AUGUST 1984 

Commission Decisions 

8-23-84 U.S. Steel Mining Co., Inc. 

8-24-84 MSHA/Chester Jenkins v. HeclaDay Mines Corporation 

8-28-84 Allied Chemical Corporation 

8-28-84 U.S. Steel Mining Co., Inc. 

8-29-84 Cathedral Bluffs Shale Oil Co. 

8-29-84 Old Dominion Power Company 

8-30-84 United States Steel Corporation 

Administrative Law Judge Decisions 

8-01-84 .· Eureka Mining Corporation 

8-03-84 UMWA/Jerry Moore v. Peabody Coal Co. 

and MSHA/Thomas Williams v. Peabody 

8-03-84 Phelps Dodge Corporation 

8-06-84 Medusa Cement Company 

8-06-84 MSHA v. Thomas E. Jones 

8-06-84 Elk Creek Gold Mines Co. 

8-07-84 Ross Island Sand & Gravel Co. 

8-10-84 MSHA v. James L. Merchen 

8-15-84 MSHA/John Cooley v. Ottawa Silica Co. 

8-15-84 Jerry Blackburn v. U.S. Steel Mining 

8-20-84 Atlas Minerals 

8-20-84 Westmoreland Coal Company 

8~21-84 West Virginia Rebel Coal Co., Inc. 

8-21-84 Kennecott Minerals Company 

8-21-84 Kennecott Minerals Company 

8-21-84 Kennecott Minerals Company 

8-23-84 Consolidation Coal Company 

8-24-84 Energy Coal Income Partnership 

8-24-84 Gary Goff v. Youghiogheny & Ohio Coal 

8-29-84 U.S. Steel Mining Co., Inc. 

8-29-84 Richard Bjes v. Consolidation Coal Co. 

PENN 83-39 

WEST 81-323-DM 

WEST 79-165-M 

PENN 83-63 

WEST 81-186-M 

VA 81-40-R 

LAKE 82-35-M 

LAKE 84-68 

KENT 82-105-D 

LAKE 83-69-D 

WEST 83-107-M 

LAKE 83-74-M 

WEST 81-326-M 

WEST 84-21-M 

WEST 83-111-M 

CENT 81-58-M 

LAKE 81-163-DM 

WEVA 83-242-D 

WEST 84-33-M 

WEVA 84-10 

KENT 83-209 

WEST 81-342-M 

WEST 82-155-M 

WEST 83-5-M 

WEVA 84-2-R 

KENT 83-30-R 

LAKE 84-86-D 

PENN 83-70 

PENN 82-26-D 

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1842 

1854 

1866 

1871 

1886 

1908 

1919 

1920 

1920 

1930 

1939 

1952 

1959 

1968 

1972 

1979 

1990 

1991 

1993 

2015 

2017 

2023 

2033 

2038 

2050 

2055 

2058 

2084 

AUGUST 1984 

The following cases were directed for review during the month of August': 

Secretary of Labor, MSHA v. U.S. Steel Mining Company, Inc., Docket No. 

PENN 83-129. (Judge Koutras, July 11, 1984) 

Robert Roland v. Secretary of Labor, MSHA, Docket No. WEST 84-46-DM(A). 

(Judge Melick, Interlocutory Review of July 3, 1984 order) 

United Mine Workers of America on behalf of James Rowe, et al. v. Peabody 

Coal Company, Docket Nos. KENT 82-103-D, etc., and Secretary of Labor on 

behalf of Thomas Williams v. Peabody Coal Company, Docket No. LAKE 83-69-D. 

(Judge Merlin, July 11, 1984 and August 3, 1984) 

Secretary of Labor on behalf of Paul Sedgmer and others v. Consolidation 

Coal Company, Docket No. LAKE 82-105-D. (Judge Moore, July 16, 1984) 

Secretary of Labor, MSHA v. Pyro Mining Company, Docket No. KENT 84-151. 

(Judge Steffey, July 26, 1984) 

United Mine Workers of America, Local 2274 v. Clinchfield Coal Company, 

Docket No. VA 83-55-C. (Judge Moore, July 23, 1984) 

No cases were filed in which review was denied during the month of August. 

COMMISSION DECISIONS 

·.'.·· 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND. HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 23, 1984 

Docket No. PENN 83-39 

U.S. STEEL MINING COMPANY, INC. 

DECISION 

The issue presented here is whether a Commission administrative law 

judge correctly held that two violations of mandatory safety standards 

were "significant and substantial" within the meaning of 30 u.s.c. 

§ 814(d)(l), section 104(d)(l) of the Federal Mine Safety and Health Act 

of 1977, 30 U .s .c. § 801 ~ ~· (1982) ("Mine Act"). We affirm. 

The facts of the case are as follows. In August 1982, Inspector Robert 

Newhouse of the Department of Labor's Mine Safety and Health Administration 

(''MSHA") issued to U .s. Steel Mining Company ("USSM") nine citations under 

section 104(a) of the Mine Act. 30 u.s.c. § 814(a). The citations were 

issued· at USSM's Cumberland Mine located in Greene County, Pennsylvania. 

In addition to alleging a violation of a mandatory safety standard, each 

of the nine citations also alleged that the cited violation was significant 

and substantial ("S&S"). 

Thereafter, the Secretary of Labor filed with this independent Commission 

a proposal for assessment of civil penalties for the nine alleged violations. 

A hearing was held during which the S&S designations in two of the citations 

were deleted and a third citation was vacated by the Commission administrative law judge at the Secretary's request. USSM admitted the eight remaining 

violations, but contested the inspector's significant and substantial findings 

as to six of them, and the penalty amounts proposed by the Secretary. The 

judge then held that the six violations were significant and substantial and 

he assessed penalties. 5 FMSHRC 1728 (October 1983)(ALJ). 

We subsequently granted USSM's petition for review of the judge's 

decision, but only for two of the violations found to be significant and 

substantial. One of the violations before us on review (citation 2012065) 

was established because unmarked trailing cable plugs were found to be 

connecting underground mine machinery to a power center. The other violation (citation 2012074) resulted from an oxygen cylinder and an acetylene 

1834· 
cylinder that were left unsecured, leaning against a rib in a shuttle car 

roadway. The .. primary issue as to each violation is whether substantial 

evidence supports the judge's significant and substantial findings. Preliminary to our addressing the merits of the case, we briefly set forth 

the interpretation that we have accorded the statutory term, significant 

and substantial. 

Section 104(d){l) of the Mine Act provides: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause 

imminent danger, such violation is of such nature as 

could significantly and substantially contribute t"()""" 

the cause and effect of a coal or other mine safety 

or health hazard, and if he finds such violation to 

be caused by an unwarrantable failure of such operator 

to comply with such mandatory health or safety standards, 

he shall include such finding in any citation given to 

the operator under this Act •••• 

30 U.S.C. § 814(d)(l) (emphasis added). Section 104{e) of the Act, 

30 U.S.C. § 814(e), contains similar significant and substantial language. 

The Commission first interpreted this statutory language in Cement 

Division, National Gypsum Co., 3 FMSHRC 822 (April 1981). There we held: 

••• [A] violation is of such a nature as could significantly 

and substantially contribute to the cause and effect of a 

mine safety or health hazard if, based on the particular 

facts surrounding the violation, there exists a reasonable 

likelihood that the hazard contributed to will result in 

an injury or illness of a reasonably serious nature. 

3 FMSHRC at 825 (emphasis added). In Mathies Coal Company, 6 FMSHRC 1 

(January 1984), we reaffirmed the analytical approach set forth in 

National Gypsum, and stated: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under National 

Gypsum, the Secretary of Labor must prove: (1) the underlying 

violation of a mandatory safety standard; (2) a discrete 

safety hazard -- that is, a measure of danger to safety --

contributed to by the violation; (3) a reasonable likelihood 

that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

6 FMSHRC at 3-4 (footnote omitted). Accord Consolidation Coal Company, 6 FMSHRC 

189, 193 (February 1984). 

1835 
\ 

\ 

\ 

\ 

I 

As to the four elements set forth in Mathies, we note that the reference 

to ''hazard" in the second element is simply a recognition .that the violation 

must be more than a mere technical violation -- i.e., that the violation present a measure of danger. See National Gypsum, supra, 3 FMSHRC at 827. We 

also note that our reference to hazard in the tpird element in Mathies contemplates the possibility of a subsequent event. This requires that the 

Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury. The fourth element 

in Mathies requires that the potential injury be of a reasonably serious 

nature. Finally, in U.S. Steel Mining Co., Inc., PENN 82-336 (July 11, 1984), 

we.recently reemphasized our holding in National Gypsum that the contribution 

of the violation to the cause and effect of a mine safety hazard is what must 

be significant and substantial. 

Citation No. 2012065 

On August 4, 1982, MSHA Inspector Newhouse issued a citation to USSM 

upon observing that the electrical plugs (also referred to as "disconnecting 

devices") for the trailing cables on a continuous mining machine and a shuttle 

car were not properly tagged, or otherwise identified, to correspond with the 

receptacles at the mine section's power center. The citation alleged a violation of 30 C.F.R. § 75.601, which provides in relevant part: 

Disconnecting devices used to disconnect power from 

trailing cables shall be plainly marked and identified and such devices shall be equipped or designed 

in such a manner that it can be determined by visual 

observation that the power is disconnected. 

At the time that the citation was issued, there were three pieces of mining 

equipment in the mine section -- the cited continuous mining machine and 

shuttle car, as well as a second shuttle car. The trailing cable plug to 

the second shuttle car was properly identified. 

In finding the violation to.be significant and substantial the judge 

stated, "The hazard resulting from the violation is that someone could contact an energized cable thinking it was disconnected, or could inadvertently 

plug in the wrong cable." 5 FMSHRC at 1731. The judge reasoned that 

although the trailing cable plugs to the continuous mining machine and 

the shuttle car were "very different in size and appearance and could not 

be confused with one another," 1/ the unmarked shuttle car trailing cable 

plug could be confused with the-trailing cable of the other shuttle car 

that was on the section when the citation was issued. Id. In addition, 

the judge noted that although the power center into which the trailing 

cables are plugged has a keying system that physically prevents a plug 

from being inserted into the wrong receptacle, "the keys are often taken 

off the cables, and it is not known whether the keys were present on the 

day the citation was issued." 5 FMSHRC at 1731. 

1/ The trailing cable plug to the shuttle car is square, while the trailing 

cable plug to the continuous mining machine is round. Also, the plug to the 

continuous mining machine is larger. 

1836 
On review, USSM does not argue that any injury occurring as a result of 

a trailing cable accident would not be of a reasonably serious nature. It 

argues only that the record does not support the judge's implicit holding that 

there was a reasonable likelihood of such an electrical incident and resulting 

injury occurring. National Gypsum, supra. We disagree. 

The electrical hazard is presented because a miner could mistake the 

unmarked shuttle car trailing cable plug for the plug of another shuttle 

car or for a similar looking plug of a different piece of equipment and 

insert that plug into the power center. Inspector Newhouse described the 

hazard as the "[p}ossibility of somebody coming in contact with the energized 

cables, either through repair of a cable or whatever reason; somebody 

inadvertently plugging in the wrong cable." Tr. 57. The inspector described the scenario as follows: 

[S]ay you have the shuttle car; say there is 

electrical problems with it. An electrician comes in 

and he is in a hurry and he gets in the cable. He just 

unplugs it because he has to check something. You know, 

somebody else may be fooling around with a fan cable, or 

whatever; and somebody is told to go up and put the power 

on. They see that cable and they plug it in. The man is 

in a hot circuit. 

Tr. 80. In fact, a fatal accident had occurred at the Cumberland Mine in 

January 1979, involving trailing cables. At that time two crews of mechanics 

were working on two shuttle cars that were down for repairs on the same mine 

section. One of the mechanics was electrocuted when the crews mixed up the 

two trailing cables and a miner, believing that he was plugging in the repaired 

shuttle car cable, plugged in the cable to the other (unrepaired) shuttle car 

instead. The miner electrocuted was working on the bare power wires of the 

cable that was plugged into the power center. !:_/ 

As to the· likelihood of such an occurrence, the inspector stated, "It's 

very probable it could occur with the number of cables and the number of 

power conductors in that mine." Tr. 63 (emphasis added). 1/ Moreover, as 

2/ USSM argued that the events resulting in the January 1979 fatal accident 

could not reoccur because of the subsequent addition to the electrical system 

of a device referred to as a "FEMCO" unit. Robert Bohack, a USSM safety 

engineer, testified that the FEMCO unit is a tamper-proof device that prevents 

the by-passing of the trailing cable's ground continuity system (apparently a 

major cause of the January 1979 fatal accident). Although Inspector Newhouse 

appeared to take issue with Bohack's testimony regarding the FEMCO unit, the 

judge made no specific finding on .this point. Nevertheless, relying on the 

testimony of Bohack, the judge stated, "If a break occurs in a power lead, 

the power would be cut by the ground continuity check. However, it is 

possible to have a bare wire not cut, without interrupting the continuity." 

5 FMSHRC at 1731. 

3/ Bohack, the USSM safety engineer, also testified that "there are 

other plugs that are the same size as the shuttle car plug." Tr. 84. 

1837 
noted previously, there were two shuttle cars on the cited mine section at 

the time that the citation was issued thus increasing the likelihood of a 

trailing cable mix-up. Inspector Newhouse indicated that it would not be 

unusual for two shuttle cars on the same mine section to be down for 

repairs at the same time. He estimated that such an event could occur 

about twice a month. The inspector also testified that a trailing cable 

mix-up could occur in the event of an emergency, such as a cable fire. 

In that case, the inspector stated, a miner would not have enough time 

to determine to which piece of machinery the unmarked trailing cable plug 

belonged. 

USSM safety engineer Bohack testified that it was not reasonably likely 

that the trailing cable plug violation would result in an accident and injury. 

He stated, "I thought that someone would have to go out of their way to cause 

an injury under the circumstances. They would really have to go out of their 

way and I really don't see how that could have happened with the ground continuous checks on this system." Tr. 83. The operator argues that because 

only one of the two shuttle car plugs was unmarked, "a simple process of 

elimination" would enable a person to know the identity of the cables. 

Br. at 3. We cannot agree with this argument or with the further contention 

"If someone mixed up the plugs, they [sic] [would] obviously not [have been] 

interested in taking elementary steps to identify what they were working with 

and presumably would [.have] ignore[d] the tag had it been there." Br. at 4. 

This argument ignores the reality, demonstrated by the accident in 1979, that 

miners in a hurry may easily fail to verify which cable is which unless all 

cables are "plainly marked." !!_/ 

In addition, Bohack did not effectively dispute the inspector's testimony 

that the keying system used at the mine to prevent the trailing cable plugs 

from being inserted into other than their assigned receptacle was relatively 

unreliable. Inspector Newhouse questioned the reliability of that keying 

system, noting that it was not uncommon for miners at the Cumberland Mine 

to modify the system when a receptacle is needed. He described the possibility of such an occurrence as being "highly possible" and "probable." 

Tr. 77. Although USSM safety engineer Bohack testified that it is "more 

likely" that the key will be on the plug, he also testified that "it's 

possible for the key to be taken off." Tr. 87 •. Neither the MSHA inspector nor the company safety engineer was able to recall whether the cited 

trailing cable plugs were equipped with keys when the citation was issued. 

In sum, we conclude that the record evidence provides substantial support 

for the judge's finding that the trailing cable plug violation was significant 

and substantial. 

Citation No. 2012074 

MSHA Inspector Newhouse issued this citation to USSM on ~ugust 9, 

1982, upon observing an unsecured oxygen cylinder and an unsecured acetylene 

cylinder leaning against a rib in an underground shuttle car roadway. The 

inspector charged a violation of 30 C.F.R. § 75.1106-4(g), a mandatory 

safety standard that provides: 

!±/ Cf. Great Western Electric Company, 5 FMSHRC 840, 842 (May 1983)(relying 

on skill and attentiveness of miners to prevent injury "ignores the inherent 

vagaries of human behavior"). 

1838 
Liquefied and non-liquefied compressed gas cylinders 

shall be located no less than 10 feet from the worksite, 

and where the height of the coal seam permits, they shall 

be placed in an upright position and chained or otherwise 

secured against falling. [Emphasis added.] 

Each of the unsecured gas cylinders weighed approximately 120 pounds. The 

gas cylinders had been used in repairing a continuous mining machine during 

the previous, non-production, midnight shift and coal production on the day 

shift had not yet begun when the citation was issued. 

The issues before the Commission administrative law judge as to this 

citation were whether the violation was S&S and the penalty to be assessed. 

The judge upheld the S&S designation, noting that the mine section was preparing to begin a new shift and that the compressed gas cylinders could have 

been knocked over by a shuttle car, or other force, and could have ruptured. 

In the judge's view, "the valve could be broken or the cylinders ruptured, 

releasing the compressed gas causing the cylinders to become as missiles." 

5 FMSHRC at 1732. 

The issue on review is whether the record supports the judge's implicit 

holding that there was a reasonable likelihood that an accident, and resulting 

injury, would occur involving the unsecured gas cyclinders. Again, USSM does 

not contend that any injury occurring would not be of a reasonably serious 

nature. 5/ Although our task is made more difficult by the brevity of the 

judge's discussion of the record and the basis for his decision, we hold 

that substantial evidence supports the judge's significant and substantial 

finding. 

The inspector testified that shuttle cars making a left-hand turn from 

the roadway where the gas cylinders were located into the nearby No. 3 entry 

were likely to strike and to damage the unsecured cylinders. The shuttle 

cars were described as being approximately 8 to 10 feet in width and 15 to 

18 feet in length. The inspector testified, "By making a left-hand turn and 

swinging in that direction, the back end of the buggy would have been in 

close proximity to these tanks." Tr. 165. The inspector added that the 

operator of an "off standard" shuttle car might not see the.cylinders 

because he would be on the other side of the car. In the inspector's 

view, whether a shuttle car operator hit the cylinders "would really 

depend on how conscientious your operator is, how much confusion is 

involved," and that such an event occurring was a "probable possibility." 

Tr. 174. 

5/ To the extent that USSM's brief on review can be read as challenging 

the judge's finding of a violation, the challenge is rejected. First, the 

fact of a violation was conceded before the judge. 5 FMSHRC at 1728. 

Second, no issue as to the merits of the violation was raised in USSM's 

petition for review. See 30 U.S.C. § 823(d)(2)(A)(iii) (absent good cause 

showing, issues may not be raised for the first time on review). 

1839 
According to the inspector, the gas cylinders posed two discrete hazards 

should they be struck by a shuttle car: breaking the neck (i.e., the.valve) 

of the oxygen cylinder (the neck of the acetylene cylinder was recessed and 

did not pose this specific hazard); and puncturing the sides of either or 

both cylinders. The inspector testified that should either the valve be 

broken off the oxygen cylinder or the cylinders' sides be punctured, the 

unsecured, compressed gas cylinders would be transformed into misi;,;iles 

that could strike the miners working on the section or could strike the 

section's power center and cause a fire. 

The USSM section foreman who accompanied Inspector Newhouse testified 

that when the shuttle cars made their left-hand turn from the roadway into 

the No. 3 entry, there would be an approximate clearance between the shuttle 

car and the gas cylinders of 3 to 5 feet. The operator also relies on the· 

fact that shuttle cars were not running on the mine section at the time the 

citation was issued and that the cylinders were in plastic bags awaiting 

shipment off the section. However, the section foreman "could not definitely 

say" when the cylinders were expected to be transported from the area. 

Tr. 186. He admitted that, "They were preparing to operate on the day 

shift." Tr. 169. 

We cannot agree that the clearance of, at best, five feet between a 

turning shuttle car and these unsecured cylinders is enough to disturb on 

review the judge's conclusion that the violation was significant and substantial. Driving habits and mining conditions are too variable. In 

addition, given the size of the shuttle cars that use the roadway, we are 

not prepared to say that the record does not support the judge's conclusion 

that the cylinders could have ruptured. Thus, we hold that substantial 

evidence of record supports the judge's holding that an incident involving 

the unsecured, compressed gas cylinders was reasonably likely to occur. 

Accordingly we affirm the judge's significant and substantial findings 

as they relate to citations 2012065 and 2012074. USSM additionally argued on 

review that the sole appropriate penalty for a violation that is not significant and substantial is $20. See 30 C.F.R. § 100.4 ("Determination of 

penalty; single penalty assessment.") Although it is unnecessary to reach 

that issue here, we recently have rejected that same argument in U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1148 (May 1984). 

1840 
Commissioner,Lawson concurring: ; 

\· 

On the basis of the criteria set forth in my separate opinion in 

Cement Division, National Gypsum Co., 3 FMSHRC 822 (April 1981), I 

concur in finding the violations in this case to be significant and 

substantial within the meaning of section 104(d)(l) of the Mine Act, 

30 u.s.c. § 814(d)(l). 

Distribution 

Louise Q. Symons., Es.q. 

U. S • S tee! Mini.ng Company, Inc • 

6.0.0. Grant Street, Room 1580 

Pittsburgh, PA 15230 

Barry F. Wisor, Esq. 

Office.of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. · 

Arli.ngton, Virginia 22203 

A. E. Lawson, Commissioner 

Administrative Law Judge James A. Broderick . 

Federal Mine Safety & Health Review Commission 

5203 Leesti~rg Pike, 10th Floor 

Falls Church, Virginia 22041 

1841 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET. NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of CHESTER "SAM" 

JENKINS 

v. 

HECLA-DAY MINES CORPORATION 

August 24, 1984 

Docket No. WEST 81-323-DM 

DECISION 

This case involves a complaint of discrimination filed by the Secretary 

of Labor with this independent Commission pursuant to the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 ~ _!S· (1982). The complaint alleged 

that the operator violated section lOS(c)(l) of the Mine Act, 30 u.s.c. 

§ 815(c)(l), .in connection with three incidents involving the complaining 

miner, Chester "Sam" Jenkins: (1) the posting on the mine bulletin board 

of a letter that Jenkins had written; (2) the failure to reassign Jenkins 

to work on a particular stope; and (3) the suspension of Jenkins without pay. 

A Commission administrative law judge dismissed the complaint in its entirety. 

5 FMSHRC 489 (March 1983)(ALJ). We subsequently granted petitions for discretionary review filed by both Jenkins and the Secretary of Labor and 

heard oral argument. We affirm the judge in part and reverse in part. We 

conclude that the suspension of Jenkins without pay violated the Mine Act, 

and remand so that the judge may make an appropriate back pay award. 

I. 

In the middle of 1979, Jenkins began working for Day Mines at its 

Republic Unit Mine, a gold and silver mine located near Republic, Washington. 

Day Mines op~rated the Republic Unit Mine during the relevant time period 

although Hecla-Day Mines Corporation ("Hecla-Day") took over Day Mines 

before the case came to trial. The Republic Unit Mine is a contract mine 

worked by pairs of miners assigned to stopes, and Jenkins was a contract 

miner. Stopes are excavations from which ore is mined in a series of cuts 

called steps. After completion of a mining cycle that involves drilling, 

blasting, and removal of muck, miners are transferred to another area while 

the mined area is "back-filled" with sand. Thereafter, another mining cycle 

may be initiated in the stope. · 

1842 
Contract miners at the Republic Unit Mine are paid an hourly wage 

plus a fee for each cubic foot of rock broken. The fees depend upon the 

nature of the stopes. Smaller stopes are more difficult to mine and are 

assigned a higher fee rate. Jenkins testified that despite the pay 

difference, miners made more money working in larger stopes.. Ron Short, 

the manager of the Republic Unit Mine and responsible for setting the 

incentive rates in the stopes, testified that miners made more money in 

the smaller stopes. 

On December 11, 1980, Jenkins finished a mining cycle in stope 4114, 

in which he had previously completed another mining cycle. On December 12, 

1980, Jenkins and his partner, Don Vilardi, were assigned to work in stope 

4222. Stope 4222 was a smaller stope than stope 4114 and therefore had a 

higher fee rate per cubic foot of rock broken. 

On December 24, 1980, a miner died in an accident at the Republic 

Unit Mine. Concerned by the accident, on the following day Jenkins 

prepared a four-page letter to Keith Droste, the general manager, and 

W. M. Calhoun, the president of Day Mines. The letter described several 

alleged safety problems at the mine, including misconduct on the part of 

some miners. Jenkins did not immediately mail the letter. He later added 

to the letter a postscript signed by four other miners who stated their 

agreement with Jenkins. On December 29, 1980, the first working day 

following the fatality, a safety meeting was called by management of the 

mine. At that meeting Jenkins raised several of the same complaints 

regarding safety that he had included in his letter. Jenkins later mailed 

his letter, dated December 25, 1980, to Calhoun and Droste. Pet. Exh. 1. 

Droste responded to each of Jenkins' complaints in a letter that was 

received by Jenkins on January 14, 1981. Res. Exh. 2. 

On December 30, 1980, Jenkins put a notice on the mine bulletin 

board requesting nominations for a mine safety committee. This notice 

upset William Hamilton, the mine superintendent. The letter was quickly 

removed from the board. On January 2, 1981, Jenkins circulated a petition 

among fellow miners concerning a cut-off of power to the main hoist on 

December 24, 1980, the day of the fatal accident. The power had been 

turned off for three hours, creating what Jenkins considered a safety 

problem. Jenkins had mentioned this problem in his December 25 letter 

and at the safety meeting on December 29, 1980. Forty-four miners 

signed Jenkins' petition concerning the cut-off of power. On January 7, 

1981, the petition was delivered to mine superintendent Hamilton. 

On January 7, 1981, Ron Short, the mine manager, spoke with Jenkins 

and his partner Vilardi in the mine office. Several times Short asked 

whether Jenkins and Vilardi, who had also signed Jenkins' December 25 

letter, had any objection to the posting of the letter on the mine 

bulletin board. Neither Jenkins nor Vilardi objected, and Short posted 

the letter. After the posting of the letter, a miner threatened Jenkins 

with bodily harm. Another miner, David Hamilton, the son of the mine 

superintendent, accused Jenkins, in the presence of others, of being an 

agitator and troublemaker. The following day, a threat was made to 

Jenkins' 7-year old son while he was at school. 

1843 
Following these threats Jenkins did not go to work on January 8, 1981, 

but instead consulted an attorney. On her advice, he went to the local 

sheriff's office to file a complaint. Jenkins' wife telephoned the mine 

and informed mine personnel of the threats against her husband and son. 

On January 9, 1981, Ron Short telephoned Jenkins and told him that if 

he returned to work, Short would guarantee his safety while on company 

property. Jenkins had made an appointment to speak with a mine inspector 

from the Department of Labor's Mine Safety and Health Administration 

("MSHA") in Spokane, Washington, to discuss the events at the mine and 

the threats. The round trip to Spokane would take approximately six 

hours, and Jenkins explained that he could not return in time for work. 

Jenkins returned to work on January 10, 1981. 

On January 11, 1981, a meeting involving a small number of miners was 

held at the home of Cassel "Duke" Koepke, a miner at the Republic Unit Mine. 

At the meeting Jenkins raised safety concerns regarding the mine. On 

January 14, 1981, a letter was sent to MSHA indicating that Jenkins and 

Koepke had been elected as representatives of the production shift miners 

at the mine. The letter was signed by Duke Koepke and two other miners, 

Jim Lindsey and Jim Montoya. On January 29, 1981, a copy of this letter 

was sent to Droste and Short at Day Mines. A general meeting of miners 

was not held to elect representatives prior to the drafting and mailing 

of the letter. 

Jenkins was absent from work January 15 through January 25, 1981, to 

attend the funeral of his father. While he was gone, the sand-fill operation was completed in stope 4114 and miners John Holden and Tom Rice were 

assigned to begin a new mining cycle in that stope. On January 31, 1981, 

Jenkins' partner Vilardi was transferred out of stope 4222 and Terry Koepke, 

son of Duke Koepke, was assigned as Jenkins' partner. Except for the period 

of his suspension discussed below, Jenkins continued to work in stope 4222 

until February 17, 1981, when the mining cycle was completed. 

On February 2, 1981, shift boss Tom Bradley conducted a miners' 

safety meeting at which various safety matters were discussed. Jenkins 

was the only miner who spoke up and pointed out safety matters. The 

following day, February 3, 1981, three petitions were circulated among 

the miners at the mine. One was signed by 43 miners and stated that the 

miners did not wish to work with Jenkins. A similar petition with 28 

signatures stated that the miners did not wish to work with Duke Koepke. 

A third petition with 52 signatures stated that Jenkins and Koepke did not 

represent the miners at the Republic Unit Mine. The three petitions were 

delivered to mine management. 

On February 4, 1981, Jenkins was informed by Short that he was suspended for an indefinite period of time because of complaints about his 

allegedly disruptive behavior. (Management took no action against Duke 

Koepke.) The following day Jenkins received a letter advising him that 

his suspension was without pay. On February 5, Jenkins met with Short 

and signed an agreement to the effect that he would improve his relationship with other employees by refraining from any dialogue concerning 

complaints or problems except as absolutely necessary. Jenkins was 

then allowed to return to work. 

1844 
On July 6, 1981, the Secretary of Labor filed this discrimination 

complaint on behalf of Jenkins against Day Mines. From July 22, 1981, 

through August 14, 1981, Jenkins was the victim of numerous acts of 

harassment and vandalism at the mine. These acts included the placing 

of human waste and other substances in Jenkins' boots and other articles 

of his clothing, the pouring of drill oil over his lunch bucket, and the 

setting up of a suggestion box asking for "ways to get rid of Sam." On 

July 23, 1981, Short posted a memorandum on the mine bulletin board 

threatening employees with discipline, up to and including discharge, 

for involvement in acts of harassment or vandalism. Short also instructed 

the two shift foremen to have meetings with miners to advise them that 

they would be disciplined for such acts. The shift foremen testified that 

they had such meetings. 

Following the evidentiary hearing in this case, the Commission's 

administrative law judge issued a decision dismissing the discrimination 

complaint in its entirety. The judge first examined Short's posting of 

Jenkins' December 25 letter, which included among its complaints references 

to misconduct by other miners. Jenkins argued that management's purpose 

in posting the letter was to identify him as a troublemaker. Jenkins 

asserted that the foreseeable and intended effect of the posting was to 

expose him to the hostility of other miners. Hecla-Day pointed out that 

Short had asked Jenkins several times whether he objected to the letter 

being posted and that Jenkins had raised no objection. Hecla-Day argued 

that management had a legitimate business justification for posting the 

letter--Short was concerned over serious allegations in the letter of 

alcohol use at the mine and believed he would discover whether there was 

any truth to them by having the letter posted. The judge found Short's 

explanation for posting the letter credible. The judge concluded, "[T]he 

evidence does not support the contention by Jenkins that posting the 

letter was intended to be a discriminatory act against him and such 

allegation is rejected." 5 FMSHRC at 499. 

The judge next examined whether the failure to reassign Jenkins to 

stope 4114 when it became available again in January 1981 was discriminatory. 

Jenkins argued that it had been the usual practice in the mine to return the 

same mining crew to the stope they had previously worked when the sand-fill 

operation was completed and the stope was ready for another mining cycle. 

Hecla-Day contended that stope assignments were not rigid, and that Jenkins' 

assignment was made in accordance with the mine's existing policies. The 

judge found that a miner was not necessarily entitled to be returned to a 

stope in which he had previously worked. He also found that because Jenkins 

was not finished mining in stope 4222 when stope 4114 became available again, 

and other miners were available at that time to work in stope 4114, the 

assignment of the other mining team to stope 4114 accorded with the operator's 

normal business policies. The judge concluded that neither adverse action nor 

discrimination had occurred in connection with the stope assignments. 

With regard to Jenkins' suspension without pay in February 1981, the 

judge found that Jenkins had engaged in protected activity prior to his 

suspension and that the suspension was motivated in part by his protected 

activity. The judge found, however, that Hecla-Day had affirmatively 

defended against Jenkins' prima facie case of discrimination. The judge 

concluded, "After a careful review of all the evidence and on the basis 

1845 
of the Commission's directives regarding this issue, I conclude that [the 

operator's] business justification for suspending Jenkins for two days was 

not pretextual and the reasons for doing so were both credible and plausible 

enough to prompt management to take this adverse action." 5 FMSHRC at 503. 

Finally, the judge addressed the harassment of Jenkins that had 

occurred in July and August after the filing of the discrimination 

complaint. At the outset of the hearing, the Secretary moved to amend 

the complaint to include allegations that these acts constituted a continuing pattern of harassment condoned by mine officials. Although the 

judge denied the motion, he allowed the introduction of evidence concerning 

the events of July and August. The judge concluded, "I find that the evidence fails to show that [the operator] was involved directly or indirectly 

in any of the acts of vandalism or harassment ••• inflicted on Jenkins 

following the filing of his complaint of discrimination." 5 FMSHRC at 504. 

The judge thus dismissed the discrimination complaint. 

Jenkins' petition for discretionary review raises several assignments 

of error. His main contention is that the operator discriminated against 

him by posting his December 25 letter, by failing to reassign him to stope 

4114 in January 1981, and by indefinitely suspending him without pay on 

February 4, 1981. Jenkins also asserts that the judge erred in certain 

evidentiary rulings and in refusing to allow amendment of his complaint to 

include the acts of harassment against him in July and August 1981. On 

review the Secretary contends only that Jenkins' suspension without pay was 

discriminatory. We conclude that the suspension without pay violated the 

Mine Act, but reject Jenkins' other assertions of error. 

II. 

In order to establish a prima f acie case of discrimination under 

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

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

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

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

2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub nom. 

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

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

817-18 (April 1981). The operator may rebut the prima 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 facie case in this manner it may nevertheless affirmatively 

defend by proving that (1) it was also motivated by the miner's unprotected 

activities, and (2) it would have taken the adverse action in any event for 

the unprotected activities alone. The operator bears the burden of proof 

with regard to the affirmative defense • .!!!!.£. v. Magma Copper Co., 4 FMSHRC 

1935, 1936-38 (November 1982). The ultimate burden of persuasion does not 

shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also 

Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983); and Donovan-v:-st"afford 

Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984)(specifically approving 

the Commission's Pasula~Robinette test). The Supreme Court has approved 

the National Labor Relations Board's virtually identical analysis for 

discrimination cases arising under the National Labor Relations Act. 

~ v. Transportation Management Corp.,~ U.S.~' 76 L.Ed. 2d 667 

(1983). 

1846 
It is undisputed that Jenkins engaged in protected activities--indeed, 

insofar as relevant to the issues in this case, only protected activities--

during the period December 1980 through February 1981. These activities 

included his communication of safety complaints to management in his 

December 25 letter, his circulation of the petition in January complaining 

of the cut-off of power to the main hoist, his efforts to elect miners' 

representatives and to serve as one himself, and his voicing of safety 

complaints at the meetings conducted at the mine on December 29, 1980, 

and February 2, 1981. The crucial issue in this case is whether management took adverse actions against Jenkins because of his protected 

activities. We turn first to the posting of his December 25 letter and 

the January stope assignments. 

The posting of Jenkins' December 25 letter 

The judge ultimately found that Short's posting of Jenkins' letter 

was not a "discriminatory act." 5 FMSHRC at 499. The judge rested his 

dismissal of this portion of Jenkins' discrimination complaint on his 

crediting of Short's testimony concerning the business reasons for the 

posting. 5 FMSHRC at 498-99. Although the judge did not explicitly 

phrase his conclusion in terms of the Pasula-Robinette framework, it is 

apparent from his ultimate findings that he determined that Jenkins did 

not prove the second element of a prima facie case and therefore failed 

to establish a prima facie case. We agree. l/ 

A showing that an adverse action occurred is a component of the 

second element of a prima facie case. In general, an adverse action 

is an act of commission or omission by the operator subjecting the 

affected miner to discipline or a detriment in his employment 

1/ Certain aspects of the judge's legal analysis of the letter-posting 

issue require clarification, although they do not affect his correct 

determination that Jenkins failed to establish a prima facie case. Cf. 

Secretary on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993, 996-97 

n. 6 (June 1983). When viewed in the Pasula-Robinette context, the judge's 

ultimate finding that the posting was not a discriminatory act can only 

mean that he concluded there was no improper intent behind the posting. 

This reading of the judge's decision is reinforced by his summary of conclusions in which he stated, "Jenkins has failed to establish a case of 

discriminatory conduct ••• ·in regards to [the] posting •••• " 5 FMSHRC 

at 509. Thus, in light of the judge's ultimate findings, we interpret 

his comment that Short's posting was, in part, "motivated" by Jenkins' 

protected activity (5 FMSHRC at 498) as a recognition that Jenkins' 

protected writing of the letter was a necessary precondition to its 

posting. We reject any suggestion that partially discriminatory 

motivation was present as being inconsistent both with the judge's 

ultimate findings and conclusions, and with our own determinations on 

review. 

1847 
relationship. 3/ An adverse action may or may not be discriminatorily 

motivated. Here, however, the posting of Jenkins' letter was not a 

self-evident form of adverse action, like discharge or suspension. 

Therefore, we must examine closely the surrounding circumstances to determine the nature of this action. 

Hecla-Day's explanation that the letter was posted in an effort to 

uncover the truth concerning Jenkins' allegations is credible. Jenkins 

sent this letter to management in the aftermath of a fatal accident. The 

letter leveled a number of serious safety complaints, for example, that 

drinking by some miners was a major problem at the mine and had been a 

contributing factor in the accident. 3/ As the judge found, there is 

every indication on this record that mine management was concerned by 

Jenkins' charges and was determined, in good faith, to ascertain 

whether they had any basis. 

In a letter dated January 5, 1981, General Manager Droste acknowledged receipt of Jenkins' letter and stated: 

The observations and accusations contained therein 

are of a most serious nature. I have informed 

Mr. Calhoun [the president of Day Mines], and am 

hereby advising you, that all items mentioned by 

you will be investigated and will be treated in 

a written response to you. 

Res. Exh. 1. Management subsequently undertook an investigation of 

Jenkins' complaints. The investigation resulted in Droste's detailed 

letter of January 14, 1981, responding to and denying Jenkins' charges. 

While this internal investigation was going on, Short met with Jenkins 

and Vilardi on January 7, 1981, to seek their permission to post the letter. 

Short testified that he asked for their permission several times, and that 

neither Jenkins nor Vilardi raised any objection to the posting. The judge 

specifically credited Short's testimony explaining his reasons for the posting: 

Well, in reading the letter, of course, it brought 

out a lot of questions to my mind. Being in my 

position, I am aware that not everyone is going to 

2/ This case does not require us to develop a more detailed inventory 

of what is covered by the term adverse action. We recognize that discrimination may manifest itself in subtle or indirect forms of adverse 

action. See generally Moses v. Whitley Development Corp., 4 FMSHRC 

1475, 1478 (August 1982). We also borrow the apt words of the Court of 

Claims, writing in a related context, that an adverse action "does not 

mean any action which an employee does not like." Fucik v. United States, 

655 F.2d 1089, 1096 (Ct. Cl. 1981). Determinations as to whether an 

adverse action was taken must be made on a case-by-case basis. 

3/ The truth of Jenkins' various complaints was not specifically tried in 

this proceeding and is not relevant to the discrimination issues presented 

on review. 

1848 
talk to me with the freedom that they would someone 

else and so I thought that there may be.a chance that 

the things that Sam had mentioned in his letter, there 

may be some truth to parts of it. I didn't actually · believe that there was, but I felt that I had to find 

out if these allegations were true. I felt that by 

posting ,the letter that I would find out one or two 

things: either there was some truth to it and a group 

of miners, either who signed the letter or who also 

agreed with Sam and did not sign the letter, would 

come forth to me on posting the letter and say, "yeah, 

this is true," or I would get a negative response in 

the sense that no one would come forward and that this 

would also indicate to me that there was no truth to 

what he was saying. 

Tr. 214-15. Short further testified that if Jenkins had not agreed to 

posting the letter, he would not have done so. Short stated that he had 

not threatened Jenkins and that their meeting was conducted without 

animosity. 

In attacking the judge's crediting of this testimony, Jenkins argues 

that the foreseeable and intended consequence of the posting was to expose 

him to the hostility of other miners--and, presumably, to subject him to 

intolerable working conditions. The posting of Jenkins' letter did provoke 

an angry and threatening response by other miners. However, prior to the 

posting, Jenkins had secured the signatures of four other miners to his 

letter, had raised some of the same complaints at the December 29, 1980, 

safety meeting, and had circulated a petition signed by 44 miners complaining of the power cut-off to the main hoist, a subject also mentioned 

in his letter. Therefore, there was demonstrated support among other 

miners for at least some of Jenkins' complaints. We are not persuaded 

on this record that when Jenkins agreed to the posting, the foreseeable 

and unavoidable consequence--in either his contemplation or that of 

management--was the arousal of widespread antipathy towards Jenkins. 

Furthermore, as the judge emphasized, "These acts by Jenkins indicate 

an attempt on his part to publish his views as to. what he considered 

was wrong at the Republic Unit [Mine]." 5 FMSHRC at 499. 

In summary, the judge credited Short's testimony that he posted the 

letter with Jenkins' uncoerced consent solely for legitimate business 

reasons. Jenkins has not persuaded us on review to upset this credibility 

resolution. In view of the foregoing considerations, we cannot treat the 

posting as an adverse action or a form of discrimination motivated in any 

part by Jenkins' protected activity. We therefore conclude that substantial 

evidence supports the judge's dismissal of this aspect of Jenkins' complaint. 

The January stope assignments 

The judge's findings and credibility resolutions on this issue are 

straightforward, detailed, and amply supported by the evidence. 5 FMSHRC 

at 499-501. He concluded that the failure to reassign Jenkins to stope 

4114, when it became available again after back-filling in January 1981, 

1849 
was neither an adverse action nor a discriminatory act. The judge further 

concluded that even if partially discriminatory motivation could be inf erred 

regarding the stope assignment,- Hecla-Day affirmatively defended against a 

prima facie case. 

The judge carefully reviewed the conflicting evidence on how stope 

assignments were made. He found that there was not an existing policy 

at the mine that expressly guaranteed permanent stope assignments to 

miners. He also determined that the reason Jenkins was not reassigned 

to stope 4114 was that he and his partner were not finished mining in 

stope 4222 when the assignment needed to be made, and another crew was 

available. The judge stated: 

I find that the weight of the evidence supports [the 

operator's] contention that their actions in this 

instance were motivated by the time schedules as to 

the availability of miners and stopes and the requirements for continued production in the mine. Stope 

4114 became available for mining on January 23, 1981 

and Jenkins was not finished in 4222 until February 17, 

1981 which would cause measurable loss of production 

if the stope was to remain idle during that time. 

5 FMSHRC at 501. 

The judge based these findings on his resolutions of conflicting 

evidence. He specifically credited the testimony of Short that production 

needs and the availability of miners were key factors to be weighed in 

making stope assignments. Short's testimony was corroborated by that of 

two experienced shift bosses. The judge also found reliable a detailed 

41-page list·of stope assignments over time (Res. Exh. 7), which bore 

out Short's testimony that miners did not have entitlements to permanent 

assignments in any particular stope. · 

Substantial evidence clearly supports the judge's determination that 

reassignment of miners to stopes they had previously worked was not 

guaranteed, and that production needs and the availability of miners were 

overriding factors in making the assignments. We have carefully reviewed 

the record and discern no reason to disturb the judge's findings. We affirm 

his conclusion that the failure to reassign Jenkins was based solely on 

legitimate business reasons in accord with existing policies. We also agree 

that even had management's actions been tainted in part by discriminatory 

animus, the same assignments would have been made in any event for these 

business reasons alone. 

The suspension of Jenkins without pay 

When Jenkins was initially suspended for an indefinite period on 

Feburary 4, 1981, considerable turmoil had arisen at the mine centering 

around Jenkins' various safety complaints and his attempts to represent 

miners for safety purposes. Management had just received a petition 

signed by 43 miners stating they were "tired of Chester (Sam) Jenkins['] 

1850 
agitating and disruptive accusations and do not wish to work with him." 

Pet. Exh. 4. ·The judge found that the suspension of Jenkins "was the 

culmination of various events recited earlier herein, such as, the 

December 25th letter, his efforts to elect miner's representatives, and 

safety complaints made by petition and at safety meetings." 5 FMSHRC 

at 502. He concluded that the suspension of Jenkins was motivated in 

part by the effects of his protected activity: 

The evidence also shows there was animus on the part 

of Day Mines's management towards Jenkins because of 

these activities which caused tension amongst the 

miners, was disruptive to the operation of the mine, 

and reflected badly upon supervisors. From all of 

these circumstances, I conclude that Jenkins has 

established, by a preponderance of the evidence, a 

prima facie case under the test set forth by the 

Commission in Pasula-Robinette, supra. 

Id. (Emphasis added.) We affirm the judge's conclusion that management 

suspended Jenkins without pay because of his protected activity. On the 

facts presented in this case, however, we disagree with his further conclusion that Hecla-Day affirmatively defended against Jenkins' prima 

facie case. 

The essence of the Pasula-Robinette affirmative defense is a showing 

that the adverse action would have been taken in any event wholly apart from 

considerations based on.the miner's protected activities. As discussed below, 

we find no evidence that Jenkins engaged in misconduct. It also appears that 

less drastic alternatives were available to management for handling the 

situation. We cannot conclude that absent his protected activities Jenkins 

would have been suspended without pay. 

We recognize that the asserted focus of managerial concern was on the 

effects of Jenkins' protected activities, not his actions themselves. A 

miner's exercise of protected activity may not always prove popular and may 

generate negative, even disruptive, reactions. However, .if miners could be 

subjected to discipline merely because their protected activity became 

unpalatable to others, the exercise of protected rights could be chilled. 

The judge found no misconduct on Jenkins' part. He also found that 

Jenkins had not "forced himself" on other miners. 5 FMSHRC at 503. The 

evidence supports these findings. No other miners were subjected to adverse 

action because of the turmoil in the mine. There was no posting of a general 

disciplinary notice warning against continued disruption. If, as a matter 

of last resort, it was deemed necessary to take action against Jenkins, and 

no other miners, no reason appears why he could not have been briefly suspended without penalties and with pay. !!_/ However, we are left with the 

4/ The operator permitted Jenkins to return to work after a two-day 

hiatus following his agreement to refrain from any discussion of complaints or problems except as absolutely necessary. Although this return 

to work limits the operator's back pay liability to two days, we emphasize 

that an operator may not condition a miner's continued employment on a 

pledge to refrain from activities protected by the Mine Act. 

1851 
fact that Jenkins alone was suspended without pay and suffered a financial 

detriment because of his protected activity. Such a result cannot be 

squared with the broad scope of protection afforded by section 105(c)(l) of 

the Mine Act. Cf. Sioux Products, Inc. v. NLRB, 684 F.2d 1251, 1257-59 

(7th Cir. 1982)(the discharge of only a union supporter because of unrest 

stemming from protected activities held to be discriminatory). Accordingly, 

we reverse and remand so that the judge may make an appropriate back pay 

award. 

Jenkins' other assertions of error 

Jenkins' other assertions of error lack merit and do not require 

extended comment. Jenkins argues that the judge erred in refusing to 

allow amendment of the discrimination complaint to include the acts of 

harassment against him in July and August 1981. The judge nevertheless 

allowed the introduction of evidence on this subject, and thus afforded 

Jenkins the opportunity to be heard on these issues. The judge found 

that the operator had not been involved in these acts, and had taken steps 

to stop them. These findings are supported by substantial evidence and we 

affirm them. We have reviewed Jenkins' remaining evidentiary objections, 

and conclude that the judge committed no legal error or abuse of discretion 

in his evidentiary rulings. 

III. 

For the foregoing reasons, we affirm the judge in all respects 

except for his conclusion that the suspension without pay did not 

violate the Mine Act. On that issue, we reverse and remand so that 

the judge may make an appropriate and expeditious back pay award. 

1852 
Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wjlson Blvd. 

Arlington, Virginia 22203 

Mr. Chester Jenkins 

P.O. Box 625 

Republic, Washington 99166 

Bruce C. Menk, Esq. 

Hale & Evans 

2900 Energy Center 

717 Seventeenth St. 

Denver, Colorado 80202 

Robert Mullen, Esq. 

Day Mines, Inc. 

5061 i/2 Cedar 

Wallace, Idaho 83873 

1853 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, D.C. 20006 

ALLIED CHEMICAL CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

August 28, 1984 

Docket No. WEST 79-165-M 

DECISION 

This civil penalty proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 !.S, seq. (1982), presents issues 

involving longwall mining operations. A Cotmnission administrative law· 

judge found that the cited condition, missing bolts in longwall roof 

support units, constituted a violation of 30 C.F.R. § 57.9-2. 1/ We 

granted the petition for discretionary review filed by the operator, 

Allied Chemical Corporation ("Allied"). We conclude that substantial 

evidence supports the judge's decision and, accordingly, we affirm. 

At its Alchem Trena Mine, located near Green River, Wyoming, Allied 

employs a longwall mining unit. Mining is conducted in longwall panel 

entries some 400 feet in width and considerably greater in length. The 

Allied longwall mining machine consists of a cutting device known as a 

shearer, a face conveyor on which the shearer rides, and a line of large 

roof support units called chocks. The chocks are located behind the 

·face conveyor. Each chock is composed of an overhead canopy placed 

directly against the mine roof, a hydraulic ram at the base of the unit, 

and hydraulic legs (or jacks) between the base and canopy. The legs, 

approximately six inches in diameter, support the canopy and are used to 

raise or lower the canopy. The canopy is hinged in the middle, with a 

large back portion and two parallel front arms. One leg supports each 

of the front arms of the canopy and four legs support the back portion 

of the canopy. 

1/ Section 57.9-2 provides: 

Mandatory. Equipment defects affecting safety shall be 

corrected before the equipment is used. 

1854 
During the extraction process, the shearer makes continuous lateral 

passes across the mining face to cut the trona ore. The ore is deposited 

in the face conveyor below the shearer and transported by the conveyor 

belt away from the face. As the shearer makes cuts at the face, the 

chocks are moved forward by the hydraulic rams to support the newly 

created roof. A 400-foot face requires some 125 chocks for roof support. 

When all the chock units are side-by-side, parallel to the face, they 

form a continuous chock line. As mining progresses and the chock line 

is snaked forward, the roof is allowed to collapse behind the chocks. 

The bolts that are the subject of this proceeding are made of soft 

steel and are three-quarters of an inch in diameter and approximately 

eight inches long. One bolt is inserted through each chock leg. The 

attachment point is near the top of the leg just below a two to threeinch cup in the canopy in which the leg is positioned. The bolt is not 

intended to provide direct roof support. Because of the stresses 

generated in the operation of the chock equipment, the bolt will shear 

off at some point during its use. However, the bolt serves two important 

functions: preventing the legs from twisting beyond their design limits, 

especially when the ram moves the chock forward, and holding the legs in 

proper position in the canopy cups when the legs are raised or lowered. 

Hydraulic lines are attached to each leg near the point where the bolt 

is placed. As discussed below, if the leg twists due to a missing bolt, 

the hydraulic lines could be torn off or ruptured. Such twisting could 

also damage or destroy the hydraulic packing inside the leg. 

The events leading to the citation at issue began on January 26, 

1979, when inspectors from the Department of Labor's Mine Safety and 

Health Administration ("MSHA") conducted a methane spot inspection of 

the Allied mine pursuant to section 103(i) of the Mine Act. 30 U.S.C. 

§ 813(i). The inspectors determined that the panel in which the longwall miner was located contained amounts of methane in excess of applicable standards and issued an order withdrawing miners from the longwall 

mining area. On January 29, 1979, MSHA inspectors conducted an abatement 

inspection of the longwall area. During the course of this inspection, 

the inspectors walked down the chock line and noticed two bolts missing 

from legs on chocks No. 105 and 106. One of the inspectors issued a 

citation alleging a violation of section 57.9-2. The citation stated 

that the absence of the bolts "would create a hazard to persons working 

under these chocks." On the accompanying "Inspector's Statement," the 

inspector asserted that the missing bolts would adversely affect the 

chocks' roof-supporting capabilities. During the same inspection, the 

inspectors also issued three other citations alleging electrical violations in connection with a flag switch box located on a conveyor 

frame. 

The record reflects no disagreement that the condition of the 

chocks and their leg bolts observed in the mine by the inspectors on 

January 29 had not changed since January 26 when the withdrawal order 

was issued. During the three-day interim the only miners permitted in 

the affected area were fire bosses performing ventilation abatement 

tasks. At the time the withdrawal order was issued on January 26, the 

longwall unit had been de-energized and the shearer was not operating. 

The chocks were, however, supporting the roof. 

1855 
Following an evidentiary hearing and the supmission of post-trial 

depositions, the Commission's administrative law judge issued his decision concluding that Allied had violated section 57.9-2. 4 FMSHRC 503 

(March 1982)(ALJ). Before the judge, Allied contended that section 

57.9-2 did not apply to roof support equipment like the chocks because 

the standards in section 57.9 are grouped under the heading "Loading, 

hauling, dumping"--subjects that do not pertain to roof support. The 

judge rejected this argument, relying on canons of construction, the 

general purpose and structure of the Part 57 regulations, and the plain 

language of the standard itself. 4 FMSHRC at 507-08. Applying the. 

elements of the standard to the evidence, the judge found that the 

missing bolts were "equipment defects affecting safety," and that, 

within the meaning of the standard, the defects had not been corrected 

before the equipment was used. 4 FMSHRC at 505-06, 508. Finally, the 

judge rejected Allied's defense that the chocks were being repaired at 

the time the withdrawal order was issued on January 26. 4 FMSHRC at 

506. Jj 

In urging reversal, Allied repeats the arguments it raised below: 

that the cited standard does not apply to its longwall roof support 

equipment, that the various elements of the standard necessary to a 

finding of violation are not satisfied by the evidence, and that the 

bolts were in the process of being replaced when the withdrawal order 

was issued on January 26. These arguments are rejected. 

We turn first to the coverage of the standard. Allied asserts that 

the heading of 30 C.F.R. § 57.9--"Loading, hauling, dumping" -- bars 

application of section 57.9-2 in the longwall roof support context. 

However, it is evident from the structure and the content of Part 57, 

Safety and Health Standards--Metal and Nonmetal Underground Mines, 

that the headings used in that Part are designed for organizational convenience to supply short-hand characterizations of the general subject 

matter involved in the standards. The only stated limitations on the 

scope of the standards contained in Part 57 are distinctions between 

those standards applicable to underground operations, those applicable 

to surface operations of underground mines, and those applicable to both 

areas of operation. The plain words of section 57.9-2 broadly refer to 

the correction of "equipment defects" without any limitations as to the 

types ·of equipment covered. While headings may sometimes provide an 

intrinsic aid to construction, they do not control over the plain 

words of a legislative text. In' cases of conflict, precedence must be 

'];../ The judge vacated the three electrical citations based on his 

finding that an Allied electrician was repairing the cited switch box 

when the withdrawal order was issued. The Secretary of Labor has not 

sought review of this aspect of the judge's decision. 

1856 
given to the words in the body of a provision over those in the caption. 

See, for example, Brotherhood of Railroad Trainmen v. Baltimore & Ohio BR, 

331 U.S. 519, 528-29 (1947); U.S. v. Roemer, 514 F.2d 1377, 1380 (2d 

Cir. 1975); 2A C.D. Sands, Sutherland Statutory Construction§ 47.14 

(pp. 93-97)(4th ed. 1973). 

Moreover, we are not persuaded that any conflict exists between the 

heading of section 57.9 and the body of section 57.9-2 as applied to 

the distinctive longwall operations involved in this case. The cited 

.1ongwall unit is a single integrated equipment system. The chocks are 

an integral and essential component of the longwall unit, which is 

primarily used to cut ore and to load and transport. it away from the 

face. These latter functions are within the scope of the heading of 

section 57.9, and they cannot be performed without the roof support 

integrally provided by the chocks. For the foregoing reasons, we conclude 

that section 57.9-2 was properly applied to the chock components of 

the Allied longwall unit. 

The major issues regarding the judge's findings that Allied violated 

section 57.9-2 mirror the elements of the standard: (1) whether the 

missing bolts constituted an "equipment defect"; (2) if so, whether this 

defect was one "affecting safety"; and (3) whether the operator failed 

to correct the defect before the equipment was used, 

Allied does not directly press an "equipment defect" argument on 

review, although some of its contentions imply that no defect was 

present. In both ordinary and mining industry usage, a "defect" is a 

fault, a deficiency, or a condition impairing the usefulness of an 

object or a part. Webster's Third New Int·ernational Dictionary 

(Unabridged) 591 (1971); U.S. Department of Interior, Bureau of Mines, 

A Dictionary of Mining, Mineral, and Related Terms 307 (1968). Substantial evidence supports the judge's finding that the utility of a 

chock is impaired by the absence of a leg bolt. The chock's function as 

a means of roof support depends in part upon the successful operation of 

the legs that support and raise and lower the canopy. Each leg includes 

a bolt at the top to hold and guide the leg in the canopy cup. The 

record is replete with evidence that without the bolt the leg may twist 

excessively, resulting in damage to the hydraulic hoses attached to the 

leg or to the hydraulic packing inside the leg. A missing bolt may also 

be a causal factor in a leg coming completely out of a canopy cup. In 

either case, the chock would not perform its roof support function as 

effectively and, ultimately, the bolt would have to be replaced. Thus, 

the absence of a bolt is an "equipment defect" within the meaning of 

section 57.9-2. 1./ 

11 In reaching this result, we do not approve the judge's statement 

that an equipment defect automatically arises "when equipment is not 

maintained in the manner in which it is received from the manufacturer." 

4 FMSHRC at 506. Although a manufacturer's design specifications may be 

relevant in analysis. of alleged violations under this standard, we are 

not inclined to adopt any form of per se rule in this regard. 

1857 
The judge further found that the absence of the two bolts in this 

case affected safety. We agree. Although the effect on safety of two 

missing leg bolts in a hydraulic chock line of some 125 units could be 

viewed as inconsequential and beyond the standard's purview, we are not 

prepared to dispute the judge's findings as to the adverse impact on 

safety occasioned by the two missing bolts. 

The starting point for analysis is the broad language of the 

standard, "affecting safety." That phrase is neither modified nor 

limited. Although this case does not require us to describe the minimal 

effect on safety cognizable under the standard, it is clear that the 

standard has a wide reach. The safety effect of an uncorrected equipment defect need not be major or immediate to come within that reach. 

Substantial evidence supports the judge's finding that the missing 

bolts affected safety. !!I There is no dispute on this record that 

without the bolts legs could twist excessively, severing the attached 

hydraulic hoses or damaging the internal hydraulic packing. The inspectors involved in issuance of the citation credibly testified that 

any such failure in the integrity of the hydraulic support system could 

cause a loss of hydraulic pressure in the affected legs and a consequent 

and unintended drop of the canopy or one of its hinged portions. The 

area along the chock line under the front canopy arms was a travelway 

used by miners. A drop of any portion of the extremely heavy canopy 

could pose a hazard to miners in the area. An unintended lowering of 

the canopy would also lessen the continuity of the available roof 

support and could increase the risk of roof falls. 

Allied argues that in the event of damage to hydraulic lines or 

packing, hydraulic pressure in the affected legs normally would be 

maintained by safety stop valves in the equipment. We are not persuaded. 

As the judge found (4 FMSHRC at 505), if the stop valves were activated, 

. the affected chocks would have to be "bled off" and the canopies lowered. 

In turn, the lowering of the canopies could adversely affect the safety 

of the roof support. 

