FEBRUARY 1987 

COMMISSION DECISIONS 

02-03-87 Secretary of Labor on behalf of Joseph 

Delisio v. Mathies Coal Co. 

PENN 86-83-D 

02-10-87 Sec. Labor for James Corbin, Robert Corbin, KENT 84-255-D 

02-10-87 

02-10-87 

02-27-87 

& A.G. Taylor v. Sugartree Corporation 

Hobet Mining & Construction Co. 

Upright Mining, Inc. 

Local 5817, Dist. 17, UMWA v. 

WEVA 84-113-R 

KENT 86-115 

WEVA 85-21-C 

Monument Mining Corp. & Island Creek Coal Co. 

ADMINISTRATIVE LAW 

02-03-87 

02-03-87 

02-03-87 

02-04-87 

02-04-87 

02-0L~-87 

02-0S-87 

02-05-87 

02-06-87 

02-06-87 

02-06-87 

02,·09-87 

02 10-87 

02-10-87 

02-10-87 

02-12-87 

02-13-87 

02-13-87 

02-13-87 

02-17-87 

02-19-87 

02-19-87 

02-20-87 

02-20-87 

02-24-IP 

02-24-87 

02-25-87 

02-25-87 

02-26-87 

02··27-·87 

Jim Walter Resources, Inc. 

Fife Rock Products Co., Inc. 

Hydrocarbon Resources Company 

PA-PA Coal Mining Company 

U.S. Steel Mining Company, Inc. 

Dan L. Thompson v. Gilbert Industrial 

Mountaineer Coal Company 

Benjamin Coal Company 

Gerald C. Brunton v. Shawnee Coal Co. 

Michael Brunson 

Sec. Labor for Nicholas Ramirez v. 

W-P Coal Compauy 

. Sec. Labor for Andy Brackner v. Jim 

Walter Resources, Inc. 

Steve Collett v. Chaney Creek Coal Corp. 

Marigold Docks, Inc. 

Southern Ohio Coal Company 

Union Oil Company of California 

Solar Fuel Company, Inc. 

Charles F. Rose v. Consolidation Coal Co. 

Leonardo R. Lamas v. Duval Corporation 

Elk Creek Coal Corporation 

Roy W. Johnson v. Tri-Son Mining, Inc. 

Western Fue 1 s-Utah, Inc. 

Rushton Mining Compm1y 

Concrete Products Company 

Wilfred Bryant v. Dingess Mine Service 

Sec. Labor for Roger Nelson v. U.S. Steel 

Mining Co. , Iuc. 

Maualapcin Mining Company 

Staker Paving & Construction Co., Inc. 

Danny Jobnrrnn v. Lr.nnar Mining Company 

Valdez Creek Mining Company 

SE 87-6 

WEST 85-141-M 

WEST 86-15-M 

KENT 86-118 

PENN 86-204 

WEST 85-77-DM 

KENT 85-202 

PENN 86-164 

LAKE 86-109-D 

SE 86-40-M 

WEVA 86-430-D 

SE 86-69-D 

KENT 8IJ-109-D 

KENT 87-3 

WEVA 86-190-R 

WEST 86-i-M 

PENN 86-288 

WEVA 86-379-D 

WEST 86-99-DM 

VA 86-10 

VA 86-8-·D 

WEST 86-108-R 

PENN 85-253-R 

WEST 86-111-,M 

WEVA 85-4 3-,D 

WEVA 86-407-D 

KENT 86-119·-R 

WEST 86-120-M 

KENT 87-68-D 

WEST 85-179-M 

Pg. 193 

Pg. 197 

Pg. 200 

Pg. 206 

Pg. 209 

Pg. 219 

Pg. 221 

Pg. 225 

Pg. 237 

Pg. 239 

Pg. 246 

Pg. 24 7 

Pg. 248 

Pg. 254 

Pg. 257 

Pg. 261 

Pg. 263 

Pg. 270 

Pg. 272 

Pg. 273 

Pg. 282 

Pg. 299 

Pg. 304 

Pg. 306 

Pg. 311 

Pg. 319 

Pg. 320 

Pg. 325 

Pg. 332 

Pg. 336 

Pg. 346 

355 

Pg. 362 

Pg. 36 7 

Pg. 368 

FEBRUARY 1987 

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

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

WEVA 86-35-R, 86-48-R, 86-102. (Judge Fauver, December 31, 1986) 

Secretary of Labor on behalf of Ronnie Beavers, et al. and UMWA v. 

Kitt Energy Corporation, Docket No. WEVA 85-73-D-.-(Judge Maurer, 

January 13, 1987) 

Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket No. 

SE 87-29-R. (Judge Weisberger, January 15, 1987) 

Secretary of Labor v. Jim Walter Resources, Inc., Docket No. SE 86-83. 

(Judge Broderick, January 21, 1987) 

Secretary of Labor, MSHA v. Michael Brunson, Docket No. SE 86-40-M. 

(Judge Broderick, February 6, 1987) 

Review was denied in the followi 

Secretary of Labor, MSHA on behalf of Yale Hennessee v. Alamo Cement 

Company, Docket No. CENT 86-151-DM. (Judge Koutras, Order of December 30, 

1986) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFE'IY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

JOSEPH G. DeLISIO, JR. 

v. 

MATHIES COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 3, 1987 

Docket No. PENN 86-83-n 

BEFORE: Ford, Chairman; Rackley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), counsel 

for the Secretary of Labor has requested Cor:imission-Administrative Law 

Judge George A. Koutras to clarify the remedial relief awarded in his 

decision of November 21, 1986'. 8 FHSHRC 1772 (November 1986) (ALJ). We 

remand the matter to the judge to rule upon the merits of the Secretary's 

request. 

In his decision, Judge Koutras concluded that Mathies Coal Company 

("Mathies") violated section 105(c) (1) of the Mine Act, 30 U.S.C. 

§ 815(c)(l), hy unlawfully interfering with Joseph G. DeLisio's right as 

a representative of miners to accompany federal inspectors during inspection of the mine. To remedy the violation, the judge ordererl Mathies 

to permit DeLisio to-drive his private automobile to the mine portal 

where inspections normally begin or, in the alternative, provide Detisio 

with company transportation underground to that location. 

193 
Neither party sought review of the judge's decision by filing a 

petition for discretionary review with the Commission under section 

113(d)(l) (A)(i) of the Act. 30 U.S.C. § 823(d)(l)(A)(i). Rowever, on 

December 22, 1986, the judge received from counsel for the Secretary a 

document entitled "Request for Clarification." The Secretary asserted 

that Mathies had refused DeLisio the use of his private automobile and 

that neLisio cannot reach, in a timely manner, the portal where inspections begin by using company-provided underground transportation. 

The Secretary requested the judge to clarify or amend the relief 

previously ordered by requiring Mathies to provide DeLisio with 

transportation that will allow him to reach in 20 minutes or less the 

portal where the inspections begin. 

Because he had issued his final decision in this matter under 29 

C.F.R. § 2700.65, the judge forwarded the Secretary's request to the 

Commission. By order dated December 30, 1986, we stayed the running of 

the period within which the judge's decision would become a final order 

of the Commission and directed Mathies to respond to the Secretary's 

request. Mathies has filed a response and contends that the relief 

ordered originally by the judge is "final and beyond review" and that 

the Commission lacks jurisdiction to entertain the Secretary's request. 

When the judge's decision was released, his .4urisdiction terminated 

and any subsequent request for substantive review or modification must 

be directed to the Commission, not the judge, 29 C.F.R. ~ 2700.65(c), 

Contrary to Mathies' assertions, a .iudge 's decision does not hecome a 

final order of the Commission until 40 days after it is issued (30 

U.S.C. § 823(d) (l)) and we have jurisdiction to act upon the Secretary's 

request. 

We construe the Secretary 1 s Request for Clarification as constituting, 

in effect, a timely petition for discretionary review of the relief 

ordered by the judge. Gravely v. Ranger Fuel Co., 6 FMSHRC 799 n. 1 

(April 1984). Under the anti-discrimination provisions of the Mine Act, 

the Commission has broad authority, "as the Commission deems appropriate, 11 

to fashion appropriate remedies to abate violations of section 105(c) (1). 

See Brock v. Metric Constructors Inc., 766 F.2d 469, 472-73 (11th Cir. 

1985). The purpose to eradicate the existence and 

effect of the unlawful discrimination to the greatest extent possible. 

Where, as here, a party timely disputes the efficacy or meaning of the 

remedy and requests that the judgment he clarified or amended, the 

request may be entertained by the Commission. Cf. Fed. R. Civ. P. 59(e). 

194 
This m~tter is remanded to the judge to rule upon the reauest for 

clarification. The judge may conduct such expedited proceedings as may 

be necessary for purposes of his ruling. Any party dissatisfied with 

the judge's further ruling may timely petition the Commission for review 

of the decision as clarified or amended. 

/ ~ ~ 

Richard 

<Le-~~t_4~/ V. Backley, CommisSTOi1'rr 

Q~~c/'_c (/ 4~L< /' 

Joyce A. Doyle, Comm~ 

~il;~er 1 ' · -"--'~v Lc __ ("~JA.,'--r ... _ 

L. Clair Nelson, Commissioner 

195 
Distributio~ 

Carl H. Hellerstedt, Jr., Esq. 

Volk, Robertson, Frankovitch, 

Anetakis & Hellerstedt 

Three Gateway Center 

Pittsburgh, Pennsylvania 15222 

Linda M. Henry, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

196 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR9 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW. &TH FLOOR 

WASHINGTON, D.C. 20006 

February 10, 1987 

on behalf of JAMES CORBIN, 

ROBERT CORBIN, and A. C. TAYLOR 

v. Docket No. KENT 84-255-D 

SUGARTREE CORPORATION, 

TERCO, INC., and RANDAL LAWSON 

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

ORDER 

BY THE COMMISSION: 

In this discrimination case arising under the Federal Mine Safety 

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

Labor has filed a Motion to Dismiss or Vacate Portion of Direction for 

Review based on a Settlement Agreement submitted with the motion. For 

the reasons set forth below, the Secretary's motion is granted. 

The above-captioned matter is pending on review before the Commission. 

The Secretary's motion is based on a settlement agreement that has been 

reached among the Secretary, complainants James and Robert Corbin, 

Terco, Inc., Randal Lawson, and other individuals associated with Terco. 

Subsequent to the 1984 discharges of the Corbins and A.C. Taylor at 

issue in the pending proceeding, the two Corbin complainants were reinstated (pursuant to a Commission judge's order of reinstatement) but 

were discharged again by Terco in 1986. These latter discharges became 

the subject of further discrimination complaints filed by the Secretary 

on the Corbins' behalf. FMSHRC Docket Nos. KENT 86-131-D & 86-132-D. 

197 
As related in the Secretary's present motion, the parties in these 

latter cases have entered into a settlement of the charges involved in 

those cases. Their settlement involves expungement of references in the 

respondents' employment records to the discharges of the Corbins (including 

the 1984 discharges) and payment of $50,000 in damages by the respondents 

to the Corbins. The Commission administrative law judge presiding over 

these latter cases approved the parties' settlement and dismissed these 

cases on January 6, 1987. 

The settlement agreement is signed by the Corbins and, according to 

the Secretary's motion, the $50,000 in damages "has be':!n paid." In the 

settlement agreement, the Corbins waive any right to employment reinstatement with Terco. Further, the Secretary agrees to "forego any 

enforcement action with regard to the award made on [the Corbins'] 

behalf" in the proceeding pending before the Commission, but to "take 

all action necessary to enforce the award on behalf of A.C. Taylor," who 

is not.a party to the settlement agreement. Based on the assertion that 

the Corbins, Terco, Randal Lawson, and others associated with Terco have 

now resolved their differences, the Secretary moves to vacate or dismiss 

that portion of the Commission's direction for review in the pending 

matter pertaining to the liability and remedial issues affecting the 

Corbins. 

In light of the above, and upon consideration of the Secretary's 

motion, we grant the Secretary's motion. That portion of the Commission's 

direction for review in the instant matter pertaining to liability and 

personal remedy i13sues affecting the Corbins is hereby dismissed. We 

emphasize that all liability issues (including the question of successorship) and all personal remedy issues insofar as they affect the remaining 

complainant, A.C. Taylor, remain for decision. 

198 
For the foregoing reasons, the Secretary's motion is granted on the 

terms speGified above. 

Dis.tribution 

Mary Griffin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Carlos Morris, Esq. 

Morris & Morris 

P.O. Box 1008 

Barbourville, Kentucky 40906 

Administrative Law Judge Gary Melick 

~ z::::.i;.=~;;.._----

Richard v. Backley, Commissioner 

Joyce 

~fl_.~ A. Doyle, ComrniSSiOtle 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

199 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

HOBET MINING & 

CONSTRUCTION COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

February 10, 1987 

DOCKET NOS. WEVA 84-113-R 

WEVA 84-114-R 

WEVA 84-209 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 (1982)(the "Mine Act"). At issue 

is whether Hobet Mining and Construction Co. ( 11Hobet 11 ) violated 

30 C.F.R. § 77.1303(h), a mandatory safety standard specifying 

procedures to be taken when blasting. l/ Following a hearing, Commission Administrative Law Judge James A. Broderick found Hobet in 

violation of the standard and assessed a civil penalty of $5,000. 7 

FMSHRC 1807 (November 1985)(ALJ). For the reasons set forth below, 

we conclude that the Secretary failed to prove the violation under the 

standard, and we reverse the judge's decision. 

!/ 30 C.F.R. § 77.1303(h) provides: 

Ample warning shall be given before blasts are 

fired. All persons shall be cleared and removed 

from the blasting area unless suitable blasting 

shelters are provided to protect men endangered by 

concussion or flyrock from blasting. 

The term "blasting area" is defined in the mandatory safety standards 

for surf ace coal mines and surf ace work areas of underground coal mines 

as: 

[T]he area near blasting operations in which 

concussion or flying material can reasonably be 

expected to cause injury. 

30 C.F.R. § 77.2(f). 

200 
Hobet is the owner and operator of the No. 21 Surface Mine located 

in Boone County, West Virginia. At the mine the company engages in a 

mining process known as "mountaintop removal," in which successive 

layers of materials that overlie three coal seams are fractured by 

blasting and removed, thereby permitting extraction of the exposed 

seams. The topmost layer of material is called the "overburden." 

Material lying between the seams is called the "innerburden. 11 Blasting 

the innerburden is called a "bottom shot." 

On December 19, 1983, Hobet was bottom shooting to remove the 

innerburden covering the deepest of the coal seams. The innerburden 

consisted of sedimentary slate ranging in depths of up to 12 feet. The 

drilling pattern consisted of 91 bore holes, 7-7/8 inches in diameter 

and drilled on 14-foot centers. The holes ranged in depth from 3-1/2 to 

12 feet. 

A five-member crew, including certified blaster David Pauley, was 

responsible for loading and detonating the explosives. Pauley selected 

the blasting caps and determined the blasting pattern. Under Pauley's 

direction, the crew placed blasting caps and primers in the bore holes, 

then loaded the bore holes with pre-measured waterproof "wet bags" of an 

ammonium nitrate fuel oil mixture C'ANFO"). Fifteen-pound bags were 

loaded into the shorter bore holes, while either one or two 40-pound 

bags were loaded into the deeper holes. The holes were stemmed with 

drill cuttings and the blasting cap wires were connected in series to a 

lead wire. 

The acting shot foreman had personnel and equipment withdrawn to a 

location behind a spoil bank at a distance in excess of 1,100 feet from 

the blasting site. Blasting crew member Barton Lay ran out a spool of 

lead wire a distance of 500 feet, spliced the end to a second spool and 

ran it out another 500 feet. He then connected the lead wire to the 

shooting battery. The shooting battery was positioned in front of the 

bucket of a front-end loader, near an open space between two parked 

vehicles. Pauley, Lay, and another crew member remained in the open 

near the shooting battery in order to detonate and observe the blast. 

After the shot was detonated, two rocks were observed coming from the 

center of the blast. The three men sought cover between the parked 

vehicles. Lay was struck by one of the rocks as it fell between the 

trucks, approximately 1,115 feet from the blasting pit. Lay sustained 

severe permanent injuries, including paralysis below his chest. 

Following an investigation of the accident by the Iepartment of 

Labor's Mine Safety and Health Administration, Hobet was issued a 

withdrawal order under section 107(a) of the Mine Act and a citation 

under section 104(a). The order and citation each allegen a violation 

of section 77.1303(h) and each contained the following identical 

description of the violation: 

[A] practice prevailed of the blasting crew being 

permitted to position themselves in the open 

blasting area and not under suitable blasting 

shelters to protect the miners endangered from flyrock. Also, the blasting area from which the 

201 
blasting was detonated, ranged in distances from 

approximately 700 to 1,115 feet from the material to 

be blasted and on numerous occasions the f lyrock 

extended to the area where the blast was detonated 

and beyond. 

The order was terminated and the citation was abated after additional 

training for blasting personnel was completed and a new blasting 

procedure was implemented. The new blasting procedure provided that 

blasts would be detonated and that all persons would be withdrawn at 

least 1,500 feet from the shot. 

The judge concluded that the validity of the withdrawal order was 

dependent upon the existence of the alleged violation of section 

77.1303(h). 7 FMSHRC at 1812-13. As to the violation, the judge 

considered the crucial issue to be whether Hobet had a practice "of 

blasting from an open area where flyrock could reasonably be expected to 

cause injury." 7 FMSHRC at 1813. He stated that, "evidence of many 

prior bottom shots throwing flyrock in excess of 1000 feet establishes a 

blasting area -- that is, an area in which flying material could 

reasonably be expected to cause injury -- in excess of 1000 feet." Id. 

He further concluded that Hobet did not clear or remove all persons from 

the blasting area before detonating shots. Id. The judge recognized 

that the number of bore holes and the shot pattern may affect the size 

and location of the blasting area and that these factors played some 

part in determining where miners positioned themselves before 

detonation. 7 FMSHRC at 1813-14. However, the judge stated that the 

evidence clearly established that Hobet followed a practice of blasting 

·from an area which flyrock frequently reached and that it did not have 

or follow a plan that would ensure removal of miners from areas where 

flyrock reasonably could be expected. 7 FMSHRC at 1814. 

We hold that the judge erred in concluding that the Secretary 

proved a violation of section 77.1303(h). On its face, section 

77.1303(h) specifies alternative means for protecting miners from the 

threat of concussion or flyrock caused by blasting: Either all persons 

shall be cleared and removed from the blasting area or suitable blasting 

shelters shall be provided. To establish a violation of the standard, 

based on a failure to clear and remove all persons from the blasting 

area, the Secretary must prove that an operator has failed to clear and 

remove all persons from the "blasting area, 11 as that term is defined in 

section 77.2(f). This requires the Secretary to establish the factors 

that a reasonably prudent person familiar with mine Jlasting and the 

protective purposes of the standard would have considered in making a 

determination under all of the circumstances posed by the blast in 

issue. The Secretary must then prove that the factors were not properly 

considered or employed. See,~., Magma Copper Co. 8 FMSHRC 656, 660 

(May 1986); U.S. Steel Corp., 6 FMSHRC 2908, 2910 (August 1984); U.S. 

Steel Corp., 5 FMSHRC 3, 5 (January 1982); Alabama By-Products, 4 FMSHRC 

2128, 2129 (December 1982). 

An operator's pre-shot determination of what constitutes a 

blasting area is based not only upon the results of prior shots, bu~ 

also depends upon a number of variables affecting the upcoming shot. 

202 
These variables may include, but are not limited to, the amount and type 

of explosive used, the depth of the holes that constitute the shot, the 

topography, and the expertise and prior experience of the blaster. See 

Austin Powder Co., 5 FMSHRC 81, 123 (January 1983)(ALJ). 2/ 

Here, the Secretary failed to offer sufficiently specific evidence 

regarding Hobet's lack of consideration of the various factors that 

affected flyrock generation on December 19, 1983, or on previous 

occasions when Hobet blasted. The MSHA inspector stated that in the 

process of investigating the accident, he could not recall inquiring -

about or otherwise determining the composition of the material being 

blasted, the depth and diameter of the bore holes, or the amount of the 

explosives used, and the inspector did not ask Pauley whether he had 

considered these factors. I Tr. 130-31, 137-38. The inspe~tor did 

offer his opinion that the blasting area on December 19, 1983, was in 

excess of 1,400 feet. I Tr. 130, 137, 139-L~O. The opinion was derived 

from Pauley's statement during the accident investigation that the 

furthest distance flyrock had traveled previously was in excess of 1,400 

feet. I Tr. 139-40. 

We conclude, however, that a determination of what constitutes a 

blasting area which is based solely upon a statement of the furthest 

past projection of flyrock is not sufficient to establish what 

reasonably might be expected in a given situation without also 

considering the appropriate variables that effect flyrock projection. 

Hobet, on the other hand, offered evidence which supports a finding that 

appropriate variables for determining the blasting area were considered 

by Hobet's employees prior to blasting. Pauley testified that between 

December 1979 and December 1983, he detonated approximately 1,880 shots 

at Hobet's No. 21 Surface Mine. III Tr. 149. He also testified that in 

his experience with shots like the one that caused the injury to Lay --

that is, shots comprised of 91 bore holes, 7-7/8 inches in diameter on 

14-foot centers, loaded with wet bags of ANFO and detonated with 

electric blasting caps -- he had never seen flyrock travel over 11 000 

feet. III Tr. 194. This testimony was not refuted. Considering the 

above factors, and the composition of the innerburden which he was 

shooting on December 19, 1983, Pauley testified that he expected flyrock 

to travel 150 to 200 feet. III Tr. 194-95. 

'l:_/ At the hearing, on both direct and cross-exanlination, the 

inspector who issued the withdrawal order and citation identified 

similar variables that he believed should be considered by an operator 

in determining the bla~ting area. I Tr. 50-51, 126-27. Among the 

factors he identified were the composition of the material being 

blasted, the depth and diameter of the bore holes, the configuration of 

the shot, the amount of explosives used, whether bulk ANFO or wet bags 

were used, the delay pattern of the shot, and the amount of stemming in 

the bore holes. 

203 
During oral argument before the Commission, counsel for the 

Secretary stated that if Hobet had taken the factors identified above 

into account prior to detonating individual shots and on that basis 

determined the blasting area, Hobet "would have achieved compliance with 

••• the regulation. 11 0.A. Tr. 24. Pauley's undisputed testimony 

establishes that he did take those factors into consideration in determining the blasting area prior to detonating the shot on December 19, 

1983. 

Because the judge based his finding of a violation solely upon the 

distance flyrock previously had traveled and because substantial 

evidence is not present in the record that Hobet, in the December 19 

blast or as a practice~ failed to clear and remove all persons from the 

blasting area as required by 30 C.F.R. § 77.1303(h). the judge's 

decision is reversed and the order and citation are vacated. }/ 

L. Clair Nelson, Commissioner 

11 Given our disposition, we do not reach the question of whether 

Hobet, as a practice, failed to provide suitable blasting shelters. 

204 
Distribution 

Laura E. Beverage, Esq. 

Jackson, Kelly, Holt & O'Farrell 

1600 Laidley Tower 

P.O. Box 553 

Charleston, West Virginia 25322 

Hary Griffin, Esq, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Michael Holland, Esq. 

UMWA 

900 15th St., NW 

Washington, D.C. 20005 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

205 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

UPRIGHT MINING, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 10, 1987 

Docket No. KENT 86-115 

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

Commissioners 

ORDER 

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. (1982), Commission 

Chief Administrative Law Judge Paul Merlin issued an Order of Default on 

January 26, 1987, finding Upright Mining, Inc. ("Upright") in default 

for failure to respond to a show cause order. The judge assessed a 

civil penalty of $578. The record indicates, however, that shortly 

before issuance of the default order Upright in fact had filed with the 

Commission its response to the show cause order; due to certain unusual 

circumstances this response was not brought to the judge's attention 

until after issuance of the default order. We vacate the default order 

and remand for further proceedings. 

On February 24, 1986, an inspector of the Department of Labor's 

Mine Safety and Health Administration ("MSHA11 ) issued to Upright a 

citation alleging a violation of 30 C.F.R. § 70.208 for failure to 

submit a required respirable dust sample. On March 11, 1986, Upright 

received an imminent danger order and citation alleging a violation of 

30 C.F.R. § 75.200 for inadequate roof support. Upon preliminary notification by MSHA of the civil penalties proposed for these alleged violations, 

Upright filed a "Blue Card" request for a hearing before this independent Commission. On June 30, 1986, the Secretary of Labor filed a 

Proposal for Assessment of Civil Penalty seeking a S578 penalty. Upright 

did not file an answer to the penalty proposal. 

206 
On November 13, 1986, Judge Merlin issued an Order to Show Cause 

directing Upright to file an answer to the penalty proposal within 30 

days or be placed in default. Upright did not respond within the 30 

days, and on January 16, 1987, the Secretary filed a Motion for Summary 

Decision. On January 22, 1987, the Commission's Docket Office received 

Upright's response to the show cause order. Due to circumstances created 

by a local snow emergency, Upright's answer was not routed internally to 

the judge's attention until the day after his default order was issued 

on January 26, 1987. 

The judge's jurisdiction in this matter terminated when his default 

order was issued on January 26, 1987. 29 C.F.R. § 2700.6S(c). Under 

the unusual circumstances presented, we regard Upright's response to the 

show cause order as constituting, in effect, a timely request for review 

of the judge's default order. Cf. Mohave Concrete & Materials, Inc., 8 

FMSHRC 1646 (November 1986). 

We recognize that Upright's response/answer was filed beyond the 

ti~e limit set by the judge in his show cause order, and Upright has not 

provided any explanation for its late filing. Nevertheless, in mitigation, 

we assign weight to the fact that Upright filed a response before the 

default order was issued. Cf. Sigler Mining Co., 3 FMSHRC 30 (January 

198l)(attempt to comply at least partially with a judge's order may be a 

mitigating factor in default situations). Inasmuch as Upright has not 

explained its late filing, we are not prepared to rule summarily. In 

fairness, however, we conclude that Upright should be afforded the 

opportunity to explain its late filing to the judge, who shall determine 

whether relief from default is warranted. Cf. Kelley Trucking Co., 8 

FMSHRC 1867, 1869 (December 1986). 

207 
For the foregoing reasons, the judge's default order is vacated and 

the matter is remanded for proceedings consistent with this order. 

Upright is reminded to serve the opposing party with copies of all its 

correspondence and other filings in this matter. 29 C.F.R. § 2700.7. 

-"'-Q-~ Joyce A. __ 

Doyle, Commissioner 

4_. ~ 

Distribution 

Doug Feuchtenberger, President 

Upright Mining, Inc. 

P.O. Box 70 

Drift, Kentucky 41619 

G, Elaine Smith~ Esq 

Office of the Solicitor 

U.S. Department of Labor 

280 U.S. Courthouse 

801 Broadway 

Nashville, Tennessee 37203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., 6th Floor 

Washington, D.C. 20006 

208 

Commissioner 
FEDERAL MINE SAFETY AND HEAL TH REV,EW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 27, 1987 

LOCAL UNION NO. 5817, 

DISTRICT 17, UNITED MINE 

WORKERS O.F AMERICA (UMWA) 

v. . . Docket No. W~'VA 85-21-C 

MONUMENT MINING CORPORATION 

and ISLAND CREEK COAL 

COMPANY 

BEFORE: 

BY: 

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

Commissioners 

DECISION 

Ford, Chairman; Backley, Doyle, and Nelson, 

Commissioners 

This proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 seg. (1982)(the "Mine Act"). The 

question presented is whether the mine owner as well as its independent 

contractor may be held liable for a compensation claim under section 111 

of the Mine Act, 30 U.S.C. § 821, when the compensation claim arises 

from a violation of a mandatory safety standard committed solely by its 

independent contractor. Commission Administrative Law Judge George A. 

Koutras concluded that only the contractor could be held liable in this 

instance and dismissed the idled miners' compensation complaint against 

the mine owner. 7 FMSHRC 1519 (September 1985)(ALJ). For the reasons 

that follow, we affirm. 

The parties waived a hearing and stipulated to the facts in this 

case. Island Creek Coal Company ("Island Creek'') owns the No. 1 Surface 

Mine located in Holden, West Virginia. At the time the miners were 

ordered to be withdrawn from the mine, Monument Mining Corporation 

("Monument"), an independent contractor, was party to a five-year 

contract with Island Creek pursuant to which it was to operate the mine. 

Under the contract, Monument had "full and complete c.ontrol of the work 

to be performed" at the mine. The miners were employees of Monument. 

Island Creek had no control over Monument's employees or its mining 

209 
operations, except as necessary to protect Island Creek's property and 

to ensure conformity with its mining plans. !/ 

On August 1, 1984, two and one-half months before Monument unilaterally terminated its contract with Island Creek, an inspector of the 

Department of Labor's Mine Safety and Health Administration ("MSHA11 ) 

issued Monument an order of withdrawal, pursuant to section 104(d)(2) of 

the Mine Act, 30 U.S.C. § 814(d)(2), withdrawing the miners from the pit 

area of the No. 1 Surface Mine. The order alleged a violation of 30 

C.F.R. § 77.1303(j), a mandatory safety standard requiring special 

precautions when blasting is done at surface mining areas in close 

proximity to underground operations. 

Monument performed and wholly controlled the blasting that 

resulted in the issuance of the withdrawal order. Island Creek had no 

involvement in the planning or execution of the blasting. Monument 

abated the violative condition in approximately 48 hours. As a result 

of the withdrawal order, the affected miners were idled from 6:45 a.m., 

August 2, 1984, until 5:30 a.m., August 4, 1984. Monument filed a 

notice of contest of the withdrawal order. Monument failed to 

participate in that proceeding, and its notice of contest was dismissed. 

Monument Mining Cor2., 7 FMSHRC 232 (February 1985)(ALJ). 

On October 30, 1984, Local Union No. 5817, District 17, of the 

United Mine Workers of America ("UMWA11 or "Union")~ filed a complaint 

against Monument seeking compensation, pursuant to section 111 of the 

Mine Act, on behalf of the miners idled by the withdrawal order. 2/ 

ll Island Creek retained the right under the contract "of entering 

upon, examining and surveying [the] mine operations and inspecting, 

examining and verifying all books, accounts~ statements, maps and plans 

of [Monument] for the purpose of ascertaining the coal taken from [the 

No. 1 Surface Mine, and] to determine the manner in which the mining 

operations of [Monument] are being conducted ..• , 11 

~I Section 111 states in part: 

[1] If a coal or other mine or area of such mine 

is closed by an order issued under section [103] ... 

section [104] ... or section [107] of this [Act], 

all miners working during the shift when such order 

was issued who are idled by such order shall be 

entitled, regardless of the result of any review of 

such order, to full compensation by the operator at 

their regular rates of pay for the period they are 

idled, but for not more than the balance of such 

shift. [2] If such order is not terminated prior to 

the next working shift, all miners on that shift who 

are idled by such order shall be entitled to full 

compensation by the operator at their regular rates 

of pay for the period they are idled, but for not 

more than four hours of such shift. [3] If a coal 

or other mine or area of such mine is closed by an 

210 
Monument failed to answer the UMWA's complaint or to respond to its 

interrogatories. On February 4. 1985, the judge issued a show cause 

order directing the parties to show why Monument should not be held in 

default and a summary decision in favor of the UMWA issued. Monument 

did not respond to the judge's order. Also, by this time Monument had 

ceased mining operations at the No. 1 Surface Mine. 

Subsequent to the judge's show cause order, the UMWA learned that 

the No. 1 Surface Mine was owned by Island Creek. Based on this 

information, the Union moved to amend its complaint by adding Island 

Creek as a respondent. The motion was granted. By agreement of the 

UMWA and Island Creek, this proceeding was submitted to the judge on 

stipulations and briefs. 

In his decision, the judge :found that Island Creek "was in no way 

responsible for the violative conditions which gave rise to the withdrawal order idling the miners." 7 FMSHRC at 1531. The judge held that 

liability for compensating the idled miners attached to Monument, the 

independent contractor responsible for the violation, and he dismissed 

the UMWA 1 s complaint against Island Creek. Id. The judge relied on 

Commission precedent to the effect that, in appropriate circumstances, 

an independent contractor may be held solely liable for the violations 

it commits. 7 FMSHRC at 1530-31. Finding Monument in default, the 

judge concluded, "While it is unfortunate that Monument is no longer in 

business, I find no basis for the UMWA's attempts to hold Island Creek 

liable for the payment of these claims. 11 1 FMSHRC at 1531. Accordingly, the judge ordered Monument to pay the compensation claims filed 

against it by the UMWA. Id. The Commission granted the UMWA's petition 

for discretionary review, and we subsequently heard oral argument in 

this matter. 

on"review the UMWA argues that because a mine owner may be held 

liable for the violative actions of its independent contractor, it also 

may be held responsible for remedying those actions, including paying 

compensation to miners idled as a result of a withdrawal order even 

though the mine owner had no connection with the independent mining 

operator. Arguing for joint and several liability in this case, the 

Union candidly states, "[T]he purposes of the Act were best achieved 

when the UMWA sought relief from the operator who had the deepest 

Ii We disagree. The plain meaning of section 111 of the Mine 

order issued under section [104] ... or section 

[ 107] of this [Act] for a failu,:e of the operator to 

comply with any mandatory health or safety 

standards, all miners who are idled due to such 

order shall be fully compensated after all 

interested parties are given an opportunity for a 

public hearing, which shall be expedited in such 

cases, and after such order is final, by the 

operator for lost time at their regular rates of pay 

for such time as the miners are idled by such 

closing, or for one week, whichever is the lesser ... 

30 U.S.C, § 821 (sentence numbers added). 

211 
Act, as well as the overall purpose of the Act, establish that the 

"operator" responsible for the conditions or violations underlying the 

section 111 claim is the sole operator responsible for compensating the 

idled miners. 

Section 111 of the Mine Act entitles miners idled by certain 

withdrawal orders to compensation "by the operator." The third sentence 

of section 111 links compensation to an idling withdrawal order issued 

"for a failure of the operator to comply with any mandatory health or 

safety standards." Consistent with our holdings in Local Union No. 781, 

Dist. 17, UMWA v. Eastern Assoc. Coal Corp., 3 FMSHRC 1175, 1178 (May 

1981) and Local Union 1889, Dist. 17, UMWA v. Westmoreland Coal Co., 8 

FMSHRC 1317, 1324 (September 1986), we adhere to the principle that 

determinations of compensation under section 111 must focus upon the 

conduct of the operator responsible for the conditions of the mine. We 

find no statutory basis upon which section 111 compensation should be 

distinguished from the liability for the underlying health and safety 

violation. 

Moreover, section 2(c) of the Mine Act, 30 U.S.C. § 80l(c), 

embodies congressional policy "to prevent death and serious physical 

harm" from occurring in the nation's mines. This legislative purpose is 

best effectuated if the operator responsible for a violation is also 

held responsible for any compensation claim of its employees arising 

from such violation. Thus, the result we reach here today furthers the 

Act's policy by reinforcing that the independent contractor must make 

every effort to create and maintain a hazard-free mine environment, and 

insures that he will not be able to avoid the remedial or compensation 

consequences of citations and orders by shifting them to the mine owner. 

In the instant case Monument alone was cited for the underlying 

violation. The UMWA has stipulated that Monument was solely responsible 

for performing and controlling the blasting practices that led to the 

issuance of the withdrawal order. The judge determined that the 

Secretary properly charged Monument with the underlying violation. He 

considered and applied the relevant case law regarding independent 

contractor/owner liability and properly concluded that Monument alone 

was responsible for the underlying violation giving rise to the subject 

withdrawal order. 

212 
Accordingly, the judge's decision that Monument alone is liable 

for the idled miners' section 111 compensation claim is affirmed. 

213 
Conunissioner Lastowka, dissenting: 

The Commission and the courts of ten have been called upon to address 

issues concerning a mine operator's liability for violations of the Mine 

Act committed by independent contractors. The present case, however, 

presents for the first time a question concerning a mine operator's 

liability for compensation of miners prevented from working as a result 

of a violation committed by its contractor. In my opinion my colleagues 

reach an erroneous conclusion on the novel and important issue presented. 

For the reasons that follow, I respectfully dissent from their affirmance 

of the administrative law judge's decision. In my opinion, the judge's 

decision should be reversed and the case remanded for further proceedings. 

In section 111 of the Mine Act, 30 U.S.C. § 821, Congress mandated 

that certain limited compensation be paid by mine operators to miners 

idled from working due to withdrawal orders issued by MSHA inspectors 

because of unsafe conditions at the mine. Section lll's grant of compensation to miners is but one component of the Mine Act's comprehensive 

regulatory scheme ror achieving safe working conditions in the nation's 

mines. As such, section 111 must be interpreted in harmony with the 

other provisions of the Act with which it is interwoven. Rather than 

harmonizing the interpretation of the various statutory provisions to 

determine the outcome of the present case, the practical effect of the 

majority decision is to relegate the statute to a role subservient to a 

private contractual arrangement structured by the mine operator. 

The starting point for resolving the issue before us must be the 

recognition of the well-settled principle that as a matter of law under 

the Mine Act an operator of a mine is liable, regardless of fault, for 

violations of the Act committed by independent contractors hired by it. 

This principle has been stated repeatedly and clearly. Harman Mining 

Corp. v. FMSHRC 671 F.2d 79'4 (4th Cir. 1981); Cyprus Industrial 

Minerals Co. v. FMSHRC, 664 F.2d 1116 (9th Cir. 1981); Old Ben Coal Co., 

1 FMSHRC 1480 (October 1979); aff'd, No. 79-2367, D.C. Cir. (December 9, 

1980); Phillips Uranium Corp., 4 FMSHRC 549 (April 1982); Calvin Black 

Enterprises, 7 FMSHRC 1151 (August 1985). See also Brock v. Cathedral 

Bluffs Shale Oil Co., 796 F.2d 533, 535 (D.C. Cir. 1986). Cf. Bituminous 

Coal Operators' Assoc., 547 F.2d 240 (4th Cir. 1977); Republic Steel Corp., 

l FMSHRC 5 (April 1979)(identical holdings under predecessor 1969 Coal 

Act). Although the majority decision purports to be guided by the 

decisions in Old Ben, Phillips Uranium and Calvin Black, it ignores the 

primary and clear holding in those cases concerning the Act's liability 

without fault structure. Instead, it focuses on the separate discussion 

in those decisions addressing a very distinct issue, i.e., the scope of 

Conunission review of the Secretary of Labor's actions in initiating 

214 
enforcement against mine operators for their contractors' violations. '!:_/ 

That issue, however, is not before us. 

The underlying history in the present case reflects appropriate 

enforcement action by the Secretary. Monument Mining was operating a 

surface mine pursuant to a mining contract with Island Creek. Insofar 

as the operation of the surface mine is concerned, it is indisputable 

that: Monument was Island Creek's contractor; Monument was an "operator" 

of the mine within the meaning of section 3(d) of the Act, 30 U.S.C. 

§ 802(d); and, importantly, Island Creek also was an "operator" of the 

mine within the meaning of section 3(d). In the course of its mining 

activities Monument engaged in blasting in a manner that an MSHA inspector determined to be hazardous. The inspector took enforcement action 

directly against Monument by issuing a closure order to Monument. 

Because Monument was the operator to whom the order was issued, it 

logically was the operator in the position to contest before the Commission the validity of the order pursuant to section 105(d), 30 U.S.C. 

§ 815(d), and it did so. In the meantime, a separate claim for compensation under section 111 of the Mine Act was filed with the Commission 

on behalf of the miners who had been idled by the issuance of the withdrawal 

order. This claim for compensation logically and appropriately named 

Monument as respondent. 

Up to this point the enforcement of the Act and the litigation 

thereunder was proceeding in the normal fashion. At this juncture, 

however, the litigation took an unusual and unexpected turn: Monument 

unilaterally ceased operations and went out of business. This action by 

Monument naturally affected the litigation before the Commission. In 

the litigation initiated by Monument to challenge the Secretary's 

withdrawal order, Monument defaulted. In the separate compensation 

proceeding initiated by the miners, however, the miners responded to the 

turn of events by seeking to add Island Creek as a respondent in its 

capacity as operator of the No. 1 surface mine. The majority precludes 

the attempt by the miners to add Island Creek as a respondent in the 

compensation proceeding. The reasons offered for doing so are not 

convincing. 

My colleagues first state that "the 'operator' responsible for the 

conditions or violations underlying the section 111 claim is the sole 

operator responsible for compensating the idled miners." Slip op. at 4. 

As to that issue it has been consistently recognized in the cited 

cases, and I agree, that secretarial enforcement solely against mine 

operators for violations committed by their independent contractors, to 

the exclusion of the contractors themselves, is an inefficient manner of 

achieving the Act's purposes and runs counter to the clear intent of 

Congress to have contractors directly subjected to the Act's requirements. 

