July 1981 

Commission Decisions 

7-06-81 Halquist Stone Co., Inc. 

7-06-81 Waukesha Lime ans Stone Co., Inc. 

7-23-81 MSHA ex rel Bobby Gooslin v. Kentucky 

Carbon Corp. 

7-28-81 Salt Lake County Road Department 

Administrative Law Judge Decisions 

Jones & Laughlin Steel Corp. 

Asarco, Inc. 

Royal Coal Co. and Cowan & Company, 

Gerald D. Boone v. Rebel Coal Co. 

Cement Division, National Gypsum Co. 

Leslie Coal Mining Co. 

South East Coal Co., Inc. 

Inc. 

Lloyd Brazell v. Island Creek Coal Co. 

Monterey Coal Co. 

Cedar Coal Co. 

Youngstown Mines Corp. 

VINC 79-118-PM 

VINC 79-66-PM 

KENT 80-145-D 

WEST 79-365-M 

PENN 81-96-R 

WEST 79-124-M 

WEVA 80-664-C 

WEVA 80-532-D 

VINC 79-154-PM 

KENT 80-312 

KENT 80-330 

KENT 81-46-D 

LAKE 80-413-R 

WEVA 81-174-D 

WEVA 81-303-R 

7-01-81 

7-07-81 

7-07-81 

7-08-81 

7-10-81 

7-10-81 

7-13-81 

7-13-81 

7-13-81 

7-13-81 

7-14-81 

7-17-81 

7-20-81 

7-21-81 

7-21-81 

7-21-81 

7-23-81 

7-24-81 

7-29-81 

7-30-81 

7-31-81 

7-31-81 

7-31-81 

7-31-81 

MSHA ex rel Ralph W. Johnson 

Mines Corp. 

Phoenix Sand and Rock 

v. Pathfinder 

WEST 

WEST 

81-69-D 

80-396-M 

79-91-RM 

80-365 

80-14-M 

81-196-DM 

78-744-P 

80-619-R 

80-292 

79-291 

80-24-DM 

81-87-D 

80-399 

Todilto Exploration & Development Corp. 

Freeman United Coal Mining Co. 

Magma Copper Co. 

John F. Monahan v. Exxon Minerals Co. 

Sewell Coal Co. 

Eastern Associated Coal Corp. 

Shamrock Coal Co. 

C F & I Steel Corp. 

Johnny Howa~d v. Martin-Marietta 

T. K. Jessup, Inc. 

Old Ben Coal Co. 

Corp. 

CENT 

LAKE 

WEST 

WEST 

HOPE 

WEVA 

KENT 

WEST 

SE 

KENT 

LAKE 

Pg. 1700 

Pg. 1702 

Pg. 1707 

Pg. 1714 

Pg. 1721 

Pg. 1736 

Pg. 1738 

Pg. 1751 

Pg. 1758 

Pg. 1762 

Pg. 1766 

Pg. 1773 

Pg. 1788 

Pg. 1791 

Pg. 1793 

Pg. 1820 

Pg. 1821 

Pg. 1824 

Pg. 1828 

Pg. 1841 

Pg. 1844 

Pg. 1846 

Pg. 1848 

Pg. 1858 

Pg. 1870 

Pg. 1876 

Pg. 1880 

Pg. 1886 

Conmission I>ecisions 

JULY 

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

Secretary of Labor for Michael Dunmire and James Estle v. Northern Coal 

Company, WEST 80-313-D, WEST 80-367-D; (Judge Morris, May 27, 1981). 

Secretary of Labor v. American Materials Corporation, LAKE 79-9-M; (Judge 

Cook, June 12, 1981). 

Secretary of Labor v. Mettiki Coal Corporation, YORK 80-140; (Judge Cook, 

Interlocutory Review of 7/2/81 Order). 

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

Secretary of Labor v. Union Carbide Corporation, WEST 80-401-M; (Judge 

Boltz, June 10, 1981). 

Secretary of Labor v. Bradford Coal Company, Inc., Fuel Fabricators, Inc., 

PENN 80-267; (Judge Kennedy, June 18, 1981). 

1699 
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) 

v. 

HALQUIST STONE COMPANY, INC. 

July 6, 1981 

Docket No. VINC 79-118-PM 

DECISION 

This case arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §801 et~· (Supp. III 1979), and raises the same legal 

questions that were before us in Waukesha Lime and Stone Company, Inc., 

Docket No. 79-66-PM (July 6, 1981 ). Our decision in Waukesha resolves 

this question in the Secretary's favor. Accordingly, we affirm the 

judge's finding of a violation and his assessment of a $700 penalty. 1../ / 

Marian Pearlman Nease, Commissioner 

\• 

!/ We reject Halquist's assertion that it did not prevent the 

inspector from continuing his inspection. Substantial evidence 

supports the judge's contrary finding. 

1700 81-7-2 
Distribution. 

Michael A. McCord, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Paul Binzak, Esq. 

Kraemer and Binzak, S.C. 

16800 Appleton Avenue 

Menomenee Falls, Wisconsin 53051 

ALJ James A. Broderick 

Chief Administrative Law Judge 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 

1701 
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 

July 6, 1981 

Docket No. VINC 79-66-PM 

WAUKESHA LIME AND STONE COMPANY, 

INC. 

DECISION 

This case involves questions concerning nonconsensual inspections 

without a search warrant under section 103(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §801 et~· (Supp. III 1979). 

The facts are undisputed. On July 10, 1978, Mine Safety and Health 

Administration (MSHA) Inspector Brey tried to make a routine inspection 

of the Waukesha Lime and Stone Company, Inc., a limestone quarry. The 

visit in question followed an April inspection during which Brey had 

issued citations for 25 alleged safety violations. Before the inspector 

finished his previous inspection, the operator abated 21 of those violations. Four, however, remained unabated as of the July 10 attempted 

inspection. On that date, the operator's president, Douglas Dewey, told 

Brey that he would no longer be allowed to inspect the premises without 

a search warrant. Brey then issued a citation alleging a violation of 

section 103(a) for the refusal to permit the inspection. 1/ 

Thereafter, the Secretary filed a petition for assessment of a 

civil penalty. Waukesha contested the alleged violation of section 

103(a), and the matter was set for hearing. 'l:._/ It was undisputed that 

1/ Section 103(a) provides in pertinent part: 

Authorized representatives of the Secretary ••• shall make 

frequent inspections and investigations in coal or other mines •.• 

In carrying out the requirements of this subsection, no advance 

notice of an inspection shall be provided •.. [and the authorized 

representative] shall have a right of entry to, upon, or through 

any ••• mine. 

2/ Before the hearing, the Secretary filed a separate action in federal 

district court pursuant to section 108(a)(l) of the Mine Act, seeking 

injunctive relief and requiring Waukesha to permit entry to MSHA inspectors. Section 108(a)(l) provides: 

The Secretary may institute a civil action for relief, including 

a permanent or temporary injunction, res-training order, or any 

other appropriate order in the district court of the United States 

for the district in which a coal or other mine is located or in 

which the operator of such mine has his principal office, whenever 

such operator or his agent 

(footnote continued) 

1702 81-7-1 
Brey was denied entry. Waukesha contended, however, that its stone 

quarry is not a "mine", subject to the Act, that section 103(a) does not 

permit nonconsensual inspections without a search warrant, that if it 

does, such warrantless inspections violate the Fourth Amendment, and 

that in any event the refusal to permit federal inspection of a stone 

quarry does not constitute a violation of the Mine Act for which a civil 

penalty may be imposed. In his decision, the administrative law judge 

held against Waukesha on each of its contentions, and assessed a $1,000 

penalty. We granted Waukesha's petition for discretionary review. The 

company makes the same arguments before us. 

After oral argument and while the case was pending for decision, 

the federal district court in the section 108(a)(l) action (see note 2, 

supra) dismissed the Secretary's complaint for injunctive relief, 

holding that to the extent the Act permitted nonconsensual warrantless 

inspections, it violated the Fourth Amendment. Marshall v. Dewey, 493 

F. Supp. 963 (D. Wis. 1980). The Secretary then filed a direct appeal 

with the Supreme Court, which noted probable jurisdiction, sub. nom., 

Donovan v. Dewey, 49 U.S.L.W. 3531 (U.S. January 26, 1981), ~~ U.S.c 

(1981). We stayed further action in this case pending the Supreme 

Court's decision. (Order of March 16, 1981). 

On June 17, 1981, the Supreme Court decided the Waukesha case 

before it. Donovan v. Dewey, 49 U.S.L.W. 4748 (U.S. June 17, 1981) (No. 

80-901), U.S. (1981). The Court held that the Mine Act 

provides for nonconsensual warrantless inspections and that such 

inspections do not violate the Fourth Amendment. Resolution of those 

issues leaves before us the question of whether the refusal to permit an 

inspection is a violation of the Act for which a penalty must be 

imposed. ]_/ We hold that it is and thus affirm the judge's decision. 

fn. !:._/ cont'd 

(A) violates or fails or refuses to comply with any 

order or decision is~ued under this Act, 

(B) interferes with, hinders, or delays the Secretary or 

his authorized representative, or the Secretary of Health, 

Education, and Welfare or his authorized representative, in 

carrying out the provisions of this Act, 

(C) refuses to admit such representatives to the coal or 

other mine, 

(D) refuses to permit the inspection of the coal or other 

mine, or the investigation of an accident or occupational 

disease occurring in, or connected with, such mine •••• 

3/ We reject Waukesha's contention that its stone quarry is not a 

11mine" subject to the Act. The definition of "mine" in section 3(h) of 

the 1977 Mine Act is virtually identical, in pertinent part, with 

section 2(b) of the Federal Metal and Non-Metallic Mine Safety Act of 

1966. The legislative history of the 1966 Metal Act clearly indicated 

that stone quarries were mines. S. Rep. 1296, 89th Cong., 2nd Sess. 

(1966), reprinted in 1966 U.S. Code Cong. and Adm. News at 2851. The 

legislative history of the 1977 Mine Act establishes that Congress 

intended a very broad interpretation of "mine." 

(footnote continued) 

1703 

\ 
Section llO(a) of the Act providesi 

The operator of a coal or other mine in which a violation 

occurs of a mandatory health or safety standard or who violates any 

other provision of this Act, shall be assessed a civil penalty by 

the Secretary which penalty shall not be more than $10,000 for 

each such violation. Each occurrence of a violation of a mandatory 

health or safety standard may constitute a separate offense. 

Waukesha contends, however, that refusal of entry does not constitute a violation of a provision of the Act, because although section 

103(a) authorizes certain inspections, it does not require an operator 

to "perform any act or refrain from performing any act." It also 

asserts that, in any event, the Secretary's exclusive remedy under the 

circumstances is an injunction under section 108(a)(l), not a civil 

penalty under section 110. We are not persuaded by Waukesha's arguments. 

First, notwithstanding the absence of express statutory language, 

it is illogical to assume that Congress intended to mandate inspections 

and a right of entry for the Secretary's authorized representative 

pursuant to section 103(a), without also viewing the operator's denial 

of entry as a dereliction of its duty under the Act. Section llO(a) of 

the Act, mandates assessment of a civil penalty where an operator violates a mandatory health or safety standard "or ••. any other provision 

of this Act." Therefore, on its face, section llO(a) requires the 

imposition of a penalty for the violation here of section 103(a), a 

"provision of the Act." Any other interpretation would result in our 

treating denial of· entry violations differently than all other violations which subject the operator to penalties under section llO(a). 

Second, we reject the contention that a·section 108(a)(l) injunction is 

the Secretary's sole remedy if an operator denies entry to his authorized 

representative. Rather, dual remedies exist: an administrative remedy 

under sections 104 and llO(a), and a civil injunctive remedy under 

section 108(a)(l). We believe that if Congress had intended injunctive 

relief to be the exclusive remedy, it would have stated so unequivocally. 

We conclude, therefore, that refusal to permit an inspection violates 

the Act and requires the imposition of a penalty under section llO(a). 

fn. ]_/ cont'd 

S. Rep. 95-181, 95th Cong., 1st Sess., 14 (1977), reprinted in Subcommittee on Labor, Committee on Human Resources, U.S. Senate, 95th 

Cong., 2d Sess. Legislative History of the Federal Mine Safety and 

Health Act of 1977 (1978) at 602. We do not believe that Congress 

could possibly have intended to restrict cov~rage under the 1977 Mine 

Act to less than that covered by the 1960 Metal Act and 1969 Coal Act. 

Quite the contrary. 

1704 
For the foregoing reasons, the decision of the administrative law 

judge is affirmed. 

1705 
Distribution 

Francis R. Croak, Esq. 

Jan E. Kearnery, Esq. 

Cook & Franke, S.C. 

600 East Mason Street 

Milwaukee, Wisconsin 53202 

Waukesha Lime and Stone Co., Inc. 

·P.O. Box 708 

Waukesha, Wisconsin 53187 

Michael A. McCord, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Administrative Law Judge James A. Broderick 

Chief Law Judge 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 

1706 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

On behalf of: 

BOBBY GOOSLIN 

v. 

KENTUCKY CARBON CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 23, 1981 

Docket No. KENT 80-145-D 

DECISION 

This case involves the temporary reinstatement of a discharged 

miner under section 105(c)(2) of the 1977 Mine Act, 30 U.S.C. §815(c)(2) 

(Supp. III 1979). 1/ The broad legal question presented here is whether 

1./ Section 105(c)(2) provides: 

Any miner or applicant for employment or representative of 

miners who believes that he has been discharged, interfered with, 

or otherwise discriminated against by any person in violation of 

this subsection may, within 60 days after such violation occurs, 

file a complaint with the Secretary alleging such discrimination. 

Upon receipt of such complaint, the Secretary shall forward a copy 

of the complaint to the respondent and shall cause such investigation to be made as he deems appropriate. Such investigation 

shall conunence within 15 days of the Secretary's receipt of the 

complaint, and if the Secretary finds that such complaint was not 

frivolously brought, the Conunission, on an expedited basis upon 

application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint. If upon 

such investigation, the Secretary determines that.the provisions of 

this subsection have been violated, he shall immediately file a 

complaint with the Commission, with service upon the alleged 

violator and the miner, applicant for employment, or representative 

of miners alleging such discrimination or interference and propose 

an order granting appropriate relief. 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. The complaining miner, applicant, or representative of 

miners may present additional evidence on his own behalf during any 

hearing held pursuant to his paragraph. [Emphasis added.] 

1707 81-7-1· 
an operator is afforded due process of law by the hearing on a Commission judge's order of temporary reinstatement that is provided for by 

Commission R4le 44(a). Rule 44(a) implements the temporary reinstatement provisions of section 105(c)(2) of the Mine Act. It provides: 

Contents of application; procedure; hearing. An application 

for reinstatement shall state the Secretary's finding that the 

complaint of discrimination, discharge or interference was not 

frivolously brought and the basis for his finding. The application 

shall be immediately examined, and, unless it is determined from 

the face of the application that the Secretary's finding was 

arbitrarily or capriciously made, an order of temporary reinstatement shall be immediately issued. The order shall be effective 

upon issuance. If the person against whom relief is sought 

requests a hearing on the order, a Judge shall, within 5 days after 

the request is filed, hold a hearing to determine whether the 

Secretary's finding was arbitrarily or capriciously made. The 

Judge may then dissolve, modify or continue the order. 

For the reasons that appear below, we hold that Rule 44(a), insofar as 

it establishes an "arbitrary or capricious" standard of review at the 

temporary reinstatement hearing, does not satisfy the minimum requirements of the Constitution's Fifth Amendment due process clause. 

The facts of the case are as follows. Bobby Gooslin was employed 

as a miner by Kentucky Carbon Corporation. On October 2, 1979, Kentucky 

Carbon suspended Gooslin, with intent to discharge, allegedly for 

causing an unauthorized work stoppage at the mine. '!:./ He was discharged 

soon thereafter. Following his discharge, Gooslin filed a discrimination 

complaint with the Mine Safety and Health Administration (MSHA). On 

January 18, 1980, after MSHA had conducted an initial investigation of 

Gooslin's complaint, the Secretary filed an application for temporary 

reinstatement with the Commission. In the application, the Secretary 

stated that MSHA's preliminary investigation into the merits of the 

discharged miner's complaint disclosed, among other things, the following: 

6. On Saturday morning, September 29, 1979, several 

miners returning from work informed •.. Gooslin that ••• the 

roof, in several specific areas of the mine, including the 

main line, was in a dangerous condition, that they were 

fearful of working under the roof in its existing condition, 

and that they wanted a safety inspection to be made before 

their scheduled return to work on Sunday evening, third shift, 

September 30, 1979. 

]:__! In a letter to Gooslin, dated October 2, 1979, Kentucky Carbon 

stated: 

The Company has concluded that your actions on September 30, 

1979 were the efficient cause of an unauthorized work stoppage 

and clearly establish you as a primary contributor in the 

instigation of a work stoppage in violation of the Agreement. 

For this offense, you are hereby suspended with intent to 

discharge effective immediately. 

(Res. Exh. R-3). 

1708 
7. Thereafter ..• Gooslin made several attempts to secure an 

MSHA inspection. However, Mr. Gooslin was unsuccessful and 

did not inspect the .•• mine •.•• 

8. On or about September 30, 1979, unable to secure an MSHA 

inspection, ••. Gooslin sought assistance from the UMWA 

District 30 Safety Inspector, James Boyd. Mr. Boyd ... agreed 

to meet •.• Gooslin at the mine prior to the commencement of 

the third shift that evening, Sunday, September 30, 1979. 

9 •••. Gooslin called [Kentucky Carbon's] Superintendent 

William Meade, and informed Mr. Meade that he had requested an 

MSHA inspection and that he wished to make a safety inspection 

at the •.• mine later that evening prior to the commencement 

of the third shift. Mr. Meade initially agreed, then called 

••• Gooslin back and advised that the inspection would not be 

permitted. 

10. Notwithstanding Mr. Meade's refusal to inspect, ..• 

Gooslin proceeded to the mine to keep the previously scheduled 

meeting with Mr. Boyd. Upon Mr. Gooslin's arrival at the 

mine, [Kentucky Carbon's] Mine Foreman James Christian informed Mr. Gooslin that an inspection of the mine would not be 

permitted at that time. 

11. Thereafter, •.. Gooslin advised the miners, who had begun 

to assemble on the mine property in preparation for the 

commencement of the shift, that a safety inspection had been 

refused .•.. Gooslin left the mine property at approximately 

11:15 p.m. September 30, 1979. 

12. Thereafter, approximately 1 hour later, the miners 

decided to not work. 

13. Gooslin asserts that he at no time, encouraged, suggested, 

or in any way caused the resulting work stoppage that occurred 

on Octobe'!' 1, 1979. 

14. On October 2, 1979, [Kentucky Carbon] discharged .•• 

Gooslin. 

15. Gooslin asserts that he was lawfully discharging his 

duty as President of the local, as safety committeeman, 

and as a miner in seeking to inspect the mine and the claimed 

dangerous roof conditions. 

On the basis of MSHA's preliminary investigation, the Secretary concluded 

that Gooslin's complaint was "not frivolously brought". Cf. Rule 44(a). 

Accordingly, the Secretary requested that the Commission order Kentucky 

Carbon to temporarily reinstate the discharged miner. 

On January 22, 1980, the Commission's Chief Admistrative Law Judge 

granted the relief requested by the Secretary and issued an order of 

temporary reinstatement. In the reinstatement order, the Chief Judge 

1709 
stated, "[i]t does not appear from the face of the application that the 

Secretary's finding was arbitrarily or capriciously made." ]j Kentucky 

Carbon then requested a hearing on the temporary reinstatement order as 

provided for by Rule 44(a), and a hearing was held on January 30, 1980 

before the Chief Judge. !:±_/ At the reinstatement hearing, Kentucky 

Carbon attempted to prove that Gooslin was lawfully discharged and that, 

therefore, his complaint to the Secretary was frivolously brought. The 

Chief Judge, however, refused to receive testimony on that issue, 

stating: 

I think .you are getting into the merits of the discharge which are not before me. Was or was not Mr. Gooslin 

discharged in violation of section 105 (c) of the Act is not 

an issue before me in this hearing. No complaint has been 

filed. The issue of whether the complaint was frivolously 

brought is an issue peculiarly before the Secretary. 

The Commission's role in this proceeding is totally to 

determine whether the Secretary's finding was arbitrary and 

capricious, a very limited role. I am not prepared to hear 

evidence on the question either of whether Mr. Gooslin 

was discharged in violation of section 105(c) or whether the 

complaint Mr. Gooslin made to the Secretary was or was not 

frivolous. 

My issue is a 

of Hearing, namely 

capriciously made? 

kind of hearing on 

limited one. 

(Tr. 56-5 7). 

very limited one as I set out in the Notice 

was the Secretary's finding arbitrarily or 

The Commission's rules provide for this 

an expedited basis, but the issue is a very 

On January 31, 1980, the Chief Judge issued an order affirming his 

earlier order of temporary reinstatement on the ground that Kentucky 

Carbon had failed to establish that the Secretary acted "arbitrarily or 

capriciously" in determining that Gooslin's complaint was not frivolously 

brought. From the January 31st order of temporary reinstatement, Kentucky 

]_/ Rule 44(a) requires that the Secretary's application for temporary 

reinstatement contain a finding that the miner's complaint was "not 

frivolously brought". 

!±./ Rule 44(a) states that "[i]f the person against whom relief is 

sought requests a hearing on the order, a Judge shall, within 5 days 

after the request is filed, hold a hearing to determine whether the 

Secretary's finding was arbitrarily or capriciously made." 

1710 
Carbon sought Commission review. On March 10, 1980, we granted Kentucky 

Carbon's petition and directed review of the order of temporary reinstatement. 'ii 

On review, Kentucky Carbon argues that the "arbitrary or capricious" scope of the Rule 44(a) temporary reinstatement hearing is so 

narrowly drawn as to deny it due process of law. We agree. 61 Although 

the Chief Judge correctly applied existing Rule 44(a) in limiting the 

scope of the temporary reinstatement hearing to the question of whether 

the Secretary acted "arbitrarily or capriciously", our re-examination of 

that rule convince.s us that the "arbitrary or capricious" standard, as 

it relates to the temporary reinstatement hearing, does not comport with 

the minimum requirements of the due process clause. 

The due process clause contemplates more than is currently provided 

the operator by Rule 44(a). Due process contemplates fundamental fairness. J_I As the Supreme Court stated in Boddie v. Connecticut, 401 U.S. 

371 (1971): 

What the Constitution does require is 'an opportunity ... 

granted at a meaningful time and in a meaningful 

manner,' •.. 'for [a] hearing appropriate to the nature of 

the case,' ... [401 U.S. at 378; Court's emphasis; citations 

omitted.] 

See also, e.g., Armstrong v. Manzo, 380 U.S. 545, 552 (1965); Goldberg 

v. Kelly, 397 U.S. 254, 267 (1970). 

'ii In our direction for review, we stated that the reinstatement order 

was to remain in effect pending our decision. We also stated that we 

were not suspending proceedings on the discrimination complaint that the 

Secretary had filed on behalf of Gooslin. In that complaint, filed with 

the Commission on February 8, 1980, the Secretary alleged that Kentucky 

Carbon had discharged Gooslin in violation of section 105(c)(l) of the 

Mine Act. Section 105(c)(l) in part provides that "[n]o person shall 

discharge or in any manner discriminate against or cause to be discharged 

or cause discrimination against or otherwise interfere~with the exercise 

of the statutory rights of any miner •••. " The Secretary's discrimination 

complaint was based upon the same set of facts that prompted the Secretary 

to seek the interim remedy of temporary reinstatement in this case. 

61 Kentucky Carbon's petition for review also raises issues involving 

the contents of the Secretary's application for temporary reinstatement 

and the informant's privilege contained in Commission Rule 59. However, 

because of our disposition of this case, we need not address those 

issues here. 

J_I In Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 

(1951), Justice Frankfurter, in a concurring opinion, described due 

process as: 

Representing a profound attitude of fairness between man and 

man, and more particularly between the individual and government, 

'due process' is compounded of history, reason, the past 

course of decisions, and stout confidence in the strength of 

the democratic faith which we profess. Due process is not a 

mechanical instrument. It is not a yardstick. It is a process. 

It is a delicate process of adjustment inescapably involving 

the exercise of judgment by those whom the Constitution entrusted 

with the unfolding of the process. [341 U.S. at 162-163.] 

1711 
Because of the narrow and restrictive scope of the "arbitrary or 

capricious" standard of review, we believe that the Rule 44 (a) temporary 

reinstatement hearing procedure falls short of providing the operator 

with elemental fairness. Rule 44(a) does not provide the operator with 

a sufficient opportunity to show that an order of temporary reinstatement 

should not be continued. Accordingly, we hold that the hearing provided 

by Rule 44(a) does not comport with due process. 

Because Kentucky Carbon was denied due process, we therefore, 

vacate the January 31, 1980 order of temporary reinstatement. Subsequent events, however, render it unnecessary to remand the case for 

further proceedings on the temporary reinstatement application. On 

March 18, 1981, a Commission judge decided the merits of the Secretary's 

discrimination complaint (see n. 5) in favor of Gooslin and ordered 

Kentucky Carbon to reinstate him permanently to his former position with 

full seniority rights. Jl./ Kentucky Carbon did not seek review of that 

decision. Thus, there is no continued need for the interim relief of 

temporary reinstatement. !!__/ 

Accordingly, the January 31, 1980 order of temporary reinstatement 

is vacated. 

" ~\11~to '·' x~ D/~1r :~J.Qj;\ "\~ Ofl~ Marian Pearlman Nease, Commissioner 

Jl./ The judge's decision is reported at 3 FMSHRC 640 (1981). 

'}_/ Because there is no need to remand, ~e do not, in this decision, 

delineate what procedures are required to satisfy due process. Rather, 

we believe that rule-making, presently underway, is the better vehicle 

for restructuring the scope of the Rule 44(a) temporary reinstatement 

hearing. 

1712 
Distribution 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

C. Lynch Christian, III, Esq. 

Jackson, Kelly, Holt & O'Farrell 

P.O. Box 553 

Charleston, West Virginia 25322 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

W. Timothy Pohl, Esq. 

Carbon Industries, Inc. 

Suite 1300 

One Valley Square 

Charleston, WEst Virginia 25301 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge James Laurenson 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1713 
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 

July 28, 1981 

Docket No. WEST 79-365-M 

SALT LAKE COUNTY ROAD DEPARTMENT 

DECISION 

This case involves a civil penalty proceeding under section llO(a) 

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

~· (Supp. III 1979). The issue is whether a proposal for penalty 

should be dismissed because of its late filing under Commission Rule 27. 

For the reasons below, we conclude that dismissal is not warranted in 

this case. 

On March 27, 1979, Salt Lake County Road Department was cited for a 

violation of 30 CFR §56.14-1. 1./ The Secretary proposed a penalty of 

$60 and Salt Lake timely filed a notice of contest on August 28, 1979. 

The Secretary filed a proposal for a civil penalty on December 10, 1979, 

which was accompanied by an instanter motion to accept late filing of 

the penalty proposal. Under Connnission Rule 27, the Secretary should 

have filed the penalty proposal on or before October 12, 1979. 'l:_/ In 

addition, under Connnission Rule 9, if the Secretary desired an extension, such a motion should have been filed on or before October 7, 1979. 11 

The Secretary's instanter motion stated that lack of clerical personnel 

and a high volume of cases caused the delay in filing. !±_/ 

!/ 56.14-1. 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, shall be guarded. 

'l:_/ Rule 27, 29 CFR §2700.27, states in pertinent part: 

(a) When to file. Within 45 days of receipt of a timely 

notice of contest of a notification of proposed assessment of 

penalty, the Secretary shall file a proposal for a penalty with the 

Commission. 

11 Rule 9, 29 CFR §2700.9, states: 

Extension of Time. The time for filing or serving any document may be extended for good cause shown. A request for an 

extension of time shall be filed 5 days before the expiration of 

the time allowed for the filing or serving of the document. 

!±_/ The proposal for penalty in this case is a simple two-page pleading 

consisting mainly of five short paragraphs. 

1714 81-7-16 
On January 11, 1980, Salt Lake filed an answer and a motion for a 

summary decision. Salt Lake predicated its summary decision motion, in 

part, on the argument that dismissal was required because the proposal 

for penalty was filed late. At the hearing held on July 23, 1980, the 

parties read into the record a settlement agreement stipulating to the 

violation and payment of the proposed $60 penalty subject to determination of the legal issues raised by the respondent in its motion for 

summary decision. Tr. 3-5. On November 25, 1980, the administrative 

law judge issued a decision in which he accepted the Secretary's late 

filing, found a violation, and assessed a $60 penalty. 2 FMSHRC 

3409. ii 

Under section 105(a), an operator has 30 days from the receipt of 

the initial notification of a proposed penalty assessment in which to 

notify the Secretary that he plans to contest the assessment. Sect.ion 

l05(d) requires that if a timely notice of contest is filed, "the 

Secretary shall immediately advise the Commission of such notification, 

and the Commission shall afford an opportunity for a hearing •••• " 

(Emphasis added.) In turn, Commission Rule 27 provides that "[w]ithin 

45 days of receipt of a timely notice of contest ••. , the Secretary 

shall file a proposal for a penalty with the Commission." In essence, 

Rule 27 implements the meaning of "immediately" in section 105(d). 

We think that it is clear from the text of section 105(d) that the 

purpose of that section is to provide for prompt and efficient enforcement. The requirement of prompt penalty proposal puts teeth into the 

Mine Act's penalty structure. T[ie section incidentally promotes "fair 

play" by protecting operators from stale claims. This focus on effective 

enforcement rather than on creating a period of limitations is reflected 

in relevant legislative history cited by the judge. Although that 

passage in the report of the Senate committee that largely drafted the 

Mine Act deals with the initial notification of an operator of a proposed penalty assessment~ it bespeaks the overriding concern with 

enforcement: 

To promote fairness to operators and miners and encourage 

improved mine safety and health generally, such penalty proposals 

must be forwarded.to the operator and miner representative 

promptly. The Committee notes, however, that there may be circumstances, although rare, when prompt proposal of a penalty may not 

be possible, and the. Committee does not expect that the failure to 

propose a penalty with promptness shall vitiate any proposed 

penalty proceeding. [_~I] 

ii Our grant of Salt Lake's petition for discretionary review limited 

review to the issue of whether the penalty proposal should be dismissed 

due to its late filing. There were two additional issues, originally 

raised in Salt Lake's summary decision motion, concerning which we did 

not grant review: 1) whether the pit in question is under the jurisdiction of the Mine Act; and 2) whether the inspection was conducted 

lawfully because the inspector did not have a warrant. 

§_I S. Rep. No. 95-181, 95th Cong., 1st Sess. 34 (1977), reprinted in 

Senate Subcommittee on Labor, Comm. on Human Resources, 95th Cong., 2d 

Sess., Legislative History of the Federal Mine Safety and Health Act of 

1977, at 622 (1978). 

1715 
Commission Rule 27 must be interpreted consistently with section 105(d), 

since Rule 27 implements that section. Accordingly, the Secretary is 

not free to ignore the time constraints in Rule 27 for any mere caprice, 

as that would frustrate the enforcement purposes of section 105(d) and, 

in some cases, deny fair play to operators. 

In view of the foregoing, what consequences should ensue if the 

Secretary does not comply with Rule 27? Since the purpose of Rule 27 is 

to effectuate the Act's substantive penalty scheme, not to create a 

"statute" of limitations, as Salt Lake contends, we cannot view the term 

"immediately" in section 105(d), or the time limit set in Rule 27, as 

procedural "strait jackets." Situations will inevitably arise where 

strict compliance by the Secretary does not prove possible. Nonsuiting 

the Secretary in such situations presents quite a different situatton 

from defaulting the tardy private litigant. The drastic course of 

dismissing a penalty proposal would short circuit the penalty assessment 

process and, hence, a major aspect of the Mine Act's enforcement scheme. 

We do not mean to intimate that insuring procedural fairness is not 

an important concern under the Mine Act. However, effectuation of the 

Mine Act's substantive scheme, in furtherance of the public interest, is 

more crucial. Accordingly, considerations of procedural fairness to 

operators must be balanced against the severe impact of dismissal of the 

penalty proposed upon the substantive scheme of the statute and, hence, 

the public interest itself. See, ~· Alumbaugh Coal Corp. v. NLRB, 

635 F.2d 1380, 1384 (8th Cir. 1980). In order to help strike a proper 

balance and to insure that the Secretary does not ignore section 105(d)'s 

injunction to act "immediately," we hold that if the Secretary does 

seek permission to file late, he must predicate his request upon 

adequate cause. Cf. Valley Camp Coal Co., 1 FMSHRC 791, 792 (1979) 

(excusing the late filing of an operator's answer for "adequate cause"). 

Such a requirement will guard against cases of abuse and also comports 

with analogous leeway extended to private litigants before the Commission. 

Valley Camp Coal Co., supra. Nevertheless, cases may arise where procedural justice dictates dismissal. While the requirement of showing 

adequate cause for a filing delay may guard against administrative 

abuse, a stale penalty proposal may substantially hinder the preparation 

and presentation of an operator's case. Therefore, ',,we also hold that an 

operator may object to a late penalty proposal on the grounds of 

prejudice. We note that in his brief filed herein, the Secretary agrees 

with this general proposition. Br. 3-4. Allowing such an objection 

comports with the basic principle of administrative law that substantive 

agency proceedings, and effectuation of a statute's purpose, are not to 

be overturned because of a procedural error, absent a showing of prejudice. 

See Alumbaugh Coal Corp. v. NLRB, 635 F.2d at 1383-1384 (and cases 

cited); Jensen Construction Co. v. OSHRC, 597 F.2d 246, 247-248 (10th 

Cir. 1979); Todd Shipyard Corp. v. Secretary of Labor, 566 F.2d 1327, 

1329-1330 (9th Cir. 1977); Ralph Foster & Sons, 3 FMSHRC 1181 (1981). ]_/ 

]_/ Salt Lake's objection (Br. 3) that we are not free to read a 

prejudice requirement into Rule 27 because the Rule is silent on prejudice lacks merit. As the authorities cited in the accompanying text 

(footnote cont'd) 

1716 
In light of the foregoing general principles, we turn to the 

specific issues in this case: did the Secretary show adequate cause for 

the delay and did the delay prejudice Salt Lake? 

The Secretary's reason for delay, an extraordinarily high caseload 

and lack of clerical personnel, might be deemed an improper excuse for 

filing a simple, two-page pleading two months late. As Salt Lake points 

out, almost any law office in the country can claim the same "cause" as 

an excuse to evade every time limit in the various rules of civil procedure. However, the Secretary is engaged in voluminous national 

litigation and mistakes can happen. We believe that the Secretary 

minimally satisfied the adequate cause standard in this case. This is 

not to say that we will tolerate a practice of filing relatively uncomplicated pleadings late. Therefore, we cannot too strongly urge the 

Secretary to comply with Commission Rule 27, to the end that the enforcement 

goals embodied in section 105(d) be realized. See Arch Mineral Corp., 2 

FMSHRC 277 (1980). §_/ 

Furthermore, we agree with the judge (2 FMSHRC 3412) that Salt Lake 

has shown no prejudice. Indeed, in its brief filed herein, Salt Lake 

makes no effort to demonstrate prejudice. Salt Lake certainly had 

notice of the citation and had filed its notice of contest. Salt Lake 

merely seizes upon a procedural irregularity to justify the drastic 

remedy of dismissal. 

fn. 7 continued 

demonstrate, agencies have discretion to interpret their procedural 

rules in light of well-established principles of administrative law, 

which, in effect, are read in pari materia with the rules. Salt Lake's 

attempt to treat Rule 27 as a statute of limitations or "statute of 

creation" (Br. 5-7) is also misplaced. As we have concluded, section 

105(d) is not a statute of limitations and, therefore, the implementing 

45-day time-limit in Rule 27 is not an administrative "statute" of 

limitations either) rather it is a procedural rule d~signed to give 

specific and concrete form to section 105(d)'s injunction for "immediate" 

action in order to effectuate the Mine Act's penalty system. For this 

reason, the numerous statute of limitations cases cited by Salt Lake are 

inapposite. These cases involved genuine statutes of limitations 

enacted by Congress expressly to protect parties from defending against 

stale claims. 

§_/ Complicating this case is the fact that the Secretary did not 

request an extension of time under Rule 9. Instead, the Secretary used 

an instanter motion, as the period for filing a request for an extension 

of time had lapsed. The use of an instanter motion could become temptation to abuse and, absent extraordinary circumstances, the Secretary is 

also admonished to proceed by timely extension motion when extra time is 

legitimately needed. 

1717 
In sum, for the reasons stated above, we affirm the judge's acceptance 

of the Secretary's late-filed penalty proposal and his refusal to dismiss 

the proceeding due to the late filing. Therefore, the judge's finding 

of violation and assessment of penalty are affirmed. 

1718 
Distribution 

Kevan F. Smith, Esq. 

Office of the Salt Lake County Attorney 

Civil Division 

151 East 2100 South, Box 29 

Salt Lake City, Utah 84115 

Michael McCord, Esq. 

Nancy Hyde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Virgil Vail 

FMSHRC 

333 West Colfax Ave. 

Denver, Colorado 80204 

1719 
Administrative Law Judge Decisions 

l'"i'20 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 1981 

JONES & LAUGHLIN STEEL CORPORATION Contest of Citation and Order 

Contestant 

v. Docket No. PENN 81-96-R 

SECRETARY OF LABOR, Vesta No. 5 Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Intervenor 

Appearances: 

Before: 

DECISION 

Henry McC. Ingram, Esq., Rose, Schmidt, Dixon, Hasley, Whyte 

and Hardesty, Pittsburgh, Pennsylvania and J. R. Haggerty, 

Esq., Jones & Laughlin Steel Corporation; R. Henry Moore, 

Esq., and Thomas C. Reed, Rose, Schmidt, Dixon, Hasley, 

Whyte and Hardesty, Pittsburgh, Pennsylvania on the Briefs 

for Contestant. 

Lawrence W. Moon, Jr., Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia; Thomas A. Mascolino, 

Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia on the Briefs for Respondent. 

Kurt Kobelt, Esq., United Mine Workers of America, Washington, 

D.C. on the Brief for Intervenor. 

Judge James A. Laurenson 

This proceeding was filed by Jones & Laughlin Steel Corporation 

(hereinafter "J & L") pursuant to section lOS(d) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(d) (hereinafter "the Act") to contest 

the validity of a citation and order issued by the Secretary of Labor, Mine 

Safety and Health Administration (hereinafter "MSHA"). Citation No. 1046974, 

issued on February 17, 1981, pursuant to section 104(d)(l) of the Act, 

alleged a violation of the mandatory safety standard at 30 C.F.R. § 75.303. 

Order No. 1046866, issued on February 19, 1981, alleged a violation of the 

same standard and was issued pursuant to section 104(d)(l) of the Act. The 

violation charged in both documents was the failure of J & L to conduct a 

preshift examination of coal-carrying conveyor belts. 

1721 
J & L's Motion to Expedite the proceeding was granted and a hearing was 

held in Pittsburgh, Pennsylvania on April 1, 1981. Inspection Supervisor 

Eugene Beck and Supervisory Mining Engineer Alex O'Rourke testified for MSHA. 

J & L's witnesses were its employees as follows: Stephen J. Hajdu, assistant 

safety inspector; Daniel L. Ashcraft, manager of mines; and George Pizoli, 

manager of mines. 

On May 5, 1981, the United Mine Workers of America (hereinafter "UMWA") 

moved for leave to intervene in this proceeding. The motion was granted and 

the UMWA filed a brief. J & L and MSHA also filed briefs. 

ISSUE 

Whether J & L violated the Act or regulations as charged by MSHA. 

APPLICABLE LAW 

30 C.F.R. § 75.303 provides, in pertinent part, as follows: 

(a) Within 3 hours immediately preceding the beginning 

of any shift, and before any miner in such shift enters the 

active workings of a coal mine, certified persons designated 

by the operator of the mine shall examine such workings and 

any other underground area of the mine designated by the 

Secretary or his authorized representative. Each such 

examiner shall examine every working section in such workings 

and shall make tests in each such working section for accumulations of methane with means approved by the Secretary for 

detecting methane, and shall make tests for oxygen deficiency 

with a permissible flame safety lamp or other means approved 

by the Secretary; examine seals and doors to determine whether 

they are functioning properly; examine and test the roof, 

face, and rib conditions in such working section; examine 

active roadways, travelways, and belt conveyors on which men 

are carried, approaches to abandoned areas, and accessible 

falls in such section for hazards; test by means of an 

anemometer or other device approved by the Secretary to 

determine whether the air in each split is traveling in its 

proper course and in normal volume and velocity; and examine 

for such other hazards and violations of the mandatory health 

or safety standards, as an authorized representative of the 

Secretary may from time to time require. Belt conveyors on 

which coal is carried shall be examined after each coalproducing shift has begun. 

30 C.F.R. § 75.2(g) contains the following definitions: "(3) 'Working 

section' means all areas of the coal mine from the loading point of the 

section to and including the working faces. (4) 'Active workings' means 

any place in a coal mine where miners are normally required to work or 

travel." 

1722 
STIPULATIONS 

J & L and MSHA stipulated the following: 

1. J & L is engaged in mining and selling bituminous coal in the 

United States, and its mining operations affect interstate commerce. 

2. J & L is the owner and operator of the Vesta No. 5 Mine, MSHA ID 

No. 3600962. 

3. The Vesta No. 5 Mine is subject to the Act, and the jurisdiction 

of the Mine Safety and Health Administration. 

4. Operator's Exhibit 0-1 is a copy of the map of the underground 

workings of the Vesta No. 5 Mine, and depicts the A, B and C conveyor belt 

flights of 44 face, as that area of the mine existed on February 17, 1981, 

and the 1 face A and B belt haulage flights as that area existed on 

February 19, 1981, and Exhibit 0-1 is admitted into evidence in this 

proceeding. 

5. Operator's Exhibit 0-2 is a collective exhibit, comprised of copies 

of portions of the fireboss book for the Vesta No. 5 Mine, in which certified 

persons employed by J & L recorded reports of examinations for hazardous 

conditions, including those conducted pursuant to 30 C.F.R. section 75.303, 

on February 17, 1981 and February 19, 1981, in the areas of the Vesta No. 5 

Mine referred to in Citation No. 1046974 and Order No. 1046866, and Exhibit 

0-2 is admitted into evidence in this proceeding. 

6. J & L made an examination of the nature specified in 30 C.F.R. 

§ 75.303 of the area referred to in Citation No. 1046974 during the midnight 

shift (shift beginning at 12:01 a.m.) on February 17, 1981, except that such 

.examination was not made during the last three hours of the shift. 

7. J & L made an examination of the nature specified in 30 C.F.R. 

§ 75.303 of the area referred to in Citation No. 1046974 on the daylight 

shift (shift beginning at 8:00 o'clock a.m.) on February 17, 1981, except 

that no such examination was made within the three hours preceding the 

beginning of the shift, or before men entered and began to work in the area 

referred to in the citation, on such shift. 

8. 

§ 75.303 

shift on 

the last 

J & L made an examination of the nature specified in 30 C.F.R. 

of the area referred to in Order No. 1046866, during the midnight 

February 19, 1981, except that such examination was not made during 

three hours of the shift. 

9. J & L made an examination of the nature specified in 30 C.F.R. 

§ 75.303 of the area referred to in Order No. 1046866 on the daylight shift 

on February 19, 1981, except that no such examination was made within the 

three hours preceding the beginning of the shift, or before men entered and 

began to work in the area referred to in the order, on such shift. 

1723 
10. The belt conveyors referred to in the citation and order are used 

by J & L to carry coal, and men are not transported on such belt conveyors. 

11. J & L was producing coal on the shifts on which the citation and 

order were issued. 

12. At the time the citation was issued, the belt conveyors referred 

to therein were. in good condition, and no hazards were observed. 

13. At the time the order was issued, the belt conveyors referred to 

therein were in good condition, except for two citations that were issued 

by Inspector Calvert for alleged violations. 

14. There was no inspection of the entire mine between February 17, 

1981 and February 19, 1981. 

15. MSHA's Coal Mine Inspection Manual, March 1978, contains a policy 

for inspection under 30 C.F.R. § 75.303, which provides: "The examination 

of belt conveyors on which men are not transported shall be started without 

delay after each coal producing shift has begun." 

16. There exists in the Vesta No. 5 Mine approximately 18 miles of 

active conveyor belts. 

SUMMARY OF THE EVIDENCE 

The facts underlying the contested citation and order are not in dispute. On February 17, 1981, an MSHA inspector issued Citation No. 1046974 

pursuant to section 104(d)(l) of the Act. The citation alleged that a 

significant and substantial violation of 30 C.F.R. § 75.303 had occurred and 

that the alleged violation was caused by the unwarrantable failure of J & L 

to comply with the mandatory standard. The condition or practice was 

described as follows: 

Evidence indicated that A, B, and C conveyor belt flights 

of 44 Face had not been preshift examined for the day shift. 

An entry was not in the mine examiner's report or at the date 

board along the belt flights indicating that an examination 

was made before workmen of the day shift entered the area 

along each belt flight. 

On February 19, 1981, another MSHA inspector issued Order of Withdrawal 

No. 1046866, pursuant to section 104(d)(l) of the Act, for a condition he 

observed in the 1 Face A and B belt haulage flights of the Vesta No. 5 Mine. 

The order alleged that a significant and substantial violation of 30 C.F.R. 

§ 75.303 had occurred and that the alleged violation was caused by the 

unwarrantable failure of the operator to comply with the mandatory standard. 

The condition or practice was described as follows: 

1724 
Evidence indicated that a preshift examination was not 

made of the 1 Face A and B belt haulage flights where 

persons were observed working the day shift, an entry was not 

in the mine examiner's book or at the date boards along the 

belt haulage. 

The order referred to the citation as being the underlying initial 

action. 

The relevant facts leading to the citation and order are the same. In 

both instances, the involved areas were coal-carrying conveyor belts which 

were not used to transport miners. In both cases the conveyor belts had beer. 

examined by J & L during the preceding shift but not within 3 hours of the 

commencement of the shift on which the citation and order were issued. In 

other words, J & L did not conduct a preshift examination of the coalcarrying conveyor belts. At the time the citation and order were issued, 

miners were working along the conveyor belts. 

MSHA and the UMWA contend that the regulation in controversy requires 

J & L to conduct a preshift examination of the coal-carrying conveyor belts. 

J & L asserts that the regulation does not require a preshif t examination of 

the belts. 

At hearing, MSHA's policy concerning its interpretation 

tion leading to the controversy was stated by its employees: 

Inspection Supervisor, and Alex O'Rourke, Supervisory Mining 

Mr. Beck stated, 

of the regulaEugene Beck, 

Engineer. 

"[B]elt lines ••• where coal is being hauled, carried, no 

persons along that belt line, must be examined during, after 

the shift is started, and if there was men working or 

assigned to be working anyplace in them areas, along that 

belt line, it had to be pre-shifted within 3 hours preceding 

the beginning of the shift." (Tr. 40). 