As noted below (n.4), it is not clear which legs on chocks No. 105 

and 106 were lacking bolts. Allied argues that, as to the rear portion 

of each canopy, all four legs and the stop valve system would have to 

fail before any lowering in the rear of the canopy occurred. While we 

agree that the immediacy of the effect is greater if one of the single 

4/ We note that the record does not clearly indicate which legs on 

chocks No. 105 and 106 were lacking bolts. Because there was testimony 

that the front arms of the chocks in question were tipped down at the 

time of the citation (Tr. 119), it appears that one of the front legs of 

each chock was involved. However, as discussed in the text, our decision 

would be the same regardless of which legs were involved. 

1858 
legs supporting a front arm fails, any missing bolt is potentially 

serious. If even one bolt is missing, the possibility of a hydraulic 

failure occurring in the affected chock unit is increased. Allied 

correctly points out that because of the stresses under which the chock 

equipment operates these soft steel bolts are designed, and are expected, 

to shear off. However, this design feature does not relieve Allied of 

the duty continually to maintain the chocks with a full complement of 

inserted bolts. Furthermore, a missing bolt may also cause the leg of a 

chock to fail to reset in the canopy cup during movement of the chock or 

canopy. Should this happen, the canopy would be compromised and roof 

support could be adversely affected. In this case, the judge credited 

the testimony of the MSHA inspector that the citation was issued, in 

part, because one of the legs was out of the canopy cup at the time. 4 

FMSHRC at 505. 

The judge also rejected Allied's argument that a violation did not 

occur because there was no evidence that the bolts were missing before 

the chock line was put in use, the chock line was pre-shift inspected, 

and the bolts were supposed to be replaced every eight hours. In 

evaluating Allied's contentions, the unique features of the longwall 

roof support system must be taken into account. As Allied recognizes, 

the chocks are in use continuously from the time they are raised to 

support the roof. Petition for Discretionary Review 17. Even if the 

longwall miner is de-energized and the shearer is not operating, the 

hydraulic chocks still support the roof. The record indicates that the 

chocks were supporting the roof on January 26 when the withdrawal order 

was issued. 

In Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (April 1981), 

we held that use of a piece of equipment containing a defective component 

capable of being operated and which, if operated, could affect safety, 

constituted a violation of 30 C.F.R. § 56.9-2, the .identical safety 

standard for sand and gravel mining operations. 3 FMSHRC at 844-45. In 

Solar Fuel Company, 3 FMSHRC 1384 (June 1981), we .held that electrical 

equipment in impermissible condition and habitually used or intended for 

use inby the last open crosscut could be cited for violation of 30 

C.F.R. § 75.503, even if the equipment was located outby the last open 

crosscut at the time of citation. 3 FMSHRC at 1385-86. In both decisions, 

we interpreted the standards in light of their broad purposes. The 

result was to assure greater safety in equipment use. 

A similar application of the standard cited in this case is warranted. 

Defects affecting safety in equipment continuously in operation, including 

those occurring during the course of operation, must be corrected before 

the equipment is used any further. The contrary approach urge~ by 

Allied could result in such defects not being repaired for substantial 

periods of time, thus needlessly increasing safety risks. 

1859 
Finally, Allied asserts that on January 26, chocks No. 105 and 106 

were under repair, thereby establishing a complete defense against any 

finding of violation. The judge found that proof was lacking to demonstrate that, when the withdrawal order issued on January 26, the missing 

bolts were being replaced. Allied produced no evidence that miners were 

actually repairing the condition. The Allied longwall supervisor 

testified that "he could not remember" the name of the panel mechanic he 

claimed to have assigned January 26 to inspect the chocks. Tr. 193. 

The judge credited the inspector's testimony that no tools were present 

and no one claimed maintenance was being done in the area of chocks No. 

105 and 106 on January 26. On review, Allied has not persuaded us that 

the judge erred in his credibility resolution or in his ultimate findings 

on this issue. Moreover, we concur with the judge's observation that 

assigning a miner to do work is not equivalent to having completed the 

work. 

Thus, we conclude that the missing bolts constituted an "equipment 

defect affecting safety" that was not corrected before use of the equipment. 

On the foregoing bases, we affirm the judge's decision. 21 

21 Commissioner Nelson did not participate in the consideration or 

disposition of this case. 

1860 
Collyer, Chairman, dissenting: 

I must dissent from my colleagues' erroneous stretching of a 

regulation specifically designed for one purpose to cover a 

completely separate circumstance. While there may have been a 

citable violation on the facts of this case, a question which 

the record here is insufficient to answer, any violation was not 

of the standard cited by the Secretary and relied upon by the 

majority. 

As acknowledged by the majority, the chocks of Allied's 

longwall mining system "function as a means of roof support." 

Dec. at 4. The fact that each of two separate chocks was missing one bolt from one unidentified leg allegedly created a roof 

control hazard. But the citation issued by the inspector and 

upheld by the majority alleges a violation of a standard relating to loading, hauling and dumping, not to roof support. I 

cannot understand how this condition fits within the scope of 

the selected standard and would hold that the Secretary failed 

to prove a violation. 

The inspector cited a violation of 30 C.F.R. 57.9-2. Subpart 

9 of Part 57 applies on its face to "Loading, hauling, dumping." 

While I agree with the general concept behind the majority's 

opinion that too much can be made of a statutory or regulatory 

heading, that principle is stretched too far here. If applied 

as the majority chooses, the cited standard becomes redundant 

with other standards in Part 57 and could well introduce a 

general-duty concept to Mine Act enforcement. Such a result is 

inimical to the intent of the Act, the regulatory scheme of Part 

57, and the legislative history. 

It must first be noted that the Mine Act is a statute that 

provides for liability without fault, commonly called strict 

liability. Allied Products Co. v. FMSHR8, 666 F.2d 890, 893-894 

(5th Cir. 1982). Ignorance of a violative condition does not 

relieve an operator of liability although it may reduce an assessed penalty. Therefore, the entire scheme of 30 C.F.R. in 

general, and of Part 57 in particular, must be read in a manner 

that provides clear notice of which standards are applicable to 

various mining situations. 

The overall organization of the regulations attempts to do 

just this. Different Parts of 30 C.F.R. contain safety and 

health standards applying to metal and nonmetal open pit mines 

(Part 55); to sand, gravel and crushed stone operations (Part 

56); to metal and nonmetal underground mines (Part 57); and to 

coal mines (Parts 70-90). Within each Part, different Subparts 

apply to different activities at those mines: Part 57 applies 

to metal and nonmetal underground mines and is divided into 

various Subparts for standards generally applicable to ground 

control, explosives, drilling, electricity, and illumination, 

1861 
among others. 30 C.F.R. §§ 57.3, 57.6, 57.7, 57.12, 57.17. 

Within each Subpart, the individual standards are further 

divided into sections containing those standards applicable to 

both surface and underground areas of underground mines, those 

applicable only to surface areas and those applicable only to 

underground areas. 

Nor was this organization accidental. Part 57 was promulgated by the Secretary of the Interior on July 31, 1969. 34 

Fed. Reg. 12517. The preamble to that promulgation notes that 

one of the changes made in the final standards from the earlier 

proposal was the combination of certain related subparts. It 

also explains that Parts 55, 56 and 57 will have parallel organization, stating (emphasis supplied): 

Sections which deal with a given subject will have identical 

decimal numbers in the three sets of regulations which deal 

with open pit mines, sand, gravel, and crushed stone operations, and underground mines. Thus, the standards on drilling in the three sets of regulations will appear in Sections 

55.7, 56.7 and 57.7, respectively; and standards on materials handling and storage will appear in Sections 55.16, 

56.16, and 57.16. 

By the same token, it seems to me obvious that the ground control standards found in subparts 55.3, 56.3, and 57.3 are those 

to which a metal-nonmetal or sand and gravel operator should be 

able to look to determine whether its roof and ground control 

system complies with relevant federal requirements. 

In fact, 30 C.F.R. 57.3-22 states (emphasis supplied): 

Miners shall examine and test the base, face, and rib of 

their working places at the beginning of. each shift and 

frequently thereafter. Supervisors shall examine the ground 

conditions during daily visits to insure that proper testing 

and ground control practices are being followed. Loose 

ground shall be taken down or adequately supported before 

any other work is done. Ground conditions along haulageways 

and travelways shall be examined periodically and scaled or 

supported as necessary. 

If it is MSHA's position that the missing bolts rendered the 

chocks inadequate to support the roof at Allied's trona mine, it 

could have issued a citation under this standard saying so. It 

makes no sense to try to bootstrap an alleged roof control deficiency into the cited loading, hauling, and dumping standard. 

1862 
Furthermore, if Section 57.9-2 is given the broad interpretation that the majority uses, it would be redundant with a number of analogous standards in other subparts of Part 57. For 

example, 30 C.F.R. 57.7-2, under the heading "Drilling," is 

identical to the standard cited in this case: "Equipment defects 

affecting safety shall be corrected before the equipment is 

used." If either standard were intended to be applicable to all 

equipment in underground metal and nonmetal mines, there would 

be no need for two identical standards. A number of additional 

standards in Part 57, although not containing wording identical 

to that in Section 57.9-2, provide similar prohibitions against 

the use of defective equipment. See, e.g., 30 C.F.R. 57.3-8, 

57.10-3, 57.12-30, 57.14-26, 57.19-120. Under the majority's 

interpretation of Section 57.9-2, the need for these standards 

would be obviated. 

For similar reasons, I also cannot agree with the majority's 

conclusion that the roof support chocks may be considered loading, hauling and dumping equipment within the scope of section 

57.9. The basis for this holding is that "[t]he chocks are an 

integral and essential component of the longwall unit, which is 

primarily used to cut ore and to load and transport it away from 

the face." Dec. at 4. However, the primary purpose of any 

mining system is "to cut ore and load and transport it away from 

the face." In underground mines, roof support is essential to 

this process and roof control is therefore an integral part of 

any underground mining cycle. The fact that there is some physical, rather than only functional, connection between the various components of a longwall system carinot be used to transform 

a roof support chock into a piece of haulage equipment. 

Of equal importance, the broad application of 57.9-2 adopted 

by the majority also converts that standard into a general duty 

standard, contrary to the express intent of Congress in enacting 

the Mine Act. House and Senate Conferees explicitly removed a 

general duty clause contained in the Senate version of the Mine 

Act before passage. The Conference Report explained: 

The Senate bill contained a "general duty" clause which 

required operators to furnish safe and healthful working 

conditions free from recognized hazards likely to cause 

death or harm to miners and to comply with rules, regulations and orders promulgated under the Act. This provision 

would have permitted the issuance of citations or the assessment of civil penalties based on violations of the general duty. The House amendment had no general duty clause. 

The conference substitute conforms to the House amendment. 

1863 
S. Conf. Rep. No. 461, 95th Cong., 1st Sess. 38-39, 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 1316-1317 (1978). The report further 

explained Congress' belief that the imminent danger provision of 

Section 107(a), 30 U.S.C. 817(a), was sufficient to prot~ct 

miners' health and safety where dangers outside the scope of the 

specific standards existed. Id. The scheme adopted by Congress 

provides this protection to miners without a general duty clause 

that would subject operators to mandatory civil penalties for 

conditions which are not prohibited by specific standards. 

By its decision, however, the majority introduces into the 

cited standard a "general duty" concept applicable well beyond 

loading, hauling and dumping. The decision ignores the nature 

of underground mining systems and turns identical or similar 

standards within other Subparts into surplusage. It ignores the 

clear legislative history declining to adopt a general .duty 

concept. It also ignores the relevant roof control standard 

which is applicable. 

I dissent. 

1864 
Distribution 

Douglas L. Davies, Esq. 

Van Cott, Bagley, Cornwall & McCarthy 

Suite 1600 

50 South Main Street 

Salt Lake City, Utah 84144 

Anna L. Wolgast, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

1865 
FEDE.RAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

August 28, 1984 

DOCKET NO. PENN 83-63 

U. S. STEEL MINING CO., INC. 

DECISION 

The issue in this civil penalty case is whether a cited 

violation of a regulation relating to permissible electric 

equipment was properly designated "significant and substantial," 

as that term is used in the Federal Mine Safety and Health Act 

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

The case involves a violation of mandatory safety standard 

30 C.F.R. § 75.503, which requires coal mine operators to "maintain in permissible condition all electric face equipment required ... to be permissible ... " 1/ Here, one of four 

bolts required to attach the lens to the headlight assembly of a 

shuttle car was loose, compromising the explosion-proof nature 

of the headlight compartment. In a civil penalty proceeding 

before an administrative law judge of this independent Commission, U. S. Steel Mining Co. ("U.S. Steel Mining") conceded 

that it had violated the standard, but argued that the violation 

should not have been designated significant and substantial 

under the Commission's decision in Cement Division, National 

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

At the hearing before the judge, the MSHA inspector who 

issued the citation was the only witness to testify about the 

violation in this case. He explained that he had issued the 

citation at 10:30 a.m. on January 4, 1982. Shortly before, at 

9:20 a.m., the inspector had also issued a citation for excessive coal accumulations in an entry and crosscut about 320 feet 

1/ Relevant permissibility standards are set forth in 30 C.F.R. 

Part 18, including § 18.46(a), requiring that headlights "be 

constructed as explosion-proof enclosures." "Explosion-proof 

enclosure" is defined in § 18.2. 

1868 
from the subsequently cited shuttle car. He said that the crew 

had stopped mining activities in order to clean up the cited 

accumulation. 2/ The cleanup was still in progress when the 

inspector issued the shuttle car citation. 

The MSHA inspector testified that the purpose of requiring 

that headlights "be constructed as explosion-proof enclosures," 

30 C.F.R. 18.46(a), is to ensure that any ignition that may 

occur inside the headlight will not escape into the mine atmosphere. He explained that the atmosphere inside the enclosure 

expands and contracts as the headlight is turned on and off. 

When the headlight is turned off, the atmosphere inside the 

enclosure cools, contracting and drawing in outside air which 

may contain methane. Sparks in the headlight compartment could 

cause a methane ignition inside the compartment. The inspector 

testified that, if such an ignition occurred, "[w]ith the one 

bolt loose like that, the pressures that are built up, you could 

have distortion or even breakage of some of the other bolts that 

would allow the flame from an ignition inside the compartment to 

escape to the outside atmosphere." Tr. 81. In that event, a 

larger explosion could then occur, injuring or killing the 

shuttle car operator or any other nearby miners. 

The inspector testified that he designated the violation 

significant and substantial because he believed that an explosion of this type was "a reasonable thing that could happen." 

He noted that an explosion "in either Colorado or Utah" that had 

recently killed 15 people "was directly attributed to an opening" in a headlight compartment. Tr. 82. He also testified that 

Maple Creek #2 is a gassy mine that liberates over one million 

cubic feet of methane in a 24-hour period and noted that the 

shuttle car was on the same section where he had just cited 

U. S. Steel Mining for excessive coal accumulations. 

Based on this testimony the judge affirmed both the citation 

and the inspector's significant and substantial finding. 5 

FMSHRC 1873 (October 1983) (ALJ). He assessed a civil penalty 

~f $100 for the violation, 3/ and U. S. Steel Mining petitioned 

for discretionary review. 

2/ A U. S. Steel Mining witness testified, in reference to the 

accumulation violation, that no mining had yet started on that 

shift, because the company was aware that the cleanup had to be 

completed before mining could be resumed. The judge did not 

make a specific finding on this issue. 

3/ The Secretary had proposed a penalty of $206. 

1867 
On review, U. S. Steel Mining, conceding that it violated 

the standard, argues that the likelihood of the violation contributing to a methane explosion was so remote that the violation may not be designated significant and substantial. Specifically, it argues that the judge's "premise" that sparking 

occurs within a headlight is "unsupported in fact or by the 

·record." (Br. 3) It further claims that an explosive concentration of methane would not have occurred in the area of the 

violation and that neither the inspector nor the judge properly 

applied the Conunission's National Gypsum test in determining 

that the violation should be designated significant and substantial. 

We hold first that substantial evidence supports the judge's 

conclusion that sparking occurs within the headlight. We note 

again that the inspector who issued the citation was the only 

witness to testify about the violation. He testified that, 

although sparking within the headlight is not "normal," it is 

"frequent" and can be caused by any of a number of factors. Tr. 

85, 89. Since U. S. Steel Mining presented no contrary evidence, 

we reject its assertion that the judge erred in finding that 

sparking occurs within the headlight. 

As to the contention that any hazard posed by the violation 

was too remote to justify a significant and substantial designation, we have previously held that a violation should be designated significant and substantial "if, based on the particular 

facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." National 

Gypsum, supra, 3 FMSHRC at 825. In Mathies Coal Co., 6 FMSHRC 

1, 3-4 (January 1984) we explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum the Secretary of Labor must prove: (1) the underlying 

violation of a mandatory safety standard; (2) a discrete 

safety hazard--that is, a measure of danger to safety--

contributed to by the violation; (3) a reasonable likelihood 

that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

We have further explained that the third element of the Mathies 

formulation "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 (Docket No. PENN 83-39, slip op. at 3)(August 1984). 

In our decisions we have emphasized that, in line with the language 

of Section 104(d)(l), 30 U.S.C. § 814(d)(l), it is the contribution 

of a violation to the cause and effect of a hazard that must be 

significant and substantial. 

1868 
Applying these principles to the instant case, we affirm the 

judge's holding that the cited violation was properly designated 

significant and substantial. In doing so we reject U. S. Steel 

Mining's contention that because mining was not taking place at 

the precise moment the citation was issued, the violation posed 

no hazard. Mining was scheduled to resume as soon as the nearby 

accumulation was cleaned up, and there was no suggestion that 

U. S. Steel Mining, in the normal course of events, would have 

discovered and corrected the violation before that time. 

Similarly, the fact that the mine's ventilation was adequate 

at the time the citation was issued did not diminish the possibility that the violation would result in a serious mine 

hazard. The Maple Creek #2 mine is classified as gassy and has 

a history of methane ignitions. Additionally, there was an 

excessive accumulation of coal not far from the cited shuttle 

car. U. S. Steel Mining offered no evidence to rebut the testimony of the inspector that it was reasonably likely that the 

violation would contribute to a methane explosion. Under these 

circumstances we believe that the violation was properly designated significant and substantial. 

For the foregoing reasons we affirm the decision of the 

administrative law judge. ~- • 

-~~~o~s~e~m~a~r~y~...,..._~~-C~o-1-1-~-e-r-~-,-+-c-:-.-i-r_m_a_n~~~~~~~ 

lson, Commissioner 

Commissioner Lawson concurring: 

On the basis of the criteria set forth in my separate opinion 

in Cement Division, National Gypsum Co., 3 FMSHRC 822 (April 

1981), I concur in finding the violation in this case to be 

significant and substantial within the meaning of section 104(d)(l) 

of the Mine Act, 30 U.S.C. § 814(d)(l). 

A. E. Lawson, Commissioner 

1869 
Distribution 

Louise Q. Symons, Esq. 

U.S. Steel Mining Co., Inc. 

600 Grant Street, Room 1580 

Pittsburgh, PA 15230 

Linda L. Leasure, Esq. 

Office of the Solicitor 

U,S, Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge James Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1870 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 29, 1984 

Docket No. WEST 81-186-M 

CATHEDRAL BLUFFS SHALE OIL COMPANY 

DECISION 

This civil penalty case arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~· (1982). At issue is whether 

a Commission administrative law judge erred in dismissing a citation 

issued to Cathedral Bluffs Shale Oil Company for a violation arising 

from the work activities of an independent contractor. 4 FMSHRC 902 

(May 1982)(ALJ). We affirm the judge's dismissal of the citation, but 

for the reasons detailed below. 

Cathedral-Bluffs is a Colorado partnership between Occidental Oil 

Shale, Inc. and Tenneco Shale Oil Company. Occidental is the partnership's operating partner and, for purposes of this case, is referred to 

as the "production-operator" of the Cathedral Bluffs mine. On February 8, 

1978, Occidental contracted with Gilbert Corporation for the development 

of three underground vertical shafts at the Cathedral Bluffs site at 

Rio Blanco, Colorado. On September 4, 1980, a Department of Labor Mine 

Safety and Health Administration (MSHA) inspector conducted an inspection of the ventilation and escapeway shaft, the "V&E" shaft, then under 

development by Gilbert. At the time of the inspection this vertical 

shaft descended about 1125 feet. Landings, or stations, were cut 

horizontally into the shaft walls at predetermined levels. The MSHA 

inspector observed that, contrary to the requirements of 30 C.F.R. 

§ 57.19-100, the 1050 landing was not equipped with substantial safety 

gates constructed so that material would not go through or under them. 1/ 

Instead, a chain was hung across the landing which could not prevent -

objects from falling down the shaft. The inspector issued citations 

alleging a violation of section 57.19-100 to both Gilbert and Occidental. 

1/ 30 C.F.R. § 57.19-100 provides: 

Mandatory. Shaft landings shall be equipped with substantial safety gates so constructed that materials 

will not go through or under them; gates shall be 

closed except when loading or unloading shaft 

conveyances. 

1871 
The violative condition was abated promptly by the erection of a 

conforming safety gate. Gilbert did not contest the citation issued to 

it by the inspector, and accordingly, that citation became a final order 

by operation of law. 30 u.s.c. § 815(a). Occidental, however, did contest 

the citation issued to it and the penalty proposed by the Secretary of Labor. 

It is the propriety of the issuance of the citation to Occidental, under 

these circumstances, that is before us. 

The Commission's administrative law judge held that our 

Phillips Uranium Corporation, 4 FMSHRC 549 (April 1982), was 

and "on the authority of Phillips" he vacated the citation. 

Phillips as establishing a per se rule that: 

decision in 

"dispositive", 

The judge read 

liability for a violation may not be imposed against 

an owner-operator where the owner has retained an 

independent company with experience and expertise in 

the activity being undertaken and where the owner's 

exposed employees do not perform any other work other 

than to observe the progress of the contractor's 

activities to assure compliance with quality control 

and contract specifications. 

4 FMSHRC at 902. Finding that the facts of the present case fell within 

this perceived rule, the citation was vacated. 

On review the Secretary argues that the judge erred in applying 

Phillips as controlling precedent. The Secretary asserts that the citations at issue in Phillips were issued under MSHA's former "interim" 

policy of citing only owner-operators for independent contractor violations. 

Since then, however, new independent contractor identification regulations 

have been adopted and were in effect at the time the citation was issued to 

Occidental. 44 Fed. Reg. 44494 (July 1, 1980)(adopting new 30 C.F.R. Part 45). 

Moreover, the Secretary argues that in issuing the citation, the inspector 

relied upon and correctly applied the enforcement guidelines formally published 

by the Secretary in the Federal Register as an appendix to the independent 

contractor identification regulations. 44 Fed. Reg. 44497. Accordingly, the 

Secretary submits that Phillips is not controlling and that the citation issued 

to Occidental for the violation committed by its independen·t contractor must be 

upheld as a proper exercise of his enforcement authority. 

We agree with the Secretary that the judge read Phillips too broadly 

and misapplied it as directly controlling the disposition of this case. 

Contrary to the Secretary's assertions, however, we find that under a proper 

application of governing legal principles, and in light of relevant factual 

findings by the judge and the record considered as a whole, the judge's 

dismissal of the citation must be affirmed. 

The present case stands in a procedural posture different in a 

crucial respect than that presented to us in Phillips. In Phillips 

the Secretary had instituted proceedings solely against the productionoperator for violations committed by an independent contractor. He had 

done so, well after our admonition in Old Ben Coal Co., l FMSHRC 1480 

(October 1979), aff'd, No. 79-2367, D.C. Cir. (January 6, 1981), that his 

interim "owners-only" citation policy placed administrative convenience 

1872 
ahead of miner safety. He had refused to proceed against the culpable 

contractor even after he had adopted regulations and enforcement guidelines articulating a policy of holding contractors responsible for 

violations committed by them. Accordingly, we held that the Secretary's 

decision to proceed against Phillips, and not against the contractor, 

had totally negated the intended effect of the Act's provisions 

requiring the imposition of cumulative sanctions against independent 

contractors, and that the Secretary had so acted simply because it 

was administratively convenient for him to seek penalties from the 

production-operator. For these reasons, the citations were vacated, 

In contrast to the procedural posture of Phillips, the violation at 

issue in this case occurred subsequent to the Secretary's adoption of his 

new independent contractor regulations and enforcement guidelines. Through 

these vehicles the Secretary abandoned his interim "owners-only" policy 

and established a new, formal policy governing the issuance of citations 

to independent contractors. Purportedly in accordance with this new policy, 

in the present case the Secretary cited Occidental as well as its contractor 

for the contractor's failure to guard the shaft landing. Therefore, the 

rationale we relied on to vacate the citation at issue in Phillips is not 

relevant here. Rather, the appropriate inquiry is whether the record 

reflects proper application of the Secretary's new independent contractor 

enforcement policy. As explained below, we hold that it does not. 

The Secretary's formally adopted policy regarding the issuance of 

citations for violations of the Act committed by independent contractors 

provides: 

Enforcement action against production-operators for 

violations involving independent contractors is 

ordinarily appropriate in those situations where the 

production-operator has contributed to the existence 

of a violation, or the production-operator's miners 

are exposed to the hazard, or the production-operator 

has control over the existence of the hazard. Accordingly, 

as a general rule, a production-operator may be properly 

cited for a violation involving an independent contractor: 

(1) when the production-operator has contributed by either 

an act or omission to the occurrence of a violation in the 

course of an independent contractor's work, or (2) when the 

production operator has contributed by either an act or 

omission to the continued existence of a violation committed 

by an independent contractor, or (3) when the productionoperator's miners are exposed to the hazard, or (4) when 

the production-operator has control over the condition that 

needs abatement. 

44 Fed. Reg. 44497 (July 1980). ];/ 

2/ In his brief, the Secretary stresses the rulemaking process he 

followed in adopting the independent contractor regulations and the 

(Footnote continued) 

1873 
Throughout this proceeding the Secretary has relied on criteria (3) 

and (4) as the basis for sustaining the citation issued to Occidental. 

We conclude that the Secretary has failed to establish in the record the 

requisite support to conclude that these criteria were met in the present 

case. 

According to the Secretary's third criterion, a production-operator 

appropriately may be cited for a violation committed by an independent 

contractor when the production-operator's employees are exposed to the 

hazard created by the violation. Viewed as a whole, the record before 

us is devoid of substantial probative evidence of such exposure. The 

MSHA inspector testified that at the time that he observed the lack of 

a safety gate at the 1050 landing, the lowest landing then developed, 

no miners were below the landing. He further testified that he had 

never seen Occidental employees at the bottom of the shaft. 3/ No other 

evidence by the Secretary specifically places any Occidental-employee at 

the bottom of the shaft at any point during the indeterminate period 

that the 1050 landing lacked safety gates. There is general testimony 

in the record to the effect that "quality control" inspectors and "safety 

inspectors" employed by Occidental observed Gilbert's work as it progressed. 

'!!here is no convincing, specific testimony, however, concerning the 

frequenc:y and duration of such visits, or whether any such Occidental 

employee in_~act was exposed to the hazard posed by the improperly guarded 

1050 landing. .i\l.though there is testimony that an employee of Occidental 

took gas samples in the shaft, including the bottom area, at unspecified 

intervals, the extent o-f this employee's presence in the shaft cannot be 

determined and no evidence-·establishes that he was at the shaft bottom at 

a time when the 1050 landing l~~ked guards. Thus, a finding of exposure 

of any Occidental employee to the ci_ted hazard can only be based on a 

large amount of inference and conjecture, rather than on probative record 

Fn. Y continued 

corresponding enforcement guidelines. Sec. Brief at 15-18. He emphasizes 

that "the Secretary decided to develop his prosecutorial policy through 

the public procedure of rulemaking" (Brief at 16 n. 12), and that "these 

formally published guidelines give clear public notice of the Secretary's 

policy in exercising his discretionary policy." Brief at 17. We agree 

with the Secretary that his independent contractor enforcement guidelines 

are distinguishable from the provisions of his internal Inspector's Manual 

which were found to be without legal effect in King Knob Coal Co., 3 FMSHRC 

417 (June 1981). 

3/ The inspector did state that during his inspection of the shaft 

certain Occidental employees accompanied him to the shaft bottom. The 

presence of these employees at the shaft bottom cannot be relied on to 

support a finding of exposure. Section 103(f) of the Act provides miners 

and operators with the right to designate representatives to accompany 

inspectors "for the purpose of aiding such inspection." 30 u.s.c. § 813(f). 

Any suggestion that exercise of this "walkaround" right, which is intended 

to advance mine safety and health, can be relied on as a basis to impose 

liability on an operator or increase the gravity of a violation must be 

rejected. 

1874 
evidence. Although circumstantial evidence can be relied on in appropriate circumstances to establish a violation under the Mine Act, the 

degree of inference and speculation necessary to be indulged in here 

to support a finding of exposure, would require us to ignore the 

Secretary's obligation to prove the existence of a violation. This 

we will not do. 

Assuming arguendo that the record could be viewed as supporting a 

reasonable conclusion that Occidental's quality control and safety 

inspectors were, to some extent, exposed to the violative condition, we 

would nonetheless conclude that such incidental exposure could not support 

the citation issued to Occidental. If sufficient exposure were to be 

found on these facts, the Secretary's much-heralded independent contractor 

citation policy effectively would be reduced to a "paper tiger" lacking any 

substantive or practical effect. Independent contractors are engaged by 

mine operators because of their expertise in specialized tasks. The 

relationship between production-operators and independent contractors is, 

by definition, governed by contract. 4/ That relationship also is defined 

to provide a contractor freedom from the production-operator's control in 

the actual performance of the task it is hired to accomplish. Equally 

endemic to such a contractual relationship is the right of the productionoperator to determine if the services or goods contracted for have, in 

fact, been satisfactorily provided. This necessitates, to varying degrees, 

a monitoring and inspection of the progress of the work being performed 

and an inspection and acceptance of the work once completed. 

The present case presents a typical contractual relationship. See 

Exh. R-1. Occidental contracted with Gilbert Corporation for the development of three vertical underground shafts. As we observed in Phillips, 

supra, "the hiring of contractors to perform the specialized task of 

shaft construction is common in the mining industry." 4 FMSHRC at 553. 

Because Gilbert was retained for its expertise in shaft sinking, it 

necessarily was given control over the performance of this specialized 

work. In fact, no Occidental employee was permitted to enter the shaft 

unless accompanied by a Gilbert employee. In accordance with contractual 

and industrial reality, however, Occidental necessarily retained the right 

to monitor the work being performed to determine if the contract were being 

discharged properly. The frequency and duration of the visits by Occidental 

personnel to the shaft is impossible to determine from the record. It is 

clear, however, that Occidental's presence in the shaft was no more than 

reasonably can be expected in any such contractual relationship and did not 

involve the production-operator in the particulars of the work being 

performed. It is certainly clear that, contrary to the statement in the 

4/ As generally used at law, the term "independent contractor" describes 

a party that "contracts with another to do something ••• but who is not 

controlled by the other nor subject to the other's right to control with 

respect to his ••• conduct in the performance of the undertaking." 

Restatement (Second) of Agency§ 2 (1958). 

1875 
Secretary's brief, the record does not establish "constant Occidental 

employee ezj>osure" to the hazard posed by the unguarded landing. Sec. 

brief at 20. We cannot conclude that the limited access of Occidental's 

employees to the work activities of its contractor, as demonstrated 

by this record, satisfies the exposure criterion in the Secretary's 

enforcement guidelines without rendering the guidelines meaningless. 

We also must reject the Secretary's assertion that the present 

facts satisfy the fourth criterion in his enforcement guidelines for 

citing production~operators for contractor violations, i.e., "control 

over the condition that needs abatement." As discussed-above, it is 

true that Occidental reserved certain rights in its contract with Gilbert, 

including the right to monitor and inspect work provided and the right 

to terminate the contract in whole or in part if Gilbert "persistently 

disregard[ed]" applicable laws, including the Mine Act. (Exh. R-1, 

paragraphs 7 and 20.) The Secretary points to these contractual provisions as proof that in this case Occidental had "control over the 

condition that needs abatement" within the purview of his fourth 

criterion. We find this assertion unpersuasive. The rights reserved 

by Occidental are basic contractual rights universally reserved in 

well-drafted contracts in this industry and others. To hold that 

the mere presence of such language in contracts between productionoperators and independent contractors satisfies the criterion of "control" 

under the Secretary's independent contractor enforcement guidelines, would 

vitiate the very essence of the guidelines. The plain fact is that if the 

contractual provisions in this case constitute "control" for citation purposes, 

every production-operator could be cited for every contractor violation. 

This result has long been critized as ineffective enforcement of mine safety 

statutes and was ostensibly abandoned by the Secretary upon the adoption of 

his new policy. See,~., Association of Bituminous Contractors v. Andrus, 

581 F.2d 853, 863 (D.C. Cir. 1978); Phillips Uranium, supra; and Old Ben, 

supra, (majority and dissenting opinions). 

We hold that before a production-operator can be deemed to "control" 

a contractor's activities sufficient to justify the issuance of a citation 

to it for a contractor's violation, some functional nexus, beyond the 

contractual nexus reflected here, must be demonstrated linking the 

production-operator's involvement with the contractor's violation. 

We emphasize that in this case an independent contractor with a 

continuing presence at the mine site was cited for a violation it 

committed in the course of its specialized work; the contractor did not 

contest the citation; and the hazardous condition was abated promptly. 

Given these facts and the lack of any demonstrated exposure of Occidental 

employees or control by the production-operator other than routine 

verification of work performed, we believe that harm, rather than good, 

would be done to the goal of achieving maximum mine safety and health if 

such a strained interpretation and application of the Secretary's 

enforcement policy were upheld. Therefore, we decline to interpret the 

Secretary's regulations and guidelines to require precisely what their 

adoption was intended to avoid. 

1876 
Accordingly, as modified by this decision, the administrative law 

judge's dismissal of the citation issued to Occidental is affirmed. 

18'77 
Commissioner Lawson dissenting: 

The principles established in Old Ben Coal Co., 1 FMSHRC 1480 

(1979)("0ld Ben"), in conformity with the legislative intent and express 

endorsement of Bituminous Coal Operators' Association, Inc., 547 F.2d 

240 (4th Cir. 1977) ("BCOA"); 1/ continue to be eroded by this Commission 

majority. In Old Ben the Commission stated: 

It was not the intention of Congress to limit the 

number of persons who are responsible for the health 

and safety of the miner, nor to dilute or weaken the 

obligation imposed on those persons ••• When a mine 

operator engages a contractor to perform construction or services at a mine, the duty to maintain 

compliance with the Act regarding the contractor's 

activities can be imposed on both the owner and the 

contractor as operators ••• Arguably, one operator may 

be in a better position to prevent the violation. 

However, as we read the statute ••• Congress permitted 

the imposition of liability on both operators regardless of who might be better able to prevent the 

violation. 

1 FMSHRC at 1483. In Phillips Uranium Corp., 4 FMSHRC 549 (1982) 

("Phillips"), the Commission backtracked by selectively quoting Old Ben: 

We previously have observed that "[i]n many circumstances ••• 

it should be evident to an inspector at the time that he 

issues a citation or order that an identifiable contractor 

created a violative condition and is in the best position 

to eliminate the hazard and prevent it from recurring." 

1 FMSHRC at 1486. 

4 FMSHRC at 553. No longer relying on statutory support, but instead 

criticizing the Secretary's adherence to "administrative convenience," Y 

id, the Commission vacated the citations, orders, and petitions for 

assessment of civil penalty issued to the owner-operator. 

In this case, where Occidental's own employees were exposed to the 

hazard cited and where Occidental has impermissibly delegated its safety 

responsibilities via contractual assignment to Gilbert, the Commission 

has backtracked further. Having heeded the admonition in Phillips 

against proceeding only against the owner-operator but not the culpable 

independent contractor, the Secretary is now barred from proceeding 

against both. Apparently, now the Secretary cannot guess correctly 

against whom he may proceed. Borrowing an analogy used in other safety 

and health litigation by the U.S. District Court for the District of 

lf The principles of BCOA were subsequently reaffirmed by the U.S. Court 

of Appeals for the Fourth Circuit in Harman Mining Corp. v. FMSHRC, 671 

F.2d 794 (4th Cir. 1971), and endorsed by the U.S. Court of Appeals for 

the Ninth Circuit in Cyprus Industrial Minerals Co. v. FMSHRC, 664 F.2d 

1116, 1119-20 (9th Cir. 1981), quoting Republic Steel Corp., 1 FMSURC 5 

(1979). 

!:_/ The criticism was directed towards the Secretary's then-existing 

policy to proceed only against an owner-operator. 

1878 
Columbia in National Congress of Hispanic American Citizens v. Marshall, 

No. 2142-73 (D.C.D.C. Oct. 30, 1981), 1981 CCH OSHD ,[25,750 at 32,163, 

the Commission's development of the law in this area is reminiscent of 

Alice in Wonderland: each step forward brings us two steps backward. 

My colleagues rely on the Secretary's enforcement policy to preclude 

enforcement against this owner-operator. Again they use selective 

quotation. Preceding the material from the guidelines cited by the 

majority is the following statement in the preamble to these regulations: 

However, as was fully discussed in the preambles to the 

draft and proposed rules, the legislative history to 

the revised definition and the case law makes it clear 

that the production-operator remains ultimately responsible for the safety and health of persons working at 

the mine. 

45 Fed. Reg. 44494 (1980). 3/ Further, and included in that enforcement 

policy itself, is the following: 

MSHA's general enforcement policy regarding independent 

contractors does not change the basic compliance responsibilities of production-operators. Production-operators 

are subject to all provisions of the Act, standards and 

regulations which are applicable to their mining operation. 

This overall compliance responsibility of production-operators 

includes assuring compliance with the standards and regulations which apply to the work being performed by independent 

contractors at the mine. As a result, independent contractors 

and production-operators both are responsible for compliance 

with the provisions of the Act, standards and regulations applicable to the work being performed by independent contractors. 

[Emphasis added.] 

45 Fed.Reg. 44497 (1980). 

It is beyond dispute that under the 1977 Act, owner-operators are 

jointly and severally liable for violations involving independent 

contractors at their mines. As noted in Cyprus Industrial Minerals Co. v. 

FMSHRC, 664 F.2d 1116 (9th Cir. 1981), 

[T]he addition of "independent contractors" to Section 

3(d) [of the 1977 Mine Act] did not require the Secretary 

to cite only the independent contractor. The addition 

permitted the Secretary to cite the independent contractor, 

the owner or both. [Emphasis in original] 

* * * 

3/ Of course, what existing case law and the Act's legislative history 

made clear was that both owner-operators and independent contractors 

were liable for violations of the Mine Act. 

1879 
In addition, mine owners are strictly liable for the actions 

of the independent contractor violations under the Coal Act 

and the present Act. 

664 F.2d at 1119 (citations omitted). The regulations at 30 C.F.R. Part 

45 provide the mechanism for implementing independent contractor liability 

under the statute. It is clear from the preamble, as well as the policy 

statement, that production-operators are no less liable today than was 

the.case prior to their issuance. However, the Secretary's guidelines 

are now being used by the majority to preclude enforcement. In Old Ben, 

the Commission stated that the proper standard for reviewing Secretarial 

enforcement decisions "is for the Commission to determine whether the 

Secretary's decision to proceed against an owner for a contractor's 

violation was made for reasons consistent with the purpose and policy of 

the 1977 Act." 1 FMSHRC at 1485. In this case, it is the decision of 

the Secretary that is consistent with the purpose and policy of the 1977 

Act, not the decision of the Commission majority. 

MSHA's policy indicated that enforcement actions against production 

operators is "ordinarily appropriate," as a "general rule," under the 

following circumstances: 

(1) When the production-operator has contributed by 

either an act or an omission to the occurrence of a 

violation in the course of an independent contractor's 

work, or (2) when the production-operator has contributed 

by either an act or omission to the continued existence 

of a violation committed by an independent contractor, or 

(3) when the production-operator's miners are exposed 

to the hazard, or (4) when the production-operator has 

control over the condition that needs abatement. 

The Secretary maintains, on the basis of record evidence, that this 

enforcement action against Occidental is consistent with the Act and the 

published guideline criteria. He makes specific reference to criteria 

3 and 4 establishing exposure and control, with ample supporting citation 

to record testimony and exhibits. I agree that the record supports the 

Secretary on both grounds, but need go no further than criteria 3. 

The contract between Occidental and Gilbert provided: 

Contractor understands that operator and/or other 

contractors will be working in and around areas where 

work is to be performed under this contract. 

(Exh. R-1 at 4). The evidence establishes not only that Occidental 

employees in fact regularly worked in the shafts under construction, but 

that Occidental ignored its statutory obligations to these same miners. 

Occidental's manager of health, safety and security testified as follows: 

1880 
Q. Mi. Mcclung, I'm not sure my notes are correct, so what 

I do is make sure they are either correct or you will correct 

me. I have you down as saying in your testimony ••• that you 

had no power to control safety underground. 

A. That's right, other than contractually. 

Q. Which you mean to say, you have every right to do under the 

contract? 

A. Under the contract, I can go to Occidental management should 

a situation warrant. 

Q. Now, as I read this contract, Occidental had employees 

under the ground; isn't that true? 

A. They have shaft inspectors, true. 

Q •. So your testimony, that while they were underground, 

even though they were Occidental employees, you abdicated 

all responsibility for safety? 

A. It is part of the Gilbert contract. 

Q. That is not what I'm asking whether or not it was the 

contract. I just asked you what you did. 

A. We did not actively inspect the shaft. 

Q. Did you have a responsibility for safety then when they 

were underground? 

A. For their's? 

Q. Yes. 

A. If you are speaking of the safety inspectors, they were 

under the full control of Gilbert. 

Q. The shaft inspectors? 

A. Yes. 

Q. Do you assume their responsibility whatsoever for the safety 

of your employees while they are underground; is that your 

testimony? 

A. Yes, we have got to do it that way. 

Q. ·You did that pursuant to contract? 

A. Correct. 

Q. Irrespective of what the statutes might have said? 

A. (No response.) 

Q. It must be your testimony, that under the contract you had no 

rights, regardless of what the statutes said, to do anything to 

protect the safety of your employees; is that true? 

A. If that is a question, if they were in imminent danger situation, 

I would expect them to get out of the shaft. 

Q. That was your expectation? 

A. Yes. 

Q. If they thought they were in imminent danger situations? 

A. Yes. 

Q. Now, the people that were down there were safety inspectors 

to inspect the quality of workmanship, they weren't trained 

safety individuals, were they? 

A. No. 

Q. So whether or not they were in a hazardous situation may or 

may not be apparent to them because they weren't trained; isn't 

that true? 

A. That is the responsibility of Gilbert. 

1881 
Q. I didn't ask you whether or not it was the responsibility. 

A. Of course, they weren't trained to recognize it. 

Q. Whether or not they were trained for it though, you 

abdicted [sic] your responsibility, even though they weren't 

trained to work underground; isn't that true? 

A. I don't believe that you are describing that correctly. 

Q. Tell me how I am wrong. 

A. They had to be accompanied by Gilbert employees to be there. 

Q. Do they have to be accompanied by Gilbert safety officers? 

A. The management of Gilbert's supervision has got to assume 

safety. 

Q. Under the contract, as I understand it, Occidental had people 

down there to inspect materials furnished by Gilbert; isn't that 

true? 

A. I believe that is a portion of their job. 

Q. They had to inspect the workmanship performed by Gilbert? 

A. That is true. 

Q. They had the right to conduct irtspections and they make test 

of the work performed by Gilbert? 

A. That is true. 

Tr. 60-63. The majority inexplicably finds this evidence regarding exposure 

of Occidental's quality inspectors inconclusive, notwithstanding McClung's 

acknowledgement that they were in the shaft and that responsibility for 

their safety was contractually assigned to Gilbert. McClung's testimony 

is corroborated by Occidental safety inspector Inman who testified that 

he had been "dowrt the shaft" and that he had seen a shaft inspector in 

the V&E shaft "on the day that the citation was issued." Tr. 38. !±_/ In 

addition, the MSHA inspector testified that he was told by miner Dyer, a 

quality inspector employed by Occidental, that "he spent everyday in the 

shaft ••• wherever they [Gilbert employees] were working." Tr. 20-21. 

It is clear beyond peradventure that Occidental's miners were exposed to 

the hazards of this mine, and Gilbert's shaft sinking operations. 

The majority also asserts, assuming arguendo that exposure to mine 

hazards by Occidental's shaft inspectors was established, that the 

Secretary's guidelines would be meaningless if "incidental" exposure 

(slip op. at 5) by Occidental's inspectors, for the purpose of monitoring 

Gilbert's work performance, was held to be sufficient to satisfy the 

exposure criterion. My colleagues would also find persuasive the fact 

that the relationship between Gilbert and Occidental is governed by 

contract. There is, of course, no statutory or other support for the 

suggestion that operator Occidental's statutory duty to maintain safe 

working conditions depends on the job classification of the exposed 

mine~. Nor is there any suggestion in the preamble to Part 45, or in 

the enforcement policy itself, that degrees of exposure are even relevant. 

As to the majority's reliance on the contract between Occidental and 

Gilbert, it is elementary that a private agreement between parties cannot 

4/ Since Inman himself was the shaft inspector who accompanied the MSHA 

inspector, this evidence of exposure cannot relate to an Occidental 

representative exercising section 103(f) walkaround rights. See slip 

op. at 4 n.3. 

1882 
control or alter statutory duties. An operator may not delegate this 

statutory duty to prevent safety and health hazards, nor may this Commission 

properly endorse contractual shifting of the strict liabilities established 

by the Act, Congress,- and the Courts. See Cyprus Industrial Minerals Co. v. 

FMSHRC, 664 F.2d 1116, 1119-20 (9th Cir. 1981), quoting Republic Steel Corp., 

1 FMSHRC 5, 11 (1979); Central of Georgia Railroad Company v. OSHRC, 576 

F.2d 620, 624-5 (5th Cir. 1978); Frohlick Crane Service, Inc. v. OSHRC, 

521 F.2d 628, 631 (10th Cir. 1975). 

In addition to rejecting this evidence establishing the exposure by 

Occidental's inspector miners to the hazards·of the mine, the majority 

also rejects record evidence establishing exposure to at least one other 

Occidental employee whose job it wa~ to take gas samples in the shaft. 

Again, McClung's testimony is revealing: 

Q. What occasion would he have to go underground? 

A. He !miner Parker] would go underground to--since we 

were declared gassy in January of 1980, he would take gas 

samples and random gas samples. 

Q. When you say we were classified as gassy? 

A. The Cb tract, the Cathedral Bluffs. 

Q. When you say Cb, you mean Cathedral Bluffs? 

A. Yes. 

Q. What then would be his duties after that shaft was cl~ssified as gassy? 

A. What would be his duties? 

Q. Yes. 

A. Because we wrote the petition for the ventilation program, 

he would have to assure that we had proper ventilation through 

the area in the mine. 

Q. Now, at the time the citation was issued, the Cb tract had 

been declared gassy, had it not? 

A. Yes. 

Q. But at that time, you have just three development shafts; 

is that correct? 

A. That is correct. 

Q. So I assume that he would inspecting for methane, the 

accumulation in the shaft and in the stub landing also? 

A. Basically he checked return air and ventilation at the 

bottom of the shaft. 

Q. And he was doing that prior to September of 1980? 

A. Ye.s, his job is basically that. 

Tr. 48-9. In sum, the job of Occidental's employee was to take gas samples 

and check the ventilation system at the bottom of the shaft pursuant to the 

ventilation plan adopted by Occidental after this mine was declared gassy 

by MSHA. His job function was therefore unrelated to contractor Gilbert's 

work. Nevertheless, the Commission majority again finds insufficient 

evidence of this employee's exposure and whether he was at the shaft 

bottom at a time when the cited landing lacked guards. 

1883 
The record does not contain the ventilation plan that Occidental 

followed. However, the mandatory ventilation standards applicable to 

gassy metal and nonmetal underground mines, codified at 30 C.F.R. § 

57.21-20 through 57.21-74, supplies at least the minimum examination 

requirements that must be followed. 

§ 57.21 Gassy mines 

Gassy mines shall ••• be operated in accordance 

with the mandatory standards in this section. 

* * * 

VENTILATION 

* * * 

57-21-59 Mandatory. Preshift examinations shall be 

made of all working areas by qualified persons within 

3 hours before any workmen, other than the examiners, 

enter the mine. 

Gilbert had begun the shaft sinking operation in 1978 and had a continuing 

presence at the mine since that time. At the time of citation the shaft 

had been excavated by Gilbert to a level approximately 70 to 80 feet 

below the 1050 landing. The record does not indicate how long it had 

taken Gilbert to excavate from the 1050 level to that lower level or 

how long the cited landing had been unguarded. It is self-evident, 

however, that all of it could not have been accomplished since the last 

ventilation system preshift examination was conducted by Occidental's 

employee. There is no basis in this record to assume that Occidental 

had failed to meet its obligation to take regular "gas samples and 

random gas samples" in this gassy mine. Nor does this record suggest 

that under continued normal mining conditions the violation would have 

been abated before Occidental's employee performed additional ventilation 

checks and methane sampling. See U.S. Steel Mining Co., Inc., PENN 83-

336 (July 11, 1984); U. S. Steel Mining Co., Inc., PENN 83-63 (August 28, 

1984). 

Accordingly, based on the testimonial and documentary evidence of 

record, there is substantial evidence to support the Secretary's assertion 

that Occidental's employees were constantly exposed to the cited hazard. 

This enforcement action against Occidental is consistent with controlling 

precedent, the statute, the legislative history, the regulations and 

policy statement, and the facts before us. 

I therefore dissent. 

( 

A. E. Lawson, Commissioner 

1884 
Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

James M. Day, Esq. 

Cotten, Day & Doyle 

12th Floor 

1899 L Street, N.W. 

Washington, D.C. 20036 

1885 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD DOMINION POWER COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 29, 1984 

DECISION 

Docket Nos. VA 81-40-R 

VA 81-65 

This consolidated proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 ~seq. (1982)("Mine Act"). The major 

issue on review concerns whether the Department of Labor's Mine Safety and· 

Health Administration (''MSHA") properly charged Old Dominion Power Company 

("Old Dominion") with a violation of the Mine Act. A Commission administrative law judge answered this question in the affirmative. 3 FMSHRC 2721 

(November 198l)(ALJ). For the reasons that follow, we agree, but conclude 

that a penalty lower than that assessed by the judge is appropriate. 

On January 22, 1980, a fatal accident occurred at an electrical substation located on property leased by Westmoreland Coal Company ("Westmoreland") 

from Penn-Virginia Resources. The electrical substation is an open air 

facility enclosed by a wire fence, and is adjacent to a mine access road. 

Westmoreland paid for the construction of the substation, which is comprised 

of utility poles, power lines, transformers, an electric meter, and a meter 

box. Electricity is transmitted on incoming lines to the substation, where 

it is stepped-down, or reduced, and then transmitted to a coal mine operated 

by Elro Coal Company ("Elro"), which leases the mine from Westmoreland. The 

electricity is used to power Elro's coal producing equipment. Elro sells all 

the coal it extracts to Westmoreland for resale to other customers. 

Electricity at the mine site is provided by Old Dominion Power Company, a 

public utility doing business in southwest Virginia. Old Dominion transmits, 

distributes, and sells electricity. Although most of its customers are noncommercial, it sells electricity to some commercial and industrial customers. 

Old Dominion meters the electricity sold to its customers. Old Dominion 

installs, owns, and maintains all such meters which are regularly read by 

Old Dominion employees. Customers are billed on the basis of kilowatt hours 

used. In conformance with this practice, Old Dominion meters Westmoreland's 

substation. On a monthly basis an Old Dominion meter reader arrives at the 

substation, reads the meter, and visually inspects it. If any of the 

substation's components needs attention, Old Dominion's metering department 

is informed and an employee is sent to the substation to correct any problem. 

Old Dominion also owns and maintains five transformers at the substation. 

Old Dominion has its own key to the substation to allow access by its 

employees. 

1886 
In his decision the Commission's administrative law judge succinctly 

summarized the events giving rise to this litigation: 

The substation was first energized about 5 or 

6 p.m. on January 21, 1980, by Westmoreland's 

electrical foreman, Terry Mullins. The next day, 

January 22, about 8:15 a.m., Mullins talked to 

[Old Dominion's] superintendent of meters, Jack 

Carr, on the telephone and expressed to Carr his 

doubts as to whether Old Dominion's meter at the 

substation was working properly because no light 

was visible in the meter and because the disk in 

the meter was turning counterclockwise. In Carr's 

opinion, the disk was supposed to turn counterclockwise, but, to make certain that there was 

nothing wrong with the meter, he sent two 

employees to the substation to check the meter. 

The two employees were James Harlow, a substation technician, and Leonard Lambert, a 

meter man, first class. Harlow had helped 

install the ••• transformers and meter at the 

substation. Lambert would normally have participated in the installation, but he was on 

vacation when the equipment was originally 

installed sometime in December 1979. Lambert 

had, however, gone to the substation on 

January 21 and had installed a replacement 

meter. 

When Harlow and Lambert arrived at the substation, 

Harlow, who was on the side of the van nearest to the 

substation, jumped out and looked at the fuse 

disconnects •••• He was used to seeing the type of 

fuse link which is installed inside a tube. It was 

foggy and he did not see any tube or wire between 

the fuse holders or hanging down from the bottom 

holder, so he concluded that the substation was 

deenergized. [l/] Lambert took Harlow's word 

for the fact that the substation was deenergized. 

They did not at first go inside the fence around 

the substation to look at the meter because they 

concluded that the meter could not be checked 

while no power was flowing through it. Although 

the substation was energized and there was a hum 

coming from the transformers, they apparently 

did not hear the hum because of noise coming 

from a nearby generator. 

l/ Old Dominion's general manager described the weather that day as 

"extremely bad ••• [i]t was raining and fog was coming and going." Tr. 60. 

1887 
Harlow and Lambert returned to their van, 

started the engine, and were ready to leave 

when it occurred to them that the GE transformers they had installed were of a new type 

and might have a rating of 5 KW instead of the 

15 KW which they should have had. They decided 

to check the nameplate on the transformers to 

determine their classification. Harlow put on 

climbing equipment and went up the pole to 

examine the nameplate. He could not see the 

plate clearly because of water on it. He 

reached out with one hand to rub the water off 

the nameplate and was immediately electrocuted 

when his hand touched the energized transformer. 

3 FMSHRC at 2724-25 (transcript citations omitted). 

MSHA investigated the accident and determined that there had been a 

violation of 30 C.F.R. § 77.704, a mandatory mine safety standard. 2/ Thereafter, MSHA issued to Old Dominion a citation alleging a violation of that 

standard. 3/ Old Dominion contested the citation and a hearing was held. 

The administrative law judge concluded that Old Dominion was cited properly, 

affirmed the citation, and assessed a penalty of $3,000 for the violation. 

We.granted Old Dominion's petition for discretionary review and heard oral 

argument. !::_/ 

The primary issue before us is whether, on the facts of this case, Old 

Dominion properly was found to be subject to the Mine Act. That determination must be made through interpretation and application of sections 3(d), 

3(h)(l) and (2), and 4 of the Act. 30 u.s.c. §§ 802(d), (h)(l) and (2), 

and 803. For ease of reference we set forth the sections below: 

2/ The standard states in part: "High voltage lines shall be deenergized 

and grounded before work is performed on them." There is no dispute that 

the terms of the standard were violated by the conduct of Old Dominion's 

employees. 

1./ As stated by the judge, "[c]onfusion arose as to which entity should be 

cited for the violation because Elro Coal Corporation was using the power 

received at the substation, Westmoreland owned and operated the substation, 

and [Old Dominion's] employees did the work which caused the fatal accident." 

3 FMSHRC at 2726 (transcript citation omitted). MSHA originally cited 

Elro. In April 1980, however, the citation was modified to name Westmoreland as the responsible operator. ·Finally, in January 1981, the citation 

was again modified to charge Old Dominion for the violation. The Department 

of Labor's Occupational Safety and Health Administration ("OSHA") also 

investigated the accident but took no enforcement action. 

4/ In view of the nature of the issue presented, we requested additional 

industry and labor viewpoints to assist us in our deliberations. The Edison 

Electric Institute ("EEI") thereafter participated as an amicus curiae. 

The arguments of EEI, in its brief and at oral argument, have been most 

helpful to us in considering the important issues in this case. 

1888 
Sec. 3. For the purposes of this Act, the term -

* * * 

(d) "operator" means any owner, lessee, or other 

person who operates, controls, or supervises a coal 

or other mine or any independent contractor performing 

services or construction at such mine; 

* * * 

(h)(l) "coal or other mine" means (A) an area of land 

from which minerals are extracted in nonliquid form or, 

if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such 

area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other 

property including impoundments, retention dams, and 

tailings ponds, on the surface or underground, used in, 

or to be used in, or resulting from, the work of extracting 

such minerals from their natural deposits in nonliquid form, 

or if in liquid form, with workers underground, or used in, 

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

of preparing coal or other minerals, and includes custom coal 

preparation facilities. In making a determination of.what 

constitutes mineral milling for purposes of this Act, the 

Secretary shall give due consideration to the convenience of 

administration resulting from the delegation to one Assistant 

Secretary of all authority with respect to the health and 

safety of miners employed at one physical establishment; 

(h)(2). For purposes of titles II, III, and IV, "coal 

mine" means an area of land and all structures, facilities, 

machinery, tools, equipment, shafts, slopes, tunnels, 

excavations, and other property, real or personal, placed 

upon, under, or above the surface of such land by any 

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

the work of extracting in such area bituminous coal, 

lignite, or anthracite from its natural deposits in the 

earth by any means or method, and the work of preparing 

the coal so extracted, and includes custom coal 

preparation facilities; 

* * * 

Sec. 4. Each coal or other mine, the products of which 

enter commerce, or the operations or products of which 

affect commerce, and each operator of such mine, and 

every miner in such mine shall be subject to the 

provisions of this Act. 

1889 
We first address whether the site of the alleged violation, the substation, was -a "coal mine" or part of a "coal mine" as that term is defined 

by the Mine Act. Old Dominion attempts to differentiate portions of the 

geographic tract of land leased by Westmoreland Coal Company into "mine" 

and "non-mine" areas. It asserts that that portion of land at which coal 

is actually extracted from the ground is a "mine," whereas other areas 

somewhat removed in distance from the specific extraction locale, including 

the area of land on which the substation is located, should not be interpreted as being a mine or a part thereof. This narrow view of what constitutes a mine conflicts with the Act's expansive definition set forth 

above. Sections 3(h)(l) and (2)'s broad definition of coal mine undoubtedly 

covers a portion of a geographic tract of land leased to a coal operator on 

which is located an electrical substation providing power for mining operators on that same tract of land. The substation certainly qualifies as an 

"area of land," or a "structure," "facility," "machinery," "equipment," or 

"property" on such land, "used in ••• the work of extracting coal." See 

S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977 at 

602 ("Legis. Hist."). ("[I]t is the Committee's intention that what is 

considered to be a mine and to be regulated under this Act be given the 

broadest possibl[e] interpretation, and it is the intent of the Committee 

that doubts be resolved in favor of inclusion of a facility within the 

coverage of the Act.") See Donovan v. Carolina Stalite Co., 734 F.2d 

1547 (D.C. Cir. 1984), and cases cited therein. We therefore conclude 

that the substation is part of a coal mine and that the Mine Act and its 

standards can be applied to regulate working conditions at that site. 

Because it is not disputed that a violation of the cited MSHA standard 

occurred in the course of work performed by Old Dominion employees, our 

next inquiry is whether Old Dominion was properly cited under the Mine Act 

for this violation. Section 4 of the Mine Act places the responsibility 

for compliance on mine "operators." Therefore, Old Dominion can be cited 

for a violation only if, on the facts of this case, it is an "operator." 