Rather, direct enforcement against contractors who create hazardous 

condiLons, whose employees are exposed to the hazards, and who are in 

the best tion to immediately secure abatement is the most effecient 

and effective enforcement course. In fact, subsequent to Old Ben the 

Secretary adopted a regulatory approach of enforcement directly against 

contractors that create and control violative conditions, while expressly 

reserving for use in appropriate circumstances his clear legal authority 

to also pursue enforcement against mine operators for their contractors' 

violations. 45 Fed. Reg. 44,494 (1980). 

215 
The case law set forth above makes clear, however, that an operator who 

contracts out work at a mine site is jointly and severally responsible 

and liable for violations of the Mine Act committed by its contractor. 

~.,Harman Mining Corp., 671 F.2d at 797; Old Ben, 1 FMSHRC at 1483. 

The majority further states that it "adhere[s] to the principle that 

determinations of compensation under section 111 must focus upon the 

conduct of the operator responsible for the conditions of the mine." 

Slip op. at 4. The cited case law makes clear, however, that a mine 

operator such as Island Creek is responsible for conditions at its mine 

regardless of whether it contracts out work at the mine. ~., Cyprus 

Industrial Minerals Co., 664 F.2d at 1119-20 citing Republic Steel Corp., 

1 FMSHRC 5, 11 (April 1979). Finally, the-majority states that the 

administrative law judge' "considered and applied the relevant case law 

regarding independent contractor/owner liability and properly concluded 

that Monument alone was responsible for the underlying violation giving 

rise to the subject withdrawal order." Slip op. at 4 (emphasis added). 

As stated, however, the relevant case law in fact places joint and 

several liability for the underlying violation on Island Creek. SimpLy 

stated, the majority appears to mistakenly assume that there is only one 

"operator" of a mine. The law is clear that where a contractor performs 

work for a mine operator the contractor and the mine operator are both 

"operators" of the mine within the meaning of the Act. Therefore, to 

the extent that the majority's holding is based on the belief that under 

the Mine Act Island Creek is not liable or responsible for the violation 

of the Mine Act committed by its contractor it is fundamentally flawed. 

Given the fact that Island Creek is an operator of the No. 1 Surface 

Mine and given the resulting conclusion that as a matter of law it is 

responsible for violations of the Mine Act committed by its contractors 

at the mine, it accordingly has a residual liability under section 111 

for compensation due miners as a result of the violation of the Act. 

Section 111 contains no special definition of the term "operator" limiting 

its application exclusively to independent contractors in situations 

where the mine operator chooses to employ contractors to undertake 

mining activities. Therefore, the same general principle of joint and 

several liability previously discussed applies equally in the section 

111 compensation context. The Commission recently has eschewed a 

narrow, purpose-defeating interpretation of section 111. ~.,Local 

Union 1889, District 17, UMWA v. Westmoreland Coal Co., 8 FHSHRC 1317, 

1323-24 (September 1986). A similar approach is required here. 

To the extent that the majority's conclusion may be influenced by 

an underlying concern for a perceived "unfairness" in adding Island 

Creek as a respondent at the present stage of the proceedings, those 

concerns should be allayed by the record and certainly could be accommodated in a remand to the judge. The contract between Island Creek and 

Monument reveals that Island Creek, as principal, carefully protected 

its interests in structuring the terms of its contractual mining arrangement with Monument. Exhibit A. For example, the contract provides 

that: 

Contractor shall be solely responsible for and 

shall fully idemnify a~d forever def end Owner 

from and against any and all liability for any 

216 
C·itation or any withdrawal order issued pursuant 

to the Federal Mine Safety & Health Act of 1977, 

as the same may be amended or superceded, and 

any state health and safety laws, and their 

respective regulations and standards, relating 

to the operations and work performed under this 

agreement. Contractor shall be solely responsible 

for abatement of the alleged violation or danger 

and shall be solely liable for any civil.or 

criminal penalty assessed pursuant to and as a 

result of said citation or order, whether assessed 

Contractor or Owner. In the event any 

such penalty is assessed against and paid by Owner, 

Contractor shall promptly reimburse Owner for said 

, and Owner may deduct and withhold from 

the payments due to contractor under this agreement 

an amount sufficient to cover any penalties which 

are assessed against Owner, and the costs, including 

reasonable attorney's fees, for defending any actions 

brought to assess and collect said penalties. 

Exhibit A, Article 13. Furthermore, the contract required the giving of 

90 days notice prior to termination of the contract by either party 

(Article 9) and required Monument to deposit $40,000.00 with Island 

Creek in an escrow account. Exhibit A, Article 21. Thus, any monetary 

damages suffered by Island Creek as a result of its legal liability for 

its contractor's violations of the Mine Act were anticipated and provided 

for. To the extent that Island Creek might be considered procedurally 

harmed by Monument's default prior to a hearing on the merits of its 

challenge to the validity of the withdrawal order giving rise to the 

compensation claim, the Commission certainly possesses the discretion in 

these circumstances to direct the administrative law judge to broaden 

the scope "of the compensation hearing to entertain any available substantive to the validity of the underlying withdrawal order 

that an award of compensation under section 111. 

For these reasons, I dissent from the affirmance of the administrative 

law j 's decision. I would reverse and remand for further proceedings. 

217 
Distribution 

Joyce Hanula, Legal Asst. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Marshall S. Peace, Esq. 

Island Creek Corporation 

2355 Harrodsburg Road 

P.O. Box 11430 

Lexington, Kentucky 40575 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

218 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 3, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HF.ALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SF 87-6 

A. C. No. 01-00328-03608 

Bessie Mine 

OBCISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The parties have filed a joint motion to approve settlements 

of the three violations involved in this case. The total of the 

originally assessed penalties was $357. The total of the· 

proposed settlements is $60. 

Th~ three citations were issued because valid respirable 

dust samples allegedly were not submitted by the operator. In 

their motion the parties state that the operator did, in fact, 

submit the requisite number of samples, i.e., five samples from 

each designated occupation. However, in each designated 

occupation one sample of the five contained oversized particles 

which could not be analyzed. The Solicitor has orally advised 

that the presence of an oversized particle cannot be attributed 

to any negligence on the operator's part. Also, the miners here 

wore respirators. Finally, once valid samples were submitted, 

the average concentrations of respirable dust in all samples were 

within acceptable limits. In light of the foregoing, I conclude 

the violations were not serious and the operator was not 

negligent. 

The history of previous violations with respect to this 

medium-sized operator is average. Payment of the proposed settlements will have no effect on the operator's ability to continue 

in business. 

The representations and recommendations of the parties are 

accepted. 

219 
Accordingly, the motion to approve settlements is GRANTED 

and the operator is ORDERED TO PAY $60 within 30 days of the date 

of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Fsq., Office of the Solicitor, u. s. Department 

of Labor, Suite 201, 2015 Second ~venue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter 

Resources, Inc., P. O. Box C-79, Birmingham, AL 35283 

(Certified Mail) 

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

22601, Tampa, FL 33622 (Certified Mail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W., 

Washington, DC 20006 (Certified Mail) 

/gl 

220 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE .COO 

DENVER, COLORADO 80204 FEB 3 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HE~LTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 85-141-M 

A.C. No. 42-00377-05502 

v. Fife Brigham Pit 

FIFE ROCK PRODUCTS COMPANY, 

INC., 

Respondent 

DECISION AFTER REMAND 

Appearances: Margaret Miller, Esq., OffiQe of the Solicitqr, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner: 

Mr. Clifford P. Woodland, Fife Rock Products 

Company, Inc., Brigham City, Utah, 

pro se. 

Before: Judge Morris 

On October 14, 1986, the Commission remanded the above case 

and directed that respondent be granted the opportunity to 

present its position seeking a hearing after the entry of a default order in the case. Respondent reasserted its position and 

the judge concluded that a hearing should be granted, (Order, 

November 20, 1986). 

After notice to the parties, a hearing on the merits took 

place in Salt Lake City, Utah on January 6, 1987. The parties 

waived their right to file post-trial briefs. 

Issues 

The issues a~e whether respondent violated the regulation, 

if so, what penalty is appropriate. 

Citation 2360673 

This citation charges respondent with violating 30 C.F.R. 

§ 56.15007, which provides as follows: 

Protective clothing or equipment and face shields, 

or goggles shall be worn when welding, cutting or 

working with molten metal. "· 

221 
Sununary of the Evidence 

Tyrone Goodspeed, an experienced MSHA inspector, conducted 

an investigation at respondent's sand and gravel operation on 

April 16, 1985 (Tr. 6, 7). 

This was an average sized plant with three employees (Tr. 8). 

The plant area consists of a set of screens, conveyor belts, a 

control room and a dump point (Tr. 9>. 

The inspector located plant manager Harper who was then 

cutting holes in a screen with an oxygen acetylene torch (Tr. 10). 

He was lying on his side and not wearing glasses or any protective equipment (Tr. 10, 12, 13). Harper explained that he had 

forgotten about wearing the glasses CTr. 11). He had been in a 

three foot space with the torch approximately 18 inches from his 

face (Tr. 11, 12). 

In the inspector's experience Harper could have been blinded 

or incur a serious eye injury from molten material (Tr. 12). The 

inspector believed that it was reasonably likely that an injury 

could occur in these circumstances (Tr. 13, 15). 

The inspector believed this was a condition involving 

inuninent danger (Tr. 13, 14). Further, he believed that the 

negligence was high (Tr. 14). 

The inspector further indicated the citation was incorrectly 

dated (Tr. 16-29, ~3). The inspector's notes and the form 

indicating the operator had been advised of his rights to a 

conference were received in evidence (Tr. 24). 

Respondent offered in evidence its written narrative filed 

with the Conunission (Tr. 35, 36; Ex. R3, R4>. Respondent does 

not deny the violation but it conqemns the action of its employee 

(Tr. 37). 

Earl Harper, testifying for the operator, indicated he has 

been employed by Fife Rock for 30 Years (Tr. 38). He is now 

designated as the plant manager (Tr. 38, 46). 

He normally uses glasses but on the day of the inspection he 

was at the Eljay screen installing J-bolts by first punching 

holes in the screen deck with a torch CTr. 39, 40, 67>. It was 

his neglect in failing to take his glasses with him (Tr. 41). 

The company, as well as the citation, stresses the use of glasses 

(Tr. 41>. Harper realized that a potential for injury existed 

here and he should have used safety equipment (Tr. 43, 45, 50). 

Harper, who has been using a torch for 35 years, has no supervisory authority at the plant. There were two other operators at 

the site (Tr. 47). 

222 
Notwithstanding the company rule to the contrary, Harper 

admitted he had previously used a welding torch without wearing 

glasses. But he had not done so since the citation was issued 

CT,r. 51) • 

Don Perry runs the front-end loader. He also assisted with 

installing screens when necessary (Tr. 52-54). Perry didn't 

think Harper was wearing any protective equipment that day CTr. 

55). The company stresses safety <Tr. 56). 

Ray Hardy feeds the crusher with a rubber tire dozer (Tr. 

57). Hardy also assisted in installing the new screens (Tr. 57). 

When he was called Harper replied that he'd be through in a 

minute (Tr. 58, 59). Later, when they discussed the citation, 

the inspector seemed upset with Harper (Tr. 61, 64). 

The company always instructed the employees to cooperate 

with MSHA (Tr. 61). Signs in the shop stress safety and 

accidents (Tr. 62). 

Discussion 

The evidence establishes that the violation occurred. 

Harper was seen by the inspector to be using a torch without 

protective gear. Respondent's evidence confirms the violation. 

The citation should be affirmed. 

The principal issue concerns the assessment of a civil 

penalty. The statutory penalty to assess a civil penalty is 

containe~ in Section llO(i) of the Act which provides as follows: 

Ci) The Commission shall have authority to assess all 

civil penalties provided in this Act. In assessing civil 

monetary penalties, the Commission shall consider the. 

operator's history of previous violations, the appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a 

violation. 

In considering the statutory criteria I find that the 

computer printout received in evidence establishes that the 

operator had three assessed violations in the two year period' 

ending April 15, 1~85.. This is a considerable improvement over 

the 11 violations assessed in the period before April 16, 1983. 

Three violations indicate respondent's prior adverse history of 

violations is below average. The operator with three employees 

should be considered as small and the penalty hereafter assessed 

appears appropriate in relation to the size of the bnsiness. The 

operator was negligent since it failed to offer any persuasive 

223 
evidence that it enforced its safety rules relating to the use of 

protective eyeglasses. There is no evidence relating to the 

effect of the penalty on the ability of the operator to continue 

in business. But the obligation rests with the operator to 

produce such evidence. Buffalo Mining Company, 2 IBMA 226, 

(1973); Associated Drilling, Inc., 3 IBMA 164 (1974). The 

gravity of the violation should be considered as high. The 

employee could have been blinded by molten lead. It is to the 

operator's credit that it rapidly abated the violative condition. 

On balance, I consider that a civil penalty of $250 is 

appropriate. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 56.15007 and Citation 

2360673 should be affirmed. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

1. Citation 2360673 is affirmed. 

2. A civil penalty of $250 is assessed. 

3o Respondent is ordered to pay to the Secretary the sum of 

$250 within 40 days of the date of this decision. 

Law Judge 

Distribution~ 

Margaret A. Millerv Esq.v Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Fife Rock Products Company, Inc., Mr. Clifford P. Woodland, 

General Manager, P.O. Box 479, Brigham City, UT 84302 (Certified 

Mail) 

/bls 

224 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFflCE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

FEB 3 1987 

SECRETARY OF LABOR, CIVIL,PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HYDROCl\RBON RESOURCES COMPANY, : 

Respondent 

Docket No. WEST 86-15-M 

A.C. No. 42-01789-05510 

Cottonwood #1 Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Robert K. Murray, Esq., Golden, Colorado, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges respondent with violating safety 

regulations promulgated under the Federal Mine Safety and Health 

Act, 30 u.s.c. § 801 et seq., (the Act). 

A hearing on the merits took place on August 14, 1986 in 

Salt Lake Cityv Utaho 

The Secretary waived his right to file a post-trial brief 

but respondent filed a brief. 

Issues 

The issues concern the appropriateness of the civil 

penalties to be assessed" 

Citation 2360975 

This citation alleges respondent violated 30 C.F.R. 

§ 57.19110 which provides as follows: 

§ 57.19110 Overhead protection for shaft deepening work. 

A substantial bulkhead or equivalent protection shall be 

provided above persons at work deepening a shaft. 

225 
Summary of the Evidence 

The c~tation and orders in contest here were issued as a 

result of inspections that occurred on June 5, June 25, and June 

26, 1985. 

Ronald L. Beason, a metal and nonmetal mine inspector 

experienced in mining, previously inspected respondent's 

Cottonwood mine on December 28, 1982 (Tr. 20-22). 

The inspection occurred because of a fatal accident at the 

mine (Tr. 22). At that time an imminent danger.order was issued 

to Chad Evans, then vice president of Hydrocarbon Re- . 

sources. The order alleged respondent violated§ 57.19110 in 

failing to build and maintain substantial bulkheads (Tr. 23, 72). 

The citation was later terminated. The bucket and the bulkhead 

were used to protect the miners in the shaft (Tr. 24, 25, 86, 

87). 

This particular gilsonite mine had a 4 foot by 12 foot shaft 

and it was about 700 feet deep (Tr. 27). The shaft consists of 

the skip, manway and utility compartments. The shaft was not 

perfectly vertical but it varied from foot to hanging wall (Tr. 

27, 28, 68). There were no guides in its 700 foot length (Tr. 

36, 69). This would increase the probability of dislodging a 

rock (Tr. 36, 38). 

The skip compartment is used to haul ore, men, and materials 

in and out of the mine. At the time of this inspection the 

vacuum system was transporting the gilsonite. In addition, they 

were blasting the rock and mucking it into the skip (Tr. 29, 30). 

Bulkheads are timbers placed five to ten feet from the 

bottom of the shaft. They are directly over the miners' heads 

when they are in the bottom of the shaft. The bulkheads prevent 

the miners from being struck by falling rock (Tr. 30, 31). The 

skip itself can dislodge loose and rocks from the foot or hanging 

wall (Tr. 37, 38}. 

On the June 5, 1985 inspection the first (and only) bulkhead 

on the utility shaft was 354 feet from the shaft bottom (Tr. 31, 

32, 82). The bulkhead was located approximately at the point 

where the Green fatality occurred in 1982 (Tr. 32). In addition 

to the single bulkhead there were various other obstructions such 

as pipes and lagging in the shaft (Tr. 84). 

There was also a single bulkhead on the manway side 38 feet 

above the shaft bottom. There were no bulkheads on the utility 

side. Bulkheads are required for the skip compartment but there 

226 
were none. Lagging is required under the skip (Tr. 32, 34, 39>. 

Lagging (3 x 8 timbers) is pulled across the bulkhead so the 

miners ar~ protected while the skip travels to, and returns from, 

the surface (Tr. 33). There was lagging in isolated places (Tr. 

70>. The skip can be used as a bulkhead when situated at the 

bottom but a bulkhead is required when the skip is at the surf ace 

or descending or ascending (Tr. 33). 

When the inspector arrived at the site the skip was on the 

surface. In addition, there was no bulkhead at the bottom of the 

shaft CTr. 33). There was nothing to stop the fall of any rocks 

700 feet in the skip compartment and 350 feet in the utility 

compartment (Tr. 34). 

At the time of the inspection three shifts were working (Tr. 

38). 

When the inspector descended in the skip the miners were 10 

to 12 feet (laterally) from the shaft bottom (Tr. 77). There 

were not sinking shaft but they were preparing to mine into a 

stope (Tr. 78, 81). The inspector questioned each miner and.he 

learned that the day shift had completed mucking out the bottom 

of the shaft. They stated that no bulkheads or timbers had been 

removed (Tr. 79). 

Inspector Beason measured and took notes. He indicated 

there was no lagging in the skip compartment. His notes directly 

contradict witness Jorgensen (Tr. 293-297; Ex. P3>. 

Don E. Jorgensen, testifying for respondent, indicated there 

were continuous glancing boards from the surface to the bottom of 

the shaft (Tr. 212, 213). There were stulls and lagging every 

five feet and 3 x B's on every landing (Tr. 213). Jorgensen 

observed the inspector measure a hole at 13 inches but many 

measured two or three inches and they were not covered with pipe 

(Tr. 213, 214). On the manway side there were 14 foot ladders 

with landings every 10 feet. The first bulkhead was 38 feet from 

the bottom of the shaft (Tr. 215). When the June 5 citation was 

issued for failure to use bulkheads they had flooring out to the 

sides whenever they were working under the bucket for any length 

of time. The witness had never seen the bottom of the Cottonwood 

shaft without timbers or lagging. On the morning of June 5, 1985 

the miners had started to mine gilsonite and they had moved out 

of the shaft CTr. 216, 217). 

Witness Jorgensen claimed bulkheads were used after the 

first citation was issued. In fact, Hydrocarbon discharged 

Royce, Grant and Dan Green for failing to use bulkheads when 

sinking a shaft at another location (Tr. 217-221, 248, 249, 256, 

257). 

Before the June 5 inspection Jorgensen had talked to Royce 

Green and his two boys urging them to be ~ure the bulkhead was 

installed (Tr. 221, 222). 

227 
Discussion 

Respondent's answer admits this violation. Further, the 

parties have stipulated that the only issue concerns the appropriateness of the penalty (Tr. 16-18). 

Accordingly, the citation should be affirmed. Issues 

relating to a civil penalty are discussed hereafter. 

Citation 2359401 

This citation alleges a violation of 30 C.~.R. § 57.20032 

which provides as follows: 

§ 57.20032 Two-way communication equipment for underground operations. 

Telephones or other two-way communication equipment with 

instructions for their use shall be provided for communication from underground operations to the surface. 

Summary of the Evidence 

During his inspection on June 25, 1985 inspector Beason was 

directed by Ken Cooper, shift foreman, to the company telephone. 

It was located on the bench in the hoist room under boxes, rags 

and other materials (Tr. 39, 40, 43). 

The inspector determined there was no communication with the 

bottom of the mine (Tr. 40). He found the telephone did not work 

(Tr. 41). They then took it apart. The panels were rusty and 

the plug-ins had rusted off. The rust on the phone could not 

have accumulated within four days. In addition, the inspector 

did not observe any damage to the box itself (Tr. 42). 

Ken Cooper stated the phone had been removed from service 

because of water in the shaft (Tr. 42>. 

When Mr. Cooper showed the inspector the telephone he made 

no claim that it had been damaged by blasting (Tr. 43). 

On the following day company representatives, Don Jorgensen 

and Ralph Musick, told the inspector that the phone was new (Tr. 

43). It had just been installed, blasted off the wall and rusted 

out after two days in a muckpot (Tr. 44). The inspector had the 

underground water analyzed by MSHA and contacted MSA (Mine Safety 

Appliance), the manufacturer. The company stated the neutral 

acidity solution would not cause it to corrode (Tr. 44, 45, 

106-115). The inspector's investigation caused him to conclude 

that the phone was not four days old as claimed by the company 

(Tr. 45). 

Management also asserted their backup communication system 

involved shutting off the ventilation. They did so five times 

228 
over 30 to 45 minutes. The men did, in fact, appear 45 minutes 

later (Tr. 47). The problem with this system of communication is 

that the miners below could not communicate to the surface CTr. 

47). 

In the inspector's opinion the lack of communication could 

have aggravated any injury caused to a miner below ground (Tr. 

48, 49). On a previous inspection (April 24) the company had a 

problem with the phone (Tr. 102, 103). The inspector believed 

the Pager 3 telephone in place on June 25th was the same 

instrument in use on April 24 CTr. 104). 

The inspector left the mine by signaling the hoistman for 

the skip. But he did not consider such signals nor a signal 

board to be effective communication because the hoistman could 

not return the signal {Tr. 116, 117). In addition, a signal 

board does not have an emergency code <Tr. 118). 

Witness Don Jorgensen disagrees with inspector Beason 

concerning the telephone. On May 30th the company ordered a new 

phone. On June 5 he pointed out the new phone to the inspector 

(Tr. 222, 223). 

The new phone had apparently been dislodged in a Friday 

night blast. As a result it was in the water until Monday 

morning (Tr. 223). 

The original phone, seen in April, was an old instrument 

(Tr. 223). The witness produced an order for a telephone dated 

May 30. The order was for a Pager 3 and a battery (Tr. 224). 

The order bears a date stamp of May 31, 1985 and the witness 

installed it on June 3 (Tr. 224; Ex. R6). 

The company was cited for failing to have a phone on June 25 

(Tr. 224, 225). The new phone had to be replaced because it was 

corroded and rusted from being in the water and muck caused by 

the Friday night blast (Tr. 226). 

Royce Green didn't tell anyone about the phone and Jorgensen 

didn't hear about it until Tuesday (Tr. 228). 

On June 25 the company ordered a Pager and a 12 volt battery 

CTr. 229; Ex. R7). The Pager 3 was an MSA phone (Tr. 230). 

Witness Jorgensen indicated the signal code for operating 

the hoist directs the hoistman to either stop, start or position 

the conveyance at some predetermined location. Nine bells 

indicates impending danger or accident (Tr. 230, 231). Turning 

the air on and off also constitutes a signal system (Tr. 231). 

The signal system is posted at every landing and known to the 

miners (Tr. 231). 

229 
If the phone isn't available a person can talk down the vent 

pipe or suction pipe (Tr. 232). 

The mine had to replace an entire length of galvanized 

suction pipe because the corrosion in the water had eaten 

through it (Tr. 233). 

Discussion 

Respondent's answer and the stipulation of the parties 

confirms that this violation occurred. Accordingly, the citation 

should be affirmed. 

The evidence in a large degree addresses the issue involving 

the replacement to the telephone and the reason for its replacement. The regulation requires a two-way corrununication system. 

It is clear that there was no effective two-way system. Accordingly, the violation existed. The Mine Act imposes absolute 

liability on the operator. ASARCO, Incorporated, 8 FMSHRC 1632 

{1986). Accordingly, the evidence relating to why the telephone 

was in-operative and why it became that way is relevant only as 

it relates to the imposition of a penalty. On the credible 

evidence I find that the telephone was inoperative only for a 

short period of time. In addition, it became rusted by lying in 

the water after only two days in the muckpot. These elements 

reduce the gravity as well as the operator's negligence. These 

features are hereafter considered in assessing a penalty. 

Respondent's evidence that they signaled the miners by 

turning off the ventilation and by signalling the hoistman 

totally fail to comply with the regulation. Section 30 C.F.R. 

§ 57.20032 requires a two-way communication system. 

Citation 2359512 and 2359405 

These citations allege separate violations of 30 C.F.R. 

§ 57.12025 which provides as follows: 

All metal enclosing or encasing electrical circuits 

shall be grounded or provided with equivalent protection. 

This requirement does not apply to battery-operated 

equipment. 

Summary of the Evidence 

On June 25, 1985, Mr. Beason inspected a 480 volt submersible metal water pump in the bottom of the shaft (Tr. 49, 

50). 

The previous evening Larry Day, an electrical inspector, had 

checked the switch box containing 30 amp fuses and he determined 

that the ground wire had been cut (Tr. 50, 51, 60, 61). 

230 
They had abated the citation by connecting the ground wire. 

Company representatives also indicated they had conducted a 

continuity test (Tr. 51). Such a test ~ill confirm whether there 

is an adequate ground to a particular motor <Tr. 52). Based on 

the company's representations the inspector terminated the 

electrical citation (Tr. 52). 

In continuing his inspection, the inspector observed that 

the water pump had been spliced and the ground cut out <Tr. 53; 

Ex. P2). At the inspector's request the splice was cut from the 

line. It was presented as an exhibit at the hearing (Tr. 53~ Ex. 

P2). The cable had a four wire splice to the cable. After being 

cut off only three wires led to the pump (Tr. 53, 54). The 

ground wire terminated in the splice was the same ground wire 

inspector Day had required to be connected at the panel box on 

the surface (Tr. 55). A continuity test would have determined 

that the pump was ungrounded. The pump was ordinarily used to 

J pump out the bottom of the shaft (Tr. 55, 56, 130, 133). 

Failure to ground this equipment or to provide equivalent 

protection presents a shocking hazard (Tr. 56, 60-62). In 

addition, a person could have touched the exposed electrical 

conductor (Tr. 58). 

In the inspector's opinion respondent's management was very 

neglectful since they resisted the bulkheads, the grounding and 

the telephone (Tr. 63-65, 138). 

The company had received prior citations for failure to 

ground (Tr. 65). Respondent extensively examined the inspector 

concerning the electrical violation (Tr. 119-129). 

Cross examination further established that on June 26, 1985 

respondent was issued a citation because the company failed to 

notify MSHA of changes in the partnership and the operator (Tr. 

67, 68). 

Larry G. Day, an electrical specialist for MSHA, inspected 

respondent's Cottonwood mine on June 25, 1985 (Tr. 163-167). He 

determined, with a tick tracer, that the metal water pump in the 

shaft bottom was not grounded nor was there equivalent protection 

(Tr. 167, 169). The grounding wire connected to the switch box 

on the surface had been cut (Tr. 168, 168A, 177, 192). An 

ungrounded pump submerged in water creates a very hazardous 

condition (Tr. 170-179). Submersing the pump in water would be 

no protection at all (Tr. 179). 

The panel contained 30 amp fuses. Exposure to a milliamp 

could kill a person (Tr. 173). 

The inspector considered that the operator's negligence was 

high since someone ignored a grounding conductor (Tr. 177, 178>. 

231 
Cross examination indicated that the inspector's experience 

generally involved 480 volt three phase AC current {Tr. 181). He 

further testified extensively in connection with Y and delta 

connections, impedence, grounding and continuity tests (Tr. 

181-190). 

Day's citation was issued because of the condition at the 

surface. Beason's citation related to the condition at the other 

end of the pump {Tr. 192, 193). The number of breaks in the wire 

would not affect this condition <Tr. 193, 194, 196). 

Witness Jorgensen testified for respondent and indicated 

that the Berkeley pump was installed after the partnership with 

Thyssen. The pump was used when the mine filled with water (Tr. 

234-236). They did not pump when there were miners in the mine 

(Tr. 235). 

After it was cited the company obtained a letter from the 

sales company (Tr. 238-240; Ex. RS). 

Jorgensen purchased the three wire cable and had it installed by an electrician <T+. 245). 

Jorgensen suspected that Jerry Schrup cut the grounding wire 

on the pump (Tr. 247, 248). 

Discussion 

Respondent's answer questions whether this violation 

occurred but its post-trial brief asserts that the mineralized 

ground water provided a suitable ground. In addition, no miner 

was ever exposed to any danger. Further, the two citations are 

duplicative since they both involve the same piece of equipment. 

I credit inspector Day's expertise to the effect that an 

ungrounded pump submerged in water constitutes no protection. 

Further, it is not a requirement of the regulation that miners 

be exposed to the violative condition. Finally, respondent's 

im of duplication is rejected. Two separate violative conditions existed. The fact that it involved the same piece of 

equipment is a factor to be considered in assessing a penalty. 

The citations should be affirmed. 

Respondent's Evidence as 

to new Partnership 

Don E. Jorgensen was hired as a miner by respondent 

Hydrocarbon Resources on September 1, 1983. In January 1984 he 

was promoted to mine superintendent (Tr. 199, 200). His 

responsibilities included production and safety {Tr. 201). He 

initially reported to Chad Evans, the mine manager (Tr. 207). 

Prior to March 1985 a partnership consisting of Miocene 

232 
Resources, Hydrocarbon Mining and Ken Wooley operated the mine. 

On March 15, 1985 that partnership was terminated and a new 

partnership was formed consisting of Thyssen Mining Construction, 

Inc. and Hydrocarbon Mining. These partne~s operated the mine 

doing business as Hydrocarbon Resources. Thyssen was the 

operating partner. Hydrocarbon Mining Company was a partner in 

both ventures (Tr. 201-206). 

Jorgensen was aware that a citation was issued as a result 

of the Green fatality (Tr. 203). After he became superintendent 

he learned why the citation was issued (Tr. 204). 

John Edwin McNeeley has been vice chairman of the managing 

board of Thyssen Mining Construction, Inc., since November 7, 

1985. Thyssen, as managing partner, controls 51 percent of 

Hydrocarbon Resources (Tr.· 258, 1259, 273). 

McNeeley was responsible for operating the Wild Horse and 

Midas mines (Tr. 261). Operations were abandoned at the 

Cottonwood mine in the fall of 1985 (Tr. 261). All other 

employees of Hydrocarbon Resources were laid off in May 1985 (Tr. 

261) • 

McNeeley discharged Royce, Danny and Grant Green in November 

for failing to use a bulkhead (Tr. 2262-266)" The company has 

set a standard of strict compliance with MSHA regulations (Tr. 

264). Subsequently the Greens filed discrimination complaints 

against the company. The complaints were unrelated to the use of 

bulkheads (Tr. 261-268). 

Thyssen Mining Construction, Inc., is a wholly owned 

subsidiary of Thyssen Mining Construction of Meulheim, West 

Germany. The principal company sinks shafts, does contract 

mining and production mining (Tr. 269). Thyssen is one of the 

largest construction companies in West Germany (Tr. 270). ·· .. Until 

it was terminated the members of the managing board of Hyd~­

carbon Resources were Klaus Wagener, Kenneth Wooley and Chad 

Evans CTr. 270). 

Lyle D. Weiss, secretary-treasurer of Thyssen Mining Construction, Inc., testified that he is in charge of all financial 

and administrative matters (Tr. 273, 274). 

The partnership agreement between Hydrocarbon Mining, Inc., 

and Thyssen Mining and Construction, Inc., was executed March 15, 

1985 {Tr. 274; Ex. R8). Other than in evaluating the project 

Thyssen was not involved in the operations before March 15, 1985 

(Tr. 275). The partnership was designated as Hydrocarbon 

Resources Company, CHRC) CTr. 276: Ex. R8). The parties further 

agreed that HRC was identical to a joint venture between Hydrocarbon and a company called Miocene Resources, Inc. (Tr. 276). 

233 
The vein has ceased to exist at this site at a minable width 

(Tr. 280, 28l)e For the nine months ending December 31, 1985 the 

partnership loss was $1,050,000. A penalty in this case would 

not help the situation (Tr. 281). 

The witness further indicated that 58,268 man hours were 

involved and 1,830 tons were mined between March 15, 1985 and 

December 31, 1985 (Tr. 282, 283; Ex. R9). The man hours included 

approximately 9,000 hours of construction work (Tr. 284). 

The witness had prepared and suggested a penalty assessment 

based on the Secretary's regulations (Tr. 285-291; Ex. RlO, Rll). 

Thyssen is financially sound and a $9,000 penalty would not 

impair its ability to continue in business (Tr. 291). 

Civil Penalites 

The Secretary seeks certain penalties for the violations 

herein. The proposed penalties, as originally assessed, were as 

follows: 

Citation No. 

2360975 

2359401 

2359512 

2359405 

Bulkheads 

telephone 

water pump 

cut ground wire 

Proposed 

$1,000.00 

750.00 

750.00 

500.00 

Prior to the hearing the Secretary sought and was granted 

leave to amend the bulkhead violation to a proposed penalty of 

$9,000. 

Discussion 

As a threshold matter respondent concedes that the Secretary 

may modify his penalty assessment at any time during a penalty 

proceeding but it asserts that the Secretary's action, without 

new facts¥ constitute harassment and intimidation especially 

after respondent choose to challenge the original proposed 

assessment. 

Respondent's arguments are rejected. It is well settled 

that the assessment of penalties rests solely with the Commission 

and are not based on th~ Secretary 1 s proposals. The Commission 

may raise, lower or affirm the original assessment. Sellerburg 

Stone Company v. FSMHRC, 736 F.2d 1147 7th Cir. (1984); Shamrock 

Coal Company, l FMSHRC 469 (1979); Consolidation Coal Company, 

2 FMSHRC 3 (1980). 

For the foregoing reasons respondent's threshold objections 

are denied. 

234 
Accordingly, it is now necessary to consider the statutory 

criteria relating to the assessment of such penalties. Section 

llO(i) of the Act, now 30 u.s.c. § 820(i), provides as follows: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil 

monetary penalties, the Commission shall consider the 

operator's history of previous violations, the appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification 

of a violation. 

The bulkhead violation (Citation 2360975) involves evidence 

relating to respondent's negligence and gravity. In 1982 an 

.identical bulkhead citation was issued against respondent after a 

fatality occurred. In the instant case the judge took official 

notice of the prior case entitled Hydrocarbon Resources, Inc., 8 

FMSHRC 354 (1968), (Order, January 9, 1987). 

I agree with respondent that a change in partners creates a 

new legal entity. Fritz et al v. Commissioner of Internal 

Revenue, 76 F.2d 460 (1935). I further find from the testimony 

and the exhibits that when Thyssen Mining Construction, Inc., became the managing and controlling partner on March 15, 1985 a new 

and entirely legitmate partnership was formed. The transition -

was in no way a sham arrangement such as discussed by the 

Commission in Lonnie Jones v. D & R Contractors, 8 FMSHRC 1045, 

1054 (1986). 

However, the new partnership involving Thyssen Mining is not 

totally insulated from the prior partnership. This is so because 

Chad Evans was the mine manager when the bulkhead violatio~ 

occurred in 1982 (Tr. 157). Subsequently, he was one of the 

three members on the managing board of the Thyssen partnership 

(Tr. 270) o 

The knowledge of supervisory personnel has generally been 

imputed to an operator under an agency concept Southern Ohio Coal 

Company, 4 FMSHRC 1459 (1982); Nacco Mining Company, 3 FMSHRC 849 

(1981). Accordingly, respondent should have known of the 1982 

fatality resulting from the bulkhead violation. This knowledge 

causes me to conclude that respondent's negligence is high and 

the gravity of the violation is apparent since the violative 

condition can and did cause a fatality in 1982. 

Respondent's post-trial brief asserts for a number of 

reasons that the bulkhead citation should not have been issued. 

The credible evidence here clearly establishes that the four 

violations occurred. 

The gravity of Citation 2359401 (communication system) is 

low. On the other hand, ungrounded equipment such as in 

235 
Citations 2359512 and 2359405 presents the possibility of 

electrocution. The gravity in such situations should be considered as high. 

Since respondent is a separate legal entity it has no prior 

adverse history. 

The testimony establishes that a civil penalty will not 

affect the operator's ability to continue in business. 

Respondent's rapid abatement of all of the violations is to 

its credit. 

On balance, I consider that the penalties set forth in order 

of this decision are appropriate. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Penalties should be assessed for the violations herein. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

The following penalties are assessed for the violations 

herein: 

Citation 2360975 

Citation 2359401 

Citation 2359512 

Citation 2359405 

Distribution: 

{bulkheads) 

(communication system) 

(water pump) 

(ungrounded wire) 

Law Judge 

$3,000 

200 

500 

500 

James Barkley, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Robert K. Murray, Esq., Hydrocarbon Resources, Inc., 14618 w. 6th 

Avenue, Suite 105, Golden, CO 80401 (Certified Mail) 

/bls 236 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE FEB 4 1987 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PA-PA COAL MINING COMPANY, 

Respondent 

Before: Judge Fauver 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 86-118 

A.C. No. 15-15229-03503 

Pa Pa Mine 

By notice issued on December 19, 1986, this civil penalty 

case was set for hearing on February 10, 1987, at Huntington, 

West Virginia. Prehearing reports were due from the parties 

by January 27, 1987. Counsel for the Secretary of Labor 

submitted a prehearing report by telephone on January 23, 

1987, reporting that Mr. Jack Owens, President of the Respondent, 

informed counsel for the Secretary that Respondent will not 

appear at the hearing on February 10, 1987. This statement in 

behalf of Respondent is deemed to be a withdrawal and waiver of 

Respondent's hearing request. 

ORDER 

1. The allegations in Petitioner's Citation No. 2303103 

are deemed to be true and hereby incorpora as Findings of 

Fact and Conclusions of Law herein. 

2. Respondent is ASSESSED a civil penalty of $650.00 

for the violation alleged in Citation No. 2303103 and found 

herein. 

3. Respondent shall pay the above civil penalty of $650.00 

with 30 days of this Decision. 

4. The hearing scheduled for February 10, 1987, is 

CANCELLED. 

4/~~VVL- William Fauver 

Administrative Law Judge 

Distribution: 

237 
Mary Sue Ray, Esq., U.S. Department of Labor, Office of the 

Solicitor, 801 Broadway, Rm. 280, Nashville, TN 37203 

(Certified Mail) 

Jackie Owens, President Pa Pa Coal Mining Co., Inc., 3357, 

Pikeville, KY 41501 (Certified Maii) 

kg 

238 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 4 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, 

INC., 

Respondent 

U.S. STEEL MINING COMPANY, 

INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-204 

A.C. No. 35 05018-03614 

CONTEs·r PROCEEDING 

Docket No. PENN 86-180-R 

Citation No. 2678490; 4/28/86 

Cumberland Mine 

Appearances: Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for the Secretary of Labor; 

Billy M. Tennant, Esq., Pittsburgh, 

Pennsylvania for U.S. Steel Mining Company, 

Inc. 

Before: Judge Melick 

These consolidated cases are before me under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et~' the "Act," to challenge a citation 

issued by the Secretary of Labor on April 28, 1986, to U.S. 

St2el Mining Company Inc., (U.S. Steel) and for review of 

civil penalties proposed by the Secretary for the violation 

alleged therein. The issues before me are whether U.S. Steel 

violated the regulatory standard as alleged and if so whether 

that violation was of such a nature as could have signif icantly and substantially contributed to the cause and effect 

of a coal or other mine safety or health hazard, i.e. whether 

the violation was "significant and substantial." -II the 

violation is established it will also be necessary to determine the appropriate civil penalty to be assessed in accordance with the criteria set forth in section llOCi) of the 

Act. 

239 
The citation at bar, No. 2678490P alleges a nsignificant 

and substantial" violation of the standard at 30 C.F.R. § 

75.1725(a) and charges as follows: 

The belt tail roller that was located at the 5 Face 

South No. 2 in-line drive was not maintained in a 

safe operating condition on the afternoon shift of 

January 28, 1986 and midnight January 29, 1986 due 

to the bearings on the subject roller was [sic] 

running hot and smoking at one point. 

The cited standard provides that "mobile and stationary 

machinery and equipment shall be maintained in safe operating 

condition and machinery or equipment in unsafe condition 

shall be removed from service immediately." 

The evidence shows that as Anthony Shiner, a General 

Inside Laborer at the Cumberland Mine, was cleaning along the 

subject beltline on his afternoon shift he heard a loud 

thrashing noise, vibration and the sound of metal grinding in 

the bearings of the tail roller. Shiner also saw smoke 

coming from the tail roller and the smoke filled "half the 

entry." He immediately shut down the belt and called the 

afternoon shift Foreman Ed Grim to report the problem.~/ 

Mechanic Douglas Carpenter and his Supervisor, Jerry 

Seaton, subsequently examined the problem bearing, cooled it 

with water and greased it. Shiner then rigged a hose to maintain a cooling water spray onto the subject bearing, and the 

belt was restarted. Carpenter and Seaton watched the belt 

17 While Shiner testified at hearing that these problems 

Jeveloped on the afternoon shift of January 27, 1986 and 

continued through the afternoon shift on January 28, I 

believe for the reasons noted below that this recollection 

was erroneous. Firstu MSHA Inspector James Conrad testified 

that he interviewed Shiner on February 12f 1986r shortly 

after the incident in question, and Shiner then told him that 

the problem had begun on his afternoon shift on January 28. 