Mr. O'Rourke stated that no preshift examination of conveyor belts was 

required under this regulation "where men were not required, were planned to 

be working in that area during that shift." (Tr. 82). Mr. O'Rourke went 

on to state that the requirements of the regulation concerning a preshift 

examination and an examination during the shift could be merged into a single 

examination following the initial preshift examination. (Tr. 83). MSHA's 

witnesses conceded that the Coal Mine Inspection Manual (hereinafter "the 

Manual") states that the examination of conveyor belts on which men are not 

transported shall be started without delay after each coal producing shift 

has begun. The Manual says nothing about a preshift examination of such 

belts. 

On February 14, 1980, MSHA issued a citation to the same mine for the 

same violation. That citation alleged a failure to conduct a preshift 

examination of coal-carrying conveyor belts where men were normally required 

to work or travel in the area (Ex. C-1). J & L did not contest that citation. 

1725 
In December, 1980, and January, 1981, discussions took place between 

MSHA supervisory personnel and J & L management. During these discussions, 

MSHA told J & L that a preshift examination of certain coal-carrying conveyor 

belts was required. J & L disputed that interpretation of the regulation. 

MSHA suggested that J & L file a petition to modify the application of the 

mandatory standard pursuant to section lOl(c) of the Act. J & L elected not 

to file such a petition because it believed that such filing would concede 

MSHA's interpretation of the regulation. 

Inspection Supervisor Beck testified that, in his opinion, the hazards 

surrounding conveyor belts were at least twice as great at the end of the 

shift as they were at the beginning of the shift. He identified such hazards 

as accumulations of float coal, hot rollers, and roof problems. Supervtsory 

Mining Engineer O'Rourke testified that although he was familiar with MSHA's 

policy concerning the preshift examination requirement of coal-carrying conveyor belts, he could not say what the actual practice has been by inspectors 

except that he had seen other citations in MSHA District 2 for the same violation alleged here. He could not be specific as to the number of such 

citations. 

Stephen Hajdu, J & L's assistant safety inspector for this mine, testified that after the February 14, 1980 citation and before the citation contested here, it was J & L's practice to conduct a preshift examination of 

coal carrying conveyor belts "where you normally have men regularly employed 

in those areas, or has to work normally in those areas." (Tr. 106). He was 

unable to state whether the men working along the conveyor belts on 

February 19, 1981, were regularly assigned to that area. He conceded that, 

"anytime during any shift there is possibly a man or two somewhere along the 

belt lines." (Tr. 95). 

Daniel Ashcraft, manager of mines for J & L, testified that the Vesta 

No. 5 Mine is not under his jurisdiction. He testified that in his 33 years 

of coal mine employment he had never heard of a citation being issued for 

failure to conduct a preshift examination of coal-carrying conveyor belts. 

He admitted, however, that if he knew that miners were going to be assigned 

for a specific job along such belts, "that area was preshifted at that time." 

(Tr. 116). 

George Pizoli, J & L's manager of mines, testified that the Vesta No. 5 

Mine has been under his jurisdiction since October 1, 1980. He testified 

that during the 6 years, prior to October 1, 1980 as an employee with other 

coal mine operators, all coal-carrying conveyor belts had been examined only 

during the shift and no citations had ever been issued. After the issuance 

of the order herein, he increased the number of preshift examiners at this 

mine from 13 to 20 to achieve compliance. Additionally, he directed his 

employees to conduct a preshift examination of all 18 miles of coal-carrying 

conveyor belts at this mine because "it is reasonable to assume that you are 

going to have to dispatch people to any portion of that belt line at any 

time • • " (Tr. 130-31). 

1726 
DISCUSSION 

Contentions of the Parties 

J & L asserts that the language of 30 C.F.R. § 75.303 clearly does not 

require belt conveyors, not used to transport miners, to be examined within 

3 hours prior to the start of the shift. It further contends that the 

principles of statutory construction and the legislative history of the Act 

establish that it was not the intent of Congress to require such belt conveyors to be examined prior to the commencement of the shift. 

At the hearing, MSHA's supervisors testified that the requirement of a 

preshift examination of coal-carrying conveyor belts applies only to such 

belts where men are required or assigned to work during that shift. However, 

MSHA argues that the coal-carrying conveyor belts herein are "active workings" of the mine and, hence, must be examined within 3 hours preceding the 

beginning of each shift. MSHA further asserts that the additional provision 

of the regulation, requiring that such belts be examined after the shift has 

begun, does not require more than one examination per shift because, after 

the initial preshift examination, the examination during the shift and the 

preshift exam for the next shift can be merged. MSHA's brief sets forth its 

position as follows: 

It is completely within the Secretary's interpretation 

for J&L to inspect, during the preshift exam, only those areas 

of the conveyor belt entries where men are to work or travel, 

such as the areas of the belt drive units, leaving the remaining areas of the belt entries to be covered during the shift 

(Tr. 144-145). In the alternative, as MSHA witnesses testified, J&L can delay the required onshift exam until the end 

of a shift, accomplishing it within three hours of the succeeding shift, and thereby qualify that one examination to 

satisfy both the preshift and onshift examination requirements 

of 30 CFR § 75.303. This example, of course, assumes that the 

"two for one" exam will be sufficiently broad and thorough. 

MSHA accepts such an examination and does not deem it to be 

violative of MSHA policy. 

MSHA Brief at 10-11. 

The UMWA agrees with MSHA that coal-carrying conveyor belts are "active 

workings" of the mine and must be examined within 3 hours preceding the 

beginning of each shift. However, the UMWA contends that because all coalcarrying conveyor belts constitute "active workings" of the mine, all such 

belts must be subjected to preshift examination whether or not men are 

assigned to work in the area. The UMWA also asserts that the regulation 

requires two separate examinations applicable to each shift: A preshift 

examination and an examination during the shift. The UMWA contends that 

these examinations may not be merged into a single examination. 

1727 
Construction of 30 C.F.R. § 75.303 

The language of the regulation in controversy, 30 C.F.R. § 75.303, is 

the same as section 303(d)(l) of the Act. The principles of statutory construction apply. The cardinal principle of statutory construction was stated 

by the U.S. Supreme Court as follows: "the meaning of a statute must, in the 

first instance, be sought in the language in which the Act is framed, and if 

that is plain, • • • the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485 (1917). 

The application of this principle to the regulation here must be based upon 

an analysis of the first three sentences of the regulation. 

The first sentence of the regulation provides that the operator must 

perform a preshift examination of "the active workings of a coal mine." At 

the hearing, J & L did not contend that the belts in question were not active 

workings. However, in its brief it states: "It is arguable that the belt 

conveyors here are not part of the active workings." J & L Brief at 9; 

30 C.F.R. § 75.2(g)(4) and section 318(g)(4) of the Act provide as 

follows: "'Active workings' means any place in a coal mine where miners are 

normally required to work or travel." The term, "active workings," has been 

broadly construed by the Interior Board of Mine Operation Appeals (hereinafter "The Board") and the Federal Mine Safety and Health Review Commission 

(hereinafter "the Commission"). In Mid-Continent Coal and Coke Co., 1 IBMA 

250, 257 (1972) the Board held that even though only one miner was required 

to regularly inspect an entry containing a high-voltage cable, that was 

enough to constitute an "active working." In Kaiser Steel Corp., 3 IBMA 489, 

510 (1974) the Board held that an air return which was inspected twice a day 

and rock dusted twice a week constituted an •iactive working" of the mine. 

In Secretary of Labor v. Old Ben Coal Company, 3 FMSHRC 608, 609 (1981) the 

Commission noted the two previously cited decisions of the Board and stated, 

"the cited area was required to be inspected at least once a week, was 

traveled as an escape route, and was rock-dusted periodically. We find that 

these uses meet the work and travel requirements of an active working under 

the standard." Although all the above cases decided by the Board and 

Commission involved 30 C.F.R. § 75.400, no reason exists for applying a 

different definition of "active working" to 30 C.F.R § 75.303. Even J & L 

concedes that the conveyor belts in question must be examined during each 

shift and that, at the time of the issuance of the citation and order, miners 

were assigned to work in the areas of the conveyor belts. I find that the 

conveyor belts in the cited areas constitute "active workings" of the coal 

mine. Hence, the first sentence of the regulation appears to require that 

they be examined "within 3 hours immediately preceding the beginning of any 

shift." 

Turning to the second sentence of the regulation, it specifies that the 

"examiner shall examine every working section • • • seals and doors • • • 

the roof, face, and rib conditions in such working sections; examine active 

roadways, travelways, and belt conveyors on which men are carried •••• " 

30 C.F.R. § 75.2(g)(3) and section 318(g)(3) of the Act provides as follows: 

"'Working section' means all areas of the coal mine from the loading point 

1728 
of the section to and including the working faces." The "loading point" 

referred to in the above definition is the point at which coal is placed onto 

the conveyor belt. Thus, the conveyor belts in the cited areas here are not 

within the definition of "working section" as that term is used in the second 

sentence of the regulation. J & L asserts that "the areas of the active 

workings to be examined prior to the shift are only those areas of the working 

section outlined in the second sentence of the regulation." J & L Brief at 9. 

Although MSHA asserts that "statutes must be read in such a way as to give 

all parts meaning," and that the first sentence is "inclusive and paramount, 

and the sentences which follow [are] illustrative but not exceptive," MSHA 

Brief at 19 and 16, it does not comment further on the second sentence of the 

regulation. The UMWA commented on the construction of the second sentence 

of the regulation as follows: 

[T]he reference to "working section" in the second sentence 

should be construed liberally, and harmoniously with the 

first sentence as a means of ensuing [sic] that the pre-shift 

examination requirement is applied to working sections, as 

well as to active roadways, travelways and belt conveyors on 

which men are carried, due to the particular severity of the 

hazards associated with these areas • • • [and] • • • the 

first two sentences define and elaborate the pre-shift 

examination • • • • 

UMWA brief at 9 and 12. Upon considering all the arguments, suffice it to 

say that the areas which ar·e required to be examined within 3 hours before 

the beginning of any shift in the second sentence of the regulation do not 

include all "active workings" of the mine which are included in the first 

sentence of the regulation. 

Following the first two sentences of the regulation, which describe the 

areas of a coal mine required to be examined prior to the beginning of a 

shift, the third sentence states, " belt conveyors on which coal is carried 

shall be examined aft.er each coal-producing shift has begun." J & L argues 

that, "the third sentence of the standard specifically exempts such belt 

conveyors from examination prior to the shift by authorizing examination to 

occur during the shift." J & L Brief at 10. MSHA contends that the third 

sentence is not an exception to the first sentence but rather calls for an 

examination during the shift which can be delayed "until the end of a shift, 

accomplishing it within 3 hours of the succeeding shift, and thereby qualify 

that one examination to satisfy both the preshift and onshift examination 

requirements of 30 C.F.R. § 75.303." MSHA Brief at 11. Thus, MSHA concludes 

that the third sentence requires an examination of coal-carrying conveyor 

belts after the beginning of the shift in addition to the examination 

specified in the first sentence. The UMWA's position concerning the first 

sentence is as follows: "The on-shift inspection of the coal carrying belts 

required by the third sentence of 30 C.F.R. 75.303 was not intended to be 

a restriction on the general pre-shift inspection provisions established in 

the first sentence. Rather, it was intended to promote mine safety by 

requiring that a separate and additional inspection be performed on coal 

carrying belts." UMWA Brief at 13-14. 

1729 
I have considered the contentions of all the parties that the language 

of the regulation is plain and does not need interpretation. However, I note 

that the purportedly "plain" language relating to the examination of coal 

carrying conveyor belts has been construed by these parties in three different 

ways as follows: (1) J & L - only an examination after the shift has begun; 

(2) MSHA - a preshift examination only of belts where men are assigned or 

planned to work or travel and an examination of all coal-carrying conveyor 

belts after the shift has begun, but if the latter examination is conducted 

during the last 3 hours of the shift, one such examination will satisfy both 

requirements of the regulation; and (3) UMWA - all coal-carrying belts must 

be examined before each shift and examined again after the start of the shift 

and such examinations may not be merged. 

The first sentence of the regulation, as defined and interpreted by the 

Board and the Commission, purports to require a preshift examination of the 

areas cited here. The second sentence purports to specify a more narrow area 

of the mine to be preshifted including, inter alia, working sections and belt 

conveyors on which men are carried. Obviously, all areas identified in the 

second sentence are included within the definition of "active workings" in 

the first sentence. MSHA contends that the second and third sentences are 

"illustrative but not exceptive." J & L claims that the second and third 

sentences create "an exception to the requirement of examination prior to the 

shift." J & L Brief at 11. If the first sentence requires the preshift 

examination of all conveyor belts, what is the purpose of the second sentence 

which requires preshift examination of only conveyor belts on which men are 

carried? I find that the language used in tbe three sentences of this regulation is not plain or unambiguous. Therefore, the legislative history of 

the Act must be examined to determine the intent of Congress in enacting this 

law. 

Legislative History 

An examination of the legislative history leading to the enactment of 

the provision in controversy begins with the Federal Coal Mine Safety Act 

of 1952, P.L. 532, 82d. Cong. Ch. 877, 2d Sess. (1952) (hereinafter "1952 

Coal Act"). The parties agree that the 1952 Coal Act did not require a 

preshift examination of any conveyor belts. 

In 1969, the Senate and House of Representatives passed different bills 

concerning the duty to examine conveyor belts. The House Bill, HR 13950, 

section 303(d)(l), added the following: (1) a specific requirement in the 

second sentence that required a preshift examination of all belt conveyors 

on which men are carried; and (2) the third sentence which provided that conveyors on which coal is carried shall be examined after each coal-producing 

shift has begun. The House Report concerning this provision is silent. 

Legislative History of the Federal Mine Health and Safety Act of 1969 (Public 

Law 91-173 (August 1975) (hereinafter "Legislative History") at 1031, et seq. 

The Senate Bill, s. 2917, added the phrase "and all belt conveyors" tothesecond sentence which specified areas of a coal mine subject to preshift 

examination. The Senate Report concerning this change is as follows: 

1730 
This section sets forth requirements that the operator 

must follow for preshift examinations. The provisions are 

similar to the 1952 act provisions, except that they apply to 

all underground coal mines and except for four additional 

requirements. These are: (1) An anemometer or other 

acceptable device capable of measuring the velocity of an 

air current is required, (2) an examination of belt conveyors 

is required, (3) the preshift examination is to be made 

3 hours prior to a coal-producing shift instead of 4 hours, 

and (4) the inspector may require that the preshift examination include examinations for hazards and standards violations 

not specified in the section. No miner may enter the underground portion of a mine until the preshift examination is 

completed, the examiner's report is transmitted to the surface 

and actually recorded, and until hazardous conditions or 

standards violations are corrected. 

The reason for these changes are: 

1. The preshift examiner cannot possibly determine the 

velocity of an air current without a device capable of 

measuring the velocity; 

2. Many mine fires occur along belt conveyors as a 

result of defective electric wiring, overheated bearings, and 

friction; therefore, an examination of the belt conveyors is 

necessary; and 

3. The hour for beginning of the preshift examination 

was changed to insure an examination as near as possible to 

the beginning of the shift. Changes occur so rapidly in the 

mines that it is imperative the examinations be made as near 

as possible to the time the workmen enter the mine. The 

3-hour time was recommended as far back as 1944; and 

4. A careful preshift examination may disclose hazards 

other than those caused by lack of proper ventilation and 

thereby prevent loss of life and injury. 

Legislative History at 183. 

In essence, the House-Senate Conference Committee adopted the House 

version and the Conference Report states as follows: 

Subsection (d) sets forth requirements that the operator 

must follow for preshift examinations. These provisions are 

similar to the 1952 act provisions, except that they apply 

to all underground coal mines before all shifts, not just 

production shifts, and except for several additional requirements including (1) an anemometer or other acceptable device 

1731 
capable of measuring the velocity of an air current is 

required, (2) an examination of belt conveyors on which men 

are carried before each shift, (3) an examination of coal 

carrying belt conveyors after each shift begins, (4) a preshift examination 3 hours prior to a shift instead of 4 hours, 

and (5) an examination of such other hazards and violations 

of standards, as an inspector may require. No miner may enter 

the underground portion of a mine until the preshift examination is completed, the examiner's report is transmitted to 

the surface and actually recorded, and until hazardous conditions or standards violations are corrected. 

Legislative History at 1610. (Emphasis supplied.) 

Curiously, the House-Senate Conference Committee changed the language of 

the first sentence of this section. In both the House and Senate versions, 

that sentence provided that "before any workmen in such shift enter the 

underground areas of the mine, certified persons designated by the operator 

of the mine shall examine a definite underground area of the mine." 

(Emphasis supplied). The Conference Committee changed the term "underground 

areas" and "definite underground area of the mine" to "active workings." The 

Conference Committee Report is silent about this change. 

The issue is whether Congress intended to include coal-carrying conveyor 

belts within the area designated for preshift examination. I conclude that 

it did not. The 1952 Coal Act did not require a preshift examination of any 

conveyor belts. The Senate version of the 1969 Act clearly and specifically 

required preshift examination of all conveyor belts. I find that the House 

version required a preshift examination of conveyor belts on which men were 

carried and an examination of coal carrying conveyors belts after the shift 

began. I find that the House-Senate Conference Committee, by rejecting the 

Senate version requiring a preshift examination of all conveyor belts, indicated a Congressional intent to limit the preshift examination of conveyor 

belts to those belts on which men are carried. This principle of statutory 

construction has been articulated as follows: 

That Congress adopted the House version of the bill, 

specifically rejecting the Senate's conflicting version, is 

of course an extremely significant factor in determining what 

was Congress' intention with respect to the matters in issue. 

See, e.g., First Nat'l Bank of Logan, Utah v. Walker Bank, 

385 u-:s-:- 252, 258, 87 s.ct. 492, 17 L.Ed.2d 343 (1966). 

Pan American World Airways, Inc. v. C.A.B., 380 F.2d 770, 781 (6th Cir. 

1967), aff'd sub nom, World Airways, Inc. v. Pan American World Airways, Inc., 

391 U.S. 461 (1968). Moreover, the position of MSHA and the UMWA in this 

matter would require that the Commission find that Congress intended a result 

that it expressly declined to enact. See Gulf Oil Corp. v. Copp Paving Co., 

419 U.S. 186, 199-200 (1974). Although I am mindful that mine safety laws 

are remedial legislation which should be construed broadly to effectuate 

1732 
their purpose, it appears beyond question from the legislative history supra, 

that Congress intended to require a preshift examination only of conveyor 

belts on which men are carried and an examination of coal-carrying conveyor 

belts after the shift has begun. 

The general language of the first sentence of this regulation requiring 

preshift examination of all "active workings" of the coal mine is insufficient to require a preshift examination of coal carrying conveyor belts in 

light of the specific language of the second and third sentences. If the 

first sentence were construed to require preshift examination of coalcarrying conveyor belts, the second sentence requiring a preshift examination 

of "belt conveyors on which men are carried," would be redundant and superfluous. It must be presumed that Congress did not use superfluous words. I 

find that the broad interpretation applied to the term "active workings" 

pursuant to 30 C.F.R. § 75.400 by the Board and Commission is limited by the 

clear Congressional intent that coal-carrying conveyor belts only to be 

examined after the shift has begun. 

MSHA asserts that, since it is the agency charged with execution of this 

law, its interpretation should be followed. I find that MSHA has failed to 

establish that it has had any consistent or coherent construction of the section in controversy. Although this law has been in effect for almost 

12 years, MSHA is unable to cite any written policy or procedure requiring a 

preshift examination of coal-carrying conveyor belts. Last year, Judge Merlin 

invalidated MSHA's policy of requiring the examination of coal-carrying conveyor belts without delay after the start of a production shift. Judge Merlin 

stated, "indeed there is no time requirement at all except that the examination occur during the shift. If the Secretary wished to require an immediate 

inspection within a specified time after the start of a shift, the regulation 

could have so provided." Consolidation Coal Co., 2 FMSHRC 1809, 1817 

(July 11, 1980). MSHA did not petition the Commission for review of that 

decision. Nevertheless, as evidenced by the testimony in this case, MSHA has 

not changed its policy contained in the Manual. The Manual still purports to 

require that examination of coal-carrying conveyor belts be conducted without 

delay after the commencement of the shift. MSHA's failure to articulate a 

policy concerning the examination of coal-carrying conveyor belts lead an 

inspector to issue citations to U.S. Steel Corporation on February 2, 1981 

and March 2, 1981, alleging a violation of 30 C.F.R. § 75.303 in that the 

examination of the coal-carrying conveyor belts was not made without delay 

after the coal producing shift had begun. U.S. Steel Corporation, Docket No. 

WEVA 81-263-R, etc., 3 FMSHRC 1228 (May 6, 1981). MSHA vacated those citations on March 4, 1981 and March 9, 1981, respectively. At a hearing on the 

contest of those citations, counsel for MSHA stated: 

I think there is no question that we feel that the 

operator here did conduct an adequate preshift examination of 

the coal-carrying belts which was performed 3 hours before 

the beginning of the shift. A West Virginia law requires 

preshift examinations of coal-carrying belts 3 hours before 

the start of the shift and the operator is complying with 

1733 
that. So, in view of that, we now feel that the operator is 

meeting the requirements of 30 C.F.R. § 75.303 if he examines 

the belts at some time during the shift and if that examination is completed. (Emphasis supplied.) 

U.S. Steel Corporation, supra, at 1233. 

Judge Stewart stated in that case, 

MSHA acknowledged that if the conveyor were preshifted 

within 3 hours of the start of the shift, the requirement to 

examine the belt immediately after the start of the shift 

would in effect require two examinations within 3 hours and 

that such a requirement might be harsh. MSHA stated that 

because of the 40 miles of belts, there would be people 

walking belts all day long because as soon as they finished 

their preshift examination they would have to start their 

onshift examination. MSHA conceded that the language on its 

face does not require the operator to begin his onshif t 

examination immediately upon the start of the shift and that 

it was his option to conduct the onshift examination along 

with the State-required preshift examination. Ibid. 

In U.S. Steel, supra, footnote 6 at 1232, MSHA further stated: 

Instructions in, the Coal Mine Inspection Manual, which 

indicates a different enforcement policy with regard to 

30 C.F.R. § 75.303, are not current. In fact, MSHA's 

enforcement policy with regard to 30 C.F.R. § 75.303 is 

currently under review and once completed, new enforcement 

guidelines will be published and enforced. 

In conclusion, I find that MSHA has failed to establish that it has any 

construction of this regulation. Hence, there is no obligation on the 

Commission or courts to follow MSHA's interpretation of the regulation in 

this matter. 

It should also be noted that the first sentence of this regulation 

specifically permits MSHA to require preshift examination of "any other 

underground area of the mine designated by the Secretary or his authorized 

representative." Hence, MSHA has broad authority to promulgate a regulation 

requiring the preshift examination of coal-carrying conveyor belts. Perhaps 

MSHA's review of enforcement policy covering this regulation will lead to 

such a regulation. In the meantime, I conclude that MSHA has failed to 

establish a requirement of a preshift examination of coal-carrying conveyor 

belts. Therefore, the citation and order contested herein are vacated. 

Since the citation and order are vacated, I do not reach the other issues 

raised by J & L, to wit: (1) whether the violations were "significant and 

substantial"; (2) whether the violations were the result of an "unwarrantable failure to comply with the mandatory standard"; and (3) whether MSHA 

failed to comply with the Administrative Procedure Act. 

1734 
ORDER 

IT IS ORDERED that Citation No. 1046974 and Order No. 1046866 are 

VACATED and J & L's contest of the citation and order is SUSTAINED. 

Distribution Certified Mail: 

Ja~~s A. Laurensorr;/Judge 

/ i I I 

l~ Henry McC. Ingram, Esq.,; R. Henry Moore, Esq.,; and Thomas C. Reed, 

Esq., Rose, Schmidt, Dixon, Hasley, Whyte and Hardesty, 

900 Oliver Building, Pittsburgh, PA 15222 

James R. Haggerty, Jones & Laughlin Steel Corporation, 3 Gateway Center, 

Pittsburgh, PA 15263 

Lawrence W. Moon, Jr., Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Kurt Kobelt, Esq., United Mine Workers of America, 900 ,15th Street, 

N.W., Washington, DC 20005 

1735 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 JUL 7 1981 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-124-M 

MSHA CASE NO. 05-00516-05010 

DOCKET NO. WEST 79-125-M 

MSHA CASE NO. 05-00516-05011 

DOCKET NO. WEST 79-126-M 

MSHA CASE NO. 05-00516-05012 

DOCKET NO. WEST 79-207-M 

MSHA CASE NO. 05-00516-05013 

DOCKET NO. WEST 79-310-M 

MSHA CASE NO. 05-00516-05014 

DOCKET NO. WEST 81-12-M 

Pet it ioner, ·) 

) 

) 

) 

v. ) 

) 

) 

) 

) 

ASARCO, INCORPORATED, ) MSHA CASE NO. 05-00516-05022 

) DOCKET NO. WEST 81-13-M 

Respondent. ) 

) 

) 

MSHA CASE NO. 05-00516-05023 

MINE: Leadville Mine ~~~~~~~~~~~~~~~~~ 

ORDER CORRECTING DECISION 

The following Citation nos. and the corresponding penalty were 

inadvertently omitted from the final decision issued June 30, 1981. They 

should be added to those listed in the decision. 

DOCKET NO. WEST 79-124-M 

Citation No. Penalty 

333383 $122.00 

333384 122.00 

The total penalty amount should therefore be $3,549.00. 

DOCKET NO. WEST 79-125-M 

Citation No. Penalty 

333886 $ 90.00 

333888 160.00 

The total penalty amount should therefore be $2,649.00. 

Concerning Docket No. WEST 81-12-M the last figure of $44.00 in the 

penalty column should be omitted. The total penalty amount should be 

$1,619.00. 

SO ORDERED. 

1736 ~dministrative 

h~~ Law Judge 
Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1861 Stout Street 

Denver, Colorado 80294 

Earl K. Madsen, Esq. 

Bradley, Campbell & Carney 

1717 Washington Avenue 

Golden, Colorado 80401 

1737 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 7 1981 

UNITED HINE WORKERS OF AMERICA, Complaint for Compensation 

LOCAL UNION 6003, DISTRICT 29, 

Complainant Docket No. WEVA 80-664-C 

v. 

ROYAL COAL CO~A."iY and 

COWIN AND COMPANY, INC., 

Respondents 

SECRETARY OF LABOR, Civil Penalty Proceeding 

HINE SAFETY AND HEALTH 

Am1INISTRATION (MSHA), Docket No. WEVA 81-34 

Petitioner A.C. No. 46-03294-03019 

v. 

Claremont Cleaning Plant 

ROYAL COAL CO!·lPA."iY, 

Appearances: 

Before: 

Respondent 

DECISION 

James Swart, Esq., Beckley, West Virginia, for Complainant, 

United :line Workers of America; 

Robert S. Stubbs, Esq., Jackson, Kelly, Holt.& O'Farrell, 

Charleston, West Virginia, for Respondents. 

Catherine Oliver, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, fo,r Petitioner, 

Secretary of Labor; 

Judge Melick 

On June 5, 1980, an inspector for the Mine Safety and Health Administration (MSHA) issued a combined order of withdrawal and citation to the Royal 

Coal Company (Royal) for the face area of an underground slope being sunk 

by employees of an independent contractor, Cowin and Company, Inc. (Cowin), 

at Royal's Claremont Cleaning Plant. The order of withdrawal was based upon 

the inspector's finding of an imminent danger under section 107(a) of the 

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

1738 
"Act." 1/ The citation was issued under the provisions of section 104(a) of 

the Act-:- 2/ The order and citation alleged a violation of Royal's slope 

construction plan under the mandatory standard at 30 C.F.R. § 77.1900-1. 

Neither the order nor the citation were contested under the provisions of 

section 107(e)(l) and 104(a) of the Act, respectively. Local Union 6003, 

District 29 of the United Mine Workers of America (UMWA), thereafter filed 

a complaint under section 111 of the Act against Royal and Cowin for compensation to miners idled by the order. That complaint was timely answered. 

On November 26, 1980, MSHA filed a proposal for assessment of civil penalty 

against Royal for the cited violation of the mandatory standard and Royal 

thereafter answered timely under the provisions of section 105(d) of the 

Act. The complaint for compensation and the civil penalty proceeding were 

thereafter consolidated under Commission Rule 12, 29 C.F.R. § 2700.12, and 

hearings in the consolidated cases were held in Charleston, West Virginia, 

commencing February 2, 1981. 

The general issues before me are: (1) whether Royal failed to comply 

with the mandatory standard cited in the order and citation at bar, and, 

if so, the appropriate civil penalty to be paid for the violation; and (2) 

the amount of compensation due to the miners idled by the order in question. 

Royal and Cowin concede that the imminent danger or~er issued in this 

case on June 5, 1980, and terminated on June 18, 1980, was not contested 

under section 107(e)(l) of the Ac~ and that it therefore had become final. 

Moreover, within the framework of the first part of section 111 of the 

1/ Section 107(a) of the Act reads as follows: 

"If, upon any inspection or investigation of a coal or other mine which 

is subject to this Act, an authorized representative of the Secretary .finds 

that an imminent danger exists, such representative shall determine the extent 

of the area of such mine throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause all persons, except those 

referred to in section 104(c), to be withdrawn from, and to be prohibited 

from entering, such area until an authorized representative of the Secretary 

determines that such imminent danger and the conditions or practices which 

caused such imminent danger no longer exist. The issuance of an order under 

this subsection shall not preclude the issuance of a citation under section 

104 or the proposing of a penalty under section 110." 

2/ Section 104(a) of the Act reads in part as follows: 

"If, upon inspection or investigation, the Secretary or his authorized 

representative believes that an operator of a coal or other mine subject to 

this Act has violated this Act, or any mandatory health or safety standard, 

rule, order, or regulation promulgated pursuant. to this Act, he shall, with 

reasonable promptness, issue a citation to the operator. Each citation 

shall be in writing and shall describe with particularity the nature of the 

violation, including a reference to the provision of the Act, standard, rule, 

regulation, or order alleged to have been violated." 

1739 
Act, 3/ Royal and Cowin concede that the miners idled on the shift in which 

the order was issued are entitled to full compensation for the balance of 

that shift at their regular rate of pay and that the miners idled on the 

next working shift are entitled to 4 hours' compensation at their regular 

rate of pay. The dispute over compensation here at issue concerns the 

second part of section 111. That part reads as follows: 

If a coal or other mine or area of such mine is closed by 

an order issued under * * * section 107 of this title for a 

failure of the operator to comply with any mandatory health or 

safety standards, all miners who are idled due to such order 

shall be fully compensated after all interested parties are 

given an opportunity for a public hearing, which shall be 

expedited in such cases, and after such order is final, by 

the operator for lost time at their regular rates of pay for 

such time as the miners are idled by such closing, or for 

1 week, whichever is the lesser. 

~lotions by m!\JA for Summary Decision 

In notions for summary decision filed before and during hearing, the 

U:!WA argued that the section 107(a) order and the section 104(a) citation 

became final upon the Respondents' failure to contest them under the provisions of sections 107(e) (1) and lOS(d) of the Act, respectively. It 

f~irther c.'laintaincd that since the issues that could have been litigated 

ih a contest of this order and citation incorporated all of the essential 

issues to be Jecided in a section 111 compensation proceeding those issues 

could not now be relitigated (presumably under the doctrines of res judicata 

and collateral estoppel). The UMWA argued that section 111 therefore mandated a s~~mary decision, without the necessity of a hearing, that compensation be paid to the idled miners for a full week. The UMWA argued, 

alternatively, that even if the issue of whether the operator failed to 

comply with a mandatory standard survived the finality of the order and 

citation, once the Judge made a determination (in ruling on Respondents' 

motion for sum;aary decision discussed, infra), that the order at bar properly alleged a failure to comply with the mandatory health or safety standard there were no further factual determinations to be made and a summary 

decision should in any event be rendered without a hearing. In other words, 

3/ Section 111 of the Act provides in relevant part as follows: 

"If a coal or other mine or area of such mine is closed by an order issued 

under*** section 107, all miners working during the shift when such order 

was issued who are idled by such order shall be entitled, regardless of the 

result of any review of such order, to full compensation by the operator at 

their regular rates of pay for the period they are idled, but for not more 

than the balance of such shift. If such order is not terminated prior to 

the next work_ing shift, all miners on that shift who are idled by such order 

shall be entitled to full compensation by the operator at their regular rates 

of pay for the period they are idled, but for not more than 4 hours of such 

shift." 

1740 
the UMWA argues that since the order was "issued" for an alleged violation 

of a mandatory standard there was then no need for a hearing to determine 

whether or not there was, as a matter of fact, any violation of the mandatory standard. 

Both Cowin and Royal admit that the section 107(a) imminent danger order 

had become final and do not seek review of the order. They argue, however, 

that the essential question under section 111 of whether that order was issued 

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

standards" nevertheless survived the finality of the order. The UMWA counters 

this argument by claiming that the issue under section 111 of whether the 

operator failed to comply with a mandatory standard is identical to an essential issue that could have been litigated in a contest of the validity of the 

section 104(a) citation. The UMWA argument continues that since the Respondents failed to contest that citation within 30 days of its issuance under 

section 105(d), that citation and the issues that could have been raised in 

a contest of that citation became final and were not subject to relitigation 

(again presurnbably under the doctrines of res judicata and collateral estoppel) 

in the compensation case before me. 

The ut1WA arguments fail, however, on several grounds. Even assuming, 

arguendo, that the failure to timely contest the 104(a) citation could 

serve to bar the subsequent litigation in a section 111 compensation case 

of an issue that might properly have been determined in that proceeding, 

it is undisputed that in this case the 104(a) citation was in fact timely 

challenged under the provisions of section 105(a) of the Act, i.e., within 

30 days of notification to the operator of a proposed civil penalty. It 

is immaterial that the operator did not also contest the citation within 

30 days of its receipt under the provisions of section 105(d) of the Act. 

In either case, the validity of the citation is properly at issue. Energy 

Fuels Corporation v. Secretary, 1 FMSHRC 299 (1979). Moreover, since the 

issue of whether the operator has "failed to comply with any mandatory' 

health or safety standard," is not a necessary issue to the determination 

of the validity of a. section 107(a) imminent danger withdrawal order, 

footnote 1, supra, it is apparent that there has in fact been no prior 

determination of that issue. 

In any event, I conclude that the litigation in this compensation case 

of the issue of whether the operator has "failed to comply with any mandatory health or safety standard" would not be barred by the doctrines of 

res judicata or collateral estoppel even if both the 107(a) order and the 

104(a) citation had become final for failing to timely contest them under 

applicable procedural or jurisdictional rules. Under res judicata, only a 

final judgment on the merits bars further claims by the parties or their 

privies on the same cause of action. Allen v. McCurry, 445 U.S. 958 

(1980). A judgment on the merits is one based on the legal rights and 

liabilities of the parties as distinguished from mere matters of practice, 

procedure, jurisdiction or form. Fairmont Aluminum Company v. Commissioner, 

222 F.2d 622 (4th Cir. 1955), cert. den., 350 U.S. 838, reh. den., 352 U.S. 

1741 
913. Similarly, collateral estoppel bars relitigation only of issues actually 

decided in prior litigation. Montana v. United States, 440 U.S. 147 (1979). 

Since there had not been in any case a prior judgment on the merits of the 

order and citation at bar, the issues that could have been raised in previous 

litigation of those documents are not barred from consideration in this compensation case under section 111. 

In addition, in enacting section 111 of the Act, Congress provided 

specific guarantees that compensation may be awarded only "after all interested parties are given an opportunity for a public hearing." In order to 

comport with these statutory requirements, it is clear that that opportunity 

fcH a public hearing must be renewed after the claim for compensation is 

filed when the finality of the order and the question of whether that order 

was issued for a failure of the operator to comply with a mandatory standard 

has not been previously determined or when one of the respondents in the 

compensation case has not previously had such an opportunity. In all other 

cases, the opportunity for a hearing must nevertheless be granted at least 

insofar as other issues in the compensation claim remain unresolved. In 

order for that right to a public hearing to have any meaning, it is also 

clear that all material issues may be litigated at that hearing including 

the issue of whether, as a factual matter, the order was issued for a 

failure to comply with a mandatory standard. 

Under Commission Rule 64(b), a summary decision may be granted "only 

if the entire record, including the pleadings, depositions, answers to 

interrogatori~s, admissions, and affidavits shows: (1) that there is no 

genuine issue as to any material fact, and (2) that the moving party is 

entitled to SlL'llmary decision as a matter of law." 29 C.F.R. § 2700.64(b). 

Since genuine issues of material fact remained for determination in the 

compensation proceeding under section 111, the UMWA motions for summary 

decision were, and are, properly denied. 

Motions by Respondents for Summary Decision and Dismissal 

In motions for summary decision and dismissal filed by the Respondents, 

it was argued that the citation incorporated in the order at bar should have 

been dismissed because it failed to charge any specific violation. Respondents argued, alternatively, that even if a violation of the slope plan was 

properly set forth, the slope plan itself was too ambiguous to be enforceable. 

The mandatory standard here cited, to wit, 30 C.F.R. § 77 .1900-1, 

requires that the operator adopt and comply with a slope- or shaft-sinking 

plan approved by the MSHA Coal Mine Health and Safety District Manager. It 

is here alleged that the operator failed in two ways to comply with its 

approved slope plan. The first violation is alleged as follows: 

The slope face has entered a caved area of an abandoned 

coal mine and the ribs (sides) of the slope are loose and 

overhanging. The slope roof is broken and unconsolidated 

shale and resin-grouted rods (6 feet long) are sole means of 

1742 
support. This is not an adequate system due to the conditions encountered. 

The second violation is alleged as follows: 

The width of the slope was 18 feet instead of the 

required 10; however, the exact width could not be determined 

due to area being caved on both sides. 

In a bench decision, the motions were denied as to the first allegation but 

granted as to the second. I found in that decision that the latter allegations indeed did not relate to any requirement of the slope plan that was 

in effect at the time of the purported violation and accordingly that the 

citation did not charge any violation in this regard. The slope plan as 

initially approved by MSHA on October 3, 1979, included a series of 

engineering drawings depicting the development of the slope tunnel. The 

width of the tunnel is variously shown to be 9-1/2 and 10 feet. As part 

of that approved plan, however, Royal also had submitted the following 

exclusion: 

The possibility of intersecting an abandoned mine exists 

at the 2,000-foot level; however, data is incomplete on the 

mine and as soon as it is formulated, the plans of penetration 

will be submitted. The plan will be submitted for approval 

and approval received before the slope reaches the 2,030-foot 

level. 

I conclude from that language that the operator's plan as approved by MSHA on 

October 3, was not intended by either party to govern the area of intersection with the suspected abandoned mine at the 2,000-foot level. I find that 

in approving the plan as s~bmitted on October 1, 1979, MSHA agreed to that 

specific exclusion. 4/ According to the evidence before me, no subsequent 

modification to the slope plan regarding t1:-~e width of the slope was ev"er 

made. Thus there was no requirement in effect on the date of the violation 

alleged herein that the slope widths not exceed 10 feet upon intersecting 

the abandoned mine. Accordingly, I cannot find that the first part of the 

order at bar was issued for any failure of the operator to have complied 

with the cited mandatory standard. The bench decision granting a 

corresponding partial summary decision is therefore reaffirmed. The citation is also correspondingly vacated in part. 

However, inasmuch as subsequent modifications to the slope plan applicable to the slope intersection with the abandoned mine were submitted and 

4/ This conclusion is further supported in that neither party could reasonably have expected that a 10-foot slope could have been maintained through 

the abandoned mine. While there may very well have been a violation for 

Royal to have proceeded without an approved plan in this regard beyond the 

2,030-foot level, no such violation has been charged here. The question of 

whether such a violation occurred is therefore not before me. 

1743 
approved with respect to roof control, I find that there was indeed a specific 

roof control standard existing at the time of the alleged violation. The 

original slope plan as approved by MSHA on October 3, 1979, provided as 

follows: "In the event broken roof is encountered straps, wire mesh, rolled 

steel sets, liner plate and grout or shot crete will be used to support the 

roof and ribs." A slope plan modification was later submitted by the Respondents on '.fay 9, 1980, to govern procedures to be followed in sinking the 

slope through the abandoned mine workings. That modification, approved by 

HSHA on :1ay 13, -1980, included the following provisions: "Our contractor 

plans to continue his normal support pattern. However, they have available 

on site steel liner plates and steel ribs which can be used if support conditions warrant." Another modification was submitted on May 30, 1980, and 

approved by ~!SHA on June 2, 1980. That modification included the following 

language: "In areas where rock conditions dictate, a 10 GA. Armco tunnel 

liner plate will be used and will be encased with grout to form a solid 

support structure." 

In spite of these acknowledged provisions of the slope plan, Respondents 

nevertheless contend that they did not receive the requisite notice of the 

alleged violation. ,Uthough the legal basis for their motion has not been 

articulated, it is clear that notices of violations charged under the Act 

and its implementing regulations must comport with constitutional, statutory 

and regulatory requirements. Ultimately, the notice must meet the fundamental 

requirements of due process of law under the Fifth Amendment to the United 

States Constitution. Constitutional due process does not, however, require 

any specific for:a or content for pleadings as long as the parties are given 

adequate notice. S. S. Kresge Company v. NLRB, 416 F.2d 1225 (6th Cir. 1969); 

NLRB v. United Aircraft Corp., 490 F.2d 1105 (2nd Cir. 1973). Section 104(a) 

of the Act requires that "each citation shall be in writing and shall describe 

with particularity the nature of the violation, including a reference to the 

provision of the Act, standard, rule, regulation, or order alleged to have 

been violated." ,\ddi tional general requirements for notice are set forth 

in the Federal :une Safety and Health Review Commission Rules of Procedure, 

29 C.F.R. § 2700.53, which are virtually identical to provisions of the 

Administrative Procedure Act. 5 U.S.C. § 554(b). 1./ 

I observe that in meeting the statutory requirements for notice, it is 

not necessary to describe the nature of the violation in any particular 

format so long as it is described with "particularity." The description 

must, however, afford notice sufficient to enable the operator to be properly advised so that corrections may be made to insure safety and to allow 

adequate preparations for any potential hearing on the matter. MSHA v. Jim 

5/ Commission l~ule 29 C.F.R. § 2700.53 reads as follows: 

"Except in expedited proceedings, written notice of the time, place, 

nature of the hearing, the legal authority under which the hearing is to be 

held, and the 1natters of fact and law asserted shall be given to all parties 

at least 20 days before the date set for hearing." 

1744 
Walter Resources, Inc., and Cowin and Co., 1 FMSHRC 1827 (1979). The Respon-· 

dents here have not claimed any difficulty in being able to identify and 

thereby abate the allegedly violative condition. Nor have they shown that 

they were deprived of notice sufficient to enable them to defend at hearing. 

Accordingly, I find no basis for their claims of insufficient notice and 

their motions in that regard are therefore denied. 

Respondents also argue, in the alternative, that even assuming they 

received adequate notice of the alleged violation, the relevant provisions 

of the slope plan were nevertheless too ambiguous to be enforceable. Inasmuch as the slope plan at issue was drafted by the operator and the language 

used in the plan was, accordingly, selected by the operator, I find this 

claim to be somewhat inconsistent. In any event, under the circumstances of 

this case, I find that the operator had actual knowledge that the roof here 

cited was indeed in such a condition that it warranted the use of the special 

roof control measures called for in its own slope plan. In this regard, 

Respondents have conceded that they indeed had advanced into the old mine at 

least 12 to 15 feet and that they had continued to "muck out" loose coal and 

rock from that area even though the left rib showed signs of caving. Indeed, 

Cowin's general superintendent, Edward Stamper, essentially admitted that the 

roof conditions he found when he arrived at the face were in fact so dangerous 

that he ordered the miners to stop work and withdraw from the area. Stamper 

later admitted that the rock conditions were so bad in. this area that even 

a 10-gauge Armco tunnel liner plate was insufficient -for roof control. Under 

these circumstances, I am convinced that management knew that roof bolting 

was not providing adequate roof support. Where there is actual knowledge that 

a cited practice is hazardous and a violation of the cited standard, the problem of fair notice does not exist. Cape and Vineyard Division of New Bedford 

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

Under the circumstances, Respondents' motions for summary decision and 

dismissal are denied as to the alleged violation of its slope plan concerning 

roof control. 

The Alleged Roof Contrdl Violation 

For the reasons that follow, I conclude that the requirements in the 

slope plan for roof control where the slope construction entered the 

abandoned mine workings, were indeed violated. In this regard, I accept the 

credible testimony of MSHA inspector Birkie Allen which, in many essential 

respects, is undisputed. Allen testified that on June 5, 1980, he was asked 

to inspect the slope construction project. Arriving at the working face, he 

saw conditions which led him to immediately issue an imminent danger order. 

Slope construction had progressed about 20 feet into the abandoned mine and 

the face was actually in a caved area. The roof was badly broken at the face 

and the adjacent ribs were loose and overhanging. There was a particularly 

dangerous area of about 15 feet in which the only roof support was from 

resin-grouted rods. The ribs were so "soft" in this area that the "mucker" 

operator was removing the coal without the necessity of blasting. When Allen 

arrived, men were continuing to work beneath the dangerous roof installing 

1745 
roof bolts and "mucking" in the area. Allen suspected that the abandoned mine 

had been entered on the previous 4 to 12 shift because of the amount of work 

that had progressed into the intersection. The "mucker" operator corroborated 

those suspicions and conceded that they had indeed intersected the mine on 

the previous evening shift. According to Allen, the rib and roof conqitions 

presented an extreme hazard to the six men working in the area because of 

the complete lack of support from the ribs. He pointed out that while the 

roof bolting provided a solid beam for the roof, without accompanying vertical 

support from solid ribs, the roof would only fall as a larger slab. Allen 

testified that Edward Stamper, Cowin's general superintendent, agreed at the 

time that an ir.u~inent danger indeed existed. 

It was Allen's opinion that the operator was chargeable with gross negligence because the men continued to work in this obviously dangerous area 

without proper roof support. He pointed out that a proper preshift examination which was required to have been made 90 minutes before the beginning 

of the shift, should have alerted the operator to those conditions. A steel 

plate liner was subsequently erected in the cited area and the citation and 

order were abated on June 18, 1980. 

Cowin's i;eneral superintendent, Edward Stamper, corroborated Allen's 

testimony in essential respects. He admitted that the slope had in fact 

entered the old r:iine workings early in the morning of the 5th during the 

"owl" shift and that work continued 12 to 15 feet into the intersection by 

the ti~e he arrived. When he arrived at the face, he found the conditions 

so bad that he ordered the men to stop work and withdraw from the area. He 

based this decision on the fact that the left rib showed signs of caving on 

the top left side. He admitted that no one should have been working in the 

old works, yet the "mucker" operator, as well as others, had been indeed working in this area. Significantly, Stamper also conceded that the rock conditions were so bad in the intersection that even a 10-gauge Armco tunnel 

liner was not sufficient for roof support. 