Section 3(d) defines an operator as "any owner, lessee, or other person who 

operates, controls, or supervises a coal or other mine or any independent 

contractor performing services or construction at such mine." We conclude 

that, on the facts of this case, Old Dominion was an independent contractor 

performing services or construction at the mine and, therefore, was properly 

cited for the violation committed by its employees. 

As part of the 1977 amendments to the Federal Coal Mine Health and 

Safety Act of 1969, 30 U.S.C. § 801 .!:..!. ~· (1969) (amended 1977) ("Coal Act"), 

the phrase "any independent contractor performing services or construction 

at such mine" was added to the Coal Act's definition of operator. The 

amendment was intended "to settle an uncertainty that arose under the Coal 

Act,~., whether certain contractors are 'operators' within the meaning 

of the Act," and "to clearly reflect Congress' desire to subject contractors 

to direct enforcement of the Act." Old Ben Coal Co., 1 FMSHRC 1480, 1481, 

1486 (October 1979). Accord, Phillips Uranium Corp., 4 FMSHRC 549, 552 

(April 1982). 

Generally, the term "independent contractor" describes a party who 

"contracts with another to do something ••• but who is not controlled by 

the other nor subject to the other's right to control with respect to 

1890 
his ••• conduct in the performance of the undertaking." Restatement (Second) 

of Agency§ 2 (1958). Insofar as its relationship with Westmoreland Coal 

Company is concerned, we have no difficulty in concluding that Old Dominion 

is an "independent contractor" as that term is commonly used at law. Pursuant 

to contract Old Dominion is granted an easement to construct and maintain 

electric power and transmission lines on and over the mine operator's property. 

Substations on the property and "other points to be later designated" are to 

be provided power by Old Dominion. The mine operator has the contractual 

right "to connect any additional electric power or transmission lines, from 

time to time, with any line or lines of [Old Dominion]." In order to determine the amount of electricity used by the mine operator and the payment 

due, Old Dominion "has the privilege of metering each delivery point," 

and it does so on a monthly basis. In order to perform such metering, Old 

Dominion has access to mine property and its own key to the substation. Thus, 

it is clear that Old Dominion has a contractual obligation with Westmoreland 

and the requisite freedom from control in performing its obligation, and 

was serving as an independent contractor •. 

By its terms, however, the Mine Act is applicable to independent contractors "performing services or construction" at a mine. Old Dominion 

urges that this language limits the reach of the Mine Act to less than all 

"independent contractors," and that it is beyond ·that limit. We next examine 

whether Old Dominion was "performing services or construction" within the 

meaning of section 3(d). "Service" has been defined to include: "the 

performance of work commanded or paid for by another"; "an act done for the 

benefit or at the command of another"; and "useful labor that does not produce a tangible commodity." Webster's Third New International Dictionary 

(Unabridged) 2075 (1971). Pursuant to its contract with the mine operator, 

Old Dominion provided electricity at a suitable voltage and metered its 

consumption for billing. Old Dominion also provided labor to maintain the 

electrical system, including its meters and transformers as well as equipment 

owned by the mine operator, in proper and safe working condition. Old 

Dominion's employees had helped install the transformers at the substation, 

and had installed a replacement meter. 3 FMSHRC at 2424. At the time of 

the events at issue, Old Dominion was at the mine site at the behest of the 

mine operator to check the equipment to determine whether it was functioning 

properly and, if necessary, to replace any defective components. In our 

view, the work performed by Old Dominion constitutes the performance of a 

service and places it within the literal terms of section 3(d). 1/ 

We find it unnecessary to decide in this case whether "there may be a 

point ••• at which an independent contractor's contact with a mine is so 

infrequent or de minimis that it would be difficult to conclude that 

services are being performed." National Industrial Sand Assoc. v. Marshall, 

601 F.2d 689, 701 (3d Cir. 1979). See also Legis • .!!!:.!!•, supra at 602, 

1315. Rather, we conclude that, if there is a point at which the literal 

reach of section 3(d) must be tempered, that point is not reached under 

1f Based on our conclusion that Old Dominion was performing services, 

we need not inquire further as to whether Old Dominion's work also 

qualifies as "construction" under section 3(d). 

1891 
these facts. Here, Old Dominion's employees were at mine property at the 

request of the mine operator. The request for Old Dominion's services was 

made, and responded to, in accordance with a longstanding, and regularly 

maintained, business relationship defined by a written contract entered 

into in 1952 as well as custom and practice. The services or work to be 

rendered by Old Dominion included examination of an electrical facility 

providing power to the mine and the performance of any necessary repairs, 

services essential to the mine's operation. Old Dominion's assistance to 

Westmoreland in installing, maintaining, repairing, and replacing electrical 

equipment had been rendered in the past, was being rendered at the time of 

the events at issue, and was to be anticipated in the future. The extent 

of Old Dominion's contact with the mining process cannot be viewed as 

de minimis. Accordingly, we conclude that in these circumstances, Old 

Dominion is properly subject to MSHA standards regulating safe performance 

of electrical work on mine sites. 

We emphasize that by citing Old Dominion for the violation committed 

by its employees, the Secretary has acted in accordance with the Commission's 

longstanding view that the purpose of the Act is best effectuated by citing 

the party with immediate control over the working conditions and the workers 

involved when an unsafe condition arising from those work activities is 

observed. Old Ben, supra; Phillips Uranium, supra. By citing the operator 

with direct control over the working conditions at issue, effective abatement often can be achieved most expeditiously. Id. Citation of Old Dominion 

is also consistent with the Secretary's conclusion, after rulemaking, that 

"the interest of miner safety and health will best be served by placing 

responsibility for compliance ••• upon each independent contractor." 

45 Fed. Reg. 44494, 44495 (July 1, 1980). 

Old Dominion argues that its work activities, whether on or off a mine 

site, should be regulated pursuant to the Occupational Safety and Health Act 

of 1970, 29 U.S.C. § 651 et seq. (1982)("0SHAct"). The Secretary of Labor 

enforces both the Mine Actand the OSHAct and has considerable administrative 

discretion in determining which of the two statutes should be applied in 

circumstances where either reasonably could be applied. In the present case, 

the Secretary has made the determination that compliance with the standards 

promulgated under the Mine Act is preferable, and this determination is 

entitled to deference. Nor does the Secretary's decision to proceed under 

the Mine Act run counter to the dictates of the OSHAct, which anticipates 

the potential for overlapping agency jurisdiction and eliminates the potential 

conflict by providing that the OSHAct shall not apply to "working conditions 

of employees with respect to which other federal agencies ••• exercise 

statutory authority to prescribe qr enforce standards ••• affecting occupational safety and health." 29 U.S.C. § 653(b)(l). Here, MSHA has statutory 

authority and has exercised that authority under the Mine Act. 

We note that amicus curiae EEI has initiated discussions with the 

Secretary concerning whether regulation by OSHA of the work activities of 

electrical utilities on mine sites, rather than by MSHA, is more appropriate. 

We encourage these discussions. Because of the Secretary's discretion in 

this area, such discussions are a necessary first step in addressing the 

concerns articulated by EEI on behalf of the electrical utilities that it 

represents. We will observe with interest the progress of these discussions. 

1892 
In sum, we conclude that the Secretary's decision in this case to hold 

Old Dominion responsible for the violative act committed by its employees is 

within his statutory authority; is consistent with the purposes and policies 

of the Act, and should not be disturbed. 

We address three other challenges raised by Old Dominion to the legality 

of the Secretary's issuance of the citation. Old Dominion argues that the 

Secretary's definition of "independent contractor" at 30 C.F.R. § 45.2(c) 

has been applied to it in an arbitrary and capricious manner, and that 

proper application would not result in its designation as an independent 

contractor. 6/ We disagree. On its face the regulation simply incorporates 

the definition of "person" in section 3(f) of the Mine Act, 30 U.S.C. 

§ 802(f), with the definition of "operator" in section 3(d). As such, the 

regulation does not differ substantively from the terms of the Act itself, 

and tlie reach of the regulation is coextensive with the Mine Act. 

Old Dominion also argues that the language of a continuing resolution 

on appropriations, enacted on December 15, 1981, sheds light on the 

question of the Mine Act's coverage of its activities. H.J. Res. 370, 

95 Stat. 1183 (1981), provided funding for a portion of fiscal year 1982 

to various federal agencies and departments. In part, the resolution prohibited MSHA from enforcing the Mine Act "with respect to any independent 

construction contractor who is engaged by an operator for the construction, 

repair or alteration of structures, facilities, utilities ••• located on 

(or appurtenant to) the surface areas of any coal or other mine, and whose 

employees work in a specifically demarcated area, separate from actual 

mining or extraction activities." H.J. Res. 370, § 132, 95 Stat. 1199 

(1981). We conclude that this provision has no bearing on the question 

before us. The violation, the Secretary's citation of Old Dominion, the 

hearing below, and the administrative law judge's decision all preceded 

the enactment of the continuing resolution. "Resolution 370 did not 

otherwise vitiate the force of the original authorization. Mine operators subject to the Act remained under the same substantive legal 

obligations, the implementing standards and regulations promulgated under 

the Act remained in force; and the statutory basis for enforcement 

litigation remained in effect." Carolina Stalite Co., 734 F.2d at 1558. 

See also Secretary on behalf of Cooley, 6 FMSHRC 516, 525 n. 3 (March 1984). 

Also, "[w]hatever enforcement powers it took from MSHA were returned to 

the agency when Res. 370 was superseded seven months later by a supplemental appropriations bill. H. R. 6685, § 204, 96 Stat. 180, 192 (1982)." 

Carolina Stalite, 734 F.2d at 1557 n. 15. 

6/ 30 C.F.R. § 45.2(c) provides: 

"Independent contractor" means any person, partnership, 

corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform 

services or construction at a mine. 

1893 
Old Dominion's final challenge to the validity of the citation is that 

the citation must be dismissed because it was not issued to Old Dominion 

with "reasonable promptness" after the occurrence of the violation. As 

previously set forth in note 3, although the violation occurred in 

January 1980, a citation was not issued to Old Dominion until January 

1981. Section 104(a) of the Mine Act requires that "[i)f ••• the 

Secretary ••• believes that an operator ••• has violated this Act, or 

any mandatory ••• 'standard, ••• he shall, with reasonable promptness, 

issue a citation to the operator." 30 U.S.C, § 814(a), Old Dominion 

asserts that the one-year delay before it was cited violates section 

104(a)'s mandate, This argument ignores the effect of the last sentence 

of section 104(a): "The requirement for the issuance of a citation with 

reasonable promptness shall not be a jurisdictional prerequisite to the 

enforcement of any provision of this Act." The Mine Act's legislative 

history explains: 

There may be occasions where a citation will be 

delayed because of the complexity of issues 

raised by the violations, because of a protract [ed] accident investigation, or for other 

legitimate reasons. For this reason, section 

[104(a)] provides that the issuance of a citation 

with reasonable promptness is not a jurisdictional prerequisite to any enforcement action. 

Legis • ..!!!!..!• at 618. The administrative law judge accurately described the 

development of the case law concerning independent contractor liability and 

the course of MSHA's rulemaking activities during the time of the events at 

issue. See 44 Fed. Reg. at 44494. The legal issue posed here concededly is 

novel. MOSt important, however, Old Dominion has not shown that it was 

prejudiced by the delay. Indeed, Old Dominion was aware from the time of 

its employee's fatal accident that an investigation involving its actions 

was being conducted by MSHA, and it has been given a full and fair 

opportunity to participate in all stages of this proceeding. Accordingly, 

we affirm the judge's rejection of Old Dominion's argument that the 

citation must be dismissed because of the delay in its ultimate issuance 

to Old Dominion. 

Old Dominion's final argument is that, even if it was cited properly for 

the vidlation, no penalty for the violation should be assessed because the 

employees' violative actions were beyond its control and could not have 

been foreseen. In particular, Old Dominion argues that the judge's findings 

concerning its negligence are not supported by the record. We reject Old 

Dominion's argument that no penalty should be assessed. "[B]oth the text 

and legislative history of section 110 [of the Mine Act] make clear that the 

Secretary must propose a penalty assessment for each alleged violation and 

that the Commission and its judges must assess some penalty for each violation found." Tazco, Inc., 3 FMSHRC 1895, 1897 (August 1981). We conclude, 

however, that the record does not support the judge's findings concerning 

Old Dominion's negljgence and that a penalty lower than that assessed by the 

judge is appropriate. 

1894 
Section llO(i) of the Mine Act requires that in assessing civil penalties 

the Commission "shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size or 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." 30 U.S.C. § 820(i). 

Only the judge's findings regarding negligence are at issue on review. 

The MSHA inspector who issued the citation found that the violation 

"could not have been known or predicted, or occurred due to circumstances 

beyond the operator's control." The inspector further remarked that "the 

employees were told the substation was energized before they left their 

duty station." Exh. 3 (Inspector's Statement). Yet, the judge proceeded 

to find the operator negligent. This finding was based primarily on two 

conclusions he drew from the evidence: (1) Old Dominion failed to instruct 

the employees properly before they were dispatched to the substation; and 

(2) Old Dominion knew or should have known that the deceased employee "had 

a proclivity for cutting corners •••• [and] disobeying safety regulations." 

3 FMSHRC at 2743. We conclude that these findings are not supported by 

substantial evidence of record. 

The surviving employee, Lambert, testified that Old Dominion's meter 

superintendent, Jack Carr, told him on the morning of January 22 that 

Westmoreland's electrical foreman had informed Carr that he thought a light 

was out in the substation's meter and that a transformer might be bad. 

Lambert also testified that Carr told him that the substation had been 

energized. Old Dominion's general manager testified that Harlow and 

Lambert had been told before going to the substation that it was energized. 

Thus, the record establishes that Harlow and Lambert were told specifically 

that the substation was energized, the meter might not be functioning 

properly, and a transformer might be bad. 

· We have held previously, for purposes of considering the section llO(i) 

penalty criteria, that when a rank-and-file employee's actions violate the Act, 

"the operator's supervision, training and disciplining of its employees must 

be examined to determine if the operator has taken reasonable steps to prevent 

the rank-and-file miner's violative conduct." Southern Ohio Coal Co. 4 FMSHRC 

at 1459, 1463-64 (August 1982) (emphasis in original); A.H. Smith Stone Co., 

5 FMSHRC 13, 15 (January 1983). The Secretary elicited no evidence that Old 

Dominion's supervision, training or disciplining of its employees was inadequate. 

Nor did he attempt to further demonstrate what Old Dominion should have done 

to meet its duty of care. There is, for example, no testimony concerning Old 

Dominion's customary procedures in such a situation or analogous procedures 

in the industry. The MSHA inspector's testimony was restricted to the negligent actions of the employees themselves. Meter superintendent Carr neither 

testified nor was deposed. The only testimony regarding Old Dominion's safety 

procedures was given by Old Dominion's general manager who testified as to the 

comprehensiveness of the company's program, the experience of Harlow and Lambert, 

and the specific safety directive which prohibits Old Dominion employees from 

working on energized, ungrounded high voltage wires. The judge seems to 

have overlooked the evidence of record and simply inferred Old Dominion's 

negligence from the fact of the violation. We hold that this was error 

1895 
and that substantial evidence of record does not support a finding that 

the instructions of management, or lack thereof, contributed directly or 

indirectly to the violation at issue. See Southern Ohio Coal Co., 

4 FMSHRC at 1465; Nacco Mining Co., 3 FMSHRC 848 (March 1981). 

The judge's further finding that Old Dominion should have known Harlow 

had a proclivity for unsafe acts also lacks adequate evidentiary support. The 

judge based his finding upon events which occurred the day of the accident, 

after Harlow had left management's direct supervision. The appropriate 

question is whether management reasonably could have foreseen Harlow's negligent conduct. The record contains no evidence of past unsafe conduct by 

Harlow or of a careless attitude on his part. In fact, the only evidence of 

Harlow's conduct before the fatal accident suggests that Old Dominion had 

reason to believe Harlow was concerned with safety. Old Dominion's general 

manager described Harlow as a "very capable" and "safety conscious" employee, 

who had missed only three safety meetings in the past 10 years. Tr. 66, 

69...;.70. Lambert described him as "one of the most safety conscious men we had." 

Tr. 91. We therefore conclude that substantial evidence does not support the 

judge's finding that Old Dominion knew or should have known that Harlow would 

act in an unsafe manner while engaged in the work which resulted in a fatal 

accident. 

Because, based on the above, we conclude that substantial evidence of 

record does not support the judge's finding that Old Dominion was negligent, 

we must modify the penalty assessed by the judge. Southern Ohio Coal Co., 

4 FMSHRC at 1465. Old Dominion has not contested the judge's findings that 

it is a large operation; that payment of civil penalties under the Act will 

not affect its ability to continue in business; that it has no history of 

prior violations; that a good faith effort to achieve abatement was made; 

and that the gravity of the violation was extremely serious. Given these 

findings and our conclusion that negligence was not established, we find 

that a penalty of $1,000 is appropriate and consistent with the Act. 

Accordingly, we affirm the judge's conclusion that, on the facts of this 

case, Old Dominion is an independent contractor and an ·operator within the 

meaning of section 3(d) of the Mine Act, and was properly cited for the violation of 30 C.F.R. § 77.704. We vacate the judge's finding of negligence and 

his assessment of a $3,000 penalty, and ess a civil penal y of $1,000. 

1896 
Commissioner Lawson concurring and dissenting: 

The Commission is in agreement that Old Dominion is an independent 

contractor and an operator within the meaning of the Act. There is also 

no dispute that Old Dominion violated the Act and that such violation 

resulted in the death of miner James Harlow. However, as in Southern 

Ohio Coal Co., 4 FMSHRC 1459 (August 1982) and U.S. Steel Corp., 6 FMSHRC 

1423 (June 1984), I dissent from my colleagues' reduction of the penalty 

imposed. Here, as there, the majority finds, without explanation, 

" ••• that a penalty lower than that assessed by the judge is appropriate." 

Going beyond even the generous dispensations granted the violative 

operator in those cases, they have reduced by two-thirds the exceedingly 

moderate penalty set by the judge below. And, once more, the majority 

has failed to provide a reasoned analysis to support reducing the penalty 

to $1000 for the miner killed as a consequence of this violation • 

• Old Dominion's employee was electrocuted because he concluded 

erroneously that the substation was not energized. He reached this 

conclusion because he looked for but did not see the barrel fuse disconnect that was customarily used when energizing substations. His 

fellow miner, William Lambert, also looked and failed to observe the 

anticipated disconnect. Because of this, they were unaware that the 

substation was energized, since Westmoreland's electrical foreman had 

installed a dif f·erent type fuse link when he energized the substation 

the day before this fatality took place. It is undisputed that Harlow 

and Lambert were told at the time they were given their work assignment 

that the Substation was energized. It is also undisputed that Old 

Dominion had never energized a substation without the use of a barrel fuse. 

However, Old Dominion did not energize this substation, Westmoreland did. '!:! 

The testimony of Old Dominion's General Manager, H. E. Armsey, is 

revealing: 

Q. Would you explain what the investigation revealed 

that Mr. Harlow thought or saw when he looked at these? 

A. Yes, sir. In our operation there is a barrel that 

would fit between these two termination points that would 

include a fuse link. And if there is no connection between 

the upper terminal and the lower terminal, then it is thought 

that the facility is de-energized and that there is an air 

gap there. But during the investigation it would [sic] 

found that there was a physical connection through the 

utilization of a fuse link rather than the fuse barrel. 

* * * 

1/ These miners' confusion was understandably enhanced because the 

transformer at the substation was the first of its type th~t Old Dominion 

had purchased and installed. 

1897 
Q. And inside that would be a fuse, or a conductor 

which contains little fuses down here? 

A. Yes, sir. 

Q. And they would be enclosed inside a barrel, like 

that. 

A. That is correct. 

Q. And these barrels were all gone? There were none 

there? There were just none there? 

A. That is correct. 

Q. But your investigation determined that just the 

little wire which.normally is inside it had been wired 

across? 

A. That is correct. 

Q. So when Mr. Harlow looked up there, he didn't see 

this •••• the barrel because it wasn't there and he didn't 

see this but it was there? 

A. That is correct. 

Tr. at 53-4 

Q. So the best that you can determine is, the cause of 

Mr. Harlow's death is because he thought there was no energy 

because this is missing? 

A. He was looking for a big barrel and he didn't see it and 

didn't recognize the fact that there was a jumper across what 

ordinarily would be a path used here. And he said that the 

substation was de-energized, even though he had been told 

before they left the storeroom that the substation was 

energized. 

Tr. at 61-2 (emphasis added). 

The corporate negligence of Old Dominion is thus directly established 

in this case because of its failure to ascertain the type of installation 

at the assigned worksite before its employees were dispatched to "check 

our equipment" (Tr. 82). This failure to instruct Harlow and Lambert as 

to the equipment and conditions they would encounter resulted in the 

death of miner Harlow, as the judge below found. As noted in my dissenting opinion in Southern Ohio Coal Co., "[w]hile one can perhaps conceive 

of a case in which the only negligence could be that of the rank and 

file miner, this is not that case." 4 FMSHRC at 1471 (emphasis in 

original). 

Old Dominion argues that the violative conduct of its employees was 

unforeseeable and beyond its control. To the contrary, Old Dominion 

failed to determine the type of fuse connection used by Westmoreland at 

this mine site. Harlow and Lambert thus looked for and did not see the 

barrel disconnect that Old Dominion had--without exception--installed in 

all of its other substations, one with which they were familiar. It was 

therefore certainly foreseeable that they would, as both did, assume that 

this station was not energized. To find Old Dominion free of any negligence 

1898 
in this instance is thus to reward the same self~induced ignorance and 

see-no-evil. approach to safety recently disavowed by the majority in 

Roy Glenn, Agent of Climax Molybdenum Co., FMSHR9. Docket No. WEST 80-

158-M (July 17, 1984). As in that case, where my colleagues did not 

dispute my enunciat.ion of management's statutoryotduty to maintain safe 

and healthful working conditions, the exercise of, forethought is required 

from those in positions of supervisory responsibility. This operator 

failed to meet that responsibility, which does ne.t terminate merely because 

the employee is out of sight. · Having failed tQ:iascertain before these 

miners were dispatched to this substation to wor.ki on a 12,000 volt system 

whether the fuse connection installed by Westmor:eland was of the standard 

configuration with which its employees were famiJ.iar, Old Dominion 

cannot now be permitted to escape the consequence of its negligent 

inaction. The combination of supervisory and non-supervisory negligence 

in this case proved disastrous. i<; 

My colleagues reject the bases for the judge's finding of negligence, 

the only challenged aspect of the judge's analyses of the statutory 

penalty assessment criteria set forth in sectionrllO(i) of the Act. 

They then substantially reduce the penalty imposed. 2/ However, the 

decision below does not suggest, much less state~ that any dollar, 

percentage, or other numerical value is assignedeto the "negligence" 

criteria. The judge's conclusion that the violation was extremely 

serious, a gravity determination that is not dis~uted, would itself 

support the judge's penalty assessment. Nevertheless, the majority does 

not independently evaluate Old Dominion's negligence on the basis of 

record evidence or cure what it views as deficieQcies in the judge's 

opinion by itself assigning numerical or other objective indicia to the 

penalty assessment factors. Rather, my colleagues' opinion is entirely 

silent as to the dollar amounts to be assigned to; five of the section 

llO(i) criteria, although it does not dispute the gravity of the violation--

obviously maximum in view of the death of miner Harlow. No future guidance 

is therefore furnished to mine operators or the Secretary. Conclusorily 

glossing over the two-thirds penalty reduction falls far short of being 

statutorily satisfactory or in accord with the Act. 

The Act es.tablishes a standard of strict liability for violations . 

thereof, i.e., rtO fault or. negligence is required to establish a violation. 

Here, however, it is unquestionable that there was a violation of the Act, 

and both supervisory as well as non-supervisory miner negligence. It is 

a truism that a corporation can only act through:_.its employees, and nowhere 

in the Act, the legislative history, or our preeedents is there any suggestion that operator negligence is to be disregard~d if attributable in part 

to a non-supervisory miner. To artificially allocate penalty dollars 

between an operator and its employee miners provi-des a ready avenue for 

an operator to escape penalties and their intended deterrent effect. The 

operator which structures its operation to avoid~supervisory responsibility 

will now be rewarded. Neither the resulting redaced penalty nor this denied 

supervision is in accord.with the intent of the Act and with the mandatory 

penalty assessment processes required by the Act~ 

2/ The majority in this case goes out of its way to reduce the penalty set 

by the judge below, notwithstanding the fact that the operator's petition 

for review presented only the contention that no penalty should have been ·· -

assessed, a contention clearly without merit under this Act. Section llO(a). 

Indeed, counsel for Old Dominion on oral argument made no mention of the 

penalty imposed. 

1899 
Providing a means for the avoidance or drastic reduction of penalties 

undercuts compliance by weakening the strict liability and stringent penalty 

scheme established by the Mine Act. The majority's importing of a tort 

standard of liability into the penalty sections of the Act, with all its 

concomitant complexities, is to graft on to our statute concepts never 

envisioned by its drafters. Although my conclusion regarding Old Dominion's 

negligence in this matter is based on considerations somewhat different 

than those utilized by the judge, the result is the same. For the 

reasons set forth· above, and as the judge below found, the majority's 

assertion that substantial evidence does not support a finding that the 

directions of management, or lack thereof, contributed to the violation 

at issue, is thus in error. 11 

The penalty assessed by the judge, based in major part on the high 

gravity of the violation, is in accord with the congressional intent 

expressed in the Mine Act's legislative history. Legis. Hist. at 603, 

628-30. As the Senate Committee Report notes: 

In short, the purpose of a civil penalty is to induce 

those officials responsible for the operation of a mine 

to comply with the Act and its standards. 

* * * 

In overseeing the enforcement of the Coal Act the 

Committee has found that civil penalty assessments 

are generally too low, and when combined with the 

difficulties being encountered in collection of 

assessed penalties ••• the effect of the current 

enforcement is to eliminate to a considerable extent 

the inducement to comply with the Act or the standards, 

which was the intention of the civil penalty system. 

S. Rep. No. 95-181, Legis. Hist. at 629 (emphasis added). 

3/ Overturning substantial evidence has been unsuccessfully attempted by 

this Commission before, to its subsequent embarrassment. As the Court of 

Appeals for the District of Columbia Circuit stated: 

[T]he Commission is statutorily bound to uphold an ALJ's 

factual determinations that are supported by substantial 

evidence. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86, 90 (D.C. Cir. 1984), see 

Nacco Mining Co., 3 FMSHRC 848 (April 1981). 

1900 
The Commission has stated, 

The determination of the amount of the penalty that 

should be assessed for a particular violation is an 

exercise of discretion by the trier of fact. Cf. Long 

Manufacturing Co. v. OSHRC, supra, 554 F.2d [903] at 

908 [8th Cir. 1977]. This discretion is bounded by 

proper consideration of the statutory criteria and the 

deterrent purpose underlying the Act's. penalty assessment scheme. 

Sellersburg Stone Co., 5 FMSHRC 287, 294 (March 1983), aff'd, 736 F.2d 

1147 (7th Cir. 1984). As in Sellersburg, 

Although the penalties assessed by the judge far exceed 

those proposed by the Secretary before hearing, based on 

the facts developed in the adjudicative record [I] cannot 

say that the penalties assessed are inconsistent with the 

statutory criteria and the deterrent purpose behind the 

Act's provision for penalties. Hence, [I] find that the 

judge's penalty assessments do not constitute an abuse of 

discretion. 

Id. at 295, quoted in part, 736 F.2d at 1153. 

I therefore dissent to the reduction of the penalties imposed. 

A. E. Lawson, Commissioner 

1901 
Collyer, Chairman, dissenting: 

My colleagues and I agree that the fatal accident which led 

to this litigation occurred at the site of a mine. Therefore, 

regulations of the Mine Safety and Health Administration of the 

Department of Labor properly cover all activities at the Elro 

substation. While amicus curiae Edison Electric Institute has 

raised very serious questions about application of MSHA standards to high voltage power lines, such questions must be resolved in the first instance between the industry and the Department. 

However, my colleagues also decide today that a power company's metering of electrical usage by a mine is sufficient to 

turn the power company itself into an operator under the Mine 

Act. By the adoption of this decision, the majority implicitly 

holds that every vendor who approaches mine property is a mine 

operator subject to all of the requirements of the Act. This, I 

am sure, will be news to all public utilities, to other mine 

vendors - and to the Congress of the United States. I dissent. 

My colleagues have glossed over the facts of Old Dominion's 

relationship with Westmoreland because those facts hamper the 

ease with which they reach their result. However, on the facts 

contained in this record, I conclude that Old Dominion acted as 

a vendor of electricity, not a provider of services at the Elro 

substation. The contrary decision of the majority is reached on 

the basis of conjecture and a stretching of the record testimony 

with which I cannot agree. 

The facts are undisputed. Westmoreland Coal Company leased 

part of its land holdings to Elro Coal Company to mine coal at a 

new mine. The mined coal was to be sold by Elro to Westmoreland. 

In preparation for the new mine, Elro contracted with the Vanderpool 

Electric Corporation to build transmission lines from Old Dominion's 

high power lines to Westmoreland property where a substation 

could be built. Old Dominion had nothing to do with building 

the transmission lines to the substation. Westmoreland then 

built the Elro substation to reduce the incoming power to the 

proper voltage for use in the mine. The reduction in power was 

accomplished by large transformers. Old Dominion had nothing to 

do with the ownership or construction of the substation. In 

December 1979, when the substation was completed, Old Dominion 

installed metering equipment - and only metering equipment - at 

the substation for its billing purposes, so that it could measure the amount of electricity used by Westmoreland and Elro. 

The metering equipment required five smaller transformers to 

1902 
reduce the power to a measurable.level.· Thereafter, Old Dominion would only visit the substation to read the meter on a 

monthly basis. The substation had been energized for one day at 

the time of the accident, which occurred when Old Dominion employees came to the site to check the operation of the meter. 

On these bare facts, the majority erroneously concludes that 

Old Dominion was providing the requisite services under Section 

3(d) of the.Mine Act to transform the public utility into a mine 

operator. 

I cannot agree that Old Dominion was "providing services" 

for Westmoreland or Elro at this substation. The power company 

metered electricity usage for its own billing purposes, not for 

any purposes of the production operators. All the ownership, 

construction, maintenance, operation and repair of the substation were solely under Westmoreland's control. Old Dominion 

installed its meter not to "provide services" to the mine, but 

solely in order to measure the quantity of electricity that it, 

as a vendor, sold to the mine. 

The majority opinion skips over these crucial distinctions 

by concluding: 

The services or work to be rendered by Old Dominion included 

examination of an electrical facility providing power to the 

mine and the performance of any necessary repairs, services 

essential to the mine's operation. Old Dominion's assistance to Westmoreland in installing, maintaining, repairing, 

and replacing electrical equipment had been rendered in the 

past, was being rendered at the time of the events at issue, 

and could be anticipated in the future. 

Dec. at 7. The totality of evidence relating to the "examination" of this substation by Old Dominion does not support the 

majority's conclusion and, in fact, underscores that Old Dominion's sole interest at the substation was in its own metering 

~quipment. 

Q. Would [a meter reader on the monthly visit] perform any 

inspection or services over the other five articles? 

A. Only visual and only by probably a meter reader that is 

not a meter man. He might check the general appearance of the 

equipment to see if there was anything that he saw that was out 

of line or might need attention. 

Tr. 36 (emphasis in original). My colleagues turn this limited 

testimony about a visual inspection of "five articles" into a 

service performed for Westmoreland. This is not an accurate 

reading of the record. As prior testimony makes clear, the 

1903 
"five articles" referred to in the question were the small transformers installed by Old Dominion so that electricity could pass 

through the meter without damage to the meter. Any "examination" that would occur would be only a visual check of Old 

Dominion's own equipment, used exclusively to meter the mine's 

use of electricity. Such an "examination" would not provide any 

service to the mine operator, but only to the vendor. 

Uncontradicted testimony consistently limited the power 

company's role at the Elro substation to its metering equipment. 

Old Dominion General Manager H. E. Armsey testified that Old 

Dominion would not be involved in repair and restoration of 

power at the substation after an industrial accident or weather 

damage unless there were a problem involving the metering equipment. If the Elro mine lost power, Elro would call Westmoreland 

because Westmoreland has the inhouse expertise. While Armsey 

agreed that if Westmoreland had questions itself, it would be 

"logical" for it to call Old Dominion, that was because "if the 

meter doesn't ·run, we don't sell electricity." Tr. 38. I cannot agree with the apparent conclusion of my colleagues that an 

unspecified occasion of major difficulty with the substation at 

some time in the future, which may lead Westmoreland to seek 

advice from Old Dominion, and which advice the power company may 

provide in order to continue to sell electricity, is sufficient 

provision of services to turn Old Dominion into a mine operator. 

The limited involvement of Old Dominion with the Elro 

substation was clearly explained in uncontradicted testimony by 

General Manager Armsey: 

Q. And at this substation what facilities or what properties did Old Dominion have there? 

A. Our only facilities were the metering equipment which 

measures the energy that would be used at this location. 

* * * 

Q. Who has the responsibility to maintain this substation 

and the transmission lines in and lines out? 

A. Someone other than Old Dominion Power Company. We 

weren't involved with the transmission line and substation. 

Tr. 27. This degree of presence by Old Dominion at the substation would be less than that of a service representative from 

Xerox Corporation, who would install, maintain, repair and replace defective dry copier equipment in the mine office used for 

1904 .... , .•• ;, • .-..... rli?...:". 
mine plans, shift assignments and the like. By its decision, 

and the expansive terms it adopts, the majority has declared 

that Xerox is also a mine operator. I cannot believe that Congress intended this result. 

To the contrary, Congress clearly excepted vendors such as 

Old Dominion from the reach of the definition of "operator." As 

even the Secretary of Labor recognized throughout most of the 

tortuous history of his independent contractor regulations, 

Congress intended that the only mine contractors who could be · 

held liable as operators were those having some continuing 

presence at a mine site. In the Supplementary Information 

accompanying MSHA 1s initial independent contractor proposed 

rule, the Secretary specifically noted that: 

Congress' intention that the Act be enforced against independent contractors that have a continuing presence at a 

mine is explicitly stated in the legislative history. The 

Conference Report provides that inclusion of independent 

contractors in the definition of operator was intended to 

permit enforcement of the Act against independent contractors "who may have a continuing presence at the mine." S. 

Rep. No. 9S-461, 95th Cong., 1st Sess. 37 (1977). 

44 Fed. Reg. 47746, 47748 (Aug. 14, 1978) (emphasis added). As 

the Secretary additionally recognized, limiting the statutory 

term "operator" to those independent contractors who have a 

significant degree of involvement in mine operations is also 

c.onsistent with judicial constructions of the Mine Act. For 

example, the Third Circuit has pointed out: 

The reference made in the statute only to independent contractors who "perform services or construction" may be understood as indicating, however, that not all independ 

ent contractors are to be considered operators. There may 

be a point, at least, at which an independent contractor's 

contact with a mine is so infrequent or de minimis that it 

would be difficult to conclude that services were being 

performed. Such a reading of the statute is given color by 

the fact that other persons deemed operators must "operate [], control[], or supervise[]" a mine. Designation of 

such other persons as operators thus requires substantial 

participation in the running of the mine; the statutory text 

may be taken to suggest that a similar degree of involvement 

in mining activities is required of independent contractors 

before they are designated operators. 

National Industrial Sand Association v. Marshall, 601 F.2d 689, 

701 (1977) (emphasis added). See also, Association of Bituminous Contractors, Inc. v. Andrus, 581 F.2d 853, 861-862 (D.C. 

Cir. 1978); Bituminous Coal Operators Association v. Secretary 

of the Interior, 547 F.2d 240, 246-247 (4th Cir. 1977). 

1905 
In his final rule, however, the Secretary appears to have 

abandoned the requirement that an independent contractor have a 

continuing presence at a mine in order to be considered an operator. In the preamble to the final rule, the Secretary stated 

that "as a general rule, MSHA will issue citations ... to 

independent contractors for violations . . . committed by them 

and their employees." 45 Fed. Reg. 44494 (July 1, 1980). In 

support of this broad statement, the Secretary said that "MSHA 

has concluded that a regulation that would distinguish some contractors from others in formulating a comprehensive enforcement 

scheme could, at this time, be overly complex, imprecise and 

lead to arbitrary decisions .... " 45 Fed. Reg. at 44495. To 

the extent that the final rule is not reconciled by the Department of Labor and this Commission with the express Congressional 

intention that only those contractors with a "continuing presence" at a mine site be considered operators, it reflects an 

erroneous and over-reaching reading of the Act. 

Whatever the merit to the Secretary's decision that it would 

be less complex and, thus, more administratively convenient to 

consider all independent contractors as operators, that convenience cannot legally override Congress' express distinction 

between those contractors who can be cited as operators ( contractors "providing services or construction" with a "continuing 

presence") and those who cannot (all others). 

By its definition of services ("an act done for the benefit 

or at the command of another"), the majority includes the apocryphal Coca Cola man coming onto mine property to refill the 

Coke machine in the office. While I was once confident that the 

majority would, if asked directly, agree that the Coca Cola 

Company and the Xerox Corporation are merely vendors, not mine 

operators, the majority decision fails to provide any basis for 

such a distinction and; in fact, negates the Congressional directive. In order to include this power company within the 

statutory definition, the majority has had to stretch the definition so far that it will now encompass every vendor approaching mine property. 

I would hold that the Secretary erroneously cited a nonoperator and would vacate the citation and penalty. I dissent 

from the majority's failure to do so. 

R0SEMARYM:COLLYER,CHARMAN 

1906 
Distribution 

Stephen C. Yohay, Esq. 

Barbara L. Neilson, Esq. 

McGuiness & Williams 

1015 .15th St., N.W. 

Washington, D.C. 20005 

Anna Wolgast, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

William D. Lambert, Esq. 

Ogden, Robertson & Marshall 

1200 One Riverfront Plaza 

Louisville, Kentucky 40202 

.l.907 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 30, 1984 

Docket Nos. LAKE 82-35-M 

LAKE 82-6-RM 

UNITED STATES STEEL CORPORATION 

DECISION 

This consolidated proceeding arising under the Federal Mine Safety 

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

interpretation and application of 30 C.F.R. § 55.15-5, a mandatory 

personal protection standard. !/ The Commission's administrative law 

Judge concluded that U.S. Steel Corporation ("U.S. Steel") violated the 

standard and assessed a civil penalty. 4 FMSHRC 1104 (June 1982)(ALJ). 

For the reasons that follow, we affirm the judge in part and reverse and 

remand in part. 

The events at issue in this proceeding occurred at U.S. Steel's 

Minntac Mine iron ore preparation plant in Mountain Iron, Minnesota. At 

this plant U.S. Steel produces taconite pellets, a high grade iron ore 

concentrate used in making steel. After iron ore concentrate is formed 

into marble-sized taconite pellets during the agglomeration phase of the 

preparation process, the pellets are discharged into a cooler. A cooler 

is a large doughnut-shaped installation, about 56 feet in diameter, 

where the hot taconite pellets are cooled on a circular conveyor consisting of a series of metal grates, called pallets. Each pallet is 

about 8 feet long and widens from about 5 feet at its inner end near the 

center of the cooler to just under 7 feet at its outer end. 

When the cooling ~ycle is almost complete a pallet pivots open to 

an upright position and tips the cooled pellets into a storage bin 18 

feet below the pallet. There is only one opening to the storage bin, so 

each pallet pivots open in turn when it is in position over the opening. 

When a pallet is in the open position it creates two openings on either 

side.of its axis, one of which is large enough for a person to fall 

through. There is an entrance into the cooler located about 4 to 4-1/2 

feet above the pallet conveyor.floor in the vicinity of the opening to 

the storage bin. 

!/ 30 C.F.R. § 55.15-5 provides: 

Mandatory. Safety belts and lines shall be worn when men work 

where there is a danger of falling; a second person shall tend the 

lifeline when bins, tanks, or other dangerous areas are entered. 

1908 
On September 10, 1981, during a regular inspection of the preparation plant, an inspector of the Department of Labor's Mine Safety and 

Health Administration ("MSHA") observed a maintenance foreman, who was 

not wearing a safety line, climbing out of a cooler after performing a 

repair. While exiting, the foreman was in the immediate vicinity of the 

opening to the storage bin. The cooler was not operating at the time. 

During the repair work, a pallet was in the upright position over the 

storage bin. Plywood panels had been placed over the openings created 

by the raised pallet. Before climbing out of the cooler, the forE;!man 

handed up the plywood panels. 

After investigating the situation, the inspector concluded that 

there was a danger of falling 18 feet to the storage bin through the 

large opening created by the raised pallet, and that the foreman's 

failure to wear a safety line was in violation of 30 C.F.R. § 55.15-5. 

The inspector also found that the violation was significant and substantial and caused by the operator's "unwarrantable failure" to comply 

with the standard, and he cited the violation in a withdrawal order 

issued pursuant to section 104(d)(2) of the Mine Act. 30 u.s.c. 

§ 814(d)(2). 2/ 

J: . ./ Section 104(d) of the Mine Act provides: 

(1) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and if 

he also finds that, while the conditions created by such violation 

do not cause imminent danger, such violation is of such nature as 

could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard, and if he 

finds such violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation given to 

the operator under this ·Act. If, during the same inspection or any 

subsequent inspection of such mine within 90 days after the issuance 

of such citation, an authorized representative of the Secretary 

finds another violation of any mandatory health or safety standard 

and finds such violation to be also caused by an unwarrantable 

~ailure of such operator to so comply, he shall forthwith issue an 

order requiring the operator to cause all persons in the area 

affected by such violation ••• to be withdrawn from, and to be 

prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been 

abated. 

(2) If a withdrawal order with respect to any area in a coal 

or other mine has been issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized representative 

of the Secretary who finds upon any subsequent inspection the \ 

existence in such mine of violations similar to those that resulted 

in the issuance of the withdrawal order under paragraph (1) until 

such time as an inspection of such mine discloses no similar violations. 

Following an inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall again be applicable 

to that mine. 

30 u.s.c. § 814(d)(l) & (2). 

1909 
U.S. Steel filed a notice of contest of the order, and the Secretary 

of Labor filed a petition for the assessment of a civil penalty. At the 

consolidated hearing before the Connnission's administrative law judge, 

U.S. Steel argued that the standard was too vague to be enforced. In 

his decision the judge disagreed. ·He concluded that the standard's 

phrase, "danger of falling," did not extend to de minimis situations, 

i.e., possible falls of only a few inches or feet, and was sufficient to 

apprise "reasonably prudent operators" when safety belts are to be worn. 

4 FMSHRC at 1109.· Finding that an "ordinary working person" would have 

recognized a danger of falling through the large opening created by the 

raised pallet in the cooler, the judge concluded that, on the facts 

present in the case, the foreman's exit from the cooler amounted to a 

violation of section 55.15-5. 4 FMSHRC at 1109-10. 

The judge also concluded that the inspector had issued a valid 

withdrawal order under section ·104(d)(2) of the Mine Act. The judge 

held that to sustain a section 104(d)(2) withdrawal order, the Secretary 

of Labor has the burden of proving the absence of an intervening clean 

inspection of the entire mine and that the violation was caused by an 

unwarrantable failure to comply with a mandatory standard. The judge 

relied on CF&I Steel Corporation, 2 FMSHRC 3459 (December 1980), in 

which we approved an identical allocation of evidentiary burdens under 

the analogous provisions of the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801 et~· (1976)(amended 1977). Although acknowledging that the evidence was "skimpy" and "possibly conflicting," the 

judge held that the Secretary had made out a prima facie case establishing the absence of an intervening clean inspection. 4 FMSHRC at 

1107-09. 

Finally, relying on the definition of unwarrantable failure 

announced under the 1969 Coal Act by the Department of the Interior's 

Board of Mine Operations Appeals in Zeigler Coal Company, 7 IBMA 280 

(1977), the judge held that the violation was unwarrantable because it 

was connnitted by a foreman, a representative of management, who "should 

have known of the hazard and should have taken steps to avoid it." 4 

FMSHRC at 1110. 

We turn first to U.S. Steel's challenge that the standard is too 

vague.to be enforced. The standard's requirement that safety belts and 

lines shall be worn by miners where there is a danger of falling is the 

kind of regulatory mandate "made simple and brief in order to be broadly 

adaptable to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 

2497 (November 1981). We have held previously that application of such 

a broad standard to particular factual contexts does not offend due 

process if the operator's allegedly violative conduct is judged with y 

reference to the objective test of what actions would have been taken 

under the same circumstances by a reasonably prudent person familiar 

with the mining industry, relevant facts, and protective purpose of the 

standard. U.S. Steel Corp., 5 FMSHRC 3, 5 (January 1983); Alabama 

By-Products, 4 FMSHRC 2128, 2129 (December' 1982). Subsequent to the 

granting of review in this case, we applied this construction to the 

1910 
identical personal protection standard dealing with safety lines contained at 30 C.F.R. § 57.15-5. Great Western Electric Company, 5 FMSHRC 

840, 841-42 (May 1983). U.S. Steel has presented no arguments that 

would lead us to reconsider that holding. The judge's application of 

the standard in this case, while differing in some minor respects from 

the Great Western formulation, was sufficiently similar to our approach 

in that case to pass muster on review. We therefore reject U.S. Steel's 

vagueness challenge. 

U.S. Steel's petition for discretionary review frames the issue 

with respect to the judge's conclusion of a violation only in terms of a 

generalized vagueness challenge. Nevertheless, the operator's brief 

contains some discussion that can be read as a challenge to the judge's 

specific findings that U.S. Steel violated the standard. ·We must 

emphasize the procedural bar against a party attempting in its brief to 

enlarge upon the issues raised in its petition for discretionary review. 

See 30 U.S.C. § 823(d)(2)(A)(iii)&(B); Commission Procedural Rules 70(f) 

& 71, 29 C.F.R. §§ 2700.70(f) & 71. We wish to make clear, however, 

that the judge's findings are supported by substantial evidence. 

There was no dispute that the foreman, when climbing out of the 

cooler, did not wear a safety belt. The judge evaluated the foreman's 

testimony describing his exit from the cooler, and concluded that a 

danger of falling should have been recognized under the circumstances. 

4 FMSHRC at 1109-10. The exit from the cooler was at least four feet 

above the pallet conveyor floor. The foreman testified that he pulled 

himself out by grabbing a gate bar located at the exit while bracing his 

knee against the cooler wall for balance. As noted above, the foreman 

had already handed up the plywood panels used to cover the openings over 

the storage bin and his exit was performed in the immediate vicinity of 

the openings. An 18-foot drop would have occurred if the foreman had 

fallen through the large opening over the storage bin. We conclude that 

substantial evidence, evaluated in the light of our Great Western Electric 

test, supports the judge's conclusion that U.S. Steel.violated the 

standard. 

We next examine the judge's findings concerning the validity of the 

section 104(d)(2) withdrawal order. The plain language of section 

104(d)(2) of the Mine Act (n. 2 supra) establishes three general prerequisites for the issuance of an initial section 104(d)(2) withdrawal 

order: (1) a valid underlying section 104(d)(l) withdrawal order; (2) a 

violation of a mandatory safety or health standard "similar to [the 

violation] that resulted in the issuance of the withdrawal order under 

[section 104(d)(l)];" and (3) the absence of an intervening "inspection 

of such mine disclos[ing] no similar violations." 

1911 
Our resolution of the issue raised in this case turns on the third 

element -- the intervening clean inspection. Recently, we reaffirmed 

the rationale of CF&I, supra, and extended the prior consistent interpretation of "clean inspection" under the 1969 Coal Act to the 1977 Mine 

Act. Kitt Energy Corp., 6 FMSHRC 1596, 1598-1601 (July 1984), petition 

for review filed sub nom. United Mine Workers of America v. FMSHRC, No. 

84-1428 (D.C. Cir. August 17, 1984). We held in Kitt Energy that to 

establish the validity of a section 104(d)(2) withdrawal order under the 

1977 Mine Act, the Secretary of Labor must prove the absence of an 

intervening clean inspection of the entire mine. We further held that 

such an intervening clean inspection is not limited solely to a complete 

regularly scheduled inspection, but may be composed of a combination of 

inspections, so long as taken together they constitute an inspection of 

the mine in its entirety. Thus, the judge appropriately relied on CF&I 

in addressing the clean inspection issue raised here. We conclude, 

however, that substantial evidence does not support the judge's factual 

finding that the Secretary established the absence of an intervening 

clean inspection. The entire testimony on the issue is limited and we 

quote it in full. 

Initially, on direct examination the inspector testified: 

Q. [By counsel for the Secretary] Now, when you 

decided to issue your particular 104(d)[(2)] 

••• order, were you aware that there was a 

prior 104(d)(l) order in effect at the Minntac 

plant? 

A. Yes, I issued it. 

Q. You said you were the inspector who issued 

the prior 104(d)(l) order? 

A. I was. 

Q. Could you tell us what standard was cited in 

the prior 104(d)(l) order? 

A. That was also a 15-5 safety belt standard. 

Q. Now, when you decided to issue the--the 

104(d)(2) order, did you know whether there 

was a prior intervening clean inspection that 

had taken place since your issuance of the 

104(d)(l) order? 

A. There was not no clean inspection, no. 

1912 
Q. And how do you know that? 

A. Cuz I was the inspector. I issued the last 

one. 

Tr. 27-28 (emphasis added). 

In response to questions on cross-examination, the.inspector also 

testified: 

Q. [By counsel for U.S. Steel] Okay. Now 

did you inspect Minntac operations 

between March 3rd, 1981 -- March 31, 1981 

and September 10th, 1981? 

A. Oh, sure. 

Q. Were you there everyday? 

A. No, not every day. 

Q. Were you there regularly? 

A. Just about. 

Q. And did you cover the entire facility? 

A. Um, I have covered the entire facility, yes. 

Q. The entire Minntac plant? 

A. The entire I.D. No. 820, yes. [I.D. No. 820 

refers to the Minntac plant.] 

Q. So between March 3rd, 1981 -- March 31, 1981, 

and September 10, 1981, you had been entirely 

through the Minntac Plant? 

A. Are you talking about a complete thorough 

inspection? 

Q. I'm asking you if you went to every area in the 

Minntac Plant between March 31st, 1981, and 

September 10th, 1981. 

A. This was a different inspection on -- in March. 

That one was completed. 

Q. Between 

A. Then we started another inspection. 

1913 
Q. But between March 31st, 1981, and September 10th, 

. 1981, you had gone through the entire Minntac plant? 

A. Well, that's possible I went through there. 

Tr. 53-54 (emphasis added). 

As noted, these exchanges represent the entire testimony.concerning 

intervening. clean. inspection. The judge quoted these exchanges and 

acknowledged the "skimpy" and "possibly conflicting" nature of the 

testimony. The judge provided no analysis of this evidence and concluded, "[B]ased on the above testimony, ••• MSHA established prima facie 

that there was not an intervening clean inspection between the section 

[104](d)(l) and (d)(2) orders. U.S. Steel did not offer any evidence to 

rebut the prima.facie showing." 4 FMSHRC at 1109. We respectfully 

disagree. 

During direct examination, the inspector appeared to give clear 

testimony that "There was not no clean inspection, no." Tr. 28. Presumably, however, the inspector's view of.what constitutes a clean 

inspection agrees with that argued by the Secretary: that only a 

regular quarterly inspection without similar violations lifts the section 

104(d) chain. Our presumption is strengthened by the inspector's 

testimony on cross-examination, when he tried to distinguish regular 

inspections he had conducted between March 31 and September 10, 1981. 

As noted above, we have held that any combination of regular or other 

inspections that covers the entire mine can constitute an intervening 

clean inspection. The inspector testified that he was at the Minntac 

Mine regularly and that between March 31 and September 10, 1981, "I have 

covered the entire facility, yes. The entire I.D. No. 820, yes." 

Tr. 53-54. The inspector's final word on the subject only compounded 

the confusion between his initial testimony and his later testimony: 

"Well, that's possible I went through there." Tr. 54. 

Precisely the same kind of concession of a "possible" intervening 

clean inspection composed of a series of spot inspections covering the 

entire mine led the Commission in CF&I to conclude that a prima facie 

case of the absence of an intervening clean inspection had not been 

established. 2 FMSHRC at 3460-61. We also are mindful that the judge 

himself characterized the inspector's testimony in this proceeding as 

"skimpy" and "possibly conflicting." Our responsibility on review is to 

examine the entire record, and the totality of the inspector's testimony 

on direct examination and cross-examination is entirely too vague and 

uncertain to establish a prima facie case of the absence of an intervening clean inspection. We cannot treat this contradictory evidence as 

affording substantial evidentiary support to the judge's finding that 

there was an absence of an intervening clean inspection. Accordingly, 

because a prerequisite to issuance of a valid section 104(d)(2) withdrawal order is lacking, we vacate the order. 

1914 
However, allegations of violation and any section 104(d) special 

findings associated with the violation survive the vacation of orders in 

which they are contained. Consolidation Coal Co., 4 FMSHRC 1791, 1793-

97 (October 1982); Island Creek Coal Co., 2 FMSHRC 279, 280 (February 

1980). In Consolidation Coal, supra, we vacated a procedurally defective 

section 104(d)(l) withdrawal order that contained special findings that 

the violation was significant and substantial and caused by an unwarrantable failure to comply. We held that an absolute vacation of the 

order and dismissal would allow a serious violation to fall outside the 

statutory sanction expressly designed for it--the section 104(d) sequence 

of citations and orders. 4 FMSHRC at 1793-94. Thus, under the circumstances present in that case, we affirmed the judge's modification of 

the defective order to a section 104(d)(l) citation. 4 FMSHRC at 1793-

97. In a related vein, we have also held recently that special findings 

may be included in a citation issued pursuant to section 104(a) of the 

Mine Act. Consolidation Coal Co., 6 FMSHRC 189, 191-92 (February 1984). 

In this case, the inspector cited the violation as being significant 

and substantial and caused by an unwarrantable failure to comply. The 

requisite special findings therefore are present to support a possible 

modification of the section 104(d)(2) order to the appropriate section 

104(d)(l) order or citation. Because the section 104(d)(2) order cannot 

stand, we remand to the judge to determine the appropriate modification. 1/ 

The final issue in this case is whether the judge erred in concluding that the violation was caused by the unwarrantable failure of 

the operator to comply with the standard. As just noted, this finding 

bears on the appropriate modification. The judge summarily concluded, 

"The violation was committed by a foreman, a representative of management. He should have known of the hazard and should have taken steps to 

avoid it." 4 FMSHRC at 1110. U.S. Steel contends that the judge 

3/ We note that for a section 104(d)(l) withdrawal order to issue 

validly, the violation must have been caused by an unwarrantable failure 

to comply with the standard, and the order must have, been issued within .it 

the same inspection or any subsequent inspection within 90 days after ~ 

the issuance of the original 104(d)(l) citation. If this violation did 

occur within the 90-day limit, then it may be cited within a section 

104(d)(l) order if it also occurred as a result of the unwarrantable 

failure of the operator to comply with the standard--the final issue 

discussed below in this decision. If, however, the violation occurred 

outside the 90-day period, the invalid order could still possibly be 

modified to a section 104(d)(l) citation if the violation was both 

significant and substantial and unwarrantable. (If the judge needs to 

decide whether the violation here was significant and substantial, he 

shall afford the parties the opportunity to submit additional argument 

on the subject, if they desire.) If on remand, the judge determines 

that modification to a section 104(d)(l) order or citation is not I 

possible then the violation should be reduced to a section 104(a) 

citation. 

1915 
improperly applied a per ~ rule that merely because the foreman was a 

representative of management his violative conduct constituted an 

unwarrantable failure to comply. We find the judge's conclusion on this 

issue to be insufficiently explained. Consequently, we are unable to 

exercise meaningful review.as to whether the conclusion is legally 

proper and supported by substantial evidence. See The Anaconda Company, 

3 FMSHRC 299, 299-302 (February 1981). Accordingly, we remand this 

question to the judge. In the interests of procedural fairness, the 

judge should allow the parties to reargue their positions concerning 

unwarrantability, if they desire. After considering any such argument, 

the judge should articulate fully the reasons for his ruling on this 

issue. 

Accordingly, we affirm the judge's conclusion that U.S. Steel violated section 55.15-5. Because we reverse his finding concerning the 

absence of an intervening clean inspection, we vacate the section 

104(d)(2) withdrawal order and remand for proper modification of the 

order as discussed above. We also remand for reconsideration of the 

issue of unwarrantabie failure and, if necessary, the question of 

whether the violation was significant and substantial (see n. 3, 

supra) • !±_/ --

4/ The Secretary also argues that U.S. Steel violated Commission 

Procedural Rules 20(c) and 28, 29 C.F.R. §§ 2700.20(c) & .28, by not 

specifically pleading its reliance on the issue of the intervening clean 

inspection, a~d that the judg~ erred in excusing that failure. The 

issue of the absence of an intervening clean inspection was part of the 

Secretary's prima facie case. The Secretary was required to prove all 

those elements of the prima f acie case that had not been admitted or · 

waived. In this instance, U.S. Steel generally denied "all other 

allegations of fact and law" in its answer, and did not concede the 

absence of an intervening clean inspection. Moreover, it would have 

been permissible for the judge to allow liberal amendment to the 

pleadings by U.S. Steel at the hearing. Cf. Fed. R. Civ. P. 15(b). 

Under these circumstances, the judge properly proceeded to rule on the 

merits of the intervening clean inspection issue. 

1916 
Commissioner Lawson dissenting in part: 

The judge's conclusion that U. S. Steel violated section 55.15-5 is 

clearly correct, supported by substantial evidence, and was challenged 

by this operator only in terms of a generalized vagueness assertion, as 

the majority acknowledges. My colleagues, however, have chosen to discount 

the substantial evidence found by the judge below to have established that 

MSHA did not carry out a complete (clean) inspection of this mine during 

the applicable period. Finding of Fact 7; Conclusion of Law 3. 

The decision below has been found wanting by the majority because 

the judge "summarily concluded" that this violation was caused by the 

unwarrantable failure of the operator to comply with the standard, and 

his conclusion was "insufficiently explained." As they note, "we are 

unable to exercise meaningful review as to whether the conclusion is 

legally proper and supported by substantial evidence ••• Accordingly, we 

remand this question to the judge." Slip op. at 9 (citation omitted). 

However, a different standard of review is applied to the "clean 

inspection" question. The majority here, too, finds that "the judge 

provided no analysis of this [intervening clean inspection] evidence." 

Slip op. at 7. Although I would not disagree that the judge's ruling 

would be significantly more satisfactory had it included an expanded 

explanation for its bases, I am not prepared so readily to overturn his 

clear holding that MSHA "established prima facie that there was not an 

intervening clean inspection," 4 FMSHRC at 1109, and, as the majority 

acknowledges, "U.S. Steel did not offer any evidence to rebut the prima 

facie showing." Id. · 

As the judge acknowledged, the testimony below was "skimpy" and 

"possibly conflicting." The judge, performing his fact-finding duty, 

resolved that conflict. His reasons may have included an evaluation of 

the witness' demeanor, evidence that MSHA inspector Wasley had a continuous 

presence at this mine, and, of most significance, his clear testimony 

that: "There was not no clean inspection, no." Slip op. at 5, Tr. 27-

28. 1/ (Emphasis added). The Commission should be loath to overturn 

the judge's determination and substitute a differing view of the facts 

absent any rationale other than disagreement with the fact-finder's 

resolution of the conflicting evidence and speculation regarding its 

meaning (see note 1, supra). 