Second, the "section 103(g)" complaint filed with MSHA by the 

Union Safety Committee (Court Exhibit 1) and the citation at 

bar prepared by Inspector Conrad both contain allegations 

that the problem began on the afternoon shift of January 28 

and continued only through the midnight shift of January 29, 

1986. Third, Shiner's testimony is also inconsistent with 

the testimony of government witness Clyde King and U.S. Steel 

witnesses Mark Skiles (Mine Superintendant), Larry Seaton 

(Assistant Maintenance Foreman), Charles Grim (the afternoon 

shift Mine Foreman), Ronald Stull (afternoon shift Belt 

Foreman), Eugene Barno (third shift Mine Foreman), and Dan 

Laurie (afternoon shift Belt Cleaner Foreman). 

240 
run for an hour andu since the bearing was holding up "okay, 11 

they left. Seaton nevertheless told Shiner to maintain a 

watch on the suspect bearing for the rest of his shift, to 

keep grease in it and to maintain the cooling water spray. 

The ·bearing continued to operate normally for the remainder 

of Shiner's shift until Harry Siebold took over the watch 

around 10:30 p.m. on the 28th. 

According to Shiner the area surrounding the suspect 

bearing was kept clear of loose coal and coal dust, was rock 

dusted and was wet from the hose spray. Additional bags of 

rock dust were available nearby if needed. The evidence also 

shows that an emergency pull cord ran along the entire belt 

line and could be reached by anyone nearby to cut off power 

to the belt within 15 to 30 seconds. There was also a fire 

protection system that would deluge the belt when triggered 

by a heat sensor. A chemical fire extinguisher and a mine 

telephone were also nearby. 

Beltman ,Jimmy Perani was assigned to stand watch over 

the subject bearing on the midnight shift (11:00 p.m. to 

7:00 a.m.) beginning January 28. Harry Siebold was standing 

watch when he took over. The belt continued running during 

Perani's shift with water spraying on the subject bearing. 

Perani observed however that the bearing was generating heat 

and would occasionally make "loud screaming noises." In 

addition according to Perani the bearing would not hold 

grease. Perani testified that no one relieved him at the end 

of the shift.~/ 

Gen~ral Inside Laborer Clyde King testifed that his 

Foreman, Gene Barno, told him to watch the subject bearing on 

midnight shift of January 29. King was told to leave the 

water running over the bearing and was told that he would be 

el at quitting time" King relieved someone else 

2/ Perani was confused at hearing as to which particular 

ihift or shifts he stood watch over the subject bearing and 

was unclear whether he first stood watch on midnight of 

January 27 or midnight January 28. According to the 

testimony of Anthony Shiner was Harry Siebold who took 

over his watch on the bearing at around 10:30 p.m. the 

evening of January 270 Although Siebold did not testify in 

these proceedings it appears that Siebold took over the watch 

from Shiner at about 10:30 on the evening of January 28, (see 

footnote 1) and Perani then took over from Siebold at around 

11:00 p.m. the same night. Indeed Perani recalls that he did 

relieve Siebold on January 280 Perani's testimony at hearing 

concerning "loud screaming noises" emanating from the bearing 

is also in contrast to his statement to Inspector Conrad that 

he heard "squeeking" noises. 

241 
(apparently Perani) who had been standing watch. According to 

tnspector Conrad, King stated in an interview on February 12, 

1986, that he had been assigned at 6:00 a.m. on January 29, to 

relieve the person then standing watch and remained to the end 

of his shift at 7:45 a.m. In light of this statement to Conrad 

given closer to the time of the event I find this version of 

events to be the more credible. King testified without contradiction however that when he left his assigned position at the 

end of his shift no one relieved him. It is therefore undisputed 

that the suspect roller was thus left unattended while the belt 

continued to operate. 

King also observed that the maintenance foreman examined 

the suspect bearing during his shift and admitted that it was 

"bad" and would have to be replaced. King observed that when 

the water spray was removed the bearing would get hot and 

sparks would appear. So long as the water spray was maintained however there were no sparks and nothing was "abnormal." 

Mine Manager Weir acknowledged to Inspector Conrad on 

February 12, 1986, that the bearings had subsequently been 

removed and were found to be scarred and flat. Conrad 

opined, based on that statement, that the bearings had been 

running in a hazardous condition. Conrad considered the 

violation to be "significant and substantial" in that he felt 

that fire and smoke could have been generated by the defective bearings thereby creating carbon dioxide, fire and smoke 

inhalation problems. Indeed Conrad opined that if the 

bearing began smoking heavily it would be reasonably likely 

to overcome the miner standing watch before he could stop the 

smoke. He opined that it was also reasonably likely for the 

smoke to be taken inby to miners working at the longwall 

face. 

Conrad also believed that fire was reasonably likely 

even though the hose was spraying on the bearing if there was 

coal spillage up to the level of the bearing. In addition 

during the time that the bearing was left unattended he felt 

that a rock could displace the water flow thereby creating 

the noted hazardous conditions. Conrad also observed that 

bearings operating in the noted condition could disintegrate 

at any time causing the tail roller to come loose with hot 

metal splattering all over. Conrad found the operator's 

negligence to be moderate because he felt that the operator 

knew of the violative condition but tried to remedy the 

violation by stationing an observer and hosing-down the 

defective bearing. 

Underground mine superintendent Mark Skiles arned of 

the problem bearing through a phone call from his shift clerk 

around 9:30 p.m. on January 28. According to Skiles, failed 

bearings are not unusμal and it is standard procedure to cool 

them down and pump them full of grease until they can be 

242 
replaced. He acknowledged that if the bearing was running 

hot it could ignite loose combustible material or coal dust 

if it was in contact. It was his understanding however that 

in this case the bearing was not in contact with any flammables and indeed the tail piece was located in a puddle of 

water. Skiles acknowledged that his opinion concerning the 

nonhazardous nature of the problem bearing was based on his 

assumption that someone was always in attendance to watch the 

roller and shut down the belt line. 

When Skiles arrived at the mine at 8:00 a.m. on 

January 29, he was told that the roller was "running cool but 

failing." He then directed that the bearing be changed and 

it was in fact changed sometime between 10:00 a.m. and 

2:00 p.m. on that day. Skiles did not immediately replace 

the bearing but wanted to keep the belt running until the 

maintenance shift scheduled for the coming weekend. The 

bearing was changed earlier because "everything was in place" 

and it was "obvious that we were not going to make it to the 

weekend." 

Assistant Maintenance Foreman Jerry Seaton learned of 

the problem bearing around 4:00 p.m. on January 28, 1986. He 

and Carpenter pumped it full of grease and Shiner was directed 

to stay in the area and apply grease every 20 minutes. A 3/4 

inch hose was also set to spray water on it. According to 

Seaton the area surrounding the subject bearing was damp and 

well rock dusted. There were additional bags of rock dust 

within 20 to 30 feet and a "pager" within 30 feet. There were 

no "squeeking noises" or sparks emanating from the bearing 

and Seaton found the condition not to be unsafe. 

Afternoon Mine Foreman Charles Grim became aware of the 

subject bearing between 3:00 and 3:30 p.m. on January 28. 

Grim also thought that the condition was not unsafe because 

someone was in attendance to shut the belt down if necessary, 

to keep it greased, and to maintain a cooling water spray. 

He also observed that the area was wet and rock dusted. 

Ronald Stull, the afternoon shift Belt Foreman, assigned 

Harry Siebold to replace Shiner at the end of his shift on 

January 28. Stull acknowledged that if the bearing had been 11 sparking 11 he would have shut the belt down because it would 

have been a fire hazard. He did not recall that anyone told 

him about sparks coming out of the bearing. 

Eugene Barno the third shift Mine Foreman, was told that 

grease was being pumped into the subject bearing every 20 

minutes, that it was holding grease, and that it was being 

cooled down with water. He visited the problem bearing 

during his shift when he brought Perani to take over the 

watch. Barno touched the bearing and found it to be "room 

temperature." It was also then holding grease. He 

243 
instructed Perani to shut the belt down if it became hot. 

Perani was still watching the bearing when Barno returned 

around 6:00 a.m. bringing his relief-man Clyde King. Perani 

told him there had been no problems. Barno testified that 

the belt continued to run when he left his shift at 8:00 a.m. 

and he did not know who shut down the belt thereafter or who 

relieved Clyde King to watch the bearing on the next shift. 

Within the above framework of evidence it is clear that 

the tail roller on the cited belt was not being "maintained 

in safe operating condition" as required by the cited 

standard. Based on the undisputed evidence alone it is clear 

that the bearings on both sides of the tail roller shaft were 

being operated for some period of time while scarred and 

flattened. Even Superintendant Mark Skiles acknowledged that 

the bearing had already "failed" by the time he received the 

phone call on Janaury 28. Skiles observed that when the 

shaft starts to wobble with a defective bearing on one side, 

the bearings on the other side are also ruined. Skiles 

further observed that if the shaft starts to wobble because 

of bad bearings the entire tail piece could be torn up. This 

is consistent with the testimony of Inspector Conrad that if 

the roller continues to operate with defective bearings it 

could suddenly disintigrate and splatter hot metal all over. 

This condition clearly presented a serious hazard to the 

miners standing watch over the defective bearing and who were 

required to grease that bearing every 20 minutes while the 

belt was in operation. Under the circumstances there is 

sufficient evidence from which it may be concluded that it 

was "reasonably likely" for the tail piece to "disintegrate" 

and seriously injure the watchman with flying hot metal. 

Accordingly there was a 11 signif icant and substantial" and 

serious violation of the cited standard. Secretary v. 

Mathies Coal Co., 6 FMSHRC 1 (1984). In addition there was 

at least one period of time (following Clyde King's watch) 

during which no one was keeping watch over the subject 

bearing. Thus the hazard from fire and smoke described by 

Inspector Conrad was reasonably likely without the availability of someone to signal an alarm and/or remedy the hazard. 

For this additional reason I find the violation to be "significant and substantial" and serious. Mathies, supra. 

The fact that the mine operator kept the area around the 

subject bearing clean, wet and rock dusted, and that it maintained partial watch over the subject bearing may be considered in mitigation of negligence. In assessing a penalty 

herein I.have also considered that the operator is large in 

sizef has a substantial history of prior violations, and 

abated the condition even before it was cited by MSHA or was 

the subject of the "103(g)" complaint. Under the circumstances a civil penalty of $200 is warranted • . 

244 
ORDER 

Citation No. 2678490 with its "significant and substantial" findings is hereby affirmed. The Contest Proceeding is 

dismissed and U.S. Steel Mining Company Inc. is directed to 

pay a civil penalty of $200 within 30 days the date of 

this decision. 

Distribution: 

Susan M: Jordan, Esq., Office of the Solicitor,, U.S. Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Billy M. Tennant, Esq., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail) 

rbg 

245 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 4 1987 

DAN L. THOMPSON, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. WEST 85-77-DM 

MSHA case No. MD 82-27 

GILBERT INDUSTRIAL, 

Respondent Cyprus Thompson Creek Project 

ORDER OF DISMISSAL 

The Complainant, Dan L. Thompson, requests approval to 

withdraw his Complaint in the captioned case on the grounds 

that a mutually agreeable settlement of the underlying controversy has been reached. Under the circumstances herein, 

permission to withdraw is granted. 29 C.F.R. § 2700.11. The 

case is therefore dismissed. At the request of the parties 

the specific terms of the settlement agreeme~t are hereby 

sealed subject to review only by .order of th· Commission, a 

Commission judge, or Court having jurisdictio • 

Distribution: 

W. Craig James, Esq., 

Sixth Streetu P.O. Box 

Mail) 

\___,) 

L ~'\/'-~ / . Gary Meli 1

k / ""------,..--~ .Administrrive Law 'udge ·-. 

Skinner, Fawce'tt & Mauk, 515 South 

700, Boise, Idaho 83701 (Certified 

Ronald F. Sysak, Esq., Prince, Yeates & Geldzahler, Third 

Floor Mony Plaza, 424 East 500 South, Salt Lake City, Utah 

84111 (Certified Mail) 

rbg 

246 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

FEB 5 

MOUNTAINEER COAL COMPANY, 

Respondent 

1987 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-202 

A.C. No. 1 15192-03501 

No. 1 Mine 

DECISION 

Before: Judge Fauver 

On January 14, 1986, because of Respondent's failure to 

comply with a prehearing order, a show cause order was issued 

allowing Respondent until February 3, 1987, to explain, in 

writing, why (1) it should not be deemed to have waived its 

right to a , and (2) Secretary's proposed penalties 

should not become the final order of the Commission. 

Respondent has failed to file a response to the show 

cause order, and is hereby deemed to have waived its right 

to a hearing. The proposed 1 penalties shall therefore 

be made the f order of the Commission. 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

Secretary's sed civil ties in the amount of $624.00 

within 30 of this decis 

oistribut 

lJjj,,_.~ William ~~~ Fauver 

Administrative Law Judge 

7herese Ball, ., Off of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, Nashville, TN 37203 (Certi 

Mail) 

Wayne Davidson, General , Mountaineer Coal Company, 

Route 2, Box 60, Manchester, KY 40972 (Cer fied Mail) 

kg 

247 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 5 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), Docket No. PENN 86-164 

Petitioner A.C. No. 36-02667-03525 

v. 

BENJAMIN COAL COMPANY, 

Respondent 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

Before: Judge Melick 

Benjamin No. 1 Strip Mine 

DECISION 

This case is before me upon .... the petition for civil 

penalty filed by the Secretary of Labor pursuant to§ 105(d) 

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

§ 801 et~, the "Mine Act", for one violation of the regulatory-Standard at 30 C.F.R. § 40.4. The general issue before 

me is whether Benjamin Coal Company (Benjamin) violated the 

cited standard and, if so, the appropriate civil penalty to 

be assessed in accordance with§ llOCi) the Mine Act. 

The citation at bar, No. 2404451, as amended, alleges as 

follows: 

The operator failed to post a copy of the information provided the operator pursuant to 40.3 

Code of Federal Regulations. This part [sic] s 

be posted upon receipt by the operator on the ne 

bulletin board and maintained in a current status. 

A certified form letter authorizing the UMWA to act 

as reoresentatives for several employees, was 

recei;ed by the operator on 10-23-85. 

The cited standard, 30 C.F.R. § 40.4, requires that "a 

copy of the information provided the operator pursuant to 

§ 40.3 of this Part shall be posted upon receipt by the 

248 
operator on the mine bulletin board and maintained in a 

current status. 11 ~/ 

The parties in this case agreed to waive hearings and to 

submit the matter on a stipulation of facts. According to 

the stipulation Benjamin owns and operates the No. 6 Preparation Plant located in Clearfield County, Pennsylvania. The 

plant employs approximately 35 miners and processes coal from 

various strip mines operated by Benjamin. On October 21, 

1985, four miners who worked at the No. 6 Preparation Plant 

designated the United Mine Workers of America (UMWA) to be a 

miner's representative at the plant. This written 

designation was filed with the Federal Mine Safety and Health 

!I The standard at 30 C.F.R. § 40.3 provides as follows: 

(a) The following information shall be filed by a 

representative of miners with the appropriate District 

Manager, with copies to the operators of the affected 

mines. This information shall be kept current: 

Cl) The name, address, and telephone number of the 

representative of miners. If the representative is 

an organization, the name, address, and telephone 

number of the organization a~d the title of the 

official or position, who is to serve as the representative and his or her telephone number. 

(2) The name and address of the operator of the 

mine where the represented miners work and the name 

and a·aaress, and Mine Safety and Heal th Administration identification number, if known, of the mine. 

(3) ~ copy of the document evidencing the designation of the representative of miners. 

(4) A statement that the person or position named 

as the representative of miners is the representative 

for all purposes of the Act; or if the representative's authority is limited, a statement of the 

limitation. 

(5) The names, addresses, and telephone numbers, of 

any representat to serve in his absence. 

(6) A statement that copies of all information 

filed pursuant to this section have been delivered to 

the operator of the fected mine, prior to or concurrently with the filing of this statement. 

(7} A statement certifying that all information 

filed is true and correct followed by the signature 

of the representative of miners. 

(b) The representative of miners shall be responsible for ensuring that the appropriate District 

Manager and operator have received all of the information required by this part and informing such District 

Manager and operator of any subsequent changes in the 

information. 

249 
Administration's (MSHA's) Manager of District 2 and a copy 

was sent to Benjamin in accordance with 30 C.F.R. § 40.2(a) 

and §40.3(b). The designation specifically listed Barry 

Mylan and Lester Poorman as the UMWA representatives. Mylan 

and Poorman are employees of the UMWA as Health and Safety 

Representatives but neither is employed by Benjamin. 

There is no dispute that Benjamin has never posted on 

the mine bulletin board the information it received under 30 

C.F.R. § 40.3 designating the UMWA as a miners' representative at the No. 6 Preparation Plant. Accordingly, on 

November 7, 1985, an MSHA inspector cited Benjamin for a 

violation of 30 C.F.R. § 40.4. Since Benjamin continued in 

its refusal to post the requisite information a section 

104(b) "failure to abate" order was issued on December 16, 

1985. 

In defense, Benjamin first argues that the UMWA cannot 

be a representative of miners at the plant because the UMWA 

did not receive a majority of the votes in a March 14, 1984 

election conducted under the National Labor Relations Act 

(NLRA) for selection of an exclusive collective bargaining 

agent. The statutory authority for representatives of miners 

in the context of this case is not however the NLRA but the 

Mine Act. Accordingly, the UMWAis status as exclusive 

collective bargaining agent under the NLRA is irrelevant to 

its status as a representative of miners under the Mine Act. 

The Mine Act makes several references to miners' representatives for a variety of purposes under the Act. One of 

the major functions of a miners' representative is set forth 

in section 103(f) of the Mine Act: 

Subject to regulations issued by the Secretary, .•. a representative authorized by [the 

operator's] miners shall be given an opportunity to 

accompany the Secretary or his authorized representative during the physical inspection of any 

coal or other mine made pursuant to the provisions 

of subsection (a), for the purpose of aiding such 

inspection and to participate in pre- or postinspection conferences held at the mine .••• 

The term "representative of miners" is not defined in the Act. 

Under regulations issued by the Secretary, however, the 

"representative of miners" means: "[a]ny person or organization which represents two or more miners at a coal or other 

mine for purposes of the Act •... " 30 C.F.R. § 40.l(b). 

This definition of "representative of miners" is "a reasoned 

and supportable interpretation of the Act." United Mine 

Workers v. FMSHRC, 671 F.2d 615, 626 (D.C. Cir. 1982). See 

also Magma Copper Co. v. Secretary of Labor, 645 F.2d 694, 

696 (9th Cir. 1981). Accordingly the UMWA, designated by 

250 
four miners at the No. 6 Preparation Plagt, may be a "representative of miners" within the meaning of 30 C.F.R. § 

40.l(b) of the Mine Act, and the fact that it may lack 

certification as the exclusive collective bargaining agent 

under the NLRA is not at all relevant. 

It is also significant that in the preamble to Part 40 

of the Secretary's regulations the Secretary unequivocably 

rejected the NLRA definition: 

[Some] commenters suggested that the National Labor 

Relations Board (NLRB) definition of representative 

be applied while others suggested that the representatives should be elected by a majority •••• 

[T]he NLRB definition is inappropriate because the 

NLRB definition of "Representative" concerns itself 

with a representative in the context of collective 

bargaining. The meaning of the word representative 

under this act is completely different. Additionally the rights of nonunion miners would be 

severely limited by a definition of "Representative 

of Miners" based on the collective bargaining 

concept. Furthermore, the "majority rule" concept 

is a fundamental component~of the NLRB definition 

of representative, which contemplates only one 

union miner representative at each mine. The 

purposes of the Mine Act are better served by 

allowing multiple representative to be designated. 

Th~s insures that all miners have the opportunity 

to exercise their right to select the representative of their choice for the purpose of performing 

the various functions of a representative of miners 

under the act and within the framework of each 

provision •• 

43 Fed. Reg. 29508 (July 7, 1978). 

Benjamin next argues that the UMWA and its Safety and 

Health Representatives, Barry Mylan and Lester Poorman, 

cannot be representatives of miners under the Mine Act 

because they are not employees of Benjamin. As the UMWA 

points out in its brief however, one of the most important 

functions of a miners' representative under the Mine Act is 

the inspection walkaround right under Section 103Cf). That 

section provides in part that "such representative of miners 

who is also an employee of the opertor shall suffer no loss 

of pay during the period of his participation in the inspection made under this subsection." (Emphasis added.) It is 

apparent that if all miners' representatives were required to 

be employees of the operator, the noted language would be 

meaningless surplusage. Clearly, Congress intended that 

non-employees, as well as employees, could be designated as 

251 
representatives of miners. See Secretary of Labor on behalf 

of Mylan and Poorman v. Benjamin Coal Co., and UMWA, Docket 

No. PENN 86-125-D, (Judge Koutras, January 8, 1987)~ Consolidation Coal Co., v. UMWA, 2 FMSHRC 1403, 1408 (Judge 

Broderick, 1980)~ andEmery Mining Corp. v. Secretary of 

Labor, 8 FMSHRC 1182, 1202 (Judge Morris, 1986) (review 

pending). Indeed allowing nonemployees to serve as miners' 

representatives furthers the purposes of the Mine Act by 

allowing participation in mine inspections by those specially 

trained and skilled in mine safety and health matters. 

In this case Benjamin concedes that the UMWA was 

designated by "two or more miners" as a representative of 

miners at its No. 6 Preparation Plant, and that it was so 

notified pursuant to 30 C.F.R. § 40.3. Under 30 C.F.R. § 

40.4 Benjamin was required to post on the mine bulletin board 

the information it thus received concerning the identity of 

the representative of its miners under the Mine Act. 

Benjamin concedes that it has not posted that information and 

accordingly the violation is proven as charged. 

In determining an appropriate civil penalty in this case 

I note that Benjamin continued to refuse to post on the mine 

bulletin board a copy of tRe requisite information pertaining 

to the representative of miners even after being cited. 

Accordingly an order under § 104(b) of the Act was issued for 

failure to abate the violative condition. However inasmuch 

as the operator's position in this case has an arguable basis 

in law and it appears that its refusal to comply with the 

citation and 104Cb) order was founded in its effort to obtain 

a ruling of law concerning at least in part an issue of first 

impression I do not attribute high negligence or give significant consideration to the failure to abate under the 

circumstances; 

In addition I find it difficult, based on the limited 

stipulations of fact before me, to properly evaluate the 

gravity of the violation. It is not known for example 

whether the designated representatives of miners were 

actually denied entry to the mine or whether there was merely 

a failure to post the requisite notice. Thus it cannot be 

determined from these facts whether the failure to post the 

required information, the specific violation charged herein, 

was in itself of high gravity. In assessing the penalty 

herein I have also considered the history o violations and 

the size of the operator's business. Within this frame ork I 

find that a civil penalty of $50l~/appropri te. 

l~ lL 

Gary.Meltc 

Administ a ive Law 

252 
Distribution: 

Mark v. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Vasilis C. Katsafanas, Esq., Berkman, Ruslander, Pohl, Lieber 

& Engel, 40th Floor, One Oxford Centre, Pittsburgh, PA 

15219-6498 (Certified Mail) 

Michael H. Holland, Esq., and Mary Lu Jordan, Esq., UMWA, 900 

15th Street, N.W., Washington, D.C. 20005 (Certified Mail) 

Dennis D. Clark, UMWA, 1615 L Street, N.W., #1360, 

Washington, D.C. 20036 (Certified Mail) 

rbg 

253 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 6 1987 

GERALD C. BRUNTON, DISCRIMINATION PROCEEDING 

Complainant 

v. 

SHAWNEE COAL COMPANY, 

Respondent 

Docket No. LAKE 86-109-D 

DECISION 

Appearances: Gerald C. Brunton, Shawnee, Ohio, pro se; 

Thomas F. Sands, Esq., McClelland, Mccann and 

Ransbottom, Zanesville, Ohio, For Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discharged from his job as 

a welder with Respondent for activity protected under the Act. 

Pursuant to notice, the case was heard in Columbus, Ohio on 

January 15v 1986. Gerald C. Brunston testified on his own behalf. 

James N. Denny testified for Respondent. The parties waived 

their right to file post hearing briefs. Based on the entire 

record and considering the contentions of the parties, I make the 

following decision. 

FINDINGS OF FACT 

Respondent was the owner and operator of a surface coal mine 

near Zanesville, Ohio. Complainant began working for Respondent 

on November 11, 1984 as a laborer on the coal tipple. After 

about one and one-half months, he became a welder. He was paid 

$7.00 an hour plus $140 a month for the use of his truck and 

welding machine. He worked on the average of 50 hours per week 

and was paid time and one-half over 40 hours. Complainant had 

studied welding for 2 years at the Tri-County Vocational school. 

James Denny was Complaiant's foreman during all the time he 

worked at Respondent. 

Complainant testified that he was reprimanded ("yelled at") 

by his foreman about once every week and was sent home on one 

occasion as a disciplinary measure. Denny testified that 

254 
Complainant was unable to do "hang" or "vertical" welding, but 

could only weld flat. He stated that he reprimanded Complainant 

for failure to service the radiator on a scraper in 

December 1985, resulting in substantial damage to the scraper. 

In November 1985, a State inspector "red tagged" a piece of 

equipment for inadequate brakes after Complainant told the 

inspector to check the loader because it had no brakes. It was 

repaired within 3 or 4 days. Complainant testified that he was 

required on a couple of occasions to work under an unsafe 

highwall. Denny denies that allegation. 

On April 17, 1986, Denny told Complainant and fellow worker 

Joe Humphrey to get haircuts. Denny stated that Complainant's 

hair stuck out on both sides of his hard hat and Denny was afraid 

that a spark from the welder could ignite it. Complainant stated 

that he had a haircut on April 14, 1986 and his hair was of 

moderate length and not a safety hazard. On the following 

Monday, April 21, Complainant was asked if he had gotten a _ 

haircut, and when he said no, was told to go home until he got it 

cut. Complainant did not return. He aplied for and received 

State unemployment compensation. Joe Humphrey did get a haircut, 

and continued working. 

Complainant has sought emplo'yment at various places since 

leaving Respondent, but has not found any slgnif icant work to 

the of the hearing. 

Whether Complainant was discharged or otherwise 

discriminated against because of activity protected under the 

Mine Safety Act? 

IONS OF 

Complainant and Respondent are subject to and protected by 

section 105(c) of the Act, the former as a miner, the latter as 

an operator. I have jurisdiction over the parties and subject 

matter of this proceeding. 

To establish a prima facie case of discrimination under the 

Act, Complainant must show that he was engaged in activity 

protected by the Act, and that his discharge was motivated in any 

part by the protected activity. secretary/Pasula v. 

Consolidation Coal Company, 2 FMSHRC 2786 (1980), rev'd on other 

grounds sub. norn Consolidation Coal Company v. Marshall, 663 

F.2d 1211 (3 r. 1981). 

Complainant's refusal to get his hair cut is not activity 

protected under the Act. It is not related to safety complaints 

255 
or safe working conditions except insofar as it may itself (as 

Respondent contends) be a safety hazard. Complainant testified 

that there was equipment with safety defects on the premises, and 

that he was told to work under unsafe conditions. He did not 

state that he refused to work or complained of these conditions. 

I conclude that Complainant has failed to establish that he 

engaged in activity protected under the Act. 

Complainant was told not to return to work until he got his 

hair cut. Respondent denies that he was fired. It is clear that 

his job was terminated however, and I conclude that this was 

adverse action. The reason for his termination was, everyone 

agrees, his refusal to get his hair cut. Since I have concluded 

that this was not protected activity under the Act, I must also 

conclude that his employment was not terminated for protected 

activity. 

If Complainant had established that he was terminated in 

part because of protected activity, I would nevertheless conclude 

that Respondent was motivated by unprotected activities and would 

have taken the adverse action for the unprotected activities 

alone, i.e., Complainant's refusal to follow an order which 

Respondent believed was a safety ~azard. Pasula, supra. 

Therefore, I conclude that Complainant has not established that 

Respondent discharged or otherwise discriminated against him in 

violation of section 105(c) of the Act. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED that the Complaint and this proceeding are 

DISMISSED. 

Distribution~ 

UL-~s .,,,f /Jn:;clc.,,.,ieR 

James A. Broderick 

Administrative Law Judge 

Gerald C. Brunton, Route 1, Shawnee, OH 43782 (Certified Mail) 

Thomas F. Sands, ., Graham, McClelland, McCann & Ransbottom 

Co", L.P.A., 400 1st Nat 1 l Bank Bldg., Box 669, Zanesville, OH 

43702-0669 (Certified Mail) 

slk 

256 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 6 t987 

SECRETARY OF LABOR, 

MINE SAFE'rY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MICHAEL BRUNSON, 

Respondent 

DECISION 

CIVIL PENAI,TY PROCEEDING 

Docket No. SE 86-40-M 

A.C. No. 01-02340-05504-A 

Pit No. 4 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; Michael Brunson, Saraland, Alabama, 

pro 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Petitioner (the Secretary) seeks a civil penalty from 

Respondent under section llO(c) of the Federal Mine Safety and 

Health Act (the Act). The Petitioner charges that Respondent 1 

acting as an agent of the corporate mine operator, knowingly 

authorized, ordered or carried out a violation by the operator of 

the mandatory safety standard contained in 30 C.F.R. § 56.9003. 

Respondent denied authorizing, ordering or carrying out the 

violation. Pursuant to notice 1 the case was heard on January 13 8 

1987 in Mobile, Alabama. Charles Bates, Charles Gwin and Robert 

Lee Evert testified on behalf of the Secretary. Respondent 

testified on his own behalf. Both parties waived their rights to 

file posthearing briefs. Based on the entire record and 

considering the contentions of the parties, I make the following 

decision. 

FINDINGS OF FACT 

The Brunson Construction Company, Inc., a corporation, 

produces sand and gravel, and, as of January 1985, operated two 

sand and gravel pits in the State of Alabama, including Pit No. 4 

in Clarke County, Alabama. Its products were sold within the 

State, but much of its equipment was manufactured out of the 

257 
State. The company began its business in 1947. In January 1985, 

there were two employees working at the No. 4 Pit. 

Respondent Michael Brunson was the Vice President of Brunson 

Construction Company, Inc. He did not regularly visit the sand 

and gravel pits, but spent most of his time in the company office 

in Saraland, Alabama. He is shown in MSHA records as the person 

in charge of health and safety for the company. 

On January 23, 1985, a combined 107(a) order-104(a) citation 

was issued to the Brunson Construction Company by Federal Mine 

InspeGtor Charlie Bates. The order/citation charged that a 

caterpillar front end loader was being operated in the No. 4 pit 

without any brakes. The citation charged a violation of 30 

C.F.R. § 56.9003. This standard requires that powered mobile 

equipment be provided with adequate brakes. The left front wheel 

brake booster was leaking, and there was a leak in the air line 

from the compressor. The brakes would not stop the vehicle on an 

incline. 

The operator of the loader, Charles Gwin, who testified 

under subpoena, stated that he knew of the leak in the booster 

brakes, and that he had reported this to the company mechanic and 

to W.D. Brunson, the company president. His testimony concerning 

when he reported the brake problem to Respondent Michael Brunson 

was contradictory, but he finally stated that he told Micha 

Brunson about one week before the order was issued that the 

brakes were going bad. Respondent told him if the brakes were 

bad to shut down the machine. Gwin replied that the brakes had a 

leak but were holding. Brunson testified that he did not recall 

being told this by Gwin. I find as a fact that Gwin orally told 

Respondent about a week before the order that the brakes on the 

loader were defective. Respondent took no action to have the 

brak2s repaired until after the order was issued. 

The order/citation was terminated on February 11, 1985 after 

the brakes on the loader were repaired and found to be in good 

operating condition. MSHA proposed an assessment of $500 against 

Brunson Construction Company for violation, and the 

assessment was paid by e company. The history of the company's 

prior violations shows that 5 violations were asessed and paid in 

the previous 24 months, including 2 violations of 30 C.F.R. 

§ 56.9003. No previous viol~tions under section llO(c) of th8 

Act were issued to Respondent. 

ISSUE 

Does the evidence show that Respondent knowingly permitted 

the operation of powered mobile equipment without adequate 

brakes? 

258 
CONCLUSIONS OF LAW 

Brunson Construction Company, a corporation, was the 

operator of a mine as those terms are used in section llO(c) of 

the Act. Respondent, the Vice President of Brunson Construction 

Company, was an officer and agent of the.corporation. erunson 

Construction Company violated 30 C.F.R. § 56.9003 in operating a 

front end loader without having adequate brakes. The foregoing 

conclusions are undisputed. The crucial issue is whether 

Respondent knowingly permitted the violation. 

In the case of Secretary v. Richardson, 3 FMSHRC 8 (1981), 

the Commission held (in a case under section 109(c) of the 1969 

Coal Act which is substantially indentical to section llO(c) of 

the Mine Act) that the term knowingly means knowing or having 

reason to know. It does not imply willfulness, bad faith or evil 

purpose. I have accepted as factual the testimony of Charles 

Gwin that he told Respondent about a week before the order, that 

the brakes on the loader were going bad. I therefore conclude · that Respondent knew or had reason to know that the brakes were 

not adequate. Therefore, I further conclude that he knowingly 

permitted the violation of 30 C.F.R. ·§ 56.9003. The violation 

was serious. Defective brakes orl mobile equipment are the 

largest single cause of fatalities and serious accidents in the 

sand and gravel industry. I conclude that an appropriate penalty 

for the violation is $300. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED that Respondent shall, within 30 days of the date 

of this decision, pay to MSHA the sum of $300 for the violation 

of section llO(c) of the Act found herein. 

A,/,,? /.. • /) ~5 ,kFJ k-PC.·'k:'I t f{ 

James A. Broderick 1 Administrative Law Judge 

259 
Distribution: 

J. Philip Smith, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Michael Brunson, P.O. Box 336, Saraland, AL 36571 (Certified 

Mail) 

slk 

260 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

NICHOLAS RAMIREZ, 

Complainant 

v. 

W-P COAL COMPANY, 

Respondent 

FEB 6 

. . 

1987 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 86-430-D 

MSHA Case No. HOPE CD 86-09 

No. 21 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

The parties have moved for approval of a settlement 

agreement, and an order directing compliance with the 

settlement agreement and dismissing this case. 

FOR GOOD CAUSE SHOWN, the motion is GRANTED. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The parties will fully comply with the terms of the 

Settlement Agreement filed herein on January 30, 1987. 

2. Any party to this proceeding may move to reopen this 

case for hearing and determination upon a complaint by such 

party alleging that, within 90 days of such complaint, the 

other party violated the terms of the Settlement Agreement 

herein and for an order granting appropriate relief. 

3. Based upon the foregoing, this proceeding is 

DISMISSED. 

~~ William Fauver 

Administrative Law Judge 

Distribution: 

Ronald E. Gurka, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

261 
Harold s. Albertson, Jr., Esq., Albertson & Jones, P.O. Box 

1989, Charleston, WV 25327 (Certified Mail) 

kg 

262 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 9 1987 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'rRA'rION (MSHA} I Docket No. SE 86-69-D 

ON BEHALF OF ANDY BRACKNER, 

Complainant BARB CD 85-41 

v. No. 7 Mine 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION 

Appearances: William Lawson, Esq., Office of the Solicitor, U.S. 

Department of Labor, Birmingham, Alabama, for 

Complainant; R. Stanley ~arrow, Esq., and Harold D. 

Rice, Esq., Birmingham, Alabama, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discriminated against in 

that he was transferred on March 22, 1985 to a less favorable job 

because of activities protected under the Federal Mine Safety and 

Health Act of 1977 (the Act). Respondent denied that it 

discriminated against Com~lainant. Both parties had pretrial 

discovery. Respondent moved to compel the production of certain 

documents. I denied the motion by an order issued August 5, 1986. 

Pursuant to notice, the case was heard in Birmingham, Alabama, on 

October 23, 1986. Anthony Brackner, Russ 1 weekly, Daryl 

Dewberry, and William Dykes testified on behalf of Complainant. 

Respondent did not call any witnesses. Both parties have filed 

post hearing briefs. Based on the entire record, and considering 

the contentions of the parties, I make this decision. 

FINDINGS OF FACT 

At all times pertinent to this decision, Respondent was the 

owner and operator of an underground coal mine in Tuscaloosa 

County, Alabama, known as the No. 7 Mine. Complainant Brackner 

was employed as a miner. He began working for Respondent in 1982 

as an electrician, and worked primarily on continuous miner 

263 
sections. In January 1985, he was assigned to work as an 

electrician on the Number 1 Longwall to prepare him to work on 

the Number 2 Longwall which was being opened up. The longwall 

sections operate twenty four hours per day, 7 days a week, with 

shifts "swapping out at the face." The continuous miner sections 

operate 16 hours per day, 5 days a week, and the shifts change 

outside. For these reasons, overtime work is always available to 

miners working on the longwall, and rarely available to miners 

working on continuous miner sections. 

on March 19, 1985, a methane ignition occurred on the 

Longwall Number 1 Section. No injury or property damage resulted. 

After the ignition was contained and extinguished, Complainant 

asked the section foreman whether he was going to report it to 

MSHA. 30 C.F.R. § 50.10 requires that an unplanned ignition be 

immediately reported to MSHA. The section foreman replied that 

he was not going to report it. On the following day, Complainant 

told the UMWA Safety Committeeman about the ignition, and he 

reported it to MSHA. On March 22, 1985, MSHA conducted an 

investigation and issued two citations, one for failure to report 

the ignition, the other for failing to shut down the section to 

prevent the destructio~ of evidence. In the course of the 

investigation, Complainant was i~erviewed by MSHA inspectors at 

the beginning of his shift on March 22. When he left the 

interview, he was told by foreman Hugh Bonham to report to the 

Number 8 continuous miner section. Complainant asked why he was 

being transferred from the longwall, and Bonham replied that he 

was told to transfer him. Four or five days later, Complainant 

asked the Number 1 longwall maintenance foreman Eugene Foster why 

he was taken from the longwall, and was told that the order came 

from higher up. The next day Complainant asked James Kelly, 

maintenance supervisor over all the longwalls, about the transfer. 

Kelly said he knew nothing about it. When Complainant told 

Foster about Kelly's response, Foster shrugged his shoulders. A 

few days after Complainant's transfer, he was replaced on the 

longwall section by an electriciaD with less seniority than 

Complainant. The workload on the longwall section increased 

after Complainant's transfer. 

Complainant worked on the continuous miner section from 

March 22, 1985 through May 19, 1985. He worked overtime only 

twice for a total of 2-1/4 hours. During the same period, the 

electricians who remained on the longwall worked 48, 46 and 

50-1/2 hours of overtime during the week. For the seven weeks 

prior to his transfer, Complainant worked 67.25 weekend hours 

hours compared to 50 and 38 for the other electricians on the 

section. From March 22 through May 19, Complainant worked 48 

hours of weekend overtime and 17 hours of doubletime. The three 

other electricians worked the following weekend overtime and 

264 
doubletime hours: Seagle 530T and 19DT; Weekly 39 OT, 2-1/2 DT; 

Canon 47-1/2 OT, 12 DT. 

on March 25, 1985, the electricians on the longwall section 

filed a grievance to have their classification changed from 

electrician to longwall mechanic. The grievance was settled 

May 13, 1985 by the reclassification of the electricians to 

longwall mechanics. On May 20, 1985 Complainant was awarded the 

job of longwall mechanic on the number 2 Longwall section by 

exercising his bid rights under the contract. (When they were 

classified as electricians, Respondent could transfer them to and 

from the continuous miner sections.) Complainant did not 

participate in the grievance and apparently had no right to 

participate since he was then working on the continuous miner 

section. 

Under the terms of the National Bituminous Coal Wage 

.Agreement of 1984, a miner may be awarded a job by bid only twice 

during the life of the contract, if the job carries the same or 

lower wage rate than the job he. currently has. The job of 

electrici?n carries the same wage rate as that of longwall 

mechanic. Complainant's hourly rate of pay is $14.415; his 

overtime hourly rate (time and one half) is $21.6225 and his 

doubletime rate is $28.83. 

ISSUES 

1. Is Complainant's claim barred by time limitations? 

2. Was complainant transferred on March 22, 1985 because of 

activity protected under the Act? 

3. Was the transfer adverse action? 

4. If Complainant was discriminated against, to what 

remedies is he entitled? 

5. If Complainant was discriminated against, what is the 

appropriate penalty? 