Under these circumstances, I have no difficulty in concluding that the 

provisions of the slope plan, requiring more than roof bolting where roof 

conditions dictate, were violated. Since this condition constitutes a violation of the mandatory standard, the citation is accordingly affirmed. It 

also follows that since the operator did fail to comply with the cited mandatory standard, the withdrawal order was also issued at least in part for that 

nonconpliance. Under the circumstances, all of the miners who were idled as 

a result of that order must be fully compensated by the operator for their 

lost time at their regular rate of pay for the lesser of 1 week or their 

actual lost time. Since the miners here were actually idled by the order 

from June 5 to June 18 they are entitled to pay for the time idled,fqr 

1 week or 7 calendar days. 

Amount of Compensation 

The purpose of section 111 is to provide limited compensation solely 

for regular pay lost because of the issuance of an order designated in that 

1746 
section. UMWA v. Eastern Associated Coal Corporation, 3 FMSHRC 1175 (1981). 

The miners are entitled to compensation only if they are actually "idled by" 

such an order. It is not a source of independent pay or damages. UMWA, 

supra at p. 1176. Accordingly, miners continuing to perform work for the 

cited operator have not been "idled" by the withdrawal order and are not 

entitled to additional or duplicate compensation for such work that occurs 

during the authorized 1-week period. See UMWA v. Youngstown Mines Corporation, 1 FMSHRC 990 (1979). Similarly, the miners are not entitled to compensation for being "idled" on a Saturday and/or Sunday falling within that 

1 week, 7-day, calendar period if indeed they did not customarily work on 

Saturdays and/or Sundays and there is no evidence to suggest that they would 

have worked on either or both of those days but for the issuance of the 

withdrawal order. 

Respondents contend that the amount of compensation paid should also be 

offset by any unemptoyment comp,en.sation received by the idled miners. In 

N.L.R.B. v. Gullet Gin Company, inc., 340 U.S. 361, 364 (1951), the Supreme 

Court upheld the N.L.R.B. decision refusing to deduct unemployment compensation benefits from an award of back pay. The Court concluded that since 

no consideration had been given, nor should have been given, to collateral 

losses in framing an order to reimburse employees for their lost earnings, 

manifestly no consideration need be given to collateral benefits which 

employees may have received. The Court followed an earlier decision in 

which it held that state unemployment compensation benefits were not 

"earnings" to be deducted from back pay. See N.L.R.B. v. Marshall Field & 

Company, 318 U.S. 253, 255 (1943). Several Commission judges have followed 

this rationale in denying an unemployment compensation benefit offset from 

back pay awards under section llO(a) of the Federal Coal Mine Health and 

Safety Act of 1969 and section 105(c) of the 1977 Act, respectively. Wilson 

and Rummel v. Laurel Shaft Construction Company, Inc., 2 FMSHRC 2623 (1980), 

Bradley v. Belva Coal Company, 3 FMSHRC 921 (1981), and Neal v. W. B. Coal 

Company, 3 FMSHRC 443 (1981). The same rationale applies as well to compensation awards under section 111 of the Act. Accordingly, I conclude that 

unemployment compensation benefits are not "earnings" to be deducted from 

an award of compensatory back pay under section 111 of the Act. 

The mnvA claims that the miners are entitled to 12-percent interest on 

the compensation owed. I find, however, that in accordance with the Commission decision in Peabody Coal Company v. Secretary et al., 1 FMSHRC 1785 

(1979), they are entitled to interest at the rate of 6 percent per annum 

from the date the lost wages would ordinarily have been paid to the date the 

compensation is actually paid. 

Attorney's Fees 

The UMWA also requests an award of attorney's fees incurred in obtaining 

compensation in this case. There is no authority for the award of attorney's 

fees in compensation cases under section 111 of the Act. The general rule is 

that the right to recover such costs does not exist except by virtue of 

statutory authority. Aleyeska Pipeline Service Company v. The Wilderness 

1747 
Society et al., 421 U.S. 420 (1975). The exception to that general rule for 

a prevailing plaintiff who acts as a "private attorney general" vindicating 

important statutory rights of all citizens, is inapplicable to ~he case at 

bar. Accordingly, the request herein for attorney's fees must be denied. 

Accord, Local Union No. 5899, UMWA v. Tansy Beth Mining Company, 2 FMSHRC 

466 (1981). 

Penalty 

In determining the amount of a civil penalty assessment, section llO(i) 

requires consideration of the following criteria: (1) the operator's history 

of previous violations, (2) the appropriateness of such penalty to the size of 

the business of the operator, (3) the effect on the operator's ability to continue in business, (4) whether the operator was negligent, (5) the gravity of 

the violation, and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification of the violation. 

The Royal Coal Company is small in size but appears to have a rather 

significant history of violations. There were 207 paid violations attributed 

to Royal over the 2-year period prior to the issuance of the citation at bar. 

I find that Royal was negligent in failing to maintain proper control of the 

slope construction even though the immediate control of the work was under 

the direction of Cowin, an independent contractor. It was Royal that submitted the slope construction plan for MSHA's approval and the evidence shows 

that Cowin officials maintained close contact with Royal's engineering staff, 

particularly with respect to the area of intersection with the abandoned 

~ine. I also find tlrat the hazard presented by the inadequately supported 

roof and ribs was serious and indeed presented an imminent danger of serious 

injuries and death to the several miners working in that area. There is no 

disagreement that abatement was appropriately made and that the imposition 

of any penalty would not affect the operator's ability to continue in business. Within this framework, and considering that I am also finding Royal 

liable for significant compeneation in the associated case, I find that a 

penalty of $500 is appropriate. 

ORDER 

Docket ~o. ~EVA HO-b64-C 

Respondents are hereby ORDERED to pay to the miners designated below, 

within 30 days of the date of this decision, the designated amounts 6/ plus 

interest at the rate of 6 percent per annum from the date tl;ie wages would 

ordinarily hav~ been paid to the date they are actually paid: 

6/ These amounts were derived from UMWA Exhibit No. 1, the accuracy of which 

was stipulated at hearing. I observe that June 7, 1980, was a Saturday and 

June 8, a Sunday. It was also proffered at hearing, without disagreement, 

that the miners had worked 1 day during this 7-day period, presumably June 9 

on the day and evening shifts and June 10 on the "owl" shift. 

1748 
DAY SHIFT 

Employee Hourly Rate 6/5 6/6 6/10 6/11 6/12 Total 

Powell Lane $10.73 $42. 92 $85.84 $0.00 $85.84 $42. 92 $257.52 

Delbert Harper 10.17 40.68 81.36 30.51 81.36 40.68 274.59 

Ralph Blevins 10.17 40.68 81.36 30.51 81.36 40.68 274.59 

Jackie Lane 10.17 40.68 81.36 30.51 81.36 40.68 274.59 

Nick Wuchevich, Jr. 10.73 37.56 85.84 26.83 85.84 42.92 236.07 

EVENING SHIFT 

Terry Gilkerson $10. 71 $85.68 $85.68 $85.68 $85.68 $342.72 

George Kessler 10. 71 85.68 85.68 85.68 85.68 342.72 

Carlos Bailey 10.37 82.96 82.96 82. 96 82.96 331.84 

Robert Hodge 10.37 82.96 82.96 82.96 82.96 331.84 

Charles Ellis 10.37 82.96 82.96 82.96 82.96 331.84 

James Butterworth 10.37 82.96 82.96 82.96 82.96 331.84 

Johnny Daniels 10.37 82.96 82.96 82.96 82.96 331.84 

"OWL" SHIFT 

6/6 6/9 6/11 6/12 

James Cabe $10.81 $86.48 $86.48 $86.48 $86.48 $345. 92 

Harry Miller 10.81 86.48 86.48 86.48 86.48 345.92 

Jackie Mill er 10.47 83.76 83.76 83.76 83.76 335.04 

Okey Tolliver 10.47 83.76 83.76 83.76 83.76 335.04 

Don Md1illion 10 .47 83.76 83.76 83.76 83.76 335.04 

Ken Pishner 10.47 83.76 83.76 83.76 83.76 335.04 

Total .$5 '704 .oo 

Docket No. WEVA 81-34 

Royal Coal Company is hereby ORDERED to pay a civil penalty of $500 

within 30 days of the date of this decision. 

J_ 

1749 
Distribution: 

James Swart, Esq., United Mine Workers of America, 900 15th Street, 

~~v., \.Jashington, DC 20005 (Certified Mail) 

Robert S. Stubbs, Esq., Jackson, Kelly, Holt & O'Farrell, P.O. Box 553, 

Charleston, WV 25322 (Certified Mail) 

Catherine Oliver, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3535 Harket Street, Room 14480, Philadelphia, PA 19104 

(Certified ~fail) 

1750 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 8 1981 

GERALD D. BOONE, Complaint of Discharge, 

Complainant Discrimination, or Interference 

v. 

Docket No. WEVA 80-532-D 

REBEL COAL COMPANY, 

Appearances: 

Before: 

Respondent Rebel Coal No. 2 Mine 

DECISION 

Daniel F. Hedges, Esq., Appalachian Research and Defense 

Fund, Inc., Charleston, West Virginia, for Complainant; 

Frederick W. Adkins, Esq., Cline, McAfee and Adkins, 

Norton, Virginia, for Respondent. 

Judge Melick 

This case is before me upon the complaint filed by Gerald D. Boone under 

the provisions of section 105(c)(3) of the Federal Mine Health and Safety Act 

of 1977, 30 U.S.C. § 801 et seq., the "Act" alleging that Mr. Boone was discharged by the Rebel Coal-C:ompany (Rebel) in violation of section 105(c)(l) 

of the Act. 1/ More specifically, Mr. Boone alleges that he was unlawfully 

discharged because he refused to comply with an order to drive a haulage 

truck he claimed was in a hazardous condition. An evidentiary hearing :vas 

held on Boone's complaint in Abingdon, Virginia, commencing April 28, 1981. 

Section 105(c)(l) of the Act provides in part as follows: 

No person shall discharge * * * or cause to be discharged * * * any miner * * * in any coal * * * mine 

subject to this Act * * * because of the exercise by 

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

statutory right afforded by this Act. 

1/ While the complaint herein alleges ·that it was filed pursuant to section 

l05(c)(2) of the Act, it was obviously intended to have been filed under the 

provisions of section 105(c)(J) of the Act in light of the fact that the 

Mine Safety and Health Administration (MSHA) had previously made a determination that no violation of section 105(c) had occurred. I find this oversight 

to be inconsequential. 

1751 
Mr. Boone can establish a prima facie violation of this section of the 

Act if he proves by a preponderance of the evidence that he has engaged in 

a protected activity and that his discharge was motivated in any part by 

that protected activity. Secretary ex rel. David Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980). The refusal of a miner to perform work 

where he has a good faith, reasonable belief that such work is hazardous is 

a protected activity within the purview of this section. Pasula, supra; 

Secretary ex rel. Thomas Robinette v. United Castle Coal Company, 3 FMSHRC 

803 (1981). Since there is no dispute in this case that Boone was discharged 

for refusing to drive the haulage truck, the principal question to be decided 

is whether that refusal was a protected activity under section 105(c)(l). 

In resolving that question, it will also be necessary to determine whether, 

at the time he refused to drive that truck, he entertained a good faith 

reasonable belief that it would have been hazardous to perform such work. 

Robinette, supra. 

According to Boone, he had been working as a truck driver at the Rebel 

Coal No. 2 Strip ~line for about a year before his discharge. On May 28, 1980, 

he reported for work shortly before his 3 p.m. shift. During a routine preshift inspection of his assigned vehicle, the No. 5 Caterpillar haulage 

truck, he found that the seat shock absorber and tension springs were broken 

and that he was unable to adjust the seat tension. He complained about this 

to the second shift superintendent John Lockhart, but Lockhart told him to 

drive the truck anyway. Boone then did in fact drive one load about a 

quarter mile up a hill and return. On that part of the trip that was on a 

poorly maintained secondary road, Boone hit his head on the cab roof and hit 

his legs on the steering wheel as he bounced in the seat. When he returned, 

he again complained to Lockhart warning him that because of the defect he 

could not keep the truck under control. Lockhart again instructed Boone . 

to drive it but agreed to have a mechanic also look at it. Later, around 

3:30 p.m., mechanic Leo Browning inspected the seat. Fifteen minutes later, 

Browning called to the repair shop for a replacement shock. There was none 

in the shop so the original shock was rewelded in place. Boone later tested 

the seat but still refused to drive the truck claiming that the seat had not 

been fixed. He alleges that he then requested Lockhart to ask the mine 

safety committeeman, Ron Chambers, to also check the seat. 

Boone related the hazards he perceived in driving the truck with the 

seat in the condition described. The driver could lose control if his head 

hit the cab roof and could drive off the road. It is undisputed that there 

was no benn on one side of a steep section of that road where a 20-foot 

drop-off existed. On the other side of the road, the berm was only 2 or 

3 feet high and the wheels of the truck were about 5 feet in diameter. 

Mine Safety and Health Administration (MSHA) inspector Jefferson Adkins 

examined the subject truck on June 2, 1980, after receiving a section 

103(g)(l) complaint. 2/ Adkins concluded that the seat shock absorber on 

2/ Under section 103(g)(l) of the Act, MSHA is required to make an inspection pursuant to a complaint filed by a miner's representative. 

1752 
the truck was indeed defective and that no adjustment could be made in the 

seat tension. He watched as truck driver Loss Godfrey drove the vehicle in 

a test. Godfrey bounced in the seat about a foot and had to drive with his 

legs spread apart. Godfrey showed Adkins the bruises on his upper thigh 

which he claimed had been caused by his legs being jammed into the steering 

wheel. Concluding that a dangerous condition existed which could result in 

the loss of vehicle control, Adkins "red tagged" the truck and issued an 

order withdrawing it from service until repairs could be made. The condition was abated after the shock was replaced and on June 4, the withdrawal 

order was removed. 

By agreement of the parties, a transcript of the testimony of Loss 

Godfrey taken from proceedings before the West Virginia Coal Mine Safety 

Board of Appeals was admitted into evidence in lieu of Hr. Godfrey's 

appearance. Godfrey there testified that on Tuesday the 27th (presumably 

of ~y 1980), he was driving the subject truck on the 7 to 3 day shift. 

According to Godfrey, the seat kept bouncing him, forcing his legs against 

the steering wheel. Eventually, he raised his left leg onto the dashboard 

for relief. On the following Wednesday or Thursday, the seat was even worse. 

It was not working at all. He complained to his supervisor, Burt Wilson, 

that his back was hurting from the defective seat and that he was unable to 

drive with the steering wheel hitting his legs. Godfrey nevertheless continued to drive it. The following Friday morning, Godfrey heard that Boone 

had been fired for refusing to drive the truck. He claimed that upon hearing this he decided he would not refuse to drive for fear that he would be 

fired too. He testified that his bruised legs continued to hit the wheel 

and his head continued to hit the cab roof. There was only a 4- to 5-inch 

clearance from the top of his head to the cab ceiling and the seat was 

bouncing him about a foot. The truck had still not been repaired by the 

following ~fonday and Godfrey too finally refused to drive it. 

John Lockhart, assistant mine superintendent, testified that on May 28 

Boone did indeed complain about the seat. He assigned Boone to other work 

while a mechanic checked the seat. The shock absorber bracket was rewelded. 

He conceded that Bobne thereafter checked the seat by bouncing in it and 

refused to test drive the truck claiming that the seat had not been improved. 

Lockhart had Terry Phillips, the equipment superintendent, and Leo Browning, 

a mechanic, also check the seat. According to Lockhart, neither complained 

of any problems, although no one actually drove the truck. After consulting 

with Mine Superintendent McGaffey, Lockhart presented Boone with an ultimatum 

to drive the truck or be fired. Boone continued his refusal and Lockhart 

fired him. 

Equipment superintendent Terry Phillips testified that he checked the 

seat after Browning had welded the bracket. The seat was "way out of adjustment," and although it had no "bounce," it was "okay" to Phillips. He also 

testified that he had overheard Browning call on the radio to the supply 

shop for a ~ew shock absorber but was uncertain when this call was made. 

Hine superintendent Terry McGaffey testified that he also checked the 

seat after the bracket had been rewelded. He found it to be in an acceptable 

1753 
condition. He also asked Boone to test drive the truck but Boone refused. 

He ordered Boone dismissed for that refusal. 

Within the framework of this evidence, I find that Mr. Boone has indeed 

established by a preponderance of the evidence that he engaged in a protected 

activity by refusing to drive the No. 5 Caterpillar haulage truck. In this 

regard, I accept Boone's credible and amply corroborated testimony regarding 

the nature of the hazard as it existed on Hay 28. I find that indeed there 

was then a defect in the shock absorber causing the seat to bounce the driver 

excessively. Under the circumstances, I find that the driver could strike 

his head on the cab roof or his feet could leave the control pedals and he 

could thereby lose control of the vehicle. If he should lose control, there 

was a clear and present danger of the vehicle driving off the roadway and 

overturning thereby resulting in fatal injuries. Boone's testimony in this 

regard is amply corroborated by the testimony of Loss Godfrey and of the 

two MSHA inspectors. While the MSHA inspection occurred 5 days after Boone's 

initial complaint and discharge on May 28, it is conceded that no alterations 

had been made to the seat during the interim. Both inspectors saw Loss 

Godfrey bouncing excessively in the seat as he drove the truck and considered the condition hazardous. Inspector Adkins accordingly "red tagged" 

the truck and ordered it removed from service until repairs could be made. 

Indeed, Boone's testimony is even corroborated by the operator's own witnesses. Equipment Superintendent Phillips admitted that the mechanic had 

requested a new shock absorber to replace the one Boone complained of. It 

is also undisputed that since a replacement was not available, the bracket 

had been rewelded. Finally, Phillips admitted that even after that rewelding, 

the seat was not normal. With Boone's testimony, credible in itself, so 

thoroughly corroborated, I can accord but little weight to the self-serving 

unsupported conclusions of Lockhart and McGaffey that they saw nothing wrong 

with the seat and that it posed no safety hazard whatsoever. 

Rebel argues, alternatively, that even if, as a matter of fact, there 

was a hazard, Boone did not articulate to them the precise nature of any 

particular hazard and that such an articulation is a prerequisite under section lOS(c)(l). I find no such requirement, however, in the language of the 

Act. In any event, I note that while Boone may not have articulated to mine 

management all of the safety hazards described at hearing, it is clear that 

he described the deficiency in the seat with sufficient clarity so that management was placed on notice of the potential safety hazards. Indeed, Mine 

Superintendent Lockhart conceded that Boone told him that he was bouncing 

in the seat to such an extent that .his head was striking the cab ceiling. 

That he failed to recognize, or refused to recognize, the obvious safety 

hazard under the circumstances is immaterial. 

Rebel also argues that Boone failed to request the mine safety committeeman to examine the alleged defect in accordance with the collective bargaining 

agreement and that that failure is fatal to his complaint. The parties disagree as to whether Boone actually did make such a request. In any event, the 

Commission has made it clear in the Pasula decision, that such provisions in 

1754 
the collective bargaining agreement have no binding effect in a cornpiaint 

under section lOS(c)(l) of the Act. Thus, even assuming, arguendo, that 

Boone did not request the safety chairman to look at the alleged hazardous 

condition, that does not, in itself, bar relief under section lOS(c)(l). 

This contention does, however, raise a question as to whether Boone then 

entertained a good faith reasonable belief of the hazardous nature of the 

condition. In addition to Boone's own credible testimony, the reasonableness of his belief is supported by the evidence that after his initial complaint about the seat condition, the operator's mechanic, Leo Browning, had 

requested a new shock absorber and, after finding that none was available, had 

merely rewelded the old shock bracket. This evidence is further buttressed 

by the testimony of truck driver Godfrey and of the MSHA inspectors who 

found the seat condition so hazardous that they ordered the truck withdrawn 

from service. 

Rebel also suggests that Boone may have been acting vindictively and in 

bad faith because he had earlier that morning received a warning about a previous unexcused absence. Both parties admit, however, that although Boone 

could have then been properly discharged because of his unexcused absences, 

he was not. Under these circumstances, I find it more reasonable to conclude 

that Boone would, if anything, have been grateful to the operator for having 

retained him and not vindictive for having merely been warned about his 

unexcused absence. Within this framework, I conclude that Boone did indeed 

entertain a good faith reasonable belief of the hazardous nature of the condition. Robinette, supra. I find it therefore unnecessary to determine 

whether or not he actually requested that the safety chairman examine that 

condition. 

Rebel next contends that the decision of the West Virginia Coal Mine 

Safety Board of Appeals denying Boone's discrimination corn.plaint filed under 

West Virginia law and the decision of an arbitrator denying Boone's 

grievance under the collective bargaining agreement should be given great, 

if not controlling, weight herein. Under Pasula, the weight to be given 

arbitral findings is to be controlled by several factors including the 

congruence of the statutory or contractual provisions governing those proceedings and the provisions of the Federal law, the degree of procedural 

fairness in the other forums, the adequacy of the record of those proceedings, and the special competence of the particular decision maker. I find 

these criteria to be also relevant in determining the weight to be accorded 

the decision of the West Virginia Coal Mine Safety Board of Appeals' decision. Bradley v. Belva Coal Company, 3 FMSHRC 921, petition for review 

granted May 1981. Applying these criteria to the Board decision, I· find 

that I cannot give it any weight. I have before me only the final summary 

decision of the Board itself. The reasoning of the Board in support of its 

decision and the transcript of those proceedings have not been made available. Moreover, Rebel has failed to cite even the statutory authority or 

criteria under which that decision was made. lf Finally, even assuming that 

lf Presumably, the State proceedings were brought under section 22-1-21 of 

the West Virginia Code. The provisions of that section, set forth below in 

1755 
the Pasula criteria had been met, since the Board decision has not yet become 

final but is currently under appellate review, I could not in any event fairly 

give any weight to that decision. 

For similar reasons, I can give no weight to the arbitrator's decision. 

It is clear that his decision hinged upon a finding that Boone had failed 

to follow procedures outlined in the collective bargaining agreement to first 

contact the safety committeeman before refusing to perform the claimed 

hazardous work. -There is no such requirement in the Act and proceedings 

under the Act are not controlled by any collective bargaining agreement. 

Pasula, supra. Thus, while the arbitrator's decision may very well have 

been correct under that agreement, it is of no import to the case before 

me. The arbitrator's decision in Pasula was rejected by the Commission 

under essentially the same factual setting. See Pasula at p. 2796. 

Under all the circumstances, I conclude that Boone was indeed engaging 

in an activity protected under section 105(c)(l) in refusing to operate the 

No. 5 Caterpillar truck on May 28, 1980. Since Boone was admittedly discharged solely for his refusal to operate the truck, it follows that his 

discharge was solely motivated by his protected activity. I therefore find 

that Boone was discharged in violation of section 105(c)(l) of the Act. 

ORDER 

The parties are directed to consult and seek to stipulate as to the 

specific damages resulting from the discharge of Gerald D. Boone found 

unlawful in these proceedings and to report to me in wr ting on or before 

July 30, 1981, the results of such consultat"ons. • 

GayJlM 

---=--r-----~-----------A minis~rative L0udge 

fn. 3 (continued) 

relevant part, are not congruent with those o section 105(c), particularly 

as the Federal law has been interpreted in Pasula. Since the criteria for 

finding unlawful discrimination under the State law is much more limited in 

scope, and the statute does not on its face cover the factual situation presented in this case, the decision of the State Board denying Boone's claim 

of discrimination under that law should be entitled to no weight in this 

case. 

"(a) No person shall discharge or in any other way discriminate against 

or cause to be discharged or discriminated against any miner or any authorized 

representative of miners by reason of the fact that he believes or knows that 

such miner or representative (1) has notified the Director [of the West Virgini; 

Department of Mines]; his authorized representative, or an operator, directly 

or indirectly, of any alleged violation or danger, (2) has filed, instituted 

or caused to be filed or instituted any proceeding under this law, or -(3) has 

testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this law. No miner or representative shall be discharged or in any other way discriminated against or 

caused to be discriminated against because a miner or representative has 

:lone (1), (2) or (3) above." 

1756 
Distribution: 

Daniel F. Hedges, Esq., Appalachian Research and Defense Fund, Inc., 

1116-B Kanawha Boulevard, East Charleston, WV 25301 (Certified Mail) 

Frederick W. Adkins, Esq., Cline, McAfee and Adkins, 1022 Park Avenue, 

NW., Norton, VA 24273 

1757 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 10, 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

CIVIL PENALTY PROCEEDING 

Docket No. VINC 79-154-PM 

Petitioner A.C. No. 20-00044-05001 

v. 

CEMENT DIVISION, NATIONAL 

GYPSUM COMPANY, 

Respondent 

Alpena Stone Quarry and 

Mill 

Appearances: 

Before: 

DECISION ON REMAND 

William B. Moran, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, 

Virginia, for Petitioner; 

Anthony J. Thompson, Esq., and Charles E. 

Sliter, Esq., Hamel, Park, McCabe and 

Saunders, Washington, D.C. for Respondent 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

On April 7, 1981, the Commission remanded this case for 

a determination as to which of the violations found to have 

occurred were of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine 

safety or health hazard. The determination that the violations occurred and the amount of the penalties assessed are 

no longer issues in this proceeding. 

Commission review was not sought concerning my findings 

on citations No. 288721 and 288722. Consequently, these are 

not before me on remand. 

Following remand, both parties have filed briefs set-11 ting forth their positions on the issues of fact and law. 

Based on their arguments and on my review of the record, I 

make the following decision. 

!/ The United Mine Workers of America sought party status 

on May 6, 1981. I denied the motion to intervene. On 

review, my order was affirmed by the Commission. Leave to 

file an amicus brief was granted by the Commission, but 

Counsel for the UMWA stated she did not wish to file such a 

brief. 

1758 
ISSUES 

The issues with respect to each citation are whether 

the inspector found it to be significant and substantial, 

and whether the evidence supports his findings. 

The Secretary concedes that citations No. 288294, 

288295, 288298, and 288567 are not significant and substantial violations, under the Commission standard. Based 

on the inspector's testimony, I agree and so find. 

COMMISSION STANDARD 

The Commission laid down the following test to determine whether a violation is "significant and substantial": 

"based upon the particular facts surrounding the violation, 

there exists a reasonable likelihood that the hazard contributed to will result in an injury of a reasonably serious 

nature." 3 FMSHRC at 825. The Commission criticized the 

"mechanical approach" followed by MSHA and stated that "the 

inspector's independent judgment" in making significant and 

substantial findings "should not be circumvented." Findings 

that a violation is significant and substantial are important in that they may result in withdrawal orders under 

section 104(d) because of an operator's unwarrantable failure to comply, or under section 104(e) if they are part of a 

pattern of violations. · 

The Commission's test has two aspects: the probability 

of resulting injury, and the seriousness of resulting injury. 

The Commission gave special weight to the judgment of the 

Inspector. 

CITATION 288296 

This citation charged that an electrical junction box 

was not covered by a plate, in violation of 30 CFR 56.12-32. 

The injury which might result is electrical shock to an 

employee coming in contact with the box. This is an injury 

of a reasonably serious nature. However, the box was 

located at the end of a walkway and, according to the 

inspector's statement, the occurrence of an injury was 

improbable because the only employees who would be in the 

area were maintenance and repair personnel who would deenergize the equipment before working on it. Therefore, I 

find there was not a reasonable likelihood that an injury 

would occur, and despite my previous finding that the violation was serious, I now conclude that it was not significant and substantial. 

1759 
CITATION 288297 

This citation was issued because of spillage of limestone up to 24 inches deep on an elevated walkway in violation of 30 CFR 56.11-1. Should an employee trip on -the 

spillage, he could fall over a low railing to the ground, 30 

or 40 feet below. This obviously would cause an injury of a 

reasonably serious nature. Though the walkway was infrequently used, it was a walkway and there was a reasonable 

likelihood that the hazard would result in injury to an 

employee using the walkway. The walkway was out of doors 

and the elements added to the likelihood of injury. The 

violation was significant and substantial. 

CITATION 288826 

This citation charges a violation of 30 CFR 56.12-34 in 

failing to provide a guard for a light bulb located over a 

table saw in the carpenter's shop. The likelihood of an 

injury was slight, and any injury occurring would not be 

reasonably serious. Therefore, the violation was not significant and substantial. 

CITATION 288566 

This citation was issued for an accumulation of debris 

on a walkway next to a conveyor belt in violation of 30 CFR 

56.11-1. This violation is similar to the one described in 

Citation No. 288297. The difference is that the walkway 

here is about 10 feet off the ground. I find that there is 

a reasonable likelihood that the hazard (a fall) would 

result in injury of a reasonably serious nature. The violation was significant and substantial. 

CITATION 288827 

This citation was issued because valves on oxygen and 

acetelyne tanks were left open while the tanks were not in 

use in violation of 30 CFR 56.4-33. There were sources of 

ignition in the area which could result in an explosion and 

serious injury. Whether the evidence shows a reasonable 

likelihood of an explosion is more difficult. The inspector's statement indicates that the probability of an explosion was slight unless a hose began to leak or the tanks 

were upset. No leaks were found. On the other hand, the 

inspector testified that leaving the valves open when not in 

use was a dangerous practice, and that an accident was not 

unlikely. I conclude on the basis of the entire record that 

there was a reasonable likelihood that a serious injury 

would result from the violation. Therefore, the violation 

was significant and substantial. 

1760 
ORDER 

The parties did not challenge 

my decision of December- 26, 1979. 

ties ordered paid in that decision 

are ordered paid immediately. 

my penalty assessments in 

Therefore, if the penalhave not been paid, they 

·;tvvrtd A1J rv rivi d._ 

,/' James A. Broderick 

Chief Administrative Law Judge 

Distribution: By certified mail. 

Anthony J. Thompson, Esq. and Charles E. Sliter, Esq., 

Counsel for Cement Division, National Gypsum Company, Hamel, 

Park, McCabe & Saunders, 1776 F ~treet, N.W., Washington, DC 

20006 

William B. Moran, Trial Attorney, and Thomas A. Mascolino, 

Counsel, Trial Litigation, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

Assessment Office, MSHA, U.S. Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

1761 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 O 1981 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 80-312 

Petitioner A.C. No. 15-07082-03030 

v. 

LESLIE COAL MINING COMPANY, 

Respondent 

Docket No. KENT 80-313 

A.C. No. 15-07082-03032 

Appearances: 

Before: 

Leslie Mine 

DECISION 

George Drumming, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, for 

Petitioner; 

John M. Stephens, Esq., Stephens, Combs and Page, 

Pikeville, Kentucky, for Respondent. 

Judge Melick 

These consolidated cases are before me upon petitions for assessment of 

civil penalties under section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 810 et seq., the "Act," alleging violations of 

health and safety regulations. The general issue is whether Respondent has 

violated the cited regulations and, if so, the appropriabe civil penalties 

to be assessed. An evidentiary hearing was held in Prestonburg, Kentucky, 

on March 17, 1981. At that hearing, the parties filed a motion to settle 

all but one of the citations in these cases, which, with the exception of 

one citation, was approved. The latter citation was vacated and an evidentiary hearing was held as to the remaining citation. Evidence was submitted at hearing under se~tion llO(i) of the Act regarding the criteria 

for determining the amount'of penalty. This evidence was considered in 

reaching the penalty amounts approved herein. 

Contested Citation: Docket No. KENT 80-313 

Citation No. 724330, as amended at hearing, purports to charge a violation of the mandatory standard at 30 C.F.R. § 77.205(d). That standard provides as follows: "Regularly used travelways shall be sanded, salted, or 

cleared of snow and ice as soon as practicable." More specifically, the 

1762 
citation alleges as follows: "A safe means of access was not maintained 

where the employees are required to travel from the parking lot to the bathhouse in that ice from paper thick to approximately three inches in depth 

was present along the walkway." ]:_/ 

There is no dispute that when MSHA inspector Billy Tackett issued this 

citation on March 4, 1980, at 9:30 a.m., there was indeed some ice or "frozen 

moisture" as characterized by the operator, in the travelway leading from the 

mine parking lot to the bathhouse. It is not questioned that the miners regularly traveled this route. Tackett estimated that 99 percent of the parking 

lot itself was also covered with this substance. This too is not disputed by 

the operator. Tackett admitted, however, that he never determined how long 

these conditions had existed nor when the area had last been cleaned up. 

Tackett could not even state when it had last snowed and could only guess 

how long the ice had been there. He estimated that the ice could have been 

removed in 3 or 4 hours and he actually gave the operator 4 and 1/2 hours to 

complete the removal. 

According to the stipulated testimony of mine official Bill Wooten, it 

had snowed the day before the citation was issued and that snow had been 

cleared off the parking lot by a front-end loader. Admittedly, however, a 

residue of frozen moisture remained at the time the citation was issued. 

Within this framework of evidence, it is apparent that indeed there 

was "frozen moisture" (ice) on the employee parking lot and travelway to the 

employee bathhouse. The issue to be resolved then is whether that substance 

had been cleared "as soon as practicable." In order to make a determination 

of whether the operator failed to clear the ice here at issue within that 

time frame necessarily requires knowledge of when that ice first existed. 

No unambiguous evidence has been presented to establish that fact and therefore MSHA has not established an essential element of proof that the standard at 30 C.F.R. § 77.205(d) has been violated. Accordingly, the citation 

is vacated. 

Motion for Approval of Settlement 

A. Docket No. KENT 80-312 

Proposals for penalties were first submitted in this case for five citations. At hearing, it was represented by MSHA that Citation No. 9927173 had 

been erroneously included in its petition inasmuch as that citation had been 

1/ I observe that the citation, as amended, failed to allege that the cited 

travelway was not sanded, salted, or cleared of snow and ice "as soon as 

practicable"--an essential allegation to establishing a violation of section 

77.205(d). The operator did not claim that it was prejudiced in this regard, 

however, and such a technical defect under the circumstances is not sufficient 

to warrant dismissal. Secretary v. Ralph Foster and Sons, 3 FMSHRC (May 12, 

1981). 

1763 
previously vacated. Accordingly, the citation is withdrawn from the case and 

dismissed. 

Citation Nos. 9927138 and 9927211 allege violations of the standard at 

30 C.F.R. § 70.250. That standard sets forth the time periods within which 

respirable dust samples must be taken from individual miners. Inasmuch as 

these citations alleged only that the respirable dust samples had not been 

received by the MSHA office, it is apparent that they did not properly 

charge a violation of the standard cited. MSHA conceded, moreover, that 

its evidence would not support the violations alleged. Accordingly, 

counsel for 11SHA moved to vacate the citations. Under the circumstances, 

I approve the motion and vacate those citations. 

Citation No. 713638 alleges a violation of the standard at 30 C.F.R. 

§ 75.400. That standard provides as follows: "Coal dust, including float 

coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein." While MSHAmoved for 

approval of a 50-percent reduction in the {nitially proposed penalty of 

$130, it conceded that it had no evidence to support a finding that the 

cited materials were indeed "combustible." Those allegedly "combustible" 

materials consisted of soda pop cans, empty hydraulic fluid cans, and 

apparently some sandwich wrappers the exact nature and quantity of which 

no one could recall. Under the circumstances, I find insufficient evidence that "combustible materials" were "permitted to accumulate" in active 

workings of the mine. Within the framework of the Commission decision in 

Secretary v. Co-Op Mining Company, 2 FMSHRC 3475 (1980), I cannot accept the 

.proposed settlement. Since MSHA conceded that it could not produce this 

critical evidence even at hearing, I vacate the citation. 

Citation No. 717362 alleges a violation of the standard at 30 C.F.R. 

§ 70.lOO(b). The parties propose a settlement for $60 as initially assessed. 

It is undisputed that the respirable dust concentration was in fact greater 

than allowed by the cited standard in effect at the time the citation was 

issued. The sampling revealed a concentration of 2.1 milligrams of respirable dust per cubic meter of air, whereas the standard then required that 

exposure be limited to 2.0 milligrams of respirable dust per cubic meter 

of air. The operator had no history of this type of violation and had no 

means of obtaining and testing dust samples on its own. Under the circumstances, I find that the proposed settlement is appropriate. 

B. Docket No. KENT 80-313 

Citation No. 724334 alleges a violation of the standard at 30 C.F.R. 

§ 75.1003(c). That standard requires that trolley wires and trolley feeder 

wires be guarded adequately at mantrip stations. The parties propose a reduction in penalty from $98 to $49 because the hazard was in actu~lity not as 

serious as first .thought. The subject trolley wire was on the far side of 

the mantrip against the rib in an area in which miners would not ordinarily 

1764 
be exposed. In addition, it was subsequently determined that the plastic 

insulation that ordinarily guarded the trolley wire had shrunk because of 

the unusually cold weather at the time, thereby causing the cited exposure. 

Since the wire was only from 5 and 1/2 to 6 feet above floor level and could 

have caused death by electrocution upon contact, there was indeed a potential 

serious hazard. Under the circumstances, I find that the proposed settlement 

is appropriate. 

ORDER 

Docket No. KENT 80-312 

Citation Nos. 9927173, 9927138, 9927211, and 713638 are VACATED. The 

Leslie Coal Mining Company is ORDERED to pay a penalty of $60 within 30 days 

of the date of this decision for the violation under Citation No. 717362. 

Docket No. KENT 80-313 

Citation No. 724330 is VACATED. The Leslie Coal Mining Company is 

ORDERED to pay a penalty of $49 within 30 days of the d te of this decision 

for the violation under Citation No. 724334. 

G ry r):ielick 

dmin1strative 

Distribution: Ii 1 

~ George Drumming, Jr., Esq., Office of ~he Solicitor, U.S. Department 

of Labor, 801 Br9adway, Room 280, Na 1hville, TN 37203 (Certified 

Mail) 

John M. Stephens, Esq., Stephens, Combs and Page, P.O. Drawer 31, 

Pikeville, KY 41501 (Certified Mail) 

1765 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 3 \981 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 80-330 

Assessment Control 

No. 15-10872-03011 

v. 

No. 8 Mine 

SOUTH EAST COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

George Drumming, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

James W. Craft, Esq., Polly, Craft, Asher & Smallwood, 

Whitesburg, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued March 12, 1981, a hearing in the 

above-entitled proceeding was held on May 7, 1981, in Prestonsburg, Kentucky, 

under section 105 (d) of the Federal Hine Safety and Health Act of 1977, 

30 u.s.c. § 815(d). 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced b~low (Tr. 98-105): 

This hearing involves a Proposal for Assessment of Civil Penalty 

filed on September 8, 1980, in Docket No. KENT 80-330 by the Secretary 

of Labor seeking to have a civil penalty assessed for an alleged violation of 30 C.F.R. § 75.1701 by South East Coal Company. 

In a civil penalty proceeding, the issues are whether a violation of 

a mandatory health or safety standard occurred and, if so, what penalty 

should be assessed, based on the six criteria set forth in section llO(i) 

of the Federal Mine Safety and Health Act of 1977. 

I shall make some findings of fact on which my decision will be 

based. 

1. On June 19, 1980, Inspector Cecil Davis went to the No. 8 

Mine of South East Coal Company and made an inspection of the mine, 

during which he wrote Citation No. 720883, alleging a violation of 

section 75.1701. His citation stated that "two places have been 

advanced to within about 60 feet of an abandoned inaccessible area 

of an adjacent mine in the 001-0 underground working section and test 

boreholes were not being drilled." 

Citation No. 720883 was terminated by a subsequent action 

sheet issued on June 20, 1980, which stated that test boreholes were 

being drilled in advance of the working section on the 001 section 

to insure that the continuous-mining machine did not cut into abandoned 

areas unexpectedly. That termination sheet was written by a different 

inspector from the one who wrote the citation. 

1766 
2. At the hearing, Exhibit A was introduced. It is a nap of 

the No. 8 Mine as well as a map that shows the Smith-Elkhorn Mine 

which was adjacent to the No. 8 Mine. The testimony of the inspector 

showed that several months prior to June 19, when Citation No. 720883 

was written, the No. 8 Mine had cut into the Smith-Elkhorn Mine in 

what is referred to in this case as the first right section, and also 

in the second right section. 

3. The testimony of Mr. Holbrook, who was the foreman on the 

night shift in the No. 8 Mine, indicated that boreholes had been drilled 

before the company penetrated the Smith-Elkhorn Mine which is adjacent 

to the No. 8 Mine. At the time those boreholes were drilled, some 

water was encountered 18 inches from the roof, and a pump was installed and the water was pumped out of the Smith-Elkhorn Mine through 

the boreholes, and the water then was pumped farther to the outside of 

the mine. After the water was cleared out, and other tests were made 

to make sure that it was safe to do so, the company mined into the 

Smith-Elkhorn, the adjacent mine, and through those holes did inspections. Those holes, as I recall, were 10 feet by 5 feet in size. 

Respondent thereafter treated the Smith-Elkhorn Mine as a part of its 

No. 8 Mine, and began to ventilate it, and Hr. Holbrook made trips clear 

around behind and to the side of the first right and second right sections where the original places had been cut through into the SmithElkhorn Mine. 

Mr. Holbrook testified that he went to the place toward which 

they began to cut a room and inspected the adjacent mine, which had been 

made a part of the No. 8 Mine, at least twice a week, for hazardous 

conditions, and he states that no hazardous conditions existed, either 

in the form of methane or lack of oxygen or water. 

4. The situation which prevailed on June 19, 1980, when Inspector 

Davis wrote Citation No. 720883 was that respondent's men were advancing two rooms to the left of the second right section, and it was 

the opinion of respondent's management at that time that they were advancing toward a part of their own mine which, under section 75.1701 

wc:mld be considered "abandoned areas" in the mine, meaning the No. 8 

Mine. Therefore, it was their contention that they were entitled to 

advance to within 50 feet of the abandoned portion under the first part 

of section 75.1701 before they had to drill test boreholes. 

5. The inspector, in his testimony, stated that he believed the 

company had violated section 75.1701 because they were "within 200 feet 

of any other abandoned areas of the mine which cannot be inspected and 

which may contain dangerous accumulations of water or gas." That is a 

portion of section 75.1701. l\Then it was pointed out to the inspector 

that the testimony indicated that the room which had been advanced was 

not an "other abandoned area", but was really in the No. 8 Mine, the 

inspector said that if respondent had not violated that provision, then 

he would say that respondent had violated the next provision in section 

75.1701 which is, "or within 200 feet of any workings of an adjacent 

mine." 

1767 
I believe that those are the basic facts which the testimony and 

the exhibits show. The problem then becomes whether the facts support 

a finding that a violation of section 75.1701 existed. That section 

reads as follows: 

"Whenever any working place approaches within 50 feet of 

abandoned areas in the mine as shown by surveys made and certified by a registered engineer or surveyor, or within 200 feet of 

any other abandoned areas of the mine which cannot be inspected 

and which may contain dangerous accumulations of water or gas, 

or within 200 feet of any workings of an adjacent mine, a borehole 

or boreholes. shall be drilled to a distance of at least 20 feet 

in advance of the working face of such working place and shall 

be continually maintained to a distance of at least 10 feet in 

advance of the advancing working face." 

There are other provisions in that section but they have to do with 

the manner in which boreholes will be made, and not with whether there 

is a necessity that they be drilled. 

It so happens that the testimony shows that the inspector who wrote 

Citation No. 720883 relied on a certified map to determine that the company was cutting to within 60 feet of "an abandoned inaccessible area", 

as he referred to it in his citation, so that the first part of the section has been satisfied in that the company was relying on certified maps 

and the inspector was relying on certified maps for the purpose of determining how close they were to an abandoned area in the mine~ The testimony 

in this case shows that if a company does cut into an abandoned mine, which 

it did in this case, and makes that abandoned mine a part of its own mine 

by commencing a ventilation system in the abandoned mine and also by making 

inspections in the adjacent mine, then it is considered to be the company's 

mine that is then being actively worked. Therefore, it would seem that 

respondent was correct in arguing that at the time the inspector wrote 

Citation No. 720883, the company was entitled to cut to within 50 feet of 

the abandoned area before it had to drill boreholes. 

The inspector's belief that the company had violated the second 

portion of section 75.1701 was based on language in his citation to the effect 

that the company was within "60 feet of an abandoned inaccessible area of an 

adjacent mine". The testimony in this case shows that the company was not 

within 60 feet of "an abandoned inaccessible area of an adjacent mine". The 

inspector showed, by his more precise evaluation of Exhibit A in this case, 

which was made after there had been further mining and which was not available to him at the time he wrote the citation, that the place to which they 

had progressed at the time he wrote the citation was actually 100 feet from 

the mine which he referred to as abandoned and inaccessible. 

The inspector, of course, was without the testimony of Mr. Holbrook 

in this case because Mr. Holbrook testified in this case that the area 

toward which they were mining was not abandoned and inaccessible in the 

sense that those terms are used in section 75.1701 because that area was 

being ventilated and was being inspected by Hr. Holbrook at least twice a 

week. So, it was not inaccessible, and it is not abandoned in the sense 

that that term is used in section 75.1701. 

1768 
The other provision of section 75.1701 which is at issue here would 

be whether respondent had progressed to within 200 feet of any workings 

of an adjacent mine, and the facts in this case show that that portion 

of the section doesn't apply either because this was not, on June 19, 

1980, an adjacent mine, because it had already been incorporated as part 

of the No. 8 Mine at that time, insofar as respondent was concerned. 

Therefore, I find on the facts in this case that no violation of 

section 75.1701 was proven. 

Now, I am aware that the Commission has said in many cases that the 

regulations are to be interpreted in the manner which will be the most 

likely to prevent accidents and injuries and the Commission has very 

recently so ruled in Secretary of Labor v. Ideal Industries, Cement 

Division. 3 FMSHRC 843 (1981). In that case, the Commission interpreted 

a section so as to require a company to correct equipment before it is 

even put in an area where it might be used, if it's defective in any way, 

even if the equipment has not been used at the time that it is examined 

by an inspector. The Commission said in that case that the primary goal 

of the Act is to prevent accidents; that an interpretation should be 

given to any regulations which would bring about safety and advance safety 

in the mines. 

The interpretation that I place on this section is not as strict an 

interpretation as the inspector gave it, but I believe that the facts in 

this case support my finding because the inspector did not have in his 

possession the facts which have been introduced in this case. When the 

inspector wrote Citation 720883, he did think that the company was progressing toward an abandoned inaccessible area when, in fact, that was not 

the case. The area toward which the company was advancing had been inspected, and was known not to have any hazardous conditions in it, and the 

company was relying on certified maps and the foreman who testified here 

today said that he had made the determination that he was not within 

50 feet of the abandoned area, if it can be called that, and therefore, 

that he did hot feel that he had to drill boreholes. The testimony in 

this case shows that he was, in fact, not within 50 feet of the other 

area, and therefore there simply are not facts in this case to support a 

requirement that boreholes should have been drilled under the second two 

provisions of section 75.1701. 

