would not be possible. Hence, if the trolley 

operator, a nonqualified person, could not change the blown fuse, 

he would be forced to abandon the vehicle and walk up to a mile 

to find a telephone to call for a qualified person to change the 

fuse. A trolley which has been so abandoned would be without 

power and accordingly, would not have any lights on. 5 Hence, a 

4; I am not unmindful of the diminution of safety cases 

relied upon by the Respondent at pages 10-12 of its' Brief. I 

find they are inapplicable, as in each case the operator sought 

to be relieved from complying with a mandatory standard on the 

ground that an action explicitly required by a standard would 

lead to a diminution of safety. In contrast, in the present case 

the issue is whether a standard, whose terms are not totally 

unambiguous, is to be applied to the specific situation presented 

herein. In resolving this issue, an inquiry must be made as to 

whether the terms of the standard encompass the alleged violative 

practice. Specifically, it must be resolved whether "electrical 

work" encompasses the act of replacing a blown fuse on a trolley 

pole. Certainly one of the factors that can be taken into 

account, in this contest proceeding, is an analysis of the 

hazards attendant upon the placement of this act within the 

purview of electrical work. In contrast, in Pennsylvania 

Allegheny Coal Company, Inc., 3 FMSHRC 1392 (1981), the sole 

basis for the Operator's position that it was not liable for 

violating a mandatory standard, was an assertion of diminution of 

safety. The Commission held that inasmuch as the Operator has 

not sought modification under Section lOl(c) of the Federal Mine 

Safety and Health Act of 1977 (the Act), that it was precluded 

from raising a defense of diminution of safety in an enforcement 

proceeding. In the instant case, Contestant has filed a petition 

for modification which has not yet been resolved. Accordingly, 

in considering whether the undefined, and thus not unambiguous 

terms of the standard at issue are to be applied to the acts in 

issue, it must be determined if such an application is 

reasonable. In making such a determination, one of the factors 

to be considered is the hazard attendant upon such an 

application. Further, this factor can clearly be considered as 

the Petition for Modification has not yet been resolved. (See, 

Sewell Coal Company, 5 FMSHRC 2026 n.3, (1983)). 

5; Contestant's transportation vehicles are equipped with 

reflectors, that, if clean, can be seen for 700 to 800 feet along 

a straight track. However, in the mine in question, the track 

contains curves, and according to Charles E. Bane, Sr., 

2649 
vehicle traveling behind the trolley, such as one carrying cars 

filled with coal, would run a risk of crashing into the 

nonoperative trolley and possibly derailing it, which could cause 

roof supports to be knocked out. Moreover, if the trolley was 

being used to transport an injured miner, medical treatment would 

be delayed, by requiring the nonqualified operator to wait for a 

qualified person to change the fuse. 

Hence, I find that a reasonable prudent person familiar with 

the mining industry and protective purposes of the Act, would 

conclude that the hazards attendant upon requiring only a 

qualified person to change a blown fuse on a trolley pole 

outweighs the hazards involved in allowing such a person to 

perform this task. 

For all the above reasons, it is concluded that having a 

nonqualif ied person replace a blown out fuse on a trolley pole 

does not violate Section 75.511, supra. 6; Thus the Notice of 

Contest is SUSTAINED and IT IS ORDERED that Citation No. 3306262 

be DISMISSED. 

~ei~ Administrative Law Judge 

Distribution: 

Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol 

Plaza, Pittsburgh, PA 15241-1421 (Certified Mail) 

Glenn M. Loos, Esq., Office of the Solicitor, U. s. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

dcp 

Contestant's Regional Manager of Safety, the Morgantown mines 

have grades of up to 2 to 3 percent. Also the main line in the 

mine in question is not lit. 

6; In light of this conclusion, it is not necessary to 

decide whether the time for abatement can be extended. 

2650 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

DEC 2 71990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 90-21-M 

A.C. No. 41-03425-05506 

v. 

C & C CRUSHED STONE, INC., 

Respondent 

Docket No. CENT 90-68-M 

A.C. No. 41-03425-055o.:7 

Appearances: 

Before: 

C & C Quarry 

DECISION 

Sarah D. Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for the 

Petitioner; 

Mr. Carl Chaney, C & C Crushed Stone, Inc., 

Route 1, Box 16, Burton, Texas, for the 

Respondent. 