CONCLUSIONS OF LAW 

JURISDICTION 

Complainant Andy Brackner and Respondent are protected by 

and subject to the provisions of the Act, Complainant as a miner, 

and Respondent as the operator of the subject mine. I have 

jurisdiction over the parties and subject matter of this 

proceeding. 

265 
TIME LIMITATIONS 

At the outset of the hearing, Respondent moved to dismiss on 

the ground that the claim was time-barred. The alleged 

discrimination occurred on March 22, 1985. Complainant signed 

his complaint to MSHA on May 21, 1985. (The form indicates that 

it was filed on May 22, 1985). MSHA conducted an investigation 

which included interviews with prospective witnesses. MSHA 

notified Complainant on April 22, 1986 that in its opinion a 

violation occurred. The complaint was filed with the Review 

Commission on April 28, 1986. 

Section 105(c)(2) of the Act provides that a miner who 

believes that he has been discriminated against may, within 60 

days after such violation occurs, file a complaint with the 

Secretary. The complaint here was filed 61 days after the 

alleged discrimination. Complainant testified that he contacted 

his union representative, Daryl Dewberry, who advised him of his 

rights under section 105(c). Dewberry filled out his complaint, 

and, after Complainant signed it, Dewberry took it to the MSHA 

$Ubdistrict office. The one day delay in filing shown here in my 

opinion is excused on the basis of Complainant's ignorance of the 

applicability of the law, and hi bringing the matter to the 

attention of his union representa ive within the statutory period. 

See Herman v. Imco Services, 4 FMSHRC 2123 (1982); Schulte v. 

Lizza Industries, Inc., 6 FMSHRC 8 (1984)~ Hollis v. 

Consolidation Coal Co., 6 PMSHRC 21 (1984). 

The Act further provides that upon receipt of a complaint by 

a miner, the Secretary shall commence an investigation within 15 

days, and if he determines that discrimination has occurred, 

shall immediately file a complaint with the Commission. It 

directs the Secretary to notify the miner within 90 days of the 

receipt of a complaint of his determination whether a violation 

has occurred, The Legislative History of the Act makes it clear 

that this time limitation is not jurisdictional and that 

Complainant should not be prejudiced by the failure of the 

Government to meet its time obligations. s. Rep. No. 181, 95th 

Cong.r lst Sess. 36 (1977)f reprinted in Senate Subcommittee on 

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

Legislative History of the Federal Mine Saf~ and Health Act of 

1977 at 624 (1978) However, the Commission has held that a long 

delay coupled with a showing of prejudice to the operator may 

subject the complaint to smissal. Secretary/Hale v. 4-A Coal 

Company; Inc., 8 FMSHRC 905 (1986). 

In the present case, the Secretary notified Complainant on 

April 22, 1986 that it was determined that discrimination had 

occurred. This was 11 months after the complaint was filed with 

MSHA. The question thus arises whether Respondent has 

266 
demonstrated "material legal prejudice attributable to the delay." 

Secretary/Hale v. 4-A Coal Company, Inc., supra. The evidence 

shows that many of the potential witnesses no longer are employed 

at the subject mine, including Douglas Herring, the union safety 

committeman to whom Complainant reported the ignition, and who 

called MSHA; Hugh Bonham, a Jim Walter supervisor, who told 

Complainant to go to the No. 8 Continuous Miner Section after the 

ignition investigation: Walter Daniels, the Safety Director at 

the subject mine, with whom Dewberry discussed Complainant's 

status and his possible filing of a section 105(c) complaint: 

Troy Miller, maintenance foreman on the evening shift who 

originally asked Complainant if he wanted to work on the Longwall 

Section. Respondent asserted that these people no longer work 

for Jim Walters, but has not established that they were not 

available for testimony and not subject to subpoena. Further, 

there is no evidence in the record as to when they left Jim 

Walter's employ. Therefore, I conclude that Respondent has not 

.shown material legal prejudice attributable to the Secretary's 

delay in filing the complaint with the Commission. 

DISCRIMINATION 

In order to establish a prima facie case of discrimination 

under section 105Cc) of the Mine Act, a complaining miner bears 

the burden of production and proof in establishing that (1) he 

engaged in protected activity and (2) the adverse action 

complained of was motivated in any part by that activity. 

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

2786, (October 1980), rev'd on other grounds sub. nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Co.v 3 FMSHRC 803, (April 1981). The operator may rebut the 

pr facie case by showing either that no protected activity 

occurred or that the adverse action was in no part motivated by 

protected activity. If an operator cannot rebut the prima''(.acie 

case in this manner, it nevertheless may defend affirmativel~y 

proving that it also was motivated by the miner's unprotected 

activity and would have taken the adverse action in any event for 

the unprotected activity alone. Pasula, supra; Robinette, supra. 

See also Donovan v. Stafford Construction Co., 732 F.2d 954, 

958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the Commission's 

Pasula-Robinette test). 

PROTECTED ACTIVITY 

I have found as a fact that complainant reported an ignition 

problem to a union safety committeeman who reported it to MSHA. 

This followed the refusal of Respondent's foreman to make such a 

report. This is incontestably activity protected under the Act. 

267 
It directly relates to mine safety, and to "making a complaint 

under or related to this Act ••• " (Section 105(c)(l). 

ADVERSE ACTION 

Complainant was transferred from his job as an electrician 

on a longwall section to the job of electrician on a continuous 

miner section. Although the hourly pay rates are the same, the 

evidence clearly shows that the longwall job is more desirable 

and affords the opportunity to earn substantially more overtime 

pay. I conclude that the transfer was adverse action. 

MOTIVATION 

Direct evidence of a discriminatory motive is usually 

difficult to produce. However, the fact that "the adverse action 

• • • so closely foll.owed the protected activity is itself 

evidence of an illicit motive". Donovan v. Stafford Construction 

Co., 732 F. 2d 954, 960 (D.C. Cir. 1984). The adverse action 

here immediately followed Complainant's interview by the MSHA 

inspectors. This fact together with the refusal of Complainant's 

supervisors to give him any ·reason for his transfer is evidence 

tending to establish that the prQtected activity was a factor in 

the adverse action. Complainant ·has therefore established a 

prima facie case of discrimination under section 105{c) of the 

Act. Pasula, supra. Respondent did not submit any evidence to 

rebut the prima facie case. Therefore, I conclude that · Respondent violated section 105(c} of the Act on March 22, 1985 

by transferring Complainant from the position of longwall section 

electrician to the position of miner section electrician. 

REMEPY 

Secretary1 s Exhibits 1 and 2 show the overtime hours worked 

by Complainant and the other electricians prior to his transfer, 

and the overtime hours worked by Complainant, and the longwall 

electricians after his transfer. I conclude that, as the 

attachment "A" to Complainantts brief argues, Complainant lost 

42-3/4 hours of overtime during the week and 5 hours of time and 

one-half overtime and 2 hours of doubletime work on weekends 

during the period March 23, 1985 through May 19, 1985. He is 

entitled to receive back pay in those amounts with interest in 

accordance with the formula in Secretary/Bailey v. 

Arkansas-Carbona Company, 5 FMSHRC 2042 (1983). He is further 

entitled to have restored the contract bid right which he 

exercised to obtain the longwall mechanic position on May 20, 

1985. 

268 
PENALTY 

Respondent is a large operator. The violation of section 

105(c) found herein was a serious and intentional violation. No 

mitigating factors were advanced by Respondent. I conclude that 

a penalty of $1000 is appropriate. 

ORDER 

Respondent is ORDERED to pay to Complainant, within 30 days 

of the date of this decision, the sum of $1,105.13 representing 

overtime pay of which he was deprived from March 23, 1985 through 

May 19, 1985, plus interest in the amount of $169.18 through 

Dece.snber 31, 1986 and thereafter at the rate of 10% per annum. 