After I received the transcript in this proceeding, I was reminded that 

counsel for the Secretary had taken the position at the hearing that he did 

not wish to file a posthearing brief and that he would "just stand on the 

testimony that has been provided to the judge" (Tr. 95). If the Secretary 

should decide to file a petition for discretionary review, section 113(d)(2) 

(A)(iii) of the Act provides that "[e]xcept for good cause shown, no assignment of error by any party shall rely on any question of fact or law upon 

which the administrative law judge had not been afforded an opportunity to 

pass." The Secretary's position before me was so broad that he could argue 

anything before the Commission and contend that I had had an opportunity to 

pass upon it. My bench decision did not discuss the unusual circumstances 

under which Citation No. 720883 was issued. If a petition for discretionary 

review should be filed, the Commission may well wish that I had explained my 

decision in light of some of the arguments which could be raised before the 

Commission. 

1769 
The circumstances leading up to the writing of Citation No. 720883 began 

with an incident which occurred on or about June 18, 1980, when the men working on the 001 Section of respondent's No. 8 Mine on the night shift (4 p.m.-

to-midnight) refused to work unless boreholes were drilled in advance of the 

place where they were working (Tr. 80; 87). The section foreman, Mr. Charles 

Holbrook, who testified for respondent in this proceeding, refused to drill 

boreholes because he had concluded from an examination of certified maps that 

he had not advanced to within 50 feet of an abandoned area (Tr. 86). He had 

also personally inspected the abandoned area toward which they were advancing 

and knew that it did not contain any dangerous accumulations of gas or water 

or air devoid of oxygen (Tr. 74-76; 85). Nevertheless, someone reported the 

matter to MSHA (Tr. 90) and an inspector named Carlos Smith came to the mine 

on the night of June 18, 1980 (Tr. 68; 79-80; 85). After inspecting the mine, 

Inspector Smith advised Mr. Holbrook and other personnel at the mine that they 

could make one more cut of coal in each room before they were close enough to 

the so-called abandoned area to require the drilling of boreholes (Tr. 82-83; 

89-90). 

Inspector Smith reported to his supervisor, Mr. Charles Miller, that he 

had examined the mine to determine whether a violation of section 75.1701 had 

occurred (Tr. 21). Mr. Miller wanted to follow up on Inspector Smith's report. 

Therefore, Mr. Miller and Inspector Cecil Davis, the inspector who wrote 

Citation No. 720883 here involved, drove to respondent's No. 8 Mine during the 

day shift on June 19, 1980 (Tr. 29). They examined the 001 Section. Then 

they reviewed respondent's certified maps showing the rooms being advanced 

and the so-called abandoned areas in the Smith-Elkhorn Mine, which had been 

integrated at that time with the No. 8 Mine, and Inspector Davis wrote Citation No. 720883 alleging that a violation of sect~on 75.1701 had occurred 

because respondent was within 60 feet of an adjacent mine (Tr. 9-11; 22; 25; 

34; 66). 

The record also shows that some person or persons have filed a discrimination case against respondent under section 105(c) of the Act because of some 

of the events which occurred about June 18, 1980, when the men on Mr. Holbrook's 

night shift refused to work because boreholes were not being drilled (Tr. 91-93). 

Additional matters mentioned by Inspector Davis include his statement 

that if he had seen anyone walking around in the Smith-Elkhorn Hine, which had 

been merged with the No. 8 Mine, he would have issued an imminent-danger order 

because, in his opinion, the roof had not been supported at the point where 

a person would have to enter the Smith-Elkhorn Mine from the No. 8 Mine (Tr. 28). 

Also, although respondent's map (Exhibit A) in this proceeding shows that 

respondent is ventilating the Smith-Elkhorn Mine now that it has become a part 

of its No. 8 Mine, the inspector took the position that respondent may not 

be properly ventilating the Smith-Elkhorn Hine and that citations, not before 

me in this case, have been written with respect to respondent's alleged failure to get MSHA's approval for the way respondent is ventilating the SmithElkhorn Mine and for the failure to install roof bolts in the first and second 

right sections where the Smith-Elkhorn Mine was first penetrated about February 

of 1980 (Tr. 42-43; 45; 55; 60; 62-63; 65). 

1770 
The fact that the miners on the second shift refused to work because 

boreholes were not being drilled, the fact that respondent may not have 

been ventilating the Smith-Elkhorn Mine properly, and the fact that respondent may not have installed roof bolts at the points where the first and 

second right sections penetrated the Smith-Elkhorn Mine all trouble me with 

respect to whether Mr. Holbrook should have gone into the Smith-Elkhorn Mine 

and whether the Smith-Elkhorn Mine was being ventilated properly on June 19, 

1980, when Citation No. 720883 was written. On the other hand, the inspector 

told me that the alleged issues as to respondent's roof bolting and ventilation 

of the Smith-Elkhorn Mine were not before me and that he did not think that 

I had to consider those matters in determining whether there was a violation 

of section 75.1701 (Tr. 45; 55). 

Anyone who reads the first sentence of section 75.1701, quoted in my 

bench decision, will see that the requirement for the drilling of boreholes 

becomes increasingly necessary, depending upon the amount of information one 

possesses with respect to the "abandoned areas" toward which one is advancing. 

If one has certified maps showing the location of the abandoned areas, he is 

entitled, under the first part of section 75.1701, to advance within 50 feet 

of the "abandoned areas" before he has to begin drilling boreholes. The 

next step in the requirements of section 75.1701 refers to "other abandoned 

areas", meaning those which are not shown on certified maps. If one advances 

toward abandoned areas not shown on certified maps, he must start drilling 

boreholes when he is within 200 feet of such areas because he has less knowledge as to their exact location than he has when certified maps are available 

showing the location of such abandoned areas. 

In my bench decision, I referred to "abandoned areas" as that term is 

used in section 75.1701. That reference was based on the definition of 

"abandoned areas" given in section 75.2(h) which states that "'[a]bandoned 

areas' means sections, panels, and other areas that are not ventilated and 

examined in the manner required for working places under Subpart D of this 

Part 75." In my bench decision, I indicated that it was doubtful if the 

area toward which the rooms were bing driven constituted "abandoned areas" 

because they had been made a part of respondent's No. 8 Mine and were being 

ventilated and inspected. The question of whether respondent was ventilating 

and inspecting the Smith-Elkhorn Mine sufficiently to eliminate the SmithElkhorn Mine from the category of "abandoned areas" was not considered to 

be important in my bench decision because section 75.1701 does not require 

an operator to drill boreholes when approaching admittedly "abandoned areas", 

as defined in section 75.2(h), until an operator is within 50 feet of those 

abandoned areas as shown on certified maps. 

It should be noted that the inspector conceded several times in his 

testimony that respondent had made the Smith-Elkhorn Mine a part of its No. 8 

Mine (Tr. 23-24; 36; 57-58; 63). The inspector cannot state that the SmithElkhorn Mine is a part of respondent's No. 8 Mine and simultaneously argue 

that the Smith-Elkhorn Mine is an "adjacent mine" for the purpose of claiming 

that respondent had violated section 75.1701 by advancing to "within 200 feet 

of any workings of an adjacent mine" (Tr. 48). 

In short, while I am concerned about the probable hazards which might 

have been associated with respondent's making the Smith-Elkhorn Mine a part 

1771 
of its No. 8 Hine, I do not think that I can ignore the fact that the "abandoned areas" were shown on "surveys made and certified by a registered engineer" (Tr. 25). Since the "abandoned areas" toward which respondent was 

advancing were shown on a certified mine map, I cannot find that respondent 

was in error in relying on its certified maps and maintaining that it was 

entitled to approach within 50 feet of the "abandoned areas" before it began 

to drill boreholes. As to the inspector's claim that respondent's management 

didn't really know where the Smith-Elkhorn lfine was located (Tr. 59), the 

record shows that respondent's vice-president was the superintendent of the 

Smith-Elkhorn Hine when it was developed (Tr. 76; 97) and that Inspector Davis 

was told by respondent that the engineer who prepared the map for the SmithElkhorn ~-fine was the same engineer who prepared responde~t 's map (Tr. 62). 

For the foregoing reasons, I believe that my bench decision reached the 

proper result when all of the evidence in this proceeding is considered. 

Therefore, my bench decision is affirmed. 

WHEREFORE, it is ordered: 

The Proposal for Assessment of Civil Penalty filed on September 8, 1980, 

in Docket No. KENT 80-330 is dismissed because no violation of section 75.1701, 

as alleged in Citation No. 720883 dated June 19, 1980, was proven. 

~~ C. cJ:r;J:!',u ~-- Richard C. Steffey ·7r-{7-

Administrative Law Judge 

(Phone: 703-756-6225) 

Distribution: 

George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

James W. Craft, Esq., Attorney for South East Coal Company, Polly, 

Craft, Asher & Smallwood, P.O. Box 786, Whitesburg, KY 41858 (Certified Mail) 

1772 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LLOYD BRAZELL, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 3 \981 

Complainant 

Complaint of Dischar~e, 

Discrimination, or Interference 

Docket No. KENT 81-46-D 

ISLAt\ID. CREEK COAL COMPANY, 

Respondent 

Hamilton No. 1 Hine 

Appearances: 

Before: 

DECISION 

Jerry W. Nall, Esq., Owensboro, Kentucky, for Complainant; 

William R. Whitledge, Esq., Logan, Morton & Whitledge, 

lladisonville, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued February 26, 1931, a hearing in 

the above-entitled proceeding was held on April 14 and 15, 1981, in Madisonville, Kentucky, under section 105(c)(3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(c)(3). 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced below (Tr. 553-591): 

This proceeding involves a complaint of. discharge, discrimination, 

or interference filed on December 5, 1980, in Docket No. KENT 81-46-D 

by complainant, Lloyd Brazell, pursuant to section 105(c)(3) of the 

Federal Mine Safety and Health Act of 1977, alleging that respondent, 

Island Creek Coal Company, discharged Brazell in violation of Section 

105(c)(l) of the Act because he had notified respondent's management 

of dangers relative to safety violations in the coal mine where complainant was employed. 

I shall make some findings of fact on which my decision will be 

based, and these will be given in enumerated paragraphs. 

1. Lloyd Ilrazell, the complainant in this proceeding, was born 

on November 5, 1924, and is 56 years old. He has a wife and a son and 

daughter who are 29 and 34 years old, respectively. Mr. Brazell began 

working for Island Creek on June 15, 1970, at Island Creek's Hamilton 

No. 1 North Mine. He began as a member of the union and performed 

various types of work until December 6, 1974, when he was promoted 

to a management position. Re first supervised a working section, then 

became what he called an assistant mine foreman on the 4 p.m.-to-12 

midnight shift. Finally, he was a belt foreman on the 12 midnight-to8 a.m. shift. 

2. On Friday, May 30, 1980, Brazell was asked to see James 

Jennings, the superintendent of Hamilton No. 1 North Mine. Brazell 

1773 
was told that he was being laid off because Jennings had been ordered 

to "cut the fat." Jennings stated that he did not like to play God 

but he had to reduce personnel. Brazell was laid off, effective that 

day, and the period of termination was indefinite. 

3. Brazell filed on August 5, 1980, a discrimination complaint 

with the Mine Safety and Health Administration. That complaint is 

Exhibit A in this proceeding. On the last page of the complaint, 

Brazell suggests 7 occurrences which contributed to Brazell's termination. Brazell received a letter from HSHA dated November 10, 1980, 

stating that MSHA had concluded, on the basis of its investigation 

of his complaint, that no violation of section lOS(c) had occurred. 

4. Brazell testified at the hearing that he had been laid off 

for the reasons given in his complaint filed with MSHA, and for other 

matters in addition to those mentioned in his MSHA complaint. 

5. Item A in Brazell's complaint, or Exhibit A, is that known 

employees were cutting grounds out of trailing cables. Brazell maintained a watchful eye on the personnel in the mine and eventually concluded that an employee named Barkley was cutting out the grounds. One 

day Brazell found all men on his section gathered around a splice in 

the trailing cable to the coal drill. The coal drill wouldn't operate 

because of a malfunction of the cable from which ground wires had been 

cut. Brazell had the defective splice removed from the cable. Brazell 

wanted to show the splice to Jim Scott, the mine foreman, so he asked 

a qualified man named O'Leary to take charge of the section while 

Brazell took the splice to Scott. Scott was upset with Brazell for 

bringing the splice to him at that time. So, Brazell went to show 

the splice to the mine superintendent, Jim Jennings, who threatened to 

have Brazell's license revoked for leaving the section. After Brazell's 

shift ended that day, Brazell was called to the office where management 

advised Brazell that he had violated an Island Creek rule to the effect 

that section foremen are not permitted to go outby the belt tailpiece 

during their working shifts. Brazell had never heard of that rule 

before. In Jennings' testimony, he 'stated that he did not threaten to 

revoke Brazell's license, but that he did tell Brazell that he should 

not have left his section to bring the splice outside, and that if 

Brazell insisted on leaving to take the splice to MSHA before his shift 

was over, that he would be discharged. Jennings made it clear in his 

testimony that he had no objection to Brazell taking the splice to HSHA 

provided he did not do it during his working shift while leaving his 

crew of men unsupervised. It was Jennings' contention that Brazell did 

not inform Jennings that he had left O'Leary in charge of his section 

at the time he left with the splice. 

6. Brazell never did report to management that he believed 

Barkley was responsible for cutting grounds out of cables. One reason 

for Brazell's failure to report Barkley to management was that Barkley's 

father-in-law is a management official. Brazell said the incident regarding cutting of ground wires out of trailing cables occurred about 

4 years prior to Brazell's termination. 

1774 
7. Item B in Brazell's complaint, or Exhibit A, states that 

Island Creek should eliminate from its payroll the outlaw miners who 

were creating hazards and causing injuries and death at Hamilton No. 1 

Nine. Brazell defined outlaw miners as miners who won't produce coal 

and who don't want others to produce. ·The primary offender named as 

an outlaw miner was C. P. Parrish who was a loading-machine operator. 

Parrish wouldn't run the loader along the ribs to clean up loose coal 

and gave reasons, such as curtains being in the way, for not cleaning 

up the coal. Parrish was eventually killed by another miner named 

Buddy Higdon who was operating the loading machine and caught Parrish 

between the rib and the loader and crushed him to death. That incident 

occurred about 5 years prior to Brazell's termination. 

8. Item C in Brazell's complaint, or Exhibit A, is that some 

miners engaged in deliberate acts which created phony accidents and 

destroyed equipment. Brazell gave two examples of such activities, one 

occurring about 5-1/2 years before Brazell's termination and the other 

one occurring about 1-1/2 years later. The first incident was that 

Brazell was asked to supervise the No. 5 Unit because it had not been 

running coal very well. Brazell discovered a man named Coffman was 

deliberately causing tram mQtors to cease working. A total of 13 

motors were ruined before that practice was stopped. The second incident also involved Coffman. This time Coffman deliberately ran a 

loading machine under an overhang so that the materials would cover 

the loading machine. Two young shuttle car operators were alarmed by 

the fabricated roof fall and Coffman made it appear that Brazell was 

at fault. Brazell filled out an accident report at the end of the 

shift and told Coffman to go to the hospital for a physical examination. 

Brazell does not claim that he explained to ~anagement that the roof fall 

was deliberately contrived by Coffman. Jennings, in his testimony, 

stated that he had not been told about any phony accidents that had been 

caused in the mine and that an accident report should indicate the fact 

that there was a contrived accident, if that, in fact, was the cause of 

the accident. 

9. Item D in the MSHA complaint, or Exhibit A, is a suggestion 

that fire-bossing irregularities occurred over a long period of time 

and that they were condoned by management. Brazell explained the fireboss irregularities by stating that a illfl~A fire boss named Dan Brown 

was a safety committeeman who was able to bargain for things with 

management. Brazell said Brown wasn't preshifting on Sunday when he 

was supposed to preshift and that Brown didn't check 43 seals that he 

was supposed to check. His initials and date of examination did not 

appear at the seals. That could be a serious oversight if methane 

should seep through a seal. Brazell said that when he reported Brown's 

inadequate fire bossing to management, Brazell was told that they didn't 

question Brown because of his seniority, or that they were obligated to 

Brown in some unexplained way. This went on for 4 or 5 years, according 

to Brazell.. In his testimony, Jennings stated that a meeting was held 

involving the union and management in which Brown was told that he had 

to do thorough preshifts if he expected to continue in that position. 

1775 
10. Item E in the MSHA complaint, or Exhibit A, is about bomb 

threats as to which Brazell claims to have revealed the persons responsible and got the threats stopped. Brazell stated that he found 

out, by overhearing a conversation off of mine property, that a redheaded woman was making the bomb threats on behalf of a miner who 

wanted to have the mine shut down so that the miner wouldn't have to 

work. After Brazell advised Jennings of the names of the persons responsible for the bomb threats, they stopped occurring after the miner 

reported by Brazell to Jennings had left Island Creek's mine. In his 

testimony, Jennings denied that Brazell had ever given him the name 

of any person who had made bomb threats ·and that all he could elicit 

from Brazell were innuendos, about which he was unable to make any 

investigation. 

11. Item F in the MSHA complaint, or Exhibit A, refers to known 

false safety obfuscations. Brazell said that the aforesaid reference 

was to bomb threats and to occurrences such as Ken Hermes' objection 

to walking over or around tires leading to the mantrip. Brazell and Bill 

Green loaded out some of the tires just to get Hermes to move out of 

the way. Brazell said that the relationship of Hermes' objection to 

tires and Brazell's termination, was attributable to the fact that 

Hermes is still working for Island Creek while Brazell is gone. In his 

testimony, Jennings stated that materials did accumulate at times near 

the slope and that he would not challenge Brazell's statement that tires 

might have been in the miners' way at times, but he said that the tires 

were not there by design and that they were removed when it was brought 

to his attention. 

12. Item G, in the MSHA complaint, or Exhibit A, is a reference 

to known users and usage of drugs. Brazell told about two different 

miners who were allegedly using drugs, or carrying them. One was a 

miner named Heady who was a son of a mine official named Dorris Heady. 

On one occasion Brazell found Heady asleep on coal where equipment had 

to move coal. So, Brazell put Heady in the shack and told Heady to stay 

there. But the mine foreman and the mine superintendent advised Brazell 

that he should not have done that~ The next day Heady was alert and was 

operating a shuttle car when Grassiano, a mine official, complained to 

Brazell that Brazell should get Heady out of the mine. Brazell claims 

that he later heard that Heady had tried to run over Grassiano with the 

shuttle car Heady was driving. In his testimony, Jennings stated that 

Grassiano had never reported to him that anyone was trying to run him 

down and that he did not have any knowledge of that situation. The 

second miner on drugs referred to by Brazell was a man named Hike 

Albright who was once speeding in a railrunner and became upset when 

Brazell and his men blocked his path while they were doing work on the 

track. Brazell eventually arranged for a safety committee meeting regarding Albright, and Albright was put on medical leave and eventually 

overcame his drug problem. Jennings, in his testimony, corroborated 

the fact that Albright had been assisted in overcoming his drug problem, 

and that the man recently thanked Jennings for the role Island Creek 

had played in rehabilitating him. 

1776 
13. Brazell testified at the hearing about other matters which he 

thinks resulted in his being terminated. One area of discussion was 

Brazell's description of the slope belt which became Brazell's responsibility during the last position Brazell held prior to his termination. 

The slope was the most outby portion of the conveyor system. It was 

about 2,300 feet long and when Brazell started supervising it, there 

were 19 employees shoveling coal along it. There was such a strong 

velocity of air along the belt that large accumulations of coal dust 

and float coal dust would accumulate along it. Brazell said the accumulation constituted both a fire and explosion hazard. The coal accumulations were greatly reduced after Brazell found an escapeway that had 

been blocked by a roof fall. Hhen the escapeway was cleared out, intake 

air traveled a different route which reduced the velocity of air in the 

slope and permitted the slope belt to operate without as much danger or 

problems resulting from coal spillage. Brazell does not know if his 

finding the roof fall contributed in any way to his termination. Jennings, 

in his testimony, stated that the roof fall which Brazell discussed had 

already been brought to his attention and that the airway was cleaned 

out and that the traveling of the air was changed afterwards. Jennings 

denies that Brazell had any material part to do with the change in airflow or the cleaning out of the airway. 

14. Brazell testified that an MSHA inspector named Goldsberry cited 

Island Creek for failure to have a guard at a tailpiece at the bottom of 

the slope. After guards were made, they were installed under Brazell's 

supervision. Later Brazell heard that Jennings, the mine manager, was 

trying to obtain an affidavit from two men named Cooper and Underwood 

stating that a guard existed at the tailpiece. Brazell didn't know what 

this guard, or alleged effort to get affidavits contributed to his termination. Jennings testified that no citation was issued for failure to 

have a guard at the tailpiece but that an inspector did suggest that 

one be placed there, and that it took two efforts by management personnel before one was constructed which met the inspector's specifications. 

Jennings also denied that he had ever tried to get an affidavit from 

people that the guard existed before it became the subject of a suggestion by an inspector. Jennings further explained that it would have 

been unnecessary to get an affidavit; in any event, because the fact 

that no citations had been issued made it unnecessary for Island Creek 

to compile evidence concerning the mitigating factor of negligence. 

15. Brazell received some bonus checks but he did not like to get 

them because they appeared to be based on a combination of factors 

such as achievement of significant production as well as safety-related 

efforts. To show his disdain for such checks, Brazell once endorsed one 

for about $5.00 and gave it t:o Jerry Stewart when Jerry was on his way 

to buy drinks at a tavern. Brazell never did cash other bonus checks, 

he says. It is not clear how Br~zell's aversion for the bonus checks 

affected his termination. Jennings testified in connection with Exhibit 1 

in this proceeding, which shows that Brazell was paid a $50 bonus for 

safety-related activities, that a person getting a bonus check would 

know whether he was given it for achieving high production or for being 

safety-minded. 

1777 
16. Brazell testified that the South Mine sometimes had personnel 

who could be spared to help clean along the belt at the North Slope 

where Brazell worked as belt foreman on the 12-to-8 a.m. shift. The 

South Mine personnel were sent on the surface to the slope at the North 

Hine. They would look in the slope and then would remain outside or go 

back to the South Mine without doing any work. Eventually, Brazell was 

notified of the men's names so that he could be certain that miners from 

the South Mine actually came into the slope to work. Once a miner named 

Mudbone got sick and was picked up by an ambulance. Mudbone had the 

ambulance to take him to Hamilton No. 2 Mine instead of to a doctor or a 

hospital. Brazell never heard of Mudbone after that, and Brazell doesn't 

know what the sending of miners from the South Mine to work in the slope 

in the North Mine contributed to his termination. Jennings testified 

that he had never heard of Mudbone, but he did say that they had had 

some trouble getting the men from the South Mine to report for work and 

actually work in the slope at the North Mine, and that that problem was 

overcome after they started sending a supervisor along with the men to 

make sure that they stayed and worked in the slope. 

17. Brazell testified that new men are supposed to wear green hats 

to identify their lack of training and experience, but Brazell said that 

the experienced miners also started wearing green hats so that if they 

were inclined to avoid work they didn't like, they could plead ignorance 

or lack of experience. Brazell told about a young man named Buchanan 

who was only 20 years old, but who falsified the records so that it would 

make it appear that he had the experience of a 34-year-old man. The 

mine foreman, George Caudill, happened to use Buchanan on a special detail 

where his actual lack of training became obvious and caused the mine foreman 

to be extremely upset. Brazell did not say that anyone blamed him for 

the fact that Buchanan's records had been falsified or for the fact that 

experienced miners were wearing green hats. Consequently, there was no 

way to determine what these incidents had to do with Brazell's termination. Jennings, in his testimony, stated that he was unaware of a problem 

of a lot of miners who had experience wearing green hats to feign inexperience to avoid work. He pointed out, however, that any section foreman 

wor:th his salt would know which men on his shift i;..rere experienced miners 

and which ones were not. 

18. Brazell testified about a miner named Don Brown who came to 

work on Brazell's midnight-to-8 a.m. shift after having spent some time 

in prison. Don was the son of the fire boss mentioned in Finding No. 9 

above. Don had a habit of sleeping on the job and also had an affinity 

to be near a female miner named Smith. Brazell stated that Don Brown 

never molested the woman, but some of the miners criticized Brazell for 

not separating Don from the female miner. Eventually, the other miners 

stopped covering for Don's habit of sleeping on the job and Don was sent 

to another place after he had, on one occasion, been observed sleeping 

overly close to the haulage track. Brazell did not know how Don Brown's 

sleeping and attraction to the female miner contributed to his termination. 

Jennings, in his testimony, said that he was not aware of Don Brown's 

sleeping problem or of his affinity for the female miner. 

1778 
19. Brazell, on cross-examination, agreed that he and an hourly 

'employee named Powell had had a disagreement over the sharing of some 

welding equipment which Brazell needed for installing some pans along 

the belt conveyor. There were three oxygen cylinders and three acetylene 

cylinders and Powell was used to earning extra money for doing overtime in welding or cutting and he resented Brazell's use of the tanks 

because Powell sometimes had less oxygen and acetylene than he wanted. 

Powell started placing the cylinders where they didn't belong and 

that created a safety hazard, according to Brazell. This occurrence was 

put into the record by Island Creek's counsel, but the facts are as much 

in Brazell's favor as they are against him. So, it is not clear why it 

was made the subject of an inquiry. In Jennings testimony, he agreed 

that a conflict had occurred between Powell and Brazell concerning the 

use of the welding equipment and Jennings resolved the problem by having 

both men g1ven keys to the place where the oxysen and the acetylene cylinders were kept, with the understanding that each man was entitled to 

use the equipment. 

20. Four other managerial employees were laid off on ~lay 30, 1980, 

at the time Brazell was laid off. One was L. W. Harris, who was physically older than Brazell and had been there longer than Brazell. The 

other three men were named Ballard or Doc Horgan, James Scott, and Red 

Wilson. Those three were all younger than Brazell, but James Scott had 

worked for Island Creek longer than Brazell. Since Brazell was not the 

oldest, physically, or the one with the most seniority, his being included 

among those laid off, does not indicate any specific kind of discrimination. In his testimony, Jennings agreed that L .. w. Harris was not physically able to keep working as a section foreman. He also agreed that 

Ballard Morgan and James Scott had problems; and that all of the men 

would have been people whose absence from the work force would be advantageous to Island Creek. Jennings explained that Brzaell had been included ·among the five men from the North Hine who were laid off on Nay 30,· 

1980, because Brazell was unable to coordinate the work of a crew of men 

on a working section. The result was that Brazell's section produced 

less coal on an average basis than other sections produced. Jennings 

did not present any figures to support that contention, but he insisted 

that if the slope job [described in Finding No. 13, supra] had not been 

created for Brazell, Brazell would have been laid off as a section foreman at the time he was transferred to the job of supervising the slope 

belt and the bottom area. 

21. Brazell was laid off on Friday, May 30, 1980. He went back 

to see Island Creek's president, Pete Petzold, who was courteous but 

made no commitments. Then Stilley Mason wrote Brazell a letter explaining to Brazell how he could keep his insurance in effect. Also, Island 

Creek recognized that Brazell had been laid off just 1 week before he 

would have received a vested interest in Island Creek's retirement 

program. Island Creek credited Brazell with the extra required week 

and gave him papers to fill out if he wished to do so. Brazell has 

never filled out the papers because he said that if he had kept working, 

he was covered by about $250,000 in insurance as compared with $5,000 

as a retiree. Also, he would receive about $176 per mbnth as a retiree 

with his wife claimed as a joint beneficiary. Brazell has been referred 

1779 
to an Island Creek employee named Osborne in Lexington, Kentucky, for 

additional questions about retirement • 

• 

22. Brazell stated that on one occasion a miner named Pyro 

Williams tried to smuggle beneath his clothes 13 sex books as he was 

getting into the mantrip. Brazell made Williams leave the books in 

the ~afety office. Williams was mad about Brazell's not letting him 

take the books with him underground and thereafter made passes at the 

cables of some of the equipment until he succeeded in damaging the 

cable to the loading machine. Brazell said he found out afterwards 

that Williams was buying a trailer from an Island Creek superintendent 

named Cunningham, and that if he had known Williams had such connections, 

he wouldn't have objected to Williams' taking the books underground in 

the first place. Cunningham testified that he had not sold a trailer 

to Hilliams and that he didn't understand where Brazell obtained the 

information to the effect that he had sold a trailer to Williams. 

Also, Jennings 

ing trailers. 

trailer and it 

testified that Cunningham is not in the business of sellThe only trailer that was sold, apparently, was a house 

wasn't sold to Pyro Williams. 

23. Donald H. Watson testified on Brazell's behalf. Watson is a 

battery maintenance person at Island Creek. He thinks Brazell would 

rate a 9 on a scale of 1 to 10 for safety. He thought Brazell had made 

safety reports to management but couldn't cite a single example. He 

did not know of a time when Brazell refused to work on account of safety. 

24. Kenneth W. Butts testified on Brazell's behalf. He still.works 

for Island Creek. He respected Brazell's knowledge and rated him as a 

10 on a scale of 1 to 10. Butts never knew of a slope boss prior to 

Brazell holding that position. Butts is a mechanic who goes where he's 

needed. He found fire in the slope at the end of his shift one day in 

February 1981. He and some other men put out the fire in about 45 minutes 

or an hour. The slope was closed down for cleanup for about one or two 

shifts. Butts also found a ground monitoring wire cut out of a cable, 

or blocked out of a cable, in March. 1981, but these things occurred long 

after Brazell had been laid off. Butts had heard of an incident where 

miners were paid a bonus so that coal could be produced in quantity 

without worrying about safety. He said that that had occurred in March 

1981, and that he had heard of it before that. Jennings testified that 

when he was transferred from the South Mine to the North Hine, he became 

aware of the fact that some miners were given extra pay to do work which 

they should have been required to do in the regular course of their 

assigned duties. He discouraged and stopped that type of thing, and 

by the conversion of the mine to a computer system for payroll purposes, 

he thinks he has been able to eliminate the juggling of time cards 

whereby a miner could be paid extra for either not being at the mine 

or for work not actually performed. Additionally, Jennings did away 

with the giving of barbeques for any section which might produce the 

most coal.in the mine in a given week or a given month. The union itself 

objected to the process of giving special awards to those units which 

produced the most coal. 

1780 
25. Charles A. Pease testified in Brazell's behalf. He was an 

electrician and still works for Island Creek. He believes Brazell 

is safety-minded, but he didn't work under Brazell's supervision. 

Pease sees things done occasionally that are an indication of meddling 

with electrical connections, but he said that he would have to see 

someone actually do something before he would be able to state that 

anyone had done an unsafe act. He thought that the Hamilton Mine was 

a safe mine in which to work. 

26. Everett Miller testified in Brazell's behalf. He is a supply 

person now for Island Creek. He thinks Brazell is safety oriented and 

would rate him at the top of the scale from 1 to 10 as a safety-minded 

person. Hiller thinks Island Creek has brought in new management 

personnel in the Southlline,where he moved in 1979, but he doesn't know 

about the North Hine. Ile knows that Brazell found methane in a section 

where it had never previously been found, but he said that methane comes 

and goes and can be found anywhere at certain times. He thought that 

management had worked to achieve a safe operation in the North Mine. 

27. Dale E. Damin testified on Brazell's behalf. He is a temporary mechanic for Island Creek at the present time. He thinks that 

Brazell is an extremely safety-conscious miner, and he would rate Brazell 

as an 8 or 9 on a scale of 1 to 10. He doesn't know why Brazell would 

have been terminated, and he stated that Island Creek had employed 

Stan Belmar as a face boss on the No. 1 Unit after Brazell was laid off. 

28. William D. Alvey testified on Brazell's behalf. He is now a 

supply person. He thinks Brazell is safety-conscious and would rate 

Brazell as an 8 or 9 on a scale of 1 to 10. ·He doesn't know of anyone 

who was hired to replace Brazell. He knows that the mine was cut back 

from 10 to 8 active working sections. He knows of an incident where 

Brazell would not turn on the electricity when it had been turned off 

until all men were accounted for, but ,he also stated that that was standatd procedu~e for turning the power back on after it had been off. 

29. Jim Garrett, who is now working for Kenellis as a belt man 

in Harco, Illinois, was terminated as third-shift belt foreman on 

June 27, 1980, after Brazell left. He nev~r heard that Brazell was 

terminated for making safety complaints. He thinks Brazell is safetyconscious and would rate him as a 10 on a scale of 1 to 10. He also 

knows that the sections were reduced from 10 to 8 active sections with 

2 standby units. Garrett says that Island Creek brought in Stan Belmer, 

Bill Wood, Jack Milner, and Don Beverly. He says that these men were 

working as UMWA employees who were given supervisory positions. Jennings, 

in his testimony, corroborated Garrett's statements to the effect that 

no new supervisory personnel had been hired and that some of those who 

had been put in supervisory positions had been given those positions 

on a temporary, or acting basis, because either some section foreman 

was ill or there was a need for a replacement on a temporary basis. 

They were all qualified people to hold the positions that they were 

asked to hold on a temporary basis. 

1781 
30. Dwight Witherspoon testified on Brazell's behalf. He was 

laid off on October 27, 1977, and reinstated and paid back wages after 

he filed an ~ction against Island Creek in a state court. He was laid 

off twice ag~in, but the final layoff was on July 10, 1978, after two 

legally imposed reemployments and occurrence of no actual working 

period between the first layoff on October 27, 1977, and the present 

time. He thinks that Brazell is safety-conscious and would rate Brazell 

as a 10 on a scale of 1 to 10 insofar as his ability as a safe and 

knowledgeable supervisor is concerned. He thinks Brazell was discharged because of Brazell's stand on safety, but his appraisal of 

Brazell is based on events which occurred in 1977, or about 3 years 

before Brazell was laid off. Hitherspoon said that some section foremen paid men to run coal, but that involved the top-tonnage unit. If 

another section foreman, who was not in charge.of the top-tonnage unit 

tried. to give a bonus, he didn't succeed. Witherspoon discussed his 

having to install as many as 800 roof bolts in a crosscut after a toptonnage shift had worked solely to achieve high production and had 

skipped placement of roof bolts. Witherspoon thought that the aforesaid 

events had something to do with Brazell's termination, but he conceded 

it all occurred about 3 years prior to Brazell's termination. Witherspoon also conceded that Brazell had testified on his behalf in his 

suit against Island Creek. Jennings testified that it was a fact that 

sometimes a shift will, in its eagerness to produce coal, fail to put 

in the proper number of roof bolts, and that nearly all section foremen, from time to time, find themselves slowed down on their shift 

because they have to do work which the previous shift should have done. 

Jennings tries to see that that type of thing does not occur. 

31. Jennings testified that when he was required to reduce the 

number of personnel at the Hamilton Mine, the number of union workers, 

or hourly workers, was reduced from 604 to 548, and that the number of 

managerial employees was reduced from 96 to 83. He testified that some 

of the people laid off were his personal friends and that it was a difficult decision for him to determine which individuals should be laid 

off on Hay 30, 1980, when Brazell was laid off. He readily agreed that 

the selection of the personnel to be laid off was based on what was good 

for the overall operation of the mine, and that the people who were considered the least productive necessarily were among those who were laid 

off. Mr. Whitledge, in his closing argument, stressed the fact that a 

managerial employee has no contract with management as do the miners, 

and therefore have no way to insist that they be rehired if a prospective 

opening is filled at a future time after their discharge. 

I believe that those findings of fact cover the essential facts 

that have been introduced in this proceeding. The question, of course, 

which is raised by the filing of a complaint under section 105(c)(3) of 

the Act is whether a violation of section 105(c)(l) occurred so as to 

entitle the complainant to the relief which he seeks under section 105(c)(3) 

of the Act. Section 105(c)(l) of the 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 the 

1782 
statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under or 

related to this Act, including a complaint notifying the operator or the operator's agent, or the representative of the 

miners at the coal or other mine of an alleged danger or safety 

or health violation in a coal or other mine, or because such 

miner, representative of miners or applicant for employment 

is the subject of medical evaluations and potential transfer 

under a standard published pursuant to section 101 or because 

such 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. 

In his closing argument, Mr. Nall, on behalf of complainant, stressed 

the fact that it is not always possible to prove by direct evidence that 

a violation of section 105(c)(l) has occurred. He correctly states 

that in some instances a violation of section 105(c)(l) can be proved 

only by inferences and by the fact that the preponderance of the evidence shows that a violation of the Act did occur. Mr. Nall stressed in 

his argument three different situations or factors that he thinks are 

particularly persuasive in showing that Island Creek violated section 

105(c)(l). The first of his factors was that Island Creek had created 

a job of slope foreman for complainant to hold and thereby put complainant in a sort of standby position so that when a good excuse came along 

for laying complainant off, he could readily be cited as a nonessential 

employee because the job which had been created for him was not an 

essential job. 

That is probably the best argument in this case that can be made 

for proving that a violation of section 105(c)(l) occurred. But it had 

to do more with the company's motive than with whether Brazell, or complainant, was discharged because of his reports of safety matters to the 

company. There is no doubt that complainant was put in a position from 

which he could be discharged without creating a problem for the company, 

but I think that Jennings satisfactorily explained that he was dissatisfied with complainant's performance as a section foreman, and that about 

1977 or 1978, when complainant was transferred to the position of slope 

foreman, he could have made a decision to discharge complainant at that 

time, but instead created the position of slope foreman for him. 

Jennings indicated that there had been some problems with the motors 

installed at the slope belt and that the company was rebuilding and upgrading the equipment so as to eliminate those problems. At that time 

having someone as a slope foreman was more important than it becruae later, 

after the motors had been upgraded and other work had been done on the 

slope belt to eliminate the need for having· people to shovel coal off of 

the belt so that it could be started, and then having to shovel coal back 

on after the belt was started. 

1783 
The next point that Hr. Nall made in his final argument was that 

complainant had irritated Island Creek by the fact that a problem had 

arisen with the man named Heady, who apparently was having a drug problem. I!m not persuaded that that argument is very effective because 

complainant did not discuss Heady with management and Jennings denied 

that anyone had ever mentioned to him the fact that Heady had been 

trying to run over Grassiano, one of the company officials, with a 

shuttle car. Since there's no indication that management was aware 

of any problems_with Heady, who was the son of one of management's 

officials, I cannot conclude that Heady's having worked under complainant's supervision, would have been any reason for Island Creek to have 

chosen complainant as a person to be discharged. 

The third item that Hr. Nall stressed in his closing argument was 

that complainant had reported to management that Dan Brown, who was 

a union fire boss, was failing to make his preshift examinations properly. Mr. Nall stressed the fact that since Brown was also the chairman 

of the safety committee, that he had a lot of power at the mine. I 

would agree that Brown had some influence in his position, but no one 

has refuted Jennings' claim that the alleged failure of Brown to perform his duties as fire boss effectively was the subject of a meeting 

at which man~gement insisted that Brown satisfactorily carry out his 

job as fire boss if he wanted to continue doing that work. 

Mr. Nall also stresses the fact that complainant demonstrated his 

abilities when he was called in to supervise 19 men at the slope belt 

at the beginning of the problems which brought about complainant's 

transfer from a section foreman to foreman over the slope belt. I cannot 

see that it would be very difficult to supervise 19 men along a stretch 

of one belt which is 2,300 feet long, as compared to maintaining supervision over a crew of 10 or 11 men on an active working section where 

supplies have to be moved smoothly, and the men have to be rotated from 

shotfiring to loading out coal, securing the roof, artd installation of 

ventilation -- all in a smooth and satisfactory way so as to produce 

coal on a continuous basis. 

Mr. Nall also stressed the fact that complainant stood his ground 

in dealing with management and that such practices undoubtedly irritated 

management and caused management to put complainant in a position where 

he would be vulnerable when it became convenient to lay off some people. 

There occurred at least two or three incidents which failed to 

show that complainant stood his ground for safety against management. 

For example, when complainant brought the splice, from which the ground 

had been severed, outside the mine with the intention, apparently, of 

showing it to both of his supervisors, and to i1SHA, if necessary, to 

get action taken on the matter, Jennings testified, Jennings being the 

superintendent of the mine, that after he had explained to complainant 

that it was improper for him to have left his section without supervision while he came out with the splice, Jennings testified, without 

being contradicted by any rebuttal evidence, that complainant apologized 

for his having acted hastily and that they shook hands and the matter 

was smoothed over at that time. -

1784 
On another occasion, complainant spoke of having forced Pyro 

Williams to leave some sex books on the surface. Then complainant 

noted that Hilliams was buying a trailer from one of the high officials in the company, which of course is denied, but assuming that 

it was true, complainant stated that he would not have made an issue 

of it in the first place if he had known that Williams had connections 

with management. 

The other incident which indicates to me that complainant was not 

willing to stand his ground against management was in connection with 

the fact that complainant claims to have discovered the person who 

was cutting grounds out of cables. He said that one of the reasons 

he did not report that person to management was that he knew that that 

person's father-in-law was a management official and that he didn't 

see any need in tangling with someone with that much influence. 

The aforesaid occurrences lead me to believe that complainant was 

-an average employee who would have liked to have gotten along with 

management and would have preferred to remain employed by working 

smoothly with management if he could have done so. I think the fact 

that complainant was included with the group of men who were laid off 

on May 30, 1980, can be explained on the basis of Jennings' testimony 

to the effect that despite the fact that Brazell was faithful in reporting to work and trying to do a good job, he simply was not the kind of 

section foreman that management preferred, insofar as achieving production goals is concerned. 

As Mr. 'Whitledge. stressed in his closing argument, it is a fact 

that coal mines are run for profit. If thef cease to be profitable, 

they have to close down. That prof it motive is something that the 

company is entitled to consider and I cannot find on the basis of the 

many incidents that have been given in complainant's testimony, that 

those incidents .show that there was !?uch a strong bias against complainant for his alleged safety-related activities, that he would have 

been picked out as a person to eliminate simply because he had complained 

about certain procedures in the mine. 

One of the aspects of Jennings' testimony which is very persuasive 

for me in deciding this case is that Jennings stat~d that complainant 

did not come to him with any more problems than any of the other foremen 

in the mine. Jennings also stated that complainant had a problem of 

staying on a given subject long enough for Jennings to be advised in 

a short period of time of an exact problem and of the exact personnel 

involved, and what needed to be done. He said that complainant had a 

problem with rambling in his discussions and that at times it became 

frustrating to try to determine just what complainant's problems were. 

If complainant's direct testimony in this case is examined by anyone 

interested in reviewing the record, it will be readily perceived that 

it is very difficult for complainant to keep on any one subject, without 

engaging in many inferential discussions about other matters. For that 

reason, it was very difficult to follow any given point in his testimony 

on direct examination without being led astray into other matters which 

1785 
were not the ones his counsel was trying to stress. r believe that that 

characteristic, which was very noticeable at this hearing, supports 

Jennings' statement that complainant was unable to communicate readily 

with him so as to apprise him of matters that complainant might have 

wanted to report, but seemed to get sidetracked in the process. 

In Secretary of Labor, on behalf of Thomas Robinette v. United Castle 

Coal Company, 3 FMSHRC 803 (1981), the Commission stated that it was 

always the burden of the complainant in a discrimination case to show 

that respondent had violated section 105(c)(l) so as to entitle complainant to recover. The Commission stated that if complainant succeeded 

in establishing a prima facie case showing that he had been discharged 

because he was engaged in a protected activity, that the company would 

then have the responsibility of showing that even if one of the reasons 

for the complainant's discharge did relate to a protected activity, if 

the company's case succeeded in showing that complainant would have been 

discharged in any event for other matters in addition to the protected 

activity, that respondent should prevail in that situation. In this 

case, the complainant did not even prevail in establishing a prima facie 

case in his direct testimony. Assuming that complainant had proven in 

his direct case that he had been engaged in a protected activity, it 

appears to me that respondent successfully showed in its case that complainant would have been laid off in any event on May 30, 1980, for 

nondiscriminatory reasons. 

This case is different from nearly all of the other cases that have 

had come before me under section 105(c) in that the complainant went 

into great detail and cited a large number o~ incidents which had 

occurred over 4 or 5 years /prior_ to his termination. In none of those 

situations was it ever made perfectly clear that there had been a 

specific complaint about safety made to management in such a way that 

the complaint would have been an irritant to management in the sense 

that management thereafter would have said, "We're going to get rid of 

this fellow as soon as it's convenient." 

Complainant described in his testimony several instances which would 

have been reasons for the company to have rewarded him, or complimented 

him, rather than for the company to have been upset about it. For example, 

assuming that the company didn't already know about the roof fall that 

was blocking air from getting into the mine, and which was allowing excess 

air to enter the belt slope, if complainant had been the first person 

to find that out, and had made it possible to reroute the air so as to 

permit less float coal dust, etc., to enter the slope entry, that would 

have been a reason for management to thank him rather than to have criticized him. 

The fact that complainant may have had something to do with calling 

management's attention to Dan Brown, who was not making proper preshift 

examinations, that also would have been something they would have appreciated. If complainant could have actually identified the person who 

was making bomb threats so that that person could be arrested, or at 

least could have been investigated so as to eliminate him from the work 

force if necessary, there again, management would have had a reason to 

appreciate it. 

1786 
As to the person who was using drugs, Michael Albright, not only 

did management appreciate Brazell's calling that to management's attention, but Albright himself was pleased with the way that turned out, 

when he succeeded in overcoming his problem. 

Another item was the fact that management wanted some people from 

the South Mine to work on the slope at the North Mine. When management 

found out that those people were't coming, they sent a supervisor along 

with them to make sure they did come. So, if complainant had reported 

that to management, it would have been something that management would 

have appreciated. 

Consequently, this case presented me with so many incidents which 

complainant said may have contributed to his termination which were not 

things that a company would normally resent, that it's impossible for 

me to add these inferences up, as suggested by Mr. Nall, in such a 

fashion that I could find that the preponderance of the evidence supports 

a finding that a violation of section 105(c)(l) occurred. 

WHEREFORE, it is ordered: 

The complaint of discharge, discrimination, or interference filed on 

December 5, 1980, in Docket No. KENT 81-46-D is denied for failure to prove 

that a violation of section 105(c)(l) of the Federal Mine Safety and Health 

Act of 1977 occurred. 

Distribution: 

~· c. ct7;/_/,,_~ Richard C. Steffey ~­

Administrative Law Judge 

(Phone: 703-756-6225) 

Jerry W. Nall, Esq., Attorney for Lloyd Brazell, Suite 12-16 Odd 

Fellows Building, Third and St. Ann Streets, Owensboro, KY 42301 

(Certified Mail) 

William R. Whitledge, Esq., Attorney for Island Creek Coal Company, 

Logan, Morton & Whitledge, 49 Union Street, Madisonville, KY 42431 

(Certified Mail) 

MSHA, Special Investigations, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

1787 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone (703) 756-6236 JIJll 13 1981 

MONTEREY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MONTEREY COAL COMPANY, 

Respondent 

Contest of Citation 

Docket No. LAKE 80-413-R 

Citation No. 775259; 9/11/80 

Monterey No. 'l Mine 

Civil Penalty Proceeding 

Docket No. LAKE 81-59 

A/O No. 11-00726-03060 

No. 1 Mine 

DECISION 

Appearances: Timothy M. Biddle, Esq., Thomas C. Means, Esq., 

Crowell & Moring, Washington, D.C., for ContestantRespondent; 

Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Respondent-Petitioner. 