My colleagues' failure to remand this issue for necessary clarification is thus internally inconsistent. In lieu of affirmation of the 

judge on this issue, which would appear to me supportable on this record, 

I would remand for clarification on this issue as well. See The Anaconda 

Company, 3 FMSHRC 299 (1981). Whatever may transpire in the future in 

this case will be better accomplished with such judicial clarification. 

A. E. Lawson, Connnissioner 

1/ The majority's assertion that, "Presumably ••• the inspector's view 

of what constitutes a clean inspection agrees with that argued by the 

Secretary ••• ," slip op. at 7, lacks record support and is mere speculation. 

1917 
Distribution 

Louise Q. Symons 

United States Steel Corporation 

600 Grant Street, Room 1580 

Pittsburgh, PA ·15230 

Clifford Kesanen, Safety Chairman 

United Mine Workers of America 

Local 1938 

307 First Street North 

Vi.rginia, Minnesota 55792 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge James Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church; Virginia 22041 

1918 

ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AuG 1. 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EUREKA MINING CORPORATION, 

Respondent 

. . 

DECISION 

Docket No. LAKE 84-68 

A.C. No. 12-01818-03507 

Patmore Mine 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, 

for Petitioner; 

Before: 

Barbara Reeves, Eureka Mining Corporation, 

Morgantown, Kentucky, for Respondent. 

Judge Kennedy 

This matter came on for an evidentiary hearing in 

Owensboro, Kentucky on Thursday, July 26, 1984. At the 

conclusion of the hearing the parties conferred and moved 

for approval of a settlement of the two violations charged 

in the amount of $50. 

·Based on an independent evaluation and de novo review 

of the circumstances as set forth in the transcript of the 

hearing, I found the settlement proposed was in accord 

with the purposes and policy of the Act. 

Accordingly, it is ORDERED that the decision approving 

settlement be, and hereby is, AFFI D and the captioned 

matter DISMISSED. 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn St., 8th Fl., Chicago, IL 

60604 (Certified Mail) 

Ms. Barbara Reeves, Eureka Mining Corporation, P.O. Box 277, 

Morgantown, KY 42261 (Certified Mail) 

/ejp 

1919 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

August 3, 1984 

UNITED MINE WORKERS OF 

AMERICA (UMWA) I 

. . DISCRIMINATION PROCEEDINGS 

ON BEHALF OF 

JERRY D. MOORE I 

Docket No. KENT 82-105-D 

MADI CD 82-05 

LARRY D. KESSINGER, Docket No. KENT 82-106-D 

MADI CD 82-04 

Complainants 

v. Eastern Division Operations 

PEABODY COAL COMPANY, 

Respondents 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

THOMAS L. WILLIAMS, 

Complainant 

Docket No. LAKE 83-69-D 

VINC CD 83-04 

v. 

Eastern Division Operations 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

. ORDER AWARDING DAMAGES 

ORDER AWARDING ATTORNEYS FEES 

ORDER ASSESSING CIVIL PENALTIES 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C. on behalf of Complainants Jerry D. Moore and Larry D. Kessinger; 

Frederick W. Moncrief, Esq., Office of the 

Solicitor, U.S. Department of Labor, Arlington, Virginia, on behalf of Complainant, 

Thomas L. Williams; 

Michael o. McKown, Esq., Peabody Coal Company, 

St. Louis, Missouri, for Respondent. 

Judge Merlin 

On July 11, 1984, a decision was issued with respect to 

the operator's liability in these cases. The parties have 

set forth their positions with re·spect to damages, attorneys 

fees, and civil penalties so that determinations now may be 

made with respect to these matters. 

1920 
Lake 83-69-D 

The operator and the Solicitor have stipulated that the 

total back pay and interest through July 23, 1984, to which 

Complainant, Thomas L. Williams, is entitled under the 

July 11 decision is $29,301.61. 

In addition, the Solicitor seeks recovery of unreimbursed medical expenses, the amount of which the parties 

agree is $710. Reimbursement is also sought for the cost of 

obtaining recertification as an electrician. The parties 

agree that Complainant worked in the mines as an electrician 

before his lay off (Hearing, July 27, 1984, p. 6-7). The 

operator concedes that under the July 11 decision Complainant is entitled to medical expenses and recertification 

(Hearing July 27, 1984, p. 5, 7-8}. 

Complainant further seeks money damages for losses he 

incurred in real estate and business ventures after he was 

laid off. By letter to the Solicitor dated May 5, 1984, 

Complainant's private attorney, Mr. Clyde Collins, alleges 

realty losses of $58,380. Mr. Collins' letter sets fd~th 

the following: In June 1982 Complainant purchased a ~esi~ 

dential property and a rental property for $58,000 ($20,000 

for residential and $38,000 for rental); the purchase was 

financed through a first mortgage to The Peoples National 

Bank, New Lexington, Ohio, of $50,000 and a second mortgage 

to the sellers of $8,000; Complainant was unable to make the 

mortgage payments in the first half of 1983 and the bank 

foreclosed on the mortgages, which foreclosure became final 

January 13, 1984; both properties were sold at a Sheriff's 

sale from which deficiency judgments against Complainant 

total $ 41, 3 8 0; 'the properties were worth $ 7 5, 0 0 0 and Com- -

plainant•s loss of equity is $17,000; the combined damages 

from the deficiency judgments and the equity loss are 

$58,380. 

The Solicitor and operator's counsel agree that with· 

additional interest through July 23, 1984, the claimed 

realty loss as of this date is $62,018.36 (Stipulation No. 

6) • 

In addition, Complainant claims money damages arising 

from business losses. In this respect the attorney's letter ,_ 

sets forth the following: In December 1982, Compla;i,nant .... 

leased the real estate and equipment of a restaurant business for six months; Complainant borrowed $2,500 from the 

City Loan in New Lexington to be used as capital in connection with the restaurant; during the first four months of 

1983, when Complainant's mortgages became delinquent, he 

also became delinquent in the payment of the $1,500 per 

month lease rental of the restaurant; the same bank which 

held Complainant's mortgages also held the mortgage on the 

1921 
restaurant; the owners of the restaurant were also in default on the mortgage held by the bank on the restaurant 

property; in April 1983, Complainant reached an agreement 

with the owners of the restaurant for a new three year 

lease, but the bank refused to consent to the lease due to 

arrearages already existing on Complainant's residential 

mortgages with the bank; Complainant attempted a Chapter 13 

bankruptcy, but a feasible plan could not be worked out 

since the liabilities had reached the point where the necessary payment into the plan was beyond Complainant's ability; 

Complainant returned possession of the restaurant premises 

to the owners at the conclusion of the initial lease period; 

the financial loss from this venture was $12,809.16. 

Finally, the attorney's letter states that Complainant 

incurred attorneys fees arising out of the matters detailed 

above in the amount of $7,235 and job hunting expenses of 

$1418.64. 

Section 105(c) (2) of the Act, pursuant to which t~e 

Solicitor filed this action on Complainant's behalf, provides as follows with respect to the relief that can be 

given: 

* * * The Commission shall afford an opportunity for a 

hearing; (in accordance with section 554 of title 5, 

United States Code, but without regard to subsection 

(a) (3) of such section) and thereafter shall issue an 

order, based upon findings of fact, affirming, modifying or vacating the Secretary's proposed order, or 

directing other appropriate relief. Such order shall 

become final 30 days after its issuance. The Commission shall have authority in such proceedings to require a person committing a violation of this subsection to take such affirmative action to abate the 

violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with 

back pay and interest. * * * [Emphasis supplied.] 

The Senate Report states with respect to relief in section 105 cases as follows: 

It is the Committee's intention that the Secretary 

propose, and the Commission require, all relief that is 

necessary to make the complaining party whole and to 

1922 
remove the deleterious effects of the discriminatory 

conduct including, but not limited to reinstatement 

with full seniority rights, back-pay with interest, and 

recompense for any special damages sustained as a 

result of the discrimination. The specified relief is 

only illustrative. 

s. REP. NO. 95-181, 95th Cong., 1st Sess. 37 (1977), 

reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE 

SAFETY AND HEALTH ACT OF 1977, 95th Cong., 2d Sess., at 

625 (1978). 

The Act specifically provides for back pay and interest. Accordingly, the Complainant is entitled to $29,301.61 

plus additional interest from July 23, 1984 to the date of 

payment computed in accordance with applicable Commission 

precedent. 

In addition, it must be determined whether the additional special damages which Complainant seeks may be 

awarded as "other appropriate relief" under section 105-:" · (c) (2) , supra. In the words of the Senate Report quoted, 

supra, such damages are awarded when they are sustained "as 

a result of" the discrimination. The right to recover such 

amounts under the Mine Act has not been decided. Reference 

may be made, however, to general principles of law. It has 

been held that in order to be recoverable, damages must be 

proved to be the proximate result of the complained wrong. 

Classic Bowl, Inc. v. AMF Pinspotter, Inc., 403 F.2d 463 

(7th Cir. 1968). The legal concept of proximity is applicable to ascertain and measure damages. The necessary and 

appropriate limits of judicial inquiry are served by disregarding consequential and remote effects. Commonwealth 

Edison Company v. Allis-Chalmers Manufacturing Company, 225 

F. Supp. 332 (N.D. Ill. 1963). The usual monetary measure 

of damages for wrongful discharge at common law, under the 

National Labor Relations Act and under the Equal Opportunity 

Act is back pay less interim earnings. St. Clair v. Local 

Union 515, 422 F.2d 128 {6th Cir. 1969). An employee discharged in violaticn of the Railway Labor Act was held 

entitled in addition to reinstatement only to an award of 

back pay. Brady v. Trans-World Airlines, Inc., 244 F. Supp. 

8 2 0 ( D. De 1. 19 6 5 ) • 

In this case the wrongful layoff of Complainant by the 

operator cannot be held the proximate cause of Complainant's 

monetary losses from real estate and business activities. 

To put it in terms of the Senate Report, quoted above, these 

damages were not sustained as a result of the discrimination. 

It is clear from the letter of Complainant's attorney that 

Complainant engaged in a series of highly speculative and 

1923 
risky ventures. 1/ He bought $58,000 worth of real estate 

with no equity a.own and obligated himself under a $50 ,oon 

first mortgage and an $8,000 second mortgage, both at a 

16.5% interest rate (Hearing July 27, 1984, p. 13). Even 

where the individual did not engage in such activities, 

recovery for his loss of a home to the mortgage holder has 

been denied. St. Clair v. Local Union No. 515, supra. 

Moreov~r, just a few months after Complainant undertook the 

sizeable real estate debts just described and after he had 

been laid off, he went into the restaurant business, again 

without any equity of his own and borrowing additional cash 

from a loan company and obligating himself to monthly payments of $1500 under a six months lease. It is little 

wonder that the bank which held the mortgages on Complainant's realty and the mortgage on the restaurant refused to 

consent to a new lease on the restaurant. It must also be 

noted that it appears from the attorney's letter that the 

owners of the restaurant h.ad no other assets because they 

immediately went into default when Complainant could not pay 

them. In sum therefore, many intervening factors, and not 

the wrongful layoff, are responsible for Complainant's 

damages in real estate and business. The principal and precipitating factor in Complainant's financial debacle has 

been his own business and financial judgment, or lack thereof. Under such circumstances, award of special damages 

would not be appropriate under the Act and such relief is 

denied. 

The same considerations apply with respect to the attorney's fees and related expenses which were incurred by 

Complainant as a result of his real estate and business 

activities. Recovery of damages for these items is also 

denied. 

1/ None of the real estate and business figures given by 

Complainant's private attorney have been verified. Many 

appear highly questionable. For example, the value of the 

real estate is given as $75,000 although Complainant paid 

only $58,000 for it with no down payment. At the foreclosure sale, the properties were sold for $26,666 which, according to the Order of Sale furnished by the Solicitor, was 

at least 2/3 of the appraised value. Accordingly, the appraisal value could not have been more than $40,000. For 

the reasons set forth herein, it is not necessary for present purposes to determine the true extent of Complainant's 

losses in these matters. 

1924 
As set forth above, the letter from Complainant's attorney alleged expenses of $1,418.64 related to seeking 

employment. The Solicitor's brief cited no case law to 

support an award of such damages. The Solicitor advised 

that he knew of no precedent to support such an award and 

indeed stated that decisions under the National Labor Relations Act indicated such an award would not be made (Hear~ 

ing July 27, 1984, p. 16). The claim of damages for these 

amounts is, therefore, denied. 

Two other items remain for consideration. As previously stated, the parties agree that the unreimbursed 

medical expenses are $710. Operator's counsel advised that 

no objection exists with respect to this item (Hearing 

July 27, 1984, p.5). So too, the operator does not object 

to payment for the Complainant's recertification as an 

electrician (Hearing July 27, 1984, p. 7-8). It should be 

noted that an award of damages in these two instances would 

be appropriate under the principles set forth herein. The 

medical expenses would have been paid for by health insurance if Complainant had been working and the electrical . 

certification would not have expired if Complainant had not 

been laid off. The layoff was the proximate cause of these 

particular losses. 

Finally, careful consideration has been given to the 

decision in Secretary of Labor on behalf of Noland v. Luck 

Quarries, Inc., 2 FMSHRC 954 (1980). In that case, recovery 

was allowed under section 105(c) (2) for lost equity in a 

truck. The miner there had been a truck driver who hauled 

rock in his own truck for the company which had wrongfully 

discharged him. Because of earnings lost due to the discharge, the Complainant lost the truck. In order for the 

miner in Noland to return to his former work hauling rock, 

he needed a truck. It was therefore not enough in that case 

to order reinstatement with back pay and interest. The 

analogous item in the instant case is the cost of recertification as an electrician which has been allowed and which 

would permit Complainant to resume his former position in 

the mines as an electrician. The decision in Noland is not 

precedent for an award in this case of special damages 

arising from real estate and business losses unrelated to 

Complainant's ability to return to his former position and 

caused by many factors other than the discriminatory layoff. 

1925 
KENT 82-105-D 

KENT 82-106-D 

The operator and the United Mine Workers have agreed 

that under the July 11 decision, total back pay and interest 

through July 23, 1984, payable to Mr. Kessinger is $~3, 320·.12 

and to Mr. Moore is $59,294.25. 

Section 105(c) (3) of the Act, pursuant to which the 

union brought these actions on behalf of Complainants Kessinger and Moore, provides for relief in terms like those of 

section lOS(c) (2) already considered with respect to the 

suit brought by the Solicitor. Section 105(c) (3) provides 

in pertinent part as follows: 

* * * The Commission shall afford an opportunity for a 

hearing (in accordance with section 554 of title 5, 

United States Code, but without regard to subsection 

(a) (3) of such section), and thereafter shall issue 

an order, based upon findings of fact, dismissing or 

sustaining the complainant's charges and r if the ···:. · charges are sustained, granting such relief as it 

deems appropriate, including, but not limited to, 

an order requiring the rehirin~ or reinstatement 

of the miner to his former position with back pay 

and interest or such remedy as may be appropriate. 

Such order shall become final 30 days after its issuance. Whenever an order is issued sustain"ing the 

Complainant's charges under this subsection, a sum 

equal to the aggregate amount of all costs and expenses (including attorney's fees) as determined 

by the Commission to have been reasonably incurred b~ the miner, a~plicant for emplo¥ment or representa- tive of miners or, or in connection with, the institution and prosecution of such proceedings shall be 

assessed against the person committing such violation. 

* * * [Emphasis supplied.] 

Since the Act specifically provides for back. pay and 

interest, Complainant Moore is entitled to $59,294.45 plus 

interest after July 23, 1984, and Complainant Kessinger is 

entitled to $43,320.12 plus interest after July 23, 1984. 

Interest is computed in accordance with applicable Commission precedent. 

These cases present the additional issue of attorneys 

fees. Counsel for the union has filed a petition for attorneys fees detailing 127.75 hours spent on these cases and 

stating that the market rate for attorney's services is 

1926 
$100 per hour. The total fee sought is $12,628.50. 2/ The 

operator did not object to the number of hours claimed or to 

the market rate given by the union (Hearing July 27, 1984, 

p. 4) • 

It has been decided that attorneys fees may be awarded 

in discrimination cases brought under the Mine Safety Act by 

the union on behalf of miners. In Munsey v. Federal Mine 

Health and Safety Review Commission, 701 F.2d 976 (D.C. Cir. 

1983) , the Court of Appeals for the District of Columbia 

held in this respect as follows: 

* * * This circuit has recognized that unions and union 

attorneys are entitled to costs and attorney fees for 

representation of union members. Nat'l Treasury Employees Union v. U.S. Dep't of the Treasury, 656 F.2d 

848 (D.C. Cir. 1981). If attorney fees are awarded to 

the union itself rather than its attorney, the union 

can only recoup the expenses it incurred in supplying 

services to the client: above-cost fees to the union 

itself would be inappropriate. Id. at 853. If a~torney fees are awarded to the attorney alone (and not for 

the union's general treasury), the attorney is entitled 

to receive the market value of the services rendered. 

The mere fact that an attorney is a salaried employee 

of the union should not affect the size of the fee to 

which he is entitled. Id. at 850. "Reasonableness, in 

terms of market value or-the services rendered, is the 

sole limit on fee awards to organizationally-hired 

lawyers when the fees are to be paid to the lawyers 

alone." Id. at 852-853. · 

On remand, the Commission should determine the 

amount to be awarded in accordance with the standards 

set forth in Nat'l Treasury Employees Union v. U.S. 

Dep't of the Treasury, supra. !/ 

1/ We note that in past cases we have required salaried attorneys recovering the market value of their 

services from defendants to reimburse their employers 

for the kinds of expenses the employers incurred that 

would normally be included in an attorney's fee, including the salaries of the lawyers and their adjunct 

staff. * * * 

2/ Four hours representing work performed by an attorney 

who is no longer with the UMW legal staff and who has waived 

her right to any attorney fees were billed at the union's 

cost of $60 per hour. Parking expenses were $13.50. 

1927 
The hours and market rate claimed are reasonable in 

light of the nature of the cases and all that has transpired 

in them. Accordingly, a total fee of $12,628.50 is awarded. 

The representation that the union's cost is $60 per hour is 

accepted. Accordingly, $7,678.50 of the total fee is awarded 

to the union and the balance of $4,950 is awarded to union 

counsel. 

The statutory scheme of health and safety in the mines 

expressed in the Mine Safety Act provides throughout for 

meaningful participation by miner representatives. By 

bringing these actions, the union has fulfilled its intended 

role and demonstrated the value of the opportunity to participate. 

Assessment of Civil Penalties 

The Solicitor has filed a petition seeking the assessment of a civil penalty of $1000 in each of the three cases. 

The parties agreed with respect to the six criteria set: 

forth in section llO(i) of the Act (Hearing July 27, 1984, 

p. 25-27). The operator waived its right to file an answer 

and had no objection to payment of these amounts (Hearing 

July 27, 1984, p. 24). The proposed penalties are consistent with the Act and will advance its purposes. Accordingly, civil penalties totalling $3,000 are assessed. 

Order 

It is Ordered that the operator pay Complainant Thomas 

L. Williams $29,301.61 and $710 plus interest from July 23, 

1984, to the date of payment. 

It is further Ordered that when Complainant Thomas L. 

William is recalled, the operator either pay necessary and 

reasonable costs of electrical recertification or provide 

the instruction necessary for such recertification. 

It is further Ordered that all other claims of Complainant Thomas L. Williams for damages are Denied. 

It is further Ordered that the operator pay Complainant 

Jerry D. Moore $59,294.45 plus interest from July 23, 1984, 

to the date of payment. 

It is further Ordered that the operator pay Complainant 

Larry D. Kessinger $43,320.13 plus interest from July 23, 

1984, to the date of payment. 

1928 
It is further Ordered that the operator pay attorneys 

fees of $7,678.50 to the United Mine Workers of America. 

It is further Ordered that the operator pay attorneys 

fees of $4,950 to Ms. Mary Lu Jordan, Esq. 

It 

$3,000. 

shall be 

period. 

is Ordered the operator pay civil penalties of 

If no appeal is taken, payment of civil penalties 

made within 30 days of the expiration of the appeal 

-- \~ 

' Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Michael O. McKown, Esq., P.O. Box 235, St. Louis, MO 63166 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

15th Street, N.W., Washington, DC 20005 (Certified Mail) 

Frederick Moncrief, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

/nw 

1929 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 3, 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEST 83-107-M 

A.C. No. 02-00156-05501 

v. 

PHELPS DODGE CORPORATION, 

Respondent 

Docket No. WEST 84-55-M 

A.C. No. 02-00854-05503 

Appearances: 

Before: 

New Cornelia Branch Mine 

DECISION 

John C. Nangle, Esq., Associate Regional 

Solicitor, U.S. Department of Labor, Los 

Angeles, California, for Petitioner; 

Stephen W. Pogson, Esq., Evans, Kitchel & 

Jenckes, P.C., Phoenix, Arizona, for Respondent. 

Judge Merlin 

These cases are petitions for the assessment of civil 

penalties filed by the Secretary of Labor against Phelps 

Dodge Corporation. The hearing was held as scheduled on 

May 30, 1984. 

By agreement of the parties, these cases were consolidated for hearing and decision (Tr. 5). At the hearing, the 

parties agreed to the following stipulations (Tr. 4, 6): 

1. The operator is the owner and operator of the 

subject mine. 

2. The operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 

1977. 

3. The administrative law judge has jurisdiction. 

4. The inspectors who issued the subject citations 

were duly authorized representatives of the Secretary. 

5. True and correct copies of the sfibject citations 

were properly served upon the operator. 

1930 
6. Copies of the subject citations and terminations 

are authentic and may be admitted into evidence for 

the purpose of establishing their issuance but not for 

the purpose of establishing the truth or relevancy of 

any statement asserted therein. 

7. Imposition of penalties herein will not affect the 

operator's ability to continue in business. 

8. All the alleged violations were abated in good 

faith. 

9. The operator's previous history of violations is 

average. 1:_/ 

10. The operator's size is large. 

11. Violations occurred in citations Nos. 2086972 and 

2086671. 

Citation No. 2086972 

Section 55.14-1 of the mandatory standards, 30 C.F.R. 

§ 55.14-1, provides as follows: 

Gears; sprockets; chains; drive; head, 

tail, and takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and 

similar exposed moving machine parts which 

may be contacted by persons, and which may 

cause injury to persons, shall be guarded. 

The citation describes the condition or practice as 

follows: 

There was no guard to prevent a person 

from contacting the auxilliary (sic) rope 

starter on the 10 h.p. gasoline engine for 

the air compressor located on the bed of 

M-41 GMC service truck. The rope starter 

was about 5 feet above the ground and faced 

out from the truck bed. It was in motion 

when the motor was running and was next to 

the electric starter switch. 

1/ The operator's brief errs in stating that the parties 

stipulated that the operator's history was better than 

average. The Solicitor sta;ted it would be "better" to 

stipulate to an average history, not that the history was 

better than average (Tr. 181). 

1931 
As set forth in stipulation No. 11, supra, the violation is admitted. The inspector explained that the rope 

starter in question was an auxiliary to the automatic 

starter, primarily used to start up the air compressor which 

pumped air into tires (Tr. 8, 26). The inspector further 

testified that the air compressor mounted on a truck was 

used on uneven ground or on ground covered with broken rock 

(Tr. 27-28). I accept this testimony over contrary testimony from the operator's safety supervisor (Tr. 51). I 

further accept the inspector's testimony that an individual 

could slip and lose his footing thereby coming into contact 

with the moving part of the machine. An injury would result 

(Tr. 28, 30). Accordingly, I conclude the violation was 

serious. I reject the argument that because the men operating the starter were familiar with it, an accident would 

not happen (Tr. 45). The history of mining is replete with 

knowledgeable people becoming involved in serious accidents 

either through their own misconduct or through events over 

which they had no control. The starter should not have been 

left uncovered. The operator was guilty of ordinary negligence. 

Finally, I believe the violation was significant and 

substantial. The operator of the air compressor as well as 

others whose equipment was being serviced are routinely in 

the area and could stumble on the uneven ground and become 

caught. Any injury would be severe. The reasonable likelihood tests of the Commission are satisfied. U.S. Steel 

Corp., --- FMSHRC --- (July 11, 1984), Consolidation Coal 

Company, 6 FMSHRC 34 (1984), Consolidation Coal Company, 6 

FMSHRC 189 (1984). 

A penalty of $75 is imposed. 

Citation No. 2086667 

Section 55.11-1 of the mandatory standard, 30 C.F.R. 

§ 55.11-1, provides as follows: 

Safe means of access shall be provided 

and maintained to all working places. 

The citation describes the condition or practice as 

follows: 

An employee was observed crossing the 

No. 1 primary pan feeder dump to and from 

the dump operator's control room. By the 

use of the solid railroad bed, a safe.access 

1932 
was not provided, due to the opening on both 

sides of the track, use [sic] for dumping 

ore cars. This was not a regular travel 

area, company had an access on east side of 

the ore dump. 

The operator concedes that under Commission precedent 

the trestle was a means of access and that it was required 

to be safe. Hanna Mining Company, 3 FMSHRC 2045 {1981). 

The operator argues, however, that MSHA failed to show that 

the trestle was not safe. This argument cannot be accepted. 

The trestle was eight feet wide with five feet between the 

rails. It was approximately 50 feet long. The trestle 

spanned a chasm, 14 to 15 feet deep, which was the dumping 

point. Trains moved along the rails and dumped onto a pan 

feeder. There was a danger of falling into the pan feeder 

if an individual were to trip {Tr. 81). The locomotive 

engineer and the dump operator, who brought the materials 

onto the trestle to be dumped, were required by the operator 

to rope themselves off. They were to place a lanyard in 

such a way that if they fell, they would be caught and 

prevented from falling into the chasm {Tr. 86). Thus, the 

operator itself recognized the danger of being on the 

trestle. 

Based upon the foregoing, I conclude a violation existed and that it was serious. I further determine that the 

operator was negligent in not preventing use of the unsafe 

trestle by the workers. Finally, the violation was significant and substantial. It was reasonably likely that use of 

the trestle would result in a reasonably serious injury. 

U.S. Steel, --- FMSHRC --- {July 11, 1984), Consolidation 

Coal Company, 6 FMSHRC 34 {1984). 

A penalty of $125 is assessed. 

Citation No. 2086671 

Section 55.9-7 of the mandatory standards, 30 C.F.R. 

§ 55.9-7, provides as follows: 

Unguarded conveyors with walkways shall 

be equipped with emergency stop devices or 

cords along their full length. 

The citation describes the condition or practice as 

follows: 

The first idle roller {about three feet) 

from the tail pulley of the No. 2, 42 inch 

wide conveyor was exposed to contact. Approximately four (4) feet from floor level and next 

1933 
to about three (3) foot wide walkway, an emergency stop cord was mounted up front from the 

idle roller to where a person could not reach 

it if he or she had needed it in an emergency. 

Exposure would be about one person, one time 

on daily basis. 

As set forth in Stipulation No. 11, su?ra, the violation in this instance was admitted. The evidence demonstrates that the stop cord was missing for a relatively 

short distance running from the angle iron back to the tail 

pulley ("C" to "D", MSHA Exh. No. 11) (Tr. 119-121). The 

inspector and the operator's safety inspector were in conflict over whether an individual would be seriously injured 

if they became caught at a pinch point where there was no 

emergency cord (Tr. 124-125, 135-140, 154). I find the 

inspector's testimony more persuasive in this regard and· 

accept it. Maintenance personnel and repairmen were in this 

area in the performance of their usual duties and the conveyor could be running although this would be rare (149-

150). The violation was serious. I accept the inspector's 

evaluation that negligence was low (Tr. 124). The violation 

was significant and substantial because it was reasonably 

likely that an individual who became caught would suffer a 

reasonably serious injury. 

A penalty of $70 is assessed. 

Citation No. 2086672 

Section 55.11-1 of the mandatory standard 30 C.F.R. 

§ 55.11-1, provides as follows: 

Safe means of access shall be provided 

and maintained to all working places. 

The citation described the condition or practice as 

follows: 

The entire lenght (sic), and both sides 

of No. 2 conveyor had accumulations of muck 

with rocks up to about 8 (eight) inches in 

diameter in the walkways, also piles of muck 

up to about (three) 3 feet high. Possible 

tripping and/or fall hazard. 

The inspector's description in the citation of the 

accumulation along the walkway is uncontradicted and I 

accept it. The operator admits that there was muck and rock 

1934 
on the walkway but argues nevertheless that it was a safe 

means of access (Operator's Brief P. 7). The inspector testified that the risk was of someone tripping and falling 

(Tr. 115). I find the inspector's testimony persuasive and 

accept it. The operator's witness first indicated that 

maintenance people, when making their rounds, merely shine a 

flashlight down the walkway rather than traveling down it 

(Tr. 131-132, 150-151, 152) but later he admitted that 

sometimes they might travel down the walkway to check it 

(Tr. 151, 153). I find that maintenance and repair personnel were required to travel along the walkway in performance 

of their regular duties. A violation existed and it was 

serious. The operator was plainly negligent. Finally the 

violation was significant and substantial because traveling 

along this walkway presented a reasonable likelihood of a 

reasonably serious injury. 

A penalty of $100 is assessed. 

Citation No. 2086674 

Section 55.14-1 of the mandatory standards, 30 C.F.R. § 

55.14-1, provides as follows: 

Gears; sprockets; chains; drive, head, 

tail, and takeup pulleys; flywheels; couplings; shafts; saw blades; fan inlets; and 

similar exposed moving machine parts which 

may be contacted by persons, and which may 

cause injury to persons, shall be guarded. 

The citation describes the condition or practice as 

follows: 

The guards on the two oil pumps did 

not extend around the back side of the "v" 

belts, leaving an opening to where a person 

could make contact with the pinchpoint, 

both motors had about 4 inch pulley and 

about 10" pulley on the pumps. High point 

was about three (3) feet above floor level 

and about three (3) from the wall of the 

enclosure, energized and subject to start, 

located in the No. 2 primary gyrator oil 

pump house. · 

There is no dispute that guards ·were present on the two 

oil pumps involved in the subject citation. However, the 

inspector testified that there was no guard at the pinch 

1935 
points where the belts met the pulleys (points "A" on MSHA 

Exh. No. 13) (Tr. 157-158). In the inspector's opinion, an 

individual's hand could become caught at this point (Tr. 

160, 161, 164-166). However, the operator's witnesses testified that it was highly unlikely if not impossible for an 

individual to become caught at the pinchpoints in question 

(Tr. 175-176). Based upon the photographic evidence introduced by the Solicitor (MSHA Exh. Nos. 12 and 13), I find 

the testimony of the inspector more persuasive and conclude 

that a violation existed. Since injury could result, the 

violation was serious. The operator was negligent in not 

adequately guarding the machinery. Maintenance people were 

required to be in the area in the performance of their regular duties. The violation was significant and substantial 

because it was reasonably likely that a slipping or falling 

accident would expose miners near the machinery to a reasonably serious injury. 

A penalty of $75 is assessed. 

Citation No. 2086888 

Section 55.16-6 of the mandatory standards, 30 C.F.R. 

§ 55.16-6, provides as follows: 

Valves on compressed gas cylinders shall 

be protected by covers when being transported or 

stored, and by a safe location when the cylinders are in use. 

The citation describes the condition or practice as 

follows: 

The acetylene and oxygen cylinders were 

observed in the walkway between No. 10 and 

11 mills. The gauges were mounted on the 

cylinders which were in an "off" position and 

and secured in a hand cart in an upright 

position. This area was traveled hourly. 

Also an overhead crane was in use. The cutting rig was not assigned to anyone in the 

area. 1100 hour to 0700 hour shift may have 

used them. 

There is no dispute with respect to the facts. The 

inspector found two acetylene and oxygen cylinders in the 

walkway between the No. 10 and No. 11 mills. The gauges 

were in an "off" position (Tr. 197-198). The inspector 

1936 
questioned miners in the area but no one admitted to using 

the cylinders (Tr. 199-200). The inspector concluded that 

the cylinders had been left by someone on the prior shift 

(Tr. 200, 205). The issue presented is whether the situation is covered by the mandatory standard. The workers in 

the area to whom the inspector spoke said they were not 

assigned to work with the cylinders (Tr. 199-200). According to the inspector the mill foreman said the cylinders 

might have been used on the prior shift (Tr. 200). One 

individual the inspector spoke to said they were going to 

take the cylinders back to the repair bay area (Tr. 201). 

The inspector concluded that on the present shift, no one 

was assigned to the tanks which were going to be taken to 

the bay area (Tr. 201). The inspector concluded that the 

cylinders were stored and that a violation existed b~cause 

,they were not protected by covers. 

In Secretary of Labor v. FMC Corporation, -- FMSHRC -- (July 2, 1984), the Commission defined "storage" as follows: 

"In ordinary usage, the term storage, 'the act of storing or 

the state of being stored', covers a wide variety of meanings, including to accumulate, to supply, to amass, or to 

keep for future use." The Commission decided that the term 

was sufficiently broad to include short-term, long-term, and 

semi-permanent storage. In FMC, a blasting agent was improperly left in a supply yard for over an hour and some of 

it had not been moved for more than six hours. In this 

case, the shift had started at 7:00 a.m. and the inspector 

saw the cylinders just before 9:00 a.m. He was justified in 

concluding that they had been left from the prior shift. 

The interval in this case falls within the time frame held 

by the Commission t.o constitute "storage" under a comparable 

mandatory standard. Therefore, I conclude that the cylinders were being stored temporarily or semi-permanently before being transported to the bay area. Due to the lack of 

covers on the cylinders, a violation existed. 

The inspector testified that the cylinders could become 

airborne projectiles if the valve stem broke while the cylinder was tipped (Tr. 202-203). I find this could easily 

happen since the area was traveled hourly and hoses were 

present on which a person could trip (Tr. 206). The violation was serious. I further find the operator was negligent. Both the foreman on the prior shift and the foreman 

on the shift in progress had ample time and opportunity to 

discover this condition and correct it. I reject the inspector's excuse for failing to cite this violation as significant and substantial, because he did not actually see 

anybody walking by who would cause the cylinders to be 

knocked over (Tr. 231) • People frequently pass by this area 
and could easily knock over one of the unguarded cylinders, 

creating a reasonable likelihood· of very serious injury. 

Leaving potentially lethal items such as these cylinders 

lying about must be discouraged. Deterrence will not result 

from a $20 penalty such as the Solicitor proposed here. 

A penalty of $250 is assessed. 

ORDER 

The operator is Ordered to pay the following amounts 

within 30 days from the date of this decision: 

Citation No. 

2086972 

2086667 

2086671 

2086672 

2086674 

2086888 

-

Distribution: 

Total 

Amount 

$ 75 

125 

70 

100 

75 

250 

$695 

Paul Merlin 

Chief Administrative Law Judge 

John C. Nangle, Esq., Associate Regional Solicitor, U.S. 

Department of Labor, 3247 Federal Building, 300 North Los 

Angeles Street, Los Angeles, CA 90012 (Certified Mail) 

Stephen W. Pogson, Esq., Evans, Kitchel & Jenckes, P.C., 

2600 North Central Avenue, Suite 1900, Phoenix, AZ 85004 

(Certified Mail) 

/nw 

1938 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 6 1984 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)., 

Petitioner 

: 

Docket No. LAKE 83-74-M 

: A.C. No. 20-02514-05501 

v. . . MEDUSA CEMENT COMPANY, 

Respondent 

Docket No. LAKE 83-75-M 

: A.C. No. 20-00038-05501 

Appearances: 

Before: 

Docket No. LAKE 83-76-M 

: A.C. No. 20-00038-05502 

Docket No. LAKE 83-77-M 

: A.C. No. 20-00038-05503 . . 

: Docket No. LAKE 83-80-M 

: A.C. No. 20-00038-05504 

: Docket No. LAKE 83-81-M 

A.C. No. 20-02514-05502 

Medusa Cement Company Plant 

DECISION 

Rafael Alvarez, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for Petitioner~ 

Ralph M. Richie, Sa'fety Director, Medusa 

Cement Company, Cleveland, Ohio, for 

Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

The above cases involve 48 alleged violations of mandatory safety standards cited during inspections in April and 

May, 1983. Respondent contested the penalties assessed by 

MSHA and the Solicitor filed proposals for penalty which 

were docketed in the Review Commission. Subsequently, the 

parties agreed to settle the violations for the amount originally assessed and motions for approval of the settlement 

1939 
agreements were submitted. The Chief Administrative Law 

Judge denied the settlement proposals and assigned the 

cases to me. 

Pursuant to notice, the cases were heard in Charlevoix, 

Michigan, on June 21, 1984. During an on the record discussion between the representatives of both parties, including the taking of testimony from Federal Mine Inspectors 

Ronald J. Baril and Clyde c. Brown for Petitioner and Plant 

Safety Director William Nall and Safety Committee member 

Richard Putman for Respondent, the parties agreed to settle 

the violations f~r the penalties listed herein. I stated on 

the record that I would approve the settlement agreements. 

FINDINGS AND CONCLUSIONS APPLICABLE TO ALL VIOLATIONS 

1. Respondent owns and operates a mill in Charlevoix 

County, Michigan, which produces cement. It is a subsidiary 

of the Crane Company·and is a relatively large operator. It 

operates the subject mill on a seasonal basis. 

2. Respondent has a modest history of prior 

violations. 

3. The penalties assesed herein will not affect 

Respondent's ability to continue in business. 

4. Respondent admits the violations charged in the 

citations involved herein. 

5. All of the violations involved in these proceedings were abated promptly and in good faith. 

DOCKET NO. LAKE 83-74-M 

Citation No. 2088977 

This citation charged a violation of 30 C.F.R. 

§ 56.16-6 because of the failure to place covers over the 

stems of oxygen and acetylene tanks. The inspector testified that this was a technical violation and no hazard was 

presented. The violation was originally assessed at $20 

and the parties proposed to settle for $20. I accepted the 

representations made at the hearing and approved the proposed. settlement. 

Citation No. 2088978 

1940 
This citation charged a violation of 30 C.F.R. 

§ 56.9-2, because a rear view mirror was missing from a 

haul truck. The violation was originally assessed at $20 

and the parties proposed to settle for $50. I approved the 

proposed settlement. 

Citation No. 2088979 

This citation charged a violation of 30 C.F.R. 

§ 56.4-24(d), because of a defective fire extinguisher on a 

drill. The inspector testified that this was a significant 

and substantial violation. The violation was originally 

assessed at $39, and the parties proposed to settle for 

$100. I approved the proposed settlement. 

Citation No. 2088980 

This citation charged a violation of 30 C.F.R~ 

§ 56.9-2, because a rear view mirror was missing from a 

haul truck. The violation was originally assessed at $20 

and the parties proposed to settle for $50. I approved the 

proposed settlement. 

Citation No. 2088994 

This citation charged a violation of 30 C.F.R 

§ 56.12-25 because a portable extension cord light was not 

grounded. The cord was used only for lighting purposes and 

did not present any hazard to employees. The violation was 

originally assessed at $20 and the parties proposed to 

settle for $20. I approved the settlement. 

Citation No. 2088995 

This citation charged a violation of 30 C.F.R. 

§ 56.12-14, because an employee was moving a power shovel 

cable without proper protective equipment. The equipment 

was provided by Respondent, and the employees were 

instructed to use it, but the employee in question failed 

to use it. The violation was originally assessed at $68 

and the parties proposed to settle for $68. I approved the 

settlement. 

Citation No. 2088996 

This cltation charged a violation of 30 C.F.R. 

§ 56.12-32 because of Respondent's failure to have a cover 

plate on a switch box. The violation was originally 

assessed at $20 and the parties proposed to settle for $50. 

I approved the settlement. 

1941 
Citation No. 2089061 

This citation charged a violation of 30 C.F.R. 

§ 56.12-25 because of the failure to ground an extension 

cord to a water softener. The violation was originally 

assessed at $39 and the parties proposed to settle for $39. 

I approved the proposed settlement. 

Citation No. 2089062 

This citation charged a violation of 30 C.F.R. 

§ 56.12-8 because of failure to provide a bushing for a 

wire entering the drive motor of the crusher pan feeder. 

No bare wires were involved and the violation was in an 

area not accessible to employees. The violation was 

originally assessed at $20 and the parties agreed to settle 

for $20. I approved the proposed settlement. 

Citation No. 2089065 

This citation charged a violation of 30 C.F.R. 

§ 56.14-6 because a guard over a pinch point had been 

removed while the machine was operating. The violation was 

originally assessed at $30 and the parties proposed to 

settle for $50. I appioved the proposed settlement. 

Citation No. 2089066 

This citation also charged a violation of 30 C.F.R. 

§ 56.14-6 because of the same condition as in the prior citation~ The violation was originally assessed at $30 and. 

the parties proposed to settle for $50. I approved the 

proposed settlement. · 

DOCKET NO. LAKE 83-75 

Citation No. 2088998 

This citation charged a violation of 30 C.F.R. 

§ 56.14-6 because of failure to have guarding on the tail 

pulley of the conveyor belt. The tail pulley would only be 

approached during greasing operations when the machine is 

shut down. The pinch area is guarded by location. The 

violation w~s originaly assessed at $20 and the parties 

proposed to settle for $30. I approved the proposed 

settlement. 

1942 
Citation No. 2088999 

This citation charged a violation of 30 C.F.R. 

§ 56.14-1 because of failure to provide guarding for a 

conveyor belt head pulley. The guard had been removed and 

the employee failed to replace .it. The area is isolated 

and would be visited only for maintenance. The violation 

was originally assessed at $112, and the parties proposed 

to settle for $112. I approved the proposed settlement. 

· Citation No. 2089067 

This citation charged a violation of 30 C.F.R. 

§ 56.12-16 because Respondent put drive belts on a drive 

motor without locking out the system. Respondent has a 

written lock out procedure and all employees are provided 

with locks. The employee involved.was aware of the 

procedure. The violation was originally assessed at $54, 

and the parties proposed to settle for $54. I approved the 

proposed settlement. 

Citation No. 2089068 

This citation charged a violation of 30 C.F.R. 

§ 56.4-24(d) because of Respondent's failure to service 

fire extinguishers. The contractor who serviced the fire 

extinguishers for Respondent has since been replaced. The 

violation was originally assessed at $85 and the parties 

proposed to settle for $100. I approved the proposed 

settlement. 

Citation No. 2089069 

This cit~tion charged a violation of 30 C.F.R. 

§ 56.11-3 because of the use of an 8 foot stepladder in bad 

repair. The ladder had been discarded by Respondent and 

placed in a refuse pile. An employee took it from the 

refuse pile and used it. The violation was originally 

assessed at $39 and the parties proposed to settle for $20. 

I approved the proposed settlement. 

Citation No. 2089070 

This citation charged a violation of 30 C.F.R. 

§ 56.14-6 because of a defect in the guard for the take up 

pulley and counterweight. Employees are not normally in 

the area, and the defect had apparently just occurred. The 

violation was originally assessed at $20 and the parties 

proposed to settle for $20. I approved the proposed 

settlement. 

1943 
Citation No. 2089074 

This citation charged a violation of 30 C.F.R. 

§ 56.11-2 because of a missing section on a handrail on a 

walkway. Maintenance has just been performed in the area 

and the top section of the handrail had been removed in 

order to perform the work. Supervisory personnel were not 

aware that the handrail had not been replaced. The violation was originally assessed at $68 and the parties proposed to settle for $68. I approved the proposed 

settlement. 

Citation No. 2089075 

This citation charged a violation of 30 C.F.R. 

§ 56.11-12 because of an opening above a conveyor through 

which a person could fall. The plant had just gone into 

production for the season and the area had not been taken 

care of. The violation was originally assessed at $85 and 

the parties proposed to settle for $85. I approved the 

proposed settlement. 

Citation No. 2089076 

This citation charged a violation of 30 C.F.R. 

§ 56.12-34 because of a portable light bulb hanging in the 

"shoot" without being guarded. The violation was originally 

assessed at $68 and the parties proposed to settle for $68. 

I approved the proposed settlement. 

Citation No. 2089077 

This citation charged a violation of 30 C.F.R. 

§ 56 .11-1 because of a material bui'ld-up on a walkway. 

Again, the plant had just started operating, and the 

company had not yet completed cleaning·· its many walkways. 

The violation was originally assessed at $85 and the 

parties proposed to settle for $85. I approved the 

proposed settlement. 

Citation No. 2089078 

This citation charged a violation of 30 C.F.R. 

§ 56.14-6 ~cause of a missing guard on a tail pulley. The 

guard had been removed for clean up purposes and was not 

replaced. The violation was originally assessed at $112 

and the parties proposed to settle for $112. I approved 

the proposed settlement. 

1944 
Citation No. 2089079 

This citation charged a violation of 30 C.F.R. 

S 56.11-2 because of a missing section of toeboard on a 

deck area. There was adequate _handrailing - including a 

top rail and a midrail. The area was not active at the 

time. There was no loose material on the deck. The violation was ori~inally assessed at $20 and the parties proposed to settle for $20. I approved the proposed 

settlement. 

Citation No. 2089043 

This citation charged a violation of 30 C.F.R. 

§ 56.14-6 because of an unguarded pinch point. ~he violation was originally assessed at $112 and the parties proposed to settle for $112. I approved the proposed 

settlement. 

Citation No. 2089044 

This citation charged a violation of 30 C.F.R. 

§ 56.16-5 because compressed gas cylinders were not 

properly secured. The cylinders had just been used and the 

employees neglected to chain them up. The violation was 

originally assessed at $68 and the parties proposed to 

settle for $68. I approved the proposed settlement. 

Citation No. 2089045 

This citation charged a violation of 30 C.F.R. 

§ 56.12-34 because a portable extension cord with exposed 

wires and a broken light bulb in its socket was plugged in 

and lying on the floor. The cord Had just been used by an 

employee and was left on the floor. The violation was 

originally assessed at $136 and the parties proposed to 

settle for $136. I approved the proposed settlement. 

Citation No. 2089047 

This citation charged a violation of 30 C.F.R. 

§ 56.14-7 because a guard on the V-belt drive was in bad 

repair, exposing pinch points. The area was a restricted 

walkway. ~he violation was originally assessed at $112 and 

the parties proposed to settle for $112. I approved the 

proposed settlement. 

1945 
Citation No. 2089048 

This citation charged a violation of 30 C.F.R. 

§ 56.11-3 because of a defective ladder. Respondent 

asserts that the ladder belonged to construction personnel 

and had been left by them on the premises. The violation 

was originally assessed at $20 and the parties proposed to 

settle for $20. I accepted the proposed settlement. 

Citation No. 2089051 

This citation charged a violation of 30 C.F.R. 

§ 56.11-1 because of stored material on a walkway. The 

violation was originally assessed at $85 and the parties 

proposed to settle for $85. I approved the proposed 

settlement. 

Citation No. 2089081 

This citation charged a violation. of 30 C.F.R. 

§ 56.12-34 because of failure to provide guarding for an 

extension cord light close to a walkway. Only one employee - the supervisor making an onshift examination - normally 

uses the walkway. The violation was originally assessed at 

$20 and the parties proposed to settle for $20. I approved 

the proposed settlement. 

Citation No. 2089082 

This citation charged a violation of 30 C.F.R. 

§ 56.12-8 because a power cable lacked a restraining clamp. 

The cable was grounded and there was little likelihood 'of 

any employee receiving an electrical shock or other injury. 

The violation was originally assessed at $20 and the 

parties proposed to settle for $20.' I approved the 

proposed settlement. 

DOCKET NO. LAKE 83-76-M 

Citation No. 2089083 

This citation charged a violation of 30 C.F.R. 

§ 56.11-1 because of a buildup of cement on the stairway 

and the walkway at the bottom of the transfer elevator. 

The buildup.was of loose material and was not large. The 

violation was originally assessed at $85 and the parties 

proposed to settle for $85. I approved the proposed 

settlement. 

1946 
Citation No. 2089085 

This citation charged a violation of 30 C.F.R. 

§ 56.11-12 because of the absence of a cover plate for a 

fuel oil pump pit. This was not a travelway but was out in 

a field and any employee travelling in the area would be 

looking for the pit. The violation was originally assessed 

at $20 and the parties proposed to settle for $20. I 

approved the proposed settlement. 

DOCKET NO. LAKE 83-77-M 

Citation No. 2089071 

This citation charged a violation of 30 C.F.R. 

§ 56.9-7 because the emergency stop cord on a conveyor was 

not properly located. The discussion brought out that the 

cord was within 12 inches of the pinch point and this 

conforms to present MSHA District policy. I determined 

that no violation was shown and vacated the citation. 

Citation No. 2089072 

This citation charged a violation of 30 C.F.R. 

§ 56.9-7 because an accessible stop cord was not present 

along the entire length of the conveyor. Here the stop 

cord was 21 inches from the pinch point. The violation was 

originally assessed .at $20 and the parties proposed to 

settle for $100. I approved the proposed settlement. 

Citation No. 2089000 

This citation charged a violation of 30 C.F.R. 

§ 56.9-7 because emergency stop devices on both sides of a 

conveyor belt were 21 inches from the pinch points. The 

violation was originally asessed at $26 and the parties 

proposed to settle for $100. I approved the proposed 

settlement. 

Citation No. 2089041 

This citation charged a violation of 30 C.F.R. 

§ 56.14-6 because the drive chain of an elevator was 

unguarded. The guard had been removed for repairs. The 

area had been roped off but was still accessible to 

employees. The violation was originally assessed at $20 · and the parties proposed to settle for $20. I aproved the 

proposed settlement. 

19'47 

·~ 
Citation No. 2089042 

This citation charged a violation of 30 C.F.R. 

§ 56.9-11 because of a shattered windshield on a front-end 

loader. The damaged had occurred on the same shift as the 

inspection. The violation was 'originally assessed at $136 

and the parties proposed to settle for $136. I approved 

the proposed- settlement. 

Citation No. 2089046 

~ 

This citation charged a violation of 30 C.F.R. 

§ 56.14-6 because of a missing guard on a rotary feed drive. 

The violation was originally assessed at $112 and the 

parties proposed to settle for $112. I approved the 

proposed settlement. 

Citation No. 2089049' 

This citation charged a violation of 30 C.F.R. 

§ 56.11-12 because a section of a wall had fallen and was 

not cleaned up. Employees did not travel in the area. The 

violation was originally assessed at $20 and the parties 

proposed to settle for $20. I approved the proposed 

settlement. 

Citation No. 2089050 

This citation charged a violation of 30 C.F.R. 

§ 56.20-3Ca) because of material spilled on a walkway. 

This was hardened material and had apparently been present 

for some time. The violation was originally assessed at 

$119 and the parties proposed to se~tle for $119. I 

approved the proposed settlement. 

Citation No. 2089080 

This citation charged a violation of 30 C.F.R. 

§ 56.20-3Ca) because of equipment being present on walkways 

presenting tripping hazards. The violation was originally 

assessed at $85 and the parties proposed to settle for $85. 

I approved the proposed settlement. 

Citation No. 2089084 

This citation charged a violation of 30 C.F.R. 

§ 56.12-8 because power cables were out of restraining 

clamps. The cables were in good condition and were 

1948 
grounded. Employees do not travel the area. The violation 

was originally assessed at $20 and the parties proposed to 

settle for $20. I approved the proposed settlement. 

Citation No. 2089086 

This citation charged a violation of 30 C.F.R. 

§ 56.9-7 because the emergency stop devices on a conveyor 

belt were not operating. The violation was originally 

assessed at $119 and the parties proposed to settle for 

$119. I approved the proposed settlement. 

DOCKET NO. LAKE 83-80-M 

Citation No. 2089073 

This citation charged a violation of 30 C.F.R. 

§ 56.16-6 because of failure to cover the stems of compressed gas cylinders in a truck. The violation was originally assessed at $39 and the parties proposed to settle 

for $56. I approved the proposed settlement. 

DOCKET NO. LAKE 83-81-M 

Citation No. 2088997 

This citation charged a violation of 30 C.F.R. 

§ 56.14-1 because of the failure to provide guarding for 

the counterweight wheel at the No. 2 shaker stream. This 

was not a normal travelway and the only employees who would 

go in the area would be a supervisor for onshift examinations and an employee to do greasing. The machine would be 

deenergized for greasing. The violation was originally 

assessed at l20 and the parties proposed to settle for $20. 

I approved the proposed settlement.' 

Citation No. 2089063 

This citation charged a violation of 30 C.F.R. 

§ 56.4-24Cd) because of failure to properly maintain and 

service a fire extinguisher. The violation was originally 

asessed at $39 and the parties proposed to settle for $100. 

I approved the proposed settlement. 

Citation No. 2089064 

This citation charged a violation of 30 C.F.R. 

§ 56.11-1 because of material spilled along the walkway at 

the conveyor. Clean up had begun of this area. The 

1949 
violation was originally assessed at $39 and the parties 

proposed to settle for $39. I approved the proposed 

settlement. 

ORDER 

I have considered and approved the proposed settlements in the light of the criteria in section llOCi> of the 

Act. Respondent is ORDERED to pay within 30 days of the 

date of this decision the following civil penlties: 

CITATION NO. 

2088977 

2088978 

2088979 

2088980 

2088994 

2088995 

2088996 

2089061 

2089062 

2089065 

2089066 

2088998 

2088999 

2089067 

2089068 

2089069 

2089070 

2089074 

2089075 

2089076 

2089077 

2089078 

2089079 

2089043 

2089044 

2089045 

2089047 

2089048 

2089051 

2089081 

2089082 

2089083 

2089085 

2089071 

2089072 

1950 

PENALTY 

$ 20 

50 

100 

50 

20 

68 

50 

39 

20 

50 

50 

30 

112 

54 

100 

20 

20 

68 

85 

68 

85 

112 

20 

112 

68 

136 

112 

20 

85 

20 

20 

85 

20 

vacated 0 

100 
2089000 

2089041 

2089042 

2089046 

2089049 

2089050 

2089080 

2089084 

208.9086 

2089073· 

2088997 

2089069 

2089064 

Distribution: 

Total 

100 

20 

136 

112 

20 

119 

85 

20 

119 

56 

20 

100 

39 

$3,015 

Ji~ dmd.1rt~ James A. Broderick 

Administrative Law Judge 

Rafael Alvarezi Esq., Office of the Solicitor, U.S~ 

Department of Labor, 230 South Dearborn Street, Chicago, IL 

60604 (Certified Mail) 

Ralph M. Richie, Director of Safety and Office Services, 

Medusa Cement Company, Box 5668, Cleveland, OH 44101 

(Certified Mail) 

/f b 

1951 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

AUG 61984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THOMAS E. JONES, 

Respondent 

: CIVIL PENALTY PROCEEDING 

. . 

. . 

. . 

. . 

. . 

DECISION 

Docket No. WEST 81-326-M 

A.C. No. 48-00155-05076 A 

Alchem Trona Mine 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner~ 

John A. Snow, Esq. Vancott, Bagley, Cornwall & 

McCarthy, Salt Lake City, Utah, 

for Respondent. 

Before: Judge Vail 

STATEMENT OF THE CASE 

This a civil penalty proceeding under section llO(c) of the 

Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 et 

seg. (the Act). 1/ The Secretary seeks a civil penalty against 

respondent, Thomas E. Jones (Jones>, a mine maintenance foreman 

at the Alchem Trona Mine operated by Allied Chemical Corporation 

(Allied) near Green River, Wyoming. 

Jones is charged with knowingly authorizing, ordering, or 

carrying out as an agent, the corporate mine operator's violation 

of the mandatory safety standard 30 C.F.R. § 57.21-12 which 

provides as follows: 

Immediately before and continuously during welding 

or cutting with an arc or open flame or soldering 

with an open flame, in other than fresh air, or in 

places where methane is present, or may enter the 

air current, a competent person shall test for methane 

with a device approved by the Secretary for detecting 

methane. 

l/ Whenever a corporate operator violates a mandatory health or 

safety standard ••• , any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or carried out 

such violation ••• shall be subject to· the same civil penalties, 

fines, •••. that may be imposed upon a person under subsections 

<a) and (d). 

1952 
The corporate mine operator's violation was cited in a 

104(d)(l) type Citation No. 576827 issued.on April 2, 1980, and 

alleged as follows: 

In Room No. 3 of JME Panel there was a person welding 

with an arc on No. 3 miner head in the last open crosscut. There was no person testing for methane with a 

methane detecting device. The content of methane in the 

air at the miner head was .0%. Less than 20 feet away, 

the methane content was from .2% to .5%. The readings 

were taken with CSE Model 102 methane detector, the 

charge was checked after the readings and was found to 

be 3.8. The detector was last calibrated 0015 hours 

4/2/80. The panel foreman was.aware that his men were 

welding at this location. 

Jones denied the allegation. 

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

held in Green River, Wyoming. Post-hearing briefs have been 

filed by both parties. Based on the evidence presented at the 

hearing and the contentions of the parties, I make the following 

decision. To the extent that the contentions of the parties are 

not incorporated in this decision, they are rejected. 

STIPULATIONS 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Transcript at 5). 

1. Federal Mine Safety and Health Review Commission 

(Commission) has jurisdiction over the matter at issue here. 

2. Allied Chemical Corporation is, in fact, a corporation. 

3. Thomas E. Jones is an agent of Allied Chemical 

Corporation. 

FINDINGS OF FACT 

1. On April 1, 1980, Melvin R. Jacobson received a 

telephone call from a Thomas c. Dean. Jacobson is the supervisor 

in the Green River, Wyoming, Mine Safety and Health Administration CMSHA) field off ice. Dean is a miner and employee of 

Allied Chemical Corporation at their Alchem Trena Mine. Dean 

stated that during the graveyard shift on March 31, 1980, Tom 

Jones, a supervisor, allowed a piece of schedule 24 equipment 

(lube truck) to be parked and operated in and beyond the last 

open cross-cut in the south area of the mine. Also, that welding 

1953 
was being performed during this time in and beyond the last open 

cross-cut. Dean further stated that methane monitoring was not 

being conducted during the welding operation (Tr. at 10 and 

Exhibit P-1). 

2. As a .result this complaint, Jacobson sent MSHA 

inspectors William W. Potter and Robert Kinterknecht to the 

Alchem Trana Mine to conduct an investigation. 

3. On April 1, 1980, Dean had arrived at the No. 3 room of 

J.M.E. panel of the Alchem Trana Mine at approximately 12:30 a.m. 

to commence work on the graveyard shift. Dean's job was to use 

an acetylene torch to cut out the bit holders on the cutting head 

of the continuous miner. Thomas E. Jones, the foreman, had made 

a methane check at 12:30 or 1:00 a.m. on the graveyard shift CTr. 

at 24). No other methane test was conducted by Jones during the 

graveyard shift at the location of the continuous miner where 

Dean was working CTr. at 26). 

4. During the lunch hour on the graveyard shift on April 1, 

1980, Dean and Bernie Caldwell told Jones that they should not be 

welding in the last open cross-cut. Jones didn't answer the 

miners (Tr. at 32 and Exh. P-3). 

5. On April 2, 1980, at approximately 1:00 a.m., Jones 

again made a pre-shift examination for methane in the J.M.E. 

panel (Tr. at 38). MSHA inspectors Potter and Kinterknecht 

arrived at the mine at 1:45 a.m. on April 2, 1980, to investigate 

Dean's complaint of welding in the last open cross-cut of the 

J.M.E. panel. The two inspectors proceeded underground and met 

with Jones at approximately 2:25 a.m. The group then proceeded 

to the J.M.E. panel arriving at approximately 2:40 a.m. Potter 

observed a miner welding in the last open cross-cut and saw no 

one monitoring for methane CTr. at 89). Potter issued Citation 

No. 576827 CExh. P-2). 