Respondent is FURTHER ORDERED, within 30 days of the date of this 

decision, to restore Complainant's contract bid right which he 

exercised on May 20, 1985. Respondent is FURTHER ORDERED to pay 

to MSHA, within 30 days of the date of this decision, the sum of 

$1000 as a civil penalty for the violation foun~ herein. 

~~~ Administrative Law Judge 

Distribution: 

William Lawson, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2015 2nd Avenue North, Suite 201, Birmingham, AL 35203 

(Certified Mail) 

R. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim Walter 

Resources, Inc., P.O. Box C-79, Birmingham, AL 35283 (Certified 

Mail) 

slk 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

STEVE COLLETT, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

FEB 10 1987 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-109-D 

MSHA Case No. BARB CD 86-19 

CHANEY CREEK COAL 

CORPORATION, Dollar Branch Mine 

Respondent 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a discrimination proceeding initiated by the 

complainant against the respondent pursuant to section lOS(c) 

of the Federal Mine Safety and Health Act of 1977, alleging 

that the respondent discriminated against him by discharging 

him on January 14, 1986, for making safety complaints about a 

shuttle car which he operated in the mine. Mr. Collett's 

initial complaint was investigated by MSHA, and it declined to 

file a complaint on his behalf after determining that a violation of section 105(c) had not occurred. Mr. Collett subsequently filed this action with the Commission through counsel. 

A hearing on the merits of the complaint was scheduled on 

February 11, 1987, in London, Kentucky. However, it was 

cancelled after Mr. Collett's counsel advised me that the 

parties had reached a settlement. The parties have now filed 

their settlement agreement with me, and they jointly move for 

a dismissal of the complaint on the basis of that agreement. 

Discussion 

Mr~ Collett's counsel states that Mr. Collett is now 

employed for another coal company, and is no longer interested 

in reinstatement with the respondent. Under the terms of the 

settlement, Mr. Collett agrees to withdraw his complaint and to 

waive all further claims against the respondent. The respondent 

270 
agrees to pay Mr. Collett $4,000, in satisfaction of his complaint, in two separate installments of $2,000. The first 

installment is to be paid on or before February 10, 1987, and 

the second installment is to be paid on or before March 10, 

1987. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions executed by the parties in this proceeding, 

I conclude and find that it reflects a reasonable resolution of 

t~e complaint. Since seems clear to me that the parties are 

in accord with the agreed upon dispo tion of the complaint, I 

see no reason why it should not be approved. 

ORDER 

The proposed settlement IS APPROVED. Respondent IS ORDERED 

AND DIRECTED to fully comply forthwith with the terms of the 

agreement. Upon full and comp te compliance with the terms of 

the agreement, this matter is dismissed. 

. 1 

• 

./~./ I (A,) /f" 1. / ~ 

. · / / (,v"'IAT.,,C t ,, L i;-z-·c?'~-.::z.- - Jeorge Af. Koutras · · 

Administrative Law Judge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

Thomas W. ~iller, Esq., Miller, Griffin & Marks, P.S.C., 

700 Security Trust Building, Lexington, KY 40507 

(Certified Mail) 

271 
FEDERAL MINE SAFETY AND HEAlTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1O1987 

SECRETARY OF LABORf 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MARIGOLD DOCKS, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 87-3 

A.C. No. 15-14291-03503 

Marigold Docks 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On February 9, 1987, the parties a Joint Motion 

to app.rove settlement in this case. The violations were 

originally assessed at $126 and the parties propose to settle 

for !?120. 

Respondent does not agree that the c was properly 

issued to it, rather than the employer the deceased miner. 

However, it to the settlement of this case by the 

payment of $120. I have considered the mot the light 

of the criteria section llO(i) of the Act, and conclude 

that it should approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $120 within 30 days of the date 

of this order. 

Distribution: 

rl6f. I -/ 

1f /)AJA,{:,-fj /4~u· Vt/Qct,·1A·· t!.~ James A. 

Administrat 

ick 

Law Judge 

G. Elaine Smith, Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courthouse, 801 , Nashville, TN 

37203 (Certified Mail) 

J. Fred McDuff, Esq., P.O. Box 10246, Birmingham, AL 35203 

(Cert if iep Mail) 

slk 

272 
FEDERAL M~N~ $AF!eiif AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 10 1987 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOU'l'HERN OHIO COAL COMPl.\NY, 

'Respondent .. 

" 

Docket No. WEVA 86-190-R 

Order No. 2705915; 2/19/86 

Docket No. WEVA 86-194-R 

Order No. 2705881; 2/20/86 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-254 

A. C. No. 46-03805-03723 

Martinka No. 1 Mine 

DECISION 

Appearances: David M. Cohen, Esq., American Electric Power 

Service CorPoration, Lancaster, Ohio, for 

Contestant/Respondent~ 

Before: 

James E. Culpu Esq., Office of the Solicitor, 

U.S. Department of Labor§ Philadelphia, Pennsylvania, Respondent/Petitioner. 

Judge Maurer 

STATEMENT OF CASE 

Contestant, Southern Oh Coal Company (SOCCO), has 

filed not ces of contest challenging the issuance of Order 

No. 2705915 (Docket No. WEVA 86-190-R) and Order No. 2705881 

(Docket No. WEVA 86-194-R) at its Martinka No. 1 Mine. The 

Secretary of Labor (Secretary) has filed a petition seeking 

ci il penalties in the total amount of $2,100 the violations cha in the above two contested orders as well as 

that violation charged in Order No. 2705918 which was the 

subject of Docket No. WEVA 86-192-R. 

2-R was disposed of by a separate 

April 16, 1986. 

273 
At the hearing on these cases, which was held on August 19, 

1986, in Morgantown, West Virginia, the parties jointly moved 

for approval of their settlement of that portion of the civil 

penalty case that pertained to Order No. 2705918. I approved 

a reduction from $600 to $400 of that part of the civil penalty assessment and granted the motion on the record (Tr. 5). 

The general issues before me concerning each of the remaining individual orders and its accompanying civil penalty petition are whether the orders were properly issued, whether 

there was a violation of the cited standard, and, if so, 

whether that violation was ''significant and substantial" and 

caused by the ''unwarrantable failure" of the mine operator 

to comply with thqt standard as well as the appropriate 

civil penalty to be assessed for the violation, should any 

be found. 

Both parties have filed post-hearing proposed findings 

of fact and conclusions of law, which I have considered along 

with the entire record herein. I make the following decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, 

which I accept (Tr. 6-7): 

1. The Martinka No. 1 Mine is owned by respondent, 

Southern Ohio Coal Company. 

2. The Martinka No. 1 Mine is subject to the jurisdicon of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over 

these proceedings. 

4. The subject orders and terminations were properly 

served by a duly authorized representative of the Secretary 

of Labor on an agent of respondent on the dates, times, and 

places stated therein and may be admitted into evidence for 

purposes of establishing their issuance without waiving any 

objections as to their truthfulness and the relevancy of the 

statements contained therein. 

5. The alleged violations were abated in a timely 

fashion. 

6.· The respondent's annual production for the year 1985 

was approximately 7 million production tons. The subject 

mine had 2,495,783 production tons in 1985. 

274 
7. Respondent had 2,773 assessed violations during the 

·24-month period prior to the issuance of the orders at the 

subject mine. 

·8. Respondent received a section 104(d) (1) order on 

September 1, 1981, issued by Federal Mine Safety and Health 

Inspector Frank Bowers. Martinka No. 1 has had no clean 

inspections of the mine from the issuance of that order to 

February 20, 1986. 

I. Docket No. WEVA 86-190-R; Order No. 2705915 

Order No. 2705915, issued pursuant to section 104(d) (2) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (the Act), alleges a violation of the regulatory standard at 30 C.F.R. § 75.1403 ~and charges as 

follows: 

In the 2 east C section, there was less th~n 24 

inch clearance between the left coalline rib and 

the Stamler belt coal feeder for approximately 6 

to 7 feet, only 12 inch clearance was between the 

Stamler and ribline and the start and stop switch 

was installed for the belt conveyor in this area. 

Coal and slate was being dump on the right side of 

the Stamler instead of the front and the fire warning box was installed outby the Stamler Feeder. 

Mechanics, electricians, and belt cleaners use 

this area. Jim Kincell and Robert Molshan, belt 

foremen. Safeguard No. 2034480 - issued 1 03-82. 

FDB .• 

The above-referenced safeguard provides in pertinent 

part: "24 inches of clearance shall be provided on both 

sides of the coal feeders in this mine." 

As a factual matter, the witnesses for both parties were 

ab to agree that the coal feeder in question was indeed 

closer than 24 inches to the left coal line rib on the mornof February 19, 1986, at the time the instant order was 

issuedo 

However, a threshold legal issue raised by SOCCO is 

whether the safeguard which is Government Exhibit No. 2 constitutes a valid and enforceable notice to provide safeguards. If the safeguard is not valid, then the (d) (2) 

order which purports to enforce it would likewise be invalid. 

2/ 30 C.F.R. § 75.1403 provides as follows: 

Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary, to minimize 

hazards with respect to transportation of men and materials shall be provided. 

275 
Normally, mandatory safety standards are developed and 

promulgated in accordance with section 101 of the Act and the 

rule-making provisions contained in the Administrative Procedure Act, 5 u.s.c. § 551, et seq. SOCCO maintains that the 

requirements set forth in the--rri'stant safeguard should have 

properly been the subject of such rule-making, rather than a 

safeguard notice issued under section 314(b) of the Act. 3/ 

Section 314(b) of the Act grants the Secretary the 

extraordinary authority to essentially create mandatory 

safety standards on a mine-by-mine basis without resorting 

to the normal rule-making procedures contemplated by the 

Act. However, this authority is not without bound. The 

Secretary cites Southern Ohio Coal Co., 7 FMSHRC 509 (1985) 

for the proposition that the Commission has approved the 

issuance of safeguards without rule-making for a particular 

mine and that th~ Commission has stated that the operator's 

interest is nevertheless protected by narrowly construing 

the terms of the safeguard to assure that the operator 

understands the hazard sought to be regulated. However, 

SOCCO's position in this case is not that they didn't understand the terms of the safeguard at bar, but rather that the 

Secretary is not authorized to issue safeguards of a universal 

nature on a mine-by-mine basis in the first instance. 

The operator contends that the subject matter of the 

instant safeguard is of general applicability. It simply 

requires 24 inches of clearance on both sides of coal feeders. Inspector Delovich testified that the hazard involved 

if the feeder is closer than that to the rib line is that a 

miner could conceivably be crushed between the feeder and 

the rib if the feeder should be bumped by a shuttle car dumping coal into it. The company's argument is that there is 

nothing unique about the Martinka No. 1 Mine that would increase this hazard at that mine and no others; rather, the 

hazard sought to be eliminated by the safeguard exists 

equally in all mines using coal feeders. 

SOCCO also makes the point that the previous Southern 

Ohio Coal Co. case which the Secretary relies on here as 

authority concerned a notice to provide safeguards issued 

pursuant to 30 C.F.R. § 75.1403-5(g}, one of the specific 

criteria set forth in the Code of Federal Regulations. The 

point being that the specific criteria set forth in 30 C.F.R. 

§ 75.1403-2 through 30 C.F.R. § 75.1403-11 were established 

via the rule-making process. Whereas in the instant case, 

Safeguard No. 2034480, which is the underlying safeguard in 

the (d) (2) order at bar, was not issued pursuant to and does 

not relate to any of those specific criteria. 

3/ Section 314(b) of the Act consists of the identical 

language contained in 30 C.F.R. § 75.1403 as fully set out 

in fn. 2. 

276 
It is noteworthy that the other c~se relied on by the 

Secretary, Zeigler Coal Co. v. Kleppe!/, although cited for 

the court's holding that violations of an approved ventilation plan may properly be considered a violation of a mandatory safety and health standard even though such plans are 

approved without rulemaking, had more to say oh the subject 

of when rulemaking would be required. The Court went on to 

state that: 

It [section 303(0) of the Act] was not to be used 

to impose general requirements of a variety wellsui ted to all or nearly all coal mines, but rather 

to assure that there is a comprehensive scheme for 

realization of the statutory goals in the particular instance of each mine. 

Thus an operator might contest an action seeking to compel adoption of a plan, on the ground 

that it contained terms relating not to the particu~ar circumstances of his mine, but rather imposed 

requirements of a general nature which should more 

properly have been formulated as a mandatory standard, under the provisions of § 101. This would 

appear to render all but inconsequential the actual 

circumvention of § 101 resulting from the enforceability of ventilation plans. For insofar as those 

plans are limited to conditions and requirements 

made necessary by peculiar circumstances of individual mines, they will not infringe on subject 

matter which could have been readily dealt with in 

mandatory standards of universal application. ~ 

While the Secretary concedes that the particular 

at issue here may have application beyond the Martinka 

No. 1 Mine, he argues that it cannot be held on its face to 

such a general and universal application so as to compel rulemaking. The operator's position is that it is 

abundantly clear that the requirements of the safeguard are 

of a general nature appl to all coal mines and thereshould have been formulated as a mandatory standard 

under the provisions of section 101 of the Act. Reading the 

record as a whole, I believe that a clear inference may 

drawn that the requirements of the instant safeguard are 

icable to at least a significant number of coal s 

ch employ coal feeders and shuttle cars to transport 

coal. Importantly, there is no reason given in this record 

why the 24 inch clearance rement should be imposed only 

in particular mine herein involved and not in mines 

using coal feeders generally . 

. 1976). 

277 
The Act provided for flexibility by creating safeguards 

to cover those situations where conditions .vary on a rnine-tomine basis. Through the use of safeguards, certain requirements can be imposed on a particu r mine because of its 

peculiar physical lay-out or circumstances. "However, the 

potential scope of safeguards is very broad and accordingly, 

care must be taken to ensure that they are employed only in 

the proper context and do not become a means whereby the usual 

rule-making process is ignored and circumvented." U.S. Steel 

Mining Co., Inc., 4 FMSHRC 526, 529-530 (1982). In that case, 

Judge Merlin held that the safeguard had nothing to do with 

conditions peculiar to that mine as opposed to other mines. 

He concluded that the safeguard and subsBquent citation based 

upon it were improperly issued and invalid. 

I conclude that where, as here, the safeguard is not 

issued under any of the specific criteria for safeguards 

contained in 30 C.F.R. §§ 75.1403-2 through 75.1403-11, then 

the requirements of that safeguard must be demonstrably related to some mine-specific hazard or unsafe condition 

sought to be corrected. In the instant situation, I find 

that the requirements set forth in Safeguard No. 2034480 and 

the hazards sought to be protected against are of a general 

nature applicable to at least a significant number of other 

coal mines utilizing coal feeders and therefore should have 

properly been promulgated using the rule-making procedures 

contained in § 101 of the Act. Therefore, I find that Order 

No. 2705915, being based on an invalid safeguard was improperly issued and will be vacated. 

II. Docket No. WEVA 86-194-R; Order No. 2705881 

Order No. 2705881, issued pursuant to section 104(d) (2) 

of the Act, alleges a violation of the regulatory standard 

at 30 C.F.R. § 75.400 ~/ and charges as follows: 

On the B-6 longwall belt conveyor there was 23 

bottom rollers turning in wet to dry coal dust, 

11 bottom rollers frozen, damaged, in wet coal 

dust under the belt takeup and the front bottom 

roller at the belt drive was turning in coal dust 

directly outby the belt drive roller drums and the 

bottom belt for approximately 10 feet at the belt 

drive, running in coal, bottom belt was running 

6/ 30 C.F.R. § 75.400 provides as follows: 

Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on 

electric equipment therein. 

278 
out of line and rubbing the steel leg stands cutting into the leg stands 1/4 to 1/2 inch in the 

area where the rollers were turning in the coal, 

frozen bottom rollers under the belt takeup were 

shining. Conditions present a fire hazard. Larry 

Morgan, longwall foreman, Dave Williams, longwall 

coordinator foreman. 

MSHA Inspector Harry C. Markley issued the instan~ order 

during an AAA inspection of the Martinka No. 1 Mine on February 20, 1986. He observed accumulations of coal'starting to 

build up under the rollers of the B-6 longwall belt conveyor, 

and the further he walked toward the section, he saw the 

rollers running in dry to wet coal. Finally, when he got to 

the tailpiece and saw the muddy conditions there, he told 

Mr. Resetar, the operator's safety inspector for the mine, 

that he was under a (d) (2) order. These accumulations and 

conditions existed for a distance of approximately 300 feet 

outby the tailpiece. Mr. Markley further opined that there 

was an average accumulation of from one to two bushels of dry 

to wet coal under each roller, of which 23 were involved in 

this violation. He modified his original description of the 

condition of the coal somewhat in response to later questioning. He stated that the coal was dry or would dry in those 

areas where the water would run-off and leave the solids at 

the rollers. 

Inspector Markley testified that the hazard presented by 

the situation he observed was that the belt and rollers were 

turning in· this accumulation of fine coal and coal dust and 

the belt was rubbing the stands causing friction. He testified that heat was thereby produced, the coal was or could 

be dried by the heat, and in his opinion a mine fire could 

result. 

The condition of the coal, vis-a-vis its wetness or dryness, is a critical initial issue in this case because the 

cited regulation speaks to accumulations of combustible 

materials. If the coal accumulation was not combustible as 

a factual matter, then it follows that there can be no violation of 30 C.F.R. § 75.400. The Secretary contends that the 

coal around at least some of the 23 rollers was dry and could 

present a fire hazard. The operator contends that the coal 

was too wet along the entire 300 foot section cited to constitute either an accumulation of combustible materials or a 

fire hazard. 

Mr. Mugmano, the Belthead Man at the time the order was 

issued, testified that at the time this order was issued he 

believed they were mining under a creek because his area was 

always wet and muddy. He testified that th€ coal under 

279 
the belt was damp to wet under each of the 23 rollers cited in 

the order, and the area around the rollers was saturated. Because of these extremely wet conditions, he opined that the 

rollers in question could not become dry. Additional water 

comes from the sprays on the longwall shear and the crusher. 

Approximately 60 to 75 gallons of water per minute are sprayed 

on the coal that is cut and goes on the belt, making it a very 

wet belt in the opinion of this witness. When asked if there 

was any wet to dry coal dust in the area cited he replied 

that the only dry area would have been where an accumulation 

of mud came off the rollers and was heated by the friction 

of the running belt touching the steel leg stands. It would 

get warm there and form a crust of an inch or two. The rest 

of the area he described as resembling chocolate pudding, and 

being too wet to even shovel. SOCCO Exhibit Nos. 8, 9, 10, 

and 11 are photographs that bear this out, at least insofar 

as it appears to be an accurate description for the areas 

they depict, which I take note is obviously not the entire 

300 feet at issue. 

Mugmano agreed with the inspector that the bottom belt 

was running.out of line and rubbing the steel leg stands and 

when it'does that, and the belt is so saturated with water, 

it causes a big mudpile to form where it rubs mud off the 

belt. Mr. Mugmano disagreed, however, with the characterization of the material as "coal". He stated it was more 

properly called a mixture of coal dust, water and rockdust, 

of which he uses approximately thirty (30) 50-pound bags 

each day. 

The Commission has held that: 

[I]t is clear that those masses of combustible 

materials which could cause or propagate a fire 

or explosion are what Congress intended to proscribe. Thus, we hold that an accumulation exists 

where the quantity of combustible materials is 

such that, in the judgment of the authorized 

representative of the Secretary [subject to challenge before the administrative law judge] it 

likely could cause or propagate a fire or explosion if an ignition source were present. Old Be~ 

Coal Co., 2 FMSHRC 2806, 2808 (1980). 

When evaluated against that standard the Secretary's 

case fails of proof. The Secretary has the burden of proving 

that a sufficient quantity of combustible material existed 

which could cause or propagate a fire or an explosion were 

an ignition source present. I am not convinced by the evidence in this record that enough dry coal or dry coal mixture existed to amount to anything-.- I find a"Sa" fact that 

the overwhelming majority of the accumulation cited was a 

damp to water saturated mixture of coal dust, rock dust and 

280 
water. I further find that the only dry part of this accumulation was as Mr. Mugmano testified where accumulations of 

mud formed a crust an inch or two thick in those spots heated 

by the friction of the running belt touching the steel leg 

stands. The remainder of the material in question I find as 

a fact was too wet to be considered "combustible." Ultimately, 

therefore, I conclude that there was not a violation of 30 

C.F.R. § 75.400 proven. 

ORDER 

On the basis of the foregoing findings and conclusions, 

Southern Ohio Coal Company's contests ARE GRANTED, Order Nos. 

27059 and 2705881 ARE VACATED, and MSHA's related civil 

penalty proposals ARE REJECTED. 

The respondent IS ORDERED to pay to MSHA a civil penalty 

in the amount of $400 in satisfaction of that portion of the 

civil penalty case that pertains to Order No. 2705918 within 

thirty (30) days of the date of this decision and order. Upon 

payment, the civil penalty proceeding IS DISMISSED. 

aurer 

istrative Law Judge 

Distribution~ 

d M. Cohen, Esq., American E ctric Power Service Corp., 

P. 0. Box 700, Lancaster, OH 43130 (Ce ed Mail) 

James E. Culp, Esq., Office of the Soli tor, U. S. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

yh 281 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVFNUE, SUITE 400 

DENVER, COLORADO 80204 FEB 121987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSH~), 

Petitioner 

v. 

UNION OIL COMPANY OF 

CALIFORNIA, 

Respondent 

Docket No. WEST 86-1-M 

A.C. No. 05-03143-05511 

Parachute Creek Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Anthony D. Weber, Esq., Union Oil Company of 

California, Los Angeles, California, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a petition 

for assessment of a civil penalty ("Proposal for Penalty") by the 

Secretary of Labor (herein the Secretary) on November 15, 1985, 

pursuant to Section 110 of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. Section 820 (1977) (herein the Act). A 

hearing on the merits was held in Denver, Colorado, on June 25, 

1986, at which both parties were represented by counsel. Subsequent to the hearing the presiding administrative law judge, 

John A. Carlson, passed away and by Order of Assignment dated 

October 17, 1986, this matter came on the docket of the undersigned for decision. 

The Secretary charges Respondent with one violation, i.e., 

violating 30 C.F.R. § 57.5001/5005 as described in Citation No. 

2355268 issued by MSHA Inspector Michael T. Dennehy on May 115, 

1985, as follows: 

"On May 15, 1985, a Union Oil Company employee welding 

underground at the secondary crusher area was over exposed 

to welding fumes (Vanadium) while applying hard surfacing 

welding rods (nickel-chrome manganese and vanadium-ca~bide> 

to the crusher. The welder was exposed to .0678 mg/M3 of 

Vandium fume whereas Vanadium fume has a ceiling limit of 

.05 mg/M3 and should not be exceeded. Personal respiratory 

protection was not being worn by the employee while he was 

282 
welding nor was the ventilation fan operating the entire 

shift. Analytical results were received June 7, 1985. 

This citation is issued June 27, 1985. The samples were 

taken May 15, 1985." 

The subject 104(a) Citation further charges that the 

violation was "significant and substantial" (herein 11 S & S") ~/. 

Insofar as relevant, the air quality standard allegedly 

infracted, 30 C.F.R. § 57.5001, which sets forth exposure limits 

for airborne contaminants, provides: 

"Except as permitted by § 57.5005 - (a) Except as provided 

in paragraph (b), the exposure to airborne contaminants 

shall not exceed, on the basis of a time weighted average, 

the threshold limit values adopted by the American Conference of Governmental Industrial Hygienists, as set forth 

and explained in the 1973 edition of the Conference's publication, entitled "TLV's Threshold Limit Values for Chemical 

Substances in Workroom Air Adopted by ACGIH for 1973," pages 

1 through 54, which are hereby incorporated by reference 

and made a part hereof. This publication may be obtained 

from the American Conference of Governmental Industrial 

Hygienists by writing to the Secretary-Treasurer, P.O. Box 

1937, Cincinnati, Ohio 45201, or may be examined in any 

Metal and Nonmetal Mine Safety and Health District or Subdistrict Office of the Mine Safety and Health Administration. Excursions above the listed thresholds shall not 

be of a greater magnitude than is characterized as permissible by the Conference. 

x x x x x x x x 

(c) Employees shall be withdrawn from areas where there 

is present an airborne contaminant given a 11C11 designation 

by the Conference and the concentration exceeds the 

threshold limit value listed for that contaminant." ~/ 

ll In Secretary v. Consolidation Coal Company, 6 FMSHRC 189 

(1984), the Conunission held that S & s findings may be made in 

connection with a citation issued under Section 104(a) of the Act. 

Considering this ~uling in conjunction with U.S. Steel Mining 

Company, 6 FMSHRC 1834 (1984), where the mine operator was 

allowed to contest S & S findings entered on Section 104Cd)(l) 

citations in a penalty case·, it is concluded that S & S findings 

contained in a Section 104(a) Citation similarly are properly 

reviewable in this penalty proceeding. See also Allentown Cement 

Company, Inc. v. Secretary of Labor, 8 FMSHRC 1513, at 1517 

( 1986) • 

~/ At the hearing, the presiding judge took official notice of 

Cl> the applicable threshold limit values (herein TLV's)(T. 7, 

8), and ( 2) A 1973 TLV booklet from ACGIH. CT. 251 >. ~ Reproduced 

copies of both documents have been placed in an "Exhibits" folder 

which, together with other exhibits and the transcript of hearing, constitute the official record in this matter. 

283 
The pertinent TLVs referred to in 30 C.F.R. § 57.5001 

provide as follows: 

"Substance 

Vanadium (V205), as V 

ppma) mg/M3b) 

0.5 

c 0.05 

Dust •....•..••..•.. 

Fume 

x x x x x x x x x 

a) Parts of vapor or gas per million parts of contaminated 

air by volume at 25°C and 760 mm. Hg. pressure. 

b) Approxiaate milligrams of substance per cubic meter of 

air."~/ 

30 C.F.R. § 57.5005, entitled "Control of exposure to 

airborne contaminants", also cited by the issuing Inspector, 

provides: 

Control of 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 (for example, 

while establishing controls or occasional entry into hazardous atmospheres to perform maintenance 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 shdll 

meet the following minimum requirements: 

(a) Mine Safety and Health Administration approved respirators which are applicable and suitable for the purpose 

intended shall be furnished, and employees shall use the 

protective equipment in accordance with training and instruction. 

(b) 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," 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, N.Y., 10018, or 

may be examined in any Metal and Nonmetal Mine Safety and 

Health District or Subdistrict Off ice of the Mine Safety 

and Health Administration. 

3/ The effect of the "C" designation in front of the Vanadium 

Fume TLV is shown in§ 57.500l(c), supra, and I infer from the 

fact that withdrawal of employees is required where the "C" 

designation appears that such a concentration of the airborne 

contaminant, in the opinion of ACGIH poses a potentially serious 

hazard (T. 140, 141, 236, 237). 

284 
(c) When respiratory protection is used in atmospheres immediately harmful to life, the presence of at least one 

other person with backup equipment and rescue capability 

shall be required in the event of failure of the respiratory equipment. 

In general aid of the record, the dictionary definitions of 

these two terms are set forth here. Thus, vanadium and vanadium 

pentoxide are described in "A Dictionary of Mining, Mineral and 

Related Terms" (complied and edited by Paul W. Thrush and the 

Staff of the Bureau of Mines, U.S. Department of the Interior, 

1968), as follows: 

Vanadium. A gray or white, malleable, ductile, polyvalent 

metallic element in group V of the periodic system. It 

is resistant to air, sea water, alkalies, and reducing 

acids except hydrofluoric acid. It occurs widely but mainly in small quantities in combination in minerals (such as 

vanadinite, patronite, carnotite, and roscoelite), in the 

ashes of many plants, in coals, in petroleums, and in 

asphalts. Usually obtained in the form of ferrovanadium or 

other alloys, or in almost pure metallic form containing 

small amounts of oxygen, carbon, or nitrogen by the reduction of ores, slags, or vanadium pentoxide (V205). Used 

chiefly in vanadium steel. Symbol, V; atomic number, 23; 

and atomic weight, 50.942. Webster 3d; Handbook of Chemistry and Physics, 45th ed., 1964, pp. B-2, B-143. 

Vanadium pentoxide. Yellow to red; orthorhombic; V205; 

mol.ecular weight, 181.88; specific gravity, 3.357 (at 18° 

C>; toxic; melting point, 690° C; decomposes at 1,750° C 

before reaching a boiling point; slightly soluble in water; 

soluble in acids and in alKalies; and insoluble in absolute 

alcohol. Used in ceramics and as a catalyst. Handbook of 

Chemistry and Physics, 45th ed., 1964, pp. B-144, B-236. 

As noted in the foregoing, and as reflected in the TLVs, V 

is the symbol for vanadium and V205 is the symbol for vanadium 

pentoxide. 

Preliminary Findings 

and Conclusions 

While the form of vanadium at which the subject safety and 

health standard is directed is Vanadium Pentoxide CV205). CT. 

100-102, 140, 141), the violation created by 30 C.F.R. § 57.5001 

is for exceeding tile TLVs for Vanadium fume or Vanadium dust. 

Vanadium pentoxide is one of several forms of Vanadium and is a 

separate, more toxic form thereof (T. 140, 141, 168, 208). The 

technique for the determination of Vanadium requires {l) 

determining the particular TLV (threshold limit value) of 

Vanadium (fume or dust) and then (2) determining approximate 

milligrams of Vanadium itself per cubic meter of air and applying 

to such determination a multiplication factor (error factor) to 

285 
account for any vagaries inherent in the process. CT. 36-38, 97, 

140, 159, 168). The Vanadium fume TLV of .05 rng/M is equivalent 

to a Vanadium Pentoxide reading of 2 1/2 times such level (T. 

168). 

The subject Citation was issued by MSHA Inspector Michael T. 

Dennehy on May 15, 1985, the second day of a two-day inspection 

of Respondent's Parachute Creek Mine, an underground oil shale 

mine located near Parachute, Colorado. On the first day of the 

inspection, May 14, Inspector Dennehy ascertained that hard 

surf ace welding using vanadium rods was being conducted on the 

secondary crusher and decided to sample miners engaged in this 

work on the following day. In furtherance thereof he called an 

MSH~ health technician in Grand Junction, Colorado and requested 

that welding fume filters be prepared for his survey to be 

conducted the following day and precalibrated his P-2500 pumps in 

preparation therefor. CT. 11-15; Ex. P-1). 

After calibrating the pumps on May 14, 1985, and charging 

them overnight, Mr. Dennehy returned to the mine site the next 

morning with five pumps and air filters CT. 15). Mr. Dennehy 

proceeded to the crusher area of the mine where four employees 

were welding CT. 16) and he placed the pumps on them by fastening 

the pump to their belt, putting the pump hose behind their back, 

and placing the top of the hose in their breathing zone CT. 18). 

Each pump contained a filter that was placed in the pump by Mr. 

Dennehy after removing the preseal number CT. 19, 22). Mr. 

Dennehy recorded the preseal number on his health field notes 

(Ex. P-2)(T. 22, 23). Mr. Dennehy also recorded on Exhibit P-2 

the time he turned on the pumps and he noted the names of the 

employees CT. 21). After turning on the pumps, Mr. Dennehy left 

the area to conduct further inspection CT. 24). 

At issue in this matter is sample number MD-1 as indicated 

on Ex. P-2. Mr. Dennehy left the. pump on the employee wearing 

sample MD-1 for the entire shift period. He interrupted the fume 

sampling at one point during the day to take a 30 minute short 

term sample CT. 25>. He indicated the 30 minute sample by making 

entries on his notes (Ex. P-2, P-l)(T. 27). At the end of the 

shift Mr. Dennehy removed the pumps from the employees, removed the filter from each of the pumps, and sealed the cassette. 

He put the cassette back into the holding tubes and returned to 

his_ office in Grand Junction. He then did a post calibration of 

the pumps and entered this on his presampling calibration sheet 

CEx. P-1). 

At the Grand Junction field office Mr. Dennehy returned the 

sampling cassettes and filters to the health technician CT. 28, 

29). Mr. Dennehy returned the entire sealed cassette to the 

technician. The technician then sent the cassette to Denver for 

analysis CT. 85, 86). Along with the cassettes was sent a 

request for analysis, specifically, the analysis of the 16 

elements of wel~ing fume CT. 86). 

286 
In response to his request, Mr. Dennehy received from the 

Denver Safety and Health Technological Center, MSHA, in Denver, 

an Elemental Analysis Report dated 6/5/85 <Ex. P-3)(T. 29, 86). 

The report from the technology center indicated to Mr. Dennehy 

that sample MD-1 contained 47.4 micrograms of vanadium. To 

determine the exposure to the elements listed on Exhibit P-3, Mr. 

Dennehy conducted calculations on a fume worksheet CT. 30-32) and 

determined that the concentration of vanadium was .0678 

milligrams per cubic meter CT. 33). Mr. Dennehy next looked in 

the 1973 TLV booklet for the TLV for vanadium. He found the TLV 

to be .05 milligrams per cubic meter CT. 34). Mr. Dennehy indicated that although vanadium was listed twice in the TLV book 

he used the TLV for vanadium fume be~ause the employees involved 

were conducting welding which creates fumes from the vanadium 

welding rod (T. 34, 49). 

The .05 mg/M3 TLV for vanadium fumes is a ceiling limit. As 

Mr. Dennehy indicated, a ceiling limit means that at no time 

should this limit be exceeded CT. 35). Once he ascertained the 

TLV for vanadium, Mr. Dennehy discussed his calculations with 

Richard L. Duran, an MSHA industrial hygienist in Denver to be 

certain of his calculations. Mr. Duran concurred that the 

calculations were correct. 

Mr. Dennehy also discussed with Mr. Duran an error factor in 

the exposure. He then calculated an error factor of 1.16; even 

with this error factor the exposure was above the .05 milligrams 

indicated in the TLV booklet CT. 38). 

Vanadium is an element found in hard metal, in this case, in 

the rods being used to weld. Aplication of heat vaporizes the 

material and if it is mixed with air or it oxidizes, vanadium 

pentoxide results CT. 100). The sample taken by the Inspector 

indicated the presence of vanadium; as above noted, the TLV is 

stated in terms of vanadium (fume or dust) not vandiurn pentoxide 

(T. 100, 102, 168). A welding operation using a rod containing V 

will produce V205 CT. 34, 101). The TLV booklet indicates that 

the standard for vanadium fume is .05 milligrams per cubic meter. 

Here, where the value is .0678 milligrams per cubic meter of 

vanadium, there would have been two and one-half times as much 

vanadium pentoxide as vanadium because vanadium pentoxide is 

heavier than vanadium. The value for V205, vanadium pentoxide, 

would be two and one-half times as great as the value for 

vanadium (T. 102). An overexposure then to .0678 milligrams per 

cubic meter of vanadium would indicate an exposure to V205 at two 

and a half times that amount (T. 102, 168). The TLV booklet 

indicates a ceiling level of .05 for vanadium fume. An exposure 

of .0678, as in this case, is an incursion of 35 to 36 percent 

over the TLV CT. 103, 159) and is in and of itself a violation of 

the subject safety standard CT. 220, 223, 236, 237). 

At no time did the employees tested use respirators while 

engaged in welding and while the sampling was being conducted (T. 

35), nor was the exhaust fan at the crusher system turned on CT. 

287 
35, 36) until the afternoon of the sampling day (T. 36). Had the 

exhaust fan been operating, the miner (welder) involved would not 

have been over-exposed CT. 35, 36, 71). 

Visible dust in the area where the sampling was conducted 

was not observed by either the Inspector (T. 17) or by 

Respondent's observer, Steve Findlay (T. 191, 192). 

After discussing the matter with Mr. Duran, the Inspector 

indicated on the Citation that the ocpurrence of the event 

against which the cited standard is directed was reasonably 

likely and that the injury resulting from or contemplated by the 

occurrence of such event could reasonably be expected to be 

"permanently disabling" (T. 38-40, 77-80). At hearing, the 

Secretary abandoned the contention that any resultant injury 

would be permanently disabling (T. 156). 

At all times during the inspection and the conducting of the 

air samples, Mr. Dennehy followed the proper procedure and used 

the proper filters and equipment (T. 83, 95-96, 99, 136, 140-142, 

168}. Mr. Dennehy's sample, therefore, was accurate and showed 

that overexposure had occurred to at least one employee as indicated by sample MD-1 on Exhibit P-4. The sampling was conducted for vanadiumn fume which I conclude was proper in this 

instance. Thus, Mr. Duran, MSHA's expert witness, testified that 

during the welding process, when the materials vaporized and mix 

with the air and condense, fume is produced (T. 98-99). Mr. 

Duran also credibly testified with respect to the propriety of 

testing for fume, to wit: 

"Q. Based on Mr. Dennehy's testimony and in your opinion, 

was it appropriate for Mr. Dennehy to test for fume? 

A. Yes o 

Q. Why is that? 

A. The rod and the metal that's being welded in the welding 

process 0 there will be material vaporized when the vapor -- and 

as I indicated, when materials vaporize and mixes with the air 

and condensed, it is a fumeo The welding process itself does not 

produce any dust. 

Q" Just a fumeo 

A. Yes. 

Q. Now, based on the testimony you heard and in your 

opinion, was there a fume present? 

A. Yes. 

Q. I'll r~fer your attention again to the TLV booklet that 

you have in front of you. There's a listing for vanadium and 

right after vanadium it says V205. Will you explain what that 

indicates? 

288 
A. Tbe standard is for vanadium V205, vanadium pentoxide. 

But the standard is in terms of vanadium. Not vanadium 

pentoxide. 

Q. What does that mean as far as --

A. It just simply means that in the case of welding the 

standard is vanadium pentoxide. But as far as the analysis and 

the concentration of air, it's all based just on vanadium. Not 

vanadium pentoxide. 

Q. Okay. How does one get vanadium pentoxide? 

A. You get it from welding. 

Q. What is it exactly? 

A. Well, as I indicated, you may have, say, a metal, 

vanadium, and if you heat it or in the case of welding, you 

vaporize some of the material. If it mixes with air or oxidizes, 

then you can get vanadium pentoxide. 

Q. In your opinion, was vanadium pentoxide present? 

A. Yes." (T. 99-100}. 

Inspector Dennehy's testing for vanadium fume, rather than 

testing for vanadium dust or some other "mixed" test, is thus 

supported in the record and found to be proper (T. 34-35, 50-53, 

96-99, 136-138, 140, 159, 168, 236-238). The TLVs themselves, 

being an incorporated and integral part of the safety and health 

standard involved, call only for determination of either a fume 

or a dust measurement. 

Discussion 

As one of its concerns, Respondent, citing the decision of 

the Federal Mine Safety and Health Review Commission in Secretary 

v. Tamrnsco, Inc. and Schmarje, 7 MSHRC 2006 (1985>v argues that 01 the law requires that a violation of 30 C.F.R. § 57.5001/5005 be 

established by actual sampling and analysis." Respondent 

emphasizes in its argument that exposure levels are to be determined by actual sampling, not by inference, and goes on to 

argue Cl) that a reading for vanadium alone is insufficient to 

sustain a finding of vanad1um pentoxide exposure, and (2) that 

the law requires and MSHA must prove that the type of activity 

performed by Respondent created the presence of vanadium 

pentoxid~. Respondent's contention to the contrary, the TLVs 

patently contemplate the determination of vanadium pentoxide be 

made by testing (sampling) either vanadium fume or vanadium dust. 

CT. 100-102, 168, 236-238). In Tamrnsco 1 supra, MSHA conducted no 

sampling or testing. However, in the instant matter, the record 

is clear that Inspector Dennehy's determination that the exposure 

289 
level exceeded the applicable TLV was based on acutal sampling 

following lengthy procedures and not on inference. The differences between that proceeding and this, as well as the differences and interplay between 30 C.F.R. § 57.5001 and 5005 were 

pointed out by the Commission in Tammsco, to wit: 

"We agree with the judge that in order to establish a 

violation of section 57.5-5, the Secretary must first prove a 

violation of section 57.5-1. It is clear from the language of 

the Secretary's standard that section 57.5-5 establishes an 

exception to the general mandate of section 57.5-1 which requires 

that airborne contaminants not exceed th~:;ir TLV, and that the 

application of section 57.5-5 is conditioned specifically on a 

determination that miners are exposed to excessive levels of 

airborne contaminants in violation section 57.5-1. These exposure levels are to be determined by actual sampling, not by 

inference. As the judge noted, however, the citation at issue 

alleges a failure to comply with a provision of the "dust control 

plan", and does not allege overexposure to airborne contaminants. 

We agree with the judge that the Part 57 air quality standards do 

not provide for the adoption and approval of a dust control plan 

which can be enforced as a mandatory health standard. Cf. Carbon 

County Coal Co., 7 FMSHRC 1367, 1370 (September 1985)(discussing 

the approval and adoption of dust control plans required by 30 

U.S.C. § 863(0)). For this reason, and because no monitoring, 

testing or sampling of employees or the atmosphere was performed 

by MSHA during the inspection, the judge correctly dismissed the 

proceedings." (Emphasis added). 

The "exception" to the proscriptions of subsection 5001 

referred to in the opening line of 5001, i.e. "Except as 

permitted by§ 57.5005" is contained in the second and third 

sentences of subsection 5005. These two sentences permit miners 

in certain specified situations to work "for reasonable periods 

of time" in concentrations of airborne contamination exceeding 

permissible levels "if they are protect by appropriate respiratory protective equipment." 

In this proceeding the Secretary has established that a 

miner was exposed, in violation 30 C.F.R. § 57.5001, to an 

excessive level of airborne contaminant. The Secretary also 

established that the miner was not wearing protective equipment 

and that a ventilation fan in the area involved was not operating 

for a significant part of the time that sampling was conducting 

(T. 35, 36). Respondent, on the other hand, made no showing that 

it was entitled to relief under the Subsection 5005 exception, 

and its various contentions in this connection, being unsupported 

in the record in either fact or legal authority, are rejected. 

Nor does the record support the certitude in Respondent's 

flat assertion (Respondent's Brief at page 5) that" ••• MSHA 

mistakenly assumed that the samples taken on or near the welders 

at the mine on May 15th were entirely welding fumes. In reality, 

290 
vanadium dust from surface brushing entered the filter." Thus, 

Respondent's chi witness on this critical point, Steve Findlay, 

on direct ~xamination, gave an "opinion" on what is a question of 

fact to this effect" .•• I believe, the sample was contaminated 

"(T. 186). 

Subsequently on cross-examination, Mr. Findlay, with 

commendable candor, significantly qualified even this opinion: 

"Q. did you, on that particular day -- see if I understand 

this. You testified that the employees were brushing the metal? 

A. Yes. 

Q. Did you see them brushing the metal? 

A. No, I didn't. 

Q. Do you know when that occurred? 

A. I'm sure that occurred prior to them doing the hard 

surfacing. What would happen is they would have to -- each 

teeth, like I said, the separate teeth on the grinder -- as 

they're working on each one of those, the next row they go to 

they probably brush it and so forth. Clean it. 

Q. So you say they probably did that? 

A. Well, it's a standard operating procedure. 

Q. Could they brush the entire -- all of the teeth first 

and then weld? 

A. That's possible, but normally that's not done. 

Q. They lift their mask when they do the grinding? 

A. They usually take off their helmets. 

Q. And they don't use any personal protective equipment 

when they brush? 

A. No. 

Q. And you're not saying they did any grinding on that 

particular day? 

A. Not that I'm aware of. 

Q. You indicated that you were in the area when the 

inspector was, is that correct? 

A. The majority of the time. 

291 
Q. Did you notice any dust in the air? 

A. Well, no. But, you know, you can't see dust. Like some 

micron particles of dust or micron particles, of course, you 

won't be able to see. Visual test of the dusting is not one way 

to monitor the presence of dust. 

Q. I understand that. I'm just asking if you saw anything 

in the air that day that would indicate the presence of dust. 

A. 1\lo. 

Q. Is it your testimony then that this brushing put dust 

particles into the air? 

~. Yes. That's a good possibility. 

Q. What kind of dust particles? 

A. Well, there's shale dust, there's dust also 

vanadium that's been laid on before that. 

om the 

Q. I'm sorry. Are you saying that they brushed the 

vanadium that's already been laid? 

~. No. What I'm saying is they had put a surface of 

vanadium on there prior. Like I said, they've done this before. 

So possibly there was surface metal there brushing and so forth. 

Q. So you're saying that the brushing then puts the dust in 

the air? 

A. That 0 s a possibility. 

Q. That's a possibility. During the welding process, if 

that flame, the welding flame, hits the dust, what effect does it 

have on the dust? 

A. Depending on the force of the flame, I don't know. It 

could make it airborne. I'm not sure. 

Q. Could it turn into a fume? 

A. The dust itself? 

Q. Yes. 

A. I wouldn't think so. No. I don't know. 

Q. I'm sorry. You don't know or you don't think so? 

A. I don't know. 

292 
Q. You don't know. All right. I'm not sure I heard 

exactly what you said, but you said that the samples were 

word did you·use? You had an opinion as to the sampling 

procedure. 

A. I believe what I said was the sample might have been 

contaminated. 

what 

Q. Might have been contaminated. And what's the basis of 

that opinion? 

A. Well, we're sampling for fume and there's a possibility 

that particulates could have ended in the filter. 

Q. Would those particulates have entered the filter while 

they had their masks down? Their welding masks. 

A. I don't see how. 

Q. So it would have been during the time they had taken 

their -- are they called masks or shields? 

A. Hoods. 

Q. Hoods. During the time they took those hoods off? 

A. Right. The shades on those are so dark that it would be 

quite impossible to do any work outside of welding using that 

torch with the hood on. You just couldn't see. 

Q. I believe you told me that you didn't stay with these 

welders all day as the inspector didn't stay with them. 

A. Right. 

Q. And did you see how often or were you able to observe 

how often they had their hoods on or off? 

A. No. The only time I observed it, of course, was when I 

went up to change my filters. 

Q. What were they doing when you changed your filters? 

A. Mr. Everett, I believe, was sitting -- I was talking to 

him for a while. He was changing some rods. And he was talking 

about taking a break. It was close to 2:00 o'clock. And I 

didn't observe him doing anything else. 

Q. Did you observe them welding during the day? 

A. Yes. 

Q. Did you observe them doing any brushing during the day? 

293 
A. Not that I can recall. 

Q. Now, you indicated that in your opinion -- correct me if 

I'm wrong. In your opinion the sample might have been 

contaminated. 

A. Yes. 

Q. Contaminated with 

A. Particulates. 

Q. Particulates. Now I understand you're not a c'hemist, 

right? 

~. Right. 

Q. Do you know if that has any effect on the analysis that 

is done? 

A. It could. I mean, if you have vanadium from other 

sources it could have an effect because what you're measuring on 

the analytical is the total vanadium. You can't distinguish 

between one that's coming from a fume and one that's not. (T. 

190-195)." (Emphasis supplied.) 

On the basis of the speculative nature of this evidence, and 

in the absence of testimony from other witnesses having actual 

knowledge with respect to dust being present, the quantities 

thereof, as well as the specific effect if any, such would have 

on the sampling results, I am unable to find, as Respondent 

urges, that the Inspector's vanadium fume testing procedures were 

defective or that the results thereof were invalid as to sample 

number MD-1 <Ex. P-2). I jhave previously determined that the 

Inspector's choice to sample for vanadium fume - rather than v 

dust - was proper and justified in the record. From evaluation 

of Mr. Findlay's testimony-and the remainder of the record-one is 

constrained to conclude that Respondent did not establish by 

probative evidence that dust, in any amount, entered the sampling 

filter employed by Inspector Dennehy. In any event, Respondent 

did not establish what, if any, amount of dust entering the 

sampling filter would vitiate the result of Inspector Dennehy's 

testing. 

Although Respondent makes various attacks on the validity of 

the Secretary's testing procedures, the record is bereft of the 

required factual and/or legal foundations therefor. It appearing 

that the Secretary has established by a preponderance of the 

reliable and probative evidence that a miner was exposed to a 

level of airborne contaminant in excess of the applicable TLV, a 

violation of 30 C.F.R. § 57.5001 is found to have occurred. 

294 
The queBtion remains whether this was an S & S violation, 

that is, whether it is of such nature as could significantly and 

substantially contribute to the cause and effect of amine safety 

or health hazard. 

A violation is properly designated,S & S "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

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

In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission 

listed four elements of proof for S & S violations: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: Cl) 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard--that is, a measure of danger 

to safety--contributed to by the violation; (3) a reasonab likelihood that the hazard contributed to will result 

in•an injury; and (4) a reasonable likelihood that the 

injury in question will be a reasonably serious nature. 

In the United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129 (1985) the Commission expounded thereon 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)(l), 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). 

I have previously found that a violation occurred. It is 

also determined on the basis of my prior findings that a measure 

of danger to safety, or in this matter, health, was contributed 

to by the violation. The primary issue raised is whether the 

Secretary established that there existed a reasonable likelihood 

that the hazard contributed to would result in an injury 

(illness). 

Inspector Dennehy indicated in the Citation that an overexposure was reasonably likely to occur. Inspector Dennehy, at 

hearing, expressed a belief this event was reasonably likely to 

occur because the operator did not provide ventilation at the 

site of the welding, nor did they provide respirators to the 

295 
employees who were conducting the welding. As part of the 

process of completing the citation Inspector Dennehy discussed 

this finding with Mr. Duran, as well as the part of the citation 

where he indicated that an injury could occur that might be 

permanently disabling. 

Mr. Duran indicated that the symptoms resulting from an 

overexposure to vanadium "could" create serious health hazards 

CT. 105, 106). His opinion was based on the fact that bronchial 

irritation could occur, as well as possible penumonia or asthma 

(T. 106). Another possible ef feet of vanadium overexposure, 

depending on the individual, is that such an employee could 

become "sensitized" meaning that after being ex.P.osed on one 

occasion he might experience more severe symptoms with the next 

exposure at the same-or even lower-concentration (T. 10&-111). 

Mr. ·Duran indicated that an incursion of 35 percent over the TLV 

would be an exposure of a "moderate" level (T. 109-110). Mr. 

Duran indicated that while symptoms would vary from person to 

person an employee exposed to vanadium at a certain level "might" 

develop symptoms (Tr. 110). He said an employee exposed to .0678 

milligrams per cubic meter of vanadium "could" develop a cough, 

sore throat and have trouble breathing and he could also develop 

symptoms similar to those encountered with the flu (T. 110, 111). 

Such symptoms "could" result in lost workdays and, in Mr. Duran's 

opinion on this point, which I credit, these would be relatively 

serious illnesses (T. 111). 

Close scrutiny of Mr. Duran's testimony in connection with 

the "likelihood" of an injury or illness occurring reveals it to 

be of the same speculative complexion previously attributed to 

Mr. Findlay's testimony respect to the possible contamination of 

the sampling filters. 

In contradiction of Mr. Duran's opinion, Respondent's expert 

witness, Dr. Paul Ferguson, a toxicologist, gave as general 

opinions that an .0678 exposure to vanadium fume would not cause 

an injury resulting in lost work days, that there was not a 

reasonable likelihood that such an exposure would result in an 

illness, and that there was not a reasonable likelihood that any 

resulting illness would be of a reasonably serious nature (T. 

215-217). 

In support of his opinion relating to the probability or 

likelihood that such (.0678 V fume) exposure would result in an 

illness Dr. Ferguson provided the following rationale: 

"A. Based on the scientific literature, .1 milligrams per 

cubic meter.is the lowest level where we see symptoms. They're 

not debilitating symptoms, but an individual will have a slight 

irritation and have some coughing. That can be defined as an 

illness. We don't want to allow our workers to be exposed to 

levels -- how minor do cause symptoms. Above that, the symptoms 

progress severely. the .05 limit includes a safety factor that 

to the best of our knowledge, would provide no symptoms. There 

296 
are no specific scientific literature that tested men and women 

at .05. That lowest level is really a .1 in a controlled 

experimental condition by Zenz and Berg is what the TLV is based 

on and they have that as a safety factor. 

Q. So you would attribute the difference then to a margin 

of safety allowed by the drafters of the TLV's. 

A. Yes." (T. 237, 238). 

Dr. Ferguson's opinion that there was not a reasonable 

likelihood of an injury (illness) occuring at the level of 

exposure detected by Inspector Dennehy is, in view of its 

positive and convincing tenor and supportive rationale, accepted. 

Such is deemed to rebut and overcome any presumption to the 

contrary. See Consolidation Coal ~ompany, 8 FMSHRC 890 (1986). 

Accordingly, it is concluded that the violation is not S & S. 

PENALTY ASSESSMENT 

The Secretary proposes a penalty of $112.00 which in his 

post-hearing brief the Secretary concedes takes into consideration a low degree of gravity. Other mandatory penalty 

assessment criteria were the subject of stipulation by the 

parties at t hearing (T. 4), and based thereon it is found that 

Respondent is a large mine operator, that payment of a penalty at 

the monetary level urged by the Secretary will not jeopardize 

Respondent's ability to continue in business, and that 

Respondent, after notification of the violation, proceeded in 

good faith to achieve rapid compliance with the subject safety 

and health standard. The computerized printout submitted by the 

Secretary as evidence of Respondent's history of prior violations 

for the 2 year period preceding the issuance of the Citation involved here reflects that Respondent committed 12 violations 

during such period. 

With respect to the remaining mandatory penalty assessment 

criterion, negligence, the Secretary's apparent theory is that 

Respondent negligently failed (a) to provide the subject miner 

with respiratory protective equipment, and (b) turn on an exhaust 

fan in the area where the welding was being conducted. Would the 

fan, in the terms of the standard, 30 C.F.R. § 57.5005, have removed the airborne contaminants by "exhaust ventilation" or have 

controlled employee exposure by "dilution with uncontaminated 

air"? According to the Inspector, if the fan had been operating, 

the welders would not have been "exposed whatsoever" (T. 36). 

The provision specifically requiring protective respiratory 

equipment is applicable only where the 5005 exception to 30 

C.F.R. § 57.5001 is claimed or established by the respondent mine 

operator. Such is not the case here. 

While I am unable to fully fathom the Secretary's theory of 

negligence, it does appear, insofar as the welders were allowed 

to conduct welding with the exhaust fan turned off, that 

respondent was negligent in this regard. According to the 

Inspector, employment of the exhaust fan would have alleviated 

297 
the overexposure. Respondent did not rebut this evidence; nor 

did it claim or show any reason why the fan could not have been 

turned on, or otherwise present any justification, such as lack 

of awareness, for this nonfeasance. I infer from the facts that 

Cl) such an engineering control measure (exhaust fan) was available and (2) that such was in fact operated in the afternoon of 

the sampling day, that this measure could have been utilized 

prior thereto on the inspection day to prevent the overexposure 

documented by the Inspector and that Respondent was negligent in 

not doing so. 

On the basis the foregoing considerations a penalty of 

$75.00 is found appropriate and is assessed. 

ORDER 

1. Citation No. 2355268 is modified to delete that portion 

thereof alleging that the violation charged is "Significant and 

Substantial" and affirmed in all other respects. 

2. Respondent shall pay the Secretary of Labor within 30 

days from the date hereof the sum of $75.00 as and for a civil 

penalty. 

/tf~4,/ ~ J!t:~~>t/! Michael A. Lasher, jr. 

Administrative Law Judge 

Distribution~ 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 <Certified Mail> 

Anthony D. Weber; Esq., Union Oil Company of California, 461 

South Boglston Streetr Room 1123, Los Angeles, CA 90017 

(Certified Mai 1 i 

/bls 

298 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 131987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOLAR FUEL COMPANY, INC., 

Respondent 

DECISION 

Docket No. PENN 86-288· 

A. C. No. 36-06289-03513 

Solar No. 10 Mine 

Appearances: Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

David c. Klementik, Esq., President, Solar Fuel 

Company, Inc., Friedens, Pennsylvania, for 

Respondent. 

Before: Judge Maurer 

This case is before me upon the petition for civil penalty filed by the Secretary of Labor pursuant to section 105(d} 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq., the "Act," for alleged violations of regulatorv 

standards-.~The general issues before me are whether the Solar 

Fuel Company (Solar) has violated the cited regulatory standards and, if so, what is the appropriate civil penalty to be 

assessed in accordance with section llO(i) of the Act. Additional issues are also addressed in this decision as they relate to specific citations. 

The case was heard in Pittsburgh, Pennsylvania, on 

January 8, 1987. Both parties waived the filing of posthearing brie 

STIPULATIONS 

The parties stipulated to the following (Tr. 7-8): 

1. The Solar No. 10 Mine is owned and operated by the 

respondent, Solar Fuel Company, Inc. 

2. The Solar No. 10 Mine is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977. 

3. The presiding Administrative Law Judge has jurisdiction pursuant to section 105 of the Act. 

299 
4. The citations and their terminations involved herein 

were properly served by a duly authorized representative of 

the Secretary of Labor upon an agent of the respondent at the 

dates, times, and places stated therein and may be admitted 

into evidence for.the purpose of establishing their issuance. 

5. The parties stipulate to the authenticity of their 

exhibits but not to the relevancy of the truth asserted therein. 

6. All of the alleged violations have been abated within 

a timely fashion. 

7. The total production of Solar No. 10 Mine is between 

50,000 and 100,000 tons of coal per year. 

8. The Solar No. 10 Mine began operations in March of 

1986. The three violations at issue were the first violations 

cited at the mine. There are no previous violations. 

Citation No. 2694689 

The Secretary, by counsel, has moved to vacate this c 

tion and withdraw the civil penalty assessed thereon. I 

granted this motion on the record at the hearing of this case 

(Tr. 5). 

Citation No. 2694571 

At the hearing and on the record, the Secretary moved to 

modify this citation to remove the "significant and substantial" allegation and the respondent, of course, did not object. I granted the motion (Tr. 9). This section 104(a) citation alleged a violation of 30 C.F.R. § 77.0516 and the respondent later admitted the violation (Tr. 60}. Under the 

circumstances, I conclude that a civil penalty in the amount 

of $25 is appropriate under the criteria set forth in section 

llO(i) of the Act. 

Citation No. 2 

This citation al s a "significant and substantial" 

violation of the _regulatory standard at 30 C.F.R. § 75.1002-l(a) 

and al s as follows: 

Two pieces of non-permissible electric equipment 

were found to be located within 150 feet from 

pillar workings (cave). A G.E. safety switch 

manual control on/off breaker box used to supDly 

power to the conveyer head and an Allen Br~dley 

metal control box used to supply power to the 

JABCO box which is to start and stop the pan 

300 
line and conveyor head automatically were found to 

be in a non-permissible condition in that openings 

iti excess of .009 of an inch were found in both 

boxes. Both of these non-permissible boxes were 