Before: Judge Charles C. Moore, Jr. 

In August of 1979, MSHA approved a modification plan for Monterey's 

No. 3 Dam. This approval was in accordance with 30 C.F.R. §77.216 which 

requires that certain water sediment or slurry impoundments be constructed 

in accordance with approved plans. 

On June 13, 1980, MSHA advised Monterey that it made a mistake in 

approving the plan and that accordingly the approval was withdrawn (see 

Joint Exhibit No. 1). Thereafter MSHA issued a citation because Monterey 

was not operating the dam and pond under an approved plan. The question 

before me is whether MSHA was justified in withdrawing its approval 

because if not, its subsequent action of issuing a citation was improper. 

I hold that MSHA was totally unjustified in withdrawing its approval and 

that accordingly, the subsequent citation was invalid. I further hold 

that this was not even a close question. The answer was clear from the 

very beginning and I cannot see how MSHA's engineers, its district 

manager and his assistant, and Dr. Wu refused to understand. 

1788 
While the witnesses referred to safety often in their testimony, 

safety is only indirectly involved in this case. MSHA did not issue its 

citation and withdraw its approval because the dam in question was 

unsafe. It withdrew its approval because the dam and pond were not 

being operated in accordance with the Engineering and Design Manual, Coal 

Refuse Disposal Facilities prepared by E. D'Appolonia Consulting Engineers, 

Inc., and published by MSHA's predecessor, the Interior Department's 

Min{ng Enforcement and Safety Administration. The publication contains 

Table 6.6 (see p~ge 6.62 of Joint Exhibit No. 6) which establishes the 

criteria for determining the size of a design storm that the impoundment 

must be able to accommodate. Table 6.6 classifies dams as small, intermediate and large and classifies their hazard potential as low, moderate 

and high. When MSHA approved Monterey's plans, it was agreed that the 

impoundment size was intermediate and that the hazard potential was low. 

This resulted in the design storm of 1 percent probability or OPB. Such 

a storm would occur once in a hundred years. Page 6.63 of Joint Exhibit 

No. 6 makes it absolutely clear that the size classifications of Table 

6.6 are based on the depth of the water "above any settled material." 

That is the item which MSHA chooses not to understand. The MSHA witnesses 

argued that the size criteria of Table 6.6 should be based on the depth 

of the entire impoundment, including the settled materials. 

Section 77.216 of Title 30, Code of Federal Regulations, provides 

that design, constr~ction and maintenance plans are required if an 

impounding structure can: 

(1) Impound water, sediment, or slurry to an elevation 

of five feet or more above the upstream toe of the structure 

and can have a storage volume of 20 acre-feet or more; or 

(2) Impound water, sediment, or slurry to an elevation 

of 20 feet or more above the upstream toe of the structure, 

or 

(3) As determined by the District Manager, present a 

hazard to coal miners. 

From this requirement that impounding structures having a total water 

slurry or sediment depth of 20 feet or more must be in accordance with a 

design plan, MSHA jumps to the conclusion that whenever there is a 

reference to the size of an impounding structure, it must always mean 

the amount or depth of the water slurry and sediment. In the 268 pages 

of deposition testimony, there was no scientific or engineering reason 

given for including or excluding the sediment when determining the size 

of the impoundment. There was no testimony as to the pressures on the 

inner surface of the dam below the top of the sediment level comparing 

that pressure to the pressure which would have been generated at that 

level if the entire impoundment had consisted of water. But the fact 

remains that Table 6.6,which MSHA relies on and which it charged Monterey 

with violating, counts only the water above the settled material in 

determining the size of a pond for design storm purposes. 

1'189 
If MSHA thinks a dam is dangerous it can close it with an imminent 

danger order or it can set up its own standards concerning design storms 

and charge a mine operator with a violation of those standards. It 

cannot, however, successfully charge an operator with a violation of the 

handbook's Table 6.6 and at the same time ignore the definitions of the 

terms used in that Table. The formula for deriving the circumference of 

a circle is only valid if "r" equals the radius, and "pi" equals approximately 3.1416. A change in the meaning of any of the terms destroys the 

effectiveness of the formula and the same is true of Table 6.6. MSHA's 

withdrawal of its approval was improper and the citation is VACATED. 

Distribution: 

~eP?l~a. Charles C. Moore, Jr. 

Administrative Law Judge 

Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring, 

1100 Connecticut Avenue, NW., Washington, D.C. 20036 (Certified Mail) 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900-15th 

Street, NW., Washington, D.C. 20005 (Certified Mail) 

1790 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL. 1 3 1981 

SECRETARY OF LABOR, Complaint of Discrimination 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF CHARLES BOOTHE, 

Complainants 

v. 

CEDAR COAL COMPANY, 

Respondent 

Docket No. WEVA 81-174-D 

DECISION AND ORDER APPROVING SETTLEMENT 

Statement of the Case 

This is a discrimination proceeding filed by the complainants 

against the respondent pursuant to section 105(c)(2) of the Federal 

Mine Safety and Health Act of 1977, for an alleged act of discrimination 

which purportedly occurred sometime between November 1, 1978 and June 30, 1980. 

The matter was originally scheduled for hearing on May 5, 1981, in 

Charleston, West Virginia, but the hearing was continued at the request 

of the parties so that a proposed settlement could be submitted for my 

consideration. 

On June 17, 1981, the Secretary filed a motion to withdraw the 

complaint of discrimination together with the proposed settlement. agreement, 

the terms of which are as follows: 

1. Complainant will withdraw his complaint, HOPE 

CD 80-57, filed under § 105(c) of the Federal Mine 

Safety and Health Act of 1977, with prejudice to a 

complaint related to the matters contained therein 

being refiled. 

2. Complainant authorizes the Secretary of Labor to 

seek a dismissal with prejudice of the complaint 

pending as Docket WEVA 81-174 before the Federal Mine 

Safety and Health Review Commission. That dismissal 

with prejudice will be reflected on the basis of this 

voluntary settlement of all matters among the parties. 

3. Upon notification that the complaint in Docket No. 

WEVA 81-174 has been dismissed with prejudice, Cedar 

will post for a total period of three (3) consecutive 

1791 
weeks the Notice, which has been prepared and agreed 

to by Boothe, counsel for the Department of Labor, 

Cedar and counsel for Cedar. Provided, however, that 

such posting period shall begin on the day of 

effect of a new collective bargaining agreement applicable 

to Cedar's operations, on Cedar's receiving notice of 

the dismissal of Docket No. WEVA 81-174, with prejudice, 

whichever date is later. 

Discussion 

The aforementioned notice was filed by the Solicitor on July 6, 1981. 

This notice indicates that complainant was awarded a job bid which had 

been the subject of a grievance matter filed jointly with this discrimination complaint. As complainant now has received the job, he has chosen 

to withdraw his complaint. 

The notice also states that there has been and will be no judicial 

determination as to whether or not there has been any discrimination 

by Cedar Coal Company. It also indicates the company policy of 

not condoning any discriminatory practices by its management or supervisory 

personnel. 

Conclusion 

After full consideration of the proposed settlement and the attached 

notice, I conclude that the settlement disposition of this dispute 

is a reasonable and fair resolution of the matter and that its approval 

would be in the public interest. It seems clear that both Mr. Boothe 

and the respondent are satisfied with the settlement disposition of 

this case, and the Secretary is in accord with the agreement. 

ORDER 

In view of the foregoing, the proposed settlement disposition of 

this matter is APPROVED, and the motion to withdraw the complaint of 

discrimination is GRANTED. 

Distribution: 

H'~IJ.~ .. ~~ig!'A. Koutras 

Administrative Law Judge 

David Street, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Alvin J. McKenna, Esq., Alexander, Ebinger, Fisher, McAlister & Lawrence, 

17 South High Street, Columbus, OH 43214 (Certified Mail) 

1792 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 14 1981 

YOUNGSTOWN MINES CORPORATION, 

Contestant 

Notice of Contest 

v. Docket No. WEVA 81-303-R 

SECRETARY OF LABOR, Order No. 917568 

MINE SAFETY AND HEALTH February 24, 1981 

ADMINISTRATION (MSHA), 

Respondent Dehue Mine 

LOCAL UNION 5869, 

UNITED MINE WORKERS OF AMERICA, 

Intervenor 

Appearances: 

Before: 

DECISION 

Roger S. Matthews, Esq., Youngstown Mines Corporation, 

Pittsburgh, Pennsylvania, for the Contestant; 

James P. Kilcoyne, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for the Respondent; 

David Vidovich, President, Local Union 5869, District 17, 

United Mine Workers of America, Dehue, West Virginia, for 

the Intervenor. 

Judge Cook 

I. Procedural Background 

Youngstown Mines Corporation (Youngstown) timely filed a notice of contest in the above-captioned proceeding pursuant to section 105(d) ];/ of the 

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

III, 1979) (1977 Mine Act), to contest Withdrawal Order No. 917568. The 

withdrawal order was issued at Youngstown's Dehue Mine on February 24, 1981, 

1/ Section 105(d) of the 1977 Mine Act provides as follows: 

"If, within 30 days of receipt thereof, an operator of a coal or other 

mine notifies the Secretary that he intends to contest the issuance or modification of an order issued under section 104, or citation or a notification 

of proposed assessment of a penalty issued under subsection (a) or (b) of 

this section, or the reasonableness of the length of abatement time fixed in 

1793 
pursuant to section 104(d)(2) !:._/ of the 1977 Mine Act. The notice of contest 

states, in part, as follows: 

fn. 1 (continued) 

a citation or modification thereof issued under section 104, or any miner or 

representative of miners notifies the Secretary of an intention to contest 

the issuance, modification, or termination of any order issued under section 

104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary shall 

immediately advise the Commission of such notification, and 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 on findings of fact, 

affirming, modifying, or vacating the Secretary's citation, order or proposed 

penalty, or directing other appropriate relief. Such order shall become 

final 30 days after its issuance. The rules of procedure prescribed by the 

Commission shall provide affected miners or representatives of affected 

miners an opportunity to participate as parties to hearings under this section. The Commission shall take whatever action is necessary to expedite 

proceedings for hearing appeals of orders issued under section 104." 

2/ Section 104(d) of the 1977 Mine Act provides as follows: 

- "(l) If, upon any-inspection of a coal or other mine, an authorized 

representative of the Secretary finds that there has been a violation of any 

mandatory health or safety standard, and if he also finds that, while the 

conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute 

to the cause and effect of a coal or other mine safety or health hazard, and 

if he finds such violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety standards, he shall 

include such finding in any citation given to the operator under this Act. 

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 failure 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, except those persons referred to in subsection (c) to be 

withdrawn from, and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines that such violation 

has been abated. 

"(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." 

1794 
The factual background and Youngstown's position with 

respect to the aforesaid Order is as follows: 

1. On February 24, 1981, Federal Mine Inspector Dana 

Napier issued Order No. 917568 (hereinafter "Order") pursuant to the provisions of Section 104(d)(2) of the Act, 

for violations of the Federal Mine Safety and Health Act 

of 1977 based on a report contained in the third shift 

mine foreman's report book dated February 2, 1981. A 

copy of the Order is attached hereto and identified as 

"Exhibit "A". 

2. Under the heading and caption "Condition or Practice" the Order alleges that: 

"The report of the 3rd shift mine foreman's 

report book dated 2/2/1981 and signed by Hiram 

Marcum, Jr. stating that the fan (No. 2) was off 

at.4:30 A.M. and in his statement in the record 

book indicate that men were started withdrawing 

at 5:06 A.M. on 2/2/81, which is not in compliance with 75.321." 

3. A copy of.the report of the third shift mine foreman's report book dated February 2, 1981 and signed by Hiram 

Marcum Jr. is attached hereto and identified as Exhibit "B". 

Under the [heading] and caption "Violation and Other Hazardous 

Conditions Observed and Reported" it states: 

"At 4:30 A.M. fireboss called and said he 

had no air on 2-South. Went to air lock doors 

inby 1st Rt. I then realized that the fan was 

off. I informed the dispatcher to get all sections on phone and tell them to come out side 

pulling disconnects and all power coming out. 

Started withdrawing men at 5:06 A.M. All men 

cleared mines at 5 :40 A.M." 

4. The Order further stated that that [sic] the alleged 

violation was of such a nature as could significantly and 

substantially contribute to the cause and effect of a coal 

mine safety and health hazard and that the alleged violation 

was caused by the unwarrantable failure of the operator to 

comply with a mandatory standard. 

5. Youngstown avers that Order No. 917568 is invalid 

and illegal and should be vacated for the following reasons: 

(a) The Order failed to cite a condition or practice 

which constitutes a violation of a mandatory health or 

safety standard; 

1795 
(b) In issuing the Order, the Inspector acted arbitrarily, unreasonably, capriciously and in total disregard 

of the prevailing standards for issuance of Section 

104(d)(2) Orders; 

(c) The Order is improper because the violation was 

not "caused by an unwarrantable failure" of Youngstown 

to comply with the cited standard; and 

(d) The Order is improper since conditions related to 

the alleged violation were not of "such nature as could 

significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." 

* * * * * * 

WHEREFORE, Youngstown respectfully requests that the 

Order which is challenged herein be vacated and set aside 

and that all actions taken, or to be taken, with respect 

thereto or in consequence thereof, be declared null and 

void and of no effect. 

* 

On March 26, 1981, .the Secretary of Labor (Secretary) filed an answer 

alleging, in part, that Withdrawal Order No. 917568 was properly issued pursuant to section 104(d) of the 1977 Mine Act; and that there was a violation 

of a mandatory safety standard which was caused by Youngstown's unwarrantable 

failure to comply with such mandatory safety standard. Additionally, the 

Secretary denied all other allegations in the 'notice of contest. Also, on 

March 26, 1981, Local Union 5869 of the United Mine Workers of America 

(Intervenor) filed a notice of intent to intervene. 

In addition to filing its notice of contest, YoungstoWn also filed a 

motion to expedite the proceedings. As grounds therefore, Youngstown stated 

that "the alleged unwarrantable violation * * * is a serious allegation of 

impropriety of [Youngstown's] mine foreman, which could cause a serious loss 

of his ability to carry out his supervisory.and other duties under the law." 

On March 27, 1981, a telephone conference was held with the undersigned 

Administrative Law Judge and representatives of the three parties participating. During the conference, counsel for Youngstown agreed to an April 28, 

1981, hearing date. Accordingly, on March 30, 1981, a notice of hearing was 

issued scheduling the case for hearing on the merits on April 28, 1981, in 

Charleston, West Virginia. 

On April 1, 1981, the Secretary filed a motion for continuance and opposition to motion for expedited proceedings. The Secretary opposed Youngstown's 

motion to expedite the proceedings and moved for a continuance pending the filing of the associated civil penalty proceeding. On April 10, 1981, an order 

was issued denying the motion for a continuance. The order recounted the 

results of the March 27, 1981, telephone conference. It was noted that the 

notice of hearing was issued on March 30, 1981, giving the parties 29 days 

1796 
notice as to the time, place, nature of the hearing, the legal authority under 

which it was to be held, and the matters of fact and law asserted. The Rules 

of Procedure of the Federal Mine Safety and Health Review Commission 

(Commission) require only that such notice be given to the parties at least 

20 days before the date set for hearing. 29 C.F.R. § 2700.53 (1980). The 

29 days notice given to the parties was considered adequate to protect the 

Secretary's rights. 

The hearing was held as scheduled with representatives of the three parties present and participating. Youngstown made a motion to dismiss at the 

close of the Secretary's case-in-chief. The motion was taken under advisement to be ruled upon at the time of the writing of the decision. Following 

the presentation of the evidence, a schedule was set for the filing of posthearing briefs and proposed findings of fact and conclusions of law. However, 

subsequent events necessitated a revision of the schedule for filing reply 

briefs. Under the revised schedule, reply briefs were due on or before 

June 8, 1981. 

Youngstown, the Secretary and the Intervenor filed posthearing briefs 

on May 20, 1981. On May 22, 1981, the Secretary filed amendments to correct 

typographical errors in his posthearing brief. Youngstown and the Secretary 

filed reply briefs on June 1, 1981. The Intervenor did not file a reply 

brief. 

II. Witnesses and Exhibits 

A. Witnesses 

The Secretary called as his witnesses Dana Trescott Napier, a Federal 

mine inspector; and Naman J. Kitchen, a union safety committeeman at the 

Dehue Mine. 

Youngstown called as its witnesses Gary Evans, a scoop operator on 

February 2, 1981; and Hiram Marcum, Jr., the third shift mine foreman at the 

Dehue Mine. 

Both the Secretary and Youngstown called Frank Marino, the dispatcher, 

as a witness. 

The Intervenor did not call any witnesses. 

B. Exhibits 

1. The Secretary introduced the following exhibits in evidence: 

M-1 is a copy of a letter dated February 18, 1981, received by 

the Mine Safety and Health Administration detailing a Union complaint and 

requesting an inspection of the Dehue Mine pursuant to section 103(g) of 

the 1977 Mine Act. 

1797 
M-2 is a copy of the mine examiner's report prepared on 

February 2, 1981. 

M-3 is a copy of the dispatcher's log prepared on February 2, 

1981. 

M-4 is a copy of Withdrawal Order No. 917568, February 24, 1981, 

30 C.F.R. § 75.321, and a copy of the termination thereof. 

M-5 is a copy of a two-page document styled "104(D) Unwarrantable 

Failure." 

M-6 is a copy of the policy for fan stoppage procedures in effect 

at the Dehue Mine on February 2, 1981. 

M-7 is a copy of the fan chart for the Dehue Mine's No. 2 fan 

covering February 2, 1981. 

2. Youngstown introduced the following exhibit in evidence: 

0-1 is a mine map. 

3. The Intervenor did not introduce any exhibits in evidence. 

III. Issues 

A. The general question presented is whether Withdrawal Order No. 917568 

was validly issued pursuant to section 104(d)(2) of the 1977 Mine Act. The 

specific issues presented as to the withdrawal order's validity are as 

follows: 

1. Whether the Secretary has proved the existence of the underlying section 104(d)(l) citation and withdrawal order. 

2. Whether the Secretary has proved the absence of an intervening 

"clean" inspection of the entire mine between June 9, 1980, the date of issuance of the underlying section 104(d)(l) withdrawal order, and February 24, 

1981, the date of issuance of the subject section 104(d)(2) withdrawal order. 

3. Whether the condition or practice cited in Withdrawal Order 

No. 917568 sets forth a February 2, 1981, violation of mandatory safety standard 30 C.F.R. § 75.321. 

4. If the condition or practice cited in Withdrawal Order No. 

917568 sets forth a February 2, 1981, violation of mandatory safety standard 

30 C.F.R. § 75.321, then whether such violation was caused by Youngstown's 

unwarrantable failure to comply with such mandatory safety standard. 

B. The subject withdrawal order contains the additional allegation 

that the violation was of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard. 

1798 
Youngstown sought review of this allegation in its notice of contest, and 

the issue was litigated by the parties. Accordingly, the following additional issue is presented in this case: If the condition or practice cited 

in Withdrawal Order No. 917568 sets forth a February 2, 1981, violation of 

mandatory safety standard 30 C.F.R. § 75.321, then whether such viol·ation 

was of such nature as could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard. 

IV. Opinion and Findings of Fact 

A. Stipulations 

1. The Dehue Mine was owned and operated by Youngstown Mines Corporation 

at the time of the alleged violation (Tr. 10). 

2. Youngstown Mines Corporation and its Dehue Hine are subject to the 

jurisdiction of the 1977 Mine Act (Tr. 10). 

3. The Administrative Law Judge has jurisdiction over this proceeding 

pursuant to section 105 of the 1977 Mine Act (Tr. 11). 

4. Federal mine inspector Dana T. Napier issued Withdrawal Order No. 

917568 and was a duly authorized representative of the Secretary of Labor 

(Tr. 11). 

5. A true and correct copy of Withdrawal Order No. 917568 was properly 

served upon the mine operator in accordance with section 104(a) of the 1977 

Min.e Act (Tr. 11). 

B. Standards Governing the Validity of Section 104(d)(2) Withdrawal 

Orders 

Section 104(d)(l) of the 1977 Mine Act provides for the issuance of both 

citations and withdrawal orders. This section of the 1977 Mine Act provides 

for the issuance of a citation when an authorized representative of the 

Secretary, upon any inspection of a coal or other mine, finds: (1) that 

there has been a violation of any mandatory health or safety standard; (2) 

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 mine safety or health hazard; 

and (3) that such violation was caused by the mine operator's unwarrantable 

failure to comply with such mandatory health or safety standard. The section 

also provides for the issuance of a withdrawal order if, during the same 

inspection or any subsequent inspection of the mine within 90 days after the 

issuance of the citation, an authorized representative of the Secretary finds 

another violation of any mandatory health or safety standard caused by the 

mine operator's unwarrantable failure to comply. 

If a withdrawal order has been issued pursuant to section 104(d)(l) with 

respect to any area in a mine, then section 104(d)(2) authorizes the issuance 

1799 
of a withdrawal order 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 104(d)(l) withdrawal 

order until such time as an inspection of such mine discloses no similar violations. Following an inspection of the mine which discloses no similar 

violations, the provisions of section 104(d)(l) again become applicable to 

. that mine. 

Section 104(d)(2) of the 1977 Mine Act imposes no requirement of substantive similarity of violations. Accordingly, a 104(d)(2) withdrawal 

order is not invalid because the underlying violation, as set forth in the 

underlying 104(d)(l) withdrawal order, involves a different mandatory health 

or safety standard. See Eastern Associated Coal Corporation, 3 IBMA 331, 346, 

351-352, 81 I.D. 567,lBNA MSHC 1179, 1974-1975 CCH OSHD par. 18,706. (1974), 

aff'd. on rehearing, 3 IBMA 383, 81 I.D. 627 (1974), overruled in part by 

Zeigler Coal Company, 6 IBMA 182, 83 I.D. 232, 1 BNA MSHC 1446, 1976-1977 

CCH OSHD par. 20,818 (1976), and Alabama By-Products Corporation, 7 IBMA 85, 

83 I.D. 574, 1BNA11SHC 1484,-r976-1977 CCH OSHD par. 21,298 (1976), and 

Zeigler Coal Company, 7 IBMA 280, 84 I.D. 127, 1 BNA MSHC 1518, 1977-1978 

CCH OSHD par. 21,676 (1977). 

Additionally, no consideration need be given to the significant and substantial criterion of the violation giving rise to the 104(d)(2) withdrawal 

order in order to determine its validity. To be validly issued, a 104(d)(2) 

withdrawal order must be based upon a violation of a mandatory health or 

safety standard caused by the mine operator's unwarrantable failure to comply with such mandatory health or safety standard. Zeigler Coal Company, 

6 IBMA 182, 188-190, 83 I.D. 232, 1 BNA MSHC 1446, 1976-1977 CCH OSHD par. 

20,818 (1976). A violation of a mandatory health or safety standard is 

caused by an unwarrantable failure to comply with the standard where "the 

operator involved has failed to abate the conditions or practices constituting such violation, conditions or practices the operator knew or should 

have known existed or which it failed to abate because of a lack of due 

diligence, or because of indifference or lack of reasonable care." Zeigler 

Coal Company, 7 IBMA 280, 295-296, 84 I.D. 127, 1 BNA MSHC 1518, 1977-1978 

CCH OSHD par. 21,676 (1977). A section 104(d)(2) withdrawal order "can be 

sustained, assuming the existence of procedural prerequisites and other 

necessary elements, whenever the operator actually knows or should know of 

a violation which it .fails to abate. " Pocahontas Fuel Company, 8 IBMA 136, 

145, 84 I.D. 488, 1 BNA MSHC 1580, 1977-1978 CCH OSHD par. 22,218 (1977), 

aff'd. sub nom. Pocahontas Fuel Company v. Andrus, 590 F.2d 95 (4th Cir. 

1979). . 

C. Youngstown's Motion to Vacate the Withdrawal Order at the Close 

of the Secretary's Case-in-Chief 

Youngstown moved to vacate section 104(d)(2) Withdrawal Order No. 

917568 at the close of the Secretary's case-in-chief. 1_/ In support of 

3/ Counsel for Youngstown styled the motion as a motion to dismiss, and 

requested that the withdrawal order be vacated. This motion will be 

1800 
its motion, Youngstown argued: (1) that the issuing inspector applied an 

erroneous standard in issuing the withdrawal order by determining that the 

violation was of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard, where 

the significant and substantial criterion is not a requirement for the valid 

issuance of a section 104(d)(2) withdrawal order; (2) that the Secretary 

failed to prove that the underlying section 104(d)(l) withdrawai order was 

valid; (3) that the Secretary failed to prove the existence of the underlying 

section 104(d)(l) citation and withdrawal order; and (4) that the Secretary· 

failed to prove that a clean inspection of the entire mine had not occurred 

in the period between the issuance of the underlying section 104(d)(l) withdrawal order and the issuance of Withdrawal Order No. 917568. The motion 

was taken under advisement to be ruled upon at the time of the writing of 

the decision based on the record as it existed when the motion was made (Tr. 

176-181). 

Only the third and fourth grounds identified above have been reasserted 

by Youngstown in its posthearing brief. However, all four grounds will be 

addressed herein. 

The first two grounds advanced by Youngstown in support of its motion 

to vacate the withdrawal order can be quickly disposed of. First, the law 

simply states that no consideration need be g1ven to the significant and substantial criterion of the violation giving rise to the section 104(d)(2) 

withdrawal order in order to determine its validity. Zeigler Coal Company, 

6 IBMA 182, 188-190, 83 I.D. 232, 1 BNA MSHC 1446, 1976-1977 CCH OSHD par. 

20,818 (1976); cf. United Mine Workers of America v. Kleppe, 532 F.2d 1403 

(D.C. Cir. 1976~ The law does not state that the inspector's inclusion of 

such findings on the face of a section 104(d)(2) withdrawal order renders it 

invalid. Second, the validity of the underlying section 104(d)(l) withdrawal 

order is not an issue in this proceeding. It is well established that the 

validity of the underlying section 104(d)(l) withdrawal order is not in issue 

in a proceeding for review of a section 104(d)(2) withdrawal order unless a 

notice of contest was filed within 30 days of the issuance of such 104(d)(l) 

withdrawal order to contest its validity. Zeigler Coal Company, 6 IBMA 182, 

83 I.D. 232, 1 BNA MSHC 1446, 1976-1977 CCH OSHD par. 20,818 (1976); Zeigler 

Coal Company, 5 IBMA 346, 82 I.D. 632, 1975-1976 CCH OSHD par. 20,232 (1975). 

The third argument advanced by Youngstown in support of its motion to 

vacate the withdrawal order asserts that the Secretary failed to prove the 

existence of the underlying section 104(d)(l) citation and withdrawal order 

(see Tr. 176; Youngstown's Posthearing Brief, pp. 8-9). In response, the 

Secretary maintains that sufficient evidence was adduced to prove the 

footnote 3 (continued 

referred to in this decision as a motion to vacate the withdrawal order at 

the close of the Secretary's case-in-chief because this proceeding was initiated by Youngstown's filing of a notice of contest, and because of the 

nature of the relief requested in the motion. 

1801 
existence of the underlying section 104(c)(l) withdrawal order (Secretary's 

Posthearing Brief, pp. 7-8). The Secretary also maintains, for various 

reasons, that he was not required to prove the existence of the underlying 

section 104(c)(l) citation (Secretary's Reply Brief, PP• 1-3). 

The matter of the existence of the underlying section 104(d)(l) withdrawal order can be easily disposed of. Section 104(d) (2) Withdrawal Order 

No. 917568 contains an entry identifying the initial action as Order No. 

910780, issued on June 9, 1980. The Secretary did not introduce in evidence 

either the original or a copy of Order No. 910780. However, Inspector Napier 

testified that he and others searched the files in the Logan, West Virginia, 

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

(MSHA). The search revealed that Order No. 910780, dated June 9, 1980, was 

issued pursuant to section 104(d)(l) of the 1977 Mine Act (Tr. 129-130). 

Accordingly, it is found that the Secretary has proved the existence of the 

underlying section 104(d)(l) withdrawal order. 

The Secretary maintains that he was not required to prove the existence 

of the underlying section 104(c)(l) citation because, in the Secretary's 

view, Youngstown did not raise the issue either in its notice of contest or 

in its opening statement. The Secretary also maintains that the existence of 

the section 104(d)(l) citation can be logically inferred from the unrebutted 

evidence establishing the existence of the underlying section 104(d)(l) withdrawal order. Finally, "the Secretary maintains that by challenging the 

validity of the section 104(d)(l) withdrawal order in its motion to vacate, 

Youngstown admitted such order's existence, and that, in so doing, it is . 

without basis to challenge the existence of the section 104(d)(l) citation 

upon which the section 104(d)(l) withdrawal order is based. For the reasons 

set forth below, I conclude that the Secretary was required to prove the 

existence of the underlying section 104(d)(l) citation. I further conclude 

that the Secretary failed to prove the existence of such citation. 

A mine operator's section 105(d) application for review or notice of 

contest must contain, " amongst other things, a short and plain statement of 

the mine operator's position on each issue of law and fact that the mine 

operator contends is pertinent. 29 C.F.R. §§ 2700.20(c) and 2700.2l(b) 

(1980). The Secretary has the obligation of presenting a prima facie case, 

with respect to each issue raised by the mine operator, that the withdrawal 

order or citation in question was validly issued. Kentland-Elkhorn Coal 

Corporation, 4 IBMA 166, 82 I.D. 234, 1 BNA MSHC 1267, 1974-1975 CCH OSHD 

par. 19,633 (1975); Zeigler Coal Company, 4 IBMA 88, 82 I.D. 111, 1 BNA 

MSHC 1260, 1974-1975 CCR OSHD par. 19,478 (1975). In~he case of a section 

104(d)(2) withdrawal order, the issues which can be raised by the mine operator include: (1) the existence of the underlying section 104(d)(l) citation and withdrawal order, (2) the fact of violation, (3) unwarrantable 

failure, (4) the occurrence of an intervening "clean" inspection of the 

entire mine, and (5) the other requirements for issuance of a section 

104(d)(2) withdrawal order. C F & I Steel Corporation, 2 FMSHRC 3459, 

2 BNA MSHC 1057, 1980 CCR OSHD par. 24,994 (1980); Kentland-Elkhorn Coal 

Corporation, 4 IBMA 166, 82 I.D. 234, 1 BNA MSHC 1267, 1974-1975 CCR OSHD 

par. 19,633 (1975). 

1802 
Youngstown's notice of contest alleged that Withdrawal Order No. 917568 

was invalid because, amongst other reasons, it was issued "in total disregard 

of the prevailing standards for issuance of Section 104(d)(2) Orders." This 

allegation was sufficient under 29 C.F.R. § 2700.20(c) (1980), to raise all 

issues pertaining to the validity of section 104(d)(2) Withdrawal Order No. 

917568, including the issue as to the existence of the underlying section 

104(d)(l) citation. The regulation, which sets forth the requirements for 

the contents of a notice of contest, "is not a license for academic quibbling 

over words, [but it plainly requires] a degree of specificity in pleading , 

sufficient to apprise the trier of fact and other parties of the grounds of 

invalidity in issue." Zeigler Coal Company, 3 IBMA 448, 457, 81 I.D. 729, 

1 BNA MSHC 1213, 1974-1975 CCR OSHD par. 19,131 (1974). The mine operator's 

allegation was sufficiently specific to provide notice to all parties that 

all issues pertaining to the validity of the withdrawal order had been 

raised. One of the prevailing standards for the issuance of a valid section 104(d)(2) withdrawal order is the existence of an underlying section 

104(d)(l) citation. 

The fact that Youngstown had raised all issues concerning the validity 

of Withdrawal Order No. 917568 was underscored at the beginning of the hearing when counsel for Youngstown outlined the issues presented. At one point 

in response to a question from the undersigned Administrative Law Judge, 

counsel for Youngstown stated that he expected "the government to put on a 

prima facie case as to all aspects of a 104(d) (2) order" (Tr. 7). 

In view of the foregoing, I conclude that Youngstown raised all issues, 

including the issue as to the existence of the underlying section 104(d)(l) 

citation, both in its notice of contest and in its opening statement. The 

Secretary's position that the issue was not raised is not well founded. 

The Secretary's position that the existence of the underlying section 

104(d)(l) citation can be logically inferred from the unrebutted evidence 

establishing the existence of the underlying section 104(d)(l) withdrawal 

order is not well founded. A finding that the existence of the underlying 

section 104(d)(l) citation has been proved must be based on reliable, probative, and substantial evidence in order to comply with the requirements of 

the Administrative Procedure Act. See, 5 U.S.C. § 556(d). The evidence 

presented is not sufficient to make a finding as to the existence of such 

citation which complies with this requirement. 

The testimony of Inspector Napier was the only reliable, probative, and 

substantial evidence establishing the existence of the underlying section 

104(d)(l) withdrawal order. A copy of that withdrawal order, which should 

have contained an entry identifying the underlying section 104(d)(l) citation, was not placed in evidence. Additionally, neither the original nor 

a copy of the citation was placed in evidence, nor did any of the witnesses 

testify as to its existence. Furthermore, it cannot be concluded that the 

existence of the underlying section 104(d)(l) citation can be inferred from 

the entries contained in Exhibit M-5. The entries are not self-explanatory, 

and none of the witnesses identified any of the entries as denoting the 

underlying section 104(d)(l) citation. 

1803 
The Secretary's final argument on this issue asserts that Youngstown is 

precluded from challenging the existence of the underlying section 104(d)(l) 

citation. The Secretary's reasoning is set forth as follows: 

Youngstown challenged the validity of the underlying 

104(d)(l) order in its Motion to Dismiss [ 4/], thereby 

admitting its existence. (See Kentland-Elkhorn Coal 

Corporation, supra.) By admitting the existence of the 

underlying 104(d)(l) order, Youngstown is without basis to 

challenge the existence of 104(d)(l) citation on which the 

104(d)(l) order is based. 

In Kentland-Elkhorn, the mine operator sought review of a withdrawal 

order issued pursuant to section 104(c)(2) of the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970) (1969 Coal Act). In 

its application for review, the mine operator challenged the underlying 

section 104(c)(l) notice of violation and withdrawal order as "* * * issued 

arbitrarily, unjustly, and without legal basis or foundation in law* * *·" 

At no time did the mine operator challenge the existence of such 104(c)(l) 

notice and order. The Interior Board of Mine Operations Appeals (Board) 

held that the validity of the underlying notice and order could not be 

challenged in the proceeding because the mine operator had not sought 

timely review of them, but that they were admissible in evidence to establish their existence as.an underlying part of the section 104(c) chain. 

However, the Board held that the Judge committed harmless error when he 

ruled the 104(c)(l) notice and order inadmissible because the mine operator, by challenging their validity, had admitted their existence. 

In the instant case, Youngstown never challenged the validity of the 

underlying section 104(d)(l) citation and, accordingly, never admitted 

its existence. Assuming for purposes of argument that Youngstown admitted 

the existence of the underlying section 104(d)(l) withdrawal order by 

challenging its validity, such admission did not preclude Youngstown from 

continuing its challenge to the existence of the underlying section 

104(d)(l) citation. 

In view of the foregoing, I conclude that the Secretary was required 

to prove the existence of the underlying section 104(d)(l) citation. I 

further conclude that the Secretary failed to prove such citation's 

existence. 

The fourth argument advanced by Youngstown in support of its motion 

to vacate the withdrawal order asserts that the Secretary failed to prove 

that a "clean" inspection of the entire mine had not occurred in the period 

between the issuance of the underlying section 104(d)(l) withdrawal order 

and the issuance of Withdrawal Order No. 917568. The Secretary concedes 

that this issue was raised, and that he was required to present a prima 

facie case regarding the absence of an intervening "clean" inspection of 

the entire mine (Tr. 8-9; Secretary's Reply Brief, p. 3). 

4/ See n. 3, supra. 

1804 
I 

In CF & I Steel Corporation, 2 FMSHRC 3459,.2 BNA MSHC 1057, 1980 CCR 

OSHD par. 24,994 (1980), the mine operator sought review of a withdrawal 

order issued on December 5, 1975, pursuant to section 104(c)(2) of the 1969 

Coal Act. The order was based upon an underlying section 104(c)(l) withdrawal order issued on August 6, 1975. The evidence presented showed that 

the Department of the Interior's Mining Enforcement and Safety Administration 

(MESA) had conducted two complete regular quarterly inspections of the mine 

between (1) July 25, 1975, and September 25, 1975; and (2) October 2, 1975, 

to December 16, 1975. Of the 38 inspection days required to complete both 

inspections, 30 were in the period between August 6 and December 5, 1975. 

The Commission held that "a prerequisite to the issuance of an order of withdrawal under section 104(c)(2) of the 1969 Coal Act was the absence of an 

intervening 'clean' inspection of the entire mine, and that it was MESA's 

obligation to present a prima facie case of that fact to sustain the order." 

2 FMSHRC at 3461. To present a prima facie case on the "clean" inspection 

issue, ·the Government needed to show that a "clean" inspection of the entire 

mine had not occurred in the period between the two orders. The Commission 

specifically rejected the Government's position that a "clean" inspection 

of the entire mine within the meaning of section 104(c)(2) occurs only when 

it conducts a regular quarterly inspection from beginning to end after the 

underlying section 104(c)(l) order has been issued. 

Additionally, a se~ies of spot health, safety, health and safety, ventilation and section 103 inspections which collectively cover the entire mine and 

which do not result in the issuance of any section 104(c)(2) orders, have 

been held to constitute a "clean" inspection of the entire mine within the 

meaning of section 104(c)(2) of the 1969 Coal Act. Old Ben Coal Corporation, 

3 FMSHRC 1186, 2 BNA MSHC 1305, 1981 CCR OSHD par. 25,397 (1981). 

The language used in section 104(c)(2) of the 1969 Coal Act is identical 

in all material respects to that used in section 104(d) (2) of the 1977 Mine 

Act. Accordingly, the foregoing precedents are equally applicable to cases 

involving the validity of withdrawal orders issued pursuant to section 

104(d)(2) of the 19.77 Mine Act. 

The underlying section 104(d)(l) withdrawal order, Order No. 910780, 

was issued on June 9, 1980. The subject section 104(d)(2) withdrawal order 

was issued on February 24, 1980, i.e., 260 days later. The evidence presented is not sufficient to prove-that an intervening "clean" inspection 

of the entire mine had not occurred between those dates. 

The Secretary sought to prove through Exhibit M-5 that an intervening 

clean inspection of the entire Dehue Mine had not occurred between June 9, 

1980, and February 24, 1981. The exhibit is styled "104(d) Unwarrantable 

Failure," and consists of two pages, each of which is divided into five 

vertical columns. The column headings, when read from left to right, are 

"Date Issued," "Citation/Order No.," "Reg. Section," "Date Due," and 

"Abatement Date." The exhibit contains a total of 30 entries, beginning 

May 30, 1980, and ending February 24, 1981. 

1805 
In the column bearing the heading "Reg. Section," 29 prov1s1ons of Title 

30 of the Code of Federal Regulations and one provision of the 1977 Mine Act 

are cited. The notation "104 b" appears adjacent to two of the entries, 

"104 d l" appears adjacent to seven of the entries, and "104 d 2" appears 

adjacent to eight of the entries. No notation appears adjacent to 11 of 

the entries in this column. 

The entries contained in Exhibit M-5 are not self-explanatory. This 

defect in the exhibit was highlighted by the inspector's testimony that he 

required outside assistance to determine that No. 910780 was a 104(d)(l) 

withdrawal order, and not a citation (Tr. 129-130). Furthermore, the 

inspector gave testimony explaining only several of the individual entries 

appearing on the exhibit (Tr. 129, 132-133). 

Inspector Napier gave a general explanation as to the nature of Exhibit 

M-5. When asked to explain the exhibit, he testified that he and his supervisor searched the records to determine whether the Dehue Mine was on a "(d) 

sequence," or whether a "clean" inspection had been made at that mine. He 

further testified that according to the instructions he had received, a 

"clean" inspection is a regular inspection of the complete mine, performed 

by one or more inspectors, during which the "(d) sequence violation" is not 

issued (Tr. 34-35). 5/ He testified at a later point in his testimony that 

when such an. inspection ·is performed, the notation "clean inspection" is 

entered on Exhibit M-5. Since Exhibit M-5 does not contain such a notation, 

the inspector concluded that a "clean" inspection of the entire Dehue Mine 

had not been made (Tr. 131-132). He further testified that the last complete 

inspection of the Dehue Mine was performed between the months of October and 

December, 1980 (Tr. 132-133). 

In addition to the foregoing, it is unclear whether Inspector Napier 

researched the Dehue Mine's inspection history as far back as June 9, 1980, 

5/ Inspector Napier testified on this point as follows during direct 

examination: 

"Q. Okay. I will now show you what has been received in evidence as 

MSHA's Exhibit Number 5 (indicating). Will you explain that for the Court? 

"A. Yes, sir. My supervisor, Oscar Nally, and myself, we searched 

the records to determine if the mine was on a (d) Sequence or if there was 

a clear inspection at the coal mine or if a clear inspection had been made 

at the coal mine. 

"And by a clear interpretation of this, our instructions are that a 

clear inspection is a regular inspection of that complete coal mine by 

either one or more inspectors where that the (d) Sequence violation is not 

issued during that inspection. 

"And that·clears the run on the (d) Sequence. To our determination, 

they had not had, on the (d) Sequence, within ninety days, a clear inspection, or within the last portion we had been there the (d) Sequence was 

in continuance at this coal mine" (Tr. 34-35). 

1806 
with an eye toward determining whether a "clean" inspection of the entire 

mine had been performed between such date and February 24, 1981. He testified that Exhibit M-5 revealed three unwarrantable failure violations occurring at the mine on December 3, 1980 (Tr. 132-133), and he appeared to 

imply that he had not researched the time period prior to the commencement 

of the regular inspection which began in October of 1980 (Tr. 35). Given 

his definition of a "clean" inspection, he may well have considered it 

unnecessary to research the time period prior to the commencement of the 

last regular inspection because the search had already revealed three unwarrantable failure violations dated December 3, 1980. 

The foregoing evidence is not sufficient to support a finding that a 

"clean" inspection of the entire Dehue Mine had not occurred in the 260 days 

between Ju~e 9, 1980, and February 24, 1981. The Secretary's case on this 

issue stands or falls on the basis of Exhibit M-5, and that document is 

fatally flawed. The only type of inspection that would be expected to be 

recorded on Exhibit M-5 as a "clean" inspection would be a complete regular 

inspection of the entire mine which resulted in the issuance of no unwarrantable failure violations. A series of spot health, safety, health and 

safety, ventilation and section 103 inspections which collectively cover 

the entire mine and which do not result in the issuance of any unwarrantable 

failure violations would not be expected to be recorded on Exhibit M-5 as 

a "clean" inspection of the entire mine, given the policy in effect at MSHA's 

Logan, West Virginia, office. This is contrary to the rule of law set forth 

by the Commission in C F & I Steel Corporation, 2 FMSHRC 3459, 2 BNA MSHC 

1057, 1980 CCR OSHD par. 24,994 (1980), and Old Ben Coal Corporation, 

3 FMSHRC 1186, 2 BNA MSHC 1305, 1981 CCR OSHD par. 25,397 (1981), and precludes a finding that the Secretary has established a prima facie case as 

to the absence of an intervening "clean" inspection of the entire mine 

between June 9, 1980, and February 24, 1981. 

In view of the foregoing, I conclude that the Secretary has failed to 

prove a prima facie case as to (1) the existence of the underlying section 

104(d)(l) citation, and (2) the absence of an intervening "clean" inspection 

of the entire mine. 

It is found later in this decision (1) that the cited violation of mandatory safety standard 30 C.F.R. § 75.321 occurred at Youngstown's Dehue 

Mine on February 2, 1981, (2) that such violation was caused by Youngstown's 

unwarrantable failure to comply with such mandatory standard, and (3) that 

such violation was of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or health hazard. 

Accordingly, Youngstown's motion will be granted in part and denied in 

part. The subject section 104(d)(2) withdrawal order will not be vacated, 

but it will be modified to a section 104(d)(l) citation. 

D. Power to Modify a Section 104(d)(2) Withdrawal Order to a Section 

104(d)(l) Citation 

Section 105(d) of the 1977 Mine Act provides, in part, that if, within 

30 days of receipt thereof, a mine operator notifies the Secretary that he 

1807 
intends to contest the issuance of an order issued under section 104, the 

Secretary shall immediately advise the Commission of such notification. 

Then, the Commission is required to afford an opportunity for a hearing in 

accordance with 5 U.S.C. § 554, but without regard to 5 U.S.C. § 554(a)(3). 

Section 105(d) empowers the Commission and its Administrative Law Judges to 

thereafter "issue an order, based on findings of fact, affirming, modifying, 

or vacating the Secretary's*** order, or directing other appropriate 

relief." (Emphasis added.) It is therefore clear that the statute empowers 

the undersigned Administrative Law Judge to modify the subject 104(d)(2) 

withdrawal order to a 104(d)(l) citation. 

It is recognized that certain Board decisions under the 1969 Coal Act 

can be broadly read for the proposition that an Administrative Law Judge 

does not have the authority under any circumstances to modify a withdrawal 

order to a citation. See Freeman Coal Mining Company, 3 IBMA 434, 444-446, 

81 I.D. 723, 1 BNA MSHC 1209, 1974-1975 CCH OSHD par. 19,177 (1974); Zeigler 

Coal Company, 2 IBMA 216, 224-225, 80 I.D. 626, 1 BNA MSHC 1078, 1973-1974 

CCH OSHD. par. 16,608 (1973); Freeman Coal Mining Corporation, 2 IBMA 197, 

209-210, 80 I.D. 610, 1 BNA MSHC 1073, 1973-1974 CCH OSHD par. 16,567 (1973), 

aff'd. on other grounds sub nom. Freeman Coal Mining Company v. Interior Board 

of Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974). To the extent that 

such a broad reading of those decisions is possible, they are not considered 

good law under the 1977·Mine Act. A blanket prohibition against modifying 

a withdrawal order to a citation is considered contrary to the powers 

expressly conferred on the Commission and its Administrative Law Judges by 

section 105(d) of the 1977 Mine Act. 

The subject withdrawal order must be pronounced invalid as a section 

104(d)(2) withdrawal order only because the Secretary failed to prove both 

the existence of the underlying section 104(d)(l) citation and the absence 

of an intervening "clean" inspection of the entire mine. The failure of 

proof on one or both of these two issues requires a disposition invalidating 

the order as a section 104(d)(2) withdrawal order. 