6. At the time the citation was issued, the No. 3 

continuous miner was parked in the last open cross-cut of the 

J.M.E. panel with the head in the drift· or No. 3 room CExh. R-1 

and Tr. at 91). Potter t~ok 10 methane readings in the area with 

a methanometer. The first test was at the point were welding was 

being performed and the reading was .0%. The next test was at a 

location just inside 'the cross-cut towards the face. The reading 

was .02%, and a few feet nearer the face, a reading was 

registered at .05%. As Potter progressed towards the face of the 

drift, the readings were from .04% to a .6% at the face CTr. at 

93 and Exh. P-4>. The Alchem Trana Mine is considered a very 

gassy mine and is subject to a MSHA five day inspection schedule 

(Tr. at 95). 

• 

1954 
7. Citation No. 576827 was terminated soon after it was 

issued when Jones gave Caldwell his methanometer to check for 

methane where the welding was being done (Tr. at 101). 

ISSUES 

The issues in this proceeding are: 

1. Whether Jones, ·as an agent of the corporate operator, 

knowingly authorized, ordered, or carried out a violation of 30 

C.F.R. § 57.21-12? 

2. If so, the appropriate civil penalty that should be 

assessed against Jones for the said violation of the Act. 

DISCUSSION 

Jones admits in his testimony that on April 2, 1980, as 

maintenance foreman, he was assigned the task of having certain 

maintenance work performed in the J.M.E. panel of Allied's Alchem 

Trona Mine. This included repairs to a continuous miner _located 

in said panel. After Jones received his assignment, and firebossed the J.M.E. panel at 1:00 a.m., he assigned miners of his 

crew to various jobs. Two miners were assigned specifically to 

perform work which involved welding on the continuous miner (Tr. 

at 171-173>. · 

Jones further admitted that the continuous miner had been 

moved earlier to the last open cross-cut of the panel but could 

not be taken further from the face area because of various 

obstructions, so repairs were made while the miner was in the 

last open cross-cut <Tr. at 177-183). 

Jones further testified that the last open cross-cut in the 

J.M.E. panel is not a return air corridor, as in other mines, but 

contains fresh air (Tr. at 236). For ventilation purposes, 

Allied uses a system of tubing designed to remove dirty air (air 

that may contain methane) from the face. Jones also admits in 

his brief, that although the continuous miner was in fresh air, 

under Allied's safety practices, when welding is done in the last 

open cross-cut, continuous monitoring for methane is required 

(Resp's brief at p. 3). Jones further admits that he knew about 

a memorandum issued by Allied on March 4, 1976 which stated such 

a requirement. ( Exh. P-5 >. 

On April 2, 1982, all of Allied's continuous methane 

monitors were under repair and not available to Jones for use 

during the work being performed on the continuous miner (Tr. at 

172, 173). However, he contends that he had been instructed by 

his supervisor that while the continuous methane monitors were 

not working, he could monitor the methane conditions at the 

location of the continuous miner by using a regular hand held 

1955 
methane monitor every 15 minutes (Tr. at 171-173 and Resp's brief 

at p. 4). Jones contends that he specifically followed this 

procedure on April 2, 1980. One methane reading was taken when 

the miners were setting up their equipment to start welding and 

the second reading approximately 15 minutes later. It was at 

this time he was called to leave the area and met the MSHA 

inspectors (Tr. 190-191). 

Randy Dutton, safety engineer for Allied, testified that in 

the later part of March, 1980, the maintenance mine superintendent inquired if work could be done in the last open cross-cut 

using hand-held methane monitors as the continuous monitors were 

not working. Dutton said he did not know and would find out. He 

stated that he called the MSHA district off ice and told M.R. 

Jacobson, the supervisor, that the continuous monitors were not 

working and inquired whether it was permissible to do some 

welding beyond the last open cross-cut using hand held monitors. 

Dutton claims Jacobson said they could if they monitor and test 

for methane every ten to fifteen minutes. This information was 

passed on to the maintenance supervisor of the mine (Tr. at 224, 

225). 

Jacobson denied that he had a telephone c6nversation with 

Dutton in March of 1980, and in fact, was not well acquainted 

with him. Jacobson checked a telephone log which he maintains at 

the MSHA off ice of all calls he receives and found no calls from 

Dutton for the period of time involved here. Jacobson did find 

in his log that on May 4, 1980, Dutton had called in to report an 

accident (Tr. at 260, 261). However, Jacobson did receive a call 

from Dutton, in the spring of 1981, after Dutton became Safety 

Director, involving a proposed regulation to cover checking 

methane in the last open cross-cut (Tr. at 262). 

From the conflicting testimony regarding this issue, I find 

that the testimony of Jacobson more persuasive than that of 

Dutton. Jacobson was able to produce his telephone logs to 

support his statements that the alleged conversation never took 

place. There was no written evidence or corroboration by Dutton 

that he had this conversation and received approval from Jacobson 

for monitoring every 15 minutes as he alleged. 

Even assuming, however, that Jones was told by a supervisor 

that he could monitor every 15 minutes for methane in the last 

open cross-cut when welding, his defense must fail. The credible 

evidence in this regard clearly demonstrates that Jones took only 

1958 
the one test at the beginning of the graveyard shift on both 

April 1, and April 2, 1980, and did not test after that. Dean 

testified that he observed Jones make this one check each day 

(Tr. at 23, 24 and 36, 37). However, both Dean and Caldwell 

testified that they did not observe Jones make any further checks 

for methane on either day. It was after a discussion in the 

lunchroom on April 1, 1980, that welding in the last open crosscut without methane monitoring was dangerous and receiving no 

apparent response from Jones, that Dean telephoned the MSHA 

office and reported the matter. The seriousness of taking such 

action by Dean gives credence to his concern about the practice 

and supports his contention that no monitoring was going on. The 

evidence does not show that Dean was a complainer or raised 

safety complaints often. Also, _his testimony was corroborated by 

the other miner Caldwell who was able to observe whether Jones 

made such .methane checks as Jones claimed. There was testimony 

on behalf of Jones that due to welding glasses and mask, the 

miners could not observe the tests being made. I do not believe 

this to be valid as both men should have seen one or more tests 

performed during a whole shift, if they were being done as 

claimed by Jones. Also, not one miner or witness of his whole 

crew testified that the tests were conducted during the dates 

involved. 

Based upon the entire record in this case, I find that Jones 

was aware of the requirement to check continuously for methane 

when welding in the last open cross-cut. Also, that he ordered 

Caldwell and Dean to perform welding work in this area on April 

1 and 2, 1980, and did not monitor for methane but once during 

the entire shift. I find this is a violation of Section 

57.21-12. 

It was also shown by the evidence that the corporate 

operator, Allied was found to have violated§ 57.21-12 involving 

the same citation No. 576827 and paid a penalty assessment of 

$500.00. See Secretary of Labor v. Allied Chemical Corporation, 

(1981) Docket No. WEST 80-478-M, 3 FMSHRC 2387 CALJ) and Exhibit 

P-7. 

PENALTY 

I find the failure on the part of Jones to check for methane 

or to not supply the miners with methane checking devices and 

instruct them to make the necessary continuous test is gross 

negligence. As a supervisor, he was aware of the company memorandum requiring such tests. Also, assuming arguendo that Jones 

1957 
was given instructions by his supervisor to do so every 15 

minutes, tne credible evidence shows that no tests were made 

after the initial one at the beginning of the shift. 

As to gravity, I find that such failure to test by Jones to 

be very serious. The Alchem Trona Mine is considered a very 

gassy mine and should methane gas enter the area where welding 

was being done, an explosion could occur causing serious injury 

or death to the several miners working in the area. Although 

this was a fresh air area, it was admitted that a roof fall could 

occur which wo~ld allow methane to enter the area where the 

miners were working. 

In regards to Jones, he has no record or history of previous violations under the Act. The violation was abated in good faith 

by Jones giving one of the miners his methane monitor. There was 

no evidence presented in this case as to Jones financial 

condition or ability to pay a reasonable penalty if one is 

assessed against him. I find based upon the above that $250 is a 

reasonable penalty in this case. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, respondent Jones is ORDERED to pay the sum of $250 within· 40 

days of the date of this decision for the violation found herein 

to have occurred. "". ~/ 

z;fe?ptf~ 

Distribution: 

'l E. Vail 

nistrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

(Certified Mail) 

John A. Snow, Esq., Vancott, Bagley, Cornwall & McCarthy, 50 s. 

Main, Suite 1600, Salt Lake City, Utah 84110-3400 

(Certified Mail) 

/blc 

1958 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

. SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ELK CREEK GOLD MINES CO., 

Respondent 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 84-.21"'."M 

A.C. No. 05-03890-0~501 

Mackey No. 444 Mine 

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

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

for Petitioner1 

Mr. Lowell E. Jarratt, President, Elk Creek Gold 

Mines Co., Lakewood, Colorado, prose, 

for Respondent. 

Before: Judge Carlson 

GENERAL STATEMENT 

This case arose out of the inspection of an underground 

gold and silver mine near Black Hawk, Colorado, owned by Elk 

Creek Gold Mines Co. (Elk Creek). A hearing on the merits was 

held on May 23, 1984 in Denver, Colorado under provisions of 

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

et seg. (the Act). The Secretary seeks civil penalties for four 

alleged violations of standards promulgated under the Act. 

The parties waived the filing of post-hearing briefs. 

ISSUES 

The essential questions to be decided are: 

Cl) Whether respondent operator was r~sponsible 

under the Act for any or all of the violations 

alleged, or whether the liability, if any, 

lay with an independent contractor. 

<2> To the extent that respondent may have been 

responsible, whether the alleged violations 

occurred, and, if so, what civil penalties are 

appropriate. 

195j 
REVIEW AND DISCUSSION OF THE EVIDENCE 

Background 

On September 22 and 23, 1983, Inspector Arnold P. Kerber, 

the Secretary's sole witness, visited the site of the Mackey 

No. 444 Mine, where this case arose. The evidence shows that 

a report from a State of Colorado mine inspector prompted the 

Mackey's federal inspection. It further shows that at the time 

of inspection the mine, closed for many years, was being reopened by Elk Creek Gold Mines Co., the respondent. This small 

corporation had been formed to take over the Mackey and restore 

production. Mr. Lowell E. Jarratt, respondent's only witness at 

the hearing, is president of the company and general manager of 

the mine. 

On the date of Kerber's inspection, shaft driving was the 

only activity at the site. (The original shaft had collapsed 

many years before.) 

Kerber's four citations involved respondent's failure to 

register the mine as required by the Secretary's standardsi 

failure to post warning signs near the explosives magazinei 

failure to post warnings near a fuel tank, and a failure to 

provide a berm at the edge of a dump site. 

The Contractor Defense 

It is undisputed that Elk Creek had entered into a written 

agreement with a Ted Anderson to drive the new 300 foot shaft 

(respondent's exhibit 1). Signed on June 10, 1983, the contract 

provided that Anderson would provide the miners, pay them, and 

provide certain tools and personal equipment to be used by them. 

No one disputes that the fuel tank and explosive magazine 

were owned by Elk Creek, as was the small front-end loader used 

to remove muck from the shaft. 

On the two successive days of his inspection, Inspector 

Kerber observed two miners blasting in the shaft and removing 

muck with Elk Creek's front-end loader. These men told Kerber 

that neither was in charge, but that both were working for Ted 

Anderson. Kerber saw these men dumping muck over an embankment, 

the edge of which was not protected by a berm. 

1960 
The other men were seen by the inspector at various times 

attempting to start a scoop tram. Both identified themselves as 

Elk Creek shareholders. 

At the time of the inspection, Ted Anderson was not at the 

mine site. Mr. Jarratt acknowledged at the hearing that Anderson 

was in Florida during most of the shaft driving operation, and 

that Elk Creek was greatly displeased with Anderson's performance 

on the contract. 

With respect to the magazine, fuel tank, and the berm 

citations, Elk Creek contends that the full responsibility for 

compliance lay with Anderson as an independent contractor. As 

Mr. Jarratt put it: "I wasn't watching those things because it 

was his [Anderson's] responsibility, so I'm asking that these 

charges be dismissed." (Transcript at 35.) 

The relationship between Elk Creek and Anderson had the 

earmarks of an agreement between an owner and an independent 

contractor. The Act is enforceable against mine "operators." 

By definition, independent contractors are "operators," 30 U.S.C. 

§ 802(d). The Secretary of Labor has promulgated a regulation 

which provides guidelines to his inspectors as to when to cite 

the owner-operator, when to cite an independent contractor, or 

when to cite both. 30 C.F.R. § 45, Appendix A. The guidelines 

are lengthy, but generally give weight to such matters as which 

party contributed to the creation of a violation, whose employees 

are exposed to the hazards flowing from a violative condition, 

and who had control over the conditions that needed abatement. 

In Phillips Uranium Corporation, 4 FMSHRC 549 (1982), the 

Commission majority took the position that citations issued 

against owners may be dismissed where the Secretary's decision 

to proceed against the owner, rather than a contractor, was 

not consistent with the purposes and policies of the Act. The 

Act, according to the majority, mandates that contractors who 

created violative conditions and who are in the best position to 

eliminate the attendant hazards and to prevent their recurrence, 

should be the subject of the Secretary's enforcement efforts. 

In the present case it is clear that the duty to post 

warning signs at the powder magazines was that of the owner, 

Elk Creek. It owned the magazine and supplied the powder. 

Moreover, the two shareholders working outside the portal were 

plainly "miners" under the broad definitions of the Act, and 

must be considered Elk Creek's employees since they were not 

Anderson's. An explosion of the magazine would have endangered 

them as well as Anderson's two miners at the site. For these 

reasons, the citation was properly issued to Elk Creek. 

1961 
Liability for failure to post proper warning signs at the 

fuel storage area would likewise fall upon Elk Creek, as owner of 

the tank. A party to a venture who agrees to provide a facility 

for use of a contractor must surely comply with any regulations 

pertaining- to warning signs or placards required for safe use of 

the facility. Here, too, Elk Creek was the proper recipient of 

the citation. 

As to the berm citation, only shaft workers paid by Anderson 

were apparently involved in dumping muck down the unprotected 

embankment. The alleged violation was unrelated to the condition 

of the machine or machines furnished by Elk Creek. Whether the 

berm should be furnished by Elk Creek or its contractor is at 

least arguable. In this case, however, the evidence showed that 

Anderson, the contractor, had virtually abandoned his responsibility in managing or supervising the shaft operation. Rather 

plainly, this included safety aspects of the project. Neither 

of the two Anderson men had any supervisory authority, and the 

blasting and mucking were proceeding willy-nilly, with no 

apparent direction from anyone. Elk Creek knew of this unfortunate state of affairs, and although displeased, permitted it to 

continue. The owner-operator has overall responsibility for 

safety compliance, and may not divest itself of that responsibility by engaging a contractor who fails to exert any effort 

toward safety. When it became clear, as it did before the 

inspection, that Anderson was not at the site and that no one 

else was exerting any true authority over shaft operations, the 

full safety responsibility reverted to Elk Creek. No other 

result is consistent with the intent of the Act. The berm 

citation was properly issued to Elk Creek. 

Violations 

We now turn to a consideration of whether the violations 

occurred. 

Citation 2098576 - The Magazine 

During his inspection, Mr. Kerber noted that Elk Creek's 

magazine, which contained explosives, had no warning signs 

indicating that it was a magazine. This testimony was not 

disputed. He cited the company with a violation of the standard 

published at 30 C.F.R. § 57.6-20(i), which provides that 

magazines shall be: 

[p]osted with suitable danger signs so 

located that a bullet passing through 

the face of the sign will not strike 

the magazine. 

The violation is established. 

1962 
Citation 2098578 - The Fuel Area 

. According to Inspector ~erber, a fuel storage area with a 

large tank and several fuel barrels displayed no warning signs 

against smoking or open flames. This area was used to refuel 

vehicles at the mine, he testified. This evidence, too, was 

undisputed by Elk Creek. The inspector cited the company for a 

violation of 30 C.F.R. S 57.4-2. That standard provides: 

Signs warning against smoking 

and open flames shall be posted 

so they can be readily seen in 

areas or places where fire or 

explosion hazards exist. 

That motor fuels offer an explosion hazard is beyond cavil. 

The violation is established. 

Citation 2098579 - The Berm 

Inspector Kerber watched as one of the miners driving the 

new shaft steered a small, diesel powered front-end loader to the 

brink of a steep bank to dump muck from the bucket. The drop, he 

testified, was about 100 feet. No berm (protective ridge) or 

other barrier had been built at the edge of the bank to protect 

vehicles from slipping over. The bucket of the loader extended 

past the edge during dumping. Should the vehicle go over the 

edge, Kerber believed, the driver could suffer fatal injuries. 

He therefore cited Elk Creek with a violation of 30 C.F.R. § 

57.9-54. That standard provides: 

Berms, bumper blocks, safety hooks, 

or similar means shall be provided 

to prevent overtravel and overturning 

at dumping locations. 

The truth of the inspector's testimony was uncontested. The 

violation is established. 

Citation 2099781 - Notification of Legal Identity 

The Secretary's regulation published at 30 C.F.R. § 41.11 

requires that all mine operators file written notification of 

their nlegal identityn with the district manager for the Mine 

Safety and Health Administration in the district where the mine 

is located. The notice must be filed within 30 days of the 

opening of a new mine and, for a corporate operator, must provide 

extensive information. 

196J 
The inspector found no record of a filing by Elk Creek, and 

therefore issued a citation for a failure to register under the 

regulation. 

Elk Creek acknowledges that it failed to file a formal 

notification. It defends, however, on the basis that Mr. Jarratt 

personally visi.ted the MSHA district manager on or about June 10, 

1983 to inquire about requirements under the Act. The manager 

provided certain materials to him, but at no time mentioned the 

notification requirement. 

Although Mr. Jarratt's visit to the manager's office 

demonstrated an admirable desire to comply with the government 

rules, it cannot serve as the basis for an outright dismissal of 

the citation. There is no evidence that the manager deliberately 

misled Jarratt. The requirement of the notification rule is 

absolute, and constitutes an essential element of the entire 

enforcement scheme under the Act. 

Additionally, the evidence indicates that more than 30 days 

had elapsed since work at the mine site had begun. Arrangements 

for the reopening had begun in June, and by the time of the 

inspector's visit the shaft had progressed some 230 feet with 

only a two-man crew working. 

The violation is established. Elk Creek's manifest good 

faith is a favorable factor to be weighed in assessing penalty. 

Significant and Substantial Charge 

The Secretary classified the violation involving the lack 

of a berm at the edge of the dump area as "significant and substantial" under section 104(d) of the Act. In Cement Division, 

National Gypsum Company, 3 FMSHRC 822 (1981), the Commission 

defined such a violation as one where " ••• there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." 

The evidence presented in this case shows that the 

Secretary's classification was correct. The absence of a 

berm or similar barrier at the brink of the embankment created 

a realistic possibility that a miscalculation or moment of inadvertance could cause a front-end loader to go over the edge 

while dumping muck. Were that to happen, the equipment operator 

could quite clearly suffer serious injury or even death, since 

the unrebutted testimony showed that the bank was too steep for 

brakes to hold the vehicle, and the fall could be as far as 100 

feet. The violation described in citation 2098579 was "significant and substantial." 

1964 
Penalties 

The Secretary seeks a civil penalty of $20.00 for each of 

the violations in this case, except for the berm violation, for 

which $54.00 is proposed. Section llO(i) of the Act requires the 

Commission, in penalty assessments, to consider the operator's 

size, its negligence, its good faith in seeking rapid compliance, 

its history of prior violations, the effect of a monetary penalty 

on its ability to continue in business, and the gravity of the 

violation itself. 

Virtually all these factors weigh heavily in Elk Creek's 

favor. The operation is quite small. Management's belief that 

its contractor bore the responsibility for most of the areas in 

which the violations arose, though in error, was held in obvious 

good faith. For that reason I consider the level of negligence 

relatively low. The record showed that the company achieved 

prompt abatement of all infractions. The mine had no history of 

prior violations. Only the violation involving the lack of a 

berm presents any appreciable degree of gravity. 

I must note, though, that the Secretary obviously considered these mitigating factors since the penalties proposed 

are conservative. Also, there is no evidence that the imposition 

of these modest penalties would interfere with Elk Creek's 

ability to continue in business. 

Having weighed the evidence, I must hold that $20.00 is the 

appropriate penalty for the failure to post warning signs at 

the magazine (citation 2098576), and that $20.00 is likewise 

appropriate for the lack of warning signs in the fueling area 

(citation 2098578). Because of the greater gravity of the berm 

violation, (citation 2098579), the proposed penalty of $54.00 is 

appropriate. 

Owing to the exemplary efforts made by Elk Creek to 

learn of the government's requirements upon reopening a mine, 

only the most minimal penalty is warranted for the failure to 

file a formal notification. I conclude that a sum of $5.00 is 

warranted. 

196-u 
CONCLUSIONS OF LAW 

Upon the entire record, and in conformity with the factual 

findings embodied in the narrative portion of this decision, it 

is concluded: 

(1) That the Commission has jurisdiction to decide 

the matter. 

(2) That respondent Elk Creek was the proper recipient 

of the citations issued by the Secretary. 

(3) That Elk Creek violated the standard published at · 30 C.F.R. S 57.6-20(i) as charged in citation 2098576, 

and that $20.00 is the appropriate penalty for the 

violation. 

(4) That Elk Creek violated the standard published at 

30 C.F.R. S 57.4-2 as charged in citation 2098578, 

and that $20.00 is an appropriate penalty for the 

violation. 

(5) That Elk Creek violated the standard published at 

30 C.F.R. § 57.9-54 as charged in citation 20985791 

that the violation was "significant and substantial"1 

and that $54.00 is the appropriate penalty for the 

violation. 

(6) That Elk Creek violated the rule published at 

30 C.F.R. § 41.11 as charged in citation 2099781, 

and that $5.00 is an appropriate penalty for the 

violation. 

ORDER 

Accordingly, the four citations in this case are ORDERED 

affirmed, and Elk Creek is ORDERED to pay a total civil penalty 

of $99.00 within 30 days of the date of this decision. 

John A. Carlson 

Administrative Law Judge 

1960 
Distribution: 

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

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

Colorado 80294 ~Certified Mail) 

Mr. Lowell E. Jarratt, Elk Creek Gold Mines Company, 815 Kendall 

Street, Lakewood, Colorado 80214 <Certified Mail) 

1967 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JU.DGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 M"U"' 1U 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROSS ISLAND SAND & GRAVEL 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-111-M 

A.C. No. 35-00540-05501 

Ross Island Plant 

DECISION 

Appearances: Robert A. Friel, Esq., Office of the Solicitor, U.S. 

Department of Labor, Seattle, Washington, 

for Petitioner1 

Mr. R.G. Tuttle, Corporate Director, Ross Island 

Sand and Gravel, Portland, Oregon, 

appearing Pro Se. 

Before: Judge Vail 

STATEMENT OF THE CASE 

In the above proceeding, the Secretary of Labor on behalf of 

Mine Safety and Health Administration CMSHA), seeks civil 

penalties against the respondent for two alleged violations of 

mandatory safety standards. The violations were charged in two 

citations issued on June 1, 1983, which violations were not 

considered significant and substantial, and penalty assessment of 

$20.00 each was proposed. The respondent initially contested the 

citations. 

On September 6, 1983, respondent wrote the Secretary proffering a check in the sum of $40.00 to settle the above matter. 

On September 19, 1983, the Secretary submitted a Motion to 

Approve Settlement to the Commission proposing that the $40.00 be 

accepted in full settlement. The motion was denied and an order 

was issued to the parties to submit additional information. 

Additional information was submitted and again the settlement 

proposal was denied. The case was then assigned to this writer 

for hearing. 

A further supplemental petition for settlement was submitted 

?n May 10, 1984, which was denied by order dated May 10, 1984. 

1968 
The case was heard on the merits on June 22, 1984. Robert 

W. Funk, MSHA inspector testified on behalf of petitioner. Paul 

T. Godsil testified on behalf of respondent. Post hearing briefs 

were waived. 

FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

Respondent is a medium sized operator. It employes approximately 15 miners at its Ross Island Plant. Payment of a 

reasonable penalty will not impair respondent's ability to 

continue in business. Respondent demonstrated good faith in 

correcting the two cited conditions (Transcript at 13, 14). In 

the previous 24 months, respondent had no citations. 

Respondent admits that the two violations cited on June 1, 

1983, in citation Nos. 2225917 and 2225918 existed. However, it 

contests the negligence and gravity of conditions involved in the 

violations (Tr. at 14). 

Citation No. 2225917 

On June 1, 1983, a citation was issued to the respondent 

alleging a violation of 30 C.F.R. § 56.11-1. Respondent was 

cited for a work deck area behind the scalper screen being 

littered with wood and other debris. 

In respondent's mining process, material is dredged from a 

lagoon, loaded on barges and clam-bucketed onto a hopper. The 

scalper screen is at the top of a hopper and collects debris in 

the material where it starts to be processed. A miner (stick 

picker) stands on a platform and picks wood and debris from this 

screen as it accumulates. The wood and debris is laid in a pile 

on the platform where the stick picker works. The platform on 

which the miner works is also a walkway approximately 8 feet wide. 

Only one person, the stick picker, is on this platform and exposed to the danger of tripping and falling if debris or wood 

accumulates. The inspector testified that from the size of the 

pile, he estimated it to be an accumulation of two days work. An 

injury from tripping could cause lost workdays or restricted 

duty. 

Respondent admitted the violation but contends that the pile 

of wood and debris is usually cleaned up at a point half way 

through the shift. It is argued that removing the debris in this 

manner is preferred over throwing the material over the side of 

the platform to the ground 40 to 50 feet below. 

1969 
I find, based on the facts, that there is only one employee 

exposed to injury at this location at a given time and the injury 

would be from tripping and falling and would in likelihood not be 

serious or fatal. Based on a consideration of the criteria in 

section llOCi) of the Act, I conclude that an appropriate penalty 

for the violation is $20.00. 

Citation No. 2225918 

On June l~ 1983, Citation No. 2225918 was issued to 

respondent alleging a violation of 30 C.F.R. § 56.16-5 due to an 

acetylene bottle located in the welding bay not being secured. 

Funk testified that he observed one acetylene bottle in respondent's welding bay area which was not in the rack supplied 

for storing such bottles. The risk to such a condition is that 

if the bottle were to fall over, acetone in the bottle can get 

into the valve causing it to deteriorate leaking into the hose 

and cause an explosion. Funk admitted that it was unlikely that 

an accident would occur. , 

Respondent admitted the above facts but contends that the 

bottle was empty. Also, that hoses attached to acetylene bottles 

have flashback arresters to eliminate the danger of flashing back 

and causing a fire. Based on a consideration of the criteria in 

section llO(i) of the Act, I conclude that an appropriate penalty 

for the violation is $20.00 

CONCLUSION 

My assessment of the penalties herein is as follows: 

1. Respondent is a medium sized operator. 

2. Respondent was negligent in permitting each of the 

violations to occur. 

3. A penalty will have no effect on respondent's ability to 

continue in business. 

4. Respondent had no prior citations in the past 24 months. 

5. The violations are not serious. 

6. Respondent showed good faith in achieving rapid 

compliance. 

1970 
ORDER 

Based upon the above findings of fact and conclusions of 

law, respondent is ORDERED to pay the total sum of $40.00 for the 

two violations found herein to have occurred. I understand 

respondent has previously submitted payment of the $40.00 in this 

case in satisfaction thereof, and the above captioned matter is 

DISMISSED. 

~~du//~ Virgil • Vail 

Admf strative Law Judge 

Distribution: 

Robert A. Friel, Esq. Office of the Solicitor, U.S. Department of 

Labor, 8003 Federal Building, Seattle, Washington 98174 

{Certified Mail) 

Mr. R. G. Tuttle, Corporate Director, Ross Island Sand & Gravel 

Company, 4315 S. E. McLoughlin Boulevard, P.O. Box 02219, 

Portland, Oregon 97202 {Certified Mail) 

/blc 

1971 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 · 

DENVER, COLORADO 80204 

AUG 101984 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

JAMES L. MERCHEN, 

Respondent 

Docket No. CENT 81-58-M 

: A.C. No. 39-00055-05042 A . . 

: 

. . 

. . 

Homestake Mine 

DECISION 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner~ 

Robert A. Amundson, Esq., Amundson & Fuller, 

Lead, South. Dakota, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor of the United States, the individual 

charged with the statutory duty of enforcing the Federal Mine 

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

charges James L. Merchen with violating Section llO(c) of the 

Act. 

Section llO(c), now codified at 30 u.s.c. § 820(c), 

provides, in part, as follows: 

Whenever a corporate operator violates a mandatory 

health or safety standard ••• any director, officer, 

or agent of such corporation who knowingly authorized, 

ordered, or carried out such violation ••• shall be 

subject to the same civil penalties, fine, and imprisonment that may be imposed upon a person under subsections Ca> and Cd). 

After notice to the parties a hearing on the merits was held 

in Lead, South Dakota on September 28, 1983. 

The parties filed post trial briefs. 

1972 
Issues 

The issues are whether respondent violated the Act, and, if 

so, what penalty is appropriate. 

Stipulations 

The parties stipulated that Homestake Mining Company was 

cited for violating 30 C.F.R. 57.6-107.1/ Further, Homestake 

Mining Company did not contest the citation and paid the penalty. 

In addition, it was agreed that this case arises from the same 

incident (Transcript at page 48). 

Summary of the Evidence 

MSHA witnesses included William Donely, Rick Tinnell, Dallas 

Tinnell, Wayne Lundstrom and Richard Fischer. 

MSHA's evidence shows that Homestake Mining Company, a 

corporation, mines gold that is shipped in interstate commerce 

(Tr. 7, 8; Exhibit Pl). 

On the day shift of January 24, 1980 miners had drilled 25 

holes to a depth of 10 feet in a drift round. The following 

shift included miners Rick Tinnell and his partner, Ward Sperry. 

Tinnell and Sperry drilled 10 to 12 more holes and blasted the 

round. When they inspected at the face they saw two misfired 

holes (Tr. 15; P3}. 

Rick Tinnell discussed the misfires with James Merchen, his 

supervisor, who was serving as the acting boss of the night 

shift. Merchen told them to fire the holes. At the end of the 

shift Sperry didn't explode the misfires because he could not 

locate any powder (Tr. 8, 116). Tinnell was unsuccessful in 

reblasting and washing out the explosives (Tr. 41, 66-67). The 

day shift was advised of the condition CTr. 16). 

When the miners returned the next night they found the day 

shift had drilled two holes, cut a "V", and blasted. But the 

misfires remained (Tr. 16). Merchen suggested Tinnell and Sperry 

bar out the misfires CTr. 16). 

Merchen further told the miners to drill two holes parallel 

to the misfired holes. He pointed to the area where he wanted 

the holes drilled. The area was four to six inches from the 

misfired holes CTr. 17, 38). Tinnell and Sperry both thought 

1/ The standard provides: 

57.6-107 Mandatory. Holes shall not be drilled where there 

is danger of intersecting a charged or misfired hole. 

1973 
that drilling this close was unsafe. They discussed it with 

Merchen. Tinnell suggested the use of a remote drill but Merchen 

refused to use this procedure (Tr. 18, 39, 40). 

Rick Tinnell had never been instructed to drill that close 

to misfired holes. He felt it was dangerous because the steel 

could wander and hit the cap (Tr. 75, 77). 

Following -Merchen's instructions Tinnell drilled two holes 

approximately 2 1/2 feet deep. The holes were loaded and shot. 

This eliminated the misfired holes (Tr. 17, 18). 

At the end of the shift Tinnell and Sperry filled out their 

time slips for 4 hours at the contract rate and 4 hours at the 

day's pay rate (Tr. 62). The miners refused Merchen's request to 

change the time slips to 8 hours contract rate CTr. 62). 

Dallas Tinnell, father of Rick Tinnell and the president of 

the local union, expressed the view that drilling even 12 inches 

from misfired holes can be dangerous. When collaring a hole the 

new drill could jump and go into the previous hole CTr. 86, 87). 

Homestake Mining Company's rules in its safety book suggest 

precautions to be taken when miners drill into misfired holes 

(Tr. 88-921 Exhibit P7). 

Richard Fischer, MSHA's expert, stated it was a violation of 

30 C.F.R. 57.6-107 to drill within 12 inches of two misfired 

holes <Tr. 100-1071 P9). A definite danger of intersecting the 

prior holes existed. Merchen should also have used a manifold 

<Tr. 108, 111). A fatality could result if the one and a half 

pounds of explosives were ignited (Tr. 112). 

Respondent's witnesses were James Merchen, Audrey Merchen 

and Joel Waterland. 

On January 24, 1980 James Merchen was the relief shift boss 

supervising 15 miners (Tr. 124). 

Merchen saw the misfires in the center of the round (Tr. 

126). He told Sperry to blast them but the following day 

holes remained (Tr. 127). Unsuccessful efforts to remove 

misfires included plastering, blasting, and washing them. 

the prior shift had cut a "V" in an effort to remove the 

misfires. 

the two 

the 

Also 

Merchen told Tinnell and Sperry to drill two holes 10 to 12 

inches on either side of the misfires (Tr. 128, 129). The men 

were instructed to drill parallel to the misfires. Merchen had 

used this method before. Tinnell and Sperry suggested drilling 

1974 
the misfires from the manifold. Merchen denied there was any 

discussion with Tinnell or Sperry to the effect that Merchen's 

proposal was dangerous (Tr. 129-131, 138). 

At the end of the shift a heated discussion took place 

between Merchen, Tinnell and Sperry about the pay for the shift. 

The miners refused to change their daily reports. A grievance 

was later filed over this issue (Tr. 133, 134). The~e was no 

discussion about blasting the misfires when the three men argued 

over the daily reports (Tr. 134). 

Merchen was aware of MSHA's regulations. He didn't knowingly tell the miners to violate them (Tr. 137). 

Merchen, financially "poor", now earns approximately $10 per 

hour from Homestake Mining Company. He has a partnership in the 

farm but it is "in the red" (Tr. 135, 136, 146). 

Audrey Merchen, respondent's sister-in-law, indicated that 

at one time after this incident Ricky Tinnell said he "got at 

Merchen• (Tr. 163, 165). 

Joel waterland, an expert witness for respondent and a 

Homestake employee, indicated that Merchen did all he could under 

the circumstances. The wires had been checked and the cap was 

found to be dead. The miners were unsuccessful in washing out 

the misfire, in plaster blasting it, in "V" cutting it CTr. 147, 

151-153, 158). In Waterland's opinion no violation of the 

regulations occurred. If you drill straight into the face two 

feet from a misfire the wall will not break when it is exploded 

(Tr. 151-153, 156). 

Discussion 

The Commission has ruled that the proper legal inquiry for 

the purpose of determining corporate agent liability under 

Section llO(c) is whether the corporate agent "knew or had 

reason to know" of the violative condition. Secretary v. Kenny 

Richardson, 3 FMSHRC 8, 16 (January, 1981), aff'd, 689 F. 2d 623 

(6th Cir. 1982), cert. denied, 77 L.Ed. 2d (1983). There the 

Commission held: ~ 

If a person in a position to protect safety and 

health fails to act on the basis of information that 

gives him knowledge or reason to know of the existence 

of a violative condition, he has acted knowingly and 

in a manner contrary to the remedial nature of the 

statute. 

1975 
For the reasons hereafter noted I credit the Secretary's 

evidence on the credibility issues in the case. 

The facts here establish that Merchen was the acting shift 

boss. The two misfires were brought to his attention. He then 

"directed" Tinnell and Sperry, relatively inexperienced miners, 

to drill parallel to the misfires. By his own admission the 

drilling was to be within 10 to 12 inches to each side of the 

misfires (Tr. 128, 129). 

The regulation, 30 C.F.R. § 57.6-107, prohibits drilling 

where there is a "danger of intersecting a charged or misfired 

hole." The danger is especially present here because of the 

shattered area behind the face. Merchen relies on his instruction to the miners to drill parallel to the holes. But 

since the previous shift had drilled 25 of the 35 or 37 holes 

Merchen would have no way of knowing the angle of any of the 

holes drilled by the previous shift. 

Merchen knew of MSHA's regulation and there was a clear 

danger that Tinnell and Sperry could intersect the misfired 

holes. 

A conflict exists in the testimony of MSHA's expert, Richard 

Fischer, and respondent's witness Joel Waterland. I credit 

Fischer's testimony. He has a greater degree of expertise than 

Waterland (Tr. 102, Exhibit P9). In addition, Homestake's safety 

rules support Fischer's testimony. The rules have the following 

relevant directives concerning "Drilling": 

1. Ground must be closely examined before drilling 

to prevent drilling into a "misfired hole" Ca hole 

with all or part of its explosive charge left in it) 

which might explode and kill the driller and nearby 

workmen. 

A "missed hole" found in a working place should be 

handled as follows: 

Ca) If possible put in a new primer and blast the 

hole before proceeding with any other work unless 

it can be blasted at the end of the shift. 

Cb) If this cannot be done, wash the explosive out 

of the hole with a stream of water. 

Cc) If neither of the above procedures is possible 

nor practical, mark the hole plainly with chalk or 

crayon and advise your boss of its location. Work 

may then proceed under the following restrictions: 

Ci) In stopes, do not drill within five feet of 

the "missed hole." 

Cii) In drifts, crosscuts, or raises, consult your 

boss about how to handle the hole. If it is practical, he may tell you to blast out the hole by drill1976 
ing and blasting another hole at an angle to it. In 

such a case, the collar of the ne~ hole should be at 

least two feet from the collar of the "missed hole." 

The hole should be collared manually, then drilled _ 

out by a drill with an automatic feed. Then the 

driller will retire from the face and turn the drill 

off from the airline valve located at the hose connection to the air pipeline, or from a valve still 

further back in the airline if the pipeline end is 

too close to the face. 

Emphasis added, Exhibit P7, pages 71-72. 

The most restrictive circumstances in Homestake's safety 

rules require drilling at least two feet from the misfired holes. 

Merchen directed the drilling, by his own admission, at a point 

10 to 12 inches from the misfires (Tr. 128, 129). 

In his post trial brief respondent raises several issues. 

He initially asserts MSHA, with this inexplicit regulation, must 

prove the holes were drilled in a location where there was a 

danger of intersecting a charged or misfired hole. 

The Secretary's expert witness establishes this evidence. 

He indicated that drilling within 12 inches is hazardous (Tr. 

107). It was hard to determine how much the drill might wander 

but the danger is definite, in part, due to the underlying 

fracture (Tr. 108). 

Respondent's post trial brief further asserts that this case 

is a classic example of a shotgun approach to "get even" with a 

supervisor on the part of a miner and his father's union (Brief, 

page 14). I am not persuaded by this argument. There is such a 

paucity of evidence on the issue that it would be totally speculative to rest a decision on that facet of the case. Further, I 

do not find there was such motivation on the part of Rick Tinnell 

and Sperry. If there was such a motivation it would surely have 

been mentioned when the three men had a "heated argument" about 

the pay for the shift. 

A good portion of respondent's brief must be denominated as 

an assertion that 30 C.F.R. § 57.6-107 is unconstitutionally 

vague. 

I agree this standard is not detailed but the Commission has // 

previously observed, in a similar context, that "many standards 

must be 'simple and brief in order to be broadly adaptable to 

myriad circumstances.'" Alabama By-Products Corp., 4 FMSHRC 

2128, at 2129 (1982). The Commission has measured similar 

regulations against the standard of whether a reasonably prudent 

person familiar with the factual circumstances surrounding the 

allegedly hazardous condition, including any facts peculiar to 

1977 
the mining industry, wo~ld recognize a hazard warranting 

corrective action within the purview of the applicable regulation. 

See, e.g. Voegele Co., Inc. v. OSHRC, 625 F. 2d 1075, C3d Cir. 

1980). By: applying this test to the facts of this case due 

process problems stemming from the respondent's asserted lack of 

notice are avoided. Cf, United States Steel Corporation, 5 

FMSHRC 3, (1983). 

For the above reasons the Secretary's petition alleging a 

violation of Se~tion llOCc> of the Act should be affirmed. 

CIVIL PENALTY 

The Secretary proposes a civil penalty of $500 against 

respondent for this violation. The Secretary's narrative 

findings for a special assessment do not consider respondent's 

history nor his financial status. 

Considering the statutory criteria, 30 U.S.C. 820Ci), I 

believe a civil penalty of $250 is appropriate for this 

violation. 

Based on the foregoing findings of fact and conclusions of 

law stated herein I enter the following: 

ORDER 

1. Petitioner's petition for assessment of a civil penalty 

against respondent James L. Merchen is affirmed. 

2. A civil penalty of $250 is assessed for the foregoing 

violation. 

Distribution: 

. tr--r{--- "'-· . )~'>~- John J. Morris 

Administr~iive Law Judge 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

(Certified Mail) 

Robert A. Amundson, Esq., Amundson & Fuller, 215 West Main, P.O. 

Box 875, Lead, South Dakota 57754 (Certified Mail) 

/blc 

1978 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 151984 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA) , ON BEHALF OF 

JOHN COOLEY, 

Complainant 

v. 

OTTAWA SILICA COMPANY, 

Respondent 

....... ; 

. 

. . 

ORDER 

Docket No. LAKE 81-163-DM 

Michigan Division Quarry 

On March 30, lg84, the Commission issued its decision in 

this matter reaffirming my decision that the complainant 

John Cooley was discriminated against in violation of section 

105(c) of the Federal Mlrie Safety and Health Act of 1977. 

However, the Commission vacated my findings concerning the 

back pay and other benefits due the comptainant, and remanded 

the case for a recomputation of the amount due the complainant. 

In response to my Order of April 16, 1984, the parties have 

now filed a stipulation concerning the amount due to the 

complainant. Upon review and consideration of this stipulation, 

I conclude and find that it complies with the Commission's 

remand order, and a copy of the stipulation is attached hereto 

and incorporated by reference. However, I take note of two 

typographical errors in the materials attached as part of the 

stipulation, and they are as follows: 

Exhibit B - Back Pay 2nd Quarter 1980 - Should read 

$2,168.08, rather than $21.68.08. 

Exhibit B - Back Pay 3rd Quarter 1980 $3,542.98. The 

amount shown as $3,542.98, rather than 

$4,032.05, should be shown as the actual 

multiplier for each of the computations 

made for the periods reflected as the 

interest due the complainant. 

Having noted the aforesaid typographical errors, the 

corrections noted are incorporated herein by reference, and 

the stipulations, as corrected, are herein entered as my final 

1979 
order in this matter, and the respondent IS ORDERED to make 

payment to Mr. Cooley in the amounts shown, and to reinstate 

him as provided in my decision. 

Attachment 

Distribution: 

0 g • Kout~~ tf~-

Administrative Law Judge 

David F. Wightman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn St., 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Frank x. Fortescue, Esq., Brown, McGlynn & Fortescue, 500 North 

Woodward, Suite 320, Bloomfield Hills, MI 48013 (Certified 

Mail) 

/ejp 

1980 
-~=" .. 

UN,ITED STATES DEPARTMENT OF LABOR 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABGR, ; 

MINE SAFETY AND HEALTH-7 ADMINISTRATION 

(MSHA) 

on behalf of John Cooley ~ 

v. 

Docket No.LAKE 81-163 DM 

OTTAWA SILICA COMPANY 

STIPULATION OF PARTIES ON REMAND 

Now comes the parties, by their respective attorneys and, in 

response to the March 30, 1984 Decision of the Federal Mine Safety 

and Health Review Commission remanding this matter to Administrative 

Law Judge George Koutras for a reformulation of the remedial order, 

. 

enter into the following stipulations. 

1. Administrative Law Judge George Koutras' June 3, 1982 

Decision ordered defendant to reinstate John Cooley with back pay 

from May 5, 1980. 

2. John Cooley has not been reinstated. 

3. Had John Cooley been reinstated on May 5, 1980, he would 

have been furloughed by defendant due to lack of work beginning 

April 19, 1982. 

4. John Cooley's furlough would have continued through at 

1981 
least April 20, 1984. Pursuant to the collective bargaining agreement between the Michigan Division of .the Ottawa Silica Company 

and Teamster's Local Uriion No. 283 (hereinafter Labor Agreement)~ 

a furlough of more than two years breaks the employee's seniority 

and terminates his right to recall with defendant. 

5. For the perior~ay 5, 1980 through April 19, 1982, John 

Cooley's wages as a laborer would have totaled $28,738.08. .. . 

6. For the period May 5, 1980 through April 19, 198?, John 

Cooley's vacation pay would have totaled $618.40. 

7. Pursuant tofue Labor Agreement, for the period May 5, 1980 

through April 19, 1982, defendant shall make pension contributions 

on behalf of John Cooley to the Central States Southeast and 

Southwest Areas Pension Fund. 

8. For the period May 5, 1980 through April 19, 1982, the 

total of John Cooley's back wages listed in paragraphs 5 throuth 

7.herein is $29,356.48 and is broken down by calendar quarters in 

the attached Exhibit A. 

9. Under the formula provided in Bailey v Arkansas-Carbona Co. 

& Weller, 3 MSHC 1152 (Dec. 1983), interest on the $33,053.17 in 

back wages through June 30, 1984 is $13,226.45. The interest 

computations are contained in the attached sheets labeled as Exhibit B. 

10. Interest will continue to accumulate under the Arkansas1982 
Carbona formula until such time as the back wages and accumulated 

interest are paid in full. 

OTTAWA SILICA COMPANY 

By: -i_ _ L~.~ ,.~ FRANK X. FORTESCUE, ESQ. 

Brown, McGlyna & Fprtescue 

500 N. Woodward, Suit~ 320 

Bloomfield Hills, MI. 48013 

Respectfully submitted, 

FRANCIS X. LILLY 

Solicitor of Labor 

JOHN H. SECARAS R~ional'l Sol ~c1,t·or 

/ ; . .j/. I/ ~ />t ~ 

.!~~/'~,,/· 

\.DAVID WIG~TMAN 

Attorney 

Attorneys for Raymond J. Donovan, 

Secretary of Labor, United States 

Department of Labor 

1983 
EXHIIHT A 

Period I Wages Vacation Total 

4/1/80-6/30/80 2,168.08 2,168.08 

2,168.08 

7/1/80-9/30/80 3.,490. 08 8 hrs • x 6.61 . . $52. 88 

3,542.96 

10/1/80-12/31/80 3,694.96 3,694.96 

• 3,694.96 

'l/1/81-3/31/81 3,742.72 3,742.72 

• 

4/1/81-6/30/81 3,801.20 3,801•.20 

3,801.20 

; 

7/1/81-9/30/81 3,8se.68 -16 hrs. x 7.31 3,976.64 

$116.96 

10/1/81-12/31/81 4,072.48 4,072.48 

1/1/82-3/31/82 3,075.84 3,075.84 

4/1/82-6/30/82 833.04 56 hrs. x 8.01 1,281.60 

$448.56 

TOTAL 

$28,738.08 $618.40 $29,356.48 

1984 
EXHIBIT B 

1985 
Back Pay 2nd Quarter 1980 $21.68 •. 08 

3rd Quarter 80 2,168.08.x 91 days x .0003333 = 65.758516 

4th Quarter 80 2·;168. 08 x· 90 days x .0003333 = 65.035895 

1st Quarter 81 2,168.08 x 90 days x .0003333 = 65.035895 

- 2nd Quarter 81 2,168.08 x 90 days x .0003333 = 65.035895 

.. 3rd Quarter 81 2,168.08 x 90 days x .0003333 = 65.035895 

- 4th Quarter 81 .- 2;,168.08 x 90 days x .0903333 = 65.035895 . 

1st Quarter 82 2,168-.08 x 90 days x .0005555 = 108.393159 

2nd Quarter 82 2,168.08 x 90 days x .0005555 = 108.393159 

3rd Quarter 82 2,168.08 x 90 days x .0005555 = 108.393159 

TOTAL 716.12 

Back Pay 3rd Quarter 1980 3542.96 

4th Quarter 80 4,032.05 x 91 days x .0003333 = 107.45903 

1st Quarter 81 4,0~2.05 x 90 days x .0003333 = 106.27817 

2nd Quarter 81 4,032.05 x 90 days x .0003333 = 106.27817 

3rd Quarter 81 . 4' 032. 05 x 90 days x. .0003333· = 106.27817 

4th Quarter 81 4,032.05 x 90 days x .0003333 = 106.27817 .. 1st Quarter 82 4,032.05 x 90 days x .0005555 = 177 .131

028 

2nd Quarter 82 -- 4.;, 03.2. 05 x 90 days x .0005555 = 177.13028 

3rd Quarter 82 4,032.05 x 90 days x .0005555 = 177.13028 

TOTAL 1063.96 

1986 
Back Pay 4th Quarter 1980 $3,694.9~ · 

1st Quarter 81 3,694.96 x 91 days x .0003333 = 112.06924 

2nd Quarter 81 3 ,·694. 96 x 90 days x .0003333 • . 110.83771 

. . . 3rd Quarter 81 3,694.96 x 90 days x .0003333 • 110.83771 

4th Quarter 81 • 3,694.96 x 90 days X. .0003333 • 110.83771 

lst Quarter 82 3,694.96 x 9'0 days x .0005555 • 184.72952 . • 

2nd Quarter 82 3,694.96 x 90 days x .0005555 = 184.72952 

3rd Quarter 82 .... 3;,694. 96 x 90 days x .0005555 = 184.72952 

:. 

TOTAL 998.77 

Back Pay 1st Quarter 1981 $3,742.72 

2nd Quarter 81 3,742.72 x 91 days x .0003333 =· 113.51782 

3rd Quarter 81 3,742.72 x 90 days x .0003333 = 112.27037 

4th Quarter 81 3,742.72 x 90 days x .0003333 = 112.27037 

1st Quarter 82 . 3,742.72 x 90 days x. .0005555 = 187.11728 

2nd Quarter 82 3,742.72 x 90 days x .0005555 = 187 .11.728 ~ 

I 

3rd Quarter 82 3,742.72 x 90 days x .0005555 = 187.11728 

TOTAL 
3rd Quarter 81 

4th Quarter 81 

1st Quarter 82 

2nd Quarter 82 

3rd Quarter 82 

TOTAL 

4th Quarter 81 

1st Quarter 82 

2nd Quarter 82 

3rd Quarter 82 

TOTAL 

1st Quarter 82 

2nd Quarter 82 

3rd Quarter 82 

TOTAL 

Back. Pay 2nd Quarte~ 1981 $3801.20 

3,801.20 x 91 day·s x .0003333 = 115.29153 

3., 801. 20 x. 90 day_s x .0003333 = 114.02459 

3,801.20 x 90 days x .0005555 = 190.04099 

3,801.20 x 90 days x·· • 0005555 = 190.04099 

3,S.01.20 x 90 days x .0005555 = 190.04099 

799.44 

Back Pay 3rd Quarter 1981 $3,976.64 

3,976.64 x 91 days x .0003333 

~,976.64 x 90 days x .0005555 

3,976.64 x 90 days x .0005555 

3,976.64 x 90 days ~ .0005555 

= 

= 

= 

= 

120.61268 

198.81211 

198.81211 

198.81211 

717.05 

Back Pay 4th Quarter 1981 $4,072.48 

4,0~2.48 x 91. days x .0005555 

4,072.48 x 90 days x .0005555 

·4,072.48 x 90 days x .0'005555 

1988 

= 

= 

= 

205.86590-

203.60363 

203.60363 

613.07 
2nd Quarter 82 

3rd Quarter 82 

TOTAL 

3rd Quarter 82 

4th Quarter 82 

1st Quarter 83 

2nd Quarter 83 

3rd Quarter 83 

4th Quarter 83-

1st Quarter 84 

2nd Quarter 84 

TOTAL 

Back Pay 1st Quarter 1982 $3~075.84 

3,p75.84 x 91 days X .0005555 = 

a,075.84 x. 90 days x .0005555 = 

Back Pay_ 2nd Quarter 1982 $1,281.60 

1,281.60 x 91 days x .0005555 = 

Back Pay $29,356.48 

29,356.48 x 90 days x .0005555 = 

• 29,356.48 x 90 days x .0004444 = 

29,356.48 x 90 days x .0004444 = .. 29,356.48 x 90 days x .0003055 = 

2-9,~56.48 x 90 days x .0003055 = ·-

29,356.48 x 90 days x .• 0003055 = 

29;356.'48·x 90 days x .0003055 = 

1989 

.155. 48524 

153.77662 

309.26 

64.78 

1,467.6772 

1,174.1417 

1,174.1417 

807.'1564 

807.1564 

807.1564 

807.1564 

7,044.59 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

!203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG .t ~~: '1984 

JERRY L. BLACI<BU~, 

Complainant 

v. . • 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 83-242-D 

U.S. STEEL MINING CO .... , ;NC. , Respondent 

• UNITED MINE WORKERS OF 

AMER:J:CA, .- l'.9tervenors 

HOPE CD-83-18 

ORDER OF DISMISSAL 

Before: Judge Kennedy 

For good cause shown, it is ORDEP.ED' that complainant's 

motion to withdraw the captioned discrimination complaint 

be, and hereby is, GRANTED and the case DISMISSED. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1153 ( 4). 

Distribution: 

Mr. Jerry L. Blackburn, P.O. Box 10, Wolf Pen, WV 24896 (C~rtif ied Mail) 

Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 Grant 

St., Pittsburgh, PA 15230 (Certified Mail) 

Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC 

20005 (Certified Mail) 

/e}p 

1990 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ATLAS MINERALS, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 84-33-M 

A.C. No. 42-00800-05504 

Moab Mill 

DECISION APPROVING SETTLEMENT 

Appearances: James H. Barkley, Esq., Robert J. Lesnick, Esq., and 

Peggy Miller, Esq., Office of the Solicitor, Q.S. 

Department of Labor, Denver, Colorado, 

for Petitioner; 

James A. Holtkamp, Esq., and John A. Snow, Esq., 

Vancott, Bagley, Cornwall & McCarthy, Salt Lake 

City, Utah, . 

for Respondent. 

Before: Judge Morris 

This is a civil penalty proceeding initiated by the 

petitioner against the respondent in accordance with Section 

llO(a) of Fed~ral Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a). The civil penalty is for the alleged violation of a 

-mandatory safety standard promulgated pursuant to the Act. 

At a hearing in Moab, Utah on August 23, 1984, in related 

cases the parties advised the judge that they had reached an 

amicable settlement. The parties now seek approval of their 

proposed settlement. 

Citation 2008174 alleges a violation of 30 C.F.R. 

S 57.9-88(a). The citation proposed an original penalty of $300. 

The parties now seek to amend the citation by changing its 

designation from "104-d-l" to "104-a." The parties agree the 

original penalty should be assessed. 

Discussion 

In support of the motion petitioner states he agrees with 

and relies on the assessment made by his Off ice of Assessments in 

evaluating the statutory criteria for assessing the penalty. 

1991 
I find the proposed settlement is reasonable and it should 

be approved. 

Accordingly, I enter the following: 

ORDER 

1. The settlement agreement is approved. 

2. The citation is amended to change the designation from 

"104-d-l" to "104-a." 

3. Citation 2008174 and the penalty of $300 are affirmed. 

4. Respondent is ordered to pay the sum of $300 within 40 

days of the date of this order. 

Distribution: 

< -:~ ,>;.ivv~ 

John J. Morris 

Administrative Law Judge 

James H. Barkley, Esq., Robert J. Lesnick, Esq., and Peggy 

Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 

U.S. Department of Labor, 1585 Federal Building, 1961 Stout 

Street, Denver, Colorado 80294 (Certified Mail) 

James A. Holtkamp, Esq., and John A. Snow, Esq., Vancott, Bagley, 

Cornwall & McCarthy, 50 South Main, Suite 1600, Salt Lake City, 

Utah 84144 (Certified Mail) 

/blc 

1992 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLQPR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 221:>41 

SECRETARY OF ~ABOR, 

MINE SAFETY AND HEALTH 

'ADMINISTRATION (MSHA) I. 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

. ,. 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 84-10 

A. C. No. 46-01283-03526 

Hampton No. 3 Mine 

Appearances: Kevi·n c. McCormick, Esq., Office of the Solicitor, 

U.· S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

F. Thomas Rubenstein, Esq., Big Stone Gap, Virginia, 

for Respondent. 

Before: Judge Steffey 

A hearing in the above~entitled proceeding was held on 

June 12, 1984, in Beckley, West Virginia, pursuant to section 

lOS(d), 30 U.S.<:;-·§ 815(d), of the Federal Mine Safety and 

Health Act of 1977. At the conclusion of presentation of evidence by both parties, I rendered a bench decision .. 

Before the transcript of the hearing had been received, 

counsel for respondent filed on June 22, 1984, a motion for 

reconsideration of the bench decision. A copy of the motion 

for reconsideration was served on counsel for the Secretary of 

Labor. The Secretary's counsel filed on August 8, 1984, a 

letter in which he stated that he did not intend to submit a 

reply to respondent's motion for reconsideration. 

The substance of my bench decision is first set forth 

below (Tr. 274-289). Thereafter, respondent's motion for reconsideration is denied for the reasons given. 

This proceeding involves a petition for assessment of 

civil penalty, alleging a violation of 30 C.F.R. § 75.200 by 

Westmoreland Coal Company. The issues in a civil penalty case 

are whether the violation occurred and, if so, what civil penalty should be assessed, based on the six criteria set forth 

in section llO(i) of the Act. 

Before I form a conclusion regarding the question of 

whether a violation occurred, I shall make-some findings of 

fact which will be set forth in enumerated paragraphs. 

1993 
1. I~spector Baisden went to the Hampton No. 3 Mine on 

September 16, 1982. On his inspection"'he was accompanied by 

the chairman of the safety committee, Charles Egnor. The mine 

foreman was ~lso with the inspector and Egnor when they began 

their inspection, but the mine foreman had to check into a malfunction of the tailpiece on the conveyor belt. Consequently, 

the inspe.ctor apd Egnor went to the face area unaccompanied by 

the mine foreman. · --

2. When the inspector and Egnor were close to the face 

of the No. 3 entry, the inspector noticed that there was no 

curtain in the crosscut to the right of No. 3 entry. The inspector investig~ted the absence of the curtain and found that 

there was a hole on the right side at the face of the crosscut, 

and he concluded that that made the need for installation of a 

curtain unneces~ary. But while he was examining that aspect 

of the ventilation~ ·he noticed that the crosscut had been developed for a distance which appeared to be greater than could 

have been cut with a continuous-mining machine without the 

machine's operator having proceeded inby permanent supports. 

3. 'The inspector determined that ··a measurement of the 

area should be made in order for him to ascertain whether the 

operator of the continuous-mining machine had proc~eded inby 

permanent supports. Therefore, he tied a hammer to the cloth 

tape measuring device that he carried with him and he tossed 

the hammer througn the hole at the end of the crosscut and he 

asked Egnor to go to the No. 4 entry, into which the hole· extended, and retrieve the hammer, and thereby enable the inspector to make an accurate measurement. Egnor was cautioned to 

mate sure he did not go out from under permanent supports. 

4. Egnor proceeded outby the No. 3 entry through the 

crosscut outby the one in which the measurement was made and 

proceeded into the No. 4 entry and came to the place where the 

hole had been made near the face of the No. 4 entry. Egnor 

held the tape and it was determined that the distance from the 

last permanent support in the crosscut through the hole in the 

end of the crosscut was 23 feet, but the inspector wanted to 

get a measurement only to the most inby place in the crosscut 

from which coal had been extracted by the continuous-mining 

machine. Therefore, he withdrew the tape after Egnor had untied it from the hammer, and when the tape came out of the 

hole and fell on the mine floor, the inspector made a determination that the distance from the face of the crosscut to the 

second roof bolt from the right of the crosscut was 22 feet. 