located in the No. 14 room of the 2 right section 

o of the 1st South mains (003) section. These 

boxes were found to be located approximately 82 

feet from pillar workings. The pillared area was 

located in the No. 2 room and such measurements 

were taken from the toe of the fall to the nonpermissible boxes. Line brattice was being used 

to separate the No. 13 room from the No. 14 room. 

The cited standard requires as relevant hereto that electrical equipment must be permissible and maintained in a permissible condition when located within 150 feet of pillar 

workings. The factual testimony of MSHA Inspector Joseph 

Trybus to the effect that two pieces of nonpermissible electrical equipment were located approximately 82 feet from such 

pillared workings is not disputed. 

The two pieces of equipment cited by the inspector were 

safety switch control boxes and he testified that the hazard 

he was concerned with would be methane entering these nonperrnissible boxes and a random spark causing an explosion. 

He further testified that although he detected no methane at 

the time of his inspection, there is always the possibility 

of the reversing itself in the mine or the possibility 

of the r not getting to a certain area which could cause a 

methane build-up and which could in turn enter the nonpermissible equipment. 

In the event of a methane explosion, he would expect it 

to be reasonably likely that serious to fatal injuries would 

occur to persons working in that area. There were approx~­

mately seven men working on this section at the time. 

I find that the facts of this violation are not seriously in dispute and the violation is accordingly proven as 

charged. Within this framework of unrebutted evidence it 

may also reasonably be in that this condition constituted a "significant and substantial" violation of the cited 

standard. See Secretary v. Math s Coal , 6 FMSHRC 1 

(1984). violation was acco ng a so o a serious 

nature. Moderate negligence may also reasonably be inferred 

from the circumstances. The area of the mine is frequently 

examined and management knew or at least should have known 

of the non-permissible condition of these boxes and their 

distance the pillar workings. 

301 
Considering the statutory criteria contained in section 

llO(i) of the Act, I find that a civil penaltv of $126, as 

proposed, is warranted. 

Citation No. 2694573 

This citation alleges a "significant and substantial" 

violation of the regulatory standard at 30 C.F.Ro § 75.301 

and alleges as follows: 

The quantity of air reaching ·the last open crosscut between the Nos. 2 and 1 rooms of the 3 right 

butt off of 1st South (005) section as measured 

with a Taylor anenometer and watch was found to 

be only 7,200 cubic feet a minute. The law requires that the minimum quantity of a reaching 

the last open crosscut in any pair or set of developing rooms shall be 9,000 cubic feet a minute. 

Once again, the respondent does not dispute the facts 

alleged in the citation (Tr. 44) and since those facts, if 

true, amount to a violation of the cited standard, I find 

that the violation, as charged, is proven. 

The inspector marked this as a "significant and substantial" violation because of the possibility of fumes, gases, 

respirable dust, methane and smoke entering the intake air 

and the further possibility of an ignition source from nonpermissible equipment operating on the section. The result, 

he testified, could be an explosion. There were three men 

working on the section at that time. 

The respondent doesn't believe that the violation should 

be classified "S&S" because their position is that the drop 

in airflow was of a temporary nature, caused by a displaced 

line brattice. However, I note Mr. Klementik had no knowledge of when it was dislodged or how long it had been out of 

place prior to the inspector's writing the citation" 

I fully credit the factual and opinion testimony of 

Jnspector Trybus on the significance of this violation and 

in light of the seriousness of the injuries that could reasonably have been caused by the lack of reaching the last 

open crosscut between the rooms cited, I find the violation 

was "significant and substantial. 11 Mathies, supra. 

I have considered the criteria in section llO(i) of the 

Act and I conclude that the proposed civil penalty of $54 is 

appropriate. 

302 
ORDER 

Solar Fuel Company, Inc., is hereby ordered to pay the 

following civil penalties within 30 days of the date of this 

decision: 

Citation No. 

2694571 

2694572 

2694573 

2694689 

Distribution: 

Total: 

Amount 

$ 25 

$126 

$ 54 

Vacated 

$205 

aurer 

'strative Law Judge 

Susan M. Jordan, Esq., Office of the Solicitor, U. s. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

David C. Klementik, . , President, Solar Fuel Co., Inc. , ~. 

#1, Friedens, PA 15541 (Certified Mail) 

yh 303 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 13 1987 

CHARLES F. ROSE, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. 

0 

Docket No. WEVA 86-379-D 

MORG CD 86-11 

Pursglove No. 15 Mine 

SUPPLEMENTAL DECISION 

Before: Judge Weisberger . 

In my Decision in this matter, issued on January 12, 1987, I 

directed counsel to submit to me a statement of their agreement 

as to amounts owed to Complainant by Respondent pursuant to 

paragraphs 3. and 4. of my Decision. 

On January 28, 1987, Complainant filed a statement that the Pa~ties had reached an agreement as to the amounts owed 

Complainant pursuant to paragraphs 3o and. 4. of my Decision. 

It is therefore ORDERED thatg 

1. Within 30 days Respondent shall pay Complainant $775.25 

as legal fees and costs and $787.88 as the amount due Complainant 

pursuant to paragraph 4. of my Decision of January 12, 1987. 

2~ My Decision of January 12, 1987 is NOW final. 

(€__ I ~ .~~. Avarm Weisberger 

Administrative Law Judge 

304 
Distribution: 

Mr. Charles F. Rose, R. D. #1, Box 6, Spraggs, PA 15362 

(Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

dcp 

305 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES. 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

FEB 13 1987 LEON~RDO R. LAMAS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

DUVAL CORPORATION, 

Respondent 

Docket No. WEST 86-99-DM 

MD 85-45 

DECISION 

Appearances: Leonardo R. Lamas, 'l'ucson, Arizona, 

pro se; 

Before: 

G. Starr Rounds, Esq., Evans, Kitchell & ~enckes, 

Phoenix, Arizona, 

for Respondent. 

Judge Lasher 

This proceeding, which was initiated by the filing with the 

Federal Mine Safety and Health Review Commission of a complaint 

of discrimination by Leonardo R. Lamas (herein "the Complainant") 

on March 24, 1986, arises under Section 105Cc} of the Federal 

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

( 1982) <herein "the Act") • 

By letter dated February 28, 1986, the Complainant had been 

notified that his complaint before the Labor Department's Mine 

Safety and Health Administration (MSHA), which was filed on an 

indeterminate date in October, 1985 had been investigated and the 

determination made that a violation of Section 105(c) of the Act 

had not occurred. Under the Act, a complaining miner has an 

independent right to bring a second complaint before this .Commission and this proceeding is based on that right. 

On August 11, 1986, the Respondent filed a motion for 

summary judgment alleging inter alia that the complaint was not 

timely filed since it was filed iTlC.>re than 60 days-approximately 2 

years-after the last alleged discriminatory action of Respondent, 

i.e., the termination of Complainant's employment on August 21, 

1983. 

A preliminary hearing to determine the issues raised by the 

motion to dismiss was held on the record in Tucson, Arizona, on 

306 
November 19, 1986, at which Complainant l; and Harlen Klemetson, 

a former official of Respondent, testified. 

The record herein reflects that on August 21, 1981, 

Complainant was placed on a disability leave status by Respondent 

because he was unable to perform his duties and his doctors would 

not release him for work. Two years later, on August 21, 1983, 

Complainant was terminated pursuant to Article IV, Section 3(2) 

of the pertinent collective bargaining agreement. Complainant's 

complaint with MSHA was filed sometime in October, 1985 (Ex. C-1~ 

T. 17). Thereafter, by letter dated February 28, 1986, Complainant was advised by a Labor Department official that on the 

basis of MSHA's review "MSHA has determined that the facts disclosed during the investigation do not constitute a violation of 

Section 105(c)." 

After Complainant's termination, Respondent heard nothing 

further regarding such termination until sometime in about midOctober, 1985 when it was informed by MSHA that Complainant had 

filed a complainant alleging discrimination CT. 17-20; Ex. R-1). 

In early 1986, Respondent sold its Arizona operations. As a 

result, it retained only three of its employees who have been 

assisting in the transition but whose relationship with Duval 

will soon end CT. ,24-26). All of the potential witnesses either 

expressly named by Lamas in his Complaint or necessarily involved 

in events described by or affecting Lamas are no longer employed 

by Duval. Aside from outside doctors to whom Lamas was referred, 

these potential witnesses include a number of his foremen, safety 

supervisors, individuals involved in decisions regarding massive 

layoffs, recalls, and the handling and distribution of benefits, 

the directors of personnel and labor relations, their assistants 

and others {T" 25-29; Ex. C-1). 

Section 105(c) of the Act, 30 U.S.C. § 815(c)(2), states, in 

pertinent part: 

"Any miner ... who believes that he has been discharged, 

interfered_with, or otherwise discriminated against by 

any person in violation of this subsection may, within 60 

days after such violation occurs, file a complaint with 

the Secretary alleging such discrimination." (Emphasis 

added)o 

11 Complainant noted at the commencement of the hearing that 

there was no interpreter present. It' appeared, however, that he 

understood English, understood the questions asked him by readily 

answering them, was perfectly able to ask questions himself, and 

that he had a keen grasp of the hearing situation and of the 

subleties and complexities of the matters involved in the 

hearing. 

307 
The MSHA complaint having been filed in October 1985, there 

is no question but that it was filed with the Secretary more than 

2 years beyond the 60-day period prescribed in section 105Cc) of 

the Act. 

The Commission has held that while the purpose of the 60-day 

time limit is to avoid stale claims, a miner's late filing may be 

ecused on the basis of "justifiable circumstances," Joseph W. 

Herman v. IMCO Services, 4 FMSHRC 2135 (December 1982). The Mine 

Act's legislative history relevant to the 60-day time limit 

states: 

While this time-limit is necessary .to avoid stale claims 

being brought, it should not be construed strictly where 

the filing of a complaint is delayed under justifiable 

circumstances. Circumstances which could warrant the 

extension of the time-limit would include a case where 

the miner within the 60-day period brings the complaint to 

the attention of another agency or to his employer, or the 

miner fails to meet the time limit because he is misled as 

to or misunderstands his rights under the Act. S. Rep. No. 

181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th 

Cong., 2d Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 624 (1978) (emphasis 

added) . 

Timeliness questions therefore must be resolved on a 

case-by-case basis, taking into account the unique circumstances 

of each situation. 

After considering the testimony, exhibits, and arguments 

submitted by the parties, it is concluded that the Respondent's 

position in seeking dismissal is meritorious. 

Complainant 1 s attempted justification for the delay is in 

the form of a barren assertion that he was engaged in a Workmen's 

Compensation matter and that "the lawyers and the people" from 

MSHA, and MSHA Inspector Pascoe, had advised him "to wait and see 

the results" CT: 17>. In light of his entire testimony and 

Respondent 9 s rebuttal evidence, I find Complainant's assertions 

incredible, vague~ and not probative. Thus, Complainant Lamas 

admits that prior to his termination in August 1983, he had 

several conversations with MSHA representatives in its Tucson 

office (T. 18). Further, he concedes that he knew he had 60 or 

65 days within which to file a complaint regarding his termination and that this time began to run as of August 21, 1983, the 

date of his termination and the date Complainant put on the face 

of the complaint as Respondent's last act of discrimination (See 

Complainant's deposition, Ex. R-1, at pp. 9-10, 68-69; Attachment 

No. l to R-1: T. 18-19, 36-39). 

Although it would appear that a complainant should first be 

required to establish a recognizable and believable justification 

for a filing delay beyond the 60-day period before any burden 

308 
devolves on a mine operator to show prejudice therefrom, the 

record nonetheless lends support to Respondent's claim that because of the delay it would be prejudiced in its attempt to 

defend itself from the allegations made by Complainant. In its 

brief it alleges: "Duval is barely in existence and soon will not 

exist. It retains only three employees <Ex. C-1~ T. 24, 26). 

All of the alleged participants in the events cited by Lamas are 

no longer employed by Duval. Those responsible for the decisions 

about which he complains and who know the reasons for such 

decisions, e.g., the investigation of the accident in 1979 or 

1980, the transfer request, the payments granted in December, 

1981 and March 1982, do not work for Duval; they, and others who 

could testify about Duval's practices, are no longer its 

employees (Ex. C-1; T. 24-28). Moreover, the events to which 

Lamas refers occurred as early as 1979-1980; they are from about 

four to seven years old (Ex. R-1). Obviously, memories dim with 

the passage of years and it is Lamas' inexcusable neglect or 

failure to act that has caused this situation to exist." 

The 60-day statutory limitation is not a particularly long 

filing period in view of the lack of sophistication of the 

average Complainant and the complexity of some of the legal bases 

for bringing a discrimination action. On the other hand, the 

placement of limitations on the time-periods during which a 

plaintiff may institute legal proceedings is primarily designed 

to assure fairness to the opposing party by preventing surprises 

through the revival of claims that have been allowed to slumber 

until evidence has been lost, memories have faded, and witnesses 

have disappeared. The theory is that even if one has a just 

claim it is unjust not to put the adversary on notice to defend 

within the period of limitation and that the right to be free of 

stale claims in time comes to prevail over the right to prosecute 

them. Where, as here, the filing delay is prolonged, ~/ it seems 

a fair proposition to require (1) a clear justifiable explanation 

thereforu which (2) is supported in the record by substantial and 

reliable evidence. 

The considerable length of the time lapse here as well as 

the bald, inherently dubious, unreliable basis asserted for the 

delay mandate the conclusion that such delay in filing the 

complaint was not justified. 

ORDER 

Respondent 1 s motion to dismiss is granted and this 

proceeding is dismissed. 

. *' /21. -~ y , .. 

v~~~jf: '~?/( Michael A. Lasher, ~t. 

Administrative Law Judge 

~/ This is not the situation sometimes seen where the complaint 

was filed a few days, or even a month, late. 

309 
Distribution: 

Mr. Leonardo R. Lamas, 2010 West Sindle Place, Tucson, AZ 85746 

(Certified Mail) 

G. Starr Rounds, Esq., Evans, Kitchel & Jenckes, 2600 North 

Central Avenue, Phoenix, AZ 85004-3099 (Certified Mail) 

/bls 

310 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 171987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 86-10 

A.C. No. 44-06269-03501 

v. 

ELK CREEK COAL CORPORATION, 

Respondent 

Docket No. VA 86-15 

A.C. No. 44-06269-03502 

DECISION 

Docket No. VA 86-37 

A.C. No. 44-06269-03505 

No. 1 Mine 

Appearances: Sheila K. Cronan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Be e: 

Greg Mullins, President, Elk Creek Coal Corp., 

Grundy, Virginia, for Respondent. 

Judge Melick 

Thes~ cases are before me upon the petitions for civil 

filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et. ~, the 11 Act,n for ten alleged violations 

of regulatory standards. The general issues before me are 

whether the Elk Creek Coal Corporation (Elk Creek) violated 

the cited regulatory standards and, if soff whether the violat ns were of such a nature as could significantly and substant lly contribute to the cause and effect of a mine 

saf or health hazard i e., whether the violations were 

nsignificant and " If violations are found it 

will als6 be necessary to determine the appropriate civil 

penalty to be assessed in accordance with section llQ(i) of 

the .l\ct. 

Citation No. 2763732 charges a violation of the standard 

at 30 C.F.R. § 77.1001 and reads as follows: 

Loose, heavy material was present on the highwall 

between the right hand side of the No. 2 portal and 

the left hand side of the No. 4 portal. The highwall had not been stripped, sloped or benched in 

311 
any manner to correct this condition. This condition was one of the factors that contributed to the 

issuance of immenent [sic] danger order No. 2763731, 

dated 12-3-85; therefore no abatement time was set. 

The cited standard, 30 C.F.R. § 77.1001, requires that 

"[l]oose hazardous material shall be stripped for a safe 

distance from the top of pit or highwalls, and the loose 

unconsolidated material shall be sloped to the angle of 

repose, or barriers, baffle boards, screens, or other devices 

be provided that afford equivalent protection." 

The testimony of MSHA Inspector Larry E. Brown in support 

of the cited violation is, in essential respects, undisputed. 

During the course Df performing an electrical inspection at a 

new high voltage substation at the subject mine on December 3, 

1985, Brown observed loose material on the highwall. The 

material consisted of different sized rock - from hand size 

to about one half the size of a chair - beginning some 25 

feet up the highwall extending to the top. In particular he 

observed loose material between the No. 2 and No. 4 entries 

where the highwall was 80 to 85 feet "straight up." Brown 

also observed a scoop operating beneath this area of loose 

material. 

In defense, Greg Mullins, President of Elk Creek 

testified that an inspector had examined the highwall on 

November 14, 1985, and had "approved it." Even assuming 

however that the highwall conditions were acceptable on 

November 14, 1985, that is no defense to violative conditions 

existing on December 3, 1985. Accordingly the violation is 

proven as charged. The "significant and substantialn 

findings, the likelihood of serious injuries and the moderate 

negligence found by the inspector are substantiated by the 

record and are not disputed. 

Citation No. 2763733 charges a violation of the 

operatorus temporary roof control plan under the standard at 

30 C.F.R. § 75.200 and states as follows: 

A cut of coal had been taken from the No. 3 entry 

and a canopy had not been installed over the portal. 

The roof control plan requires that canopies be 

installed prior to the start of mining operations. 

This condition was one of the factors that contributed to the issuance of imminent danger order No. 

2763731, dated 12-3-85; therefore no abatement time 

was set. 

The cited roof control plan then in effect provides in 

relevant part that: "[m]ining shall commence under a substantially constructed canopy of sufficient size to protect 

312 
the workmen from falling material." According to Inspector 

Brown, work had been performed in the entry,including roof 

bolting, the installation of supports and the removal of coal. 

He accordingly surmised that a number of employees must have 

passed beneath the highwall and would have been exposed to 

the danger of falling rock. 

In defense, Greg Mullins testified that at the time work 

was being performed in the entry a portable canopy was erected 

and provided adequate protection for the miners. Mullins 

noted that no one was seen by the Inspector working in the 

cited entry and construction material was present from which 

the portable canopy had been built. Mr. Mullins' testimony 

in this regard is undisputed and accordingly I cannot find 

that the violation has been proven as charged. Citation No. 

2763733 is therefore dismissed. 

Citation No. 2763734 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 77.1005 

and charges as follows: 

Coal was being stockpiled against the highwall 

between Nos. 2 and 3 portals and loose material had 

not been removed from the highwall. This condition 

was one of the factors that contributed to the 

issμance of imminent danger order No. 2763731, 

dated 12-3-85; therefore no abatement time was set. 

The cited standard provides in relevant part as follows: 

Hazardous areas shall be scaled before any other 

work is performed in the hazardous area. When 

scaling of highwalls is necessary to correct 

conditions that are hazardous to persons in the 

area, a safe means shall be provided for performing 

such work. 

According to Inspector Brown, work was being performed 

beneath the highwall between the No. 2 and No. 3 portals and 

coal was being stockpiled. According to Brown two persons 

were subject to fatal injuries from rock falls. One was 

operating an endloader removing coal and another was piling 

the coal with a scoop. Brown observed that the condition of 

the highwall could further deteriorate over a short period of 

time because of weathering, temperature changes and the 

extraction of coal from ~he entries beneath. 

Mullins again claims that an inspector had examined the 

cited highwall on November 14, 1985 and had "approved it." 

This evidence does not however provide a defense for violative conditions existing on December 3, 1985. 

313 
Accordingly the undisputed testimony of Inspector Brown 

amply supports the •significant and substantial" violation as 

charged. The undisputed evidence also supports a finding of 

high gravity. and moderate negligence. The cited conditions 

were in plain view. Brown's testimony is also fully corroborated by the testimony of MSHA Inspector Luther Ward who was 

also present when.Brown issued this citation. 

Citation No. 2763639 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 77.1001 

and reads as follows: 

Loose hazardous material, (rock). was present on the 

highwall beginning approximately 5 feet to the 

right of the No. 2 drift opening and extending to 

the far right side of the No. 4 drift opening. The 

highwall ranges from approximately 50 feet high to 

approximately 80 feet high. This violation is a 

ccintributing factor to the issuance of 107.A order 

no. 2763638 dated 2/19/86. Therefore, a termination due .date is not given. 

MSHA Special Investigator Carl Coleman was performing a 

spot inspection on February 19, 1986, when he discovered the 

cited conditions. Based on his observations he opined that 

the loose material on the highwall could fall and strike 

miners working below. He observed that wood and rock dust 

had been stored along the base of the highwall and a trailing 

cable ran along the base of the highwall, therefore making it 

highly likely that miners would be exposed to the danger of 

the rocks falling. According to Coleman a rock falling from 

50 to 80 feet could cause fatal injuries. He felt that the 

dangerous conditions were obvious and should have been discovered during the required daily examination. 

In defense, Mullins again observed that the highwall had 

been inspected on November 14, 1985, and had then been 

"approved." This evidence is not a defense to the conditions 

existing more than 3 months later however. In the absence of 

any contradictory evidence I accept the testimony of Inspector Coleman and find that the "significant and substantial" 

violation is proven as charged, that the violation was of 

high gravity and it was the result of operator negligence. 

Citation No. 2762857 alleges a "significant and substantial" violation of the operator's roof control plan under 

the standard at 30 C.F.R. § 75.200 and charges as follows: 

The approved roof control plan was not complied 

with in the No. 2 and No. 4 entries on the 001 

active section for installation of the resin 

grouted roof bolts. The crosswise spacing of the 

installed roof bolts in several difference [sic] 

314 
locations measured to 53 inches to 66 inches wide. 

The approved roof control plan requires that roof 

bolt spacing be 48 inches wide beginning at portal 

and extending underground the approximate distance 

of 60 feet. 

The charges are based upon the diagram on pages 14 and 

15 of the operator's roof control plan (Exhibit G-4) showing 

a 4-foot by 4-foot crosswise spacing of roof bolts. 

According to MSHA Inspector Ronald Matney the roof bolts he 

found on December 10, 1985, were indeed in excess of that 

requirement. 

According to Matney the entry had been driven some 60 

feet in the No. 2 and No. 4 headings and approximately 20 

rows of roof bolts had been installed with 4 roof bolts in a 

row. Approximately 20 bolts in each entry exceeded the plan 

requirement. Matney believed this condition to be particularly hazardous because of the shaley slate roof and because 

of the nearby outcropping. It is not disputed that with the 

excess spacing between roof bolts loose rock could fall on 

miners resulting in very serious injuries. By December 17, 

the condition had been completely abated. 

In defense Mullins testified only that he never "saw" 

any bolts more than 48 inches apart. The fact that Mullins 

failed to see the violative conditions is no defense. The 

undisputed evidence clearly supports this "significant and 

subst"antial" violation and the negligence associated therewith. 

Citation No. 2762858 alleges a "significant and substant l" violation of the operator's roof control plan under 

the standard at 30 C.F.R. § 75.200 and charges as follows: 

The approved roof control plan was not complied 

with on the 001 section in the No. 4 entry in that 

the entry width was measured to be 20 feet wide for 

the distance of approximately 20 feet beginning at 

approximately 40 feet inby portal and extending 

underground the distance of approximately 20 feet. 

The approved roof control plan requires that width 

for entry be 16 feet. 

The testimony of Inspector Matney in support of this 

violation is alao undisputed. The roof control plan (page 

14, Exhibit G-4) requires the entry to be no more than 16 

feet wide. Here it is not disputed that the entry was 20 

feet wide for a linear distance of 20 feet at a point 40 feet 

inby the portal. Coleman opined that under the circumstances 

a roof fall would be reasonably likely and result in serious 

injuries. The condition was abated by the installation of 

cribs on December 12. 

315 
In defense, Mullins testified that he had placed 8 

timbers in the cited area to reduce the entry width to 16 

feet. Mullins admitted however that the roof control plan 

requires cribbing and that timbers are not sufficient. Under 

the circumstances the "significant and substantial" violation 

is proven as charged. I find some reduction in the gravity 

of the offense due to the fact that Mullins had placed some 

timbers in the entry in some effort to remedy the violation. 

The violation was the result of gross operator negligence 

however for knowingly violating a provision of the roof 

control plan. 

Citation No. 2762859 alleges a violation of the standard 

at 30 C.F.R. § 75.1713-2 and charges as follows: 

A communication system, telephone or other means of 

prompt communication were not established from the 

mine to the nearest point of medical assistance for 

use in an event of an emergency. 

The cited standard provides as follows: 

(a) Each operator of an undergrounQ coal mine shall 

establish and maintain a communications system from 

the mine to the nearest point of medical assistance 

for use in an emergency. (b) The emergency communications system required to be maintained under paragraph (a) of this section 75.1713.2 may be established by telephone or radio transmission or any 

other means of prompt communication to any facility 

(for example, the local sheriff, the state highway 

patrol, or local hospital) which has available the 

means of communication with the person or persons 

providing medical assistance or transportation in 

accordance with the provisions of section 75.1713.l. 

According to Inspector Coleman there indeed was no communic3. tion system at Elk Creek meeting the noted requirements. 

Moreover the on-site Supervisor, George Owens, admitted that 

he did not have a communications system. According to 

Coleman there was a telephone within 1-1/2 miles of the mine 

site and since the mine had not been developed very far, 

medical assistance could have been obtained "pretty fast." 

Accor ng to Mullins there was also a "CB" radio in a 

pickup truck that was always parked at the mine. Mullins did 

not however establish that the "CB" provided a method of communication to a requisite medical or other emergency facility 

as required by the cited standard. Mullins disagreed with 

Matney and claimed that the nearby mine having a telephone 

was located only 1,000 away. Under the circumstances 

however I believe that the violation is proven as charged but 

was of minimal gravity and the result of little negligence. 

316 
Citation No. 2762860 alleges a violation of the standard 

at 30 C.F.R. § 75.313 and charges that "the S and S scoop 

serial No. 482-1567 was being used in the face area of the 

No. 2 entry without a methane monitor." 

The cited standard, 30 C.F.R. § 75.313, requires in 

essence that an approved methane monitor be installed on any 

electric face equipment and that such monitor be kept operative, properly maintained and frequently tested. According 

to Coleman the cited scoop was bei~g used as a loading 

machine and had no methane monitor. He felt that the violation was not "significant and substantial" because the mine 

was new (having been developed only 60 feet underground) and 

there had never been any methane found therein, 

In defense Greg Mullins testified that he "didn't think" 

the scoop was in operation. Under the circumstances this 

moderately serious violation is proven as charged. Since 

management had to authorize the use of the cited equipment it 

clearly knew of the violative condition. Accordingly I find 

the violation was the result of operator negligence. 

Citation No. 2763482 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 48.6 and 

charges in relevant part as follows: Burl Vires •.• 

employed underground on the 001 section as a roof bolt 

operator has not received the newly employed experienced 

miner training." Citation No. 2763484 similarly charges that 

employee Blane Owens had not received the newly employed 

experienced miner training. 

According to Inspector Coleman both employees admitted 

that they had not been given any training. According to 

Coleman employees not having received such training might not 

be familiar with the roof control plan, the ectrical and 

other equipment, and the availability of emergency communications systems. He was particularly concerned that the new 

employees would not be trained in the spacing of roof bolts 

and the necessi of supplemental support, and f t that this 

deficiency would reasonably likely lead to serious injuries. 

In defense Mullins testif i that both employees had 

received training at previous mining jobs and that in 

they had been given training at Elk Creek. According to 

Mullins they were merely unable to produce the corresponding 

training certificates. I do not however find this testimony 

credible in light of the admissions by both employees that 

they indeed had not received the requisite training. Accordingly the violations are proven as charged. Based on the 

undisputed testimony of Inspector Coleman these violations 

were so "significant and substantial" and of high gravity. 

317 
Since Mullins clearly knew of the training requirements I 

find that the violations were also the result of operator 

negligence. 

In determining the appropriate civil penalties in these 

cases I have also considered the testimony that the cited 

mine is not now in operation. According to Mullins however 

the mine will be reopened as soon as market conditions 

warrant. I have also considered that the operator is small 

in size, has a moderate history of violations, and that the 

violations were abated within the framework of the Secretary's requirements. Accordingly the following civil 

penalties are deemed appropriate: 

Citation No. 2763732 - $400 

Citation No. 2763733 - vacated 

Citation No. 2763734 - $400 

Citation No. 2762857 - $100 

Citation No. 2762858 - $ 30 

Citation No. 2762859 - $ 20 

Citation No. 2762860 - $100 

Citation No. 2763482 - $200 

Citation No. 2763484 - $200 

Citation No. 2763639 - $400 

ORDER 

The Elk Creek Coal Corporation is her by directed to pay 

civil penalties of $1,850 wit in 0 days o the date of this 

decison. 

G 

Judge 

Distribution: 

Sheila Cronan, Esq., Office of Solicit r, U.S. Department 

of Labor, 4015 Wilson Boulevard, 1 oom 1237A, Arlington, VA 

22203 (Certified Mail) 

Mr. Greg Mullins, President, Elk Creek Coal Corp., P.O. Box 

1379, Grundy, VA 24614 (Certified Mail) 

rbg 

318 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGlNIA 22041 

FEB 19 1987 

ROY W. JOHNSON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

TRI-SON MINING, INC., 

Respondent 

Docket No. VA 86-8-D 

NORT CD 86-6 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant, Roy w. Johnston requests approval to 

withdraw his Complaint in the captioned case on the grounds 

that the parties have reached a mutually agreeable 

settlement. Under the circumstances her,in, permissj'on to 

withdraw is granted. 29 C.F.R. § 2700.l . The case is 

therefore dismissed. 

1 , , ; l 

( / ,-~\ \\ / i 

I , ' l \ \ , l \.. _,/ ,_, \,, !\ \ ~ , ('\_ --- ""' , i \ ! . \ - , .. 

; Gar Melick ·J ~-, ' ' I 

· Administrative Law Judge 

\ Distribution~ ! 

' I , 

Hugh F. O'Donnell, Esq., Client Cehtered Legal Services of 

Southwest Virginia, Inc., P.O. Box 147, Castlewood, VA 24224 

(Certified Mail) 

Barbara L. Krause, Esq., Smith, Heenan & Althen, 1110 Vermont 

Ave., N.W., Washington, DC 20005 (Certified Mail) 

rbg 

319 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

WESTERN FUF.LS-UTAH, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

WESTERN FUELS-UTAH, INC., 

Respondent 

FEB 19 1987 

CONTEST PROCEEDING 

Docket No. WEST 86-108-R 

Citation No. 2832711; 3/1/86 

CIVIL PENALTY PROCEEDING 

DECISION 

Docket No. WEST 86-245 

A. C. No. 05-03505-03524 

Deserado Mine 

Appearances: Karl F. Anuta, Esq., Duncan, Weinberg & Miller, 

P.C., Denver, Colorado, Contestant/Respondent; 

Margaret A. Miller, . , Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, for 

Respondent/Petitioner. . 

Before: Judge Maurer 

The in the above-styled contest proceeding was 

held on July 23, 1986, in Denver, Colorado, before the late 

Judge Carlson. Subsequently, when the civil penalty proposal 

was issued, the ies moved to have it consolidated with 

the contest ing. That motion is hereby granted, and I 

further note that evidence as to the penal was taken in that 

hearing. 

Due to Judge Carlson's untimely death, these cases were 

reassigned to me. The parties have agreed to my adjudication 

of the cases on the basis of the record made be Judge Carlson without tional hearings or briefing. I have cons 

ered all of the arguments made by the ies in their respective brie and I make the following decision. 

320 
Both the contest proceeding and the civil penalty case 

relate to section 104(a) Citation No. 2832711, which was 

issued on March 1, 1986, alleges a violation of 30 C.F.R. 

§ 75.200, and states as follows: 

A fatal accident occurred February 28, 1986 at 

about 10:50 A.M. It was revealed that the roof 

bolting machine operator proceeded about 7 

inby permanent roof supports for reasons other 

than to install temporary supports. The accident occurred in the east mains headgate belt 

entry about 73 feet inby Survey Station 380. 

The incident which up to the fatal accident began 

when the deceased, Austin Mullens, and his supervisor, one 

Carson Julius, trammed the roof-bolter into the entry to begin bol ng. This particular roof-bolting machine is the 

type that has an automatic temporary roof support system 

(ATRS) on the front of the machine. They had set one mat 

and had moved the machine forward to set a second when 

Julius' drill stopped because of a loss of water pressure. 

A water hose had become kinked, so the ATRS system was taken 

down and the machine backed up to straighten out the hose. 

When the machine was backed up, the pan 11 off on the side 

Julius was working on. After the hose was straightened out, 

the bolting machine was again moved forward, and the two men 

discussed how to retr the pan that had fallen out under 

unsupported roof. Julius attempted to drag the pan back 

under supported roof using a four foot steel, but it was 

too short. Julius then went to the back of the machine to 

get a longer steel, but be he went, he specifically told 

Mullens not to go out under the unsupported roof. By the 

time he got to the rear of the machine and turned around, 

Mullens was in front of the roof-bolting machine, out under 

unsupported roof, bending over the pan, trying to lift it 

up. Julius testified he shouted to Mullens to get back. 

Mullens did not respond. He shouted for Mullens to get out 

a second time, but at that moment a large rock fell and 

killed Mullens. 

The parties 1 recitation of the facts of the accident 

in their respective briefs are irly close and indeed the 

s stipulated that on February 28, 1986, Austin Mul 

was seven feet inby permanent roof support for reasons other 

than installing temporary supports when a rock fell and 

killed him. 

30 C.F.R. § 75.200 states in pertinent part that: 

No person shall proceed beyond the last permanent 

support unless adequate temporary support is 

321 
ded or unless such temporary support is not 

required under the approved roof control plan and 

the absence of such support will not pose a hazard 

to the miners. 

Western Fuels' roof control plan prohibits miners from 

travel inby permanent roof support for reasons other than 

installing temporary roof support. It is undi that 

Mullens was inby the permanent roof support, was not protected by temporary support and was there for reasons other 

than to install temporary support. There re, it would appear to be axiomatic that a violation of 30 C.F.R. § 75.200 

0 as alleged" 

However, the operator asserts that any violation of the 

cited mandatory safety standard that occurred was due wholly 

to the negligence of a rank and file miner (Mullens) and 

that s negligence should not be attributed to the onerator. 

Therefore, it follows that the operator did not olate the 

regulat and should not be penalized. 

The law, however, is se. Assuming, arguendo, 

that there is absolutely no evidence of operator negligence 

in this record, the re 1 s contention that it should 

not be held accountable a violation of the mandatory 

safety standard by one of its employees is simply not the 

law as it exists today. This is the case even if I should 

find, and I do, that Mullens for some reason known perhaps 

only to himself, ignored his supervisor's instructions to 

stay out from under the unsupported roof, on seconds before he was killed. 

Th Commission has consistently and .requently held 

that an oerator is L~ r without regard to ault, for 

vio at s 0i the: Act or its regulations corrunitted by its 

emp~oyees. Inc.-Northwestern Mini De t., 8 FMSHRC 

1632 (1986}. s no earing on the 

issue o Rather it is a factor to be considered "n a civ~l Cnited 

• l PMSHRC 1306 (1979); so Rock 

According I find 

for v lat of 30 

Mullens and further find 

9 (1981). 

that the re 

.F .. § 75.20() 

that vie) la ti on to 

nsignifj_cant ar1Cl subst 11ti ff c1r1d SE:~1:-ic us_., 

322 

is liable 

Austin 

usly 
CIVIL PENALTY ASSESSMENT 

parties have stipulated that the Deserado Mine is 

owned by Western Fuels-Utah, Inc., and is a large coal mine. 

They have further stipulated that the proposed penalty of 

$1,000 will not af the operator's ability to remain in 

business and that the citation herein was abated in good faith. 

I have reviewed the operator's violation history for the 

two year period prior to the issuance of the citation at bar 

(Exh it No. R-2), and I have already found the gravity of the 

violation to be serious. Therefore, the sole remaining issue 

relevant to the assessment of the penalty amount is operator 

negligence. 

The fact that the violation in this case was committed 

by a rank and file miner does not necessarily shield the operator from being found negligent. We must look to such considerations as the foreseeability of the miner's conduct, the 

risk involved, and the operator's supervision, training, and 

discipline of its employees with regard to the mandatory 

safety standard at issue. A. H. Smith Stone Co., 5 FMSHRC 13, 

15 (1983). 

I find that the evidence in this record is undisputed 

that the decedent, Mullens, walked out under the unsupported 

roof on his own, contrary to the direct orders of his supervisor. However, the Secretary urges that in this instance, 

the miner's violative conduct was foreseeable and therefore 

his negligence should be imputed to the operator in any event. 

In support of this proposition, the Secretary points out that 

during the investigation of this fatal accident by MSHA, two 

miners came forward and told the investigator that they had 

seen other miners, including Mullens, walking out under unsupporteci roof on prior occasions. 'rhese two miners went on ',~ 

state, however, that they had never info~med anyone in mana_ -

ment of this fact. Secondly, the Secretary cites the foreman q 

warning to Mullens as further evidence of foreseeability on 

the part of the operator. This argument strikes me as a 

classic examole of the ''damned if you do, damned if you don't" 

school ~f advocacy. On the one hand the absence of frequent 

and timely warnings on critical safety issues could be construed as inadequate training and/or supervis n while on 

the other hand, too many warnings, especially right before 

an accident happens could be an in rence that the supervisor 

knew of the employee's dangerous proclivities and didn't do 

enough to correct them. In sum, I do not find substantial 

evidence in this record to support a finding that Mr. Mullens' 

violation was foreseeable by the operator, or that proper 

supervision was lacking in this instance. 

323 
Furthermore, I have care ly examined the record concerning the operator's training program and its history 

disciplining its employees for violations of the mandatory 

safety standard at issue herein and find both to be adequate. 

In my opinion, it was Mr. Mullens' own negligence, not 

that of the operator, which caused his death. Accordingly, 

I find this to be a substantial mitigating factor with regard 

to the penalty to be assessed. 

ORDER 

Citation No. 2832711 is AFFIRMED and Western Fuels-Utah, 

Inc., is ordered to pay a civil penalty of $250 within 30 

days of the date of this decision for the violation of 30 

C.F.R. § 75.200, as alleged. 

Distribution: 

Roy 

Admi 

urer 

tirative Law Judge 

Karl F. Anuta, Esq., Duncan, Weinberg & Miller, P.C., 717 

17th Street, Suite 1670, Denver, CO 80202 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U. S. Department of Labor, 1961 Stout Street 1 Rr.1. 1585, Denver, CO 

80294 (Certified Mail) 

yh 

324 
FEPERAl MINE SAFE"fl'Y AND HEAL TH REVU:W COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

February 20, 1987 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RUSH'rON MINING COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. PENN 85-253-R 

Order No. 2403926; 6/11/85 

Docket No. PENN 85-254-R 

Order No. 2403927; 6/14/85 

Docket No. PENN 85-255-R 

Order No. 24039281 6/17/85 

Rushton Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-1 

A.C. No. 36-00856-03548 

Rushton Mine 

DECISION 

ranees~ David To Bush 0 Esq., Office of the Solicitor, 

UoS. Department of Labor, Philadelphia, Pennsylvaniau for the Secretary of Labor (Secretary); 

Joseph To Kosekq Esq , Dennis Govachini, Esq., 

and Joseph Yuhasv Esq.u Ebensburg, Pennsylvania, 

for Rushton Mining Company (Rushton). 

Before~ Judge Broderick 

S'I'ATEMENT OF THE E 

In the penal case, the Secretary seeks penalties for five 

alleged safety standard violations, three of which grew out of 

orders which are contested in the contest proceedings. 

Therefore, all of the cases were consolidated for the purposes of 

hearing and decision. At the cc>mrnencement of the hearing, the 

parties submitted, and I stated I would approve, a sattlement of 

one of the alleged violations (that one charged in the order 

contested in PENN 86-255-R). Following the hearing, the 

323 
Secretary filed a motion to withdraw the Petition and vacate the 

order which is contested in PENN 86-253-R. Three violations 

remain, including that alleged in the order contested in PENN 

86-254-R. 

Pursuant to notice, the case was heard in Pittsburgh, 

Pennsylvania on November 6, 1986. Donald Klemick testified on 

behalf of the Secretary. Raymond Roeder, Lemmel Hollen and 

Kenneth Fenush testified on behalf of Rushton. Rushton filed a 

post hearing brief directed t6 an evidentiary ruling I made at 

the hearing. The Secretary did not file a post hearing brief. I 

have considered the entire record and the contentions of the 

parties and make the following decision. 

FINDINGS AND CONCLUSIONS 

At all times pertinent to this case, Rushton was the owner 

and operator of an underground coal mine in Centre County, 

Pennsylvania, known as the Rushton Mine. Rushton is a large 

operator. The history of previous violations is n6t such that 

penalties otherwise appropriate should be increased because of it. 

There is no evidence that the imposition of penalties will affect 

Rushton's ability to continue in business. 

ORDER NO. 2403926 

Order 2403926, issued under section 104(d)(l) of the Act, 

charged a violation of 30 C.F.R. § 75.326 because an intake 

trolley haulage secondary escapeway entry was not separated from 

a parall belt haulage entry. Testimony was taken at the 

hearing on the order and alleged violation. On February 5, 1987, 

the Secretary filed a motion to withdraw its penalty petition 

insofar as it was based on the order. The motion requested that 

the order be vacated. Rushton does not object to the motion. 

Ther2fore, the motion is GRANTED; the ord.er will be VACATEDi the 

petition will be DISMISSED insofar as it charges a violation of 

30 C.F.R. § 75.326 described in Order 2403926, and the Contest 

proceeding Docket ~o. PENN 85-253-R will oe DISMISSED. 

ORDER NO. 2403928 

Order 2403928, issued under section 104(d)(l) of the 

Act,charged an unwarrantable failure violation of 30 C.F.R. 

§ 75.316 because the ventilation plan was not being complied Hith 

in th~t idl rooms were not being travelled and examined weekly. 

i\t the commencement of the hearing, the Secretary proposed a 

settlement of the penalty case related to this violation. The 

Sacratary stated that he could not establish that the violation 

resulted from Rushton's unwarrantable failure. The vio tion was 

originally assessed at $400, and the parties agreed to settle for 

326 
$100, on the basis that the negligence was less than originally 

believed. I have considered the motion in the light of the 

criteria in section llO(i) of the Act and conclude that it should 

be approved. Therefore, IT IS ORDERED that the motion is 

GRANTED; Rushton shall pay $100 within 30 days of the date of 

this decision; the order is MODIFIED to a 104(a) citation; the 

contest proceeding Docket No. PENN 85-255-R is DISMISSBD. 

CITATIONS 2403922 AND 2402923 

The above citations were issued on June 4, 1985 at about 

10:00 a.m. and 11:40 a.m. respectively, by Mine Inspector Donald 

J. Klemick. The conditions cited were the factors that led to 

the issuance of an imminent danger withdrawal order the same day. 

The imminent danger withdrawal order was not contested, and its 

validity is not an issue in this case. 

At the hearing, Rushton offered testimony of an alleged 

admission by an MsHA official (no longer with MSHA) at a 

manager's conference following the issuance of the order and 

citations that he did not believe an imminent danger existed. I 

excluded the testimony as irrelevant. Rushton's post hearing 

brief argues that the testimony should have been received on the 

ground that "it is certainly relevant to the issue of whether an 

imminent danger did in fact exist." Unfortunately that "issue" 

is not an issue in this proceeding. Whether an imminent danger 

existed or not has no bearing on the issues before me, which are 

(1) did t~e violations charged occur, and (2) if so, what are the 

appropriate penalties based on the criteria in section llO(i) of 

the . If concluded that an im.11inent danger did not exist, 

this conclusion would not in any way affect my determination of 

he above issues. A fortiori, the opinion of an MSHA official 

(who was t10t even present at the mine) that an imminent danger 

did not exist would not feet my determination. 

The itations were issued during a health and ventilation 

inspection nspector emick who is a ventilation specialist. 

I find tha the following conditions were present in the W-4, 001 

Section o th2 sub ct mine: accumulations of loose coal and 

coal dus were present along each of the five entries for a 

distance of approxima 90 feet outby the face, and in the 

first crosscut connecting the entries, and at the section dumping 

point. The accumulations varied from one to six inches in depth 

with deeper accumulations against the rib of the Number l and 2 

entries, and at the dumping point, Equipment tire marks were 

seen in the travel ways and at the dumping point. One percent 

methane was detected at the face. Power was energized to the 

section, but the continuous miner was not operating, nor was the 

scoop, but the roof bolter was operating in the number 2 entry. 

327 
The mine is a wet mine, but the section in question was 

relatively dry. The loose coal and coal dust cited by the 

inspector were dry. The accumulation was black in color. The 

ventilation in the section was good and the section had no 

significant history of methane liberation. The mine, however, 

has had prior ignitions. The coal mined at the subject mine 

contains a substantial percentage of rock. In abating the 

violation, six shuttle cars of coal, totally about 30 tons were 

removed from the area. The cleanup took about 4 hours. Because 

of the extent of the accumulations, I find that substantial 

accumulations were present in the area for more than one shift, 

probably for two shifts. The preshift inspection book shows that 

the section was inspected between 5 a.m. and 7 a.m. and was 

reported in safe ~nd healthful condition. 

Rushton does not dispute the fact that the accumulations 

existed. It admitted the violations, but contends that the 

gravity and negligence were exaggerated. I conclude that a 

violation of,30 C.F.R. § 75.400 occurred. The extent of the 

accumulations, the presence of energized machinery and the 

existence of minimal methane make the violation a serious one. 

Loose coal and coal dust can propagate an explosion or mine fire. 

I conclude that the accumulations had been present for more than 

one shift and that Rushton knew of them prior to the preshift 

inspection and was negligent 'in failing to clean them up. I 

further conclude that the failure to record the condition in the 

preshift examiner's book was a violation of 30 C.F.R. § 75.303(a). 

I conclude that this violation was serious and resulted from 

Rushton~s negligence. Based on the criteria in section llO(i) of 

the Act, I conclude that a penalty of $1000 for the violation of 

30 C.F.R. § 75.400 and a penalty of $400 for the violation of 30 

C.F.R. § 75.303 are appropriate. 

ORDER NO. 2403927 

On June 14, 1985, Inspector Klemick issued a withdrawal 

order under section 104(d)(l) of the Act charging an 

unwarrantable failure violation of 30 C.F.R. § 75.316. ~he order 

charged that Rushton failed to comply with its approved 

ventilation system and methane and dust control, plan because the 

periphery of certain idle rooms in 2nd left north mains were not 

being travelled and examined weekly. In fact the rooms were 

filled with water, the pumps having been pulled and the area 

intentionally flooded. Rushton intended to use the area as a 

sump for the mine. 

The revised ventilation plan in effect on June 14, 1985, had 

been approved by MSHA on March 7, 1985 subject to Rushton's 

complying with certain "items" including the following: 

328 
3. Since a method was not established to evaluate the 

bleeder system for the idled rooms on the right of the 

2nd left north mains the periphery of those rooms shall 

be traveled and examined weekly. 

Prior to that Rushton had on September 26, 1984 sent to MSHA 

a letter and a map of the area in the 2nd left north mains 11 that 

we intend to flood" (Rx9). The letter further informed MSHA that 

ventilation would be maintained by regulators along the edge of 

water. On October 22, 1984 MSHA "accepted" the 11 plan11 submitted 

with the September 26 letter 11 provided inlet and bleeder 

evaluation stations are established and maintained at the water's 

edge ••• " {RxlO). On October 26, 1984, Rushton reported the air 

quantities at the water's edge and this was "accepted" by MSHA on 

November 7, 1984 (Rxll, 12). 

On June 11, 1985, Rushton referred to the March 7, 1985 

letter of approval and informed MSHA that all power and equipment 

have been removed from the 2nd left north mains and the area is 

being used as a sump. Rushton requested that it be permitted to 

take weekly ventilation and methane readings "at the edge of the 

water." 

On June 25, 1985, MSHA granted Rushton's request and 

accepted the plan showing ventilation to the water's edge on the 

completed 2nd left north mains section. Examinations had in fact 

been per.formed at the water's ~dge on May 30, June 5 and June 12, 

19 85. 

At the hearing Rushton proposed to submit evidence that Earl 

McMasters, Supervising Inspector, stated at a manager's 

conference that "he did not see a violation in this case.• {Tr. 

253)0 He is said to have stated further that he would not vacate 

the order because it would cause him a lot of difficulty with the 

subdistrict and "that's why we have administrative law judges." 

Cid.). I excluded the dence at the hearing, but will now 

assume that the evidence contained in the offer of proof is part 

of the evidence in the case and will consider Mr. McMaster's 

statements, 

I conclude that the conditions contained in the MsHA 

approval letter March 7, 1985 were part of the approved 

ventilation plan in effect on June 14, 1985. Therefore, Rushton 

was required to travel and examine weekly the periphery of the 

idled rooms on the right of the 2nd left north mains. As of 

June 14, 1985, Rushton was not travelling and 2xamining weekly 

the periphery of those idled rooms, indeed it could not do so, 

because it had flooded them. Therefore, a violation pf the plan 

and thus of 30 C.F.R. § 75.316 was established. The fact that a 

change in the plan had n requested does not make it less a 

329 
violation. Because the area had been flooded, all power and 

equipment had been removed, and ventilation was maintained to the 

water's edge, the violation was not serious. Because of the 

confusion shown in the correspondence between Rushton and MSHA 

between September 26, 1984 and June 25, 1985 (Respondents 

Exhibits 9-13-A and Government's exhibits 1 and 2), I conclude 

that the Secretary has not established that the violation 

resulted from Rushton's unwarrantable failure to comply with the 

standard. The order should be modified to a 104(a) citation. 

The contest proceeding Docket No. PENN 85-254-R contesting the 

order will be granted in part insofar as it contests the finding 

of unwarrantability. Based on the criteria in section llOCi) of 

the Act, I conclude that an appropriate penalty for the violation 

is $100. 

ORDER 

Based on the above findings of fact and conclusions of law, 

and on the motion to withdraw and the motion to approve 

settlement, IT IS ORDERED: 

1. Order No. 2403926 is VACATED; no penalty is assessed for 

the violation charged in the order. 

2. Docket No. PENN 85-253~R contesting Order No. 2403926 is 

DISMISSED because the order is vacated. 

3. Order No. 2403928 is MODIFIED to a 104(a) citation. 

4. Docket No. PENN 85-255-R contesting Order No. 2403928 is 

DISMISSED. 

5. Order No. 2403927 is MODIFIED to a 104(a) citation. 

6. Docket No. PENN 85-254-R is GRANTED in part insofar as 

it contests the finding of unwarrantability in Order No. 2403927. 

7. Rushton shall pay the following civil penalties within 

30 days of the date of this ision: 

330 
CITATION/ORDER NO. 

2403928 

2403922 

2403923 

2403927 

Distribution: 

30 CFR STANDARD 

75.316 

75.400 

75.303(a) 

75.316 

PENALTY 

$ 100 

1000 

400 

100 

Total $1600 

~A'1t.i·? /.tfi'1·ll~1 f/~ James A. Broderick 

Administrative Law Judge 

David T. Bush, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Joseph Kosek, Esq., Rushton Mining Company, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

slk 

331 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE .itOO 

DENVER, COLORADO 80204 FEB 20 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONCRETE PRODUCTS COMPANY, 

Respondent 

. 

. 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-111-M 

A.C. No. 42-01014-05504 

Walker Sand & Gravel Pit 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Mr. Boyd Nielson, Concrete Products Company, Salt 

Lake City, Utah, 

pro se. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges respondent with violating a safety 

regulation promulgated under the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq., (the "Act"). 

After notice to the parties, a hearing on the merits took 

place in Salt Lake Cityp Utah on August 13, 1986. 

The parties waived their right to file post-trial briefs. 

Issue 

The issue is what penalty is appropriate for failure to 

provide a back-up alarm. 

Citation 2644078 

This citation alleges respondent violated 30 C.F.R. 

§ 56.9087 which provides as follows: 

§ 56.9087 Audible warning devices and back-up alarm. 

Heavy duty mobile equipment shall be provided with 

audible warning devices. When the operator of such 

equipment has an obstructed view to the rear, the 

equipment shall have either an automatic reverse signal 

alarm which is audible above the surrounding noise level 

or an observer to signal when it is safe to back up. 

332 
Summary of the Evidence 

William W. Wilson is a person experienced in mining as well 

as an MSHA safety and health inspector (Tr. 4, 5). 

On December 10, 1985 Mr. Wilson inspected respondent, a sand 

and gravel operation (Tr. 5, 6). There were three or four 

empl sat the pit (Tr. 6). While on the site the inspector 

observed a 35-ton Caterpillar that did not have a backup alarm 

(Tr . 7 ; Ex . P 1 ) . 

The driver of the vehicle, which was in operation, had 

restricted vision to the rear. This hazard could reasonably 

cause a fatality or serious injury (Tr. 8, 11). Inspector Wilson 

believed the negligence was high because the defect had been 

reported to the mechanical department over a week before the 

inspection (Tr. 9). But, there had been no repairs made to the 

equipment (Tr. 10, 11). 

The alarm was either replaced or repaired within the 

specified time (Tr. 11). 

Boyd E. Nielsen, general foreman for respondent, testified 

the company operates eight sand and gravel pits. They are 

located in Utah, Nevada and Wyoming CTr. 17). 

The maintenance department was advised of the defect four or 

five days before the inspection (Tr. 18). 

Exhibits were received in evidence showing the normal time 

requir to effect repairs (Tr. 18, 19); Ex. Rl, R2). 

The company abat the instant violation the same day the 

citation was issued (Tr. 14, 20). 

The company has an outstanding safety record and it makes 

every effort to comply with MSHA regulations. 

The proposed penalty will not effect the company's ability 

to continue in business (Tr. 21). 

Discussion 

Respondent in this case admits the violation (Tr. 3, 4). 

Accordingly, the sole issue focuses on the appropriate penalty. 

The statutory criteria to assess civil penalties is 

contained in section llO(i) of the Act. The provision, now 30 

U.S.C. § 820Ci), provides as follows: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil 

333 
monetary penaltiesp the Commission shall consider the 

operator's history of previous violations, the appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was negligent, the feet on the operator's ability to continue 

in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of a violation. 

The operator had six violations in the two year period 

ending December 9, 1985. This is a considerable improvement over 

the 17 violations that occurred before December 10, 1983. The 

violations involved in the most recent period indicate that the 

number of respondent's violations are less than average. The 

respondent must be considered a small operator inasmuch as it has 

only three or four employees at this pit. It does, however, have 

additional pits. The operator was negligent in that it failed to 

remove the equipment from service. Respondent's evidence established there was a time lag between the time of reporting the 

defect and its repair. I am not persuaded by such evidence 

particularly when respondent abated the violation the very day 

the citation was issued. The parties stipulated that the 

proposed penalty of $400 would not affect the operator's ability 

to continue in business. The gravity must be considered high 

since a fatality could occur. The operator's good faith is 

apparent since it immediately abated the condition. 

On balance, I deem that a penalty of $150 is appropriate. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of his decision, the following conclusions 

of law are entered~ 

1. The Commission has jurisdiction to decide this caseo 

2o Respondent violated 30 C.F.R. § 56.9087. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following~ 

ORDER 

1. Citation 2644078 is affirmed. 

2. A civil penalty of $150 is assessed. 

3. Respondent is ordered to pay to the Secretary the sum 

of $150 within 40 days of the date of this decision. 

Law Judge 

334 
. Distribution: 

Margaret Miller, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Concrete Products Companyf Mr. Boyd Nielson, 4883 Southridge 

Drive, P.O. Box 7356, Salt Lake City, UT 84107 (Certified Mail) 

/bls 

335 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 4 1987 

WILFRED BRYANT, DISCRIMINATION PROCEEDING 

Complainant 

v. 

DINGESS MINE SERVICE, 

WINCHESTER COALS, INC., 

MULLINS COAL COMPANY, 

JOE DINGESS AND 

JOHNNY DINGESS, 

Respondents 

Docket No. WEVA 85-43-D 

Dingess Mine No. 2 

DECISION 

Appearances: Barbara Jo Fleischauer, Esq., Morgantown, West 

Virginia, and Paul R. Sheridan, Esq., Logan, 

West Virginia, for Complainant; Robert Q. Sayre, 

Esq. and Jeffrey Hall, Esq., Goodwin & Goodwin, 

Charleston, West Virginia, for Respondents, 

Winchester Coals, Inc., and Mullins Coal Company. 

No one appeared for Respondents Dingess Mine 

Service, Joe Dingess or Johnny Dingess. 

Before: Judge Broderick 

STATEMENT OF THE 

Complainant contends that he was discharged from his job as 

shuttle car operator on April 27, 1984, for activities protected 

under the Federal Mine Safety and Health Act (the Act). He filed 

a discrimination complaint on May 1, 1984 with the Mine Saf 

and Health Administration (MSHA). On October 19, 1984, MSHA 

notified him of its finding that a violation of section 105(c} of 

Act had not occurred. 

A complaint was filed with the Commission on November 26, 

1984, naming Dingess Mine Service, Joe Dingess, Johnny Dingess 

and Winchester Coals, Inc., as Respondents. The complaint was 

not served upon winchester until May 3, 1985, but Winchester had 

been notified by the Corrunission on November 27, 1984, that a 

complaint was filed. On January 17, 1986, Complainant filed a 

motion to add Mullins Coal Company as a party Respondent. The 

motion was granted by order of Judge Joseph B. Kennedy on 

January 27, 1986. 

336 
No appearance or answer to the complaint was filed by or on 

behalf of Dingess Mine Service, Joe Dingess or Johnny Dingess. 

On October 24, 1985 and October 3, 1986 I issued an order to show 

cause to Dingess Mine Service, Joe Dingess and Johnny Dingess why 

they should not be found in default for failure to answer the 

complaint. Cause was not shown, and I entered an order finding 

Dingess Mine Service, Joe Dingess and Johnny Dingess in default. 

I further found that the default was not conclusive on the issue 

of discrimination as against Winchester, Mullins or any successor 

employer. 