However, the fact that the withdrawal order is invalid because of a 

failure of proof on these two issues does not mean that the additional allegations appearing on the face of the order are not well founded. The withdrawal 

order alleges, and the proof shows, the occurrence of a condition in violation 

of mandatory safety standard 30 C.F.R. § 75.321; that such violation was 

caused by the mine operator's unwarrantable failure to comply with such mandatory safety standard; and that such violation was of such nature as could 

significantly and substantially contribute to the cause and effect of a mine 

safety or health hazard. These issues have been litigated by the parties, 

and findings of fact and conclusions of law are set forth herein resolving 

these issues in favor of the Secretary. It is therefore considered appropriate to modify the withdrawal order to a section 104(d)(l) citation containing 

findings which reflect what the proof shows. The modification will not result 

in a finding that a condition existed other than the one charged, nor that 

Youngstown violated any mandatory standard other than the one charged. 

1808 
E. Occurrence of Violation 

Federal mine inspector Dana T. Napier issued Withdrawal Order No. 917568 

at Youngstown's Dehue Mine on February 24, 1981, during the course of a 

special inspection conducted pursuant to section 103(g) of the 1977 Mine Act 

(Exh. M-1; Tr. 19-20, 28). The withdrawal order alleges a violation of mandatory safety standard 30 C.F.R. § 75.321 in that: 

The report of the 3rd shift mine foreman's report book 

dated [February 2, 1981,] and signed by Hiram Marcum, Jr. 

stating that the fan (No. 2) was off at 4:30 a.m. and in 

his statement in the record book indicate that men were 

started withdrawing at 5:06 a.m. on [February 2, 1981,] 

which is not in compliance with [30 C.F.R. §] 75.321. 

(Exh. H-4). 

Mandatory safety standard 30 C.F.R. § 75.321 provides as follows: 

Each operator shall adopt a plan on or before May 29, 

1970, which shall provide that when any mine fan stops, 

immediate action shall be taken by the operator or his agent 

(a) to withdraw all persons from the working sections, (b) to 

cut off the power in the mine in a timely manner, (c) to provide for restoration of power and resumption of work if 

ventilation is restored within a reasonable period as set 

forth in the plan after the working places and other active 

workings where methane is likely to accumulate are reexamined 

by a certified person to determine if methane in amounts of 

1.0 volume per centum or more exists therein, and (d) to provide for withdrawal of all persons from the mine if ventilation cannot be restored within such reasonable time. The 

plan and revisions thereof approved by the Secretary shall be 

set out in printed. form and a copy shall be furnished to the 

Secretary or his authorized representative. 

30 C.F.R. § 75.321-1 provides that "[u]nless a different period of tL~c 

is approved by the Coal Mine Safety District Manager, 'reasonable period' 

referred to in § 75.321 means a time lapse of not more than 15 minutes." 

The Dehue Mine's fan stoppage plan, in effect on February 2, 1981, contained 

the following requirement: 

If FAN is OFF for more than 15 MINUTES, notify all people 

underground and tell them to come outside and the last people 

coming out of an area will knock the AC and DC Power for their 

area. When the FAN is OFF for 15 MINUTES and people start 

outside EVERYONE (INCLUDING FOREMEN) will come directly 

outside. [Emphasis in original.] (Exh. H-6.) 

In short, the fan stoppage plan required the mine operator, amongst other 

things, to start withdrawing all people from the mine if the fan was off 

for more than 15 minutes (see Tr. 29). 

1809 
The evidence presented shows that three fans are used to ventilate the 

Dehue Mine. The No. 1 fan ventilates the old portion of the mine, and 

produces approximately 150,000 cubic feet of air per minute (Tr. 32). The 

No. 2 fan ventilates the active portion of the mine, and produces approximately 250,000 cubic feet of air per minute (Tr. 32-33). According to 

Mr. Hiram Marcum, Jr., the third shift mine foreman, the No. 2 fan is the 

main ventilating fan for the active working area (Tr. 227). The No. 3 fan, 

a bleeder fan, produces approximately 16,000 cubic feet of air per minute 

(Tr. 32). 

The No. 2 fan stopped at approximately 4 a.m. on February 2, 1981 (Exh. 

H-7; Tr. 33-34, 87, 107-108). The fan was not restarted until approximately 

7 a.m. on February 2, 1981 (Exh. M-7; Tr. 58). Youngstown did not begin 

withdrawing the miners from the Dehue Mine's underground workings until 

approximately 5:06 a.m. (Exh. M-2; Tr. 30-31, 170-171), !·~·, approximately 

1 hour after the No. 2 fan stopped. 

In summary, the Dehue ~line's No. 2 fan was off for approximately 

1 hour on February 2, 1981, before Youngstown began withdrawing the miners 

from the mine's underground workings. This clearly violated the 15-minute 

requirement set forth in the Dehue Mine's fan stoppage plan. Accordingly, 

it is found that a violation of mandatory safety standard 30 C.F.R. 

§ 75.321 has been established by a preponderance of the evidence. 

F. Unwarrantable Failure Criterion 

Withdrawal Order No. 917568 contains the allegation that the cited violation was caused by the mine operator's unwarrantable failure to comply 

with mandatory safety standard 30 C.F.R. § 75.321. A violation of a mandatory health or safety standard is caused by an unwarrantable failure to 

comply where "the operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or practices the operator 

knew or should have known existed or which it failed to abate because of a 

lack of due diligence, or because of indifference or lack of reasonable 

care." Zeigler Coal Company, 7 IBMA 280, 295-296, 84 I.D. 127, 1 BNA MSHC 

1518, 1977-1978 CCR OSHD par. 21,676 (1977). The evidence presented in this 

case shows that the No. 2 fan was off for approximately 1 hour before 

Youngstown began to withdraw the miners from the Dehue Mine's underground 

workings, and that Youngstown's failure to begin the evacuation earlier was 

caused by an unwarrantable failure to comply with mandatory safety standard 

30 C.F.R. § 75.321. 

The evidence presented as to the general layout of the Dehue Mine 

reveals that the mine's underground workings are situated on both sides of 

the Guyandotte River. The No. 3 fan, the dispatcher's office and the slope 

entrance are located on the east side of the river (Exh. 0-1; Tr. 41-45). 

The dispatcher's office is located on the surface next to the slope entrance 

(Tr. 45, 172). 

The underground areas identified as First Right, First Northwest, South 

Mains (10 Drive), and Second South are located on the west side of the river. 

1810 
The No. 2 fan and two intake air shafts are also located on the west side 

of the river (Exh. 0-1; Tr. 32-33, 41-45). One of those intake air shafts 

is located in reasonably close proximity to the No. 2 fan. The other intake 

air shaft, known as the Sugar Branch Shaft, appears to be located in one of 

the westernmost portions of the mine (Exh. 0-1). 

The underground areas located on the east side of the river are connected to the underground areas on the west side of the river by three 

entries passing underneath the river. One of those entries is on return 

air and another is on neutral air. The middle entry is the track entry, 

and it is on intake air (Exh. 0-1). The No. 2 fan and the nearby intake 

air shaft are located fairly close to the point at which the three entries 

passing underneath the river join the underground workings on its western 

side (Exh. 0-1). In terms of distance, the No. 2 fan is located on the 

surf ace approximately one-quarter of a mile from the slope entrance which, 

as noted above, is located on the east side of the river (Exh. 0-1; Tr. 

117). An individual proceeding underground from the slope entrance to the 

underground workings on the west side of the river would be required to 

pass close to the No. 2 fan's air shaft (Tr. 116). 

The evidence as to the specific activities occurring on the morning of 

February 2, 1981, reveals that two fire bosses, Mr. Louis Zeto and Mr. Isaac 

Nelson, were on duty on.t~e third shift on February 2, 1981. Mr. Zeto had 

responsibility for Second South Mains and First Right Mains. Mr. Nelson 

had responsibility for 10 Drive, Second Right off South Hains, and First 

Northwest (Tr. 220-221). Additionally, it is important to bear in mind 

throughout the discussion which follows that the fan alarm for the No. 2 

fan was inoperable at all times relevant to the February 2, 1981, violation 

of mandatory safety standard 30 C.F.R. § 75.321 which is the subject matter 

of this case. 6/ 

6/ The alann system for the No. 2 fan was wired to a horn signaling device 

located at or near the lamphouse. The horn signaling device was approximately 30 or 40 feet from the dispatcher's office. The alarm system is the 

usual method for determining whether a fan stoppage has occurred. However, 

the fan alarm did not sound on the morning of February 2, 1981, because the 

alarm system was inoperable at all times relevant to the violation charged. 

Inspector Napier issued a separate citation to Youngstown for its failure 

to have an operable fan alarm system. The inoperable fan alarm was taken 

into account by the inspector in making his decision to issue the subject 

withdrawal order (Tr. 82-83, 102, 189). 

The citation encompassing the inoperable fan alarm is not part of the 

subject matter of this proceeding. The Secretary has not stressed the 

inoperable fan alarm in arguing that the violation which is the subject 

matter of this case was caused by Youngstown's unwarrantable failure to 

comply with mandatory safety standard 30 C.F.R. § 75.321. 

1811 
Mr. Hiram Marcum, Jr., the third shift mine foreman, went underground 

at approximately 12:30 a.m. on February 2, 1981. He eventually proceeded to 

First Northwest where he and Messrs. Gary Evans and Ray Wolford performed 

work to prepare the area for mining which was to occur onothe following day. 

The setting of timbers was one of the activities that the three men intended 

to perform there. However, no available timbers were present. Therefore, 

the three men proceeded outside the mine for the purpose of obtaining some. 

They used a track-mounted jeep to ride to the bottom of the slope and, thereafter, transferred to the slope car, or cage, for the ride up the slope (Tr. 

201-203, 218-219). It is clear beyond any doubt that the three men passed 

through the intake entry located beneath the Guyandotte River while riding 

from First Northwest to the bottom of the slope. 

Upon reaching the top of the slope, Mr. Marcum was immediately summoned 

to the dispatcher's office by Mr. Frank Marino, the dispatcher, who informed 

him that Mr. Zeto had just called on the pager to report an air problem, and 

that Mr. Zeto was standing by to talk with him (Tr. 183-184). Mr. Marcum 

proceeded immediately to the dispatcher's office and took the call. At 

4:45 a.m., Mr. Marcum was informed by :Mr. Zeto that he had "no air" on the 

Second South Mains (Tr. 183-185, 221-222). Mr. Zeto informed Mr. Marcum 

that he was going to check the section further to see if he could find anything wrong, and requested Mr. Marcum to call Mr. Isaac Nelson, the other 

fire boss, for the purpose of determining whether everything was all right 

at 10 Drive (Tr. 185, 221). 

Then, Mr. Marcum asked Mr. Marino where Mr. Nelson was located. 

Mr. Marino responded that Mr. Nelson had departed South Mains heading for 

First Northwest at 4:30 a.m. (Tr. 184-185). Mr. Marcum then contacted 

Mr. Nelson on the pager. Mr. Nelson was on First Northwest at the time. 

Mr. Marcum asked Mr. Nelson whether he had made 10 Drive, and Mr. Nelson 

responded in the affirmative (Tr. 185-186). Mr. Marctnn followed up this 

question by asking Mr. Nelson whether he had found anything wrong on 

10 Drive, such as any downed curtains or any falls. Mr. Nelson responded 

in the negative, but stated that he could not get any air on 10 Drive (Tr. 

186-187, 197-198). Mr. Marctnn instructed Mr. Nelson to "go on up at First 

Northwest and see if you're getting any air" and to immediately report his 

findings to Mr. Marino (Tr. 187, 198-199). 

Mr. Marcum, accompanied by Messrs. Evans and Wolford, returned underground. Mr. Marcum intended to go to 10 Drive to personally check the area 

and determine the cause of the problem (Tr. 187-188). 

The three men stopped at First Right so that Mr. Marcum co\1;1ld call 

Mr. Marino. He placed the call and asked Mr. Marino whether Mr. Nelson had 

reported back. Mr. Marino responded in the negative (Tr. 188, 206, 232-233). 

Mr. Marcum testified that he knew something was wrong when he stopped at First 

Right because the volume of air passing through the area was noticeably less 

than it should have been (Tr. 223, 232-233). Mr. Evans' testimony indicates 

that after calling Mr. Marino, Mr. Marcum stated that he could not feel any 

air movement. Mr. Evans further testified that he acknowledged Mr. Marcum's 

remark by stating: "Well, I can't feel nothing, either" (Tr. 206). 

1812 
Then, the three men proceeded inby First Right along the G.K. Mains 

toward South Mains High Top (Tr. 206, 223; Exh. 0-1). The men stopped at the 

double air lock doors which had been installed in No. 38 break, and Mr. Evans 

headed for those doors (Tr. 224). Mr. Marcum testified that he knew that no 

air was coming down the return even before Mr. Evans opened the air lock door 

because he could not hear the air whistling through the return (Tr. 224, 232-

233). The first double door opened effortlessly (Tr. 224). Both Mr. Evans 

and Mr. Marctml testified that they knew at that point that the fan had 

stopped (Tr. 206, 224, 232-233). 

The three men retreated outby and checked the return overcast at First 

Right. There was no air movement in the overcast. Mr. Marctnn called 

Mr. Marino on the pager, informed him that the fan had stopped, and told 

him to begin withdrawing the men from the mine. Mr. Marino received this 

call at approximately 5:06 a.m., and the evacuation of the mine began (Tr. 

188, 224-225). 

The evidence presented in this case points unmistakably to the conclusion that Youngstown's failure to begin withdrawing the miners from the Dehue 

Mine's underground workings until 5:06 a.m. was caused by an unwarrantable 

failure to comply with mandatory safety standard 30 C.F.R. § 75.321, notwithstanding the fact that the No. 2 fan's alarm system was inoperable at 

all times relevant to this proceeding. This conclusion is based on the 

combined actions of Mr. ·Isaac Nelson, one of the two fire bosses, and 

Mr. Hiram Marcum, Jr., the third shift mine foreman. 

Federal law imposes an affirmative obligation on the operator of a coal 

mine which is subject to the provisions of the 1977 Hine Act to maintain 

adequate ventilation in such mine's underground workings so as to dilute, 

render harmless, and carry away volatile methane gas. Explosive concentrations of methane gas pose well recognized dangers to the safety of the 

miners in the mine's underground workings, and the ventilation requirements 

set forth in the various mandatory safety standards applicable to underground 

coal mines are intended, in part, to eliminate those dangers. J.j See, ~·.B_•, 

7/ See S. Rep. No. 95-181, 95th Cong., 1st. Sess. (1977), reprinted in 

LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 629 

(1978), which states, in part, as foilows: 

"Investigation of the Scotin [sic] mine disaster in Eastern Kentucky 

provides but one case in point. On March 8 and 11, 1976, two explosions of 

methane gas in the Scotia mine resulted in the deaths of twenty-three (23) 

miners and three (3) federal mine inspectors. Methane is a colorless, 

odorless, tasteless gas which is liberated or escapes naturally in certain 

mines. (Although methane liberation is most commonly associated with coal 

mining, it is present in connection with the mining of other minerals also, 

trona, for example.) Methane is explosive when it constitutes between 5 

and 15 percent of the atmosphere of a mine, and when, while in that concentration range, it is ignited by some ignition source. The pressure of 

methane in a mine is controlled by adequate ventilation; and thus, ventilation of a mine is important not only to provide fresh air to miners, and to 

1813 
30 C.F.R. §§ 75.300, 75.301, 75.301-4, 75.301-5, 75.302, 75.307, 75.308, 

75.309, 75.310, 75.311, and 75.312. In addition, the need for vigilance 

and timely action as to health and safety matters is underscored by those 

provisions which require the performance of examinations and tests designed 

to determine whether there is compliance with the mandatory health and safety 

standards and to detect safety and health hazards. See, e.g., 30 C.F.R. 

§§ 75.205, 75.300, 75.300-4, 75.303, 75.304, 75.305,---r5.3o6-; 75.307, and 

75.320. 

In view of these considerations, it must be concluded that a fire boss, 

amongst others, who detects a loss of air during the course of his duties is 

under an affirmative obligation to immediately notify the appropriate representatives of the mine operator that he has detected a loss of air. A "fire 

boss" is defined, amongst other definitions, as "(a] person designated to 

examine the mine for gas and other dangers," and as "(a] state certified 

supervisory mine official who examines the mine for firedamp, gas, and other 

dangers before a shift comes into it and who usually makes a second examination during the shift * * *·" Paul W. Thrush (ed.), A Dictionary of Mining, 

Mineral, and Related Terms (Washington, D.C.: U.S. Department of the Interior, 

Bureau of Mines) (1968) at page 429. It must be further concluded that a mine 

foreman, or other similarly situated representative of the mine operator, who 

receives a report that a loss of air has been detected underground, is required 

to conduct his search for the cause of the problem in the most direct and most 

efficient manner available to him. In the instant case, both Mr. Nelson and 

Mr. Marcum were negligent in discharging their respective duties. 

Mr. Nelson detected the loss of air on 10 Drive prior to departing South 

Mains for First Northwest at 4:30 a.m. Yet, he made no attempt to promptly 

inform his superior as to the existence of the condition. In fact, he made 

no attempt to communicate his findings to his superior until he was contacted 

by Mr. Marcum at approximately 4:45 a.m., i.e., after the mine foreman directed 

an inquiry to him (Tr. 198). The knowledge acquired by Mr. Nelson at or 

before 4:30 a.m. as to the loss of air is properly imputed to Youngstown. 

The actual or constructive knowledge of a person designated by the mine 

operator to perform required examinations is properly imputed to the mine 

operator. Pocahontas Fuel Company, 8 IBMA 136, 84 I.D. 448, 1 BNA MSHC 1580, 

1977-1978 CCR OSHD par. 22,218 (1977), aff'd. sub nom. Pocahontas Fuel 

fn. 7 (continued) 

control dust accumulation, but also to sweep away liberated methane before 

it can reach the range where the gas could become explosive. In terms 

then of the safety of miners, the requirement that a mine be adequately 

ventilated becomes one of the most important safety standards under the 

[1969] Coal Act." 

Additionally, Inspector Napier testified that a recent methane gas 

explosion at Westmore,land Coal Company's Ferrell No. 17 Hine, which 

resulted in the death of five miners, occurred when improper ventilation 

permitted the gas to build up (Tr. 39). 

1814 
Company v. Andrus, 590 F.2d 95 (4th Cir. 1979). Additionally, his negligence in failing to promptly communicate his findings to mine management 

is imputable to Youngstown. See generally, Nacco Mining Company, 3 FMSHRC 

848, 2 BNA MSHC 1272, 1981 CCR OSHD par. 25,330 (1981). 

Mr. Marcum testified that he did not think that a fan problem existed 

when he began his return trip to the mine's underground workings because: 

(1) the fan alarm did not go off, (2) only one fire boss had called reporting 

"no air," and (3) none of the workers underground had called to report an 

air problem (Tr. 225-226). Significantly, he maintained that he did not 

talk to Hr. Nelson before beginning his return trip underground (Tr. 223, 

232). But he also maintained that he might have suspected a fan problem 

had he been successful in contacting Mr. Nelson before returning underground, 

and had Mr. Nelson also reported "no air" (Tr. 223). 

Mr. Marcum's testimony is not credible insofar as he maintains that he 

did not talk to Mr. Nelson before beginning his return trip underground. 

Mr. Marino testified that Mr. Marcum contacted Mr. Nelson on the pager after 

talking to Mr. Zeto and before returning underground, and that Mr. Nelson 

reported a loss of air, or "no air," on 10 Drive during their conversation 

(Tr. 184-197, 197-198). Mr. Marino's testimony is considered credible on 

this point. Therefore, Mr. Marcum, by his own admission, should have 

suspected a fan problem before beginning his return trip underground. 

However, it appears that Mr. Marcum managed to convince himself before 

beginning his return trip underground that the problem had been caused by 

either a roof fall or a downed curtain somewhere on South Mains (10 Drive) 

(Tr. 199, 205, 211). It further appears that Mr. Marclllll became so preoccupied with this belief (1) that he failed to notice those things which 

a reasonable man in his position would have noticed, observations which 

should have led him to deduce that a fan stoppage had occurred, and (2) 

that he passed, but failed to stop and to examine, the No. 2 fan's air 

shaft on his way to South Mains. A reasonable man in his position would 

have stopped and examined the air shaft, an examination which would have 

conclusively revealed that a fan stoppage had occurred, instead of proceeding farther into the mine. 

The evidence shows that the largest volume of intake air used to ventilate 

the active workings enters the mine through the slope entrance (Tr. 106). In 

fact, approximately 95,000 cubic feet per minute of the 250,000 cubic feet per 

minute of air drawn into the mine by the No. 2 fan enters through the slope, 

and moves at a speed of approximately 10 to 12 miles per hour (Tr. 35-36, 140-

141). Air movement is barely perceptible in the slope when the No. 2 fan is 

off (Tr. 141-142). A number of observations could and should have been made 

in the vicinity of the slope, observations which would have led a reasonable 

man to conclude that a fan stoppage had occurred. First, the slope entrance 

is approximately 15 feet wide and 8 to 9 feet high (Tr. 158, 159). A cloth 

rag attached to a wire was hanging in the slope entrance. The rag was hanging approximately 2 feet down from the roof, and measured approximately 

8 inches in length and 4 inches in width (Tr. 140-142, 158-159, 190). The 

1815 
rag is dra~vn horizontally until it almost touches the roof when the No. 2 

fan is on, but hangs in a vertical position and barely moves when the No. 2 

fan is off (Tr. 140-142). Second, Mr. Marcum should have been able to feel 

the lack of air movement as he stood at the top of the slope (Tr. 35-36, 99, 

141). Third, ~rr. Marcum should have detected a lack of air pressure pushing 

against a small wooden door located at the top of the slope which must be 

opened to board the slope car (Tr. 140-141, 161). Fourth, Mr. Harcum should 

have detected the absence of air while riding the open slope car (Tr. 140-141, 

147). Finally, Mr. Marcum should have noticed the lack of air movement when 

he reached the bottom of the slope (Tr. 106-107). 

Only a stoppage of the No. 2 fan could have accounted for the absence 

of air in the slope area. The roof fall or short circuit in the air which 

Hr. Marcum appears to have suspected would not have accounted for this 

phenomenon (Tr. 36-37, 99-100, 148-149). The mine is too large, covers too 

much territory, for a roof fall or similar problem to have interferred with 

the ventilation in such a way that Mr. Zeto wbuld not get any air on Second 

South (Tr. 148-150). 

Additionally, :tfr. Marcum passed, but failed to stop and examine, the 

No. 2 fan's air shaft on his way to South Mains. He could have disembarked 

from the jeep and walked through some air lock doors into an overcast, and 

thereafter proceed to the air shaft. If the No. 2 fan had been working, the 

air movement at the bottom of that shaft would have been quite noticeable 

(Tr. 116-117, 150-153, 157-158). Similarly, the absence of air movement 

would have been quite noticeable. 

In view of the combined actions of Messrs. Nelson and Marcum, T conclude 

that Youngstown failed to abate a violative condition that it knew or should 

have known existed because of a lack of due diligence or because of indifference or lack of reasonable care. The failure to begin withdrawing the 

miners from the Dehue Hine's underground workings until approximately 

5:06 a.m. was caused by an unwarrantable failure to comply with the requirements of mandatory safety standard 30 C.F.R. § 75.321. 

G. Significant and Substantial Criterion 

Withdrawal Order No. 917568 contains the additional allegation that 

the violation was of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or health hazard. 

Although no consideration need be given to the significant and substantial 

criterion in order to determine the validity of a section ~04(d)(2) withdrawal order, Youngstown sought review of the allegation in its notice of 

contest and the issue was litigated by the parties. 

In National Gypsum Company, 3 FMSHRC 822, 2 BNA MSHC 1201, 1981 CCR 

OSHD par. 25,294 (1981), the Commission held: 

[T]hat a violation is of such nature as could significantly 

and substantially contribute to the cause and effect of a mine 

1816 
safety or health hazard if, based upon the particular facts 

surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury 

or illness of a reasonably serious nature. 

3 FMSHRC at 825. Additionally, the Commission stated that: 

Although the [1977 Mine Actl does not define the key 

terms "hazard" or "significantly and substantially," in this 

context we understand the word "hazard" to denote a measure 

of danger to safety or health, and that a violation "significantly and substantially" contributes to the cause and 

effect of a hazard if the violation could be a major cause 

of a danger to safety or health. In other words, the 

contribution to cause and effect must be significant and 

substantial. 3 FMSHRC at 827. [Footnote omitted.] 

The No. 2 fan ventilates the active portion of the mine, and produces 

approximately 250,000 cubic feet of air per minute (Tr. 32-33). It is the 

main ventilating fan for the active working area (Tr. 227). 

A substantial amount of the methane gas liberated by the Dehue Mine is 

removed from the underground workings by the No. 2 fan. Methane gas is 

removed from the mine by. that fan at a rate of approximately 175,000 cubic 

feet in a 24-hour period. Of the three fans used to ventilate the mine, 

the No. 2 fan removes the most methane (Tr. 33, 38). The fan stoppage 

could have permitted a substantial amount of methane gas to build up in 

the Dehue Mine's active workings. Given an ignition source, an explosion 

could have occurred. All miners in the active workings would have been 

exposed to fatal injuries (Tr. 38-39, 49). Approximately 19 men were 

working underground at the time (Tr. 220). Accordingly, it must be concluded that the violation was extremely serious. 

In view of the foregoing, I find that the violation could have been a 

major cause of a danger to safety or health. The particular facts surrounding 

the violation show the existence of a reasonable likelihood that the hazard 

contributed to would result in an injury or an illness of a reasonably serious 

nature. Accordingly, I conclude that the violation was of such nature as 

could significantly and substantially contribute to the cause and effect of 

a mine safety or health hazard. 

V. Conclusions of Law 

1. Youngstown Mines Corporation and its Dehue Mine have been subject to 

the provisions of the 1977 Mine Act at all times relevant to this proceeding. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. Federal mine inspector Dana T. Napier was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance 

of Withdrawal Order No. 917568. 

1817 
4. The Secretary of Labor has failed to prove that Withdrawal Order 

No. 917568 was validly issued pursuant to section 104(d)(2) of the 1977 Mine 

Act because he has failed to prove: (1) the existence of the underlying section 104( d)( 1) citation; and (2) the absence of an intervening "clean" inspection of the entire Dehue Mine between June 9, 1980, the date of issuance of 

the underlying section 104(d)(l) withdrawal order, and February 24, 1981, the 

date of issuance of Withdrawal Order No. 917568. 

5. The violation of mandatory safety standard 30 C.F.R. § 75.321 

charged in Withdrawal Order No. 917568 is found to have occurred. 

6. The subject violation of mandatory safety standard 30 C.F.R. § 75.321 

was caused by the mine operator's unwarrantable failure to comply with such 

mandatory safety standard. 

7. The subject violation of mandatory safety standard 30 C.F.R. § 75.321 

was of such nature as could significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard. 

8. All of the conclusions of law set forth in Part IV, supra, are 

reaffirmed and incorporated herein. 

VI. Proposed Findings of Fact and Conclusions of Law 

The Secretary, Youngstown, and the Intervenor filed posthearing briefs. 

Additionally, the Secretary and Youngstown filed reply briefs. Such briefs, 

insofar as they can be considered to have contained proposed findings and 

conclu$ions, have been considered fully, and except to the extent that such 

findings and conclusions have been expressly or impliedly affirmed in this 

decision, they are rejected on the grounds that they are, in whole or in 

part, contrary to the facts and law or because they are immaterial to the 

decision in this case. 

ORDER 

Accordingly, IT IS ORDERED that Youngstown's motion to vacate section 

104(d)(2) Withdrawal Order No. 917568 at the close of the Secretary's casein-chief be, and hereby is, GRANTED IN PART and DENIED IN PART; and that 

Youngstown's notice of contest be, and hereby is, GRANTED IN PART and DENIED 

IN PART. IT IS THEREFORE ORDERED that Withdrawal Order No. 917568 be, and 

hereby is, MODIFIED from a section 104(d)(2) withdrawal order to a section 

104(d)(l) citation containing findings: (1) that a violation of mandatory 

safety standard 30 C.F.R. § 75.321 occurred at Youngstown's Dehue Mine on 

February 2, 1981, in that the No. 2 fan stopped at approximately 4 a.m. and 

Youngstown did not begin to withdraw the miners from the mine's underground 

workings until approximately 5:06 a.m., in violation of the 15-minute requirement set forth in the fan stoppage plan; (2) that such violation was caused 

by the mine operator's unwarrantable failure to comply with such mandatory 

safety standard; and (3) that such violation was of such nature as could 

significantly and substantially contribute to the cause and effect of a mine 

safety or health hazard. 

1818 
IT IS FURTHER ORDERED that No. 917568, as so modified, be, and hereby 

is, AFFIRMED. 

~Z::Z ) 

Cook 

Distribution: 

Roger S. Matthews, Esq., Youngstown Mines Corporation, 3 Gateway Center 

9 North, 401 Liberty Avenue, Pittsburgh, PA 15222 (Certified Mail) 

James P. Kilcoyne, Jr., Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480, Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

David Vidovich, President, Local Union 5869, District 17, United Mine 

Workers of America, P.O. Box 132, Dehue, WV 25618 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street, 

NW., Washington, D.C. 20005 (Certified Mail) 

Administrator for Metal and Nonmetal ,Mine Safety and Health, U.S. 

Depart~ent of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

1819 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 JUL 1L 7 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), on 

behalf of RALPH W. JOHNSON, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

COMPLAINT OF DISCRIMINATION 

DOCKET NO. WEST 81-69-D 

v. Complainant, 

PATHFINDER MINES CORPORATION, MINE: Lucky McMine 

Respondent. 

~~~~~~~~~~~~~~~~~~~-

ORDER APPROVING SETTLEMENT 

On July 9, 1981, the parties filed a stipulation of settlement, consent 

and motion. According to the terms of the settlement, respondent is to pay 

the complainant, Ralph W. Johnson, the sum of $1,000.00 for loss of back 

wages and other expenses resulting from his discharge. Furthermore, the 

complainant's employment record will be expunged of any adverse references 

relating to his discharge. Having given due consideration to the proposed 

settlement I conclude that it should be granted. 

IT IS THEREFORE ORDERED that the stipulation of settlement, consent and 

motion is hereby approved. Respondent is ORDERED to pay the complainant 

$1,000.00 within 30 days from the date of this order. 

Administrative Law Judge 

Distribution: 

Phillis K. Caldwell, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, CO 80294 

Thomas W. Pennington, Esq., Senior Corporate Counsel 

Pathfinder Mine Corporation 

550 California Street, San Francisco, CA 94104 

Frank Lee, President 

United Steelworkers of America, Local No. 15184 

Sunnyside Trailer Court, No. 2, Riverton, WY 82501 

1820 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX ft.VENUE, SUITE 400 

DENVER, COLORADO 80204 JUL 2 o 1921 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

PHOENIX SAND AND ROCK, 

Respondent. 

~~~~~~~~~~~~~~~~~~~~~~ 

APPEARANCES: 

Marshall P. Salzman, Esq., 

Office of the Solicitor 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

For the Petitioner 

Kay H. Wilkins, Esq. 

1635 N. Alma School Road 

Mesa, Arizona 85201 

For the Respondent 

Before: Judge Jon D. Boltz 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. WEST 80-396-M 

) 

) A/C No. 02-01037-05005 

) 

) MINE: Agua Fria Pit 

) 

) 

) 

) 

DECISION 

By authority of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq., the petitioner seeks an order assessing civil monetary 

penalties agains-;-the respondent for alleged violations of regulations as 

more particularly set forth in four citations, all of which were issued on 

March 11, 1980. 

At the hearing, the parties agreed to the following: 

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

proceedings. 

2. The respondent is an operator of moderate size and has a moderate 

history of prior violations. 

1821 
3. The .imposition of requested civil monetary penalties will not impair 

respondent's ability to remain in business. 

4. The citations were in fact issued on the date indicated in the body 

of the citations. 

5. The inspector who issued the cit a~ ions was an au-thorized 

representative of the Secretary. 

At the conclusion of all of the evidence, the parties agreed to waive 

the filing of post hearing briefs and agreed to have a Decision rendered 

from the bench after closing arguments. The bench Decision is as follows: 

BENCH DECISION 

Citation No. 376188 

Citation No. 376191 

Thl petitioner alleges in Citation No. 376188 a violation of 30 C.F.R. 

56.14-1 /because the self cleaning tail pulley of a transfer belt under 

the cone crusher was unguarded1 In Citation No. 376191 petitioner alleges a 

violation of 30 C.F.R. 56.12-8 / in that electrical wires leading into a 

junction box were pulled away from the strain relief clamp and were rubbing 

.on the metal part of the junction box. These allegations were admitted by 

the respondent. Accordingly, considering the criteria set forth in section 

llO(i) of the Act, these citations are affirmed and penalties are assessed 

in the amounts of $106.00 and $48.00 respectively. 

· Citation No. 376189 

A violation of 30 C.F.R. 56.12-323/is alleged in that the electrical 

panel on the trailer for the control switches of the crusher operator did 

not have an adequate cover to fully cover the electrical wires. All ~f the 

wires and the connections in the box were not covered. These facts were 

1/ 56.14-1 Mandatory. Gears; sprockets; chains; drive, head, tail, and take 

up pulleys; fly wheel; couplings; shafts; saw blades; fan inlets; similar 

exposed moving machine parts which may be contacted by persons, and which 

may cause injury to persons, shall be guarded. 

2/ 56.12-8 Mandatory. Power wires and cables shall be insulated 

adequately where they pass into or out of electrical compartments. Cables 

shall enter metal frames of motors, splices boxes, and electrical 

compartments only through proper fittings. When insulated wires, other than 

cables, pass through metal frames, the holes shall be substantially bushed 

with insulated bushing. 

3/ 56.12-32 Mandatory. Inspection and cover plates on electrically 

equipment and junction boxes shall be kept in place at all times, except 

during testing or repairs. 

1822 
undisputed. The regulation requires cover plates on electrical junction 

boxes to be kept in place, and since this had not been done, the citation is 

affirmed. The penalty assessed is $20 JJO, as alleged in the pet it ion. 

Citation No. 376190 

The petitioner alleges a violation of 30 C.F.R. 56._14-1, which is the 

guarding regulation. previously cited. Specifically, the third and fourth 

return idlers under the be 1 t coming from the cone crusher were not guarded. 

The evidence was that these return idlers were 5 1/2 to 6 feet off the 

floor, and that no citations had been issued for this alleged violation 

during four previous inspections, "plus the complimentary inspection." (Tr. 

34). The citation at issue was served because an employee had been observed 

walking under the idlers with a shovel at the time of the inspection. (Tr. 

38). There was no evidence that any person had been observed in that area 

before. 

I conclude that the return idlers being 5 1/2 to 6 feet above floor 

level and in a remote area were guarded by their location in this case. 

Thus, the return idlers were not moving machine parts which might be 

contacted by persons and which might cause an injury._~/ Citation No. 

376190 is vacated. 

ORDER 

The foregoing bench Decision is affirmed and the respondent is ordered 

to pay civil penalties in the total amount of $174.00 within 30 days of the 

date of this Decision. 

. / .k I. I .• ,-Z~/;r-- ~ /(, I '- ~"l r~,-, '-

--Jon D. · o Hz ~-J > 

~Administrative L~~- Judge 

4/ As an additional reason for concluding there was no violation, I 

erroneously stated that return idlers were not "similar exposed moving 

machine parts" as defined by the regulation. This error would not change 

the result since I also found that the return idlers were guarded by their 

location. Distribution: 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, United States Department 

of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, California 

94102 

Kay H. Wilkins, Esq., 1635 N. Alma School Road, Mesa, Arizona 85201 

1823 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

TODILTO EXPLORATION AND 

DEVELOPMENT CORPORATION, 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Respondent. ) ~~~~~~~~~~~~~~~~~~ 

SECRETARY OF LABOR, MINE SAFETY 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

) 

) 

) 

) 

) 

v. ) 

TODILTO EXPLORATION AND ) 

DEVELOPMENT CORPORATION, ) 

Respondent. ) ~~~~~~~~~~~~~~~~~~ 

Appearances: 

U. Sidney Cornelius, Esq. 

Office of the Solicitor 

United States Department of Labor 

555 Griffin Square, Suite 501 

Dallas, Texas 75202 

For the Petitioner 

Mr. G. Warnock, President 

JUL 21 1981 

NOTICE OF CONTEST 

DOCKET NO. CENT 79-91-RM 

Citation No. 151433; 1/31/79 

MINE: Haystack Underground 

CIVIL PENALTY PROCEEDING 

DOCKET NO. CENT 79-310-M 

ASSESSMENT CONTROL NO. 

29-01650-05003 

MINE: Haystack Underground 

Todilto Exploration & Development Corporation 

3810 Academy Parkway South N.E. 

Albuquerque, New Mexico 87109 

Pro Se 

Before: Judge Jon D. Boltz 

DECISION 

Contestant filed case No. CENT 79-91-RM in order to obtain review of 

the issuancI of Citation No. 151433, which alleged a violation of 30 C.F.R. 

57.5-50(b)._/ Subsequently, in case No. CENT 79-310-M, the Secretary of 

1/ [Mandatory.] (b) When employees' exposure exceeds that listed in the 

above table, feasible administrative or engineering controls shall be 

utilized. If such controls fail to reduce exposure to within permissible 

levels, personal protection equipment shall be provided and used to reduce 

sound levels to within the levels of the table. 

18'24 
Labor filed a petition proposing an assessment of several penalties for 

violations alleged in Citation No. 151433 and Ci~ation No. 151105, the 

latter citation alleging a violation of 57.9-69. I The cases were 

consolidated for hearing in Albuquerque and the respondent Todilto 

Exploration and Development Corporation was represented pro~ by its 

President, Mr. G. Warnock. 

These cases were filed pursuant to the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 ~seq. 

At the conciusion of all the evidence the parties agreed to waive the 

filing of briefs and agreed to have a Decision rendered from the bench. 

The bench Decision is as follows: 

BENCH DECISION 

I make the following findings: 

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

proceedings. 

2. The inspectors who duly issued the citations and extensions 

thereof were authorized representatives of the Secretary. 

3. The history of previous violations on the part of the respondent 

is not substantial or significant. 

4. Proposed civil monetary penalties are appropriate to the size of 

the business of the operator. 

5. The assessment of proposed penalties would not affect the operators 

ability to continue in business. 

6. The operator demonstrated good faith in attempting to achieve rapid 

compliance after notification of the alleged violations. 

2/ 57.9-69 Mandatory. Tires shall be deflated before repairs on them are 

started and adequate means shall be provided to prevent wheel locking rims 

from creating a hazard during tire inflation. 

1825 
Citation No. 151105 

This citation issued May 9, 1979, alleges that there was no means to 

prevent wheel locking rims from creating a hazard to the person inflating 

tires with locking rims, in violation of 30 C.F.R. 57.9-69. During the 

course of the hearing, the respondent agreed to withdraw his objection to 

the citation since he agreed with the facts as alleged by the Secretary. 

The Secretary proposed a reduction of penalty from $66.00 to $49.00 as 

being a proper settlement. 

I find that the criteria set forth in section llO(i) of the Act are 

met, and I approve the settlement. 

Citation No. 151433 

The petitioner alleges a violation 30 C.F.R. 57.5-50(b), in that the 

drill operator in the 440 South drift was exposed to 2,634 percent of a 

permissible limit for an eight hour exposure to noise. Hearing protection 

was being worn. Petitioner also alleges that all feasible engineering or 

administrative controls were not being utilized to reduce this level in 

order to eliminate the need for hearing protection. 

I find that the tests made by the inspector were properly conducted 

and the results were accurate. It is undisputed that miners who were 

operating the jackleg drills were using ear ·plugs with ear muffs over the 

ear plugs at the time that the citation was issued. The miners exposure to 

noise did exceed the sound levels permissible during an eight hour period 

of exposure. A dBA level exceeding 90 dBA is not permissible and the dBA 

level during the eight hour period of the inspection measured approximately 

114 dBA based on the table utilized by the MSHA in~pector. That being the 

case, feasible administrative or engineering controls are to be utilized 

as required by the regulation, and if such controls fail to reduce the 

exposure toiwithin the permissible levels, personal protection equipment 

must be provided. 

The feasible controls that could be utilized as testified to by both 

parties was that of a muffler installation on the jackleg drill. With the 

utilization of this device, the dBA level would be reduced to approximately 

110 dBA to 113 dBA. The respondent stated that the dBA level would be 

approximately 114 dBA to 115 dBA with the muffler installation. In any 

event, regardless of the use of this device, which was the only type of 

administrative or engineering control introduced as part of the evidence, 

it would fail to reduce the exposure to within permissible levels, that 

being 90 dBA for an eight hour period. Thus, personal protection was 

required since there would be no other way that the dBA level could be 

reduced to the permissible level. 

On closing argument, counsel for the Secretary stated that the 

utilization of feasible controls is a necessary step as far as the 

regulation is concerned. In order to establish a prima facie case, the 

Secretary has shown in his case in chief that feasible controls were 

1826 
available in that a muffler device could have been ut i 1 ized on the jack leg 

drills. However, he has also shown that even with such controls the 

exposure to noise was not within permissible levels as required by the 

regulation. The reduction of noise exposure to a level of 110 dBA to 113 

dBA by use of the muffler is a long way from the 90 dBA within an eight 

hour period required by the regulation. 

Counsel for the Secretary also argues that there was no evidence that 

ear plugs and ear muffs reduced the noise to permissible levels. However, 

I note that on abatement the inspector was satisfied with this personal 

protection, even though the muffler used reduced the sound level from only 

one to four dBA. 

Therefore, I conclude that the miner involved at the time of the 

inspection was exposed to unacceptable or impermissible noise; that no 

feasible controls were available to reduce the exposure to within 

permissible levels as set forth in 30 C.F.R. 57.5-50(b); and that the 

respondent in providing personal protection equipment, in this case, ear 

plugs and ear muffs which were not shown to be inadequate, was in_ 

compliance with the regulation. 

Citation No. 151433 is vacated. 

ORDER 

The foregoing bench Decision is affirmed and respondent is ordered to 

pay a civil penalty of $49.00 within 30 days from the date of this 

Decision. 

Distribution: 

U. Sidney Cornelius, Esq., Office of the Solicitor, United States 

Department of Labor, 555 Griffin Square Building, Suite 501, Dallas, Texas 

75202 

Mr. G. Warnock, President, Todilto Exploration & Development Corporation, 

3810 Academy Parkway South N.E., Albuquerque, New Mexico 87109 

1827 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW .,JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

!UL 2 i l99\ 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Docket No. LAKE 80-365 

Petitioner A.O. No. 11-00599-03040 

v. 

Orient No. 6 Mine 

FREEMAN UNITED COAL MINING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Rafael Alvarez, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for the 

petitioner; 

Harry M. Coven, Esq., Chicago, Illinois, for the 

respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against 

the respondent pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment 

for two alleged violations of certain mandatory safety standards. Respondent 

filed a timely answer and notice of contest and a hearing was convened in 

Terre Haute, Indiana, on May 20, 1981. The parties appeared and participated 

fully therein, and they waived the filing of posthearing proposed findings and 

conclusions. However, I have considered the arguments advanced by the parties 

in support of their respective cases during the course of the hearing in this 

matter. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S.C. § 801 ~seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

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

1828 
Issues 

The principal issue presented in this proceeding is (1) whether respondent has violated the provisions of the Act and implementing regulations as 

alleged in the proposals for assessment of civil penalty filed, and, if so, 

(2) the appropriate civil penalty that should be assessed against the respondent for the alleged violation based upon the criteria set forth in section 

llO(i) of the Act. Additional issues raised are identified and disposed of 

where appropriate in the course of this decision. 

In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty 

to the size of the business of the operator, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Discussion 

Citation No. 1003913, May 8, 1980, charging the respondent with an 

alleged violation of the provisions of 30 C.F.R. § 75.1719(l)(d), was settled 

by the parties in advance of the commencement of the hearing. The parties 

were afforded an opportunity to state their arguments in support of the 

settlement on the record, and after due consideration of same, the settlement was approved, and a payment of a civil penalty in the amount of $90, 

rather than the initial assessment of $106, was agreed to as a reasonable 

and proper settlement disposition for this citation. 

Citation No. 1003911, issued on May 6, 1980, cites an alleged violation 

of 30 C.F.R. § 75.503, and the condition or practice described by the inspector on the face of the citation is as follows: "A non-permissible transformer 

welding machine was located inby last open crosscut in No. 2 entry of the 4th 

South entries off the 2nd main east entries, section I.D. 088." 

Petitioner's Testimony and Evidence 

MSHA Inspector Laverne Hinkle confirmed that he issued the citation in 

question during an inspection of the mine in question and that he did so 

after finding an energized non-permissible welder located in an area of the 

mine which he considered was inby the last open crosscut and therefore a violation of the provisions of section 75.503. 

Inspector Hinkle determined that the last open crosscut was at a point 

shown on Exhibit P-4, a sketch of the scene of the alleged violation, marked 

with a notation "LOX" and circled with an X mark (Tr. 38). He believed the 

term "inby the last open crosscut" means anything in the direction of the 

ventilation flow of the air current as shown on the exhibit, or away from, 

or following the return air direction as depicted by the arrows on the 

1829 
sketch as they proceed from right to left along the top of the sketch. The 

term "outby" would mean away from or down and towards the intake air flow 

from the mark "LOX" shown on the sketch toward the mine opening (Tr. 67-70). 

With regard to the question as to how he determined there was a violation in this case, Mr. Hinkle testified that he relied on the Inspector's 

Manual "policy" statement found under the discussion of section 75.503, and 

specifically, the instruction that requires an inspector to cite section 

75.503 when he -finds any electric, non-permissible face equipment in a return 

air entry (Tr. 23, 30, 33-34, 37-38, 54; Exh. P-9). He candidly conceded 

that the reason he cited the law rather than the policy on the face of the 

citation was that it was his understanding that policy statements found in 

the manual are not enforceable (Tr. 37). His rationale for issuing the 

citation is reflected in the following colloquy (Tr. 160-163): 

THE COURT: I don't want to put you on the spot; that's 

not my intent in asking you my leadoff question. 

But when you went into the section, found this welder 

over in the return air--

THE WITNESS: Yes, sir. 

THE COURT: --did you at that point make up your mind 

there was a violation because of what was the policy 

guidelines? 

THE WITNESS: No, sir. No, sir. I remembered what was 

in the policy guidelines. I did not decide it was a violation based on the policy guidelines. I decided it was a 

violation on the fact it was nonpermissible equipment in 

return air. 

THE COURT: Well, that's--you may--

You made the decision that it was a piece of nonpermissible equipment in return air? 

THE WITNESS: Yes, sir. 

THE COURT: That's what I asked. What I am saying is--

THE WITNESS: I'm sorry. 

THE COURT: --standard 75.503 makes no mention of return 

air. 

THE WITNESS: Correct. 