Judge Fauver 

The Secretary seeks civil penalties for eight alleged safety 

violations under § llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following Findings of Fact 

and additional findings of fact in the Discussion below: 

FINDINGS OF FACT 

1. Respondent owns and operates a quarry and plant, known 

as C & C Quarry, in Washington County, Texas, where it mines, 

processes and sells crushed stone with a regular and substantial 

effect on interstate commerce. 

2. Respondent is a small size mine operator. 

2651 
August 9, 1989, Inspection 

3. Federal Mine Inspector Robert R. Lemasters inspected the 

quarry and plant around 8:30 a.m., August 9, 1989. When he 

reached the scale house, the plant was operating, producing 

crushed stone. In a few minutes, the plant conveyor and crushing 

operation was turned off. When Inspector Lemasters reached the 

conveyor and stone-crushing operation at the plant, he found that 

the guards for the tail pulley on the main feed conveyor, for the 

tail pulley on the sand belt, for the V-belt drive on the 

stockpile belt, and for the conveyor to the shaker, were removed 

from the machinery. They were nearby, but had been removed and 

not reinstalled. 

4. Because of the missing guards, Inspector Lemasters 

issued citation Nos. 3282571, 3282572, 3282573, and 3282574, each 

charging a violation of 30 C.F.R. § 56.14112(b), which provides: 

(b) Guards shall be securely in place while 

machinery is being operated, except when testing or 

making adjustments which cannot be performed without 

removal of the guard. 

5. The missing guards were designed to guard pinch points 

of moving belts, axles, and other moving parts. Employees 

regularly cleaned up spillage in close proximity to the pinch 

points while the machinery was running. Without the guards, the 

employees were exposed to a substantial and significant hazard of 

becoming entangled in the moving parts or coming into contact 

with them, with a reasonable likelihood of serious injury. 

6. Respondent's president, manager and principal owner --

Mr. Carl Chaney -- knew about the requirements of 30 C.F.R. 

§ 56.14112(b), and in prior inspections had been cautioned by 

MSHA inspectors to keep the guards on the machinery whenever the 

machinery was operating. 

7. The plant had recently been shut down for repair of an 

engine, but the repair work had been completed before August 9, 

1989, and the plant was operating on August 9, 1989. 

8. When Inspector Lemasters saw the plant operations on 

August 9, 1989, Respondent was not running the conveyor and 

crusher operation in order to test or adjust the equipment, but 

was running it to produce crushed stone. 

9. Inspector Lemasters observed that the Euclid R-25 end 

dump truck No. 1 did not have adequate brakes. He issued 

Citation No. 3282575 for this condition, charging a violation of 

30 C.F.R. § 56.14101(a), which provides: 

2652 
§ 56.14101 Brakes 

(a) Minimum requirements. (1) Self-propelled 

mobile equipment shall be equipped with a service brake 

system capable of stopping and holding the equipment 

with its typical load on the maximum grade it travels. 

This standard does not apply to equipment which is not 

originally equipped with brakes unless the manner in 

which the equipment is being operated requires the use 

of brakes for safe operation. This standard does not 

apply to rail equipment 

(2) If equipped on self-propelled mobile 

equipment, parking brakes shall be capable of holding 

the equipment with its typical load on the maximum 

grade it travels. 

10. The dump truck was used on a steep ramp and other 

grades. Its defective brakes created a serious hazard to the 

driver and others. 

11. Inspector Lemasters observed that Euclid R-25 end dump 

truck No. 2 did not have an operable backup alarm. This defect 

created a serious hazard of striking a pedestrian or vehicle 

while operating the dump truck in reverse. The inspector issued 

Citation No. 3282576, charging a violation of 30 C.F.R. 

§ 56.14132(b), which provides that, when the driver has an 

obstructed view to the rear, self-propelled mobile equipment 

shall have an audible backup alarm or an observer to signal when 

it is safe to backup. The dump truck had a substantial area of 

obstructed view to the rear, and Respondent did not use an 

observer to signal the driver when operating in reverse. 