The inspector believed that the second bolt from the right rib 

in the crosscut was in line with the other three bolts in that 

same line of bolts and therefore did not take additional 

measurements. 

1994 
5. Tl:l'e operator's roof-control plan provides, "Continuous miner runs are made on alterna~e siaes until the face has 

been advanced a maximum distance which will permit the miner 

operator to ~emain under bolted roof and not advance the controls of the miner .inby the last row of bolts." Therefore, 

the inspector wrote Order No. 2037676, which is exhibit 2 in 

this proceeding~ The condition _or practice stated in Order 

No. 2037676 is as follows: · 

The last.open crosscut between No. 3 entry and No. 4 

entry has been mined 22 feet deep. From cutter head 

to the controls measures 19 1/2 feet, putting the 

controls of the miner inby the last row of permanent 

support. This crosscut was mined on 2nd shift, 

9/15/82. The Onshift and Daily Report Book indicates -Roge~ McMicken as section foreman on said 

shift. See page 19, line 1 of approved plan or 

Drawing 1, page 17 of approved plan. 

6. Raymond Watts was the operator of the continuousmining machine on the second shift, that is, 4:00 p.m. to midnight on September 15, 1982, when the condition described by 

the inspector occurred. Watts had previously been working in 

1979 when a roof fall occurred in the Hampton No. ~ Mine, at 

which €ime two miners were killed and Watts narrowly escaped 

being killed himself. The occurrence was so unsettling that 

Watts was unable....t~ work for approximately 14 months. Therefore, he testified in this proceeding that it was not his· 

practice or intention ever to do his job in a manner which 

would expose him or anyone else to possible injury. · . He testi- fi~ that when he advanced the continuous-mining machine into 

the crosscut here at issue, he found that it was off center 

and that it was necessary for him to move his continuous-mining 

machine at an angle to the right rib in order to straighten the 

crosscut. He stated that it was his practice to look through a 

screen at the front of the canopy under which he sits and that 

when he saw the last roof bolt, or the roof bolt in the last 

row of permanent supports come into view in that screen, that 

he stopped running the continuous-mining machine because that 

way he knew he would not go inby the last row of supports. He 

testified that that was what he recalled having done on the 

night of September 15. He did recall that when he finished 

cleaning up the entry and backed his continuous-mining machine 

out of the crosscut he did see a hole in the face of the crosscut. 

7. When Watts came to work on the following day he learned 

from the superintendent of the mine that a withdrawal order had 

been written on the day shift because of his having advanced the 

controls of the miner inby the last row of permanent supports. 

1995 
Watts was very much surprised at hearing he had been charged 

with having done that and expressed- his--doubt that it was so. 

The roof-control plan was read to him and it was explained that 

the company was considerably upset about whether he had gone 

inby the last row of permanent supports. 

8. Roger Bias_ was also working on the evening shift on 

September 15 and on that particular evening he acted as the 

helper for the operator of the continuous-mining machine. He 

has no specific recollection of whether the mining machine went 

inby the last row of permanent supports, but he said that one 

of his duties was to help the operator of the continuous-mining 

machine in order to see that he did not go inby the last row of 

supports and, so far as he could recall, Watts did not go inby 

the last row of permanent supports. He also recalls that there 

was a hole ..at the face of the crosscut, but he did not see it 

until after Watts had cleaned up the crosscut and had backed 

out the continuous-mining machine. 

9. Roger McMicken was the section foreman on the evening 

of September 15, 1982. He testified that he saw a hole at the 

face of the crosscut when he was making' his last check of the 

section, but he did not notice anything unusual other than that. 

He was not aware that a charge had been made again9t Watts for 

going 1nby the last row of permanent supports until he reported 

for work the following day and also was advised by the mine 

superintendent that the withdrawal order had been written. One 

of the actions McMicken made was to go into the section and 

measure the distance between the last row of bolts and the face 

of the crosscut and his measurements showed that the .distance 

wa~l9 feet from all of the bolts, except the first and second 

bolts from the right rib. He found the distance from the second 

bolt from the right rib to the face to be 22 feet, the same distance measured by the inspector, but he said that he did not 

think that the second bolt was in line with the others and that 

he believed it was outby the others by a considerable distance. 

That misalignment, together with the hole at the face of the 

crosscut, in McMicken's opinion, accounted.for the fact that 

that particular measurement was 22 feet. The distance from the 

first bolt from the right rib to the face was measured by 

McMicken as being 20 feet {Exh. B) • 

10. Richard Sparks was the operator of a scoop on the day 

shift on September 16, 1982. He testified that he was operating the scoop to clean up the No. 4 entry and that he was so 

engaged at the time that Egnor came into the No. 4 entry and 

went up to the face of the No. 4 entry in order to assist the 

inspector in the measurement which the inspector made prior to 

issuing his withdrawal order. Sparks claims that he saw Egnor 

put his hand on the rib and reach clear through the hole in the 

end of the crosscut in order to retrieve s01:nething, but he did 

1998 
- not know exactly what Egnor was doing and did not see the hammer 

in Egnor's.hand and did not know what had transpired until he 

was later advised that Egnor had been at the face of the No. 4 

entry in ordsr to· assist the inspector in the measurement. 

Sparks also testified that Jake Henry was a continuous-miner 

helper on the day shift and it is claimed that Henry was in the 

crosscut when the inspector made his 22-foot measurement and 

that Henry observed Egnor reach· ·through the hole in the end of 

the crosscut. Sparks did not see Egnor walk past him in the 

No. 4 entry and only observed him, he says, after he was already 

situated at the hole on the left side of the No. 4 entry. 

Sparks accounted. for his failure to see Egnor walk past him by 

stating that he hp.s to move back and forth in the entry in his 

process of cleaning with the scoop. Egnor testified on rebuttal 

that no one was in the No. 4 entry when he went there to assist 

the inspector a~d that he would have remembered it if anyone 

had been running a .. scoop because he would have had to have 

flagged down the scoop operator in order to go past him. 

11. Jim Kiser is the manager of Westmoreland's health and 

safety program and he, among other duties, conducts accident investigations of all serious violations which are alleged by any 

of MSHA's inspectors. Kiser considered the withdrawal order 

here issued to be a serious one because it was written under the 

unwarrantable-failure provisions of the Act and is, therefore, 

considered to be more serious than an ordinary citation might 

be. His investi~ation of the matter took a couple of weeks to 

complete and resulted in a conclusion by Kiser that Westmoreland' s personnel were not at fault in the occurrence and consequently did not recommend that any of the people involved be 

di~ciplined, although it is Westmoreland's practice to discipline people who do violate the mandatory safety standards if 

the investigation shows that violations occurred. 

Counsel for the Secretary and Westmoreland m~de concluding 

arguments and they both stressed the fact that there are credibility problems involved in the testimony. 

The Secretary's counsel emphasized the fact that the inspector has no particular reason to cite a violation he has not 

actually seen, that the chairman of the safety committee has no 

reason to be biased against the company for which he works, and 

that their testimony should be given greater weight than that of 

Westmoreland's witnesses who were obviously aware of the fact 

that they might receive some discipline if they were considered 

to be at fault in the issuance of Order No. 2037676. 

Westmoreland's counsel stressed the fact that Watts is an 

individual who has an excellent reputation in the company and 

the fact that the section foreman has not previously known him 

199~, 
- to violate; 1 any provisions of the roof-control plan and that 

Watts, having just nearly escaped deatlt himself in a roof fall, 

would not be one who would have knowingly violated the roofcontrol plan~ Counsel for Westmoreland also stressed the fact 

that Egnor, despite his position as chairman of the safety committee, still went to the face of the No. 4 entry and necessarily w·as inby th~ last permanent,. support in assisting the inspector to obtain his desired measurement·, and that the inspector set a very bad example by asking Egnor to participate in 

such a fashion in making the measurement. 

I agree with Westmoreland's counsel that the way the 

measurement was made seems to have left something to be des.ired 

in the way of safety and I hope that similar acts will not occur in the future so that one person is perhaps endangered 

while proving tpat someone else was in a hazardous position. 

Even Egnor admitted· in his testimony that once a hole is made 

in a coal face, which is.only about a foot thick, that additional coal may slough off and that it's not a very safe place to 

be. Of course, both Egnor and the inspector denied that Egnor 

was at anytime in any danger. 

One of the duties which a judge has is making credibility 

determinations and one of the ways a judge does thpt is based 

on the·· demeanor of the witnesses as well as the consistency of 

their testimony. Based on the demeanor of the witnesses in 

this case, I beli~ve that the inspector and Egnor have an edge 

on credibility. I found a number of questions answered by Westmoreland' s witnesses with qualifications that they were not 

sure of the facts and with the assertion that it has been almost 2 years since this matter occurred. Even the section foreman stated that he thinks that the crucial bolt from which 

measurements were made was out of line. 

I believe that the credible evidence requires me to find 

that there was a distance of 22 feet from the face of the crosscut back to the last row of permanent supports. Since exhibit 5 

in this proceeding shows that the distance from the head of the 

continuous-mining machine back to the controls is 19-1/2 feet, 

then necessarily the continuous-mining machine operator would 

have had to go inby the .last row of bolts in order to have made 

a cut of 22 feet. 

I am taking into consideration the fact that it has been 

alleged that the continuous-mining machine operator was trying 

to straighten the crosscut by cutting at an angle, but I am 

also taking into consideration the fact that Egnor has had over 

11 years of experience as an operator of a continuous-mining 

machine and I am relying upon his and the inspector's conclusions and certainty that there was no evidence to show that the 

crosscut had been cut at an angle so as to .. confirm or corroborate Watts' testimony to that effect. 

1998 
Based,upon the above considerations~ I find that a violation of se6tion 75.200 did occur a~ alleged in Order No. 2037676. 

Having f-0und-that a violation occurred, I am required to 

consider the six· criteria in assessing a civil penalty. The 

parties stipulated that Westmoreland is subject to the Act, 

that it is a large operator, that payment of a penalty would not 

cause it to discontinue i"n business, and that Westmoreland showed 

a good-faith effort to achieve rapid compliance once the violation was cited. Those stipulations take care of three of the 

six criteria. 

The fourth 09e is the history of previous -violations. 

Exhibit No. 7 is a computer printout which indicates that Westmoreland, at the Hampton No. 3 Mine here involved, has paid 

penalties £or 29 violations of section 75.200 in the 24 months 

preceding the occu~rence of the violation here involved. Counsel for Westmoreland pointed out that those violations were 

relatively minor in that they were alleged in citations issued 

under section 104(a) of the Act, except for one imminent-danger 

order and one unwarrantable-failure order. He also said that a 

check had been made of those 29 previous violations and that 

none of them involved an allegation that anyone had proceeded 

inby permanent roof support. 

It appears to me that 29 previous violations in a 24-month 

period is a large..)'J.umber of violations and one reason I am 

troubled by that many is that when the Act was amended in-1977, 

one of the things that concerned Congress in its discussions of 

the need to modify the Act to make it stronger in its provisions. 

waSj,..that in the Scotia mine the company had previously violated 

the ventilation provisions and yet the company had not been 

assessed increasingly large penalties based on those repeated 

violations. Congress thought that the Act was not being properly administered, or each succeeding violation would have received a higher civil penalty than the one before it • .!f 

I am inclined to temper my consideration in this instance 

because normally a judge does not get any information at all 

about the type of previous violations; he simply is presented 

with a number and he has no way to get a perception of the kind 

of violation involved. In this proceeding, however, there are 

statements that a check has been made of the previous violations and that they do not seem to be serious, or at least 

there is not a previous violation of having gone beyond permanent support. For that reason, I shall not make a severe increase in the penalty under the criterion of history of previous 

1/ S. REP. NO. 95-181, 95th Cong. 1st Sess. 42-43 (1977), 

reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND 

HEALTH ACTOF 1977, at 630-631 (1978). 

1999 
violations/ but I do think that some indication should be made 

that that is a rather large number-of pLevious violations. 

Consequently, under that criterion I shall assess a penalty of 

$200. 

The fifth criterion to be considered. is negligence. Counsel for the Secretary has stressed the fact that the company 

should have made certain.that i"ts personnel did not violate 

the roof-control plan and that the company should be held to be 

guilty of a hjgh degree of negligence for the fact that this 

violation did occur at all. Westmoreland's counsel, on the 

other hand, has taken the very same set of circumstances and 

facts and argued that the company should not be held to be 

guilty of a high degree of ne.gligence because it has made very 

strenuous efforts to acquaint its personnel with the roofcontrol conditions and that it has made every effort that it 

can make to get-its miners to proceed in a safe and lawful 

fashion. 

There is a considerable body of testimony showing that 

Watts was a person who was safety minded and I believe in this 

instance that he did intend to mine in a safe manner and he 

did intend to stop before going inby the last row of permanent 

supports. It is possible for anyone to make a mistake and I 

believe· that Watts did inadvertently cut farther than he intended. For that reason, and the fact that there is a lot of 

testimony showin~_that Westmoreland is trying to operate a 

safe mine and to make its employees safety conscious, I find 

that a very small degree of negligence should be attributed to 

management in this case • 

... I might point out that there are precedents for my finding here as to negligence. In Southern Ohio Coal Co., 4 

FMSHRC 1459 (1982), the Commission held that the operator was 

not liable for negligence for the acts of the rank and file 

miner when it comes to assessing a civil penalty, but that 

the operator is liable for the acts of the rank and file miner, 

when it comes to the finding of a violation, because a company, 

under the Act, is liable without fault for violations which 

occur in its mine. u. s. Steel Corp., 1 FMSHRC 1306 (1979). 

The testimony shows that Westmoreland has tried to instruct 

its miners in proper safety procedures and all witnesses who 

work for the company so testified. For the aforesaid reason 

I am not assessing any portion of the penalty under the criterion of negligence. 

The final criterion to be evaluated is gravity. There 

is a great deal of testimony by the roof-control specialist, 

Inspector Eddie White, and by the inspector who wrote the 

order to the effect that a large number of fatalities each 

2000 
year resul~ from roof falls and from failure to comply with 

roof-control plans. Respondent's witn~sses also testified 

that going beyond permanent roof supports is a serious violation. Conse~uently, the preponderance of the evidence supports a findinq that this was a serious violation. It is true 

that the operator of the continuous-mining machine was under a 

canopy, and canopies undoubtedly do help protect operators 

from death. But as the inspectors testified, a slate roof is 

involved here and when such roofs fall, they are inclined to 

break up so hhat portions of rock can fall in on the operator, 

even though he is protected by a canopy because the canopies 

do not have sides on them to prevent such encroachments. Also 

the helper to the continuous-mining-machine operator testified 

that he works close to the operator and that makes him vulnerable to injury, if a roof fall should occur, because the fall 

will not necessprily terminate right at the canopy of the operator who is running the continuous-mining machine. 

The discussion above shows that the violation must be 

rated as being very serious under the criterion of gravity. 

Based on that criterion, and the fact that a large operator is 

involved, 'I believe that the gravity of the violation warrants 

a penalty of $800. When the $200 portion of the penalty 

assessed under the criterion of history of previo~s violations 

is added, a total penalty of $1,000 will be assessed, as hereinafter ordered. 

--· THE MOTION FOR RECONSIDERATION 

Occurrence of a Violation 

.... As indicated on page 1 of this decision, counsel for Westmoreland filed on June 22, 1984, a motion for reconsideration 

of the bench decision rendered at the conclusion of the hearing. A judge's bench decision is not a final decision until 

it has been issued after receipt of the transcript and given a 

date by the Commission's Executive Director in accordance with 

29 C.F.R. § 2700.65. Therefore, Westmoreland's counsel is not 

precluded under the Commission's procedural rules from filing 

a motion for reconsideration of a bench decision. Additionally, in C.C.C.-Pompey Coal Co., Inc., 2 FMSHRC 1195 (1980), the 

Commission held that a judge is obligated to reconsider any 

holdings made in a bench decision if, during the interim between the rendering of the bench decision and its issuance in 

final form, the Commission issues a decision establishing a 

precedent which conflicts with the ruling made by the judge in 

his bench decision. The ruling in the Pompey case is applicable in evaluating Westmoreland's motion for reconsideration 

because the Commission issued a decision in United States Steel 

Corp., 6 FMSHRC 1423 (1984), after I had rendered the bench 

decision in this proceeding. In the u. S .. Steel decision, the 

200-1 
Cormnission:;majority reduced one of my penalties from $1,500 

to $400 because my conclusions were not' supported by substantial evidence (6 FMSHRC at 1432). Therefore, I am obligated, 

before issuiRg this decision, to show that my assessment of a 

penalty of $1,0-00 is supported by the evidence. 

Westmoreland's motion first requests that I reconsider 

my finding that a violation occurred. The motion notes that 

Westmoreland presented the only testimony by eyewitnesses to 

the way the c.rosscut was mined and th~t their testimony showed 

that the hole in the face of the crosscut was caused by the 

"popping out" of coal as a result of the pressure exerted on 

the small amount ~f coal left standing between the face of the 

crosscut and the No. 4 entry (Exh. 4). Westmoreland agrees 

that the distance from the last permanent support to the face 

of the crosscut~was 22 feet, as measured by the inspector, but 

Westmoreland claims·that the alleged distance of 2-1/2 feet by 

which the operator of the continuous-mining machine proceeded 

beyond permanent supports was accounted for by Westmoreland's 

witnesses who said that the second roof bolt from the right 

rib was out of line with the other roof bolts by about 2 feet 

and that about 18 inches of coal had popped out of the face. 

Exhibit 5 shows that if one measures obliquely from the 

left side of the cutterhead on the continuous-mining machine 

to the operator's controls located on the right side, the distance is 21 feet-LO inches, instead of the distance of 19 feet 

6 inches obtained by the.inspector who measured directly from 

the right cutterhead to the operator's controls which are on 

the right side of the continuous-mining machine. Westmoreland 

poi.nts out that the operator of the continuous-mining machine 

testified that the entry was off center and that he was cutting 

at an angle to bring the crosscut back into alignment. Westmoreland argues from the aforesaid facts that the operator of 

the miner was 21 feet 10 .inches from the face because of the 

angle at which the crosscut was mined. That contention supports a conclusion that the operator, at most, was only 2 

inches inby the last permanent support (22'' minus 21'10" = 2"). 

Westmoreland then points out that the hole in the face 

of the crosscut was caused by popping or crumbling of the coal. 

The crumbling effect, according to Westmoreland, made an indentation in the face of 18 inches. That indentation, it is said, 

should also be subtracted from the inspector's measurement of 

22 feet because the head of the continuous-mining machine did 

not cut that 118-inch indentation. If one subtracts the 18-

inch indentation from the 2-inch distance that 22 feet exceed 

21 feet 10 inches, it will be readily seen that the operator 

of the miner, instead of being 2 inches inby the second roof 

bolt from the right rib, was actually 16 inches outby that 

roof bolt. 

200d 
In my bench decision, I found th.at the testimony of MSHA's 

witnesses was more credible than that of Westmoreland's witnesses. For that reason, I do not ·accept Westmoreland's claim 

that the second roof bolt from the right rib was 2 feet outby 

the other ro~f bolts in that last row of permanent supports. 

The argument above, however, does not even include that portion 

of Westmoreland's evidence to the effect that the second bolt 

was 2 feet out of line with the other bolts because Westmoreland' s argument ·is based 'on the --21-foot 10-inch oblique measurement from the cutterhead to the controls and the 18-inch indentation in the.face of the crosscut. Westmoreland's argument as 

to the cutting of the crosscut at an angle is controverted, however, by the testimony of the inspector and the chairman of the 

safety committee vho stated unequivocally that cutting at the 

drastic angle that would be necessary to bring the 21-foot 10-

inch measurement into play would have resulted in the cutting 

of a large .plac~ shaped like a piece of pie in the right rib 

and both of the witnesses testified unequivocally that the 

right rib was smooth and free of any indications showing that 

the crosscut had been cut at an angle (Tr. 26; 52-53; 72-73; 

257) • 

Exhibit 5 is a diagram of the continuous-mining machine. 

That diagram shows that the continuous-mining machine is 10 

feet 10 inches wide and 23 feet 4 inches long. It,was operating in a crosscut whose total width was 20 feet. An offset 

had been cut in the face on the right side. It is impossible 

for a machine 23 ..£.~et 4 inches long and almost 11 feet wide to 

be turned in a 20-foot entry so as to bring the oblique measurement of 21 feet 10 inches into play because the rear of the 

machine will come into contact with the left rib and prevent 

the.,.machine from being turned at an acute angle. Additionally, 

it must be recognized that the helper to the operator of the 

continuous-mining machine testified that the ventilation curtain was in place both at the time they were mining and at the 

time they were cleaning up the crosscut (Tr. 187; 193-194). 

The ventilation curtain was 4 feet from the right rib (Tr. 193). 

The curtain therefore reduced the maneuverability of the continuous-mining machine by reducing the width of the entry to 16 

·feet. Moreover, exhibit 5 shows that the continuous-mining 

machine has a loading attachment on its rear end which is 9 

feet 6 inches long and the helper further testified that he was 

involved in keeping the shuttlecars from becoming entangled in 

the continuous-mining machine's cable. While the loading apparatus on the continuous-mining machine will swing to the right 

and left to provide some flexibility in the way the continuousmining machine is used, the fact remains that the machine's 

ability to turn at a dramatic angle was further reduced by the 

fact that it was delivering coal into shuttlecars. 

2003 
It may:;easily be demonstrated why Westmoreland' s motion 

for reconsideration dropped its content.ton that the second roof 

bolt from the right was about 2 feet outby and out of line with 

the other roo.f bol·ts in the last row of permanent supports. If· 

that contention-.:is added to Westmoreland' s other arguments about 

an 18-inch indentation in the face and its contention that the 

operator's controls were 21 feet 10 inches from the face when 

the miner is being used at an arigle, the result would be that 

the operator of the miner was 40 inches outby the last row of 

permanent supports, as shown in the calculation below: 

-

22' O" = distance from second roof bolt from right 

riq to face 9f crosscut (Exh. 4). 

-21' 10" = distance from left cutterhead to controls 

of machine (Exh. 5). 

2!' = dj..stance operator was inby second roof 

bolt.from right rib. 

18" = 

- 2" = 

••· 16 II = 

+24" = 

40" = 

indentation in the face caused by "popping 

off" of coal (which further reduces the inspector's 22-foot measurement). 

distance which operator would have been inby 

second roof bolt if he were 21' 10" from the 

face. , 

distance operator would have been outby the 

second roof bolt if indentation accounted 

fo.r_~l8 inches of inspector's 22-foot measurement. 

distance second roof bolt was out of line 

with other roof bolts in last row of permanent supports. 

distance operator would have been outby the 

last row of permanent supports if all of 

Westmoreland's contentions are applied to 

reduce the inspector's 22-foot measurement. 

The inspector testified that he went into the crosscut to 

determine why no curtain had been erected in the crosscut. When 

he saw the hole in the face, he recognized that air would travel 

into the No. 4 entry, which was the return entry,· and obviate 

the need to have a curtain installed, but then the inspector's 

attention was attracted to the fact that the crosscut had been 

mined beyond permanent support in violation of the roof-control 

plan (Tr. 17). If the operator of the continuous-mining machine 

had stopped cutting coal when the controls of the machine were 

40 inches outby the last row of permanent supports, there is no 

likelihood that the inspector's attention would have been directed to the depth of the last cut of coal which had been removed from the crosscut because the operator of the machine 

could not have been close enough to the face for the controls of 

the machine to have been nearer to the face .. than the 19-foot 6-

inch distance from the right cutterhead to the machine's controls (Exhs. 4 and 5). 

2004 
There.; are other aspects of Westmoreland' s evidence which 

cast doubt on the validity of its arguments. The person who 

made the measurements on which Westmoreland relies was Roger 

McMicken whcr was ·the section foreman on the second shift when 

the crosscut was mined. He testified that the first roof bolt 

from the right rib was 20 feet from the face of the crosscut 

(Tr. 204; Exh. B). McMicken did not claim that the measurement 

from the first roof bolt' to the-face was made to an indentation 

in the face. There is no way for the operator of the continuousmining machine to have cut 20 feet inby the first roof bolt 

from the right rib without going at least 6 inches inby that 

roof bolt because the continuous-mining machine could not possibly have cut the extreme right side of the face to a depth of 

20 feet without having the continuous-mining machine almost 

squarely against the face as claimed by MSHA's witnesses (Tr. 

53; 72). .. 

Westmoreland's contentions about nonoccurrence of the violation are further flawed by the lack of certainty shown in 

its witnesses' testimony. Raymond Watts was the operator of 

the continuous-mining machine on the night of September 15, 

1982. Watts is classified as the help~r to the operator of 

the continuous-mining machine (Tr. 141), but on the night of 

September 15, 1982, the regular operator did not r.eport for 

work because of illness in his family (Tr. 157). Watts' helper 

was Roger Bias who was not familiar with the Joy miner which 

was being used a;t.~that time (Tr. 159). It is ordinary practice 

for the regular operator to make the first cut of the shift and 

for the helper to make the second cut. Then they generally 

alternate in that fashion throughout the shift, but Bias' inexperience prevented that sort of switching in assignments with 

the result that Watts made all of the cuts of coal which were 

mined on the evening shift of September 15 (Tr. 157-159). 

Watts' testimony will not support many findings because 

he was not certain about his actions on September 15. He was 

only able to say that he "thinksi• the bolts in the last row of 

permanent supports.were out of line (Tr. 154). Watts agreed 

that the right side of the crosscut was definitely cut more 

deeply into the face than the left side, that he was the one 

who made both cuts, and that he believed the right side was 

cut from 10 inches to a foot deeper than the left side (Tr. 

155). Watts also claimed that he was watching the curtain on 

the roof bolt closest to the right rib and that he did not go 

beyond that curtain (Tr. 145), but the section foreman found 

that it was 20 feet from that bolt to the face of the crosscut 

(Tr. 204). As indicated above, Watts could not have cut the 

extreme right corner of the crosscut to a depth of 20 feet 

without going inby that bolt by at least 6 inches. Despite 

Watts' contention that he had not gone beyond the last row of 

permanent supports, he did not bother to measure the distance 

to the face after the crosscut had been bolted (Tr. 179). 

2005 
Watts•; helper, Bias, was very unsure about what he had 

done when the crosscut was mined. -He fi.rst stated that he was 

standing right beside Watts when Watts made the disputed cut, 

but then he added· that he "believes" he was standing near Watts 

(Tr. 185). Bias had worked as Watts' helper only about 10 

times, but so far as he could recall, he had not seen Watts go 

beyond permanent supports (Tr. 187). Bias said that the hole 

in the face could have popped out from pressure, but could also 

have been cut with the head of the continuous-mining machine 

(Tr. 186; 19L). Bias did not recall which bolts he was watching when Watts made the cut on the ·right side, but he said that 

he ought to have been watching the two bolts nearest to the 

right rib (Tr. 19p). Bias also testified that they did not 

take down the curtain before cleaning up the crosscut and that 

the curtain was still up when he left the section between 11:15 

and 11:30 p.m. !Tr. 193). 

The measurements on which Westmoreland relies were made by 

Roger McMicken, the section foreman who was on duty when the 

disputed deep cut was mined. He testified that he saw the hole 

in the crosscut when he made his last check of the face area on 

September 15, 1982. He saw nothing otherwise unusual about the 

way the crosscut had been mined (Tr. 199). His measurements 

were made the next night after the crosscut had be~n fully 

bolted; but he knew which bolt to use in his measurement because it had been marked (Tr. 201). Although he, like the inspector, obtained.~ 22-foot measurement from the second bolt 

from the right rib to the face, he said that one of the reasons 

the distance measured that much was that he had placed the end 

of the tapeline into the 18-inch indentation caused·by the "pop-. 

pill.9" out of the hole in the face (Tr. 201). Yet he could not 

recall whether the hole was in line with the second bolt, or 

how far off the right rib the hole was, or ·whether the hole was 

on the left or right side of the cut (Tr. 203). After giving 

the distances which he measured, he said that he "believed" 

those were the measurements he obtained (Tr. 205). As to the 

20-foot measurement from the first roof bolt from the right 

rib to the face, he testified that it was ,"maybe twenty foot" 

(Tr. 204). The aforesaid equivocations were made during his 

direct testimony. · ·· 

On cross-examination, McMicken stated that the curtain was 

not up at 11 p.m. when he checked the crosscut (Tr. 208), but, 

as noted above, Bias stated that the curtain was still up when 

they cleaned up the crosscut. As to the offset in the face of 

the crosscut, which Watts said existed, McMicken testified that 

he could not recall whether the offset existed or not, but he 

would not say that it did not exist or that he had failed to see 

it (Tr. 211). Although McMicken believed that "more than likely 

someone was holding the tapeline" (Tr. 212) when he made his 

measurements, he could not recall who assisted him in making the 

2006 
measurements. McMicken also could not recall whether the 

continuous~mining machine had made-a sqbare cut into the face 

on the right side (Tr. 213). Moreover, although McMicken 

based his belief that the distance from the second roof bolt 

from the right_r-ib to the face measured 22 feet on a "belief" 

that the second bolt was out of line with the other bolts in 

the row by "maybe a foot or two" (Tr. 203), he did not examine 

the roof bolts sufficiently to be able to state what pattern 

of bolting or condition in the roof caused the. misalignment, 

if any, or what was done by the roof-bolting machine's operator 

to compensate for having installed a roof bolt which was from 

1 to 2 feet out of alignment (Tr. 217). 

Although I n~ted in finding No. 10 of my bench decision 

that Egnor had gone to the face of the No. 4 entry where it 

could have.been~dangerous for him to go in order to assist the 

inspector in making his measurement, Westmoreland's claim that 

Egnor reached into the hole in order to obtain the inspector's 

hammer is based on the incredible testimony of Richard Sparks 

who alleges that he was operating a scoop in the No. 4 entry 

at the time Egnor came into the No. 4 entry. While Sparks 

claims to have seen Egnor reach into the hole for the purpsoe 

of getting something on the other side of the entry, Sparks' 

testimony is filled with unexplained gaps and inco~sistencies. 

He first said that Egnor placed his hand on the rib and reached 

through the·hole, but thereafter he was unable to state for 

sure which hand F;.g~or used to reach into the hole (Tr. 221; 

225). He first said that he did not ask Egnor why he was.doing 

such an unsafe act and then stated that he could not recall 

whether he asked Egnor anything about the hazardous ··act he had 

COI'Qlilitted (Tr. 221; 226). Although Sparks was busy piling up 

coal at the very place where Egnor was said to have reached 

through the hole, Sparks testified that he did not see Egnor 

walk past him on his way to the face (Tr. 229-230). Although 

Sparks had an obvious interest in what happened in the mine, 

he professed not to be interested enough in what Egnor was doing to know what he obtained when he reached through the crosscut or to notice whether Egnor was carrying a hammer when he 

walked past him after he had reached through the hole to get 

something (Tr. 225; 230). Even though Sparks did not know why 

Egnor had come to the face of the No. 4 entry at the time 

Sparks claims to have seen him, Sparks claims that he asked 

someone later in the shift to find out what was going on, but 

cannot. remember who it was that he asked (Tr. 2 2 7) • 

. Additionally, Sparks claimed that Jake Henry, the helper 

to the continuous-mining machine operator on the day shift, was 

in the crosscut at the time the inspector made his measurement 

and Sparks stated that Henry told him it took the inspector two 

or three throws to get the hammer through the hole in the face 

of the crosscut (Tr. 223). Sparks then apparently realized 

that if Henry had seen the hammer go through the hole, it would 

2007 
- have been 'l,IIlnecessary for Egnor to reach through the hole to 

obtain the.inspector's hammer as Sparks~had previously testified (Tr. 220). Therefore, Sparks stated that the hammer must 

not have gons through the hole at all or he would not have been 

able to see Egnor reach through the hole to get it (Tr. 223). 

The unconvincing nature of Sparks' testimony is adequate 

reason for me to reject it for lack of credibility. Sparks' 

testimony was·rebutted by Egnor who stated that no one was 

in the No. 4 entry when he went there to assist the inspector 

in making his measurement. Egnor additionally stated that it 

would have been necessary for him to have flagged Sparks down 

so that he could proceed by him to the face of the entry (Tr. 

259-260). Sparks stated that he did not see Egnor walk past 

him while he was operating the scoop because he had to move 

back and forth in the entry (Tr. 228). I find that Egnor's 

statement that he would have remembered flagging down the 

scoop's operator, if anyone had been operating a scoop, is 

more convincing and more credible than Sparks' statement that 

he was in the No. 4 entry and observed Egnor reach through 

the hole to obtain an unknown object. 

I believe that the discussion above shows beyond any doubt 

that the inspector correctly concluded that the operator of the 

continuous-mining machine proceeded inby permanent supports 

when he mined the second cut on the right side of the crosscut 

on September 15,...l,82. Having reexamined all of the evidence 

in light of Westmoreland's motion for reconsideration, I conclude that my bench decision correctly found that a violation 

of section 75.200 occurred as alleged in Order No. 2037676 da~d September 16, 1982. 

Assessment of Penalty 

Westmoreland's motion for reconsideration uses my finding 

that the violation was associated with a low degree of negligence for the purpose of arguing that a penalty of $1,000 is 

excessive in circumstances where management is found to have 

made a sincere and concerted effort to teach its miners safe 

mining practices. Westmoreland claims that no witness was able 

to suggest anything that Westmoreland could have done to avoid 

the instant violation. If there is any part of my bench decision which is incorrect, it is my conclusion that no portion of 

the penalty should be assessed under the criterion of negligence. I shall hereinafter explain in detail why I did not 

assess any portion of the penalty under negligence. 

There is evidence in the record to support a finding of a 

greater degree of negligence than I found in my bench decision 

if I had thought it would be fair to Westmoreland to emphasize 

such evidence. Inspector Baisden, for example, checked Item 20 

2008 
in his order of withdrawal to indicate that he believed that 

the violation was associated with a high degree of negligence 

(Exh. 2). The inspector supported his checking of a high degree of negligence by testifying that a section foreman was on 

duty on the segtion during the cutting of the crosscut and 

that he should have made certain that the crosscut was not 

mined to a depth of 22 feet (Tr. 27). _Before becoming an inspector, Baisden had been the operator of various types of underground mining equipment and had also worked as both a section foreman p.nd assistant mine foreman (Tr. 6-7). Therefore, 

the inspector's belief that the section foreman should have 

prevented the cutting of the crosscut 2-1/2 feet beyond permanent supports is entitled to be given considerable weight. ,,. 

Moreover, the section foreman, Roger McMicken, was clearly 

negligent ~n th~ way he performed his job on September 15, 1982. 

The operator of .the continuous-mining machine was not the regular operator and the helper of the substitute operator was an 

inexperienced person in that capacity, at least insofar as cutting with a Joy continuous-mining machine is concerned (Tr. 156; 

159). Therefore, McMicken should have been paying special attention to· the way the entries were being cut because they were 

all cut on that shift by Watts who was classified as a helper 

to the regular operator (Tr. 159). McMicken's own testimony 

shows that he noticed the hole in the face of the crosscut, but 

stated that he did not see anything else unusual about the 

crosscut (Tr. 199). The inspector's attention had been directed 

to the crosscut by~the absence of a curtain. When the inspector 

saw the hole in the face of the crosscut, he concluded that ventilation was satisfactory, but then he noticed that .. the operator_ 

of the continuous-mining machine would have had to go beyond 

permanent - supports to mine . an entry to the depth the inspector . observed (Tr. 13-19). The section foreman should have been able 

to make an evaluation of the excessive depth of the crosscut and 

should have left special instructions for the section foreman on 

the next shift to see that the crosscut was bolted as soon as 

possible so that the excessive area of unsupported roof could be 

made safe without leaving the area unsuppo~ted any longer than 

necessary. · 

The inspector discussed the order he had'written with both 

the section foreman on the day shift and the mine foreman. The 

inspector offered to remeasure the crosscut in their presence 

if they believed he had made an error, but they declined to have 

him do so. According to the inspector, the mine foreman's conclusion, after seeing the crosscut, was that the miners who had 

made the cut just "messed up" (Tr. 23-24). Westmoreland's last 

witness was Jim Kiser who is Westmoreland's safety manager (Tr. 

230). He testified that the mine foreman intended to discipline 

the section foreman because the mine foreman believed that they 

were at fault in having violated the roof-c9ntrol plan (Tr. 245). 

2009 
Kiser inve~tigated the violation cited by the inspector and 

concluded that Westmoreland's persdnnel~were not at fault because he did not believe that a violation had occurred, based 

on the arguments about measurements discussed in the preceding 

section of this: decision. Since Kiser had concluded that no 

violation occurred, he influenced the mine foreman sufficiently 

to cause the mine foreman to reverse his decision to discipline 

the personnel who had been on duty when the violation occurred 

(Tr. 245) . 

My decision not to assess any portion of the penalty under 

the criterion of negligence is based largely on the fact that 

Westmoreland's mine foreman would have disciplined the personnel involved had he not been influenced to do otherwise by Westmoreland' sown safety department. I also took into consideration that Watts, the miner who made the cut beyond permanent 

supports, had nearly been killed in a roof fall himself and had 

an excellent reputation for being safety oriented. I believed 

that Watts was telling the truth when he stated that he did not 

think he had gone beyond permanent supports and did not intend 

to go beyond permanent supports. Additionally, I believed that 

the section foreman could reasonably have relied upon Watts' 

good reputation for safety in failing to keep a constant vigil 

over him while he was operating the continuous-mining machine 

on Sep;tember 15. Taking all of the aforesaid matters into consideration, I believed that it would be unfair to Westmoreland 

to assess any poli:.t.j.on of the.penalty under the criterion 9f 

negligence. 

There is additional testimony in the record, however, 

whi.ch shows that Westmoreland overstates its case when it 

argues that no witness was able to suggest anything which Westmoreland could do to increase safety awareness above that which 

it was already doing. The section foreman, for example, claimed 

that he had daily contacts with the miners to instruct them in 

safe mining practices (Tr. 197). On the other hand, Watts, the 

operator of the continuous-mining machine who cut 2-1/2 feet 

beyond permanent supports, testified that they had a weekly 

safety talk or meeting and that they discussed the roof-control 

plan "fairly often" (Tr. 146). · 

The discussion above shows that Westmoreland's management 

was not so entirely free from fault in the occurrence of the 

violation, that a penalty of $1,000 is completely unjustified 

when considered in conjunction with the fact that I did not 

assess any portion of the penalty under the criteiion of negligence. In Nacco Mining Co., 3 FMSHRC 848 (1981), the Commission affirmed a Judge's decision finding that the operator was 

not negligent, but the Commission also affirmed the judge's 

assessment of a penalty of $500 because of the seriousness of 

the violation and the fact that the operator had an unfavorable 

history of previous violations. 

2010 
In my bench decision, I emphasized the fact that ·congress 

believed that the penalty provisions of .... the Federal Coal Mine 

Health and Safety Act of 1969 were not being properly administered becau~e MESA was not proposing increasingly large penalties when there was evidence that an operator was repeatedly 

violating the same mandatory health and safety standards. s. 

REP. NO. 95-181, 95th Cong., 1st Sess. _43 (.1977), made the following comment about using the criterion of history of previous 

violations in assessing penalties: 

In evaluating the history of the operator's violations 

in assessing penalties, it is the intent of the Committee that repeated violations of the same standard, particularly within a matter of a few inspections, should 

result in the .substantial increase in the amount of 

the pepalty_ to be assessed. Seven or eight violations 

of the same·st~ndard within a period of only a few 

months should result, under the statutory criteria, in 

an assessment of a penalty several times greater than 

the penalty assessed for the first such violation. 2/ 

Exhibit No. 7 shows 2 9 previous vio·lations of section 

75.200 at the Hampton No. 3 Mine during the 24 months preceding 

the occurrence of the violation cited in this proceeding. All 

but two--of the violations were considered to be "si'gnificant 

and substantial". 3/ Six of the violations occurred in August 

and September 1982-and the violation here involved was.cited on 

September 16, 1982:~ The fifth of those six violations was· 

cited in an unwarrantable-failure order issued only 12 days before the instant violation occurred and MSHA proposed a penalty of $305 for that violation which was paid in full by Westmorelana. Therefore, my penalty of $1,000 is within the guidelines 

mentioned in the legislative history because it is three times · the amount proposed by MSHA for one of the previous unwarrantable-failure violations of section 75.200. 

Since the c.ommission has held in several prior cases and 

most recently· in Sellersburg Stone Co., 5 F,MSHRC 287 (1983), 

aff 'd Sellersburg Stone Co. v. FMSHRC, F.2d , 7th Circuit 

No. 83-1630, issued June ll, 1984, that-ale CommiSSion and its 

2/ Reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY 

AND HEALTH ACT OF 1977, at 631 (1978). 

3/ In Consolidation Coal Co., 6 FMSHRC 189 (1984), the Commission held that an inspector may properly designate a violation 

cited pursuant to section 104(a) of the Act as being "significant and substantial" as that term is used in section 104(d) (1) 

of the Act, that is, that the violation is of such nature that 

it could significantly and substantially contribute to the cause 

and effect of a mine safety and health hazar.d. 

2011 
judges are ;1iot bound by MSHA' s assessment formula, it has not 

been my practice in the past to refer to MSHA's proposed penalties when I am assessing penalties on the basis of evidence 

presented at a hearing. Nevertheless, since the Commission 

majority in the.U. S. Steel case, hereinbefore cited, found 

that·MSHA's proposed penalty of $400 was appropriate, whereas 

my penalty of $1,500 was excessiye (6 F-MSHRC at 1432), it now 

behooves me to show why I 0have assessed a penalty of $1,000 in 

this case although MSHA has proposed a penalty of only $395. 

The first obvious defect in MSHA's proposed penalty is that 

MSHA assigned only six penalty points pursuant to 30 C.F.R. 

§ 100.3(c) under the criterion of history of previous violations. 

MSHA assigned a tqtal of 52 penalty points for the violation. 

If six penalty points are subtracted from that total, the penalty would have been only $275 when the reduced points are 

entered on ~he p~nalty conversion table in section 100.3(g) of 

the assessment formula. In other words, MSHA assessed $120 of 

the penalty under the criterion of history of previous violations. The violation here involved was the seventh violation 

of section 75.200 to have occurred at the Hampton No. 3 Mine 

within less than a period of 2 months. Consequently, it is 

obvious that MSHA is still not using the criterion of history 

of previous violations as Congress intended, or the proposed 

penalty would have been several times greater than ,the previous 

proposed penalties for violations of section 75.200. 

Westmoreland!~ motion for reconsideration argues that my 

penalty of $1,000 is excessive because I assessed $800 of ·it 

under the criterion.of gravity despite the fact that I failed 

to assess any portion of the penalty under the criterion of 

negl.igence. It is a fact, however, that gravity is a separate 

criterion and the Commission has not held in· any case of which 

I am aware that a judge is precluded from assessing a penalty 

under the criterion of gravity wholly apart from any amount 

which he may think is appropriate under the criterion of negligence. It is certain that MSHA's assessment formula considers 

the criterion of gravity as a separate matter in section 100.3 

(e) of the formula from the criterion of negligence which is 

considered in section 100.3.(d) of the formula. In this case, 

MSHA assigned 16 penalty points under the criterion of gravity. 

If 16 points are deducted from the total of 52 points assigned 

under the formula, it can be seen by application of those points 

to the conversion table in section 100.3(g) of the formula, that 

MSHA attributed $255 of the proposed penalty of $395 to the criterion of gravity. 

The inspector testified that the violation was very serious 

(Tr. 30-36); the chairman of the safety committee testified that 

the violation was very serious (Tr. 76-80); MSHA's roof-control 

specialist testified that .the violation was very serious (Tr. 

119-123); Westmoreland's section foreman teatified that the 

2012 
- violation was very.serious (Tr. 198); Westmoreland's operator 

of the continuous-mining machine testifi.ed that the violation 

was very serious (Tr. 146; 182); and Westmoreland's safety 

manager testified that the violation was very serious (Tr. 245)·. 

While it is tru-e that all of Westmoreland's witnesses claimed 

that the violation did not occur, the fact remains that they 

all agreed that going beyond permanent. roof supports is a very 

serious violation. I have already shown that there is no merit 

to any of Westmoreland's arguments in which it has striven to 

show that tha violation did not occur. 

It is my function to consider the preponderance of the evidence in deciding,. cases. Failure to assess a substantial amount 

under the criterion of gravity in this proceeding would require 

me to ignore a vast amount of evidence to the effect that the 

violation was very serious. My failure to assess any part of 

the penalty under the criterion of negligence may be in error 

because I probably should not have given as much weight as I did 

to the ameliorating factors hereinbefore discussed, but my failure to assess a portion of the penalty under the criterion of 

negligence is certainly no reason for me to assess only a token 

penalty under the criterion of gravity when that criterion is 

considered·in light of Westmoreland's very unfavorable history 

of previous violations and the fact that Westmorelp.nd is a large 

operator which has stipulated that payment of penalties will not 

cause it to discontinue in business. 

·~- .. For the reasons given above, I conclude that my bench decision assessing $800 under the criterion of gravity and $200 under the criterion of history of previous violations" to derive a . 

tot.al penalty of $1,000 should be affirmed. 

WHEREFORE, it is ordered: 

(A) Westmoreland's motion for reconsideration filed 

June 22, 1984, is denied. 

(B) Westmoreland Coal Company, within 30 days from the 

date of this decision, shall pay a penalty of $1,000.00 for the 

violation of section 75. 200 cited in Order No.-' 2037676 issued 

September 16, 1982. 

~C.<J/N/e Richard c. Steffey~ Administrative Law Judge 

2013 
Distribution: 

Kevin C. McCorllrl:ck, Esq., Office of the Solicitor, U. s.· Department of Labor, Room 1237A, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certifie~ Mail) 

F. Thomas Rubenstein, Esq., P. O. Drawer A & B., Big Stone Gap, 

VA 24219 (Ce.rtified Mail) 

yh 

2014 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH · FLOOR 

WASHINGTON, D.C. 20006 

August 21, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WEST VIRGINIA REBEL COAL 

COMPANY, INC., 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-209 

A.C. No. 15-06365-03509 

No. 1 Surface Mine 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

On March 27, 1984, the Solicitor filed his Response to 

the Order to Submit Information issued in the above-captioned proceeding. At issue is one violation, the proposed 

settlement of which is $20, the originally assessed amount. 

Citation No. 2053339 was issued for a violation of 30 

C.F.R. § 77.1605(b), because the foot and parking brakes on 

a scraper were inoperative. The Solicitor asserts in his 

motion the the Caterpiller 637 Scraper was operating on the 

outside edge of the coal pit at the time that this citation 

was issued and that there were no other miners on the ground 

near this machine. The Solicitor represents that although 

the machine was without service or footbrakes, it was operating on a very slight incline and was capable of being. 

stopped by the use of its scraper blade or bowl. He also 

argues that the machine was not working on rocky ground and 

was therefore capable of exerting downward pressure with the 

blade to enable it to stop. 

In his original motion, the Solicitor represented that 

'gravity and negligence were moderate. I have consistently 

held that a $20 penalty denotes lack of gravity. I am unable to approve a $20 settlement of a violation which the 

Solicitor himself alleges is of moderate negligence and 

gravity. Moreover, it may be that the gravity was even more 

than moderate. Therefore, this case is hereby assigned to 

Judge James A. Broderick. 

All future communications regarding this case should be 

addressed to Judge Broderick at the following address: 

2015 
Federal Mine Safety and Health 

Review Commission 

Off ice of Administrative Law Judges 

Two Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6200 

c.-{~PJ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail} 

Mr. Carl A. Tibbetts, Gardner, Moss, Brown 

900 First National Exchange Bank Building, 

ferson Street, P.O. Box 13606, Roanoke, VA 

tified Mail} 

/nw 

2016 

& Rocovich, Suite 

213 South Jef24035 (Cer-
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 ,~UG 2119~. 

SECRETARY OF LABOR; CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENNECOTT MINERALS COMPANY, 

UTAH COPPER DIVISION, 

Respondent 

: 

. . 

. . 

. . 

. . 

Docket No. WEST 81-342-M 

A.C. ~o. 42-00712-05020 

Docket No. WEST 81-343-M 

A.C. No. 42-007l2~05021 

Arthur Concentrator 

DECISION 

Appearances: James H. Barkley, Esq., Peggy Miller, Esq. , Of·f ic~ 

of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, 

Before: 

for Petitioner: 

Kent W. Winterholler, Esq., Parsons, Behle & 

Latimer, Salt Lake City, Utah, 

for Respondent. 

Judge Morris 

These cases, heard under the provisions of the Federal Mine 

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

Act>, arose from an inspection of respondent's worksite. The 

Secretary of Labor seeks to impose civil penalties because 

respondent violated a safety regulation promulgated under the Act. 

Respondent withdrew its notice of contest to the unde~lying 

violations but contests the amount of the proposed penalties CTr. 

2' 3). 

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

held in Salt Lake City, Utah on September 20, 1983. 

~espondent filed a brief at the hearing. 

Issues 

What penalties are appropriate for these violations? 

Stipulation 

The parties stipulated that the imposition of a penalty of 

$2,964 would not affect respondent's ability to continu~ in 

business (Tr. 22, 23) • ' 

2017 
Citations 

The two cases here involve 26 separate violations of Title 

30, Code of Federal Regulations, Section 55.14-1. 

For these violations the Secretary, in his proposed 

assessment, seeks penalties in the total amount of $2,736. 

are two citations for the same defective conditions but for 

violations the Secretary seeks no penalties. 

There 

these 

The regulation violated by respondent provides as follows: 

Guards 

55.14-1 Mandatory. Gears; sprockets; chains; drive, 

head, tail and takeup pulleys; flywheels; couplings; 

shafts; sawblades; fan inlets; and similar exposed 

moving machine parts which may be contacted by persons, 

and which may cause injury to persons shall be guarded. 

Summary of the Evidence 

On December 12, 1980 MSHA Inspector William w. Wilson 

inspected respondent's Arthur Concentrator (Tr. 6, 7). He issued 

citations for the violation of 30 C.F.R. § 55.14-1 .when he found 

26 unguarded ball mills (Tr. 7, 8, Pl-P4). A series of steel 

balls in the machines grind ore inside a cylindrical drum. Ore 

concentrate is the resulting product. The drum itself has a five 

foot diameter and it is 2 1/2 feet above ground level (Tr. 9). 

The wheel turns inside a stationary drum holder at 600 

revolutions per minute (Tr. 9, 10). 

On these primary ball mills there were numerous pinch points 

between the drum holder and its supporting concrete frame. There 

are additional pinch points between the drum and the rotor (Tr. 

8, 10; Pl, P2). 

A pinch point is that area located between two moving parts 

or between a moving and a stationary point. An object or 

material can become caught, pulled, torn, or entangled at a pinch 

point <Tr. 7, 8)~ 

Photographs show a coke bottle, gloves, a rag and a grease 

can on the bottom of the steel ball machine frame (Tr. 11; P3, 

P4). 

Workers maintain the machines by pouring grease into a cup 

on the top. At that point the maintenance worker is six feet off 

of the ground. He could slip and fall into the moving wheel CTr. 

12). The operators of the machines also use the walkway located 

to the left (Tr. 13, P4). 

2018 
The twenty six ball mills, a football field in length, are 

adjacent to a walkway <Tr. 13>. A person on the walkway could 

trip or fall into a moving wheel. In the winter a worker's heavy 

clothing could be caught in the machines (Tr. 14). 

On the day of the inspection almost all of the unguarded 26 

ball mills were running (Tr. 16, 17). The inspector later 

modified the citation as to two non-operating machines <Tr. 17, 

18). But in the inspector's opinion all 26 violations existed. 

The machines that were not running that day were still capable of 

operating (Tr. 17, 18). 

In the past the inspector had seen guards on similar 

machines at other concentrators (Tr. 20). 

The condition here could cause a serious injury or a 

fatality. An accident would be likely to occur (Tr. 20). 

Respondent has 5,000 workers. A computer printout at the Arthur 

Concentrator shows an prior history of 26 violations of safety 

regulations, excluding the violations in contest in the instant 

cases. 

An MSHA memorandum of October 3, 1979 deals with a situation 

where the same violations exist in the same area of a mine. The 

memorandum requires that one citation be issued (Tr. 26). 

At the hearing the judge indicated he would take official 

notice of the MSHA memorandum (Tr. 28). 

Discussion 

Respondent's brief filed at the hearing raises two issues. 

Initially it is asserted that MSHA may not impose twenty four 

separate penalties as the result of issuing a single citation. 

As a secondary issue respondent claims that the penalties are 

excessive and unfair. 

The Act provides that civil penalties may be imposed for the 

violation of mandatory safety standards. Further, "each 

occurrence of a violation of a mandatory health or safety 

standard may constitute a separate offense" 30 U.S.C. 820(a). 

It appears on this record that there were 26 separate 

offenses since all of the machines were unguarded. I find 

nothing in the Act or in the legislative history that would 

prohibit MSHA from issuing a single citation for these separate 

violations. 

Respondent's reliance on the MSHA policy memorandum is 

misplaced. The memorandum states that where the same area of the 

mine is involved any multiple violations.should be treated as one 

2019 
violation and one citation should be ·issued. It does not 

necessarily follow from the memorandum that only one penalty must 

be proposed. 

In any event the Commission is not bound by any method of 

assessment used by MSHA. Co-op Mining Company, 2 FMSHRC 784 

(1980); the Commission can make de novo assessments. Shamrock 

Coal Company, 1 FMSHRC 469 (1979""):" The United States Court of 

Appeals for the 7th Circuit recently concluded that the 

Commission, as an independent adjudicative body, was required to 

follow the six criteria in 30 U.S.C. § 820(i) in assessing a 

civil penalty. Sellerburg Stone Company v. FMSHRC et al. No. 

83-1630, 2 M&IIC 2010, 3 MSHC 1385, June 11, 1984. 

Following the statutory criteria I find on this record that 

the Arthur Concentrator has a history of 26 violations in the two 

years prior to December 27, 1980 (Exhibit PS). This would not 

appear to be an excessive number of violations considering the 

large size of respondent's facilities. I find the operator was 

negligent in that the unguarded conditions were apparent. The 

imposition of a penalty will not affect the operator's ability to 

continue in business. The gravity, in my view, is somewhat less 

than claimed by Inspector Wilson. The pinch points, apparently 

located between the rotator and the assembly frame, do not appear 

to be as readily accessible to miners in the immediate area as 

the inspector claims. Accordingly, I do not find that an injury 

is as likely as the inspector contends (Tr. 8; Pl). The operator 

demonstrated good faith in installing guards after being notified 

of the violation. 

On balance, I consider a penalty of $50 to be appropriate 

for each unguarded ball machine at the site. I am further 

assessing penalties for the two unguarded machines that were not 

operating on the day of the inspection. 

Respondent failed to offer any evidence that these 

particular machines had been removed from service. In sum, a 

total civil penalty of $1,300 (26 x 50) should be assessed. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

1. In WEST 81-342-M and WEST 81-343-M respondent's motion 

to withdraw its notice of contest as to the validity of the 

citations is granted. 

2020 
2. The following citationE are aff irned and a penalty of 

$50 is assessed for each such violation. 

WEST 81-342-M 

Citation 

583705 A 

583705 B 

583705 c 

583705 D 

583705 E 

583705 F 

583705 G 

583705 H 

583705 I 

583705 J 

583705 K 

583705 L 

583705 M 

583705 N 

583705 0 

583705 p 

583705 Q 

583705 R 

583705 s 

583705 T 

Penalty 

$ 50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50. 00 

50.00 

50.00 

3. The following citations are affirmed and a penalty of 

$50 is assessed for each such violation. 

WEST 81-343-M 

Citation 

583705 u 

583705 v 

583705 w 

583705 x 

583705 y 

583705 z 

Penalty 

$ 50.00 

50.00 

50. 00 

50.00 

50.00 

50.00 

4. Respondent is ordered to pay the sum of $1,300 within 40 

days of the date of this decision. 

,~;u-?,_ (;;.· /iz:-ni..< ..:: 

,;:t0hn J • Morris 

,/_., Administlati ve Law Judge 

/ 

2021 
' 

Distribution: 

James a. Barkley, Esq., and Peggy Miller, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, Colorado 80294 (Certified Mail) 

Kent w. Winterholler, Esq., Parsons, Behle & Latimer, 185 South 

State Street, Salt Lake City, Utah 84147 (Certified Mail) 

/blc 

2022 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE .itOO 

DENVER, COLORADO 80204 AUG 211984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

KENNECOTT MINERALS COMPANY, 

UTAH COPPER DIVISION, 

Respondent 

. . CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 82-155-M 

: A.C. No. 42-00716-05015 

Docket No. WEST 83-60-M 

: A.C. No. 42-00716-05503 

. . Magna Concentrator 

DECISION 

Appearances: James H. Barkley, Esq., and Peggy Miller, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner: 

Kent W. Winterholler, Esq., Parsons, Behle & 

Latimer, Salt Lake City, Utah, 

for Respondent. 

Before: Judge Morris 

These cases, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., Cthe 

Act), arose as the result of an inspection of respondent's 

tailings pond. The Secretary of Labor seeks to impose civil 

penalties because respondent allegedly violated safety regulations promulgated under the Act. 

Respondent denies any liability for these incidents. 

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

held in Salt Lake City, Utah on September 20, 1983. 

Respondent filed a post trial brief. 

Issues 

The issues on the contested citations are: whether the 

doctrine of res judicata and collateral estoppel bar the 

citations: whether the standard applies to respondent's tailings 

pond: and whether the standard is mandatory or merely advisory. 

2023 
WEST 82-155-M 

In the above case the parties proposed the following 

settlement: 

30 C.F.R. Assessed Proposed 

Citation No. Section Violated Penalt:i Dis12osition 

577649 55.20-8 $ 24.00 $ 24.00 

577650 55.12-25 40.00 40.00 

577651 55.12-32 40.00 20.00 

579422 55.20-3A 26.00 Vacated 

579423 55.20-3A 26.00 26.00 

579426 55.20-3A 26.00 26.00 

577707 55.11-1 72.00 72.00 

579429 55.16-5 52.00 52.00 

(Transcript at pages 10-13 in 

Docket No. WEST 83-5-M) 

On the basis of the record I find that the proposed 

settlements are reasonable and they should be approved. 

Litigated Citations 

WEST 82-155 and WEST 83-60-M each contain a citation 

alleging a violation of 30 C.F.R. § 55.9-22. The standard cited 

by the Secretary provides as follows: 

Mandatory. Berms or guards shall be provided on 

the outer bank of elevated roadways. 

Summar:i of the evidence 

The evidence, generally uncontroverted, focuses on the same 

general area of respondent's tailings pond. This decision will 

first consider the tailings pond area itself and then, in chronological order, the three citations involved in the evidence. The 

first of the three citations was assigned to Commission Judge 

George A. Koutras. The subsequent citations are contested in 

each of the pending cases. 

The tailings 12ond 

A public highway intersects respondent's 4800 acre tailings 

pond at its Magna and Arthur Concentrators (Tr. 11, 12, 128, 131). 

The tailings pond assimilates each day some 85 tons of residue 

derived from the crushing of ore. The deposits in the pond, 

about 27 percent solid, causes a buildup in the sludge. From 

time to time it is necessary to increase the height of the 

discharge pipes (Tr. 12-14, 128-131). 