THE COURT: So, if you made the decision that nonpermissible equipment being in return air was a violation, how 

1830 
can you say it was a violation of a standard which doesn't 

mention return air? 

THE WITNESS: In or inby the last open crosscut. 

THE COURT: In other words, it met both criterias, if 

you will? Met not only the one on return air but it was 

also inby the last open crosscut? 

THE WITNESS: Whether or not I followed the manual or 

not, the situation remains the same. 

THE COURT: Again I think I am beating a dead horse, 

but when we think about the last open crosscut, your measurement is from a different reference point, is it not? 

THE WITNESS: Yes, sir, frankly. 

THE COURT: You are, aren't you? You are pursuing it 

from the standpoint of the ventilation--

THE WITNESS: Yes, sir. And Freeman is basing their 

measurement on geography. 

THE COURT: That's right. And the standard doesn't say 

which party is right? 

THE WITNESS: Right. 

THE COURT: The standard doesn't say whether it's based 

on geography or whether it's ventilation or whether it's the 

way the moon comes out at night; isn't that correct? 

THE WITNESS: Yes, sir. 

MR. ALVAREZ: The case really is based on two factors, 

I guess you might say: the Inspector, despite that policy 

guideline there, the Inspector would still view it as inby 

the last open crosscut, and/or with the policy guidelines. 

THE COURT: Well, you know, you can argue the case any 

way you want, but if the Inspector finds a piece of nonpermissible equipment in return air, then it's not too difficult for him to find inby the last open crosscut, but it 

depends on which reference point he is using; isn't that 

true? Intake or return--

With regard to the question as to how he applied the term "inby the last 

open crosscut" in this case, Inspector Hinkle testified as follows (Tr. 113-

118): 

1831 
THE COURT: Do you understand what I am talking about 

here? The terms, "inby" and "outby", you explained to us, 

was it used in relationship to the face? 

THE WITNESS: It was used in relationship to the last 

open crosscut, sir. 

THE COURT: That's right. What does-- The dictionary 

definition seems to define inby in relation to the working 

face; in other words, anything that is from this point here 

of this ribline toward the face would be inby the last open 

crosscut. 

THE WITNESS: I believe my definition of inby the last 

open crosscut, if you use the face as a reference point, yes, 

sir, anything beyond that rib, away from the face, would be 

outby the last open crosscut. 

THE COURT: If you used the face as a reference point? 

THE WITNESS: yes, sir. 

THE COURT: The Dictionary of Mining Methods and 

Terminology which Mr. Coven has a copy of defines inby as 

toward the working face or interior of the mine, away from 

the shaft or entrance. 

How would that comport with your definition of it? 

THE WITNESS: This definition, of course, is reliable, 

and everyone depends on it. However, I wrote the citation 

to say the welder was inby the last open crosscut, but in 

that place, sir, it would be inby the face, which is impossible because it had not been mined yet, virgin territory, 

so if we are going--if we are going in this direction from 

the face, according to the discussion we have just had, we 

are going outby, and going in this direction in relationship to the face is going inby. However, the violation as 

I seen it at the time I issued it was, in fact, the welder 

was inby the last open crosscut in a ventilating current of 

air. It was not a term to indicate geography; it was inby 

the last open break, crosscut, in the ventilating current 

of air. 

* * * * * * 

MR. COVEN; You are going to 75.503, your Honor--

THE COURT: Why does someone pick return air as the 

reference point? 

1832 

* 
THE WITNESS: I don't believe I am qualified to answer 

that, sir, but return air becomes return after it passes the 

last open crosscut, ventilating these faces. It's right 

there, becomes return air. That is defined in the 

regulations. 

THE COURT: If you are measuring--if the reference point 

in determining whether it's inby or outby would be toward the 

face, could it be toward the face? 

THE WITNESS: Yes, sir. 

THE COURT: When could it be toward the face? 

THE WITNESS: Well, if this welder were placed right 

here, it would be inby the last open crosscut. 

THE COURT: Why would it be inby? 

THE WITNESS: Because the ventilating current of air 

goes here, sir. It's in the middle of it. 

THE COURT: Then it's inby the last open crosscut? 

THE WITNESS: Yes. 

If it's back this way it's still inby, sir. 

THE COURT: Where would it become outby? 

THE WITNESS: If it were here, sir, outby the last 

open crosscut (indicating). 

THE COURT: In relationship to which way the air is 

flowing? 

THE WITNESS: Yes, sir. 

THE COURT: You would say anything that is in intake 

area from that point, from that last open crosscut back 

towards the mine entrance, would be outby, and anything 

that, as it goes along the return air path, is inby? 

THE WITNESS: Yes, sir. 

THE COURT: We're.using two different reference points. 

When you determine the inby, aren't you determining that as 

far as the last open crosscut as far as the ventilating air 

current, are you not? 

1833 
THE WITNESS: Yes, sir. 

THE COURT: Somebody else might use the face as a 

reference point; isn't that true? 

THE \HTNESS: Yes, sir. 

THE COURT: So if someone is using the face as a 

reference point, they would come around 180 degrees from 

if you were using the ventilating current of air as the 

reference point as to location of the face equipment; 

isn't that true? 

THE WITNESS: It would come out that way. 

THE COURT: It would come out that way, wouldn't it? 

What do you mean, "could come out that way?" Wouldn't that 

logically follow? Tell me how it would come out the same 

if someone were to use toward the face as a reference and 

someone were to use ventilating current of air? 

THE WITNESS: Okay. 

This welder here, irrespective of our point of 

reference in our discussion, is still outby; it's outby this 

face, outby this face. In perfect, strict mining terminology, 

this direction would be outby. 

THE COURT: Would it also be outby the last open crosscut from the face? 

THE WITNESS: yes, sir, geographically it would still 

be outby the last open crosscut, because you are mining, in 

this case, in this direction. 

THE COURT: This is inby, that is outby the last open 

crosscut geographically, and the standard doesn't make any 

distinction, does it? 

THE WITNESS: No, sir. 

THE COURT: Then how is there a violation here? 

THE WITNESS: Because anything in return air must be 

permissible constuction [sic], 75.507, sir. 

THE COURT: 75.507? 

Well then, why didn't you cite 507 in this case? 

1834 
THE WITNESS: Well, may I please refer to the manual? 

It indicates we should cite nonpermissible conditions 

under 503. 

Respondent's Testimony and Evidence 

Thomas R. Mitchell, respondent's maintenance chief, disputed the location of the welder in question as stated by Inspector Hinkle, and he testified that the welder was located in intake air outby the No. 12 room in the 

second crosscut outby the No. 2 entry at the time it was cited. To achieve 

abatement, he had it moved approximately 70 feet toward the main entry in 

the No. 2 entry approximately one crosscut outby where it had been previously 

located (Tr. 91-94). Using respondent's sketch, Exhibit R-2, Mr. Mitchell 

indicated where he thought the last open crosscut was located by penciling in 

"LOX" on the sketch, and he testified that using the faces of the Nos. 11 

and 12 rooms as a point of reference, the welder in question would have been 

located outby the last open crosscut (Tr. 97-98). He also indicated that 

the terms 11 inby11 and 11 outby11 , as commonly used by the industry in Southern 

Illinois, mean towards the working face and away from the working face (Tr. 

99). 

Thomas Bubanovich, employed by the respondent as its chief industrial 

engineer, testified that the terms 11 inby11 and 11 outby11 the last open crosscut, 

as used in the coal fields, refer to the direction of mining. Using a new 

vertical mine shaft as an analogy and reference point, he indicated that if 

one were driving away from the shaft in a northerly direction, the term "inby" 

would mean in that northerly direction, and the term 11 outby11 would mean in a 

southerly direction coming back to the mine shaft (Tr. 120-121). Using the 

inspector's sketch, Exhibit P-4, Mr. Bubanovich expressed disagreement with 

the inspector's interpretation that the welder in question was located inby 

the last open crosscut, and he stated that he had never heard of the use of 

the flow of air as a reference point for applying the term "inby" as the 

inspector has in this case (Tr. 120-121, 127). 

Mr. Bubanovich testified further that he visits the section in question 

once every month but that he was not with the inspector during the inspection 

in question (Tr. 135). However, he disputed the extent of the development of 

the section as depicted on the inspector's sketch (Exh. P-4), and he indicated that the mine records show that mining had not advanced or developed as 

far as the inspector indicated (Tr. 130-134). 

Findings and Conclusions 

Fact of Violation 

Respondent is charged with a violation of the provisions of mandatory 

standard 30 C.F.R. § 75.503, which provides as follows: "The operator of 

each coal mine shall maintain in permissible condition all electric face 

equipment required by 75.500, 75.501, 75.504 to be permissible which is 

taken into or used inby the last open crosscut of any such mine." 

1835 
The critical issue presented in this case is whether or not the welding 

machine in question was located inby the last open crosscut as alleged by 

the inspector on the face of the citation which he issued. The testimony 

presented by the inspector and respondent's witness Mitchell indicates a 

conflict as to where they believed the welder was actually located. The 

inspector's testimony reflects that it was located in return air, while the 

testimony of Mr. Mitchell reflects that it was located in intake air. The 

critical question, however, is whether it was located inby the last open 

crosscut as that term is generally understood and defined in the mining 

community. If the welder was inby the last open crosscut, then a violation 

occurred; if it was not, there is no violation. 

The condition or practice stated in the citation issued by Inspector 

Hinkle makes no reference to the fact that the welder in question was 

located in a return air entry. The inspector simply states that it was 

located "inby the last open crosscut." It seems obvious to me that the 

reason Inspector Hinkle failed to include the fact that the welder was 

located in return air on the face of the citation is the fact that the 

standard makes no mention of any such prohibition. In this instance, 

Inspector Hinkle conceded that he issued the citation because the welder 

was located in a return air entry contrary to the policy stated in the 

inspector's guidelines • 

. The condition or practice cited by Mr. Hinkle on the face of the citation which he issued makes no reference or allegation to the fact that the 

welder in question was located in return air. It simply states that it was 

"inby the last open crosscut." However, the language contained in the 

Inspector's Manual policy statement prohibits such equipment ·from being 

operated in a return entry or in or inby the last open crosscut. These 

prohibitions are stated in the alternative, and unless they mean the same 

thing, MSHA may not rely on one to support the other. In this case, the 

terms are not synonymous since the inspector testified that in any section 

in a room and pillar-mining system intake air is not always inby the last 

open crosscut, and that once the intake air leaves the last open crosscut 

it becomes return air (Tr. 67). 

It is well settled that inspectors' guidelines and manuals do not have 

the status of official mandatory regulatory safety standards. Kaiser Steel 

Corporation, 3 IBMA 489, 498 (1974); King Knob Coal Company, Inc., WEVA 

79-360 (June 29, 1981). The "policy" statement instructing inspectors to 

issue citations citing section 75.503 when they find nonpermissible electric face equipment operating in a return entry is an expansion of the 

clear statutory language limiting such violations to equipment observed 

operating in or inby the last open crosscut. MSHA has cited no authority, 

short of formal rulemaking under the Act, legally authorizing such an 

amendment or expansion of a mandatory statutory standard through the publication of "policy" statements. Since the policy statement is stated in the 

alternative, an inspector could use it to cite a violation of section 75.503 

if he observes non-permissible electric face equipment in or inby the last 

1836 
open crosscut, and he may also cite a violation if he finds such equipment 

located in a return air entry. Since MSHA has not established that such a 

return air entry is always inby the last open crosscut, and since the cited 

standard does not prohibit such equipment from operating in a return air 

entry per se, MSHA must establish through credible evidence that the cited 

welder was in fact located and operating inby the last open crosscut in order 

to sustain the violation and citation which was issued in this case. 

It seems clear to me that Inspector Hinkle's interpretation of the term 

"inby the last open crosscut" was based on.his reliance on the policy statement found in the Inspector's Manual as well as his use of a reference point 

which is directly related to the ventilating current of air rather than to. 

the working face of the mine (Tr. 24, 30, 33-34, 37-38, 54). As a matter of 

fact, Mr. Hinkle candidly admitted that anytime he finds non-permissible 

electric face equipment located in a return air entry he is free to issue a 

citation under section 75.503, and the reason he cites the "law" rather than 

the "policy" is that his instructions are not to cite the manual policy provision because an inspector may not rely on it (Tr. 37). 

Unless the inspector can establish that the cited non-permissible welder 

was located inby the last open crosscut as that term is generally understood 

in the mining industry, he should not be permitted to arbitrarily rely on 

policy statements which clearly enlarge on a statutory regulation simply 

because he believes that non-permissible equipment should not be allowed to 

operate in return air. If MSHA believes that the operation of such equipment 

in return air is per ~ a hazard, then it is incumbent on MSHA to promulgate 

a mandatory standard prohibiting such a practice, rather than attempting to do 

so through unpublished policy statements. Further, if MSHA believes that the 

use of the terms "inby" and outby" in the mining industry are outmoded, then 

I suggest MSHA redefine them through normally acceptable rulemaking rather 

than through the issuance of policy statements. Petitioner's counsel conceded that the policy statement found in the Inspector's Manual expands the 

statutory language found in section 75.503, but he nonetheless maintained that 

an inspector may rely on the policy in citing an operator for a violation of 

that section if he finds a non-permissible welder located in return air (Tr. 

36). 

Respondent's defense to the citation is that the petitioner has failed 

to carry its burden of proof and has not established that the non-permissible 

welder was in fact located inby the last open crosscut as that term is defined 

by the mining dictionary as well as the commonly understood and applied meaning 

of that term within the coal-mining industry. Respondent maintains that the 

point of reference for determining the meaning of the terms "inby" and "outby" 

should be the working production faces and not the flow of ventilating currents. Respondent also maintains that since the Inspector's Manual policy 

guidelines are not mandatory standards, the inspector cannot legally apply 

them to expand the statutory language contained in section 75.503 (Tr. 79-

82). 

After careful review of the testimony presented during the hearing, I 

find the inspector's testimony as to the location of the welding machine in 

1837 
question to be credible and I accept it. That is, I find that the welder was 

located at the approximate location and place in the return air entry as 

testified to by Inspector Hinkle and as reflected in his notes made at the 

time the citation issued, and as depicted in the sketch which is a part of 

the record (Exh. P-4). 

The next question to be determined is whether the welder in.question was 

inby or outby the last open crosscut. In this regard, I take note of the 

fact that neither the Act nor the standard defines the terms "inby" or 

"outby." However, the term "inby" is defined by the Dictionary of Mining, 

Mineral and Related Terms, U.S. Bureau of Uines, 1968 ed., p. 527, as 

follows: 

a. Toward the working face, or interior, of the mine; 

away from the shaft or entrance; * * * b. In a direction 

toward the face of the entry from the point indicated as the 

base or starting point. c. The direction from a haulageway 

to a working face * * *· d. Opposite oi outby. [Emphasis 

added.] 

The term "outby" is defined by the mining dictionary as follows: 

a. Nearer to the shaft, and therefore away from the 

face, toward the pit bottom or surface; toward the mine 

entrance. The opposite of inby. Also called outbyeside. 

B.C.I.; Fay. b. In a direction toward the mouth of the 

entry from the point indicated as the base or starting 

point. 

In a 1977 publication entitled Introduction to Underground Coal Mining, 

NMHSA-CE-001, published by the U.S. Department of the Interior, and apparently used at the National Mine Health and Safety Academy in the training 

of MSHA·' s inspectors, the term "inby" is defined as follows in a glossary 

of terms listed at page 216: "Toward the working face or interior of the 

mine, away from the shaft or entrance." 

The mining dictionary referred to above defines the term "face" in 

pertinent part as "the solid surface of the unbroken portion of the coalbed 

at the advancing end of the working place," "a point at which coal is being 

worked away," or "a working place from which coal or mineral is extracted." 

The term "face equipment" is defined as electrical equipment "normally 

installed or operated inby the last open crosscut in an entry or room." 

In one of the earlier cases decided under the 1969 Act, Mid-Continent 

Coal and Coke Company, 1 IBMA 250 (December 29, 1972), the former Board of 

Mine Operations Appeals had occasion to define the term "inby the last open 

crosscut," and in so doing affirmed a judge's ruling that it means "inby 

the interior-most rib or wall." 1 IBMA 254. 

,Respondent maintains that the term "inby" must be determined by use of 

the dictionary definition of that term, and that the starting reference 

1838 
point should be the interiormost rib or wall as stated in the Mid-Continent 

Coal and Coke Company case, supra, and that as applied to the facts of this 

case, it is clear that the welder was in fact located outby the face and not 

inby as contended by the inspector. 

After careful review and consideration of all of the testimony and evidence adduced in this proceeding, including the arguments made by counsel in 

support of their r_espective interpretations of the term "inby," I conclude 

and find that the respondent has the better part of the argument and I accept 

those arguments and reject those advanced by the petitioner. I conclude and 

find that the applicable dictionary definition of the term "inby," coupled 

with the interpretation placed on that term in the Mid-Continent Coal and 

Coke Company case, supra, is controlling in this case. I therefore conclude 

that by utilizing the innennost rib of the block of coal which was being 

mined in this case as a starting reference point (Exh. P-4), the welder in 

question was located outby the last open crosscut labeled "LOX" on that 

exhibit, and that it was not in fact located inby the last open crosscut. 

I further find that the welder was outby the face which was being mined at 

the time in question, down the return air entry, and way from the face area 

as depicted on the sketch. The fact that it was in that location is not 

per sea violation, and MSHA's attempts to expand on the statutory language 

foun~in section 75.503, by means of a policy prohibition against the use 

of non-permissible electric face equipment in a return air entry is rejected. 

If MSHA believes such a practice should be prohibited, then I suggest it take 

the proper steps to promulgate an appropriate safety standard through the 

proper rulemaking procedures. 

In view of the foregoing findings and conclusions, I find that the petitioner has failed to establish a violation of section 75.503, as charged in 

Citation No. 1003911, issued on May 6, 1980, and the citation is VACATED. 

ORDER 

On the basis of the foregoing findings and conclusions, IT IS ORDERED 

THAT Citation No. 1003911, issued on May 6, 1980, charging a violation of 

30 C.F.R. § 75.503, is VACATED, and petitioner's proposal for assessment of 

civil penalty for the alleged violation is DISMISSED. 

In view of the approved settlement for Citation No. 1003913, May 8, 

1980, 30 C.F.R. § 75.1719(l)(d), respondent IS ORDERED to pay a civil penalty in the amount of $90 in satisfaction of this violation, payment to be 

made within thirty (30) days of the date of this order, and upon receipt of 

payment by the petitioner, this matter is DISMISSED. 

~.!a~lf~ Administrative Law Judge 

1839 
Distribution: 

Rafael Alvarez, Trial Attorney, Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified 

Mail) 

Harry M. Coven, Esq., Gould & Ratner, 300 West Washington Street, 

Suite 1500, Chicago, IL 60606 (Certified Mail) 

1840 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 JUL 21 1981 

) CIVIL PENALTY PROCEEDING 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) DOCKET NOS. WEST 80-14-M 

) WEST 80-468-M 

Petitioner, ) WEST 81-50-M 

) 

v. ) A/C NOS. 02-00152-05004 

) 02-00151-05021 

) 02-00151-05022 

MAGMA COPPER COMPANY, ) 

) MINES: Superior 

Respondent. ) San Manuel 

) San Manuel 

APPEARANCES 

Marshall P. Salzman, Esq., Office of the Solicitor, United States 

Department of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, 

California 94102 

For the Petitioner 

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills, 1700 TowneHouse 

Tower, 100 West Clarendon, Phoenix, Arizona 85013 

For the Respondent 

Before: Judge Jon D. Boltz 

DECISION AND ORDER 

The above-captioned cases were ordered consolidated for hearing and 

the hearing was subsequently held in Phoenix, Arizona, on May 15, 1981. 

All of the cases involved petitions for assessment of civil penalties 

brought against the respondent by the petitioner who alleged violati.ons of 

various regulations promulgated pursuant tothe Federal Mine Safety and 

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

At the hearing, the petitioner and respondent stipulated as follows: 

1. The respondent is a large operator. 

2. Respondent has a moderate history of previous violations. 

3. Respondent demonstrated good faith in achieving rapid compliance 

after notification of violations. 

1841 
4. The MSHA inspectors who issued the citations were authorized 

representatives of the Secretary of Labor. 

5. The citations at issue were issued on the date and times indicated 

on the citations. 

6. The imposition of the proposed penalties will not affect 

respondent's ability to continue in business. 

The petitioner and respondent proposed the following as settlement to 

all of the citations at issue in the above cases, except Citation No. 

599623 which will taken up last in this Decision: 

Docket No. WEST 80-14-M 

Citation No. 382625 

Citation No. 380367 

Both citations alleged violations of 30 C.F.R. 57.12-8 in that two 

junction or signal boxes did not have a strain relief clamp where the 

conductor entered the box. Respondent agreed to withdraw its contest and 

pay the penalties proposed of $60.00 and $122.00 respectively. 

Citation No. 380364 

This citation alleged a violation of 30 C.F.R. 57.11-1 for failure of 

the respondent to provide a safe means of access to a working place. 

Petitioner stated that investigation had disclosed that the gravity of the 

violation was not as serious as initially assessed and that the penalty 

should be reduced from $90.00 to $50.00. Respondent agreed to withdraw its 

contest and pay the revised penalty of $50.00. 

Docket No. WEST 81-50-M 

Citation No. 599628 

Petitioner alleged a violation of 30 C.F.R. 57.13-21, however, 

counsel stated that additional investigation by MSHA indicated that there 

was insufficient evidence to sustain the allegation. Accordingly, the 

petitioner moved to withdraw the proposed penalty and vacate the citation. 

This motion was approved. 

Docket No. WEST 80-468-M 

Citation No. 599800 

Citation No. 599801 

In both citations, the petitioner alleged a violation of 30 C.F.R. 

57.12-25 for improper electrical grounding. The respondent agreed to 

withdraw its contest to the alleged violations and to pay the two $255.00 

penalties as proposed. 

1842 
Citation No. 599623 

Petitioner alleges that respondent violated 30 C.F.R. 57.tl-l in 

fai 1 ing to provide a safe means of acc.ess to an employee's working place. 

Specifically, the electrician employed by the respondent was observed on 

top of a 20 foot li~ht ~ole without a safe access to that area This 

employee had one leg straddled on the light cross beam~ He then proceeded 

to slide 10 feet down the pole to reach a 10 foot ladder. Petitioner and 

respondent agreed to these facts, but respondent argued that the behavior 

of the employee was at variance with what the employee had been instructed 

to do on the job. Thus, the respondent· argued that it should not be held 

strictly liable on the basis of the idiosyncratic behavior of an employee. 

I find that respondent's argument goes only to the question of 

respondent's negligence as an employer and does not relieve the respondent 

of liability for the violation of the cited regulation. On the basts of 

the agreed facts, I find that there was a violation of the cited 

regulation, that respondent was liable, but that there was little, if any, 

negligence on the part of the employer. Accordingly, the proposed penalty 

should be reduced. 

Frbm the bench, I approved the proposed settlements after considering 

the statutory criteria as set forth in section llO(i) of the Act. In 

regard to Citation No. 599623, I find that a penalty should be assessed in 

the amount of $50.00. 

ORDER 

The settlements approved from the bench are hereby affirmed. Citation 

No. 599623 is also affirmed. 

The respondent is ordered to pay total penalties in the sum of $792.00 

within 30 days from the date of this Decision. 

Distribution: 

Marshall P. Salzman, Esq,, Office of the Solicitor, United States 

Department of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, 

California 94102 

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills, 1700 TowneHouse 

Tower, 100 West Clarendon, Phoenix, Arizona 85013 

1843 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOHN F. MONAHAN, 

v. 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

Complainant, 

JUL 2 3 1981 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. WEST 81-196-DM 