Pursuant to notice, a hearing was held in Charleston, West 

Virginia on November 12 and 13, 1986. Wilfred Bryant, Reed 

Peyton, Roger Cook, Donnie Adams, Stanley Wells, Oscar Davis, and 

Donald Cooper testified on behalf of Complainant; Aaron Browning 

testified on behalf of Respondents Winchester and Mullins. Both 

parties have filed post hearing briefs. Based on the entire 

record and considering the contentions of the parties, I make the 

following decision. 

FINDINGS OF FACT 

OPERATION OF THE SUBJECT MINE 

Winchester Coals, Inc. (Winchester) and Mullins Coal Company 

(Mullins) are both wholly owned subsidiary corporations of 

Imperial Pacific Investments. Donald Cooper is President of both 

Winchester and Mullins and Vice-President of Imperial Pacific. 

In 1981 and 1982, Winchester had contracted with Dingess Mine 

Service for the latter to construct certain electrical 

installations and to relocate high voltage power lines. Based in 

part on Winchester's satisfaction with the work performed under 

that contract, Mullins contracted with Dingess Mine Service on 

July 20, 1982 for the latter to mine coal from the subject mine 

(called Mullins No. 2 Mine in the contract) and deliver it to 

Mullins for a certain amount per ton. Dingess Mine Service had 

never operated an underground coal mine previously. The contract 

made Dingess responsible for hiring, employment, and working 

conditions. Dingess agreed that the work force should be under 

the jurisdiction of the United Mine Workers of America (UMWA) and 

governed by the current wage agreement with UMWA. Dingess is 

described as an independent contractor and is responsible for 

construction and maintenance of all facilities. Dingess agreed 

to diligently mine the coal with modern and approved mining 

methods and to employ only competent, skilled personnel. Dingess 

agreed to comply with applicable laws and regu ions. On 

July 20, 1982 (the date of the Mullins-Dingess Mining Contract) 

Winchester and Dingess entered into a written equipment lease, in 

which Winchester leasad to Dingess certain mining equipment, 

337 
including a coal drill, a cutting machine, an underground Power 

Center, a loading machine and 2 Joy 21-SC shuttle cars. Dingess 

agreed to pay as rent a certain amount per ton of coal mined 

under the Mullins-Dingess Mining Contract. Dingess agreed to 

keep the leased property in good repair. 

The mining contract was for one year, and unless terminated 

in accordance with its terms, provided that it should continue 

for successive periods of one year until all the mineable coal is 

mined and delivered. The equipment lease was for four years 

subject to Winchester's right to terminate on any anniversary 

date by 30 days written notice. 

Mullins participated in the development of the mining plans 

by Dingess. It hired an engineering firm to prepare maps and 

perform some of the ventilation calculations. 

During 1982 and early 1983 Mullins was satisfied that 

Dingess was doing "a pretty good job of operating that coal 

mine." (Tr. 204). In late 1983 and in 1984 problems developed: 

a number of citations were issued by the State Department of 

Natural Resources (DNR), and Dingess fell behind in its payments 

of UMWA royalties, taxes and worker's compensation fund payments. 

Mullins, which was the permit holder under the DNR, itself 

corrected certain problems which endangered its permit. In late 

1983 or early 1984, Mullins became aware that Joe Dingess had a 

drinking problem and was drinking on the job. Mullins could have 

terminated the contract without cause in July 1984, but because 

of the high demand for coal decided to continue it. During 1984, 

rental payments due Winchester were regularly deducted from 

amounts due Dingess from Mullins. Winchester and Mullins also 

made payments owed to suppliers, trucking companies, and repair 

companies by Dingess and treated the payments as advances due 

under the mining contract. On at least one occasion, Winchester 

made a payment to Aaron Browning, Dingess' mine foreman, 

apparently for his salary. 

In 1984, Mullins had discussions with Dingess concerning the 

purchase of coal from the Panna Mine, which Dingess contemplated 

opening. Winchester advanced $25,000 to Joe and Johnny Dingess 

to open the Panna Mine. 

On October 22, 1984, Mullins terminated the mining contract 

with Dingess on six grounds: (1) the failure of Dingess to 

comply with P&R regulations; (2) the failure of Dingess to pay 

its employees; (3) the failure of Dingess to pay money due a 

trucking company; (4) the failure of Dingess to comply with the 

UMWA contract; (5) the making by Dingess of unauthorized 

subcontracts with Aaron Browning; (6) the failure of Dingess to 

comply with the Mine Health and Safety law and regulations. 

338 
Dingess filed suit for breach of contract which is pending 

in the State Court. 

Winchester formally terminated the equipment lease in 

February 1985. 

The license to operate the subject' mine was recovered from 

Dingess in a court proceeding by Mullin~ or Winchester. It was 

subsequently transferred to New River Fuels, which is currently 

operating the mine, apparently under a mining contract with 

Mullins. 

Roger Cook, General Superintendent of Winchester and 

previously its Manager of Mines, had the responsibility of 

monitoring the subject mine to insure that Dingess lived up to 

its contract with Mullins. This indicates the interchangeable 

nature of Winchester and Mullins. Cook was at the mine site 

regularly, and went underground to make sure Dingess was 

following the proper projections and producing coal. On occasion 

he had problems corrected, including excessive dust and surf ace 

drainage. In discussions with Dingess, he suggested the opening 

of a continuous miner section to increase production. Cook 

testified that Winchester/Mullins had to "put in overcasts and 

everything else, and they [Dingess] really didn't understand how 

to do it." (Tr. 106). Later, he seemed to indicate that Aaron 

Browning put in the overcasts. (Tr. 110). Production did not 

increase, and it was decided to cancel the contract. Neither 

Cook nor anyone at Winchester/Mullins was involved in the hiring 

or firing of Dingess' miners. No miner complained to Cook about 

unsafe equipment. 

COMPLAINANT'S EMPLOYMENT 

Complainant was hired as a shuttle car operator at the 

subject mine on April 23, 1984. He was paid $110 per day. He 

was hired by mine foreman Aaron Browning, who told complainant 

that he worked for Winchester Coal Company. Complainant had 

previously worked for Amherst Coal Company as a general inside 

laborer, roof bolter helper, miner helper and shuttle car 

operator" He left Amherst more than 2 years before he was hired 

at the subject mine. Complainant was hired with his 

brother-in-law, Donnie Adams, both to operate shuttle cars. The 

shuttle car to which complainant was assigned had defective 

brakes, no lights, a fective tram operation and defective 

steering. The car to which Adams was assigned had no brakes and 

no lights. Complainant pointed out the fects to Kevin Atkins, 

the section foreman and to Browning and was told to do the best 

he cou 

339 
After tpree days, Complainant told Kevin Atkins, that he 

refused to continue operating the shuttle car because his arms 

ached trying to steer the machine. The next day he was assigned 

by Browning to "shooting coal". The following day Browning 

called Complainant and told him the mine was flooded, and the 

second shift was laid off. Complainant went to the mine site to 

get a layoff slip so that he could go back on welfare, and found 

that the mine was not flooded, and that employees who had been 

hired subsequent to Complainant were working. Browning refused to 

give him a lay off slip and told Complainant he did not have a 

job anymore. Complainant filed a grievance through his union 

representative and after 5 days, Browning agreed to rehire Adams 

and put Complainant on the panel for recall. He."guaranteed" 

that he would call Complainant back to work within two or three 

days.Complainant refused the proposed settlement because ·"he felt 

he was done wrong" and because he believed there was no panel. 

Adams refused to return to work unless Complainant was rehired. 

Neither returned to the mine. Since leaving Dingess, Complainant 

has sought work without success. He has worked in ~ State Park 

in return for his family welfare payments. 

Aaron Browning testified that the loading machine operator 

filed a safety complaint concerning Complainant's operation of 

his shuttle car. The loader operator refused to run his machine 

if Complainant continued on the shuttle car. Browning stated 

that was the reason he laid off Complainant. He intended to call 

Complainant back in some other position. Complainant refused the 

offer and on May 9, 1984, formally terminated his employment. 

(Rx3) 

ISSUES 

1. Is Complainant's complaint barred by time limitations? 

2o Was Complainant discharged or otherwise discriminated 

against because of activity protected under the Act? 

3. If so, is either Mullins or Winchester liable for the 

discrimination? 

4. If so, to what is Complainant entitled, and who is 

responsible for providing the remedy? 

CONCLUSIONS OF LAW 

TIME LIMITATIONS 

The complaint with MSHA was filed May 1, 1984, naming 

Dingess Mine Service, Inc. as the person committing the 

discrimination, and April 25, 1984 as the date of the 

340 
discriminatory action. After an investigation, the Secretary 

determined on October 19, 1984 that a violation had not occurred 

and notified Complainant by letter received by Complainant on 

October 24, 1984. On November 26, 1984, the complaint was filed 

with the Commission, naming Dingess Mine Service, Winchester 

Coals, Inc., Joe Dingess and Johnny Dingess as Respondents. The 

certificate of service states that copies of the complaint were 

mailed to all Respondents on November 23, 1984. Winchester has 

stated that it was served with a copy of the complaint on May 3, 

1985, and a certificate of service with certified mail receipts 

was filed by Complainant showing service on WJ.nchester May 3, 

1985 and on the Dingesses May 8, 1985. However, the Commission 

by tter of November 27, 1984 notified Dingess and Winchester 

that a complaint had been filed. By order issued September 24, 

1985, Judge Kennedy denied Winchester's defense based on the 

statute of limitations. By order issued January 27, 1986, Judge 

Kennedy granted Complainant's motion to add Mullins as a party 

Respondent. 

Thus, the complaint filed with the Secretary was timely 

filed even though it failed to name Mullins or Winchester. 

Complainant could not be expected to know the relationship of 

Mullins or Winchester to the operation of the mine: he worked 

Dingess. MSHA's records apparently showed Dingess as the 

mine operator, and it had no reason to bring Mullins or 

Winchester into the investigation. Mullins and Winchester assert 

that they were prejudiced because they were not involved in the 

investigation. They have not shown, and it is not evident to me, 

what the prejudice consisted of. I conclude that their claim of 

prejudice is not well-founded, and I reject it. 

The complaint with the Commission was filed 31 days after 

the Secretary notified Complainant of his finding that 

discrimination had not occurred. Thus it was filed one day 

beyond the statutory period. The record does not disclose why 

service on Respondents took place so long after filing, but it is 

clear that Winchester, at t, knew of the filing the 

complaint within a few days after it was filed. 

At any rate, the time limitations contain in section 

105(c) of the Act were not intended to be jurisdictional, and 

dismissal of a complaint for late filing is justified only if the 

Respondent shows material, legal prejudice attributable to the 

delay. Cf. Secretary/Hale v. 4-A Coal Company, Inc., 8 FMSHRC 

905 (1986). No such showing has been made here. In view of the 

close relationship (virtual identity for our purposes) between 

Mullins and Winchester, Mullins cannot claim additional prejudice 

because it was added as a Respondent by an order issued later. 

341 
Therefore, I conclude that the claim is not barred because 

of time limitations, and that Winchester and Mullins are properly 

before the Commission as Respondents. 

PROTECTED ACTIVITY 

CGmplainant contends that the shuttle car to which he was 

assigned was unsafe: it had no lights, defective brakes, a 

defective tram mechanism and defective steering. Browning denies 

that it was unsafe, but the clear weight of the evidence supports 

Complainant's contention, and I conclude that it was in fact 

unsafe. Complainant testified that he told Browning and Atkins 

that it was unsafe,. which Browning denied. I conclude that 

Complainant did tell his supervisors that the vehicle was 

defective and unsafe. This was protected activity under the Act. 

On April 26, 1984, Complainant told Atkins that he refused to 

operate the shuttle car anymore, and at least one of the reasons 

for his refusal was the unsafe condition of the machine. I 

conclude that this refusal was therefore protected activity, and 

that the reason for his refusal was made known to the operator in 

the person of section foreman Atkins. 

ADVERSE ACTION 

Complainant was "laid off" on April 27, 1984, following his 

refusal to continue operating the defective shuttle car. This 

was adverse action. He filed a grievance, and in the course of 

the grievance procedure, Browning offered to settle the grievance 

by placing him on a recall panel and calling him back to work in 

"a couple of days at the most." (Tr. 278) Complainant refused 

the offer and formally resigned on May 9, 1984. I conclude that 

he was not discharged and that the adverse action terminated when 

he refused the offe~ to be called back and resigned his job. 

MOTIVATION 

Under the Actr a miner can establish a prima facie of 

discrimination by showing that he engaged in protected activity 

and that the adverse ac~ion complained of was motivated in any 

party by that activity. Secretary/Fasula v. Consolidation Coal 

Co. p :.: FivISHRC 2.786 (1980) r revnd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981}' Secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 

803 (1981). The operator may rebut the prima facie case by 

showing either that no protected activity occurred or that the 

adverse action was not motivated in any part by protected 

activity. If the operator cannot rebut the prima facie case in 

this manner, it may affirmatively defend by showing that it was 

motivated also by the 1ninervs unprotected activities and would 

have taken the adverse action for the unprotected activities 

342 
alone. Pasula, supra1 Simpson v. Kenta Energy, Inc., 7 FMSHRC 

1034 (1986). 

Direct evidence of a discriminatory motive is, as the 

Commission has said, "rare." Illegal motive may be established, 

however, if the facts support a reasonable inference of 

discriminatory intent. Goff v. Youghiogheny & Ohio Coal Company, 

8 FMSHRC 1860 (1986). Here the evidence shows serious safety 

defects on mine equipment and Complainant's refusal to operate 

the equipment followed almost immediately by his lay off. These 

facts clearly support an inference that one of the mine 

operator's motives in laying Complainant off was his protected 

activities. Browning testified that he laid off Complainant 

because of a safety complaint from the loader operator who was 

afraid of the way Complainant was operating the shuttle car. I 

conclude, however, that this complaint was related to the 

condition of the shuttle car rather than to Complainant's 

inability to operate it. The operator has not established that 

Complainant would have been laid off for unprotected activity 

alone. Therefore, I conclude that a violation of section 105(c) 

has been established. 

LIABILITY OF MULLINS/WINCHESTER 

Section 105(c)(l) of the Act provides that "no person shall 

• discriminate against or otherwise interfere with the 

statutory rights of any miner •••• " Liability is thus not 

restricted to a mine operator or an employer. 

The record in this case establishes that Complainant worked 

for Dingess Mine Service which was the "operator" of the subject 

mine: Dingess hired him, directed his work activity and laid him 

off. Mullins/Winchester was not involved in hiring Complainant. 

The evidence does not show that it directed his work activ..:i,_ty, 

nor does it show that Mullins/Winchester was in any way invblved 

in his lay-off, the adverse action complained of here. 

On the other hand, the record shows that Mullins/Winchester 

had a continuing presence at the mine. Mullins/Winchester knew 

or should have known that Dingess showed increasing evidence of 

its incompetence, technically and financially, to operate the 

mine, and this evidence was very strong at the time of 

Complainant's employment. Mullins profited from the coal 

production, and pressured Dingess to increase its output. 

Winchester owned most of the mining equipment, including the 

shutt car operated by Complainant. There is no direct evidence 

that Mullins/Winchester knew of the defective condition of the 

car, but I infer from the regular presence of Roger Cook at the 

mine that it was aware of the shuttle car's condition. The lease 

agreement, however, required Dingess to keep the leased property 

343 
in good repair CRX-6). The difficult question is whether 

Mullins/Winchester's relationship to the mine was such that it 

could be deemed "a person" which "discriminated against" 

Complainant. 

Complainant cites a number of courts of Appeals decisions 

which held that citations for safety violations were properly 

issued to mine owner-operators even though the violations were 

committed by independent contractors. Harmon Mining Corp. v. 

FMSHRC, 671 F.2d 794 (4th Cir. 1981); Cyprus Industrial Minerals 

v. FMSHRC, 664 F.2d 1116 (9th Cir. 1981)7 BCOA v. Secretary, 547 

F.2d 240 (4th Cir. 1977)7 Brock v. Cathedral Bluffs Shale Co., 

796 F.2d 533 (D.C. Cir. 1986). These cases differ substantially 

from the present case in that they involve holding the 

production-operator liable for safety violations committed by a 

contractor performing certain discrete construction activities. 

In the present case Dingess is the production-operator under a 

contract with the owner of the coal. It is true that 

Mullins/Winchester was involved in overseeing Dingess' work, and 

that it actually performed some of the work involved in the 

production of coal (engineering projections, installation of 

overcasts). However, it was not involved in the discriminatory 

act complained of here. This fact distinguishes the present case 

from the case of UMWA v. Pine Tree Coal Co., 7 FMSHRC 236 (1985), 

where the owner of the coal directly supervised and directed the 

contract operator's activity which led to an imminent danger 

withdrawal order. 

The issue considered here was addressed by Judge 

Richard C. Steffey in UMWA v. Algonquin Coal Co., 7 FMSHRC 906 

(1985). In Algonquin, Judge Steffey held that where the owner of 

the mine did not "take any kind of action to hire, discipline, or 

discharge any of the miners employed byn the contract mine 

operator, it could not be held liable for discrimination under 

section 105(c) of the Act. I agree with the rationale of the 

Algonquin decision, and conclude that Mullins/Winchester is not 

liable under section 105Cc) of the Act for the discrimination 

against Complainant. 

REMEDY 

Complainant was laid off by Dingess for activity protected 

under the Act. He is entitled to back pay from April 27, 1984 to 

May 9, 1984 with interest thereon in accordance with the formula 

in Secretary/Bailey v. Arkansas-Carbona, 5 FMSHRC 2042 (1984). 

He is further entitled to be reimbursed for reasonable attorneys' 

fees and costs of litigation. Because of my conclusion that the 

adverse action terminated on Complainant's resignation, the 

motion to add New River Fuels as a party (successor employer) is 

DENIED. 

344 
ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. That Dingess Mine Service shall pay Complainant back pay 

from April 27, 1984 to May 9, 1984 with interest thereon in 

accordance with the Arkansas-Carbona formula. 

2. This proceeding is DISMISSED as to Winchester Coals, 

Inc. and Mullins Coal Company. 

3. Complainant shall file a statement within 20 days of the 

date of this decision, showing the amount he claims as back pay 

and interest under No. 1 above, and the amount he requests for 

attorneys' fees and necessary legal expenses. The statement 

shall be served on Respondents who shall have 20 days from the 

date service is attempted to reply thereto. 

4. The decision is not final until a further order is 

issued with respect to the amount of Complainant's entitlement to 

back pay and attorneys' fees. 

Distribution: 

?

{ i-·1us ,J-/J:.Dckn :~f James A. Broderick 

Administrative Law Judge 

Barbara Jo Fleischauer, Esq., 346 Watts Street, Morgantown, WV.. 

26505 (Certified Mail) 

Paul R. Sheridan, Esq., Appalachian Research and Defense Fund, 

Inc., 504 White and Browning Building, Logan, WV 25601 (Certified 

Mail) 

slk 

345 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMM~SS!ON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PH<E 

FALLS CHURCH, VIRGINIA 22041 

FEB 24 1987 

SECRETARY OF LABOR, 0 

. DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

ON BEHALF OF 

ROGER NELSON, 

Complainant 

v. 

¢ 

. 

0 

. 

U. S. STEEL MINING CO., INC., : 

Respondent 

DECISION 

Docket No. WEVA 86-40 D 

HOPE CD 86-7 

Morton Mine 

Appearances: Jonathan Me Kronheimp Esq., Office of the 

Solicitor, U. S. Department of Laboru Arlington, 

Virginia for the Complainant 

Billy Mo Tennantu Esq., Pittsburgh, Pennsylvania 

for the Respondent 

Before: Judge Weisberger 

Statement of the Case 

Complainant filed a complaint with the Commission under 

Section 105(c) of the Federal Mine S ety and Health Act of 1977r 

30 U.S.C. § 185(c) (the Act) alleging that on about January 21, 

1986 he was illegally discriminated against when he was intimidated as a result of making a safety complaint to his foremanr 

and that on or about January 28, 1986 he was discriminated 

against when he was required to perform additional and strenuous 

duties as a result of filing a safety complaint with MSHA and 

speaking with an MSHA inspector. 

Pursant to notice the case was heard in Huntington, West 

Virginia on November 12, 19860 Roger Nelsonp Charles Pauley, 

Danny Meadows, Bernie Mayp and Samuel Smith testified for 

Complainant. John Cummings, 3111 Wrightv Ron Winfrey and David 

Kirk testified for Respondent. Both Parties filed Post Hearing 

Briefs and Proposed Findings of Facto In additionr Parties were 

granted the right to file Reply Briefs, but none were filed. 

346 
Findin_gs of Fact 

The Complainantu Roger Nelson, has been employed as a miner 

by the Respondentu Ue S. Steel Corporation, since 1981. On 

September 9, 1985 Nelson begin working as a shuttle car operator 

under Foreman David Kirk. 

During a daily safety meeting on January 21, 1986 Nelson 

asked Kirk how far ventilation tubing could be legally kept from 

the mining face. Kirk told Nelson that the law required ventilation tubing to be kept within 10 feet of the face. At the time 

the tubing was being kept more than 10 feet from the face. Nelson 

give his opinon to Kirk that the Respondent was violating the law 

in its placement of the ventilation tubes. Merle Johnson, a miner 

operator who was present, stated that keeping the tubing 10 feet 

from the face was dangerous to the miner operator and the miner 

helper. Johnson and Nelson argued but there was no physical 

contact. 

After this incident, Nelson said that Kirk ordered him to 

take the man trip and get some additional ventilation tubing 

(although Charles Pauley testified that Kirk told him that he did 

not order Nelson to take the man trip, I have adopted Nelson's 

version as Kirk did not contradict it in his testimony). As 

Nelson was leaving the man trip Kirk approached the electrician, 

Charles Pauley. Pauley testified that Kirk asked who was in the 

man trip. When Pauley replied that it was Nelson, Kirk stated to 

Pauley that he did not tell Nelson to take the man trip and that 

it was against the law for Nelson to take the man trip from the 

section. Wnen Nelson returned to the section, Kirk informed him 

that was illegal to the man trip off the section and 

deni t he had told on to take the man trip. 

argument between Nelson and Johnsonv Kirk called 

Ron , the General Mine Foreman, and asked that he come to t~he section as he (Kirk) a problem. However, Kirk did not 

explain to Winfrey the nature of the problem. Winfrey did not ~ave tranportation lable but advised Kirk that he told 

11 Shift Foreman and John Cummings, Assistant to the 

ne to come to sectiono Cummings and Wright asked 

problem was they testified that they were told 

K Nelson was problemo I note that Kirk denied 

that he told Wright and Cummings that Nelson was the problem. I 

&doped t verison testif to by Wright and Cummings based upon 

observations of their demeanor and also considering the fact that 

their testimony corroborates each other. 

Acco ing to Cummings, Kirk told them that Nelson and 

Johnson "just about got into a fight" over placement of the 

tubing (Tro 177). According to Wright, Kirk told him that Nelson 

and J·ohnson had a fist fight. Kirk did not ask Cumming or Wright 

347 
to talk to Nelson. On his own initiative Wright told Kirk to 

have Nelson to come to the dinner hall to talk to him and Cummings. 

Wright explained he wanted to talk to Nelson in order to "try to 

solve the problem before it got out of hand" (Tr. 197). 

At the dinner hall Nelson admitted to Wright and Cummings 

that there had been an argument about placement of the ventilation tube. Wright and Cummings explained to Nelson the hazards 

involved in maintaining the ventilation tube within 10 feet of 

the face. Wright and Cummings asked Nelson if he would like to 

be transferred from the section to another job elsewhere in the 

mine running a supply motor. Cummings stated that there is a 

difference in pay between a suttle car operator, (Nelson's job on 

January 21) and that of a supply motor operator. He said that he 

was not sure what the difference was but that he "wouid imagine" 

that the suttle car operator job pays more (Tr. 183). There is 

no other evidence in the record regarding the pay of these two 

jobs. Accordingly, I conclude that Cummings' testimony is 

insufficient to establish positively that the job that Wright and 

Cummings asked Nelson if he wanted to transfer to, would have 

involved a cut in pay. 

Nelson testified that Cummings said that if he stayed on the 

section he "would end up with the short end of the stick." 

(Tr. 24). Nelson told Wright and Cummings that he would like 

another job, but that he did not want people to think that Kirk 

had run him off the section. 

Wright and Cummings did not threaten Nelson nor did they 

take any disciplinary action against him or remove him from the 

section. 

Wright testified that he had decided to speak to Nelson and 

not Johnson because he felt that the latter was the problem as 

Kirk had so indicated. Also he said that he could speak to 

Johnson any time as he operated a miner, whereas Nelson operated 

a suttle car and thus did not stay in one place. 

At about 11:00 a.m. Winfrey arrived at the section. He 

testified that Kirk had said that there was almost a fight between 

Johnson and Nelson concerning the distance ventilation tubing is 

to be kept from the face. Kirk did not ask Winfrey to speak to 

anyone. Winfrey then went to talk to Johnson who said that he and 

Nelson "about came to blows" in the dinner hall that morning arguing placement of the ventilation tube (Tr. 220). Johnson asked 

Winfrey to be transferred from the section. Winfrey did not grant 

this request. After Winfrey talked to Johnson, Winfrey asked 

Nelson to leave his suttle car and talk to him. According to 

Winfrey, he asked Nelson, just as he had asked Johnson, to tell 

348 
him what happen earlier in the day. Winfrey and Nelson had a 

discussion with regard to placement of the ventilation tube, and 

Winfrey explained why they .were placed beyond 10 feet from the 

face. According to Nelson, Winfrey told him that he thought he 

(Nelson) had an attitude problem. Winfrey said' there seem to be 

"turmoil" between Nelson and Kirk and he asked Nelson if he wanted 

to transfer to another section. Winfrey said that Kirk had not 

asked him to transfer Nelson, and that he was unaware that earlier 

in the day Wright and Cummings had offered Nelson work in another 

section. Winfrey said that he asked Nelson if he wanted a transfer 

but turned down Johnson's request for transfer, as Nelson was calm 

and Johnson was "belligerent." Winfrey did not· take any action to 

have Nelson transferred. 

The following day Danny Meadows, the scoop operator, 

inspected the face area and noted that it was not rock dusted 

within 40 feet of the face. He testified that there was no rock 

dust available to correct the problem. Meadows brought the 

problem to Kirk's attention and Kirk told Meadows that he would 

order some rock dust. Nelson asked Kirk if he was going to get 

some rock dust. Meadows testified that Kirk told that him 

"(Nelson) was crying about the place not being rock dust(ed)." 

(Tr. 114). Nelson reported the violation to the Safety Committee 

and another Section 103(g) complaint was filed. 

On January 28, 1986 MSHA Mine Safety and Health Inspectors 

Martin Copley and Karl Jenkins came to the mine to investigate 

the Section 103(g) complaints filed by the Union at Nelson's 

request. Nelson and Danny Meadows told the Inspectors in the 

presence of ·Kirk about the failure to properly rock dust the face 

area. Meadows also told Inspector Jenkins that it had taken 16 

bags of rock dust to dust the area that had been in violation. 

Three citations were issued by Inspector Copley and paid by the 

Respondent" They were for failure to maintain ventilation tubing 

within 10 feet the face, failure to rock dust within 40 feet 

of the face on January 22, 1986, and for allowing work to 

continue on the section without ventilation. 

According to the testimony of Meadows there was an occasion 

when a State Mine Inspector looked at a scoop after Meadows said 

"how about corning over there and looking at it?," as the battery 

plugs were loose on the scoop. Meadows testified that after the 

mine inspector looked at the scoop, Kirk said that if the scoop 

would have been put out of operation then Meadows "would have 

beeh shoveling ribs out the rest of the day." (Tr. 123). Kirk, 

in essence, testified that he did not remember that incident nor 

in essence did he remember making such ~ statement to Meadows. I 

adopt the testimony of Meadows in this regard based upon my 

observations of the witnesses' demeanor, and in as much as this 

testimony was corroborated by May (Tr. 153). 

349 
On January 29, 1986, when Meadows arrived on the section the 

sc.oop was broken. He testified that Kirk told him to get two 

shovels and get Nelson as the two of them would be shoveling to 

clear the face area and remove coal from the ribs. It was the 

testimony of Nelson that only he and Meadows shoveled. They 

shoveled for approximately 20 minutes before Kirk told them to 

stop. 

Nelson also testified that, in the section, prior to this 

incident whenever the scoop broke down the miner would be used to 

clean up the coal and that there was never any shoveling done 

before in the section when the skoop broke down. Kirk's testimony was at variance to that testified to-by Nelson. I adopt the 

testimony of Nelson, after having observed and evaluated the 

demeanor of both witnesses, and also due to the fact .that 

Nelson's testimony was corroborated by May and Meadows. 

Issues 

1. Whether Complainant has established that he was engaged 

in activity protected by the Act. 

2. If so, whether the Complainant suffered adverse action 

as a result of the protected activity. 

3. If so to what relief is he entitled. 

Conclusions of Law 

Complainant and Respondent are protected by and subject to 

the provisions of the Act, the Complainant as a miner, and 

Respondent as operator of the Morton Mine. I have jurisdiction 

to hear and decide this matter. 

The Commission, in a recent decision, Goff v. Youghiogheny 

& Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated 

the legal standards to be applied in a case where a miner has 

alleged acts of discrimination. The Commission, Goff supra at 

1863, stated as follow: ~~ 

A complaining miner establishes a prima facie case of 

prohibited discrimination under the Mine Act by proving 

that he engaged in protected activity and that the 

adverse action complained of was motivated in any part 

by that activity. Pasula, 2 FMSHRC at 2797-2800: 

Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The operator 

may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected 

350 
activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co.v 732 F.2d 954, 958-59 

.(D.C. Cir 1984); Boich v. MSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the 

Commission's Fasula-Robinette test). 

Protected Activity 

On January 21, 1986 the Complainant questioned Ki1:k concerning the placement of ventilation tubing. On January 22, 1986 

the Compainant asked Kirk if he was going to get some rock dust. 

On January 28, 1986 the Complainant told MSHA Inspectors Mark 

Copley and Carl Jenkins about the failure to properly rock dust 

the face area. I conclude that all of the these activities were 

safety related and are protected by the Act. 

Adverse Action 

In his Post Hearing Brief, Complainant complains of three 

separate actions by Respondent:· 

1. After Complainant questioned Kirk about the position of 

ventilation tubing on January 21 he was "set up" for possible 

disciplinary action. 

I accepted Complainant's testimony that Kirk had told him to 

take the man trip to get additional ventilation tubing I also 

accepted Complainant's testimony that when he returned to the 

section Kirt informed him that it was illegal to take the man 

trip off the section and denied that he had told Complainant to 

take the man tr I also accepted Pauley's testimony that Kirk 

that he d not tell Complainant to take the man trip and 

that it was ainst t law for Nelson to take the man trip from 

the sectio0. n this context, I find that Kirk's statement to 

Complainant and Pauley could reasonably tend to intimidate 

Complainant and cause fear of reprisal. As such, I find Kirk's 

statements to constitute an adverse action [See Moses v. Whitley 

c;_;;_~-'--~-~~--~-"'-~~--o~n? 4 FMSHRC 1475, 1478 (August 1982)]. 

2 C ngs, Wright, and Winfrey discussed with the 

Complainant the possibility of transfering him off the section. 

Neither Wrightr nor Cummingsff nor Winfrey did discipline, 

demote, or transfer Complainant subsequent to his engaging in 

protected activ ies on January 21, 1986. The only overt actions 

were discussions that Cummings, Wr ht and Winfrey had with the 

Complainant at which time they raised the possibilty with 

Complainant of him transfering off the section to another section. 

These discussions, by management officials, coming soon after 

Complainant engaged in protected activities, surely tended, in 

some degree to cause the Complainant to feel intimidated. As 

such, I conclude that they constitute an adverse action. 

351 
3. On July 29 1986 Kirk required Complainant to shovel the 

face area for approximately 20 minutes. 

Ron Winfrey, Respondent's Shift Foreman, testified that 

shoveling coal is part of coal mining and that the only crew 

member he would exempt would be an electrian. He further testified, in essence, that shoveling is required when a scoop is down.· 

It was also his testimony that normally a suttle car operator 

shovels coal around a feeder on an average of three to five times 

a shift, and that nine times out of ten the shovel car man normally cleans the spillage around the tail piece. These statements might be true with regard to Winfrey's general experence, 

but in order to ascertain the specific working conditions in 

Kirk's crew, I adopted the testimony of Nelson, May and Meadows, 

as being crew members, they would have personal knowledge of the 

work conditions in the crew. As such, I found that prior to 

January 29, 1986 no·crew members had been required to shovel coal 

upon the breakdown of the scoop. Accordingly, I find that an 

adverse action occured when Kirk required Compainant to shovel 

coal. 

Motivation 

I have concluded, infra, that the discussions of Cummings, 

Wright, and Winfrey with Complainant on January 21, 1986, concerning a transfer out of Kirk's section, constituted an adverse 

action. In as much as Kirk did not tell them to speak to Nelson 

in this regard, and they acted soley on their own initative, the 

inquiry must focus on their motivation rather than on Kirk's 

motivation. These discussions took place a short time after 

Complainant had engaged in protected activities. Also, although 

Jo.hnson and Nelson had an agrurnent over the placement of the 

ventilation tubing, Wright, Cummings, and Winfrey initiated a 

discussion about a transfer only with Nelson. However, Winfrey 

indicated that Johnson had initiated with him a discussion of 

a tranfer, and he considered talking about a transfer with Nelson 

and not Johnson, as the latter was still lligerent. Winfrey 

indicated that he wanted to transfer Complainant as there was 

"turmoil" between him and Kirk. Kirk had told Wright and 

Curnmings that Complainant was the problem and Wright testified 

that he wanted to talk to the Complainant in order to try to 

solve the problem before it got out of hand. After the discussions that Wright,. Cummings, and Winfrey had with the 

Comp inant, with regard to a transfer out of the section, no 

futher action was taken by them to transfer Complainant. I thus 

find that their motivation in offering to transfer Complainant 

from the section was not related to safety complaints. 

352 
The adverse action against the Complainant by Kirk on 

January 21, 1986 in falsely accusing him of illegally using a man 

trip was committed almost immediately after Complainant had engaged 

in a protected activity. It establishes, prima facie, that this 

adverse action on Kirk's part was motivated by Complainant's 

protected activity. Respondent has not offered any evidence to 

rebut this prima facie finding. Accordingly, it is concluded, 

that this adverse action on Kirk's part was motivated solely by 

Complainant's protected activity. 

On January 29, 1986, one day after Complainant engaged in a 

protected activity in the presence of Kirk, Kirk had him shovel 

coal. Further, I adopted the testimony of Meadows that on one 

other occasion Kirk had told Meadows that he "would have been 

shoveling ribs all day", if a piece of equipment would have been 

taken out of service by a State Inspector as a result of comments 

that Meadows had made. Also, I have adopted the testimony of 

Meadows that after Complainant asked Kirk if he was going to get 

some rock dust, that Kirk told Meadows that Nelson was "crying 

about the place not being rock dust(ed)". Also, I have adopted 

the version testified to by Nelson, May and Meadows that in 

Kirk's section miners in the past had not done any shoveling when 

the scoop had broken, and that only Complainant and Meadows, who 

also had complained to Kirk about the lack of rock dust on 

January 28, were singled out by Kirk to shovel coal on January 

29. 

I thus find, based on the above, that the Complainant 

established a prima facie case that Kirk's action, in having him 

shovel coal for 20 minutes on January 29, was motivated by the 

former's protected activity. I further find that Respondent has 

not rebuted this finding. 

I therefore find that Complainant has met his burden in 

establishing that his being required to shovel coal for 20 

nutes on January 29, 1986 constitutes a violation of Section 

105(c) of the Act. I also find that Kirk's action on January 21, 

1986, accusing Complainant of illegally using a man trip constitutes a violation of Section 105(c) of the Act. The balance of 

the al gations in the complaint do not establish a violation of 

Seciton 105(c) of the Act. 

I have considered the size of Respondel1t 1 s mining operation 

and history of violations, as contained in figures submitted by 

Complainant and stipulated to by the Respondent. It is significant to note that no previous Section 105(c) violations have been 

assessed. I futher find that the adverse actions taken by Kirk 

against the Complainant to have been intentional. Based on these 

factors as well as the nature of the rse actions ~stablished, 

I find that a penalty of $400 is appropriate. 

3 
Order 

It is ORDERED that: 

1. Respondent shall within 15 days from the date of this 

decision post a copy of this decision at the Morton Mine where 

notices to miners are normally placed and shall keep it posted 

there for a period of 60 days. 

2. Respondent shall pay a penalty of $400 within 30 days of 

this decision. 

Distribution: 

Avram Weisberger 

Administrati.ve Law Judge 

Jonathan M. Kronheim, Esq., Office of the Solicitor, U. S. 

Department of Labor, 4015 Wilson Boulevard, Room 1237A, 

Arlington, VA 22203 (Certified Mail) 

Mr. Roger Nelson, Box 386, Sylvester, WV 25193 (Certified Mail) 

Billy M. Tennant, Esq., U. S. Steel Mining Co., Inc., 600 Grant 

Street, Pittsburgh, PA 15230 (Certified Mail) 

dcp 

354 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 25 1987 

MANALAPAN MINING COMPANY, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MANALAPAN MINING COMPANY, 

Respondent 

. . 

: 

. . 

. . 

CONTES'r PROCEEDING 

Docket No. KENT 86-119-R 

Citation No. 2596792-04; 6/5/85 

Harlan No. 1 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 86-130 

A.C. No. 15-05423-03563 

Harlan No. 1 Mine 

DECISION 

Appearances: Karl s. Forester, Esq., Forester, Forester, 

Buttermore & Turner, P.S.C., Harlan, Kentucky 

for Manalapan Mining Company; 

Theresa Ball, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for the Secretary of Labor. 

Before: Judge Melick 

These consolidated cases are before me pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et. ~, the "Act," to challenge the 

issuance by the-Secretary of Labor of one citation and two 

withdrawal orders charging the Manalapan Mining Company 

(Manalapan) with violations of regulatory standards. The 

general issues before me are whether Manalapan violated the 

cited standards and, if so, whether the violations were of 

such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health 

hazard, i.e., whether the violations were "significant and 

substantial". If violations are found it will also be 

necessary to determine the appropriate civil penalty to be 

assessed in accordance with section llO(i) of the Act. 

During the course of an investigation of a June 4, 1985, 

fatal rib fall accident at the Harlan No. 1 Mine several 

withdrawal orders and citations were issued, three of which 

355 
are before me in these proceedings. At hearings the parties 

agreed to settle Order No. 2594901 for the $1,000 penalty 

proposed by the Secretary. I have considered the representations and documentation submitted in support of the proposed 

settlement and find that it meets the criteria set forth in 

section llO(i) of the Act. Accordingly the proposed settlement of Order No. 2594901 is approved. 

Citation No. 2596792 alleges a "significant and substantial" violation of the operator's roof control plan under 

the standard at 30 C.F.R. § 75.200 and charges as follows: 

Dangerous loose overhanging ribs were present in 

all active workings of the 004-0 section, and also 

the supply track from the subject section to the 

No. 4 cross entry belt outby. This condition was 

the contributing factor which led to the issuance 

of imminent danger order issued during a fatal 

accident investigation; order No. 2596791 issued 

6-5-85. 

The citation was subsequently modified.on May 14, 1986 

as follows: 

This violation is hereby modified to read item (20) 

negligence as being (e) (Reckless Disregard) because 

the operator had been warned prior to the fatal 

accident by two (2) other persons being injured and 

by previous citations issued that the ribs were 

dangerous and also memo written concerning rib controls and no action was taken until after the fatal 

to control ribs in high coal bed. Also modified to 

read item (21) Gravity (A) as being (occurred) 

because (1) man was killed as a direct result of no 

measures taken to control ribs in the high coal 

bed. 

The cited standard, 30 C.F.R. § 75.200, provides in part 

that "the roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of 

the roof or ribs." 

There is indeed no dispute that on June 5, 1985, the 

date of the violation alleged in the citation at bar, loose 

and overhanging ribs were present in the active workings of 

the 004-0 section of the Harlan No. 1 Mine. Indeed Mine 

Superintendant Ralph Napier admitted that there were a 

"pretty lot" of loose and overhanging ribs in the section on 

June 5. The violation is accordingly proven as charged. 

The evidence is also undisputed that such loose and overhanging ribs existing in active workings constitute a serious 

356 
hazard. In of the absence of any rib control in this section 

of the mine where the extracted height was 12 feet, where 

they were retreat mining (and not all of the pillars were 

being extracted during the process thereby creating excess 

pressure on the ribs), and where there existed a rockband 

some 2 feet from the mine roof thereby placing additional 

pressure on the 2 feet of coal between the roof and rockband, 

the violation was also "significant and substantial." 

v. Mathies Coal Company, FMSHRC 1 (1984). 

Whether this violation was caused by Manalapan's negligence depends on whether Manalapan officials knew or should 

have known of the violative conditions, or regardless of 

whether they knew or should have known of those conditions 

whether they nevertheless failed to follow safe industry 

practice in providing additional rib support under the 

circumstances as they existed on June 5, 1985. 

The Secretary argues that the dangerous loose and overhanging ribs cited on June 5, 1985, had existed since before 

the fatal rib fall at around 2:45 p.m. on June 4, 1985. 

According to Inspector Ronny Russell of the .Federal Mine 

Safety and Health Administration (MSHA) the overhanging rib 

conditions in the 004 section were about the same on June 5 

as they were on the date of the fatality June 4. Russell was 

in the 004 section on June 4 after the fatal accident and 

testified that he then saw dangerous, loose overhanging ribs 

throughout the active working section. Rus 1 was however 

the oniy witness to claim that he actually saw such dangerous 

loose and overhanging ribs on June 4. Moreover Russell never 

did issue an order or citation for these alleged conditions 

on June 4. It is also interesting that although Russell had 

been the regular MSHA inspector at the Manalapan Mine and had 

in ct inspected it on the preceding May 22nd and May 30th 

1985, he had never issued any citations for roof or rib 

violations. All of the remaining witnesses who were present 

in the cited section on June 4, disagreed moreover with 

Russell's observations. 

Frank Curry a Manalapan roof bolter was working in the 

vicinity of the fatal accident before it occurred. While he 

thought there may have been some loose ribs behind them none 

were overhanging. According to Curry the deceased had tested 

the ri~ that fell with a steel drill. Moreover the rib was 

"straight up and 1own" with no cracks or fractures to be 

seen. 

Richar3 Cohelia, the Manalapan Saf Director, did not 

remember seeing any loose or overhanging ribs in the 004 section after the accident. According to Cohelia the conditions 

had significantly deteriorated overnight so that on June 5, 

1985, several loose ribs had slabbed out from the permanent 

rib. 

357 
Johnny Helton the 

Ralph Napier both went 

accident on June 4 and 

ribs in that section. 

found that some of the 

weight of the roof and 

at that time. 

Manalapan General Mine Foreman, and 

into the 004 section shortly after the 

neither saw any loose or overhanging 

They both returned on June 5, and 

ribs had since rolled out from the 

there were loose and overhanging ribs 

Gary Cochran the 004 Section Foreman on June 4th testified that the section was being retreated in an area of 12 

foot coal. Cochran entered the mine at around 6:45 that 

morning to perform his on-shift examination. They began 

cutting coal at around 11:30 that morning and were in the 

second cut when they saw some loose ribs. The continuous 

miner was then moved in. According to Cochran the ribs were 

then trimmed back to an angle of 45 degrees and they "looked 

good" when the miner was backed out. Cochran also saw the 

deceased and Curry each take down some loose coal with an 11 

foot drill steel bar. Cochran testified that he then checked 

both the right and 1 t side visually before he left. 15 

minutes later he heard that Boggs had been killed in the 

heading. According to Cochran there was only 1 overhanging 

rib in his section which was taken down prior to Bogg's 

accident. 

Raymond Gross, Jr. was working on June 4, 1985, in the 

004 section for Foreman Cochran. According to Gross the ribs 

were "in good shape" at that time although there had been 

some sloughing. 

Within this framework of evidence I do not find that the 

Secretary has proven his claim that the loose overhanging 

ribs found on June 5v 1985, had existed since before the 

fatal accident on June 4th. The Secretary also maintains 

however that the o r was negligent because it had been 

warned of the dangerous rib conditions on June 5th by the 

fact that two other persons had previously been injured by 

rib rollsf by previous citations issued for dangerous ribs, 

and also '~from a memo written concerning rib controls and no 

action was taken until after the fatal to control ribs in 

high coal bed." 

The rBcord shows that citations had been issued to 

Manalapan on September 4, 1984, for a violation of loose and 

overhanging ribs in another section of the mine and again on 

October 17, and November 9, 1984, for similar problems. I 

cannot find however that these violations constituted any 

notice of the rib conditions more than 6 months later on 

June 5, 1985, in another section of the mine. The mere 

existence of these prior violations without more, does not 

suggest that the operator was negligent on this occasion. 

358 
In addition, while MSHA Inspector Paul Helton noted on 

the citation issued September 4, 1984, that the operator 

needed a modification to his roof and rib control plan to 

take care of sloughing ribs, this was not made a condition of 

abatement nor was the operator subsequently required by MSHA 

to so modify its plan. Indeed the evidence shows that 

Inspector Belton's supervisor thought it would be "fruitless 

to pursue" such a requirement. Since MSHA itself therefore 

apparently did not deem such a modification to be sufficiently important to compel the operator to make such 

changes, either as a condition of abatement or as a condition 

in its roof and rib control plan, I find its argument now 

tnat the operator wa8 negligent solely for failing to adopt 

such changes to be unpersuasive. 

Manalapan is not totally without negligence however in 

light of its history of rib problems. The evidence is undisputed that in a 10 to 12 foot coal seam as here there is an 

increased danger of bursting ribs. Here there was also a 

history of rib rolls particularly during retreat mining and 

only partial pillar recovery. Moreoever based on the credible expert testimony of MSHA Special Investigator, Lawrence 

Layne, it is clear that the additional stresses placed upon 

the roof and ribs under such conditions clearly warranted 

additional safeguards to protect the miners from rib rolls. 

This evidence establishes that safe and accepted industry 

practice warranted such measures. The fact that Manalapan 

took no additional precautions, which were shown to be feasible, supports a finding of operator negligence. 

Cit:.ttion No. 2596793 a11eges a "significant and substantial" viola ion of the st;JnJard at 30 C.F.R. ~ 75.304 and 

charges as follows: 

Sufficient and ii.dequatt:: on shift e.;,,.aminations had 

not he0n conducted in the 004-0 section, in that on 

6-4-85 loose overhanging ribs were present, also 

the approv·.c:J roof control plan wa.s not being fully 

complied with in that turnposts were not set going 

into the pillar it, and only (3) road~ay posts 

were set on l bJock outby the block being mined, 

Rnd the power center for subject section was within 

· ;o feet of the llar being ~ined. 

Tne c1t;::d stFlndard provides in relevant part dS follows: 

Al least once during each coal-producing shift, or 

more of ten if necessary for safety, each working 

sc~ction shall be examined for hazardous conditions 

by certified persons designated by the operator"to 

do so. Any such conditions shall be corrected 

immediately. 

359 
As noted, the Secretary's evidence has been found insufficient to sustain a finding that loose overhanging ribs were 

present on the 004-0 section on June 4, 1985. Manalapan 

acknowledges however that it was in violation of the approved 

roof control plan as cited in that turnposts were in fact not 

set into the pillar split and that only 3 roadway posts were 

set for 1 block outby the block being mined. The foreman in 

charge of the section, Gary Cochran, said that he was not 

even aware of the requirement to have line posts set before 

the second cut into the pillar. Manalapan also admits that 

the power center for the section was indeed within 150 feet 

of the pillar being mined. The existence of these violative 

conditions either through ignorance or by intent clearly 

supports the violation. 

The Secretary concedes that these conditions were not 

the causative factors in the fatal rib fall on June 4, 1985, 

however it nevertheless maintains that the violation was 

"significant and substantial." I must agree. It may reasonably be inf erred from the fact that inadequate on-shift examinations were being conducted in the 004-0 section that any 

number of hazardous conditions were not being detected. It 

may also reasonably be inferred from the failure to have 

corrected the two admitted violations that reasonably serious 

injuries would· .. result. The violation is accordingly serious 

and "significant and substantial." Mathies, supra. 

In determining the appropriate civil penalties in this 

case I have also considered that Manalapan is of moderate 

size and has a moderate history of violations. There is no 

dispute that the violative conditions cited in this case were 

abated as required by the Secretary. Accordingly I find that 

civil penalties of $500 for Citation No~ 2596792 and $500 for 

Order No. 2596793 are appropriate. 

ORDER 

Manalapan Mining Company is hereby ordered to pay civil 

penalties of $2,000 within 30 days of the date of this 

decision. ~/\ r, \ ~ 

I \ \J_ f. -,. . \ ,\,\~\ .,,, .. 

Gairy Me\ick \ 

Administrative Law Judge 

360 
. Distribution: 

Karls. Forester, Esq., Forester, Forester, Buttermore & 

Turner, P.s.c., Forester Building, First Street, P.O. Box 

935, Harlan, KY 40831-0935 (Certified Mail) 

Theresa Ball, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

rbg 

361 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OfFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COl~AX AVENUE, SUITE 400 

DENVER, COLORADO 80204 FEB 2 5 i987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAF'E'PY AND l:IE~ALTH 

ADMI NISTRJ\TION (MS HA) , 

Petit. J.<.'nE'r 

v. 

STAKER Pl\\IT'.·~C ~; : ';y.Jc:·r;wcr I.()!'.; 

COMP!V~Y, 1 NU;!;' 'c< i\'t'l:D, 

He::; r"; n ~It' fit 

Docket No. WEST 86-120-M 

A.C. No. 42-01452-05513 

Staker-Beck Street Mine 

Appearances: M.)C(JC>rc:t A. Mil i.t=.,r, F<~q., Of fie(;:. of Uit:~ Solicitor, 

lJ,S. DP.partment. of r.ah•n, l.l\":'n\u::r, Colorado, 

t o r h:: t. i t i u n t~ r ; 

Mr. (Jc,;al D. Gillen, Staker- Pa.vin•J Con·::;truction 

C<:,;1,,t-1ny, Tnr:. 1 c;i!Jt LEJ.k City, UL.'1.!t, 

Before: 

The Sec.rt::"tnry of LCibor, on behaU: of t;·1c Min Safety and 

lh::.alth Administr:.:i\· icm, chan3t;s r(·c:;po~·1dent with violating a safety 

regulation promuL·:-iLt:'<"t 1rnd~~r tiv:: F•"cieraL Mi11c :;af:t:•ty and H•"alth 

Act of 1977 1 3U L'.S.C, '? BOl c Sf'',, (the "!>.ct"). 

Af:tE.;r notic tot p.'tr,L ··~, Z'J h, .. •1rinq on rhc:: u;r:•rits t.ook 

place in Salt L1\e Ci1; 1 ·•: .. , .:.n 11<tq1·.1. ll, l9f36. 

The partic:::3 waiv .1 their: rLJh! to fil:-=: post·-trial brj2fs. 

1 s:.oues 

The issue:.' .itc: 'w!k'.i:her an aJlr:::0ation of unwa.rront ble 

failure can b: ,., n:.~ ·;L:'rt in.'~ civil pen.:.,lty proc~:e(Jir-.q. Fcirt·br:or, 

wr1ether the \.'J;}>\i(;n W<~.·; of ,:i si.qnificc>nt .1nd ~".ub.;; nt.ial nc1ture. 

Finally, what ;i ·i.<t·/ i·:; .1r'P' r:idtr:: uc.d r th,·: 'i.!::.:·im:-;tance~:: in 

this case. 

This citatton alleges respondent violated 30 C.F.R. 

§ 56.9087 which pcovides as follows: 

§ 56.9081 Andibl '·!.irni.rv; dev1.r::c'~~; a.nd <:lack-up nlar.ms. 

Heavy duty mobile cqui.pI~~,;,nt. sh;-dl be pro1.;id·''1 with audible 

warn i.ng d~Yv ic•:::..:;.. When Lhe eper a tc,r .;)f .sue h equipment has 

362 
an obstructed view to the rear, the equipment shall have 

eithe~ an automatic reverse signal alarm which is audible 

above the surrounding noise level or an observer to signal 

when it is safe to back up. 

Admission 

At the commencement of the hearing respondent admitted the 

violation (Tr. 4, 5). 

Summary of the Evidence 

William W. Wilson, a duly authorized representative of the 

Secretary and experienced in mining, inspected respondent on 

December 16, 1985 (Tr. 9, 10). 

During the inspection he issued Citation 2644141 when he 

observed a Michigan 275C front-end loader without an audible 

alarm (Tr. 11; Ex. Pl). McCoy Evans was operating the vehicle. 

During the course of two days the inspector observed a laborer 

and a mechanic in the general area of the loader (Tr. 11). The 

inspector also did not see anyone spotting for the loader when it 

backed up (Tr. 11). The back-up alarm was not audible (Tr. 12). 

In the previous week the operator had turned in several daily 

reports to the pit foreman (Tr. 13). 

The inspector evaluated the operator's negligence as 

moderate when he wrote the citation (Tr. 14). The following day 

he confirmed that maintenance reports on the defective vehicle 

had been written on December 9, 10, 11 and 13 <Tr. 15, 16). On 

the final citation the inspector accordingly marked the negligence as high and further indicated that the circumstances showed 

a careless disregard by the operator since no repairs had been 

made (Tr. 16, 17>. 

The hazard involved here could reasonably kill or maim a 

miner (Tr. 17, 18). Respondent abated the condition in six days. 

It was necessary to obtain a part <Tr. 18). 

The inspector indicated he has had some problems with 

respondent's employee Van Dyke concerning compliance with safety 

regulations (Tr. 19). But there has been a decline in the number 

of citations issued against respondent. This has been attributed 

to the company's efforts (Tr. 20). Apparently a communication 

problem caused the delay in the repair of the alarm (Tr. 21). 

Respondent has, on the average, 12 employees (Tr. 24). 

Orval D. Gillen, testifying for respondent, indicated he is 

the company's safety and training engineer (Tr. 28, 29). The 

witness identified the various employees on the site at the time 

of the inspection (Tr. 20, 29). 

363 
Mr. Gillen believed the equipment operator, as they normally 

do, should have immediately notified the shop people of the 

defect (Tr. 30, 31). The notification can be by telephone or 

radio, located at the crusher (Tr. 31). The instructions to the 

operators to proceed in this fashion are verbal and were given 

during training (Tr. 32). 

The pit's size is about 100 by 300. When the citation was 

issued there were six people at the site {Tr. 32, 34). 

After this citation the operators involved were again 

verbally instructed as to the proper procedure CTr. 33). 

The company employs as many as 500 people but most of them 

are under OSHA's jurisdiction (Tr. 34). 

Payment of the proposed penalty would not affect the 

company's ability to continue in business (Tr. 25, 37). 

Discussion 

Since the operator ~dmits the violation the citation should 

be affirmed. 

~n additional issue concerns respondent's contest of the 

allegations of unwarrantable failure. The ruling at the hearing 

is reiterated at this time: unwarrantab failure cannot be 

litigated in a civil penalty proceedings, Clinchf ield Coal 

Company, 2 FMSHRC 290 (1980). 

A further issue concerns whether the violation was a 

significant and substantial nature. 

A decision as to whether a violation has been properly 

designa as being significant and substantial must be made in 

light of the Commission's rulings in that area. The term 

"significant and substantial" was first defined by the Commission 

in National Gypsum Co., 3 FMSHRC 822 (1981) at page 825, where 

the Commission stated: 

We hold that a violation is of such a nature as could 

significantly and substantially contribute to the cause 

and effect of a mine safety and health hazard if, based 

upon the particular facts surrounding that violation, 

there exists a reasonable likelihood that the hazard contributed to will result in an injury or an illness of a 

reasonably serious nature. 

In this case the facts fail to establish that was a reasonable likelihood that an injury of a reasonable serious nature 

would result from the violative condition. The evidence es364 
tablishes there were workers in the 100 by 300 pit. But, it is 

impossible'to ascertain if the described measurements are in feet 

or yards. Further, no evidence indicates any workers were 

directly in danger due to the defective back-up alarm on the 

loader. 

For the foregoing reasons the S & ? allegations should be 

stricken from the citation. 

The final issue concerns the appropriate penalty to be 

assessed. 

The statutory criteria to assess a civil penalty is 

contained in Section llO(i) of the Act. The provision, now 

codified as 30 u.s.c.A. § 820(i), provides as follows: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil 

monetary penalties, the Corrunission shall consider the 

operator's history of previous violations, the appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue 

in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a 

violation. 

In relation to the criteria the computer print-out shows 

that respondent incurred 19 violations for the two year period 

ending December 15, 1985. This showed an improvement over the 28 

violations assessed before December 16, 1983. The penalty 

hereafter assessea appears appropriate in relation to the size of 

the business of this small operator. While the operator at times 

has as many as 500 employees, the majority of them are not under 

MSHA's jurisdiction. In fact, there were apparently only six 

employees at this site. The operator was negligent since four 

maintenance reports had mentioned the defect. The operator has 

indicated that the imposition of the proposed penalty of $700 

would not affect the company's ability to continue in business. 

The gravity of the violation should be considered as high because 

a serious injury or a fatality could result. Under the broad 

umbrella of good faith it is to respondent's credit that it 

abated the violation. Further, the respondent at this point has 

demonstrated a certain dedication to the safety of its workers. 

On balance, I deem that a civil penalty of $250 is an 

appropriate penalty. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

365 
1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 56.9087. 

3. The allegations that the violation was significant and 

substantial should be stricken. 

Based c~ the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

1. The allegations that the violation was significant and 

substantial are stricken. 

2. Citation 2644141, as amended, is affirmed. 

3. A civil penalty of $250 is assessed. 

4. Respondent is ordered to pay the sum of $250 to the 

Secretary 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 Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Staker Paving & Construction Company, Inc., Mr. Orval D. Gillen, 

P.O. Box 27598, Salt Lake City, UT 84127 (Certified Mail) 

/bls 

366 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 26, 1987 

DANNY JOHNSON, DJSCRfMINATION PROCEEDING 

Complainant 

v. Oocket No. KFNT 87-68-D 

BARB CD 87·-04 

LAMAR MINING COMP~NY ANO 

LARRY WTLLT.l\MS, Gotts Creek Strip Mine 

GRAHAM MAR'J'IN l.i.~lD 

WILLIA..IV!S & ~viARTIN COAL CO,, 

Respondent 

Before: Judge Merlin 

The Complainant has filed a motion to withdrAw his complaint 

and dismiss this proceeding on the g~ounds that a settlement has 

been reached with the operator. The settlement agreement 

requires the operator to pay $5,000 e.o the Complainant in four 

equal installments, the final payment to be made May 18, 1987. 

The settlement is Approved as it is in ~ccord with the 

purposes of the Federal Mine Qafety and Health Act of 1977. 

Accordingly, the motion to withd~aw is GRAN~FD and this case 

is DISMISSRO. 