202~1 
The roadway cited by MSHA furnished access from one side of 

the tailings pond area to the roads (Tr. 15, 19, 21; Exhibits Pl, 

P2). Contractors, maintenance personnel, dikemen and supervisors 

travel this road (Tr. 15). At various times respondent has 

placed berms on the road located below the upper dike level. But 

these berms, by trapping rainwater, have created unstable 

conditions for vehicles on the road. Phreatic water and erosion 

problems have also increased. Any dike failure could cause water 

to flow into the Great Salt Lake <Tr. 140, 141, 153). 

Citation 583706 

In due course the above citation evolved into FMSHRC case 

WEST 81-283-M. 

The evidence in the instant case together with the 

Commission file in WEST 81-283-M establish that on December 10, 

1980 MSHA Inspector William W. Wilson issued Citation 583706 ~/ 

alleging a violation of 30 C.F.R. § 55.9-22 at respondent's 

tailings pond (Tr. 54-59; R-1). After a meeting in January, 

1981, the citation was modified to indicate that it applied to 

inclined access roads at the tailings pond (Tr. 60; Exhibit R-1). 

MSHA apparently considered that § 55.9-22 applied to inclined 

access roads (Tr. 60). 

Respondent contested the foregoing citation and the issues, 

as previously stated, were docketed before the Federal Mine 

Safety and Health Review Commission in Case No. WEST 81-283-M. 

The case was assigned to Commission Judge George A. Koutras 

(Exhibit J-1). 

Prior to a hearing the parties discussed a settlement. A 

letter, approved by the company, was forwarded to MSHA's counsel. 

It stated, in part, 

Kennecott will withdraw its Notice of Contest of the 

citation and the proposed civil penalty in this action 

if the Department of Labor will agree that the penalty 

to be imposed for the alleged infraction of that 

mandatory standard cited will be $235.00. The currently 

proposed penalty assessment is $295.00. In addition, 

this settlement agreement will specify an understanding 

that the specific standard which Kennecott is alleged 

l/ The Secretary strenuously objected to respondent's evidence 

relating to this citation (Tr. 54, 61-62). 

2025 
to have violated in Citation number 0583706, i.e. that 

mandatory standard found at 30 C.F.R. § 55.9~22 would 

be considered to apply at Kennecott's Arthur Concentrator, specifically the tailings pond area, only 

to inclined access roads, and not to the entire tailings 

pond dike. This is our understanding of the agreement 

or understanding reached between Kennecott and the 

Federal Mine Safety and Health Administration in the 

termination of the citation which is the subject of 

this proceeding. 

(Tr. 155; Exhibit J-1). 

Subsequently MSHA's counsel filed a motion before Judge 

Koutras seeking his approval of the settlement. Paragraph number 

2 of the motion states as follows: 

It is to be noted in this settlement that the 

mandatory standard found at 30 C.F.R. § 55.9-22 is 

to be applied at Kennecott's Arthur Concentrator, 

specifically the tailings pond area, only to inclined 

access roads and not to the entire tailings pond dike. 

See respondent's attached agreement. 

(Exhibit J-1). 

There was no hearing and on October 19, 1981, Judge Koutras 

entered a decision approving the settlement. 

As a result of the foregoing agreement the company believed 

it did not have to seek a variance. Respondent's witness Pinder 

indicated the company believed it would only have to berm 

inclined access roads (Tr. 155). Pinder further stated that the 

road cited in the pending cases was flat (Tr. 167). 

In 1982 and 1983 MSHA's counsel and MSHA's representatives 

Hansen and Plimpton disputed the company's position relating to 

inclined roads (Tr. 161, 162, 182-184; Exhibit P-6). 

In the instant cases Inspector Wilson explained that he 

modified the 1980 citation to show that the road was inclined. 

He sought to thereby distinguish it from the term "elevated" (Tr. 

186-189). MSHA's position, as stated at this hearing, is that a 

berm is required on an elevated, inclined, declined, or level 

road (Tr. 190). The inspector did not intend to forever limit 

MSHA's authority to issue citations on access roadways at respondent's tailings pond (Tr. 189). 

WEST 82-155-M - Citation 579431 

On January 26, 1982 Inspector William Wilson issued Citation 

579431 alleging a violation of 30 C.F.R. § 55.9-22. The citation 

alleges there was no berm or guard on the road adjacent to the 

Magna dike pump house. 

2026 
Inspector Wilson had observed during his inspection that the 

road providing access on the south side of the tailings pond was 

unbermed and unguarded for approximately 150 feet <Tr. 15, 20-21). 

The road, adjacent to the dike house, furnished primary access to 

the dike area, other pump houses and pipes (Tr. 15). The road 

was elevated 8 to 12 feet above an adjacent overflow drainage 

stream CTr. 19-221 Pl, P2). If a vehicle overtraveled the road a 

serious or fatal injury could result (Tr. 22, 23). 

Individuals using the roadway included contractors, 

maintenance personnel, electricians, dikemen, and supervisory 

personnel (Tr. 15, 24). 

A company representative discussed with the inspector the 

problem caused by the berm trapping the rainwater. The area has 

a history of collecting water (Tr. 29>. This citation was 

terminated when a berm was installed (Tr. 31). 

WEST 83-60-M - Citation 2083505 

A year later, in January 1983, in the same area Inspector 

Wilson found only remnants of a berm on the roadway. The conditions remained the same as in 1982 (Tr. 31-34). There were no 

berms or guards for a 150 foot length of the roadway. There were 

no means available to prevent overtravel on this portion of the 

road (Tr. 35, 36J P3, P4). Citation 2083505 was issued (Tr. 

31-32). 

The 1982 citation had been designated as one of a signif icant and substantial nature. The inspector testified the 1983 

citation should likewise have been designated as an S & S 

violation (Tr. 37). 

The 1982 and 1983 citations, if unabated, would ultimately 

result in an injury (Tr. 38). 

The area of the roadway without berms was inclined. The 

incline was very gentle, like a camel's hump (Tr. 78). 

Discussion 

Respondent's initial contention is that the decision of 

Judge George A. Koutras, approving the settlement of the parties, 

has a res adjudicata effect on the two citations in contest here. 

It argues that the decision applied § 55.9-22 to "inclined" roads. 

Further, respondent argues that since the road here is flat the 

citations cannot be sustained. 
Respondent's contentions lack merit. Section 55.9-22 does 

not require berms based on the inclination of a road. It is 

obvious on the record here that this portion of the roadway was 

elevated 8 to 12 feet above the adjacent stream (Tr. 20, 21; 

Exhibits Pl, P2, R2, R3, R4). Accordingly, berms are required. 

Respondent further contends that the roadway was flat; 

therefore, no berms were necessary. On this credibility issue I 

credit Inspector Wilson's testimony which is supported by the 

photographs. The evidence is rather clear that the road was 

inclined. But in any event whether the road was inclined is not 

relevant under the regulation. 

In addition, the doctrine of res judicata cannot be invoked 

because at no time did Judge Koutras adjudicate the issues of 

whether respondent violated the berm standard on this stretch of 

roadway. The citations were issued for conditions that occurred 

in 1980, in 1982 and in 1983. Each violative condition was 

abated. Accordingly, in his decision on October 19, 1981, Judge 

Koutras could not adjudicate conditions that did not occur until 

1982 and later again in 1983. 

Respondent further claims that MSHA's citations are barred 

by the doctrine of collateral estoppel. 

Virtually all of the evidence on this issue arises from the 

letter forwarded to MSHA's counsel from res~ondent's counsel. 

Subsequently, MSHA's counsel incorporated the letter in his 

motion filed with Judge Koutras seeking approval of the settlement (Exhibit J-1). Other than in the modification of the 1980 

citation, I note that MSHA's officials took no affirmative action 

concerning what respondent now considers to be its agreement with 

the Secretary. 

At the outset we can agree that equitable estoppel is a rule 

of justice which, in its proper field, prevails over all other 

rules. City of Chetopa v. Board of County Com'rs, 156 Kan 290, 

133 P. 2d 174, 177 (1943). Generally four elements must be 

present to establish the defense of estoppel. These are (1) the 

party to be estoppel must know the facts; (2) he must intend that 

his conduct shall be acted on or must so act that the party 

asserting the estoppel has the right to believe it is so 

intended; (3) the latter must be ignorant of the true facts; and 

(4) he must rely on the former's conduct to his injury. United 

States v. Georgia Pacific Company, 421 F. 2d 92, 96, (1970), 

(9th Cir.). In this case elements (3) and (4) are not factually 

present in this record. 

2028 

. _____ ,,. ... _,..,,....., ,.,.,. _,..,._.-. --- .. . 
But ev~n if the record establis~ed all of the factual 

elements to support the doct~ine it would not be applied to 

deprive miners of the protection of the Mine Safety Act because 

of a public official's mistaken action. Maxwell Company v. NLRB, 

414 F. 2d 477 (1969); Udall v. Oelschlaeger, 389 F. 2d 974 (1968). 

For a discussion of the doctrine of collateral estoppel also see 

the Commission decision of King Knob Coal Company, Inc., 3 FMSHRC 

1417 (1981). 

For the foregoing reasons respondent's pleas of res adjudicata and collateral estoppel are denied. 

The second contention is that 30 C.F.R. § 55.9-22 does not 

apply to respondent's tailings pond. Initially respondent argues 

that 30 C.F.R. § 55.9 speaks to those activities in metal and 

non-metal open pit mines that are defined in the scope note of 

the section as "Loading, Hauling and Dumping." 

Respondent's contention lacks merit. The Commission has 

previously rejected this exact argument and ruled that the term 

"hauling" should be broadly construed. The term includes 

conveying men, ore, supplies or materials along elevated roadways 

where the roadways are used in the practice of normal mining. 

Cleveland Cliffs Iron Co. Inc., 3 FMSHRC 291, (1981). 

The facts in this case clearly fall within the Commission's 

definition in tha cited case. The unbermed roadway furnished 

access to the dike house, the pump house, the electrical substations and the pipeway (Tr. 78). All of the roads are 

interconnected .. It is uncontroverted that the inspector observed 

respondent's personnel and its vehicles using the road (Tr. 83, 

85, 87). 

Respondent further claims that neither this Act nor its 

predecessor, the Federal Metal and Non-Metallic Safety Act of 

1966, include within their definitions of a mine the term 

"tailings pond." Since 30 C.F.R. 55.9-22 became a standard under 

the present Act by virtue of 30 U~S.C. 96l(b)(l) it is asserted 

that the Secretary must engage in rulernaking procedures to apply 

30 C.F.R. 55.9-22 to its tailings pond. In support of its 

position respondent relies on Usery v. Kennecott Copper 

Corporation, 577 F. 2d 1113, (10th Cir., 1977). In the cited 

case the Secretary of Labor under the OSHA 2/ Act adopted an ANSI 

standard but in the transition the Secretary changed a word from 

"should" to "shall" without following any rulemaking procedures. 

£/ Occupational Safety and Health Act of 1970, 29 u.s.c. 651 et 

seg. 

2029 
Respondent's contentions lack merit. Even if one assumes 

that respondent's tailings pond was not within the coverage of 

the 1966 Act, the present Act remedied any such defect when the 

Congress enacted an expansive definition of what constitutes a 

"mine." Congress further stated that the Act· "must be given the 

'broadest possible interpretation'" with "doubts resolved fn 

favor of inclusion." Cypress Industrial Minerals Corp., 3 FMSHRC 

1, (1981); See also Marshall v. Stout's Ferry Preparation Co., 

602 F. 2~ 589, 592 (3rd Cir. 1979). cert. denied, 444 U.S. 1015 

(1980). 

Respondent's cited case is not factually controlling. In 

this case, by· adopting the Act Congress eliminated the necessity 

of the Secretary to follow any rule making procedures .. to apply 

the berm standard to a tailings pond. 

Respondent's final argument centers on the proposition that 

30 C.F.R. § 55.9-22 is fatally flawed. The focus of the argument 

centers on the proposition that the regulation as promulgated is 

advisory and not mandatory. 

I agree with respondent's position. In order to resolve 

these contentions it is necessary to review the public records 

pertaining to the development of the berm standard at 30 C.F.R. 

§ 55.9-22. 

The standard, when initially proposed in 1969, read as 

follows: 

§ 55.9-26 Mandatory - OPAC 

Berms or guards shall be provided on the outer 

banks of elevated roadways. (Emphasis added). 

34 Fed. Reg. 656, January 16, 1969 

Prior to the promulgation of the Chapter 55 standards 

comments were solicited and received. The berm standard was not 

promulgated a~ a part of the initial 30 C.F.R. Part 55 issuance 

on July 31, 1969. See 34 Fed. Reg. 12503, 12506 (July 31, 1969). 

Subsequently, the Secretary of the Interior, the official 

responsible at that time, promulgated the following standard: 

§ 55.9-22 Mandatory. Berms or guards should be provided on the outer bank of elevated roadways. (Emphasis added) 

35 Fed. Reg. 3663, February 25, 1970. 

The Secretary of the Interior, in commenting about the changes 

between the originally proposed standards and the finally 

2030 
promulgated standards, stated, in part, in his prefactory 

comments at 35 Federal Register 3663 as follows: "In a few instances in which the language of a proposed mandatory standard 

appeared to impose a requirement not within the intendment of the 

standard, the standard has been rephrased." The Secretary then 

cites some examples, but there are no references to the berm 

standard in his published remarks. 

The situation then is that the Secretary originally proposed 

a standard in a mandatory form (shall), received comments, and 

finally promulgated the standard in an advisory form (should). 

Clearly supportive of the "should" language in the standard is 

the BNA ~/ Reference File which publishes 30 C.F.R. § 55.9-22 as 

follows: 

Mandatory. Berms and guards should be provided 

on the outer bank of elevated roadways. 

The Commission has not ruled on this issue. Cleveland 

Cliffs Iron Co., Inc., supra, does not address the point; hence, 

it cannot be considered as precedent. 

A situation much akin to these facts can be found in Jim 

Walter Resources, Inc., 3 FMSHRC 2488, at 2490 (1981). In the 

cited case the Commission dealt with the phrase "shall be used as 

a guide". In ruling the standard unenforceable the Commission 

noted the mandatory nature of the word "shall," 4/ but concluded 

the term "guide" was something less than a mandatory requirement. 

The term "shall" has almost universally been considered as 

the word used in regulations to express what is mandatory. 

Marshall v. Pittsburg Des Moines Company et al, 584 F. 2d 638, 

643 (3rd Cir., 1978); Usery v. Kennecott Copper Corporation, 

supra; C.J.S. Statutes§ 380(a); Webster's New Collegiat~ 

Dictionary, 1056, (1979). 

In sum, the Secretary pr6posed the standard in mandatory 

form and promulgated it in advisory form. The Secretary's 

ll Bureau of National Affairs, Inc., Mine Safety and Health 

Reporter. 

!/ 3 FMSHRC at 2490. 

203i 
comments are, at best, unclear as to why t-he change occurred. 

These factors, in connection with the BNA publication, cause me 

to conclude that the Secretary's proposal to access a civil 

penalty cannot be sustained. 

Based on the foregoing findings of fact and conclusions of 

law I enter the. following: 

ORDER 

WEST 82-155-M 

1. The proposed settlement agreement is approved and the 

following citations and penalties are affirmed: 

Citation 

577649 

577650 

577651 

579423 

579426 

577707 

579429 

Penalty 

$ 24.00 

40.00 

20.00 

26.00 

26.00 

72.00 

52. 00 

2. The following citations and all proposed penalties 

therefor are vacated: 

Citation 

Citation 

579422 

579431 

WEST 83-60-M 

3. Citation 2083505 and all proposed penalties therefor are 

vacated. 

I 

Distribution: 

. .... ' _..._ / \ )/-' .i -/.'_,.{_____ --J • / ,/c.("")/~-

~ohn J. Morris 

Administrative Law Judge 

James H. Barkley, Esq., Peggy Miller, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, Colorado 80294 (Certified Mail) 

Kent W. Winterholler, Esq., Parsons, Behle & Latimer, 185 South 

State Street, Salt Lake City, Utah 84147 (Certified Mail) 

/blc 

2032-
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. 5UITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENNECOTT MINERALS COMPANY, 

UTAH COPPER DIVISION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-5-M 

A.C. No. 42-01660-05501 

: Ore Haulage Plant 

DECISION 

Appearances: James H. Barkley, Esq., Peggy Miller, Esq., Office 

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

Denver, Colorado, 

for Petitioner; 

Kent w. Winterholler, Esq., Parsons, Behle & 

Latimer, Salt Lake City, Utah, 

for Respondent. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., (the 

Act), arose from an inspection of respondent's ore haulage plant. 

The Secretary of Labor seeks to impose a civil penalty because 

respondent allegedly violated a provision of the Act. 

Respondent denies that a violation occurred. 

After notice to the parties, a bearing on the merits was 

held in Salt Lake City, Utah on September 20, 1983. 

The parties waived the right to file post trial briefs. 

Issues 

The issues are whether respondent violated the Act; if so, 

what penalty is appropriate. 

Citation 579438 

This citation alleges respondent violated Section 109(a) of 

the Act. The cited section provides as follows: 

Posting of Orders and Decisions 

Section 109(a). At each coal or other mine there 

shall be maintained an off ice with a conspicuous sign 

203J 
designating it as the office of such mine. There 

shall be a bulletin board at such off ice or located 

at a conspicuous place near an entrance of such mine, 

in such manner that orders, citations, notices and 

decisions required by law or regulation to be posted, 

may be posted thereon, and be easily visible to all 

persons desiring to read them, and be protected against 

damage by weather and against unauthorized removal. A 

copy of any order, citation, notice or decision required 

by this Act to be given to an operator shall be delivered 

to the office of the affected mine, and a copy shall be 

immediately posted on the bulletin board of such mine 

by the operator or his agent. 

Summary of the Evidence 

MSHA's evidence: On April 29, 1982, as the result of an 

accident investigation at the ore haulage plant, MSHA Inspector 

William w. Wilson issued Citation 579438. The citation, issued 

at 2 a.m. was given to respondent's representative Frank Klobchar. 

The citation was not posted while Wilson was on respondent's 

property (Tr. 14-16, Exhibit Pl). 

The following morning Fred Peterson, a representative of the 

miners on the Magna Safety Committee of the United Steel Workers, 

(Local 392), called Wilson and advised him that the citation 

could not be located·. Thirty minutes later Wilson told Peterson 

to recheck. On the recheck he was to be accompanied by a 

witness. Peterson reconfirmed to Wilson that he could not locate 

the citation (Tr. 16, 17). 

Wilson went to the plant, arriving there at 9:30 a.m. on 

April 30, 1982 (Tr. 17). Wilson looked on the track office 

bulletin board but he did not find the citation (Tr. 18). The 

accident for which the citation had been issued involved 

primarily personnel from the track repair and maintenance crews 

(Tr. 18). The time cards for these workers are kept at the 

track yard office (Tr. 18). 

Exhibit P2 indicates that respondent's concentrator plant 

and ore haulage plant are, in their totality, complex areas. The 

area includes a "time office", a "track yard office", and a small 

"time clock office" (Tr. 19-20, Exhibit Pl, P2). 

On April 30th Inspector Wilson checked but could not locate 

the citation in the yard off ice or change room for the track yard 

(Tr. 21). 

Assignments are made by supervisors at the yard off ice~ In 

addition, the supervisors' offices are there. Personnel also 
change clothes there. The area also has a small lunchroom CTr. 

21). At this location the trackmen (the class of workers 

involved in the accident) usually ha,ve lunch, change and receive 

their instructions (Tr. 22). 

In the near vicinity, across a number of railroad tracks, is 

the building known as the ntime clock.n This building, which is 

also for the track people, had not been checked by the inspector (Tr. 22) • 

In a conversation with the inspector on April 30th between 

9:45 a.m. and 10:30 a.m., respondent's safety representatives 

indicated the citation had not been posted (Tr. 22-23>. 

Inspector Wilson opted that the citation should have been 

posted in the "track yard office." But he had checked and it was 

not at that location CTr. 24, 25). 

Witness Fred Peterson confirmed that he complained to MSHA 

that the citation had not been posted. After calling the MSHA 

office Peterson checked for the citation at the "time office", 

the "yardmaster office", the ntrackmen change room", and the 

"time clock" areas (Tr. 30). 

In Peterson's view the normal procedure at the site is to 

place information on the bulletin board at the yardmaster's 

office. But the best location to convey the information would be 

to post it on a small bulletin board inside the trackman's change 

room (Tr. 32). Trackmen would not look for any information 

posted at the "time clock" office (Tr. 32). Posting in the time 

clock building would be contrary to Peterson's experience at the 

plant (Tr. 32, 33). 

Witness Steven Pollock, a trackman in April 1982, was 

familiar with the "time clockn building. He punches in and out 

at that location on a daily basis (Tr. 39-40). Iri April 1982 the 

"time clock" building did not have a bulletin board (Tr. 40). In 

Pollack's view the proper places to post notices is on the 

bulletin board in front of the old change room or on one of the 

two bulletin boards in the new change room (Tr. 41). Pollack 

would never go to the "time clock" building for information (Tr. 

41). Prior to this litigation Pollard hadn't seen any 

information posted in the "time clock" building (Tr. 43). 

In December 1983 the. Union Safety Committee, in a letter to 

the company, requested that a bulletin board be maintained at the 

concentrator plant time office for the posting of citations, etc. 

(Exhibit P3). 

Respondent's safety and health engineer Frank Klobchar 

testified for the respondent. 

2035 
After he received the citation Klobchar made copies and went 

to a staff meeting. He posted the citation between 5:00 to 5:30 

p.m. in the ore haulage track time office building used by the 

track people (Tr. 47-49). Wilson, in a telephone call, told 

Klobchar that he had not looked for the citation at that 

particular location CTr. 49). 

Photographs, taken the following week, showed where the 

citation had been posted by Klobchar (Tr. SO, Exhibit Rl}. 

The practice has been to post citations at the time clocks. 

Klobchar had never previously posted anything at the location 

where he posted the April 29 citation (Tr. 53, 54). 

Discussion 

The facts establish a violation of the Act. 

The citation issued on April 29th was not posted 

"immediately" as the Act requires. Further, it was not, even 

under respondent's evidence, posted at a location where it would 

be protected against unauthorized removal. 

On the initial issue Inspector Wilson testified that he 

issued the citation at 2 a.m. on April 29 (Tr. 15-16). However, 

the citation itself indicates it was issued at 10:20, on a 24 

hour time clock. Even if it was issued at the later time, a 

delay of more than six hours occurred before it was posted. 

Klobchar testified the citation was not posted until 5:00 to 5:30 

p.m. 

"Immediately", as defined in Section 109(a} of the Act, 

means "without interval of time, without delay, straightway, or 

without any delay and lapse of time", Black's Law Dictionary, 5th 

Edition, 1979. ~-

Further, respondent's witness Klobchar agrees that at the 

location where he posted the citation there was nothing that 

would have prevented its unauthorized removal (Tr. 54). In this 

respect the location chosen, accordingly, did not comply with 

Section 109(a) of the Act. 

Procedural Issues 

At the conclusion of the hearing respondent moved the judge 

adopt the findings of fact contained in the judge's order of 

March 2, 1983. The order denied respondent's motion for summary 

judgment. 

The Secretary's objection was sustained on the grounds that 

such a procedure would effectively deny the Secretary his right 

of cross-examination. The right of cross-examination is mandated 

under the Administrative Procedure Act, 5 U.S.C. § 556. Further, 

203ti 
since the function of the judge when resolving a surrunary judgment 

motion is to determine if a genuine factual dispute exists, 

affidavits may not be employed to resolve disputed factual issues. 

They may be used only to determine whether any issues actually 

are in dispute. U.S. ex rel Jones v. Rundle, 453 F. 2d 147, 150, 

Third Circait, Cl97l>i Fed. R. Civ. P., Rule 56. 

Accordingly, I reaffirm my original ruling. 

CIVIL PENALTY 

The six criteria for assessing a civil penalty are set forth 

in 30 u.s.c. § 820(i). 

Considering the evidence offered at the hearing on cases 

heard at the same time as the instant case (WEST 81-242-Mi WEST 

81-243-M) I find that the operator has a history of 58 prior 

violations. The minimal penalty will not affect the operator's 

ability to continue in business and it is appropriate in relation 

to the large size of the operator. The operator was negligent 

but a posting violation of this type is of minimal gravity. The 

file reflects that the operator rapidly abated the violation. 

On balance, the proposed penalty of $20 is appropriate and 

it should be affirmed. 

Based on the foregoing findings of fact and conclusions of 

law, I enter the following: 

ORDER 

Citation 579438 and the proposed penalty of $20 are 

affirmed. 

- (.· )~ / .:>--~,< ---- . . '>~,._,__ /)'-- ......-- <---' 

.. John J. >Jorris 

l · · Administ-fative Law Judge 

Distribution: 

James H. Barkley, Esq., Peggy Miller, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, Colorado 80294 (Certified Mail) 

Mr. Richard D. Baker, President, United Steelworkers of America 

AFL-CIO, District 38, Sub-District 5, P.O. Box 220, Magna, Utah 

84044 (Certified Mail> 

Kent Winterholler, Esq., Parsons, Behle & Latimer, 185 South 

State Street, Salt Lake City, Utah 84147 (Certified Mail) 

/blc 

2037 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 2 3 1914 

CONSOLIDATION COAL COMPANY, 

Contestant . 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Respondent 

SECRETARY OF L~OR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , . Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. WEVA 84-2-R 

Citation No. 2001967; 9/12/83 

-Rowland No. 3 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 84-62 

A. C. No. 46-01986-03511 

Rowland No. 3 Mine 

Appearances: Robert M. Vukas, Esq., Pittsburgh, Pennsylvania, 

for Contestant/Respondent; 

Kevin c. McCormick, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner/Respondent. 

Before: Judge Steffey 

A hearing·-in the above-entitled consolidated proceeding 

was held on June 13, 1984, in Beckley, West Virginia, pursuant 

to section 105(d), 30 u.s.c. § 815(d), of the Federal Mine 

Safety and Health Act of 1977. At the conclusion of presentation of evidence by both parties, I rendered a bench decision, 

the substance of which is set forth below (Tr. 216-235). 

This proceeding involves a notice of contest filed on 

October 12, 1983, in Docket No. WEVA 84-2-R by Consolidation 

Coal Company, seeking vacation of Citation No. 2001967 issued 

on September 12, 1983, pursuant to section 104(a) of the Federal Mine Safety and Health Act of 1977, alleging a violation 

of 30 C.F.R. § 75.200. This proceeding also pertains to a 

petition for assessment of civil penalty filed on January 11, 

1984, in Docket No. WEVA 84-62 by the Secretary of Labor, seeking to have a civil penalty assessed for the violation of section 75.200 alleged in Citation No. 2001967. 

2038 
In the notice of contest case, the issues are whether a 

valid citation was issued and whether it should be sustained 

or modified. In the civil penalty case, the. issues are whether a violation occurred and, if so, what civil penalty should 

be assessed, based on the six criteria set forth in section 

llO(i) of the Act. 

Before I formulate a conclusion as to whether a violation 

occurred, it is necessary that I make some findings of fact 

which will be set forth in enumerated paragraphs. 

1. On September 12, 1983, Inspector Rosiek went to the 

Rowland No. 3 Mine of Consolidation Coal Company. At the mine 

he met a State inspector by the name of Lonnie Christian. 

Since Inspector Rosiek had come to the mine for the purpose of 

checking the provis'ions of the roof-control plan to determine 

whether they were appropriate for the mining conditions that 

then prevailed, it was the practice for a West Virginia inspector and an MSHA inspector to make the determination jointly 

because the roof-control plan filed by the operator with MSHA 

is also the one which West Virginia recognizes. They were accompanied on the inspection by the mine foreman, Jerry Toney. 

2. They proceeded to the No. 3-C Section of the mine 

where the mining crew was engaged in pillaring operations, 

specifically Pillar No. 6. A cut through the center of the 

pillar had already been taken, and while the inspectors were 

observing the mining crew, an additional amount of coal, or 

lift as they call it, was taken from the right corner of the 

left wing. The inspector, at that point, indicated to the 

mine foreman that he believed a violation had occurred of the 

provisions of Drawing No. 4, page 21, of the roof-control 

plan then in effect (Exh. 3). 

3. The inspector remained in the vicinity of the No. 6 

pillar until the miners began taking lifts in the sequence 

shown on Drawing No. 4, according to which lifts marked as 

two, three, four, five, and the pushout at the most outby portion of the right wing are removed. Then the continuousmining machine is moved up the left entry and used to take 

lifts six, seven, eight, nine, and the final pushout at the 

most outby portion of the left wing. 

4. The inspector marked the block on the citation which 

is labeled "significant and substantial" !./ because he believed 

1/ In Consolidation Coal Co., 6 FMSHRC 189 (1984), the Commission held that an inspector may properly designate a violation cited pursuant to section 104(a) of the Act as being 

"significant and substantial" as that term is used in section 

104(d) (1) of the Act, that is, that the violation is of such 

nature that it could significantly and substantially contribute 

to the cause and effect of a mine safety or health hazard. 

2039 
that removal of the right corner of the left wing would weaken 

the support provided by the left wing and cause a redistribution of weight. His reason for that belief was based on the 

fact that the lift taken from the right corner was about 12 

feet wide at its inmost point and left only about 3 feet of 

coal standing at the extreme end of the left wing. He felt 

that if he remained in the ~icinity of active mining operations 

until lifts six and seven had been taken, the danger would be 

eliminated. 

5. Testimony was also given in this proceeding by an inspector named Darlie F. Anderson. Both Inspector Anderson and 

Inspector Rosiek are what is known as coal mine inspectors 

specializing in roof control. The difference between Inspector Anderson and Inspector Rosiek lies in the fact that Inspector Anderson has had a lot more practical experience than Inspector Rosiek, and apparently another reason for Inspector 

Anderson's testifying, in addition to giving his opinion based 

on his practical experience, was that he had participated in a 

revision or modification of the roof-control plan which occurred after Inspector Rosiek's Citation No. 2001967 was issued. 

The inspector had stated in Citation No. 2001967 (Exh. 4): 

The approved roof control plan Permit No. 4-RC-12-

70-1141-14 was not being complied with in the No. 6 

pillar on the 3-C(008-0) Section in that a lift was 

taken from the left rib after the split had holed 

through prior to mining the right wing. The sec~ 

tion was supervised by Rodney Reed, section foreman. 

The change that was made in the roof-control plan, and 

this change was made under the supervision and investigation of 

Inspector Anderson, related to a change in Drawing No. 4 which 

is shown on page 21 of the roof-control plan introduced as exhibit 5 in this proceeding. That change allows Consolidation 

Coal Company to remove the right corner from the left wing of 

a pillar after the split has been taken from the middle, and 

that portion is to be no wider than seven feet at the inmost 

point of the left wing. An additional change in the modification is that instead of inserting eight breaker posts at point 

"E" shown on Drawing No. 4 of exhibit 5, only four breaker 

posts are set prior to the taking of the right corner of the 

left wing. After the right corner has been removed, then the 

four breaker posts on the left of the letter "E" are installed, 

together with five additional breaker posts, before the lift 

on the right wing is taken. 

6. A great deal of opinion testimony was necessarily involved in the proceeding, and both inspectors agreed that roof 

conditions in this particular instance were good. Of course, 

2040 
Inspector Anderson was not present on September 12, but he was 

given the fact that the roof conditions were good, and it was 

his opinion that removal of the right corner of the left wing 

was not a particularly dangerous act of mining. Inspector 

Rosiek's opinion was, as I have previously indicated, that removal of the right corner o.f the left wing did subject the 

miners to additional danger as compared with not removing the 

right corner. 

7. Consolidation Coal Company presented several witnesses, 

the first one being Basil Green, who was the operator of the 

continuous-mining machine on the day that the inspector wrote 

the citation. He testified that it had been a question in his 

mind as to whether it was permissible to remove the right corner 

of the left wing in the situation that he encountered on September 12, but that he had been assured by management that it was 

in compliance with the roof-control plan for him to do so. 

Consequently, he had been taking the right corner of the left 

wing if a situation prevailed which he felt required him to do 

so. The condition which Green believed to be necessary before 

he would remove the right corner of the left wing was that 

there be some indication of an override of the breaker posts 

which are placed at the inmost portion of the left entry beside 

the left wing of the pillar that is being removed. On September 12 he had found that the first four of the eight breaker 

posts which are shown at the letter "A" on Drawing No. 4 of 

exhibit 3 had been broken, and therefore he installed four additional breaker posts outby the four remaining posts. As a 

result of that change in the location of the breaker posts, he 

said that it was not possible to get the continuous-mining 

machine up the left entry to the left of the left wing and 

still remove all of the pillar because his access to the inmost portion of the left wing would be blocked by the additional breaker posts which had been set. And he also had the ability, because of his experience, to evaluate the entire 

mining situation that prevailed at that time, and he said that 

there had not been enough of an override to cause a redistribution of weight, so that he did not encounter or see any evidence of a sloughing off of the coal on either the left or the 

right wing, and that since he did not see or hear any signs of 

a change in the weight distribution of the roof, he thought it 

was entirely safe to remove the right corner of the left wing. 

That is what he did on September 12, and he did so even though 

the mine foreman, Jerry Toney, was present, and he believed 

that he was proceeding in accordance with the roof-control 

plan. He testified that he would not take the right corner 

if he felt that there was a redistribution of weight as a result of the breaking and resetting of the breaker posts in the 

left entry as described above. 

2041 
8. Jerry Toney, the mine foreman, also testified, and it 

was his belief that he was proceeding in accordance with the 

roof-control plan. He said that he would not have allowed the 

continuous-mining machine to take the right corner of the left 

wing in the presence of a Federal and a West Virginia inspector 

if he had not believed that it was appropriate, safe, and in 

compliance with the roof-control plan, and that he felt that 

no hazard existed because of the way they proceeded in this 

instance. 

A~other witness who appeared on-behalf of Consolidation 

Coal Company was the superintendent of the mine, Norman Blankenship. He testified that he believed that he was entirely 

within compliance of the roof-control plan because of the 

second paragraph on page five of the roof-control plan. That 

provision appear~ in both exhibits 3 and 5 and provides as 

follows: 

Where second mining is being done, management shall 

show on a mine map the sequence of recovering pillars. Pillaring methods shall maintain a uniform 

pillar line that eliminates pillar points and pillars that project inby the breakline. When conditions dictate that changes be made in the sequence 

of pillar recovery, such changes shall be authorized by the superintendent or designated mine foreman for the shift involved and shall include additional precautionary measures to be taken to compensate for the abnormal conditions encountered. 

It was Blankenship's opinion that the abnormal condition which 

warranted deviation at the time the citation was written was 

the breaking of the posts, or the indication of some override, 

and that it was necessary that the right corner of the left 

wing be removed because if that were not done that it would be 

difficult, if not impossible, to get the inmost portion of the 

left wing removed without.having the continuous-mining machine 

proceed inby permanent supports. Consequently, if they could 

not remove the last portion of the left wing by using the sequence of mining shown on Drawing No. 4 of the roof-control 

plan in effect on September 12, 1983, sufficient coal would be 

left standing to interfere with the normal dropping of the roof 

as retreat mining occurred. Blankenship's testimony regarding 

the adverse effect of leaving coal is supported by Jerry 

Toney's and the inspector's testimony. In fact, all witnesses 

agreed that leaving coal in a pillaring section is as dangerous 

a situation as taking too much coal at a given point. Blankenship also explained that he had made a request for a change 

in the roof-control plan after Inspector Rosiek had written 

Citation No. 2001967 because he had not previously been cited 

for having removed, or for having allowed the removal of the 

2042 
right corner of the left wing, and as far as he was concerned, 

he had been in compliance, but having been cited for something 

which had been the practice at Rowland No. 3 Mine for anywhere 

from 5 to 10 years, he then concluded that it was necessary to 

request a modification of the roof-control plan. 

9. The request for th~ modification probably can best be 

summarized by referring to exhibit A in this proceeding which 

is a letter showing the type of change that Blankenship thought 

was essential. That particular exhibit also has the signature 

of both the day-shift and the evening-shift miners who worked 

on the 3-C Section, including the signatures of not only the 

section foremen and the mine foreman, but also the rank and 

file miners who ran the continuous-mining machine and the helpers of the operators of the continuous-mining machine. The 

theory behind tne request for the modification of the roofcontrol plan lies in· the fact that all of the miners apparently 

pref er to have all of the coal removed any time a pillar is removed so that there will not be a residue of coal left to interfere with the smooth falling of the gob area as the pillars 

get pulled in the retreat-mining process. 

Those findings summarize the testimony and exhibits which 

have been presented in this proceeding. Counsel for the Secretary and for Consolidation made concluding arguments. The 

Secretary's counsel asserts that there was a violation of the 

roof-control plan and he argues that it was improper for the 

mine superintendent to rely upon the second paragraph on page 

five of the roof-control plan as a device for saying that a 

different sequence could be used from that shown in the drawing in the roof-control plan in effect on September 12, 1983. 

The provision on which the superintendent relied has been 

quoted in finding No. 8 above, and it. appears to me that the 

superintendent is not entitled to rely upon that provision for 

the purpose of changing the sequence of the removal of the 

lifts that are shown in the roof-control plan. The reason for 

my ruling is based on the third sentence in that paragraph 

which provides, "When conditions dictate that changes be made 

in the sequence of pillar recovery, such changes shall be 

authorized by the superintendent or designated mine foreman 

for the shift involved and shall include additional precautionary measures to be taken to compensate for the abnormal conditions encountered." 

I interpret the quoted sentence to mean that the changes 

must be made because of some very unusual circumstance that 

has arisen, because the sentence states that the changes shall 

be made "for the shift involved and shall include additional 

precautionary measures". I believe that the situation that 

2043 
brought about the removal of the right corner of the left wing 

in pillaring was something that occurred so frequently that it 

would not be the type of abnormal condition that is contemplated 

by the third sentence of that paragraph on page five. 

I think that when there is a condition which required a 

routine deviation from a particular provision of the roof-control 

plan, that the operator is required to get the change formalized 

in. the way that was done after the citation was written. The 

operator of the continuous-mining machine said that if he removed 10 pillars, he might feel that it was desirable to remove 

the right corner of the left wing two times out of 10. I believe that that is such a common occurrence that "the abnormal 

conditions" do not exist which would permit the superintendent 

to rely on the second paragraph on page five of the roof-control 

plan. Since on .September 12, 1983, there was not any outstanding provision in the plan which permitted the taking of the 

right corner of the left wing, as was done at that time, I believe that there was a violation of the roof-control plan as 

alleged by the inspector. 

The other point made by both counsel is that there is a 

question as to whether the inspector properly checked on exhibit 4, which is the citation itself, the provision "significant and substantial". Of course counsel for the Secretary 

argues that Inspector Rosiek properly checked S&S, while counsel for consolidation argues that he should not have checked 

S&S. 

A decision as to whether a violation has been properly 

designated 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. 

As indicated in footnote 1 above, the Commission recently held 

in a Consolidation Co~l case that an inspector may check the 

words "significant and substantial" on a citation issued under 

section 104(a) despite the fact that that particular language 

is actually taken from section 104(d) (1) of the Act. Therefore, it was legally permissible for the inspector to check 

the words "significant and substantial" on the citation here 

involved which was issued under section 104(a) of the Act. 

2044 
In both the Consolidation case I just mentioned and in 

Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission applied 

the definition of significant and substantial in four steps. 

The first step was whether a violation occurred, and I have 

already dealt with that by finding that a violation of the 

roof-control plan occurred. The second step in the definition 

of significant and substant.ial is whether the violation contributed a measure of danger to a discrete safety hazard. In 

this instance, there was an alleged discrete safety hazard in 

that Inspector Rosiek, who wrote the citation, believed that 

the miners had been subjected to an additional hazard because 

a certain amount of support that would have been on the left 

wing had been removed, thereby leaving less area to support 

the roof on the left side of the pillar. So there was a discrete safety hazard. 

The third step in applying the definition is whether 

there is a reasonable likelihood that the hazard contributed 

to will result in injury. The testimony is equivocal on whether the removal of that right corner of the left wing really 

did bring about a reasonable likelihood that the hazard contributed to would result in an injury, because it is a fact 

that Consolidation Coal Company was using 4-foot resin bolts 

in the split which had been taken up through the middle of the 

pillar, although its roof-control plan provided for a minimum 

use of only 30-inch conventional bolts. Consol had used the 

secure 4-foot resin bolts because it wanted to provide maximum 

safety in the pillar removal operation which is necessarily 

hazardous work. 

The inspector, despite the fact that he wrote a violation 

for the taking of that right corner of the left wing, still 

allowed the continuous-mining machine to proceed in the normal 

course of removing the pillar going through lifts two through 

10, as shown in the drawing in the roof-control plan, and the 

inspector believed that by the time the lift at the most inby 

portion of the left wing had been taken, the danger had been 

so minimized, that there was no longer any hazard. At that 

point he left the section. 

I cannot find on a preponderance of the evidence in this 

case that there was a reasonable likelihood that the hazard 

contributed to would result in an injury, because the only act 

which had been done here was the removal of the right corner 

of the left wing of the pillar, and there had been additional 

breaker posts set before the other lifts were removed. I cannot distinguish the claimed likelihood of injury in this instance on September 12 from the fact that subsequently to the 

occurrence of the instant violation, Consol was allowed to 

modify the roof-control plan to insert a provision which allows 

Consol, on a routine basis, to take the right corner of the 

left wing in almost exactly the same way it was being done on 

2045 
September 12, but under the new and current modification of the 

roof-control plan, Consol is permitted to omit the setting of 

four of the eight breaker posts that had been set on the day 

that the inspector wrote the citation. So there has been a modification of the roof-control plan to allow, on a routine basis, 

almost exactly the same procedure that was used on September 12. 

The only difference now is that it is currently permissible under the roof-control plan to take the right corner of the left 

wing, but on September 12 it was not permissible to do so. 

The fourth step in application-of the significant and substantial definition is whether there is a reasonable likelihood 

that the injury. in question will be of a reasonably serious 

nature. Here again, I have to evaluate the seriousness and the 

likelihood of injury on the basis of the type of work being performed. I think.all witnesses agreed that removing pillars is 

a hazardous mining procedure. The people who do it have to be 

trained and exp~rienped to watch for all sorts of indicators of 

what hazards exist. Green, who was the operator of the continuous-mining machine, testified that he did take into consideration the question of whether there had been a weight distribution, whether there was sloughing of coal from the remaining 

wings on each side, and he made a determination that the No. 6 

pillar could be removed by taking the right corner 0£ the left 

wing without exposing him or the other men on the crew to any 

reasonable likelihood of a roof fall which would cause an 

injury. 

Inspector Rosiek, who wrote the citation, allowed them to 

finish the taking of the No. 6 pillar, and while he asserted 

tnat he felt that there was a very serious exposure to injury, 

he also conceded and acknowledged the fact that if coal were 

left on the inby portion of the ieft wing, rather than allowing 

the miners to go in and take the right corner of the left wing, 

a safety hazard will occur from the standpoint of future removal 

of other pillars because there might not be the necessary uniform dropping of the gob area as retreat mining continued. 

There has to be in retreat mining an overall consideration 

of so many different factors, that I cannot find that the removal of the right corner of the left wing was a matter which 

had a reasonable likelihood of injuring anyone in the way that 

this particular operator of the continuous-mining machine proceeded on September 12. Therefore, I find that the. inspector 

improperly checked S&S on Citation No. 2001967, and I find that 

Consolidation Coal Company's notice of contest should be granted 

to the limited extent that the citation should not show a designation of "significant and substanti~l". 

Having found a violation, however, it is necessary that 

a civil penalty be assessed. In order to do that, I have to 

consider the six criteria listed in section llO(i) of the Act. 

2048 
The parties have stipulated to certain facts which deal with 

several of the six criteria. It has been stipulated that the 

Rowland No. 3 Mine is owned and operated by Consolidation Coal 

Company and that Consol showed a good-faith effort to achieve 

rapid compliance after the citation was written. 

As for the criterion of. the size of the company, it was 

stipulated that Consol 1 s annual production is about 45,000,000 

tons and that the Rowland No. 3 Mine produces about 199,000 

tons per year. Those figures support a finding that Consol is 

a large operator. There was no stipulation as to whether the 

payment of a penalty would cause Consol to discontinue in business, but the Commission held in Sellersburg Stone Co., 5 

FMSHRC 287 (1983), aff'd Sellersburg Stone Co. v. FMSHRC, 

F.2d , 7th Circuit No. 83-1630, issued June 11, 1984, that 

when no financial evidence is presented in a given case, a 

judge may presurri.e that a company is able to pay a penalty without causing it to discontinue in business. Therefore, I conclude that payment of a penalty will riot cause Consol to discontinue in business. 

The fourth criterion to be considered is history of prev-. 

ious violations. Exhibit 7 is a computer printout of the history of previous violations at the Rowland No. 3 Mine for the 

24 months preceding the writing of the citation here involved. 

That exhibit shows that Consol has been cited for three previous violations of section 75.200. All three violations were 

alleged in citations written pursuant to section 104(a) of the 

Act. All three violations were cited on March 12, 1982, and 

MSHA proposed a penalty of $112 for each violation. Those 

facts support a conclusion that Consol has not been cited for 

a particularly serious previous violation of section 75.200 at 

its Rowland No. 3 Mine. While the legislative history shows 

that Congress intended for the criterion of history of previous 

violations to be applied so as to increase the penalty progressively for each repeated violation of the same standard, 2/ 

Congress was concerned about repetitious violations which-had 

occurred·within a few months of the violation under consideration at a given time. The evidence in this instance shows 

that Consol has not violated section 75.200 at all during the 

18 months preceding the occurrence of the violation here under 

consideration. In such circumstances, I find that Consol has 

a favorable history of previous violations which supports a 

conclusion that no portion of the penalty should be assessed 

under the criterion of history of previous violations. 

The fifth criterion is negligence. As to that criterion, 

the inspector checked the word "moderate" in item 20 on Citation No. 2001967. The evidence shows that Consol's negligence 

2/ LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH 

ACT OF 1977, at 631 (1978). 

204'7 
is even less than the inspector indicated because Consol's 

management believed that the company had a right under the 

roof-control plan in effect when the citation was written to 

extract pillars in the way the miners were operating on September 12, 1983. The argument made by Consol in support of 

its having proceeded the way it did is logical and it is a 

position which had some merit, particularly in view of the 

fact that the taking of the·right corner of the left wing was 

a practice which had been followed for from 5 to 10 years 

prior to the writing of the citation involved in this case. 

Consequently, I find that the degree of negligence associated 

with the violation was very low, bordering on none. For the 

aforesaid reasons, I conclude that no portion of the penalty 

should be asses.sed under the criterion of negligence. 

The sixth and final criterion to be considered is gravity.· 

I have already i-ndicated above in my discussion of the term 

"significant and substantial" that there was no reasonable 

likelihood that anyone would be injured from the cut that was 

taken off the right corner of the left wing. In such circumstances, there is hardly any reason to assess a penalty apart 

from the fact that assessment of a penalty is mandatory under 

the Act once a violation is found to have occurred. Tazco, Inc., 

3 FMSHRC 1895 (1981). In view of the fact that a large operator is involved, I believe that a minimal penalty of $25 should 

be assessed for the violation of section 75.200 alleged in 

Citation No. 2001967. 

The Commission held in C.C.C.-Pompey Coal Co., Inc., 2 

FMSHRC 1195 (1980), that a judge is obligated to reconsider any 

rulings made in a bench decision if, during the interim between 

the rendering of the bench decision and its issuance in final 

form, the Corrunission issues a decision establishing a precedent 

which conflicts with the rulings made by the judge in his bench 

decision. The holding in the Pompey case applies to the bench 

decision set forth above because the Commission issued a decision in United States Steel Corp., 6 FMSHRC 1423 (1984), after 

I had rendered the bench decision in this proceeding, in which 

the Corrunission majority reduced one of my civil penalties from 

$1,500 to $400 and another penalty from $80 to $70. I have 

carefully reviewed the findings made in the bench decision 

and I do not believe that they conflict in any way with the 

holdings made by the Commission majority in the u. s. Steel 

case. Therefore, I do not think that the penalty of $25 

assessed in the bench decision needs to be further reduced in 

light of the Commission's U. s. Steel decision. 

WHEREFORE, it is ordered: 

(A) Consolidation Coal Company's notice of contest filed 

in Docket No. WEVA 84~2-R is granted to the extent of modifying Citation No. 2001967 issued September 12, 1983, to delete 

2048 
the checking of the term "significant and substantial" initem 

No. lla of the citation. The notice of contest is otherwise 

denied and the citation is otherwise affirmed. 

(B) Within 30 days after issuance of this decision, Consolidation Coal Company shall pay a civil penalty of $25.00 

for the violation of section 75.200 alleged in Citation No. 

2001967 issued.September 12, 1983. 

Richard 

~a.o.3~ c. Steffei~ Administrative Law Judge 

Distribution: 

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Kevin c. McCormick, Esq., Office of the Solicitor, u. s. Department of Labor, Room 1237A, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

yh 

. 2049 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

~UG 24 1984 FALLS CHURCH, VIRGINIA 22041 

ENERGY COAL INCOME 

PARTNERSHIP, 1981-1, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY COAL INCOME 

PARTNERSHIP, 1981-1, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 83-30-R 

Citation No. 2053481; 11/4/82 

Docket No. KENT 83-31-R 

Citation No. 2004021; 10/22/82 

Docket No. KENT 83-32-R 

Citation No. 2004022; 10/22/82 

Docket No. KENT 83-33-R 

Order No. 2004023; 10/22/82 

Docket No. KENT 83-34-R 

Citation No. 2053293; 10/22/82 

Docket No. KENT 83-35-R 

Citation No. 2053294; 10/22/82 

Docket No. KENT 83-36-R 

Citati~n No. 2053295; 10/22/82 

Docket No. KENT 83-37-R 

Citation No. 2053296; 10/22/82 

No. 15 Surface Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 83-153 

A.C. No. 15-13382-03505 

Docket No. KENT 83-154 

A.C. No. 15-13382-03504 

Docket No. KENT 83-169 

A.C. No. 15-13382-03506 

No. 15 Surface Mine 

SETTLEMENT DECISION 

Before: Judge Melick 

These consolidated cases are before me upon petitions 

for assessment of civil penalty and contests filed under section 

2050 
lOS(d) of the Federal Mine Safety and Health Act of 1977 (the 

Act). On October 20, 1983, the parties submitted a joint 

proposal for settlement of the captioned civil penalty proceedings and a request for withdrawal of all associated 

contest proceedings. On 'November 28, 1983, the undersigned 

requested additional information deemed necessary for consideration of the settlement motion. Information was submitted 

on December 2, 1983, December 5, 1983, May 3, 1984 and, 

subsequent to teleconference hearings on the motion on 

May 30, 1984, on June 26, 1984, July 5, 1984, and July 12, 

1984. The motion for settlement was amended on July 5, 1984, 

in that the mine operator indicated a willingness to pay the 

full amount of penalties as originally proposed by the 

Secretary .rather than the reduced amounts first suggested in 

the motion for settlement. · 

These cases arise from the death of bulldozer operator 

Bernard Farrar on October 20, 1982, at the No. 15 Surface 

Mine of the Energy Coal Income Partnership in Davella, 

Kentucky. His death occurred when the outer portion of the 

bench-roadway over the highwall collapsed under the weight 

of the bulldozer he was operating. The deceased was thrown 

out and crushed by the bulldozer as it rolled over. The 

investigation revealed that the bulldozer's seat belts had 

previously been removed. 

The evidence shows that earlier on the day of the 

incident the day shift bulldozer operator had been .working 

on the south side of the surf ace operation. At the completion 

of his shift as he approached the highwall catch-bench 

roadway from the south side to return to the portal he 

observed that part of the highwall berm had collapsed. He 

thereupon built a "barricade" of dirt with his bulldozer as 

a warning to persons travelling south to north. The operator 

then constructed a new roadway through the pit. 

The day shift supervisor on the south side, Manuel 

Ward, shortly thereafter travelled towards the catch bench 

and saw the high wall errosion, the barricade, and the new 

roadway. While he decided to drive through the pit over 

the new road he took no action to barricade or close off the 

other end of the road and did not report the dangerous 

conditions. Shortly before 4 p.m. mine superintendent Mike 

Cantrell and second shift foreman Jarvis Hackworth travelled 

over the subject roadway. Cantrell saw the slip starting on 

the outer edge of the roadway. He said that he told Hackworth 

not to use the road but Cantrell nevertheless continued to 

use the road himself and, indeed, drove right over the dirt 

barrier that had been erected by the day shift bulldozer 

operator at the south end. Hackworth also continued to use 

the subject road and later transported the deceased and 

another miner over the same road. 

2051 
There were no entries in the on-shift examination books 

reflecting any unstable or hazardous conditions on the bench 

roadway and, indeed, .the only entries indicate that the 

road and highwall conditions were "good." The evidence also 

shows that aside from the efforts of the day shift bulldozer 

operator to erect a dirt barricade at one entrance to the 

roadway the deteriorating high wall and roadway conditions 

were not properly reported, corrected, nor barricaded. 

Moreover, while it appears that the mine superintendent 

expressed some concern about the continued use of the subject 

roadway because of its deteriorating condition, he and his 

foreman continued to use that roadway and indeed the victim 

himself was transported across that roadway by the foreman 

shortly before the fatal accident. The message reasonably 

inf erred under the circumstances was that management was not 

seriously concerned with the dangerous road condition and 

there was no immediate need to stop using it. 

Citation No. 2004021 alleges a violation of the standard 

at 30 CFR § 77.1713 for failing to record or correct the 

unstable condition of the catch-bench roadway and in failing 

to properly barricade the roadway to prevent access. A civil 

penalty of $10,000 was initially proposed by the Secretary and 

a reduction to $5,000 was proposed in the initial motion for 

settlement. The representations in that motion in support 

of the penalty reduction are not however, supported by the 

investigative report and statements of witnesses. Indeed in 

material respects the representations are in direct conflict 

with the investigative report. The report and the evidence 

in support thereof were available at the time the penalty of 

$10,000 was assessed and, according to Special MSHA Investigator John S. South, no new evidence has since been developed 

concerning the violations. 

Manuel Ward, the day shift foreman, admittedly had seen 

the dangerous conditions of the highwall road toward the end 

of his shift around 3:30 of the afternoon at issue and 

observed the dirt barricade erected by the day shift bulldozer operator at the south end of the road. Ward nevertheless failed to report the unstable condition and failed to 

see that the north end of the roadway was barricaded. In 

light of his clear knowledge that the road was unsafe to 

travel, I find his failure to report and correct the road 

condition to have been an omission of gross negligence. 

According to the night shift foreman, Jarvis Hackworth, 

at the beginning of his shift at 4 p.m., Mine Superintendent 

Mike Cantrell told him "we're going to have to quit using 

this road" referring to the subject catch-bench roadway. 

Even assuming, arguendo, that such a statement had been made 

it apparently was made with no intent of immediate enforcement since Hackworth immediately thereafter drove his pickup truck over that very same road with the deceased as one 

2052 
of his passengers. Hackworth conceded moreover that even 

the barricade erected by the day shift bulldozer operator at 

the south end of the road was not sufficient to block the 

road and that he twice drove over the barricade with his 

pick-up truck -- once with the deceased as his passenger. 

The road had still not been properly barricaded nor reported 

by 6:45 p.m. when the fatality occurred. 

Mine Superintendent Mike Cantrell stated that during 

the course of the day shift and between shifts he had travelled 

over the subject roadway several times. Passing over the 

road around 3:30 that afternoon he saw that the berm had 

disappeared and he concluded at that point that the road was 

hazardous. He thought he had told night shift foreman 

Jarvis Hackworth that the road was "slipping off or breaking 

off" but did not instruct Hackworth to barricade or close 

the road off. 

Within this framework of evidence it is clear that the 

fatal accident that is the subject of this proceeding was the 

result of gross negligence. Management personnel concede that 

the condition was hazardous and the seriousness of the hazard 

is evident from the accident that did in fact occur. 

As further justification for the proposed penalty 

reduction the mine operator presented information concerning 

its financial condition incuding financial statements and 

the history of the petition for reorganization und~r Chapter 

11 of the Bankruptcy Act. I have taken this information 

into consideration. In light of the high gravity and gross 

negligence associated with this fatal accident and considering 

the history of violations and size of the mine operator 

involved, it is clear that a penalty of $10,000 would ordinarily 

be warranted. Considering however, the financial condition 

of the operator and that the facts underlying this violation 

are essentially the same as those supporting other violations 

and penalties in these cases, I believe a penalty of $7,500 

is appropriate. 

Citations No. 2053293 and 2053294 allege violations of 

standards at 30 C.F.R. § 77.170l(i) and 30 C.F.R. § 77.403 

respectively, and primarily concern the failure of the mine 

operator to have provided operative seat belts on the 

subject bulldozer. The evidence shows that the buckle or 

fastening device had been removed thus rendering the belts 

inoperative. The investigators concluded that had the 

deceased been wearing a seat belt he would not have .been 

killed. The mine operator has agreed to pay the in.i ti ally 

proposed penalties in full and considering the cri~eria 

under section llO(i) of the Act, I find the penalties to be 

appropriate. 

2053 
· Citation No. 2053295 alleges a violation of the standard 

at 30 C.F.R. § 77.1606(c) and charges more particularly that 

the left brake on the subject bulldozer was defective causing 

a sharp left turn upon application. The investigators could 

not however, conclude that the cited defect either contributed 

or did not contribute to the fatal accident. The mine 

operator has agreed to pay the initially proposed penalty in 

.full and considering the criteria under section llO(i) of 

the Act I feel that the proposed penalty is justified. 

Citation No •. 2053296 alleges a violation of the standard 

at 30 C.F. R •. S 77 .1001 and charges that loose hazardous . material had not been stripped for a safe distance from the 

top of the high wall and that loose and unconsolidated 

material had not been sloped to an angle of repose. The 

mine operator has agreed t.o pay the proposed penalty in 

full. The underlying facts supporting this violation are 

the same as those supporting the violation in Citation No. 

2004021 and for which I have assessed a penalty of $7,500. 

To the extent that the factual basis for the violations is 

similar it would be inappropriate to assess another penalty 

of the same magnitude. Under the circumstances I find that 

the proposed penalty is appropriate. 

ORDER 

Energy Coal Income Partnership (1981-1) is hereby 

ORDERED to pay the following civil penalties within 30 days 

from the date of this decision: Citation No. 2004021 - $7,500, Citation No. 2053293 - $227, Citation No. 2053294 - $2,000, Citation No. 2053295 - $227, nd Citation No. 2053296 - $227. The requests to withdraw Conte ,t Proceedings, Docket 

Nos. KENT 83-30-R through KENT 83-37- 1 are granted and the 

cases are dismissed. \~ Q~ 

Administrative Law Judge 

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

Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37230 

(Certified Mail) 

/ejp 

2054 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

GARY GOFF, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 2 4 1984 

: DISCRIMINATION PROCEEDING 

Complainant 

: Docket No. LAKE 84-86-D 

: MSHA Case No. VINC CD 84-03 

THE YOUGHIOGHENY AND OHIO 

COAL COMPANY, 

Respondent 

: Nelms No. 2 Mine 

DECISION GRANTING DISMISSAL 

Before: Judge Melick 

In his complaint filed with this Commission on July 6, 

1984, the Complainant, Mr. Goff, alleges that he was dis- · charged by Respondent in violation of section 105(c)(l) of 

the Federal Mine Safety and Health Act of 1977, the "1977 

Act" 1 because of an underlying medical condition, 

pneumoconiosis. 