December 13, 1989, Inspection 

12. Federal Mine Inspector Steven R. Kirk inspected the 

quarry and plant around 1:30 p.m. on December 13, 1989. He 

observed the conveyor and crusher operating and producing crushed 

stone. Guards were missing for the tail pulley on the twin jaw 

crusher return conveyor and for the tail pulley for the discharge 

conveyor belt. The inspector issued Citation Nos. 3445581 and 

3445582, charging violations of 30 C.F.R. § 56.14112(b). 

13. The missing guards were designed to guard pinch points 

of moving belts, axles, and other moving parts. Employees 

regularly cleaned up spillage in close proximity to the pinch 

points while the machinery was running. Without the guards, the 

employees were exposed to a substantial and significant hazard of 

becoming entangled in the moving parts or coming into contact 

with them, with a reasonable likelihood of serious injury. 

2653 
DISCUSSION WITH FURTHER FINDINGS 

Mr. Chaney was not at the plant when Inspector Lemasters 

observed the plant operating and observed the missing guards on 

August 9, 1989. He suggested at the hearing that the plant was 

in the process of starting up on August 91 and was not 

operational on that date. However, he did not present any 

witnesses to prove that contention and Inspector Lemasters gave 

eye-witness testimony that the plant was operating and producing 

crushed stone. 

The inspector's testimony is supported by the undisputed 

evidence that in the next inspection, on December 13, 1989, the 

plant was operating and guards were missing, indicating a pattern 

that Respondent was not careful about keeping the guards 

installed when the plant was operating. 

Respondent has demonstrated a poor safety attitude 

respecting the guard safety standard in 30 C.F.R. § 56.14112(b). 

Mr. Chaney's attitude appears to be that the guards are not 

necessary because his employees are not "so ignorant that they 

would put their fingers in moving parts." This opinion overlooks 

the serious risk of an employee falling or otherwise accidentally 

coming into contact with an exposed moving part. Accidents are 

not simply a test of alertness, but may happen to anyone if 

safety standards are not followed. 

Considering the prior notice given to Mr. Chaney concerning 

the guard safety standard in inspections before August 9, 1989, 

and considering all of the criteria for civil penalties in 

§ llO(i) of the Act, I find that the government's proposed 

penalties for the August 9, 1989, violations of 30 C.F.R. 

§ 56.14112(b) are reasonable. 

The violations of vehicle safety standards on August 9, 

1989, i.g., the defective brakes and backup alarm, are serious 

and due to plain negligence. Both violations were readily 

detectable by ordinary care in checking the vehicles. The 

penalties proposed by the government for these violations are 

reasonable. 

The two remaining violations -- missing guards on tail 

pulleys on December 13, 1989 -- reflect a very poor safety 

attitude by the operator concerning the safety guard standard. 

Al though Respondent may not agree with the wisdom of the. statute 

or of this particular safety standard, it is not at liberty to 

violate the guard safety standard in a "catch as catch can" 

approach to MSHA inspections. It must be deterred from violating 

the safety standards when an MSHA inspector is not on the scene. 

The unnecessary and unjustified risk to its employees in this 

case warrants a deterrent penalty higher than the penalties 

proposed by MSHA. Considering this and all the criteria for 

2654 
civil penalties in § llO(i) of the Act, I find that a civil 

penalty of $200 for each of the two December 13, 1989, violations 

is appropriate. 

In summary, Respondent is assessed the following civil 

penalties: 

Citation 

3282571 

3282572 

3282573 

3282574 

3282575 

3282576 

3445581 

3445582 

civil Penalty 

$ 74 

$ 74 

$ 74 

$ 74 

$ 91 

$ 91 

$200 

$200 

$878 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in these proceedings. 

2. Respondent violated the safety standards as alleged in 

Citation Nos. 3282571, 3282572, 3282573, 3282574, 3282575, 

3282576, 3445581, and 3445582. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the above 

civil penalties of $878 within 30 days of the date of this 

decision. 

Distribution: 

tJ;;J,.,.,;.,. 7 ~ ............. 

William Fauver 

Administrative Law Judge 

Sarah D. Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Carl Chaney, C & C Crushed Stone, Inc., Route 1, Box 16, 

Burton, TX 77835 (Certified Mail) 

/fb 

2655