~~~~ Paul r>k~rl in 

Chief Administrative ~aw Judge 

l)istribution: 

T'ony Oppegard, Psq., Apr.1a l.ach i ;:in '«:: s''.=t cell 

Kentucky, Tnc., P. 0. Box 360, Hazard, KY 

Mail) 

& Detense Fund of 

41.701 (Certified 

Bobby Williams, Psq., ~,amac •,Jining ni_1 , P. 0. Box 20, 

Hindman, KY 41822 '~E:':ti i.ed Mail) 

Larry P, Williams, Lamar ~·1ining Company/WilliB.rns & Martin Coal 

Company, Inc., Willi.ams f3ui1ding, Main ''.Lreet 1 r<.i.ndman, '\Y 41822 

(Certified Mail) 

C. Graham Mattin, ~. 0. Box 507, Hindman, ~Y 41822 (Certified 

Mail) 

367 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80104 FEB 271987 

SECRETARY OF LABOR, 

MINE SAF8TY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

VALDRZ CREEK MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-179-M 

A.C. No. 50-01315-05503 

Denali Mine 

DECISION 

Appearances: William W. Kates, Esq., Office of the Solicitor, 

U.S. Department of Labor, Seattle, Washington, 

for Petitioner; 

Mr. Don H. Schultz, Valdez Creek Mining Company, 

Anchorage,· Alaska, 

pro _se. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a proposal 

for assessment of a civil penalty by the Secretary of Labor 

(herein the Secretary) on November 5, 1985, pursuant to Section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. Section 820(a)(l977)(herein the Act). A hearing on the 

merits was held in Anchorage, Alaska on September 8v 1986. 

In this matter, the Respondent admits that the violations 

charged actually occurred but questions the amount of MSHA 1 s 

administrative penalty assessments. ~/ 

The amount of a penalty should relate to the degree of a 

mine operator 1 s culpability in terms of willfulness or 

negligencer the seriousness of a violation, the business size of 

the operator, and the number and nature of violations previously 

discovered at the mine involved. Mitigating factors include the 

operator's good faith in abating violative conditions and the 

fact that a significantly adverse effect on the operator's 

ability to continue in business would result by assessment of 

penalties at a particular monetary level. Factors other than the 

above-mentioned six criteria which are expressly provided in the 

Act are not precluded from consideration either to increase or 

reduce the amount of penalty otherwise warranted. 

l/ One of the 17 Citations involved, No. 2394378, was vacated on 

the record by the Secretary at the instance of the undersigned 

since it appeared that the pertinent standard had not been 

infracted. 

368 
The Respondent concedes that payment of penalties will not 

jeopardize its ability to continue in business. At the outset of 

the hearing, it was determined that Respondent has no history of 

violations occurring prior to the issuance of the Citations here 

involved. 

The Respondent is the largest placer gold mine in the State 

of Alaska and had 100 employees on its payroll at the time of the 

violations. Respondent pointed out, however, that compared to 

gold mines in the lower 48 states it was not a particularly large 

gold mine, and on the basis of all the evidence it is concluded 

that Respondent is a medium-sized mine operator. 

No challenge to the so-called "significant and substantial" 

charges contained on various of the Citations was made by 

Respondent. The Secretary alleged that several of the 

violations, which were issued during the period July 10 through 

August 9, 1985, by MSHA Inspector James B. Hudgins, were not 

abated promptly and in good faith and such contention will be 

determined where appropriate in the discussion of the 16 remaining violations which follows. Unless specifically discussed and 

determined otherwise, the Respondent is found to have proceeded 

in good faith to promptly abate the violations in question upon 

notification thereof by the Inspector. · 

FINDINGS, CONCLUSIONS AND DISCUSSION 

Citation No. 2393637 

The standard infracted, 30 C.F.R. § 56.9087 provides: 

"Heavy duty mobile equipment shall be provided with audible 

warning devices. When the operator of such equipment has 

an obstructed view to the rear, the equipment shall have 

either an automatic reverse signal alarm which is audible 

above the surrounding noise level or an observer to signal 

when it is safe to back up." 

MSHA Inspector James B. Hudgins, who issued all 17 Citations 

involved in this matter on two different inspections, testified 

that he com.~enced the first of the two inspections on July 10, 

1985, and the second inspection on August 8u 1985 ( T. 17). 

The violative condition (or practice) involved is described 

in the subject Citation as follows: 

"The 988 CAT Front-end loader equipment No. 203 loading 

trucks in the B channel section of the pit did not have a 

operable reverse signal alarm nor was an observer being 

used. The equipment operator has an obstructed view to 

the rear (blind spot)" 

369 
The Secretary established that Respondent's mine 

superintendent at the time, Dennis Babcock, "didn't believe" in 

the automatic back-up alarm requirement and that the loader 

operator had turned the equipment in for repair several times 

without success. This is a willful violation which was also 

serious since a fatality could have resulted had a miner been run 

over by the loader while it was backing up. Since there was no 

"foot traffic", that is miners working in the area on foot, the 

probability of such an accident was not likely, and thus a low or 

moderate degree of seriousness is attributed. 

Based on these findings as to negligence (willfulness), 

gravity, and the other 4 assessment criteria required by the Act, 

a penalty of $30.00 is found appropriate. 

Citation No. 2393638 

The standard infracted, 30 C.F.R. § 56.9087 is set forth 

above in connection with the discussion of Citation No. 2393637. 

The violative condition (or practice) is described as 

follows: 

"The 35 ton DJB CAT haul truck equipment No. 307 operating 

in the pit did not have a operable reverse signal alarw nor 

was an observer being used. The truck driver has an obstructed view to the rear (blind spot)." 

While there was no evidence as to the length of time this 

violation existed, such is nevertheless found to be willful in 

view of the mine superintendent's statement to the Inspector that 

he "did not believe" in such automatic back-up alarms and that 

such alarms were a "nuisance". 

There were no miners working foot around the equipment. 

However, had the equipment backed over a miner a serious (injury) 

or fatality could have occurred. Because the occurrence of such 

an accident was unlikelyp a penalty $30.00 is assessed. 

Citation No. 2393639 

The standard infracted, 30 C.F.R. § 56.9087 is the same as 

that involved in the first two citations herein discussed. 

The violative condition (or practice) is described in the 

Citation as follows: 

"The Galion Road Grader operating at the mine did not have 

a operable reverse signal alarm nor was an observer being 

used. The operator has an obstructed view to the rear. 

Equipment No. 502." 

370 
This violation is found to be of a low degree of gravity 

since the Inspector testified that there was no foot traffic in 

the area where the grader was operating and that the hazard envisioned was "not likely" to occur. Based on my prior findings 

concerning this operator's intransigence with respect to installing automatic backup alarms, this violation is found to be 

willful. The violation was not abated in good faith within the 

time established by the Inspector, and the cavalier· attitude of 

the mine operator with respect to this mine safety standard was 

again in evidence in this respect. A penalty of $50.00 is ~ound 

to be appropriate. 

Citation No. 2393640 

The standard infracted, 30 C.F.R. § 56.9022 provides: 

"Berms or guards shall be provided on the outer bank 

of elevated roadways." 

The violative condition (or practice) is described as 

follows: 

"The elevated roadway from the plant to the slurry tank 

with a drop off on both sides upto approximately 50 feet 

was not bermed. The road was being used daily by various 

pieces of equipment." 

The evidence adduced with respect to this violation 

indicated that the dropoff on one side of this 175-foot long 

roadway was approximately 50 feet and was from 10-15 feet on the 

other side. The roadway appeared to have been used for 

approximately one month-from the time it was built-and the 

Inspector indicated that had a vehicle gone over the side, the 

resultant injury could "very likely" be expected to be fatal. 

This is found to be a very serious and obvious violation which 

resulted from the negligence of the mine operator. The violative 

condition described in the Citation was not abated in good faith 

by the operator since berms were not installed until approximately three weeks after the period for abatement had run and 

only after the Inspector had returned to the mine site. This 

violation is thus found to have not been promptly abated in good 

faith by the mine operator after being notified thereof. 

Respondent presented no rebuttal to the Secretary's allegation 

that this was a "serious and substantial" violation. In view of 

the deteriorating condition of the roadway, the severity of the 

hazard posed by the violation, and the operator's apparent lack 

of concern for compliance with mine safety standards, it is 

concluded that the Secretary established the prerequisite 

elements of proof for "significant and substantial" violations 

mandated by the Federal Mine Safety and Health Review Commission 

in its decision in Mathies Coal Co., 6 FMSHRC 1 (1984) to wit: 

"Cl) the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard--that is, a measure 

371 
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 a reasonably serious nature." 

In the premises, the Citation is affirmed in all respects 

and a penalty of $150.00 is assessed. 

Citation No. 2393643 

The standard infracted, 30 C.F.R. § 56.9011 provides: 

"Cab windows shall be of safety glass or equivalent, in 

good condition and shall be kept clean." 

The violative condition (or practice) is described as 

follows: 

"The windshield on the Teres 72-61 front-end loader (equipment No. 201) was severlly (sic) fractured through out the 

viewing area of the operator. The front-end loader was used 

daily at the plant stockpile area." 

According to the Inspector, the windshield was severely 

fractured, visibility was very poor, the loader's driver had 

complained about it for "some time", and the condition could 

~reasonably likely" result in an accident which "could very well 

be fatal." It also appears that the windshield became in such 

condition as a result of sun heat or some trauma-not graduallyand that the Respondent had ordered a new windshield which had 

not arrived by the time the inspection was conducted. The violative condition was abated promptly and in good faith. The 

Inspector, upon observing the windshield, determined not to remove the vehicle from use. While this was a serious, and 

"significant and substantial" violation, I find no evidence it 

resulted from Respondent's negligence. A penalty of $75.00 is 

assessed therefor, 

Citation No. 2393544 

The standard infracted, 30 C.F.R. § 56.9011 provides: 

"Cab windows shall be of safety glass or equivalent, in 

good condition and shall be kept clean." 

The violative condition (or practice) is described as 

follows: 

"The front windshield on the 988 B Caterpillar front-end 

(equipment No. 203) was fractured through out the operations 

viewing area. The loader was operated in the pit area." 

372 
While the entire windshield was fractured, visibility 

through this windshield-unlike that involved in the preceding 

violation- was, according to Inspector Hudgins, "still fairly 

decent" and the fractures would not increase the possibility of 

an accident. No evidence of negligence was preferred. Since 

this was not a serious violation, the penalty sought by the 

Secretary, $20.00, is found appropriate and is assessed. 

Citation No. 2394341 

The standard infracted, 30 C.F.R. § 56.12025 provides: 

"All metal enclosing or encasing electrical circuits shall 

be grounded or provided with equivalent protection. This 

requirement does not apply to battery-operated equipment." 

The violative condition (or practice) is described as 

follows: 

"The 110 volt power cable from wash plant control box to 

the outside lights was not grounded. The green ground wire 

was not connected." 

The Inspector testified that while it was unlikely that an 

accident would occur as a result of this violation, the hazard 

contemplated by the Inspector was "shock" which the Inspector 

noted on the Citation could be "fatal." The condition had 

existed "a few days or a few shifts" before the inspection and 

was due to an electrician's failure to tape up and finish the 

connection in question. I find no basis in the record for 

attributing the electrician's negligence to Respondent's 

management. The violation is found to be but moderately serious 

and the penalty sought by the Secretary, $20.00, is assessed. 

Citation No. 2394342 

The standard infracted, 30 C.F.R. § 56.12032 provides: 

Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times except 

during testing or repairs. 

The violative condition (or practice) is described as 

follows: 

"The door for the 220 volt distribution box in the wash 

plant electrical control room was not in place. (The box 

was energized)." 

This violation could have resulted in a fatal electrical 

shock hazard. Several employees were exposed to the hazard and 

it was very likely such could come to fruition. This serious 

373 
violation is thus found to be "serious and substantial", Mathies 

Coal Co., supra. There was no evidence of specific negligence on 

the part of the mine operator. A penalty of $100.00 is assessed. 

Citation No. 2394344 

The standard infracted, 30 C.F.R. § 56.9087 provides: 

"Heavy duty mobile equipment shall be provided with audible 

warning devices. When the operator of such equipment has 

an obstructed view to the rear, the equipment shall have 

either an automatic reverse signal alarm which is audible 

above the surrounding noise level or an observer to signal 

when it is safe to back up." 

The violative condition (or practice) is described as 

follows: 

"The D-8K Cat dozer equipment No. 402 operating in the pit 

did not have a reverse signal alarm nor was a spotter in 

use at this time. The operator has an obstructed view to 

the rear. The Ripper screen and size of machine create a 

blind spot to the rear- from the operator's." 

The hazard envisioned by the Inspector was that the dozer 

"could back over someone entering the area" and cause fatal 

injuries. However, the Inspector also concluded that it was not 

likely that such an accident would occur. As in the case of the 

30 C.F.R. § 56.9087 violations previously discussed, this 

violation is found to be willful in view of the mine superintendent's lack of belief in back up alarms (T. 99). A penalty of 

$30.00 is assessed for this moderately serious violation. 

Citation No. 2394378 

As previously noted, this Citation was vacated at the 

hearing and my bench order approving such CT. 107) is here 

affirmed. 

Citation No. 2394379 

The standard infracted, 30 C.F.R. § 56.11001 provides: 

Safe means of access shall be provided and maintained to 

all working places. 

The violative condition Cor practice) is described as 

follows: 

"Safe means of access was not provided to the work area in 

back of the feed hopper where the operator stands to control 

the amount of material the trucks dump when dumping in the 

hopper." 

374 
The employee directing the dumping could have fallen 35 feet 

since there was no ladder or work platform for him to stand on. 

This practice occurred continually during the shift and had been 

going on for one or two months. Had the employee lost his 

bal~nce it was reasonably likely that he would fall backwards and 

sustain injuries which could have been fatal (T. 121). The mine 

superintendent admitted to the Inspector that he should have 

noticed the hazard and conceded that it was very likely that 

someone co;_;ld have fallen and sustained very ser iou:s injud.E~S. 

~ccordingly, this serious violation is also found to be "significant and substantial" and to have resulted from Respondent's 

negligence. A penAlty of $125.00 is assessBd. 

No. 239 61 

The standard infracted, 30 C.F.R. § 56.15003 provides: 

All persons shall wear suitable protective footwear when 

in or around an area of a mine or plant where a hazard exists which could cause an injury to the feet. 

The violative condition (or prrlcticel is described as 

follows: 

"The warehouse person was wearing tio:nnj s shoes in the ware·-

house storage and shop area. 'l'h is person is required to 

lift and store various heavy items that could injure a 

persons feet." 

The warehouseman, who customarily han.J l he-av y objects, had 

been issued steel-toed safety shoes by Respondent which he had 

available at the mine. However, mine supervision had not required him to wear the safety shoes even though the warehouseman 

rr::9ularly wore t tennis shoes ('r. 124) .. 'rhis is found. to be a 

moderately serious violation jeopardizing but. one miner wN,ch 

resulted from supervisorial negJigence. A penalty of $30.u6 is 

assessed. 

No. 2394562 

The standard infracted, 30 C.F.R. § 56.9054 provides: 

Berms, bumper blocks, safety hooks, or similar means shall 

be provided to prevent OV'.:>rtravel and overturning at dumping locations. 

The violative condition (or practice) is described as 

follows: 

11 The bumper block at the main feed bopper was covered with 

material and no longer effective to prevent overtravel and 

overturning at this dumping 101...~ation. This dumping location 

was used on a daily basic [sic] by 25 ton and 35 ton haul 

trucks." 

37 5 
The Inspector testified that it was likely that a truck 

might back into the hopper. A remote possibility existed that an 

employee who regularly works on a shaker screen in back of the 

hopper might become apprehensive and fall or leap from his 

position to the ground- a 25-30 foot drop. There was no specific 

evidence as to negligence. The violation was abated approximately two hours after the abatement period expired. I find that the 

Respondent was not negligent in the commission of this violation 

and that Respondent, in a relatively reasonable manner, abated 

the same. The $20.00 penalty urged by the Secretary is assessed. 

Citation No. 2394564 

The standard infracted, 30 C.F.R. § 56.11002 provides: 

Crossovers, elevated walkways, elevated ramps, and stairways 

shall be of substantial construction provided with handrails, and maintained in good condition. Where necessary, 

toeboards shall be provided. 

The violative condition (or practice) is described as 

follows: 

"The walkway from the wash plant control booth to the walkway around the dump hopper has the middle section of handrail missing and no toeboards were provided. Falling rock 

was observed falling from the trucks when dumping on this 

walkway and rolling over the edge approximately 25 feet 

below where clean up work is required." 

The purpose of a toeboard is to prevent rocks, tools and 

other materials from falling on miners working 25 feet below the 

walkway; the purpose of handrails (midrails) is to prevent 

persons from falling off the walkway. The record does not permit 

a finding of negligence on the part of Respondent in the 

commission of this serious violation. A penalty of $50.00 is 

assessed. 

Citation No. 2394565 

The standard infracted 0 30 C.F.R. § 56.16005 provides: 

Compressed and liquid gas cylinders shall 

a safe manner. 

secured in 

The violative condition (or practice) is described as 

follows: 

"One compressed gas cylinder located in the shop at the 

welding station was not secured." 

The Inspector testified that the unsecured 80-lb cylinder 

could have fallen on someone's foot with the possible result of a 

bruised foot or broken toe. This violation is found to have a 

376 
low degree of gravity due to the remoteness of the hazard and the 

type of injuries which might have resulted therefrom. The 

violation is solely attributable to the unforeseen negligence of 

an employee who apparently went on a break without first securing 

the cylinder. ·Accordingly, I find no negligence imputable to 

Respondent for this violation. A penalty of $10.00 is assessed. 

Citation No. 2394566 

The standard infracted, 30 C.F.R. § 56.18006 provides: 

New employees shall be indoctrinated in safety rules and 

safe work procedures. 

The violative condition (or practice) is described in the 

Citation as follows: 

"A employee was observed standing on the top handrail of the 

railing around the main feed hooper. It is approximately 

30 feet to the ground behind where the employee was standing. Also there is steel beams, electric motors and pumps 

located at the bottom. The employee was not properly trained in safe work procedures for this job." 

The record indicates that the employee in question advised 

the Inspector that he engaged in the unsafe practice ldfrequently," that he had not been trained in this aspect of his job, 

and that he had never been told not to stand on the handrail. 

The Inspector indicated that it was very likely that th~ employee 

could have fallen because of the vibration and the employee's wet 

shoes. Respondent is found to have been negligent with respect 

to this violation which also is found to have created a serious 

safety hazard. In view of the likelihood of the accident 

contemplated actually happening, this violation is found to be 

significant and substantial. The Citation is affirmed in all 

respects and a penalty of $200.00 is assessed. 

Citation No. 2394567 

The standard infracted, 30 C.F.R. § 56.12016 provides: 

Electrically powered equipment shall be deenergized before mechanical work is done on such equipment. Power 

switches shall be locked out or other measures taken which 

shall prevent the equipment from being energized without 

the knowledge of the individuals working on it. Suitable 

warning notices shall be posted at the power switch and 

signed by the individuals who are to do the work. Such 

locks or preventive devices shall be removed only by the 

persons who installed them or by authorized personnel. 

The violative condition (or practice) is described as 

follows: 

377 
.~"Lock out measures was not done by the w~sh plant operator 

when cleaning the water nozzels (sic) from the shaker 

screen. The power switch was in the energized position. 

Employee was observed standing in the screen plant." 

This Citation was issued on August 9, 1985, the final day of 

Inspector Hudgins' second inspection. The hazard contemplated by 

the Inspector was the shaker screen becoming energized-which 

could have thrown the miner in question off balance leading to a 

fall of some 6 to 15 feet. The Respondent had not instructed the 

miner to lock out th0 main control switch ~nd Respondent's 

superintendent, Babcock, admitted it had not been policy to lock 

out in such circumstances. There is no specific evidence in the 

record from which to gauge the likelihood that the hazard contributed to would result in an injury. However, Respondent did 

not challenge this allegation and accordingly, it is concluded 

that this violation was significant and substantial. The 

violation, otherwise, is found to be but moderately serious and 

to have resulted from Respondent's negligence. A penalty of 

$50.00 is assessed. 

ORDf:.::R 

1. Citation No. 2394378 is vacated. 

2. The remaining 16 Citations hereinabove discussed are 

affirmed in all respects. 

3. Respondent, if it has not previously done so, shall pay 

the Secretary of Labor within 30 days from the date hereof the 

penalties hereinabove individual.ly assessed in the total sum of 

$990,00. 

Distribution: 

;:f;, .. 'd~~.~ d'. ~*~(,</ /l - Michael A. Lasher, Jr. 

Administrtive Law Judge 

William W. Kates, Esq., Office of the Solicitor, U.S. Department 

of Labol'., 8003 F'ederaJ Building, Seattle, WA 98174 (C(::rtified 

Mail) 

Valdez Creek Mining Ct®pany, Mr. Don H. Schultz, General Manager, 

610 East Fourth Avenue, Anchorage, AK 99501 (Certified Mail) 

/bls 

ti U.S GOVERNMENT PRINTING OFFiCE:l '3 8 7 ·l 81 · 2 2 4' 6 3 O O 2 

378