In John Matala v. Consolidation Coal Company, 1 FMSHRC 

1 (1979), the Commission held that review of discrimination 

complaints of a miner based on allegations that the miner 

1 Section lOSCc)(l) of the 1977 Act provides as follows: 

"No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of th~ 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine of an 

alleged danger or safety or health violation in a coal or 

other mine, or because such miner, representative of miners 

or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101 or because such miner, representative 

of miners or applicant for employment has instituted or 

caused to be instituted any proceeding under or related to 

this Act or has testified or is about to testify in any such 

proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of 

himself or others of any statutory right afforded by this 

Act." 

2055 
suffers from pneumoconiosis should be resolved under the 

specific statutory provisions set forth in section 428(b) of 

the Black Lung Benefits Act 2 rather than under the 

2 Section 428 of the Black Lung Benefits Act provides as 

follows: 

"(a) Mine operators. No operator shall discharge or 

in any other way discriminate against any miner employed by 

him by reason of the fact that such miner is suffering from 

pneumoconiosis. No person shall cause or attempt to cause 

an operator to violate this section. For the purposes of 

this subsection the term "miner" shall not include any person who has been found to be totally disabled. 

(b) Determination by Secretary1 procedure. Any miner 

who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection 

(a) of this section, or any representative of such miner 

may, within ninety days after such violation occurs, apply 

to the Secretary for a review of such alleged discharge or 

discrimination. A copy of the application shall be sent to 

such person who shall be the respondent. Upon receipt of 

such application, the Secretary shall cause such investigation to be made as he deems appropriate. Such investigation 

shall provide an opportunity for a public hearing at the 

request of any party to enable the parties to present inf orma tion relating to such violation. The parties shall be 

given written notice of the time and place of the hearing at 

least five days prior to the hearing. Any such hearing 

shall be of record and shall be subject to section 554 of 

Title 5. Each administrative law judge presiding under this 

section and under the provisions of subchapters I, II, and 

III of this chapter shall receive compensation at a rate not 

less than that prescribed for GS-16 under section section 

5332 of Title 5. Upon receiving the report of such investigation, the Secretary shall make findings of fact. If he 

finds that such violation did occur, he shall issue a decision, incorporating an order therein, requiring the person 

committing such violation to take such affirmative action as 

the Secretary deems appropriate, including, but not limited 

to, the rehiring or reinstatement of the miner to his former 

position with back pay. If he finds that there was no such 

violation, he shall issue an order denying the application. 

Such order shall incorporate the Secretary's findings 

therein. 

(c) Costs and penalties. Whenever an order is issued 

under this subsection granting relief to a miner at the 

request of such miner, a sum equal to the aggregate amount 

of all costs and expenses (including the attorney's fees) as 

determined by the Secretary to have been reasonably incurred 

bu such miner for, or in connection with, the institution 

and prosecution of such proceedings, shall be assessed 

against the person committing the violation." 

2058 
general anti-discrimination provisions of section llO(b) of 

the Federal Coal Mine Health and Safety Act of 1969, the 

"1969 Act." That case was, therefore, in accordance with 

section 428 of the Black Lung Benefits Act, transferred to 

the Department of Labor for adjudication by one of its administrative law judges. 

While the anti-discrimination provisions. of section 

105(c)(l) of the 1977 Act replacing and enhancing the provisions of section llQ(b) of the 1969 Act are broader in 

coverage than the comparable provisions of the 1969 Act, the 

rationale for having discrimination complaints based on allegations that the miner suffers from pneumoconiosis resolved 

under the specific statutory provisions set forth in the 

Black Lung Benefits Act has continuing validity. 

Accordingly, it is appropriate to dismiss further proceedings before this Commission in this case. If the 

Complainant wishes to proceed with this matter, he should 

apply to the Secretary of Labor in accordance with section 

428 of the Black Lung Benefits Act. 3 

Case Docket No. LAKE 

Distribution: 

Mr. Gary Goff, 57 

(Certified Mail> ' 

ORDER 

is 

Administrative Law Judge 

Jacobsburg, OH 43933 

Gerald P. Du~f, Esq., Kinder, Kinder & Hanlon, 185 West Main 

Street, St. Clairsville, OH 43950 (Certified Mail> 

3 While Mr~ -Goff's complaint that he presumably filed with 

the Secretary of Labor under section 105(c)(2) of the Act 

has not been made a part of this record, it appears from 

Respondent's pleadings that the specific complaint of 

discrimination now raised before this Commission was not 

previously brought to the attention of the Secretary. 

/fb 

2057 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 2 9 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

. Respondent 

UNITED MINE WORKERS OF 

AMERICA, LOCAL 2300, 

Intervenors .. ... 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 83-70 

A.C. No. 36-03425-03511 

Docket No. PENN 83-78 

A.C. No. 36-03425-03512 

Maple Creek No. 2 Mine 

Docket No. PENN 83-77 

A.C. No. 36-04281-03505 

Dilworth Mine 

Docket No. PENN 83-94 

A.C. No. 36-00970-03514 

Maple Creek No. 1 Mine 

Docket.No. PENN 83-74 

A.C. No. 36-05018-03508 

Docket No. PENN 83-75 

A.C. No. 36-05018-035Q9 

Docket No. PENN 83-76 

A.C. No. 36-05018-03510 

Cumberland Mine 

Appearances: Howard K. Agran, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Before: 

Louise Q. Symons, Esq., U.S. Steel Mining Co., 

Inc., for Respondent. 

Judge Kennedy 

The notice of contest in each of the captioned penalty 

proceedings admitted the fact of violation but challenged the 

S&S findings. After a lengthy consolidated hearing·in Morgantown, 

West Virginia, the matters are before me on the oper-ator' s 

exceptions to 17 of my 27 bench decisions. 

2058' 
The parties' stipulations with respect to the operator's 

size, prior violations, ability to pay, and promptness in 

abatement are set forth in the -record and were considered and 

incorporated by reference in the bench decisions. As indicated, 

the disputed issues focused on gravity, likelihood of contribution to another mine hazard, and negligence or culpability. 

Decisions Accepted As Final · 

The operator filed no exceptions to the bench decisions 

assessing penalties for the following ten violations: 

Docket No. 

PENN 83-70 

PENN 83-76 

PENN 83-77 

PENN 83-78 

PENN 83-94 

Citation 

2013726 

2013047 

2013052 

2013056 

1144515 

2012080 

2013734 

2013737 

9901321 

2014016 

Amount 

$242 

259 

178 

50 

20 

25 

200 

227 

178 

30 

$1,409 

Decisions Rejecting the $20 Minimal Penalty Limitation. 

Eight of the bench decisions rejected the operator's 

challenge to the trial judge's jurisdiction and authority-to 

assess penalties of more than $20 for violations which he 

found were not significant and substantial. 

In May 1982, MSHA inaugurated an alternate dispute 

resolution policy for contested violations. Under this program, 

the District Managers were authorized to act as substitutes 

for the neutral decisionmakers established under section 113 

of the Act, 30 U.S.C. § 823, and to conduct off-the-record, ex 

parte reviews of contested violations. Further, District ~ 

Managers were authorized to vacate or reduce to $20 the penalty 

for any violation promptly abated which they found "was not 

reasonably likely to result in a reasonably serious injury or 

illness." 30 C.F.R. 100.4. 

The purpose of the new procedure was to insure the success 

of the administration's new non-adversary, cooperative enforcement policy. District Managers and their delegates do not, of 

course, enjoy the decisional independence and security of tenure 

of the Commission and its trial judges. Thus, when conscientious 

mine inspectors failed to follow the lax enforcement policy a 

mechanism was readily available to discipline the inspectorate 

through wholesale application of the ex parte review procedure. 

205J 

---
An example of the policy in action was described in the Commission's decision in Bethlehem Mines, 6 FMSHRC 91, 96-101 (1964). 1/ 

In an effort to expand the "cooperative enforcement" 

policy to the limits of its logic, U.S. Steel took the lead in 

the move to persuade the Commission to require its trial judges 

to defer to MSHA's no-fault .penalty policy by denying them 

authority to make de novo determinations of the gravity, negligence and penaltieS-warranted for non-S&S violations. An 

editorial in the Courier/Journal for July 11, 1984, copy 

attached, noted that big bucks are involved in the "current 

emphasis on leniency and cooperation." For example, in the 

first full year under the $20 minimal penalty policy MSHA 

succeeded in reducing operators' penalties by $9.7 million 

dollars. Such a drastic reduction in penalties signals that 

mine safety and health is no longer the first priority of 

business with MSHA. 

1/ A recent editorial in the Louisville Courtier/Journal headlined "Mine Safety Agency Bespatters Its Own Image," described 

the effects of the new policy as follows: 

Mine inspectors who hear more talk from the higherups 

about "cooperation" with safety law violators than about 

firmness are likely to feel that safety isn't the first 

order of business. When their citations frequently are 

thrown out or watered down--often without consultation 

with those who issued them--suspicions seem confirmed. 

According to an in depth investigative report published in the 

same paper on Saturday July 7, 1984, the public perception is 

that the District Managers' evaluation of 70% or more of their 

inspectors' citations as insignificant and inconsequential has 

undermined inspector morale and effective enforcement of the 

Mine Safety Law. During the first year of operation under the 

new policy the administration succeeded in .reducing the 

industry's liability for civil penalties for safety violations 

by over 60%. One of the principal justifications for the 

no-fault violation policy was to reward operators for prompt 

abatement of hazardous conditions. Ironically, the effect 

has been just the opposite because operators have learned that 

the cost of noncompliance, $20, is cheaper than the cost of 

voluntary compliance. Thus, instead of encouraging voluntary 

compliance the new policy has provided a negative incentive 

for voluntary abatement of identified hazards. Compare 47 F.R. 

22291 (May 1982) with MSHA Documents quoted in Courier/Journal 

Article, supra. See, also CNN Documentary "Mine Safety, 

Death, and The Bureaucracy" alleging lax and corrupt enforcement of the Mine Safety Law. 

2060 
Recognizing the potential for almost total emasculation 

of the Act's civil penalty provisions, the Commission's trial 

judges stoutly resisted the U.S. Steel's insistance that the 

Commission's mandate to act as an independent adjudicatory 

agency (Article I Court) be subordinated to the operator's 

interest in promoting the $20 no-fault penalty policy. The 

first Commission ruling op the matter occurred on May 31, 

1984, when, in a decision affirming an earlier ruling by 

Judge Broderick, the Commission held that as a matter of law 

its trial judges were not bound by MSHA's penalty proposals 

and as a matter of policy should not be. 

As the Commission observed: 

The Mine Act divides penalty assessment authority 

between the Secretary of Labor and the Commission. The 

Secretary proposes penalties. The Commission assesses 

penalties. The Secretary's penalty proposals are made 

before hearing. In the event of a challenge to the 

Secretary's proposal, the Commission affords the 

opportunity for a hearing. Thereafter, the Commission 

assesses penalties based on record information developed 

in the course of the adjudicative proceeding • • . 

In assessing a penalty the Commission and its judges 

are required to consider the six statutory penalty 

criteria set forth in section llO(i) of the Act (30 

U.S.C. § 820(i)). Thus, the Commission's penalty 

assessment is not based upon the penalty proposal made 

by the Secretary, but rather on an independent consideration of the six statutory penalty criteria and the 

evidence of record pertaining to those crite~ia • . • 

The Act does not condition the penalty assessment 

authority and duties of the Commission upon the manner 

in which the Secretary of Labor has chosen to implement 

his statutory responsibility for proposing penalties. 

Therefore, it is irrelevant to the Commission for 

penalty assessment purposes whether a penalty proposed 

by the Secretary in a particular case was processed 

under § 100.3, § 100.4, or § 100.5 of the Secretary's 

regulations. The distinctions that U.S. Steel attempts 

to draw in this proceeding between a § 100.3 or § 100.4 

penalty proposal by the Secretary are without merit 

and are rejected. Secretary v. United States Steel 

Mining Co., Inc., 6 FMSHRC 1148, 1150 (1984). 

The Commission also rejected the suggestion that "as a matter 

of policy" it should require its judges to defer to MSHA's 

no-fault violation policy. Noting that such a "policy" would 

"unwisely restrict the wide discretion the Act affords the 

Commission in assessing civil penalties" the Commission held 

2061 
that it, and its judges, must exercise an independent discretion to insure that the penalties assessed "are effective" and 

"encourage operator compliance." ~/ 

On June 11, 1984, the United States Court of Appeals for 

the Seventh Circuit confirmed that Part 100 is not binding on 

the determination of penalties by either the Commission or its 

trial judges. Sellersburg Stone Co. v. Secretary, F.2d 

No. 83-1630, 7th Cir. 1984. ---

As the court noted, 

• • • we find no basis upon which to conclude that 

these MSHA regulations also govern the Commission. 

It cannot be disputed that the Commission and its 

2/ A month later, however, the Commission reneged on its 

holding that penalties must be assessed on the basis of the 

record evidence by substituting for "reasons unknown or at 

least unexplained" MSHA's proposed penalties for the carefully 

crafted, neutrally oriented findings of its trial judge. 

Secretary v. United States Steel Mining Co., Inc., 6 FMSHRC 

1423 (1984), (dissenting opinion). As the dissenting 

Commissioner noted, when the Commission "embarks on the 

uncharted waters of independent penalty assessment" the 

results are highly inconsistent and "furnish no guidance" 

for either the parties or its trial judges. Compare 

Sellersberg Stone Co., 5 FMSHRC 287 (1983) (Commission 

unamimously upheld Judge's $2,000 penalty for interference 

with MSHA's ability to investigate), with United States 

Steel Mining, supra (majority arbitrarily reduced penalty for 

interfering with inspector's ability to investigate from 

$1,500 to $400). 

The propensity of the Commission's operator oriented 

majority to disregard adjudicated penalty findings and to 

defer, without rational explanation, to the Labor Department's 

extra-record penalty proposals for serious violations tends 

to undermine confidence in the neutrality and fairness of the 

Commission's decisions and to thwart the public interest in 

effective enforcement of the Mine Safety Law. Compare 

Southern Ohio Coal Co., 4 FMSHRC 1459 (dissenting opinion); 

United States Steel Mining, supra (dissenting opinion). A 

penalty assessment policy that substitutes whim and caprice 

for principled decisionmaking or that places the welfare of 

miners below that of stockholders or mine management violates 

not only the spirit but the letter of the Mine Safety Law. 

2062 
ALJ's constitute an adjudicative body that is 

independent of MSHA. Sen. Rep. No. 461, 95th Cong., 

1st Sess. 38 (1977). This body is governed by its 

own regulations, which explicitly state that, in 

assessing penalties, it need not adopt the proposed 

penalties of the Secretary, 29 C.F.R. § 2700.29(b) 

(1983)." Slip Op. 9-10. 

For these reasons, I find the operator's challenge to 

my independent assessment of penalties for the following 

non-S&S violations is without merit. Accordingly, it is 

ordered that the bench decisions be, and hereby are, AFFIRMED, 

and the operator pay the penalties assessed. 

Docket No. Citation Amount 

PENN 83-74 2012781 $100 

2012784 100 

PENN 83-75 2011622 75 

PENN 83-78 2013730 100 

2013731 75 

PENN 83-94 2014005 50 

2014016 30 

2014013 50 

Total $580 

The Decisions Rejecting the Challenges to S&S Findings. 

The Secretary takes exception to one decision that 

rejected MSHA's S&S finding and the operator challenges 

eight bench decisions that sustained such findings. Based 

on an independent evaluation and de novo review of the record 

evidence my findings and conclusions with respect to these 

nine violations is as follows: 3/ 

I. Docket No. PENN 83-74 - Cumberland Mine 

A. ·citation 2013043 

On October 19, 1982, the operator was charged 

with failing to provide a guard for a 7200 volt electrical 

3/ The phrase "de novo determination" has an accepted meaning 

Tn the law. It means an independent resolution of a controversy 

that accords no-deference to any prior resolution-of the same 

controversy. United StateE v. First City 1'1ational Ba.nk_ of_ • _:_ -· Houston, '38£ U.S. 361, 368 (1967). -· 

2063 
cable in violation of 30 C.F.R. 75.807. The standard required 

that underground high voltage transmission cables "shall be 

placed so as to afford protection against damage, [and] guarded 

where men regularly pass under them unless they are 6-1/2 feet 

or more above the floor .•• " 

The inspector observed .an unguarded cable, 4 inches 

in diameter, that was suspended only 5-1/2 feet above 

the mine floor in an area where miners and mobile equipment 

carrying supplies regularly passed under it. The inspector 

believed this created an electrical shock hazard that was 

"reasonably likely11 to result in a fatality or lost work days. 

This, he testified, could occur if the cable were sliced, 

smashed or damaged by a piece of mobile equipment or supplies 

so as to pierce its insulated cover or if an individual miner 

carrying a sharp tool such as a pick or slate bar were to 

accidentally thrust the tool through the cable and thus penetrate 

one of its energized leads. The inspector speculated that a 

sharp tool such as a pick or digging bar could pierce the cable 

bypassing the inner protective sheathing and contact an energized 

7200 volt lead before the automatic circuit breaker was tripped 

or activated. He then contradicted himself by stating that the 

MSHA District in which he works does not understand the requirement for a 11 guard" to mean what the dictionary says it means, 

namely, a device to protect the cable from injury by preventing 

its penetration by a sharp tool but merely a high visibility 

plastic wrapping. Thus, the inspector said that the learning 

of his MSHA District is that the intent of the requirement 

for a "guard" is only a requirement for a "guard" that serves as 

a warning or danger sign such as a sign reading 11 Danger--High 

Voltage Cable." 

Under this inexplicably narrow construction of the 

standard, the inspector terminated the citation after the 

operator installed a piece of yellow plastic PVC pipe of 

indeterminate mechanical strength cut longitudinally around 

the lower half of the cable. The totally unguarded condition, 

which apparently existed for some time, was obvious and 

should have been reported by the pre-shift examiner. 

In rebuttal of the claimed seriousness of the hazard, 

the operator's senior maintenance training engineer stated 

that in his expert opinion the cable did not need to be 

guarded because the inherent protective devices built into 

the cable and the high voltage system of which it was a part 

made the need for a guard or even a warning device unnecessary. 

This expert's opinion was that the likelihood of any contact 

resulting in a shock hazard of any consequence was too 

remote to be realistic. Indeed, the record considered as a 

whole is persuasive of the fact that the millisecond reaction 

time of the protective devices of the SHD High Voltage 

2064 
Shielded Cable in question rendered unlikely the possibility 

or probability that any sharp instrument piercing the cable 

would become energized. As the operator's expert explained 

the ground system in the cable is of lower ohmic value than 

that of any piece of metal that might pierce the cable. 

Therefore, "the current would flow back to the ground 

conductors and make the vacuum breaker operate before it 

would travel into a piece of machinery and electrocute a man" 

(Tr. 664) • 

I conclude, as I did at the hearing, that a high visibility 

plastic warning device such as a piece of PVC plastic pipe added 

nothing to the electrical and mechanical protection already provided by the automatic deenergizing devices installed in the 

shielded cable. The absence of the alleged "guard" did not 

therefore significantly and substantially contribute to an 

electrical shock hazard. 

In a series of recent decisions, the Commission has 

made clear that one of the essential elements of an S&S 

finding is that the underlying violation be of such a nature 

as to create a "discrete," i.e., a recognizable safety 

hazard that in the normal course of continued mining operations could contribute to an injury of a reasonably serious 

nature. Mathies Coal Company, 6 FMSHRC 1 (1984); Consolidation 

Coal Company, 6 FMSHRC 34 (1984); Consolidation Coal Company, 

6 FMSHRC 189 (1984); United States Steel Corporation, 6 FMSHRC 

1423 (1984); United States Steel Mining Co., Inc., 6 FMSHRC 

('July 11, 1984). I find it beyond dispute that the absence 

of the alleged "guard" in this instance did not create any 

condition that could reasonably be expected to cause death 

or serious physical harm before the condition could be 

abated. It did not therefore approach even the threshhold 

of "significant and substantial." 

But this is not to say that a violation even under the 

attenuated standard did not occur. Having disposed of MSHA's 

challenge to vacation of its S&S finding, therefore, I turn 

to the operator's claim that the penalty assessed for its 

knowing failure to provide a warning sign, $200, was excessive. 

In my bench decision I found that while the failure to provide 

a warning sign did not contribute to the likelihood of a 

shock hazard it was nevertheless serious because of the "chance 

in a million" that the absence of the "guard" would fail to 

warn off a miner who due to some inexplicable combination of 

unforeseen circumstances might be killed or injured. Indeed, 

in its post-hearing brief the operator concedes that it is 

not arguing that it could not or should not comply with the 

attenuated standard: 

2065 
USSM would not file a petition for modification 

because that would be a useless act. Even if the 

plastic pipe is not more than a warning sign, the 

operator cannot establish that a wire :c-s·ic) without 

a warning sign is as safe as one with a sign. 

But, the operator argues, since MSHA had interpreted 

the standard to require only a warning sign and not a protective guard, it was correct in assuming that MSHA did not 

believe noncompliance presented a serious shock hazard. 

Thus, it continues, the trial judge erred in finding there 

was a culpable disregard for compliance that required more 

than a minimal $20 penalty. 4/ 

It is true, of course, that while the risk of a serious 

shock hazard was remote, its occurrence was not beyond the 

realm of possibility and its consequences extremely grave--

death or a disabling injury. I also felt, and my de novo 

review confirms that the record supports my finding-that 

noncompliance stemmed from the operator's opinion that the 

requirement, even in its attenuated form, was arbitrary and, 

above all, unnecessary. I am sure this was the view of its 

expert witness. But if it was, as counsel concedes, the 

remedy was to seek a waiver or variance and not to unilaterally disregard the standard. For these reasons, I concluded 

the operator's decision to disregard the standard rather 

than seek a variance, waiver or modification demonstrated a 

lack of regard for compliance that should not be condoned by 

assessment of a token penalty. On reflection, however, r· 

believe a lesser penalty than tenatively assessed will suffice. 

Accordingly, I reject both parties' exceptions to the 

bench decision and assess a penalty of $100 for the violation 

found. 

B. Citation 212365 

On October 6, 1982, a 104(a), S&S citation issued for 

a nonpermissible headlight on a Jeffrey Ramcar. The ramcar 

was parked in a crosscut awaiting repair of a broken trunion 

approximately 500 feet from the face. The headlight on the 

right, outby side had a damaged packing gland that permitted 

the power cable to be moved freely by hand in and out of the 

4/ The operator also claimed that in the absence of a valid 

S&S finding, my jurisdiction was limited to assessing a penalty 

that did not exc.eed $20. For reasons already expressed, I 

declined to accept this contention. 

2066 
headlight indicating the seal around the power leads had been 

broken. While the ramcar was out of service due to the broken 

trunion, the operator was unaware of the existence of the 

permissibility violation. 

The undisputed facts showed the power wires entered the 

headlights through a copper hipple or ferrule which had been 

broken off and a rubber conduit hose that had been stripped 

back so as to expose the power wires. As a result, the power 

leads were not clamped in place which caused a strain on the 

terminal connections inside the headlight. Because of the 

damage to the seal around the power leads the flame-path protection against ignitions or explosions within the headlight 

was inoperative. The operator challenges only my aff irmance 

of the S&S finding. 

The operator's expert testified that because the heat 

generated by a headlight does not exceed 350 degrees farenheit 

and the ignition point of methane is 1100 degrees the violation could not contribute to the cause and effect of a mine fire 

or explosion. I considered this to be irrelevant since the 

question was not whether the headlight could cause a fire or 

explosion but whether a spark or arc from damaged power leads 

could cause a fire or explosion. As to the latter there 

seemed to be no dispute. The operator also argued that 

because a light on the outby side of the ramcar would never 

get within 40 feet of the face it would be unlikely to 

encounter a 5 to 15% concentration of methane. It was also 

argued that since nothing in an unbroken headlight could 

cause an arc, something would have to fall on the headlight 

to create a spark of sufficient intensity to cause an 

ignition. Finally, the operator pointed out that the machine 

was not energized, was not operating inby the last open 

crosscut, and was out of service due to the broken trunion. 

I considered all of these contentions irrelevant. It was 

clear that since the ramcar was checked for permissibility 

only once a week and the operator was unaware of the permissibility violation it could have been returned to service 

without correction of the condition. 

The Cumberland Mine is classified as a gassy mine that 

releases 3.5 million cubic feet of methane a day. This gas 

is emitted not only from the face and gobbed out areas but 

also from bleeders in and along the ribs. Consequently, even 

outby headlights were subject to operating in a gassy, dusty 

atmosphere in the presence of much loose coal and coal dust. 

It was not unusual for either inby or outby headlights to be 

smashed by loose and falling coal or rock or by striking the 

ribs. When and if this occurred it was likely that arcs and 

2067 
sparks could result in ignitions or explosions in the headlights. While damage to lights can cause arcs and sparks 

even when the packing gland has not previously been damaged, 

the failure to maintain the gland in a permissible condition 

increases the risk or likelihood that a light with a damaged 

flame-path will cause an ignition that may not be contained 

within the light in the presence of an explosive concentration 

of gas or float coal dust. 

The inspector considered the violation "very serious." 

He believed it could contribute to an ignition that could in 

turn cause a fire or explosion with resulting fatalities. On 

the other hand he considered the negligence slight because 

the_ condition, he thought, had occurred since the last weekly 

inspection and in the interim was not readily observable to 

anyone not making a check for permissibility. But, he noted, 

this could also result in the ramcar being put back into 

service after the repairs to the trunion were accomplished 

without correction of the permissibility violation. 

In my bench decision (Tr. 728), I found that if there was 

a malfunction or damage to the headlight that caused it to arc 

or spark the absence of flame-path protection in this headlight could significantly and substantially contribute to the 

cause and effect of a mine safety hazard and assessed a penalty 

of $178. 

Applying the Commission's analytical construct cited, 

supra, including the deference to be given the experienced 

opinion of the inspector who found it was "reasonably l.fkely" 

that the broken seal on the headlight could provide a link in 

the chain of causation from an ignition in the leads to a mine 

fire or explosion, I conclude that the probability of such an 

event was not so remote as to be unexpected or unforeseeable 

in the normal course of mining operations. I find, therefore, 

that on the basis of the record considered as a whole the 

evidence shows the underlying permissibility violation could 

significantly and substantially add, both qualitatively and 

quantitively, to a "discrete" safety hazard, namely a mine fire 

or explosion, that could result in death or serious physical 

injury. 

For these reasons, the operator's exceptions to the bench 

decision are denied and the penalty assessment of $178 affirmed. 

II. Docket No. PENN 83-75 - Cumberland Mine 

A. Citation 2012377 

This citation charged the operator with failure 

to provide guards for the tail and drive rollers on the Mains 

2068 
South Conveyor Belt. The absence of the guards was not 

challenged. The operator contends only that the violation 

was not significant and substantial. 

The undisputed facts showed that at 12 different locations and at various heights ranging from 2 inches above the 

mine floor to about 5 feet drive rollers up to 2 feet in 

diameter were unguarded for 'distances of up to 20 feet along 

the wide and tight side of the beltline. This exposed miners 

using the parallel 5 foot wide travelway on the wide side to 

accidental contact with the rollers as the miners performed 

rock dusting or f ireboss duties or carried supplies from one 

point to another using the travelway. On the tight side 

exposure resulted when rock dust was spread while the belt was 

in motion. 

The absence of the expanded metal guards presented multiple 

pinchpoint hazards which could result in hands, arm or legs 

getting accidentally caught between the moving rollers and the 

beltline. The unguarded condition could result in severed or 

dismembered limbs, traumatic amputations, or a fatality. 

The guards removed from the supporting vertical posts 

were found in a crosscut about 50 feet away. The fact that 

they were covered with mud, rock dust and coal dust indicated 

they had been there for some time. Even so; there were not 

enough expanded metal guards to provide protection for the 

entire length of the unguarded rollers on the wide and tight 

sides. 

There was conflicting evidence over whether the walkway 

was damp and slippery or dry. Since the tail roller was under 

the walkway a miner would have to fall or slip from the walkway 

to become entangled. While these circumstances may or may 

not have attenuated the risk with respect to this roller, they 

obviously did not eliminate it. The evidence also showed the 

support posts for the missing guards were 4 to 5 feet apart and 

18 inches from the edge of the walkway and drive rollers. These 

dimensions did not provide a protection by location. 

The operator claimed the absence of the guards could not 

significantly and substantially contribute to the pinchpoint 

hazard because the evidence does not support a finding that an 

accident involving the pinchpoints "would be reasonably likely 

to occur" before the condition was voluntarily abated. The 

operator claims that to assume the condition would "never be 

corrected significantly alters the test to be applied." The 

Commission's test, namely, "reasonable likelihood that the 

hazard contributed will result in a serious injury" requires, 

the operator contends, a time continuum. I agree. 

2069 
The appropriate time continuum in my judgment is whether 

there is a reasonable likelihood that normal mining operations 

can be expected to continue before the hazardous condition is 

abated. Eastern Associated Coal Corp., 491. F.2d 277 {4th Cir. 

1974); U.S. Steel Mining Co., Inc., 6 FMSHRC (July 11, 

1984). Here the evidence amply supports the conclusion that 

the condition had existed for some time prior to issuance of 

the citation and that absent issuance of the citation the 

pinchpoint hazard would have continued to exist for a time 

sufficient for an accident to occur before the condition would 

have been "voluntarily" abated. 

For these reasons, the operator's exceptions to the bench 

decision are denied and the penalty assessed, $120, is affirmed. 

B. Citations 2012379, 2012380, 2011625. 

These three citations involved the absence of 

water sprays at dumping points. Citation 2012379 was occasioned 

by the inspector's reading of the operator's preshift examination reports. They showed that on three consecutive working 

days, Friday, November 5, Monday, November 8, and Tuesday, 

November 9, 1982, the preshift examiner (fireboss) had reported 

a hazardous condition on the Main Face South Conveyor Belt. 

This consisted of an excessive accumulation of float coal dust 

at numerous locations around the No. 2 conveyor drive for a 

distance of approximately 100 feet. The dust had collected on 

the belt structure, the electrical drive motors and the power 

cables. The electrical power sources while protected with 

short circuit devices were not permissible. · ·- -

When the inspector arrived on the scene, he observed that 

the belt was energized and running and that the atmosphere was 

visibly dusty with large amounts of float coal dust deposited 

on the ribs and roof. As a result of his observations, the 

inspector issued a 75.316, 104(a), S&S, citation. 5/ 

It alleged a violation of the operator's Methane and Dust 

Control Plan in that water sprays were not provided at the 

belt transfer point. The operator admitted the violation but 

contested the S&S finding. 

Water sprays are required at belt transfer points to 

precipitate float coal dust from the atmosphere thereby 

reducing the concentration of respirable and explosive coal 

dust. In this case, the presence of a visible concentration 

of dry float coal dust created both a health (respirable dust) 

5/ He also issued a 104 (a), S&S 75. 400 c·itation which was not 

contested. 

2070 
and safety hazard. Miners working on the beltline and elsewhere were subjected to the hazard of a fire or explosion if 

an ignition source were to ignite the float coal dust or a 

methane bleeder. The inspector testified these hazardous 

conditions existed in the presence of nonpermissible electric 

motors and where hot rollers or friction from a misaligned 

belt could occur at any time. As the preshift reports established, the condition was one about which the operator knew or 

should have known. 

The operator's assistant mine foreman claimed the accumulation of float coal dust could have occurred even if the 

sprays had been installed and made operative because much 

float coal dust comes from the bottom belts for which no 

sprays are required or from other sources such as the ventilation system. From this counsel for the operator argued that 

it could not be assumed that the absence of the water sprays 

at the transfer point significantly and substantially contributed to the hazardous accumulation of float coal dust. 

On rebuttal, the inspector testified that the accumulation of float coal dust observed could not be attributed 

solely to dust from the bottom belt. He admitted the sprays 

did not completely suppress or control the suspended float 

coal dust but was certain that the absence of the required 

sprays permitted much of the excessive accumulation that he 

observed. He was also of the opinion that if an electrical 

malfunction occurred it was "highly probable" that an ignition 

would cause the float coal dust to ignite. 

Citation 2012380 was issued for the absence of water 

sprays at a belt transfer point inby the point cited in 

Citation 2012379, supra. Twenty-four hours after this citation issued, the inspector issued a 75.400, 104(a), S&S 

citation on the same area, the 128 West Conveyor Drive. 

Counsel for the operator argued that because sprays were 

installed by the end of the shift on November 9, 1982, and the 

75.400 citation did not issue until the next day is proof that 

the sprays were ineffective and inconsequential in preventing 

the accumulation of float coal dust. 

The accumulation cited, and not contested, was that float 

coal dust on previously rock dusted surfaces was permitted to 

accumulate on the mine floor from rib to rib in the belt entry 

and crosscuts for a distance of 200 feet. In addition, loose 

dry coal and coal dust had been permitted to accumulate under 

the drive and rollers on the drive motor in amounts up to 

19 inches deep in an area 3 by 4 feet. 

The inspector testified he did not issue the 75.400 

citation on November 9 because he did not see the accumulation 

207.1 
he cited on the 10th. He conceded it was possible that he did 

not see it because it was not there on the 9th. I find that 

in view of the large accumulation found under the drive and 

rollers it was more probable than not that the accumulation 

existed at the time the 75.316 citation issued on November 9 

but that the inspector overlooked it. 

The parties stipulated that the same two witnesses who 

testified in support of and in oppositi9n to Citation 2012379 

would give similar testimony with respect to the gravity, 

negligence, and significant and substantial nature of the 

violation. 

Citation 2011625 was issued on November 12, 1982, for 

failure to provide water sprays on the feeder located at the 

52 Main East Section in violation of the same Methane and 

Dust Control Plan that applied to Citations 2012379 and 

2012380. The belt, which was energized but not running when 

observed, had three water sprays mounted on a bar approximately 

300 to 400 feet outby the face at the point where the shuttle 

cars dumped on the feeder to the main conveyor belt. The 

sprays were inoperative because no hose was attached to them 

to supply water. 

Coincident with his observation of the inoperative water 

sprays the inspector saw a shuttle car dump a load of coal on 

the feeder. When this failed to activate the water sprays 

the inspector noted the absence of the water hose. Looking 

further, the inspector observed and wrote a 104(a), S&S 

citation for a 75.400 violation that disclosed an accumulation of loose, dry, coal dust to a depth of 21 inches in an 

area around the sequence roller that measured 6 feet wide 

by 6 feet long. He also noted an accumulation under the tail 

roller that was 4 feet by 4 feet that was wet. The sequence 

roller, however, was turning in loose, dr~ coal and coal dust. 

This citation was not contested. ! 

As in the case of the other two citations, the inspector 

testified that it was reasonably forseeable that the absence 

of the water sprays could contribute to the hazard of a fire 

or explosion of to a respirable dust health hazard. 

An aggravating circumstance alluded to was the fact 

that the evidence showed the violation occurred on an intake 

air split inby the return for the belt air which meant that 

the respirable dust generated by the absence of the sprays 

was being carried over the eight miners working at the face. 

2072 
Since the inspector observed only one load of coal being 

dumped on the feeder and the belt was not running the operator 

contended coal was not being produced and therefore no immediate 

hazard either serious or nonserious was presented. The operator 

also showed that, as the inspector admitted, the accumulation 

of coal under the tail roller was wet but offered no evidence 

to rebutt the inspector's showing that under the sequence 

roller the loose coal and coal dust was dry. 

In summing up counsel for the operator argued that because 

each of the violations occurred in an area tha·t was well ventilated and rock dusted the absence of the water sprays was 

insignificant and not likely to result in or contribute to a 

hazard that would result in a reasonably serious injury. The 

operator asserts that any contribution that the absent sprays 

might make to a buildup in the dust concentration in each of 

these areas was so minimal as to make the violations trivial 

and certainly not of such a nature as to increase the risk of 

any recognizable health or safety hazard. 

I do not agree. I admit that quantifying the degree of 

contribution each of these violations made either singly or 

in the aggregate to a respirable dust, fire or explosion 

hazard is impossible. Nevertheless the existence of the spray 

requirement in the operator's own dust control plan is a plain 

recognition of the fact that water sprays play a significant 

role in the suppression of respirable and float coal dust. 

Further, their absence particularly under the circumstances 

that appear here, namely, the presence of excessive accumulations of loose, dry coal and float coal dust in working areas 

rife with potential sources of ignition is persuasive of the 

fact that the underlying violations were of such a nature as 

to constitute a significant and substantial link in a chain 

of causation that could result in death or serious physical 

injury if normal mining operations continued with these 

conditions unabated. 

Accordingly, I find the absence of the sprays could and 

did contribute to a significant and substantial increase in 

the amount of loose, dry float coal dust and respirable dust 

in suspension and to an increase in the accumulation of loose, 

dry coal dust on previously rock dust surfaces; that such 

accumulations did, in fact, occur; and that the presence of 

such dust could contribute to the cause and effect of at least 

three discrete hazards, namely a health (respirable dust) 

hazard and a fire and/or explosion hazard. Applying the 

Commission's analytical construct cited supra, and giving 

deference to the testimony of the inspector and weight to the 

uncontested 75.400 violations, I conclude the conditions 

cited were significant and substantial violations. 

2073 

I 
Upon review of the record considered as a whole, therefore, I am constrained to affirm the bench decisions and the 

amounts of the penalties assessed for each of the first two 

violations, $136 and $98 respectively. As to Citation 2011625, 

I.find the aggravating circumstance warrants an increase in 

the amount assessed from $100 to $200. 

III. Docket No. PENN 83-76 - Cumberland Mine. 

A. Citation 2013051 

On November 15, 1982, a 104(a), S&S citation 

issued for a violation on an energized torkar shuttle car 

parked without wheel chocks on a slight down grade in an 

underground section of the Cumberland Mine. At the time the 

citation issued miners were observed walking or standing in 

front of the car on the downhill side. The citation charged 

the condition was a violation of a notice to provide safeguard issued' September 8, 1981. The existence of the condition 

was undisputed. The operator contested only the S&S finding. 

The testimony of the inspector and the walkaround 

showed that even where the mechanical parking brak.e on a 

shuttle car is set the wear and tear on the teeth of the 

rachet mechanism may permit the 20 ton vehicle to drift down 

a hill with sufficient force to crush a miner against a rib. 

The operator's senior maintenance engineer testified 

that, while he had no personal knowledge of the condition-of 

the car in question, he believed all the torkars purchased 

by the operator had a dual braking system. The first system 

was that described by the inspector and walkaround and is 

similar to the parking brake mechanism found on an automobile. 

The brake is engaged by pressing the brake pedal down and 

then pulling back on a lever that locks the foot pedal down 

and the car in place. 

The second braking system on the torkar is called the 

"failsafe" brake. This braking system is activated when the 

car is unattended or shut off by hitting the panic bar. The 

walkaround testified, and the operator's expert did not deny, 

that the "failsafe" brake did not automatically prevent a 

car from drifting. 

The maintenance engineer said the "failsafe" brake is a 

hydraulically activated spring brake that works as follows: 

"If the torkar is in movement, and you activate the panic bar, 

the panic bar deenergized the pump motor, and, at the same 

time, the failsafe brake will lock to the rotor on the braking 

mechanism" and bring the vehicle to a stop (Tr. 845). He 

further testified that the failsafe brake requires considerable maintenance as its use in stopping a 20 ton vehicle in 
10 feet tears up the rotor. Instead of taking such a vehicle 

out of service, chocks will be used until the "failsafe" 

brake is repaired. The maintenance engineer did not know of 

his own knowledge whether the "failsafe" brake on the torkar in 

question was operative on the day the citation issued. The walkaround testified that on the basis of his personal experience 

with the vehicle the "failsafe" brake was not operative. 

The operator's expert testified that "failsafe" is a 

misnomer because no brake is "failsafe" if it is not properly 

maintained. These particular "failsafe" brakes need a lot of 

maintenance and repair because, he said, the "momentum of a 

twenty ton piece of equipment traveling ten miles an hour 

coming to a screeching halt within, maybe, ten feet ••• 

tears up the rotor that the brakes grab on to" (Tr. 848). 

After this occurs, the "failsafe" brake is no longer operative. 

Counsel for the operator contended that MSHA '·had the 

burden of showing the claimed "failsafe" braking system was 

not on the vehicle in question, was not operative, and would 

not have prevented the car from drifting. A miner who actually 

operated the torkar in question, testified that he was never 

told the vehicle had a failsafe brake or how to operate it 

(Tr. 855-856). He further testified that the torkar drifted 

after shutting the power off and before setting the mechanical 

brake which led him to believe it had no failsafe brake or at 

least not one that engaged automatically. I conclude, therefore, that MSHA carried its burden of showing tha-t: the violation charged did, in fact, occur and that it was reasonably 

forseeable that the underlying violation, i.e., the absence of 

the chocks would significantly and substantially increase the 

risk of death or serious physical harm. · 

Once MSHA established the fact of the underlying violation, 

the operator had the burden of going forward with evidence to 

show that the violation was trivial because the shuttle car 

had a fully operative "failsafe" backup braking system that 

would prevent the car from drifting after the mechanical 

brake was set. Not only did the operator fail to carry its 

burden but, as we have seen, MSHA affirmatively proved that 

in all probability the vehicle in question did not have an 

operative "failsafe" braking system. 

Applying the Commission's approved analysis we have, 

therefore, (1) an underlying violation; (2) a discrete safety 

hazard--that is, a measure of danger to safety--contributed 

·2075 
to by the violation; 6/ (3) a reasonable likelihood that the 

hazard contributed will result in injury; 7/ and (4) a 

reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 8/ 

For these reasons, the exceptions to the bench decisions 

are denied and the $200 penalty affirmed. 

IV. Docket No. PENN 83-77 - Dilworth Mine 

A. Citation 2011736 

The roof control plan for the Dilworth Mine in 

effect at the time this citation issued required that when the 

sum of the diagonal measurements of an intersection exceeded 

60 feet, "pos~or jacks shall be installed to reduce the 

longest span to 28' or less." On November 8, 1982, a 104{a), 

S&S citation issued when measurements taken at the intersection of the number 14 {intake escapeway) entry and the 

number 5 crosscut showed that each of the diagonals measured 

32 feet and no posts or jacks had been installed. The 

existence of the condition cited was admitted. The challenge 

was to the S&S finding. 

6/ Quantifying the increase in risk is, as I have noted, 

Incapable of proof by mathematical certainty, since no one can 

say whether the absence of the chocks would necessarily result 

in a disabling injury or fatality. As Prosser states: 

Proof of what we call the relation of cause and effect, 

that of necessary antecedent and inevitable consequence, 

can be nothing more than "the projection of our habit of 

expecting certain consequence to follow certain antecedents merely because we had observed these consequences on previous occasions." {Citations omitted). 

"If as a matter of ordinary experience a particular act 

or omission might be expected, under the circumstances, 

to produce a particular result, and that result in fact 

has followed, the conclusion may be permissible that 

the causal relation exists." Prosser on Torts, p. 243 

{4th ed. 1971). 

7/ It fs self- evident that no man is a match for a 20 ton 

shuttle car. 

8/ Experience as well as common sense teaches that the likelihood of a serious or disabling injury, dismemberment or death 

as the result of a collision between a shuttle car and a 

miner was reasonable. 

207-6 
At the time the citation issued, the operator was engaged 

in retreat mining. Three intersections inby the crosscut in 

question, at the number 8 crosscut between the 15th and 16th 

entries and the 26th and 32d pillars approximately 2 feet of 

the roof shale had oxidized and peeled or flaked away across 

the entire 16 foot entry leaving the roof bolts exposed. 

The inspector believed this condition, which was approximately 400 feet from the overwide intersection, had resulted 

from override pressure on the roof due to the failure of the 

operator to effect total caving of the roof in the gobbed or 

pillared out areas. This explanation for the S&S finding is 

lacking in evidentiary support and at odds with the inspector's 

statement that he found no basis for concluding the operator 

was, or had, engaged in improper pillar recovery methods. The 

operator's general assistant mine foreman, who accompanied the 

inspector and personally abated the violative condition by 

setting three posts in the intersection, testified convincingly 

that the roof condition in the number 8 crosscut between the 

26th and 32d pillars was not the result of a roof fall. 

Both witnesses agreed that the roof bolts in the area 

in question were still firmly anchored in the sandstone rock 

and that the black shale had fallen or peeled away from 

between the bolts to a depth of about two feet. The inspector 

speculated that if all this had fallen at once he would 

consider it a dangerous unintentional roof fall that might 

have crushed a miner. The mine foreman, who testified from 

personal observation of the condition, said the condition 

did not result from a roof fall but one that occurred over 

time "when the air hits it and so forth, it just peels off 

around the pins. The pins are still anchored, hanging about 

a foot and a half. They are anchored, but nothing massive 

falling down, just the black shale falling down" (Tr. 360-361). 

My de novo review of the record leads me to conclude the 

inspector-erred in finding the condition in the number 8 crosscut was due to override pressure. His own diagram of the area 

characterized the condition not as a roof fall but as "Broken 

roof here, will need [to be] rebolted" (GX-6). Indeed, the 

inspector's initial testimony was that "The roof had pulled 

away from the bolts. The bolts were hanging down. Everything 

was broken" (Tr. 329). The inspector also said that because 

he saw what he thought was a roof fall inby the area in question, 

"You might as well say there was a roof fall there [in the 

number 8 crosscut] too, but it wasn't above the anchorage line, 

maybe a foot or two high, stuff had spalled out and came down 

which means it had to be rebolted before" further retreat 

mining could be accomplished (Tr. 329). 

2077 
The inspector then went on to claim he decided on the 

S&S finding because the operator was not getting "clean 

falls" of the roof during his pillar recovery. This turned 

out to be incorrect because on close examination the inspector 

admitted "No, there was no improper practice on mining the 

pillar line" (Tr. 334-335) • 

On the basis of the record considered as whole, I conclude 

there was no factual basis or credible expert opinion to support 

a finding that the broken roof condition observed in the number 8 

crosscut contributed to the risk of a roof fall in the number 5 

crosscut. Both witnesses agreed the roof in the number 5 intersection was good with no signs of stress. The mine foreman 

readily admitted that someone had improperl.y removed the three 

support posts that had been set in the intersection and that 

this was a serious violation of safe mining practice. The 

inspector found the negligence involved was "moderate." 

For these reasons, I hereby vacate· the finding in my bench 

decision and find the condition in the number 5 crosscut, while 

serious, did not significantly and substantially contribute to 

a different or discrete hazard that could result in death or 

serious physical harm. I conclude; (1) the violation was 

serious; (2) affirm my ruling rejecting the operator's offer 

to prove that the sum of the diagonals requirement was obsolete 

and contributed nothing to safety; and (3) reduce the penalty 

from the $500 initially assessed to $150. 

V. Docket No. PENN 83-94 - .Maple Creek No. 1 Mine -

A. Citation 2014066 

On November 16, 1982, a 104(a), S&S citation 

issued in the 8 Flat, 56 Room of the Maple Creek No. 1 Mine 

when the inspector found the ground wire from the frame of a 

Ricks Water Gathering Pump twisted together with the return 

ground of the power conductor for the pump. Power was being 

drawn by a fused nip cable from the 550 volt trolley wire. 

The two grounds were in turn grounded to the mine track by a 

ground clamp attached to the rail as shown in GX-12. 

The violation, which was admitted, consisted in the fact 

that the two ground wires were not attached to the mine track 

or other grounded conductor by separate clamps. 30 C.F.R. 

75.701-5. The operator challenged the S&S finding contending 

the hazard contributed to -- shock or electrocution -- was too 

remote and speculative t.o create a reasonable likelihood of 

the event occuring. 

The undisputed facts showed that if the ground clamp were 

dislodged from the mine track through vibration, derailment or 

2078 
other accident and the twisted ground wires thereby lost their 

ground to the track, they would continue to conduct the 550 

volt current from the overhead trolley wire through the ground 

frame wire to the frame of the water pump. With the circuit 

thus completed the pump would continue to operate normally, 

but with the frame energized with a voltage sufficient to 

cause a lethal electrical shock. 

A miner required to do maintenance on the pump or a miner 

travelling the track entry on the tight side who had occasion 

to contact the pump frame while standing in the water that 

surrounded the pump could ground himself and receive the full 

force of the 550 volts of power coming from the trolley wire. 

The evidence showed the water pump was checked on each 

shift to see if it was functioning properly and weekly for 

electrical compliance. The record of the weekly check was 

too vague to permit the inspector to determine whether this 

particular pump had been inspected that week or, if it was, 

whether the inspection included the ground clamp. Both MSHA 

and the operator had recognized that "robbing" ground clamps 

was a problem. A solution was found with respect to permanent 

pumps by welding a roof bolt to the track to serve as a 

permanent ground clamp. 

State law required such clamps to be at least six inches 

apart. Federal law merely required two clamps. But since 

both laws had to be read together the requirement was for two 

clamps at least six inches apart. The operator's maintenance 

foreman said no permanent solution was possible for pumps that 

were installed temporarily because they had to be detachable 

to be moved. 

A fair appraisal of the testimony of the operator's 

maintenance foreman shows management was aware that miners 

"infrequently" engaged in the practice of "robbing" ground 

clamps and using one clamp to ground electrical equipment 

where the law required two. In fact, the parties' stipulated 

the operator had a history of nine prior violations of this 

standard in the 24 months preceding issuance of this citation. 

While the foreman was reluctant to admit personal knowledge 

of the practice, he did state that "once in a while," "not 

frequently," but "once in a while," he had seen wires clamped 

in a single ground clamp. He didn't take this lightly but 

said it was difficult to pin point responsibility. 

Even if the practice was·"infrequent," as counsel for the 

operator would have it, it was frequent enough, as witness the 

nine recent prior violations, to require management's attention. 

2079 
The foreman's ready admission of the same problem on the 

permanent pumps when contrasted with his inability to recall 

how frequent it was on the temporary pumps cautions against 

ready ~cceptance of the view that the problem was hardly 

worthy of management's attention. 

I conclude that even if the practice was "infrequent" 

management's awareness of the problem and its failure to take 

effective steps to insure compliance made out a case of 

aggravated negligence on its part. While control of the 

problem may have presented difficulties with respect to the 

temporary pumps, it was no excuse for tolerating the condition 

or turning a purblind eye to it. The circumstances of this 

violation are precisely those in which a civil penalty can be 

most effective in encouraging voluntary compliance. 

The inspector initially found the operator's negligence 

was "moderate" because he felt it was a problem that was 

difficult to control. But he did recognize, as did the other 

witnesses, that the substitution of one clamp for two took a 

knowing and deliberate act. This in turn reflects a deficiency 

in the operator's safety training and enforcement program. 

The evidence also showed that .the violation could result 

in anything from a lost workday or restricted duty accident to a 

fatality due to electrocution. The maintenance foreman felt 

a fatality or other injury was unlikely because his experience 

was that derailment would cut both wires and thus break the 

circuit. He was not asked to address the problem of a d~slodgment due to vibration. The operator's ventilation foreman, who 

accompanied the inspector, thought the wires were not twisted 

together and that if the clamp ·was dislodged the wires would 

physically separate and thus break the circuit. The inspector 

and the walkaround were sure the wires were twisted together. 

The citation merely recites that the two ground wires 

"was (sic) attached to the same clamp." The operator's 

foreman candidly admitted that whether the wires were twisted 

together was "immaterial" because the wires were "squeezed" 

together in the clamp and unless the manner in which the 

clamp broke released the "squeeze" the circuit would not 

break. On rebuttal, the inspector demonstrated (see GX-12) 

how one wire was twisted around the other before the washers 

squeezed them together. I conclude that whether the wires 

were "twisted" or "squeezed" the hazard created was the 

same. 

With respect to the S&S question, I find a derailment or 

vibration that could result in dislodging the ground clamp 

from the mine track could result in energizing the pump frame 

and that this was a forseeable intervening cause that could 

2080 
contribute to a discrete hazard, namely that of a shock or 

electrocution. I further find that the likelihood of dislodgment was probable and certainly not so remote as to be 

inconsequential if normal mining operations continued. 

Remoteness in time or space are undoubtedly important in 

determining whether an underlying violation could significantly 

and substantially contribute to a discrete and forseeable 

hazard. But where, as here, the chain of causation (vibration 

or derailment) is direct and predictable and a hidden hazard 

could exist for an indeterminate time before abatement or injury 

there is no merit in the contention that uncertainty as to the 

exact time of occurrence bars a finding of significant and 

substantial contribution. 

The same reasoning applies to the claim that a dislodgment 

by derailment would almost surely sever the wires and break the 

lethal connection. In the inspector's contrary opinion, to 

which I give deference, it was "very likely" that the wires 

would remain twisted or squeezed and the circuit complete. 

Viewed from the standpoint most favorable to safety, I find 

that it was at least as probable as not that the circuit would 

not be broken and therefore the hazard was real. Because of 

its hidden nature it was certainly a hazard likely to occur 

before the operator would discover and voluntarily abate it. 

This condition like the well known booby trap is most likely 

to lurk until some unwary individual trips it. 

As Prosser notes: "The defendant who set a bomb which 

explodes ten years later, or mails a box of poisoned chocolates 

from California to Delaware, has caused the result, and should 

obviously bear the consequences." Prosser on Torts, supra, 

p. 253. Here, of course, we are trying to forecast the likelihood of an adverse consequence and are deniec the insight that 

comes from hindsight after an actual injury has occurred. 

Nevertheless common sense and unhappy experience show that 

either view reinforces the picture of a stage set for disaster 

for some unwary individual. 

In my judgment, when an underlying violation sets the stage 

and provides a contributing cause of a major hazard its remoteness in time or space is irrelevant and immaterial. Compare, 

Consolidation Coal Company, supra, 6 FMSHRC 194 (Causative 

chain of a danger in a mine may have many links). The purpose 

of the law is to nip nascent hazards in the bud and not to 

find excuses for condoning them by trivializing the penalty. 

A significant and substantial cause need not be the only 

cause, nor the last nor nearest cause. It is sufficient if it 

2081 
can occur with some other cause acting at the same time, which 

in combination with it results in a major mine safety hazard. 

See, Hylin v. U.S.A., 3 MSHC 1020, 1028 (7th Cir. 1983), 

(MSHA's negligence contributed significantly and substantially 

to operator's negligence that resulted in a mine fatality due 

to electrocution) • 

Because of the gravity and negligence involved, I found, 

that the amount of the penalty proposed, $119, was insufficient 

to insure management's prompt attention to a condition and 

practice that was resulting in a serious, hidden, potentially 

lethal mine hazard. To deter a violation that can occur 

only through a deliberate act of noncompliance with both 

federal and state law, I assessed a penalty of $750. Any 

lesser penalty, I believe, would result in paralyzing with 

one hand what the Act seeks to promote with the other. 

For these reasons, the exceptions to the bench decision 

are denied and the decision and the penalty assessed therein, 

$750, are affirmed. 

ORDER 

Accordingly, it is ORDERED that the operator pay the 

penalties assessed, allocated as indicated, in the total amount 

of $3,921 on or before Friday, SeP, ember 28, 1984, and that 

subject to payment the captioned tters are DISMISSED. 

Attachment 

Distribution: 

Howard K. Agran, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

Louise Q. Symons, U.S. Steel Mining Co., Inc., 600 Grant St., 

Rm. 1580, Pittsburgh, PA 15230 (Certified Mail) 

Mr. Arthur E. Guty, Sr., Chairman Safety and Health Local 

Union 2300, 341 Derrick Ave., Uniontown, PA 15401 (Certified 

Mail) 

Michael Holland, Esq., UMWA, 900 15th St., NW, Washington, DC 

20005 (Certified Mail) 

/ejp 

20,82 
' ... · ... . ....... . 

. ·lbe :: {ll'oinier..-1.ountal · BARRY BINGHAM JR.·· .. : ,., : .:. ROBERT T. BARNARD 

· ~ditor an~ hblishei;_,. -.· , . . .\.~~n~?~ Page Edita,. . . 

. . : .. . ·. ·:. · Als~i~ Editori ·: 

BERT EMKE · JAMES: EDDLEMAN 

THOMAS F. MAPP.· .•. 

. .. " f • • ~ ~ .. l :· , . . 

HUGH HAYNIE, Cartoonist .. 

WED_NESDAY, JULY 11, 1984. FOUNDED 1826 •. 

'· .... 

Mine· safety-. agency hespa!terS its owii image 

THE '.BEST EFFORTS· of! Coufie,._. ups about "cooperation" with safety District are classified as "significani 

Journal reporters to investigate charges law violators than about firmness are and substantial," compared to 13 peragainst the U.S. Mine Safety and . likely to feel that 5afety isn't the first · cent in the BarbOurville district. It's 

Health Administration turned up no order of business. When· their citations · doubtful that anyone believes that this 

evidence to support claims that system- frequently are thrown out. or. watered ... and other such disparities represent the 

atic corruption exists in .the agency. down - often without consultation real situation. . But that's not overly consoling. The with those who issued them - suspi- .: Coal operators, on the whole, doubtverifiable facts show a situation that is cions seem confirmed. · · · ·, less are· better satisfied with MSHA's 

only marginally ~tter. . . . • . . And when enforcement practices current emphasis on leniency and co- , The reports of writers Mike Brown vary widely from one district tO an- operation. In the fiscal year ending 

'and · ~ G~ Durilop .. showed ari atmos-· other ~ and even from· office to office September 30, 1981, the industry was 

phere iii· which charges and rumors of in the same district - either the effi- fined $16 million for health and safety 

wrongdoing were bound . to· arise;· .ciency or the integrity of the whole violations. Under new procedures 

whether true or ·not. Mine inspectors process is suspect. More th~n 53 per- adopted for the following year, penalwho hear more talk from the. higher- ·cent of citations in MSHA's Pittsburgh ties totaled only $6.3 million. · · : · " Maybe the new-found spirit of coop2083 

eration has reduced the need for fines, 

though many observers will be skepti.: . cal on that point: But the erratic way· .. the. penalties -are levied ~ and the 

attitude of MSHA toward its own inspectors - leave. little doubt that enforcement of mine ht:alth and safety 

rules still needs much improvement. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(7 03) 7 56-6210 

, AUG 2 9 1984 

RICHARD E. BJES, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

ORDER 

. . . Docket No. PENN 82-26-D 

Laurel Mine 

On June 15, 1984, the Commission issued its decision in 

this matter affirming my decision that the complainant 

Richard E. Bjes was discriminated against by the respondent 

in violation of section 105(c) of the Federal Mine Safety 

and Health Act of 1977. The case was remanded to me for 

the purpose of determining the appropriate relief due 

Mr. Bjes. 

In response to my orders of July 27 and August 13, 1984, 

the parties have advised me that they have reached an agreement 

as to the following compensation and awards due to Mr. Bjes: 

Back Pay •••••••••••• $3451.10 

Interest .••••••••••• 1497.88 

Expenses •••••••••••• 172.93 

$5121.91 

Attorney Fees •••.••• $1375.00 

In view of the foregoing, the respondent IS ORDERED 

to immediately make payment to Mr. Bjes in the amounts shown 

above, and to immediately disburse and pay to the attorneys 

of record the agreed upon amounts as shown. Upon full payment 

by the respondent in the amounts shown, these proceedings 

are dismissed. 

;~4~...,.,,,..- Georg~/A. Koutras 

Administrative Law Judge 

2084 
Distribution: 

Karl Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

Carson Bruening, UMWA District II, 521 w. Homer St., Ebensburg, 

PA 15931 (Certified Mail) 

Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC 

20005 (Certified Mail) 

/slk 

'ifU.S. GOVERNME:N 1 PRINTING OFFICE: 1 9 8 It It 2 1 5 6 9 1 3 6 O 6 

2085