MSHA CASE NO. 81-11 

EXXON MINERALS COMPANY, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Respondent. 

~~~~~~~~~~~~~~~~~~~-

ORDER 

On June 8, 1981, respondent filed a motion to dismiss. As grounds 

therefor, respondent states that complainant's employment with the 

respondent was terminated on February 14, 1980. It was not until October 

13, 1980, nearly eight months later, that complainant filed a complaint 

with the Secretary alleging that his discharge was in violation of Section 

lOS(c)(l) of the Federal Mine Safety and Health Act of 1977. 

Section lOS(c)(l) provides that any miner who believes he has been 

discriminated against, "may, within 60 days after such violation occurs, 

file a complaint with the Secretary alleging such discrimination." 30 

U.S.C. § 815(c)(2). It has been held that, "none of the filing deadlines 

are jurisdictional in natur~ Rather, they are analogous to statutes of 

limitation~ which may be waived for equitable reasons." Secretary of 

Labor, on behalf of Gary M. Bennett v. Kaiser Aluminum and Chemical , 

Corporation, CENT 81-35-DM (June 15, 1981). See also Christian v. South 

Hopkins Coal Co., l FMSHRC 126 (1979). 

Complainant does not deny the delay in filing his complaint with the 

Secretary. Rather, complainant states that the delay was due to personal 

problems such as finding other employment and obtaining a divorce. 

Complainant's Reply, filed June 22, 1981. 

I find that the explanations given by the complainant for the delay do 

not constitute "equitable reasons." The personal reasons listed by the 

complainant should not be considered justification for such a lengthy 

delay. 

1844 
The delay in the filing of the complaint makes it difficult for the 

respondent to obtain evidence because of the passage of time, and to force 

the respondent to defend itself in a suit after such a long period would be 

unjust. 

Therefore, respondent's motion to dismiss is hereby GRANTED and the 

case DISMISSED; 

Distribution: 

JoAnn L. Regan, Esq. 

Kenneth C. Minter, Esq. 

P.O. Box 2180 

Houston, Texas 77001 

Mr. John F. Monahan 

P. 0. Box 11 72 

Glenrock, Wyoming 82637 

~f~ Administrative Law Judge 

1845 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 4 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SEWELL COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. HOPE 78-744-P 

A. C. No. 46-03467-02070 

Meadow River No. 1 Mine 

SUPPLEMENTAL DECISION 

The Petitioner seeks civil penalties under section llO(i) of the 

Federal Mine Safety and Health Act of 1977 for two violations alleged in 

notices issued on February 13 and 14, 1978, respectively, at Respondent's 

Meadow River No. 1 Mine. The first notice of violation alleges that 

Respondent violated 30 CFR § 75.1704(b), failing to maintain a designated 

intake escapeway to insure the passage of any person at all times. The 

second notice alleges that Respondent violated 30 CFR § 75.200 by permitting the occurrence of fractured and loose roof in the No. 1 section above 

the No. 1 entry roadway just inby the last open crosscut and extending in 

toward the face approximately thirty feet. 

In its remand dated June 11, 1981, the Federal Mine Safety and Health 

Review Commission concluded that both violations occurred as charged by 

the Secretary and directed that penalties be assessed therefor. 

The parties agreed in stipulations that the Respondent is a large 

operator (stipulation No. 4, Tr. 6), that it had a moderate history of 

previous violations (No. 12, Tr. 7), and that the Respondent demonstrated 

good faith in abating the notices of violations. Respondent concedes that 

the payment of appropriate penalties would not jeopardize its ability to 

continue in business (Tr. 48). 

The statutory penalty assessment factors of "negligence" and "gravity" 

remain for discussion. These factors must be considered in light of the 

unique circumstances in which the notices were issued. At that time, 

employees at the mine had been on strike for over two months (stipulation 

No. _6, Tr. 6). Paul Given, Respondent's Safety Director, testified that 

during the strike the Respondent was 'unable to assign sufficient personnel 

for inspection and upkeep of the mine as would be necessary to prevent all 

violations. He stated that 50 to 60 miners would be needed during a strike 

to avoid violations, but that he had only 33 supervisory personnel working. 

Other than the inspector's unsupported opinion which I reject as not probative, there was no evidence that Respondent was negligent in committing 

the specific violations charged by Petitioner and found by the Connnission 

to have occurred (Tr. 24, 39-41). There is substantial unrebutted evidence 

in the record that no negligence occurred (Tr. 36, 38, 113, 120, 127), and 

I so find. 

1846 
The inspector testified that the escapeway violation was not particularly serious while the roof control violation was serious (Tr. 30, 37). 

Significantly, he also indicated that the gravity of the infractions was 

lessened by the fact that the mine was closed (Tr. 33), and that the policy 

behind issuing violations during "labor disputes" was to "document" hazardous conditions so that they could be corrected "when the work force returned." 

(Tr. 55, 57, 68, 71, 72). In this connection, he established the abatement 

time for the notices on a date he anticipated the strike would be over (Tr. 

58, 71). In these.circumstances, I find that neither violation was serious 

and that nominal penalties of $1.00 for each violation are appropriate. 

ORDER 

Respondent is ordered to pay $2.00 to the Secretary of Labor within 

30 days from the date hereof. 

Distribution: 

Michael McCord, Esq., Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

C. Lynch Christian, Esq., Jackson, Kelly, Holt & O'Farrell, P. 0. 

Box 553, Charleston, WV 25322 (Certified Mail) 

Gary W. Callahan, Esq., Sewell Coal Co., Lebanon, VA 24266 

(Certified Mail) 

1847 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 lUL 29 \~\ 

EASTERN ASSOCIATED COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Intervenor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AmUNISTRATION (MSHA), 

v. 

Petitioner 

EASTERN ASSOCIATED COAL CORPORATION, 

Respondent 

UNITED STEEL MINE WORKERS OF AMERICA, 

Intervenor 

Contest of Citation 

Docket No. WEVA 80-619-R 

Federal No. 2 Mine 

Civil Penalty Proceeding 

Docket No. WEVA 81-218 

A.C. No. 46-01456-03087 

Federal No. 2 Mine 

DECISION 

Appearances: 

Before: 

Sally S. Rock, Esq., Eastern Associated Coal Corporation, 

Pittsburgh, Pennsylvania, for Eastern Associated Coal Corp.; 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for Secretary of 

Labor; 

Terry Osborne, United Mine Workers of America, Morgantown, 

West Virginia, for Intervenor. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

Eastern Associated Coal Corporation (hereinafter "Eastern") commenced 

this action on August 11, 1980, by filing a Notice of Contest, concerning 

Citation No. 0631927, against the Secretary of Labor, Mine Safety and Health 

1848 
Administration (hereinafter "MSHA") pursuant to section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815 (hereinafter "the Act"). 

On February 18, 1981, MSHA filed a civil penalty proceeding against Eastern 

arising out of the same citation. Subsequently, the two proceedings were 

consolidated. 

Upon completion of prehearing requirements, hearings were held in 

Pittsburgh, Pennsylvania on January 22 and 23, and March 30 and 31, 1981. 

The following witnesses testified for MSHA: Kevin Cross, Dominic Salentro, 

William Deegan, James Merchant, Lawrence Knisell, John Phillips, Fred 

Williams, and Paul Hall. The following witnesses testified on behalf of 

Eastern: Lamar Richards, Gary Cumberledge, Gary McHenry,\Frank Peduti, and 

John Hetric. The United Mine Workers of America (hereinafter "UMWA") participated in this case as an intervenor on January 22, 1981, b~t not thereafter. 

Eastern and MSHA filed posthearing briefs. 

ISSUES 

Whether the citation was properly issued and, if so, the amount of the 

civil penalty which should be assessed. 

APPLICABLE LAW 

30 C.F.R. § 75.1401-1 provides as follows: "The American National 

Standards Institute 'Specifications For the Use of Wire Ropes for Mines," 

}ill.I - 1960, or the latest revision thereof, shall be used as a guide in 

the use, selection, installation, and maintenance of wire ropes used for 

hoisting." 

STIPULATIONS 

The parties stipulated as follows: 

1. Eastern is the owner and operator of the Federal No. 2 Mine. 

2. The operator and the Federal No. 2 Mine are subject to the jurisdiction of the Act. 

3. The presiding Administrative Law Judge has jurisdiction over this 

proceeding. 

4. The inspector who issued the subject citation was a duly authorized 

representative of the Secretary. 

5. True and correct copies of the subjec·t citation, modification, and 

termination thereof were properly served upon the operator. 

6. Copies of the subject citation, modification, and termination are 

authentic and may be introduced into evidence for the purpose of establishing 

their issuance and not for the truthfulness or relevancy of any statements 

asserted therein. 

1849 
7. All witnesses who will testify are accepted generally as experts in 

coal mine health and safety. 

8. The latest revision of the American National Standards Institute 

"Specifications for the Use of Wire Ropes for Mines," Mll.1-1960 is the 

1980 edition, approved March 14, 1979. The standards set forth therein are 

the standards to be used in the inspection and removal of hoist ropes 

pursuant to 30 C.F.R. § 75.1401-1. 

FINDINGS OF FACT 

I find that the preponderance of the evidence of record establishes 

the following facts: 

1. Eastern is the owner and operator of Federal No. 2 Mine in 

Fairview, West Virginia. The controversy at issue relates to the wire rope 

used on the manhoist at A shaft. During a normal working day, 40 miners 

simultaneously ride the manhoist between the surface and the area of the 

active workings located about 740 feet below. The manhoist and wire rope 

are used 80 times a day, 365 days a year. 

2. The wire rope in question was installed by Eastern in 1968. In 

addition to the visual inspection required by law, Eastern contracted with 

Rotesco to perform electromagnetic tests of the rope. The last such test 

was performed on April 15, 1980. On May 21, 1980, Rotesco reported that the 

rope had lost a maximum of 13 to 14 percent of its strength but did not 

recommend that it be removed. 

3. The American National Standards Institute approved the latest 

revision of its "Specifications for the use of wire ropes for mines" 

Mll.1-1980 on March 14, 1979. 

4. On April 15, 1980, three broken wires were found in one strand 1/ in 

one lay 2/ of the counterweight rope at A shaft. Thereafter, the counterweight rope was replaced by the only spare rope available at the mine property. On April 16, 1980, Eastern issued a purchase order for two spare wire 

ropes. Although these ropes were to be delivered to the mine on June 27, 

1980, they were not received until July 24, 1980. 

5. At Eastern's inspection on April 16, 1980, one broken wire in one 

strand of the hoist rope was discovered. This fact was recorded in the 

Report of Daily Inspection of Hoisting Equipment. • 

1/ A strand is a number of steel wires grouped together by twisting. The 

steel wire rope in question consists of a number of strands laid around a 

fiber core. 

J:../ A lay is the distance it takes one strand to make one complete turn 

around the axis of the rope. 

1850 
6. Between April 17, 1980 and July 21, 1980, the date the citation was 

issued, MSHA conducted seven separate inspections of the rope in question 

pursuant to UMWA complaints under section 103(g) of the Act. The dates of 

these inspections and the pertinent findings by MSHA are as follows: 

(a) April 17, 1980. Thirty broken wires were found. Two broken wires 

we.re found in the same lay, but the MSHA inspectors were not sure if they 

were in the same strand. The diameter of the rope was not recorded. MSHA 

inspectors advised the UMWA that there was no criteria by which to order 

the rope out of service. 

(b) May 15, 1980. Thirty-three broken wires were found. Two broken 

wires were found in one strand and one lay. 

(c) May 19, 1980. Thirty-three broken 

rope was not inspected. The MSHA inspectors 

by which to retire the rope because the rope 

in one strand or six broken wires in one lay. 

wires were found but the entire 

again said there was no criteria 

did not have three broken wires ,, 

(d) June 25, 1980. Thirty-nine broken wires were found in three 

different locations, with two .. broken wires in one strand in one lay. 

(e) July 14, 1980. No record of results of inspection. 

(f) July 16, 1980. Forty broken wires were found. In four strands, 

two broken wires were found in one lay. The smallest diameter of the wire 

rope was 2.14 inches. Eastern stated that a new wire rope was to be 

delivered on July 28, 1980. 

(g) July 21, 1980. Forty-one broken wires were found. Four strands 

had two broken wires in one lay. The smallest diameter of the rope was 2.13 

inches. Citation No. 0631927 was issued. 

7. On July 21, 1980, MSHA Inspector John Phillips issued Citation 

No. 0631927 pursuant to section 104(a) of the Act and 30 C.F.R. § 75.1401-1. 

The citation alleged the following: 

The time for removal of the man cage wire rope in 

A shaft is indicated by the increased No. of broken wires; 

four locations with two broken wires in.one strand in one 

lay, 33 broken wires at different locations, mak.ing a total 

of 41 broken wires. A marked reduction in rope diameter 

at four locations in the entire rope from a nominal diameter 

of 2.25 inches to a diameter of 2.13 inches. Evidence of 

excessive abrasion on the outside wires is evident. The 

above mentioned was determined by an inspection of the 

entire wire rope. The termination due date was established 

as midnight, July 28, 1980. 

1851 
8. On July 28, 1980, Inspector Phillips modified and terminated the 

citation as follows: 

This citation is modified to indicate the American 

National Standards Specifications for use of wire ropes for 

mines Mll.l 1960 or the latest revision thereof was not 

being used as a guide for inspection and removal of the man 

cage wire rope as indicated by the above mentioned conditions 

in the original Citation No. 0631927 and the Mine ID should 

have been 46-01456 instead of 46-01455. 

The Company installed a new wire rope on the man cage in 

A shaft. 

9. On March 14, 1979, the American Standards Institute, Inc., approved 

a revision of the "American National Standard for wire rope for mines" 

ANSI ~111.1-1980 (hereinafter ANSI Standard). The pertinent provisions of the 

above standard are as follows: 

1.5 Mandatory and Advisory Rules. In the standard, the 

word "shall" is to be understood as denoting a mandatory 

requirement; the word "should" is advisory in nature and is 

to be understood as denoting a recommendation. 

3.11.3 Visual Evidence of Rope Degradation. Im addition 

to the regularly scheduled inspections, the machine's 

operating personnel should report any visual evidence of rope 

degradation, such as: 

(1) Severe abrasion, scrubbing, peening, or kinking, or 

broken outer wires 

* * * * * * 

(3) Severe reduction of rope diameter or an observable 

increase in rope lay. 

* * * * * * 

(8) A rapid increase in the number of broken wires. 

4.6.2 Retirement Criteria 

4.6.2.l Causes for Rope Retirement. The following are 

causes for rem~val of wire rope: 

(1) Visible Wire Breaks. More than six randomly distributed broken wires on one rope lay or three broken wires 

in one strand in one rope lay. 

1852 

* 

* 
(2) Worn Wires. 

(3) Evidence of Loss of Strength. An estimation of 

from 10%-25% loss of rope strength (based upon measurements 

of rope diameter, wear pattern dimensions, corrosion, and the 

number of broken wires), estimated with a series of charts 

and graphs; charts and graphs may be provided by a wire rope 

or equipment manufacturer. Electromagnetic or other nondestructive testing devices may be used as a supplement but 

not as a substitute for recommended inspection and tests. 

(4) Evidence of Rope Abuse. The following are typical 

evidences of rope abuse: a kink ( a pulled-out twisted loop); 

a dogleg (a simple, permanent bend); a birdcage (strands 

separated and ballooned out); loose or high strand(s); a badly 

out of round section; a crushed or flattened section with 

abraded or broken wires; loose or looped wires with no visible 

breaks; a protruding core; a local section with an unusually 

small diameter; or a local section with an usually short or 

unusually long lay length. It should be noted that these 

conditions are all evidence of radical changes - that is, 

constructional upsets - in the structure of the rope. Removal 

is not required if the abuse can be removed by an end cut. 

10. The rope in question did riot have more than six randomly distributed 

broken wires in one rope lay or three broken wires in one strand in one rope 

lay. 

11. The maximum amount of reduction in the diameter of the rope was 

from 2.25 inches to 2.13 inches, or 5.3 percent. 

12. MSHA did not issue a safeguard or limitation on the maximum load to 

be carried on this rope at any time prior to the issuance of the citation. 

13. The term "worn wires" is not defined in the ANSI standard. 

14. After the rope in question was removed, a 14 foot piece of the 

rope was tested to failure by Bethlehem Steel Corporation. The rope had a 

catalogue strength of 480,000 lbs. and failed at 453,000 lbs or 5.6 percent 

less than the catalogue strength. 

15. The UMWA protested the continued use of the rope by refusing to 

work as follows: 

April 24, 1980 1 shift 

July 16, 1980 3 shifts 

July 17, 1980 1 shift 

July 21, 1980 3 shifts 

July 22, 1980 2 shifts 

July 23, 1980 1 shift 

1853 
16. MSHA does not allege that the rope presented an "imminent danger" 

under section 107(a) of the Act. 

DISCUSSION 

Difficulty of Determining Time for Removal of Wire Rope 

At the outset, it is recognized that determining the time for removal of 

a wire rope is an extremely difficult and complicated decision. This fact 

is demonstrated by section 4.6.1.1 of the ANSI Standard which states in 

pertinent part: "The decision concerning the proper time to retire a wire 

rope from service is difficult to make because of a significant lack of rope 

retirement criteria related to mining." MSHA's wire rope expert, Inspector 

Fred Williams, agonized over the "great burden to ••• look at a rope and 

make a decision and knowing that person's lives are involved and finally 

deciding that it is safe for another month or safe for another two months, 

it is quite a decision to make." (Tr. 302). 

However, it must also be noted that this is not a case involving an 

alleged "imminent danger" under section 107(a) of the Act. MSHA never 

asserted that the rope presented an immient danger. Hence, much of the evidence and argument presented by MSHA concerning the fears of miners and 

inspectors about the "last safe trip" of the manhoist is irrelevant to this 

proceeding. The basic issue here is whether MSHA established the violation 

of 30 C.F.R. § 75.1401-1 pursuant to the citation issued under section 104(a) 

of the Act. 

Analysis of the ANSI Standard 

The issue of whether the 1960 ANSI Standard is a mandatory or advisory 

standard is presently pending before the Federal Mine Safety and Health 

Review Commission (hereinafter "the Commission"). In Jim Walter Resources, 

Inc., 2 FMSHRC 1890 (July 25, 1980) Judge George Koutras reviewed and 

analyzed the 1960 ANSI Standard and concluded that "the specific ANSI 

Standards relied on by MSHA in support of the alleged violation in this 

case are advisory guides for voluntary use by the industry." Id. at 1902. 

(Emphasis in original.) Judge Koutras was construing 30 C.F.~§ 77.1903(b) 

which' is identical to the instant regulation at 30 C.F.R. § 75.1401-1. The 

Commission directed review of that decision. Curiously, MSHA neither 

addresses the issue of whether the ANSI Standard is mandatory or advisory 

nor mentions the Jim Walter Resources, Inc., -decision, in its brief. Moreover, MSHA did not reply to Eastern's assertion that•3o C.F.R. § 75.1401-1 

is not a nandatory standard. 

It must first be determined whether the citation alleged the violation 

of a mandatory standard. Section 104(a) of the Act permits MSHA to issue 

citations for violations of the "Act or any mandatory health or safety 

standard, rule, order, or regulation promulgated pursuant to this Act." Thus, 

a citation may be issued to an operator for violation of a regulation which 

is not a mandatory health or safety standard. However, section llO(a) of 

1854 
the Act permits the assessment of a civil penalty only against a person who 

violates "a mandatory health or safety standard or who violates any other 

provisions of this Act •••• " 

30 C.F.R. § 75.2 states that all safety standards in Part 75 are 

mandatory. 30 C.F.R. § 75.1401-1 states that the ANSI Standard shall be 

used as a guide. However, section 1.5 of the ANSI Standard provides that 

these standards using the term "shall" are mandatory while others using the 

term "should" are advisory in nature. 

In the instant case, the record is replete with references to various 

ANSI Standards. MSHA' s ·inspectors allege violations of ANSI Standards concerning daily examination of the rope and record keeping requirements. 

This evidence is irrelevant since the citation in issue alleges only the 

violation of ANSI Standards for failure to remove or retire the rope. It 

is clear that Inspector Phillips issued the citation because of the reduction 

in the diameter of the rope and the existence of broken wires. Inspector 

Hall stated that the substance of the alleged violation was broken wires, 

marked reduction of the rope diameter, and excessive abrasion. Inspector 

Williams and Inspector Phillips expressed their belief that Eastern violated 

sections 3.11.3 and 4.6.2.l of the ANSI Standard. 

ANSI Standard section 3.11.3 begins as follows: "In addition to the 

regularly scheduled inspections, the machine's operating personnel should 

report any visual evidence of rope degradation, such as •••• " (Emphasis 

supplied.) Pursuant to section 1.5 of the ANSI Standard, the use of the term 

"should" renders section 3.11.3 an advisory standard. Thus, since section 

3.11.3 is not a mandatory standard, no civil penalty can be assessed for a 

violation of that section. Moreover, ANSI Standard 3.11.3 only suggests 

that "operating personnel should report any visual evidence of rope degradation •••• " And does not purport to establish criteria for removal or 

retireMent of the rope. The citation in issue was based upon Eastern's 

failure to remove or retire the rope. MSHA did not cite Eastern for violation of 30 C.F.R. § 75.1400-3 which sets forth the requirements for the daily 

examination of hoisting equipment. Therefore, I find that MSHA's reliance 

upon section 3.11.3 of the ANSI Standard is misplaced, since the issue here 

whether Eastern violated the ANSI Standard by failing to remove or retire 

the rope prior to the time the citation was written. 

The only ANSI Standard applicable to this case is section 4.6.2.1 

which describes "causes for rope retirement." It is noted that this 

standard does not contain the terms "shall" or "shou}d" as defined in 

section 1.5 of the ANSI Standards. However, the introductory language of 

this section states: "The following are causes for removal of wire rope 

•••• " I find that the above quoted language of this section denotes a 

mandatory requirement. Hence, if MSHA establishes a violation of section 

4.6.2.1 of the ANSI Standard, the citation will be affirmed and a civil 

penalty assessed. 

1855 
Section 4.6.2.1(1) provides for the removal of wire rope where there 

are "more than six randomly distributed broken wires on one rope lay or 

three broken wires in one strand in one rope lay. 11 On this question, there 

is no conflict in the evidence. There is no evidence of more than six 

randomly distributed broken wires in one rope lay. Likewise, there is no 

evidence of three broken wires in one strand in one rope lay. On the date 

the citation was issued, MSHA found four strands with two broken wires in 

one lay. This evidence does not meet the criteria in section 4.6.2.1(1) 

concerning visible wire breaks. 

Section 4.6.2.1(2) provides for the removal of wire rope when there are 

"worn wires." The term, "worn wires," is not defined in the ANSI Standard. 

MSHA contends that there were worn wires while Eastern denies this assertion. 

The evidence establishes that wearing o~ abrasion begins with the first use 

of every wire rope. To that extent, every rope in service has "worn wires." 

The failure of the ANSI Standard to define the term "worn wires" renders this 

section too vague to be enforceable. See Connally v. General Construction 

Co., 269 U.S. 385, 391 (1926). In any event, UMWA Safety Committeeman Kevin 

Cross testified that he inspected the wire rope on four occasions between 

April 17, 1980 and the date of this citation and he saw no evidence of wear 

on the rope. 

Section 4.6.2.1(3) provides that a cause for rope removal is as follows: 

* * * * * * * 

(3) Evidence of Loss of Strength. An estimation of 

from 10%-25% loss of rope strength (based upon measurements 

of rope diameter, wear pattern dimensions, corrosion, and the 

number of broken wires), estimated with a series of charts 

and graphs; charts and graphs may be provided by a wire rope 

or equipment manufacturer. Electromagnetic or other nondestructive testing devices may be used as a supplement but 

not as a substitute for recommended inspection _and tests. 

It must first be determined if this provision even qualifies as a standard of 

any kind. The section apparently provides that if it is estimated that there 

is a ~10 to 25 percent loss of rope strength, the rope should be removed. It 

does not appear that ANSI intended that ropes _with less· than a 10 percent 

loss of strength should be removed. The standard can be read as requiring 

the removal of ropes with a loss of strength.of 25 percent or more. For 

losses of strength of less than 25 percent but more ehan 10 percent, the 

standard is vague and unenforceable under the Act. Since there is no evidence 

in the record of a 25 percent loss of strength of the rope in question, MSHA 

failed to prove a violation of this section. 

Section 4.6.2.1(4) deals with evidence of rope abuse. However, MSHA's 

wire rope expert, Inspector Fred Williams, conceded that there was no 

evidence of rope abuse in this case. 

1856 
In conclusion, MSHA has failed to establish a violation of the applicable ANSI Standard. The foregoing discussion illustrates the problems encountered by MSHA in its attempt to delegate the promulgation of mine safety 

enforcement standards to a non-governmental body. On April 28, 1981, MSHA 

published a notice that it intends to propose "specific requirements for 

wire ropes [which) will eliminate the need to incorporate by reference the 

ANSI Standard." 46 Fed. Reg. No. 81 at 23987 (April 28, 1981). 

CONCLUSIONS OF LAW 

1. The Administrative Law Judg~ has jurisdiction over the parties 

and subject matter of this proceeding. 

2. Eastern and its Federal No. 2 Mine are subject to the Act. 

3. The evidence of record fails to establish that Eastern violated 

the ANSI Standard as alleged and Citation No. 0631927 is vacated. 

4. The evidence fails to establish the violation of a mandatory health 

or safety standard and the petition to assess a civil penalty is dismissed. 

ORDER 

WHEREFORE IT IS ORDERED that Eastern's Contest of Citation No. 0631927 

is SUSTAINED and Citation No. 0631927 is VACATED. 

IT IS FURTHER ORDERED that the petition to assess a civil penalty is 

DISMISSED. 

Distribution Certified Mail: 

O" A. Laurellson, Judge 

Sally S. Rock, Esq., Eastern Associated Coal Corp., 1728 Koppers Bldg., 

· Pittsburgh, PA 15219 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 2220} 

Terry Osborne, United Mine Workers of America, District 31, Route No. 1, 

Box 103-E, Morgantown, WV 26554 

1857 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 80-292 

Petitioner A.C. No. 25-02502-03018F 

v. 

No. 18 Mine 

SHAMROCK COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

George Drumming, Jr., Esq., Assistant Solicitor, Mine 

Safety and Health Administration, U.S. Department.of Labor, 

Nashville, Tennessee, for Petitioner; 

Neville Smith, Esq., Manchester, Kentucky, for Respondent. 

Judge Lasher 

This proceeding arose under section llO(a) of the Federal Mine Safety and 

Health Act of 1977. A hearing on the merits was held in Manchester, Kentucky, 

on May 19, 1981, and May 20, 1981. After considering evidence submitted by 

both parties and proposed findings of fact and conclusions of law proffered 

by counsel during closing argument, I entered an opinion on the record. 1/ 

My bench decision containing findings, conclusions and rationale appearsbelow as it appears in the record, aside from minor corrections. 

This proceeding was initiated by the filing of a petition for a penalty assessment by the Mine Safety and Health 

Administration on August 25, 1980, pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977 alleging 

two violations of 30 C.F.R. § 75.200 involving in turn two 

alleged infractions of the Respondent's approved roof-control 

plan on October 30, 1979. On this date, at apprbximately 

6:30 p.m., a roof fall occurred in the No. 4 entry of the 

005 secti.on of Respondent's No. 18 Mine resulting in the 

death of section foreman Floyd D. "Dave" Burke. Following 

J:/ Tr. 201-220. 

1858 
the accident, Mine Safety and Health Administration inspector Lawrence Spurlock issued a withdrawal order pursuant 

to section 103(k) of the Act to assure the safety of the 

miners until the MSHA investigation was completed. This 

withdrawal order which issued at 10 p.m. on October 30 was 

terminated on October 31, 1979, at 5 p.m. On October 31, 

1979, Citation No. 736789 was issued alleging noncompliance 

with the roof-control plan in that additional support, such 

as timbers or cribs, was not being used with metal straps 

where abnormal conditions were encountered and, furthermore, 

that a test hole was not drilled in the subject area. This 

citation, which issued at 4:30 p.m., was terminated 2 days 

later on November 2, 1979, when the inspector determined that 

the roof-control plan was being complied with inasmuch as 

additional support, such as cribs and timbers, were installed 

in the accident area and a test hole had been drilled. 

The parties, both of whom were represented by counsel 

at the hearing, entered various stipulations covering the 

jurisdiction of the Administrative Law Judge and further 

indicating that Respondent is a large operator; that the 

operator's history of previous violations for the 24-month 

period prior to October 30, 1979, revealed that Respondent 

was assessed and paid penalties for eight violations of 

30 C.F.R. § 75.200; that Respondent demonstrated normal good 

faith in attempting to achieve compliance; t~at assessment of 

penalties would not affect Respondent's ability to continue 

in business; and that the injury frequency rate comparison of 

Respondent for the last quarter available prior to the accident was 9.62 for the coal mining industry and .62 for 

Respondent. That is, Respondent's injury frequency rate was 

.62 whereas the industry frequency rate was 9.62. 

The paramount issues in this case involve the proper 

construction to be placed on pertinent language in the roofcontrol plan (Exh. P-8). That plan, at page 4, in pertinent 

part provides: 

Crossbars to be used when pots, slips, horsebacks or hill seams are encountered. A minimt.nn of 

two crossbars to be used at each locatiort. At 

least one post to be used under each end of the 

crossbars and the posts are not to be more than 

fourteen feet apart. Crossbars to be installed on 

four foot centers and the foreman in charge shall 

determine when the installation of crossbars is to 

be discontinued. 

Steel straps predrilled on not more than four 

foot centers and installed with roof bolts on not 

1859 
more than four foot centers may be used in lieu of 

wood crossbars, as stated above, in areas where the 

roof structure is of such nature that it will provide adequate anchorage for roof bolts. 

In areas where steel straps have been utilized 

in lieu of wood crossbars where abnormal roof conditions are encountered, the area shall be supported 

with cribs and-or posts set on four foot centers 

on each side of a sixteen foot wide roadway. 

Counsel for both parties agree that the main legal issue 

is whether abnormal or subnormal roof conditions existed in 

the area where the roof fall occurred. The three-paragraph 

portion of the roof-control plan above quoted refers to 

abnormal roof conditions in the third paragraph thereof. At 

page 5 of the roof-control plan, an explanation is contained 

in paragraph 1 to this effect: "This is the minimum roof 

control plan and was formulated for normal roof conditions 

and the mining system(s) described. When subnormal roof conditions are encountered, indicated or anticipated, additional 

roof support such as longer and/or additional roof bolts, 

posts, or crossbars, shall be installed." 

MSHA seeks penalties for two violations of the plan, 

the first being for the failure to install cribs or posts as 

required by the third paragraph of the plan quoted hereinabove and the second for failure to install a drill hole as 

MSHA contends is required by paragraph 12 of the plan shown 

on page 6 thereof which provides: 

During each produ~tion shift at least one 

roof bolt hole in each active working place shall 

be drilled to a depth of at least twelve inches 

above the anchorage horizon of the bolts being 

used shall either: (a) be left open; (b) be 

plugged with a readily removable plug; or (c) 

a roof bolt compatible in length with the depth 

of the hole shall be installed and the plate 

shall be encircled with a paint distinctively 

different in color from the roof. 

Inspector Spurlock testified on behalf of MSHA and indicated that after being notified of the accident he went to the 

mine, arriving there at approximately 8:30 p.m. on October 30. 

He ~~turned on October 31 at approximately 9 a.m. and conducted 

an accident investigation. Among other things, he .determined 

that the dimensions of the part of the roof which fell were 

approximately 40 feet long, 20 feet wide and 20 to 36 inches 

~hick. These dimensions differ somewhat, but not in a material 

1860 
way, from the dimensions provided in MSHA's Report of Investigation (Exh. P-7) at page 2 thereof. 

The inspector testified that the Report of Investigation 

reflected what he found during his investigation. He also 

indicated that the roof fall covered approximately half of 

the entry in which it fell; that some of the roof which fell 

landed on a continuous miner and shuttle car which were in 

the area; and that there were hill seams present in the subject location, some three in number, running one side to the 

other about 30 to 40 feet as reflected in a sketch contained 

on page 3 of Exhibit P-7. Although at the commencement of 

the hearing Respondent challenged the accuracy of the sketch 

in a general way, I find that insofar as an evaluation of the 

accident scene for purposes of this proceeding are concerned, 

the sketch is sufficiently accurate to be accepted as an 

indication of the locations of the hill seams, equipment and 

personnel involved at the time and place of the accident. 

There was no substantial challenge or attack with respect to 

the accuracy of the sketch during the hearing. 

The inspector also determined that the means of roof support employed was. that designated in the second paragraph of 

the three-paragraph roof-control plan mentioned above, that 

is, steel straps installed with roof bolts. Steel straps 

and roof bolts were found at the place where the roof had 

fallen. The inspector testified that in his opinion the 

Respondent was not in compliance with the plan since it did 

not use cribs or timbers; that any fracture in the roof is 

"abnormal" and that in this respect he disagreed with the 

Respondent's safety director, Gordon Couch, with whom he had 

a conversation on October 31, 1979. According to the inspector, Mr. Couch's belief was that hill seams were normal 

because of their prevalence throughout the mine and in the 

section where the accident in question occurred. 

With respect to the second alleged violation, the 

inspector testified that he was told by day shift foreman James 

Napier that he, Napier, had asked for a test hole to be drilled. 

The inspector, during his investigation on October 31, 1979, 

also conversed with the roof bolter on the day•shift, Stanley 

Roark, who told the inspector that he was directed by Foreman 

Napier to drill a test hole but that he did not. The inspector 

testified that on November 31 he looked for a test hole but 

could not find one. 

The No. 18 Mine has two production shifts each day, the 

first from approximately 7:30 a. m. to 3:30 p.m. and the 

second from 3:30 p.m. to 11:30 p.m. 

1861 
The inspector indicated that in his opinion only a hairline crack in the roof would have been visible in the roof 

fall area prior to the fall. He was unsure whether a test 

hole, had one been drilled, would have made obvious any 

weakness in the roof. In that connection, the Report of 

Investigation, at paragraph 5 on page 2 thereof, indicates 

that the presence of draw rock in the No. 4 entry, "[p]revented the workmen from detecting the loose roof with sound 

and vibration tests." 

The inspector confirmed that Respondent had a low injury 

frequency rate and he felt that the No. 18 Mine was a safetyconscious operation. With respect to hill seams, the inspector indicated that such may be manifested in the mine roof by 

only a hairline crack and that it may or may not be detectable 

by viewing the mine roof. He also indicated that the draw 

rock might not enable one to detect a loose roof with a soundvibration test and that the 6 to 8 inches of draw rock in the 

roof would make it difficult to determine if the crack in the 

roof was simply a nondangerous crack or the manifestation of a 

hill seam. The record is clear, from the testimony of other 

w~tnesses, that the roof of the No. 18 Mine contains ntnnerous 

cracks and according to Safety Director Couch, most of these 

hairline cracks throughout the mine are firm and safe when 

tested. 

Focusing specifically on the roof fall itself, the 

record is also clear that the roof broke without significant 

prior warning about 3 hours into the second production shift 

and that the foreman on the first production shift, James 

Napier, had tested or sounded the roof with a hammer on his 

shift and found the roof to be safe in the sense that no 

structural weakness was ascertained. Napier testified that 

he made this test at approximately 2:50 p.m. and the roof 

sounded "solid." Napier indicated that 30 to 32 inches of 

rock can be sounded by this method (in this connection I 

note that the thickness of the roof which fell ranged from 

20 to 36 inches according to the inspector). Napier indicated that he, as section foreman on the first shift, usually 

conferred with the foreman on the second shift prior to the 

changing of the shifts and that on October 30 ke discussed 

with Section Foreman Burke the hill seams in the area of the 

roof fall. According to Napier, he did not recommend to Burke 

that Burke take any particular action on his shift with respect 

to the hill seams. It should be noted that although Napier 

confirmed that he had directed his employees to drill a test 

hole on his shift, that Napier did not check to see if the 

drill hole had been drilled before his shift ended. Thus, 

Napier did not mention to the decedent, Mr. Burke, that no 

test hole had been drilled in their conversation at the 

changing of the shifts. 

1862 
I do find, on the basis of the inspector's testimony 

that during his investigation of the accident he was advised 

by the first shift roof bolter that no test hole had been 

drilled, and from Napier's testimony that his employees had 

reported to him after the accident that no hole had been 

drilled, that such was a fact. 

Respondent has objected to the hearsay nature of this 

testimony. A report or statement made to an inspector during 

an investigation of an accident carries with it a higher 

degree of trustworthiness than may ordinarily be prevalent 

in a common conversation between two individuals. The testimony of Napier, a management person for Respondent, further 

vouches for this trustworthiness. According to the inspector, 

the reason that the roof bolter on the first shift did not 

drill a test hole was that he did not have any drill steel. 

This explanation given by the roof bolter to the inspector 

further supports the finding that a test.hole was not drilled 

on the first shift. In any event, hearsay, by virtue of 

express provisions of the Administrative Procedure Act, is 

admissible in this proceeding. And for these various bases 

and various reasons, I credit the testimony of Napier and 

Inspector Spurlock in this connection. 

I also find that the area where the roof fall occurred 

and where Napier directed that a test hole be drilled was 

inby the working place and that a test hole should have 

been drilled in this area during the first shift. This is 

vouched for by the fact that the section foreman during his 

shift directed that a test hole be drilled there. Although 

at one time during the proceeding, Respondent conceded that 

no test hole had been drilled on the second shift during the 

first 3 hours thereof before the accident occurred, Respondent subsequently withdrew this stipulation. Respondent's 

position is that the pertinent provision of the roof-control 

plan, paragraph 12 at page 6, permits the hole to be drilled 

"during each production shift" and that there could be no 

infraction thereof on the second shift since another 5 hours 

of the shift remained after the accident. 

I concur with Respondent's position with respect to the . second shift since it cannot be said that a bolt hole would 

not have been drilled during the shift. The regulation is 

a standard which determines the obligation of the mine operateor. It does permit the drilling of the bolt hole at an 

unspecified time during each production shift. To constitute a violation in this case, insofar as 'the second shift 

is concerned, paragraph 12 would necessarily have required 

the drilling of a bolt hole at the beginning of a shift 

ra,ther than "during the shift." However, I do find that 

1863 
the area in question was an active working place on the 

first shift and that a bolt hole should have been drilled 

during Mr. Napier's shift. And since I find that one was 

not, and Respondent has introduced no evidence that one was, 

I conclude that a violation of 30 C.F.R. § 75.200 did 

occur in this respect as alleged by MSHA. 

In his gravity sheet (Exh. P-5), Inspector Spurlock indicated that: 

The crew was questioned and they stated they 

did not drill a test hole in the area to evaluate 

the extent of the roof conditions. However, due 

to the firmness of the shale it is very doubtful 

if the test hole would have detected the crack in 

the top. 

I therefore find, based thereon, as well as other testimony 

in the record, that it is conjectural whether or not the 

test hole would have disclosed a structural weakness (see 

testimony of safety director Gordon Couch) and that there 

is no causal relationship, direct or otherwise, between the 

violation and the roof fall which resulted in the death of 

Second Shift Section Foreman Burke. 

Turning now to the question whether or not the failure 

to install cribs or posts in the accident area in conjunction 

with the steel straps which were used to support the roof constitutes a violation, it first should be noted that Respondent 

has stipulated that in fact no timbers or cribs were used and 

that only steel straps installed with roof bolts were used 

to support the roof in the accident area on October 30, 1979. 

I so find. 

According to Denver Collins, a shuttle car operator who 

was called as a witness by MSHA, cribs and posts would not 

have been installed in the subject entry due to its width--

that is, the entry was 20 feet wide and because the continuous miner working in the area was 10 feet 9 inches wide and 

the cribs would have been approximately 4 feet wide each, 

there would not have been maneuvering or operating room in 

the area. This testimony was not further developed on the 

one hand or challenged on the other so, accordingly, I do 

conclude that the physical size limitations of the area 

would have precluded the use of cribs and posts. However, 

the question remains whether or not the roof-control plan, 

which the parties agree does authorize the use of steel 

straps installed by roof bolts, should be construed so as 

to require the supplementary installation of cribs and posts 

at all times the "steel strap" alternative is utilized. If 

1864 
so, the impossibility of installing cribs or posts in the area 

would in turn preclude the use of the steel strap alternative 

and ~equire the mine operator to use crossbars as the only 

means of roof support specifically authorized by the pertinent 

three-paragraph plan. 

To fully understand this plan, the three paragraphs must 

be paraphrased. The first paragraph unequivocally requires 

crossbars td be used when the hill seams are encountered. 

The second paragraph permits an alternative: Steel straps 

installed with roof bolts. The third paragraph thus becomes 

critical. It states: "In areas where steel straps have been 

utilized in lieu of wood crossbars where abnormal roof conditions are encountered, the area shall be supported with 

cribs and/or posts--", etc. 

This plan is glorious in its ambiguity and pregnant with 

the confusion which it necessarily creates in the minds of 

the miners, the operators and the Government enforcement 

personnel who must work wit.h it, implement it, live with it, 

and enforce it. Nevertheless, it is a minimum. plan and we 

must endeavor to answer various subquestions which arise. 

MSHA contends that the third paragraph is a necessary qualification to the second paragraph, that is, cribs and posts must 

always be used to back up the use of steel straps. Respondent, on the other hand, contends that it has the option to 

use either crossbars or steel straps and that cribs and posts 

are required to be used only "[w]here abnormal roof conditions 

are encountered." Respondent contends that the "pots, slips, 

horsebacks or hill seams" language contained in the first 

paragraph are not abnormal roof conditions. Petitioner contends that they are and that paragraph 3~s reference to 

abnormal roof conditions must be referenced back to the first 

paragraph. 

I agree with the Petitioner's position with respect to 

the construction of this regulation. My reasons for doing 

so are based first on the general philosophic principles 

governing statutory construction of remedial legislation, 

secondly on ancillary provisions of the roof-control plan 

itself and finally because of the severe hazards roofcontrol regulations seek to prevent. 

In Cleveland Cliffs Iron Company, Inc., Docket No. VINC 

79-68-PM, the Federal Mine Safety and Health Review Commission, 

in a decision dated Februqry 9, 1981, endorsed the principle 

of the liberal construction of the Act and its implementing 

regulations so as to promote the remedy sought by such 

standards. 

1865 
The roof-control plan itself, as previously noted, 

recognizes that the three paragraphs are minimums and it 

anticipates that additional bolts, posts or crossbars 

would be installed in subnormal roof conditions when such 

are "encountered, indicated or anticipated." Considering the rule of liberal construction and the apparent 

abundantly cautious tenor of the plan itself, a reading 

of the three paragraphs is required which would promote 

rather than diminish safety even though I do believe 

that the three paragraphs can be read as Respondent contends without an absurdity resulting. 

I conclude that hill seams, as mentioned in paragraph 1, 

are an abnormal roof condition within the meaning of paragraph 3 and a subnormal roof condition within the meaning of 

paragraph 1 of page 5 of the plan. I do so for two reasons. 

The first phrase of paragraph 3 ends with the word 

"e.ncountered." This encourages the ,construction that cribs 

and posts must be used in all cases where steel straps are 

utilized. A contrasting punctuation would have been to 

place a comma after the word "crossbars" in paragraph 3, in 

which event the concept of abnormal roof conditions would 

stand out as a separate situational classification which, 

by itself, would call for cribs and posts. 

The second reason I find that hill seams are abnormal or 

subnormal roof conditions is based upon my view of the evidence in this proceeding and observation of various witnesses who testified concerning the nature of hill seams. 

Section Foreman Napier, although he indicated that "[j]ust 

because you have a hill seam or crack someplace doesn't mean 

it's dangerous," also stated: "You never know about a hill 

seam. You can test hole them and they'll be solid and it 

would fall anyway. You can't tell by looking." Napier's 

actions on October 30 indicated a considerable concern with 

the hill seams in the roof fall area. I felt the inspector's opinion that hill seams were abnormal conditions was 

also credible and should be accepted over those of Respondent's witness Gordon Couch, who, on two occasions, indicated that he did not really know what a hill seam was. 

Mr. Couch wanted to treat a hill 'seam as a "se~m" even 

though there is considerable evidence in this record that 

a hill seam runs from the top or outside of the mountain 

down into the mine and manifests itself as a crack or a seam 

visible to the naked eye in the mine roof. I conclude that 

hill seams are abnormal or subnormal roof conditions within 

the meaning of the roof-control plan; that they pose a significantly higher degree of risk of roof falls because of 

their susceptibility to water which, indeed, on occasion 

has been seen leaking from them, and since hill seams 

1866 
require and in fact were and have been given a much higher 

degree of attention by the mine foreman and the miners than 

other normal mine conditions. 

There is credible unchallenged testimony in the record 

that cribs would have supported the amount of roof that fell 

on October 30, 1979, but also that neither the steel straps 

installed with 36-inch roof bolts and crossbars would not 

have held up· the part of the roof which fell at that tragic 

time. Thus, crossbars and metal straps would support only 

3 to 4 tons, whereas cribs would have supported 100 to 

150 tons, according to Safety Director Couch. 

I conclude, therefore, that unduly peculiar factual 

situations were posed in this case; that even though steel 

straps were used, where abnormal roof conditions were 

encountered and where cribs and posts were not susceptible 

to being installed in the entry in question, that only two 

options remained with Respondent: (1) to either use crossbars, which would have not held up that amount of roof, or 

(2) not mine--that is, cut into the area in question. The 

option was available to the Respondent to use crossbars in 

the situation which it encountered on October 30, 1979. 

Thus, it cannot b~ said ~hat there is a direct causal 

relationship on these unusual facts between the failure to 

use cribs and posts and the roof fall which resulted in the 

death of Mr. Burke. Again, this is becaus.e the option was 

available to use crossbars--which would not have held the 

roof up. 

Whether a causal relationship exists between the violation and an accident greatly determines the degree of gravity 

which must attach to the violation. However, any violation 

of a roof-control plan is a serious violation. I thus conclude that since two miners were immediately exposed to the 

roof fall, that is the continuous miner operator and the 

shuttle car operator, and other miners on the crew were 

also exposed to any hazard which might result from the violation in question, that both the failure to drill a test 

hole and the use of steel straps without cribs or posts 

were both serious violations. 

I find, ~herefore, that the failure to use crossbars in 

the area at the time constituted a violation of 30 C.F.R. 

§ 75.200. I find that the use of steel straps in the area, 

which was an area in which cribs and posts could not be 

utilized, is a corollary to this violation, that is, it is 

the other side of the coin. 

With respect to negligence, which is the remaining 

statutory penalty assessment factor to be considered, in 

1867 
view of the early stipulations of the parties, I find that 

Section Foreman Napier was negligent in not following 

through to determine whether the test hole he ordered 

drilled in the portion of the roof which fell was drilled. 

He also indicated that he did not tell Mr. Burke about the 

test hole--I infer this from his overall testimony including 

his testimony that he did not recommend any action on 

Burke's part when he spoke to Burke at the changing of the 

shifts. The record is clear that Napier recognized the 

danger the hill seam posed, as I have previously pointed 

out, and he did testify that he told Foreman Burke to 

"[w]atch and be careful." I thus find, based upon Napier's 

testimony, that at least one member of management considered the hill seams to be dangerous but that in the changeover of shifts, appropriate action failed to be taken by 

management with respect to the V-shaped hill seams in the 

accident area. 

I do not find any negligence attributable to Respondent 

based on Napier's actions or nonactions to be of a high degree 

since Napier did sound the roof and did take action which he 

might have believed had been carried out by employees. I also 

find that culpability on the part of Respondent's management 

in the commission of the two violations found is substantially 

mitigated by the lack of clarity in the three-paragraph roofcontrol plan insofar as that particular violation is concerned. 

Weighing then the factors which must be considered in assessing 

penalties, the factors of the large size of the company, 

moderate degree of negligence, and seriousness of the violations, go toward raising any penalty which might otherwise be 

appropriate. Counterbalanced against those factors are the 

factors that Respondent's previous history of violations 

appears to be moderate, only relatively small penalties were 

paid for the eight prior violations of the cited regulation, 

and Respondent had a highly commendable injury frequency rate 

for the quarter immediately preceding the accident. Inspector 

Spurlock considered the Respondent to be a safety-conscious 

operation. Finally, it was stipulated that the Respondent 

demonstrated normal good faith in attempting to achieve 

compliance with the violated safety standard. 

I would add that I believe the Respondent sincerely 

construed the roof-control plan in the manner that it urges 

here today and that such position is not a cynical one. 

Considering all of these factors, a penalty of $750 is 

assessed for the violation in Citation No. 736789 relating 

to the failure to drill a test hole and a penalty of $2,250 

is assessed for the violation charged in Citation No. 736789 

insofar as the same relates to the failure to comply with the 

1868 
roof-control plan by using steel straps to support the roof 

without supplemental cribs and posts being utilized. 

ORDER 

It is ORDERED that Respondent pay the sum of $3,000 to 

the Secretary of Labor within 30 days from the date hereof. 

All proposed findings of fact and conclusions of law, which 

have not been expressly incorporated in this decision, are 

REJECTED. 

Michael A. Lasher, Jr., Judge 

Distribution: 

George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department 

of Labor, 801 Broadway, Room 280, Nashville, TN 37203 (Certified 

Mail) 

Neville Smith, Esq., P.O. Box 441, Manchester, KY 40962 (Certified 

Mail) 

1869 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER.COLORADO 80204 

) 

) 

JUL ·31 1981 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, 

v. 

C F & I STEEL CORPORATION, 

) DOCKET NO. WEST 79-291 

) 

) ASSESSMENT CONTROL NO. 

) 05-02820-03014 

) 

) MINE : Max we 11 

Respondent. ) ~~~~~~~~~~--'---~~~~-

DECISION AND ORDER 

Appearances: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

This proceeding arose through initiation of an enforcement .action 

brought pursuant to section 105 of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. 0978) [hereinafter cited as'111 the 1977 

Act" or "the Act"]. The Secretary of Labor, Mine Safety and Health 

Administration [hereinafter "the Secretary"], brought this action against 

C F & I Steel Corporation [hereinafter "C F. & I"] alleging two violations 

of the Act. The Secretary seeks an order assessing civil monetary 

penalties against C F & I for its alleged violations of the Act • 

• 

1870 
On March 2, 1981, the parties filed wlth the Connnission a Joint Motion 

to Approve Se~tlement regarding the alleged violation contained in Citation 

No. 387990. Pursuant to notice, a hearing on the merits was held on March 

3, 1981, in Pueblo, Colorado. In anticipation of a favorable ruling on the 

pending motion, testimony at the hearing was limited to the alleged 

violation contained in Citation No. 387774. On March 16, 1981, I denied 

the pending motion, without prejudice, for failure to provide sufficient 

facts in support of the appropriateness of the penalty proposed by the 

parties. A Stipulation and Motion to Approve Settlement Agreement and 

Order Payment was subsequently filed with the Connnission on May 28, 1981. 

As a matter of procedure, I will treat the two citations separately in 

this decision. Citation No. 387774, to be addressed first, will be decided 

on the evidence presented at the hearing. Citation No. 387990 will then be 

decided based upon the pleadings contained in the record. 

CITATION NO. 387774 

FINDINGS OF FACT 

1. C F & I is the operator of an underground coal mine located near 

Weston, Colorado, known as the Maxwell Mine. 

2. Products of the Maxwell Mine enter or affect interstate connnerce. 

3. On March 19, 1979, during the course of an investigation of an 

unintentional roof fall in development Unit No. 2, · a duly authorized 

representative of the Secretary conducted an inspection of the Maxwell 

Mine. 

4. In that unit, the MSHA inspector observed a strike 1/ running 

diagonally a~ross five consecutive entries. The strike, which had advanced 

as far as Entry No. 12, was accompanied by water and unconsolidated roof. 

S. Two unintentional roof falls had recently taken place at the 

Maxwell Mine. One fall occurred on February 6, 1979, in Entry No. 14, and 

the other occurred earlier on the day of the inspection, in Entry No. 13. 

The location of the two falls closely approximated points on the line 

formed by the strike. 

1/ A strike is defined as a deformity in the roof which designates a 

weakness in the roof strata, (Tr. 117), or the direction or bearing of a 

horizontal line in a structual plane. U.S. DEP'T. OF THE INTERIOR, BUREAU 

OF MINES, A DICTIONARY OF MINING, MINERAL, AND RELATED TERMS 1089 (1968). 

1871 
6. Citation No. 3877742/ was issued to C F & I by thj MSHA 

inspector for its alleged violation of 30 C.F.R. § 75.200. / 

7. Two days prior to the roof fall in Entry No. 1"4, C F & I 

supervisory personnel concluded that the condition of the immediate roof 

was precipitous and that the area should be deadlined to prevent further 

travel. C F & I proceeded to timber-off the affected area and then waited 

for the roof to fall. 

8. Following the roof fall of February 6, 1979, and prior to the roof 

fall of March 19, 1979, C F & I took the following steps to improve its 

roof control in the area in Entry No. 13 adjacent to the strike line: 

increased roof bolt lengths from 42 inches to 72 inches; decreased roof 

bolt centers from four feet to three or two feet, or whatever the roof bolt 

installer thought necessary to control roof conditions; spotted steel beams 

in the entry; installed steel carrying beams at crosscut intersections; and 

drilled weep holes in the roof to drain away wate~. These measures 

exceeded the requirements of the mine's roof control plan. 

2/ The condition or practice cited alleges: "Although the approved roof 

control plan was exceeded, not enough precautions were taken in No. 13 

entry on No. 2 unit to protect the miners, when known existing adverse 

conditions were approached. An unintentional roof fall has occurred at the 

intersection of crosscut No. 21. The operator shall take steps to further 

strenghthen (sic) the roof control in areas of this type." 

3/ Roof control programs and plans. [STATUTORY PROVISIONS] Each operator 

°'Shall undertake to carry out on a continuing basis a program to improve the 

roof control system of each coal mine and the means and measures to 

accomplish such system. The roof and ribs of all active underground 

roadways, travelways, and working places shall be supported or otherwise 

controlled adequately to protect persons from falls of the roof or ribs. A 

roof control plan and revisions thereof suitable to the roof conditions and 

mining system of each coal mine and approved by the Secretary shall be 

adopted and set out in printed form on or before May 29, 1970. The plan 

shall show the type of support and spacing approved by the Secretary. Such 

plan shall be reviewed periodically, at least every 6 months by the 

Secretary, taking into consideration any falls of roof or ribs or 

inadequacy of support of roof or ribs. No person shall proceed beyond the 

last permanent support unless adequate temporary support is p.rovided or 

unless such temporary support is not required under the approved roof 

control plan and the absence of such support will not pose a hazard to the 

miners. A copy of the plan shall be furnished to the Secretary or his 

authorized representative and shall be available to the miners and their 

representatives. 

1872 
9. On March 12, 1979, C F & I submitted a proposed amendment to the 

roof control plan then in effect at the Maxwell Mine. The amendment sought 

to incorporate certain new provisions, including a requirement that 

additional roof supports would be installed when excessive amounts of water 

from the roof were encountered. The addendum received the approval of 

MSHA's District 9 Manager for Coal Mine Health and Safety on March 26, 

1979. 

10. On March 17, 1979, an idle work day, CF & I became aware of 

unstable roof conditions near the strike line in Entry No. 13. Additional 

timbering was added under the beam supports already in place, blocking the 

entry to further travel. The blocked-off portion of the roof fell sometime 

late on March 18, 1979, or early on March 19, 1979. 

11. The roof control measures employed in the localized area of the 

March 19, 1979 fall included: ten 72-inch roof bolts on three to four foot 

centers, steel beams spaced approximately four feet apart, and steel 

carrying beams on both sides of the intersection. 

12. In the hours following discovery of the roof fall and prior to the 

issuance of the subject citation, C F & I contin~ed to employ those means 

of roof control outlined above in Finding of Fact No. 8. No work proceeded 

in entries adjacent to Entry No. 13, other than efforts to confine the 

cave-in to a limited area. 

13. Payment of the proposed penalty will not impair the ability of 

C F & I to continue in business. 

ISSUES 

1. As a matter of law, can an operator be found in violation of 30 

C.F.R. § 7S.200 if it is complying with the minimum requirements of the 

mine's roof control plan? 

2. As a matter of fact, did Respondent support the roof and ribs or 

otherwise control such areas to adequately protect persons from falls of 

the roof or ribs? 

DISCUSSION 

At the hearing, the Secretary admitted that C F & I was in compliance 

with the minimum requirements of the roof control plan then in effect at 

the Maxwell Mine. It is the Secretary's position that C F & I violated 30 

C.F.R. § 75.200 by failing to comply with the first sentence df the 

regulation, which requires an operator to continually improve the roof 

control system at each coal mine. Additionally, the Secretary contends in 

his post hearing reply brief that an operator must control any and all roof 

conditions it encounters in the mine, even if control of those conditions 

requires the operator to exceed the minimum requirements of the roof 

control ~lan. 

1873 
Petitioner's citation of authority for the propos1t1on that an 

operator has responsibilities above and beyond the minimum requirements of 

the mine's roof control plan is well taken. In Ziegler Coal Company, 2 

IBMA 216, September 18, 1973, the Interior Board of Mine Operations Appeals 

held that" ..• an operator is under a duty to maintain a safe roof 

irrespective of any roof control plan and that the failure to do so 

constitutes a violation of the mandatory safety standard at section 

302(a)." Id. at 222. Section 302(a) of the Act has since been superseded 

by an improved mandatory safety standard promulgated by the Secretary 

pursuant to section 101, namely 30 C.F.R. § 75.200. Unless and until 

overturned, this decision is binding upon the Commission and its judges. 

Section 30l(c)(2). Therefore, as a matter of law, an operator can be found 

in violation of 30 C.F.R. § 75.200 even if it is complying with the minimum 

requirements of the mine's roof control plan . 

.Citation No. 387774 states in part that "[a]lthough the approved roof 

control plan was exceeded, not enough precautions were taken in No. 13 

entry or No. 2 unit to protect the miners, when known existing adverse 

conditions were approached." However, based upon the evidence presented at 

the hearing and for the reasons presented below, I find that C F & I did 

not violate 30 C.F.R. § 75.200 as alleged. 

The first sentence of the standard reads as follows: "[e]ach operator 

shall undertake to carry out on a continuing basis a program to improve the 

roof control system of each coal mine and the means and measures ·to 

accomplish such system." C F & I complied with this provision by 

implementing procedures to improve roof stability beyond the threshold 

level required by the roof control plan. See Finding of Fact Nos 8 and 12. 

Similarily, C F & I took independent affirmative action to upgrade the 

minimum requirements of the roof control plan then in effect at the Maxwell 

Mine. See Finding of Fact No. 9. 

The second sentence of the standard requires that "[t]he roof and ribs 

of all active underground roadways, travelways, and working places shall be'. 

supported or otherwise controlled adequately to protect persons from falls 

of the roof or ribs." While no one can dispute the fact that· the roof that 

fell in Entry No. 13 was not adequately supported, C F & I complied with 

this provision by blocking the entry to further travel before it fell. See 

Finding of Fact No. 10. This action otherwise adequately controlled the~­

affected area to protect persons from falls of the roof or ribs. 

Therefore, as a matter of fact, Respondent discharged the obligations 

imposed on it by 30 C.F.R. § 75.200. 

CITATION NO. 387990 

Due consideration of all factors contained in the record convinces me 

that the proposed settlement is consistent with the purposes of the Act and 

should be approved. 

1874 
CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and the subject matter of this proceeding. 

2. Petitioner has failed to meet his burden of proving that Respondent 

violated the Act as alleged in Citation No. 387774. 

3. Citation No. 387774 should therefore be vacated. 

4. The settlement proposed in Citation No. 387990 is consistent with 

the purposes of the Act and should be approved. 

ORDER 

Based upon the foregoing findings of fact and conclusions of law, it 

is ORDERED that Citation No. 387774 is hereby VACATED. It is FURTHER 

ORDERED that the joint motion regarding settlement of Citation No. 387990 

is hereby GRANTED and that Respondent shall pay the agreed amount of 

$200.00 within 40 days of the date of this ORDER. 

Jon.D: nolt~. ,'·) ~_9.m1n1strat1ve Law-Judge 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

1875 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOHNNY HOWARD, 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 · 

Complainant 

July 31, 1981 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION, OR 

INTERFERENCE 

MARTIN-MARIETTA CORPORATION, 

Respondent 

Docket No. SE 80-24-DM 

MSHA Case No. MD 79-93 

SUPPLEMENTAL DECISION 

On June 19, 1981, I issued a decision in Complainant's 

favor on his complaint of discrimination under § lOS(c) of 

the Act. The parties were ordered to confer for the purpose 

of effectuating paragraphs 1 - 6 of the order contained in 

the decision. It appears that the parties substantially 

agree on all issues save back pay. While they agree on the 

figures to be used in computing back pay, they disagree on 

the formula to be applied to those figures. The formula and 

award are set forth in this decision, which constitutes my 

final disposition of the proceedings. 

Turning to the provisions of the order of June 19, 

1981, reinstatement will not be ordered since Comp~ainant 

has obtained full-time work elsewhere and does not wish to 

return to Respondent's employ. Therefore, paragraph 1 of 

the order is vacated. 

Paragraph 2 directs back pay for Complainant. There 

have been few Commission decisions dealing with the computation of back pay under the Mine Act. Irt Bradley v. 

Belva Coal Co., 3 FMSHRC 921 (1981), I concluded that the 

remedial portions of § lOS(c) were modeled on § lO(c) of the 

National Labor Relations Act, so the NLRB's approach to back 

pay computation should be followed. According to the Board, 

"Making whole" involves payment to the 

discriminatee of a sum equal to gross back 

pay (what the discriminatee would have earned 

in employment lost through discrimination) 

less net interim earnings (what was actually 

earned from other employment during the period 

less expenses incurred in seeking and holding 

interim employment) , tbe difference between 

the two being the net back pay due. 

3 NLRB CASEHANDLING MANUAL, § 10530 (1977). 

1876 
Complainant renounced reinstatement at the hearing, so 

the period of back pay liability runs from July 31, 1979, to 

March 26, 1981. If the general formula were applied and 

total earnings for the period lumped together, no back pay 

would be due, since Complainant has earned more elsewhere 

during this period than he would have earned at Respondent's 

quarry in Jamestown, South Carolina. However, the NLRB 

computes back pay by calendar quarters of the year. 3 NLRB 

CASEHANDLING MANUAL § 10534.1 (1977}. This policy has been 

in effect more than 30 years and was adopted because computations based on the entire period of liability fell short 

of the "make-whole" remedy the Board was attempting to 

provide. See NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 

347 (1953). The Commission should draw on this experience. 

Therefore, Complainant's back pay award will be computed on 

a quarterly basis. 

The parties have stipulated that Complainant's hourly 

rate was $4.76 with time and a half for overtime. Complainant worked 50 hours each week. During periods of 

unemployment, Howard received unemployment benefits from the 

State, but these will not be deducted from back pay. Bradley, supra, at 923. The back pay computation is as· follows: 

7/31/79 - 9/30/79 

10 weeks 

10/1/79 - 12/31/79 

13 weeks 

1/1/80 - 3/31/80 

13 weeks 

Rogers & Wilson Co. 

Lost earnings 

400 hrs. at 4.76 

100 hrs. at 7.14 

Interim earnings 

Net back pay 

Lost earnings 

520 hrs. at 4.76 

130 hrs. at 7.14 

Interim earnings 

Net back pay 

Lost earnings 

520 hrs. at 4.76 

130 hrs. at 7.14 

Interim earnings 

Net back pay 

1877 

1904. 

714. 

2618. 

0 

2618. 

2475.20 

928.20 

3403.40 

0 

3403.40 

2475.20 

928.20 

3403.40 

2253.25 

1150.15 
4/1/ao - 6/30/80 

13 weeks 

Lost earnings 

520 hrs. at 4.76 

130 hrs. at 7.14 

2475.20 

928.20 

3403.40 

Georgetown Steel 

Interim earnings 

480 hrs. at 8.73 4190.40 

Net back pay 0 

.!f Total back pay 7171.55 

A rate of 6% interest per annum will be applied to the 

back pay award through January 31, 1980. Thereafter, a rate 

of 12% will be applied. Bradley, supra, at 925. Interest 

will accrue beginning with the last day of each calendar 

quarter of the back pay period. 3 NLRB CASEHANDLING MANUAL, 

§ 10623.1. 

Respondent is responsible for deducting the amounts 

required by state and Federal law and f6r any additional 

contributions which those laws may require. 

The parties agree that $750 is a reasonable attorney's 

fee for Complainant's counsel. 

The notice submitted by Respondent for posting at its 

Jamestown quarry is acceptable. 

ORDER 

1. Respondent shall pay to Complainant the sum of 

$7,171.55, as back pay with interest thereon at 

the rate of 6% per annum from July 31, 1979, 

through January 31, 1980, and at the rate of 

12% per annum thereafter. 

2. Respondent shall pay to counsel for Complainant the sum of $750 for legal services rendered 

to Complainant. Counsel for Complainant shall 

refund to Complainant so much of that fee as he 

has already paid. 

1/ Interim earnings exceed lost earnings for every quarter 

after April 1980. 

1878 
3. The notice submitted by Respondent shall be 

posted in a conspicuous place at Respondent's 

Jamestown quarry. 

j t}t-1tt-5 .48 mdu.;teL 

James A. Broderick 

Chief Administrative Law Judge 

Distribution: By certified mail. 

Nathan Kaminski, Jr., Esq., Attorney for Johnny Howard, 

Complainant, Schneider & O'Donnell, 601 Front Street, P.O. 

Box 662, Georgetown, SC 29440 

Elliott D. Light, Esq., Assistant General Counsel, Attorney 

for Martin-Marietta Corporation, 6001 Rockledge Drive, 

Bethesda, MD 20034 

Thomas A. Mascolino, Esq., Counsel for Trial Litigation, 

Office of the Solicitor, Division of Mine Safety, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

Special Investigation, MSHA, U.S. Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

1879 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

on behalf of J. C. DUNCAN, 

WILLIAM DUNCAN, T. C. GALLION,: 

and TOMMY TURNER, 

Complainants 

v. 

T. K. JESSUP, INC., 

Respondent 

DECISION 

July 31, 1981 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR 

INTERFERENCE 

Docket No. KENT 81-87-D 

Bakersport Mine 

On August 25, 1980, six men comprising the second shift 

at Respondent's mine refused to start work. As a result, 

they were fired. Four of them subsequently filed complaints 

with the Mine Safety~and Health Administration (MSHA). The 

issue is whether they were discharged in violation of 

§ 105(c) of the Mine Act, 30 U.S.C. § 815(c). 

A hearing was held, pursuant to notice, in Evansville, 

Indiana, on June 9 - 10, 1981. Witnesses for the Secretary 

of Labor were J. C. Duncan, T. C. Gallion, Tommy Turner, 

William Duncan, Jerry Van Crick, Jerry Vincent, James Greg 

East, and Boyd Mathis, all former employees of Respondent 

T. K. Jessup, Inc. Witnesses for Jessup were T. K. Jessup, 

the mine owner, Robert Sykes, former super.intendent, William 

Jerry Anderson, night foreman, Michael Oates, reclamation 

and safety director, and James Utley, an MSH~ inspector. 

The parties have filed briefs setting forth their positions. 

Based on the whole record, my decision is as follows. 

Findings of Fact 

1. At all times relevant herein, Jessup owned and operated 

the Bakersport Mine in Dawson Springs, Hopkins County, Kentucky. It produces coal by strip mining the surface. 

2. During the months preceding their discharges on August 25, 1980, 1/ the complainants notified management of a 

1/ Two other miners were discharged with the complainants 

that day, James Greg East and Boyd Mathis. However, Jessup 

offered reinstatement to them a week ~ater and they returned 

to work within one month. Neither is a party to this case. 

18ri0 
number of problems with their equipment. Some repairs were 

completed and some were not by August 25, 1980. Complainants rarely notified management of equipment problems on the 

report slips intended for that purpose. Instead, the complaints were predominantly oral. 

3. On August 23, 1980, Robert Sykes returned to the mine 

to check on the progress of work during the second shift. 

He had just finished sharing a six-pack of beer with Michael 

Oates. When he arrived, he found that James East was 

operating a dozer on a highwall in what Sykes considered an 

unsafe and unproductive manner. Sykes then got a dozer and 

proceeded to show East how he wanted the job done. The 

other men on the shift were watching and thought he was 

being reckless with the machine. They smelled alcohol on his 

breath and thought he was intoxicated and were very upset 

because of this. I find that Sykes was not intoxicated and 

was, in fact, trying to demonstrate a safer and more productive method of operating the dozer. However, East and 

the other men misunderstood his explanation and thought East 

was being told to operate the dozer in an unsafe manner. 

4. After Sykes left the mine on the night of August 23, 

the men spoke with foreman Jerry Anderson and expressed 

their dismay at Sykes's conduct and their general dissatisfaction with him as a superintendent. They asked Anderson 

to arrange a meeting between them and Sykes and T. K. Jessup 

on August 25. Anderson agreed. Anderson attempted to contact Jessup but was unsuccessful. On August 25, before the 

second shift, he confronted Sykes with the men's concerns. 

Sykes admitted that he was wrong to visit the mine after 

drinking. Anderson did not tell Sykes that the men wanted a 

meeting. 

5. At the start of tne second shift on August 25, Anderson 

told the men that their problems had been "taken care of." 

The men were still dissatisfied and demanded a meeting with 

Sykes. J. C. Duncan then saw Sykes approaching in a road 

grader and motioned him to stop. Duncan related the men's 

concerns but did not raise specific safety complaints. 

Rather, he alluded to the incident on August 23 and stated 

the men's belief that they were being mistreated and were 

being required to operate unsafe equipment in an unsafe 

manner. Sykes and Duncan became quite hostile and finally 

Duncan dared Sykes to fire him. At that, Sykes fired him. 

6. Next, Sykes went to each member of the second shift in 

turn and asked if he was going to work. Each of them 

expressed solidarity with Duncan and with the group as a 

whole. Sykes fired each of them. 

1881 
7. The next day, the men went to the local MSHA office and 

filed a § 103(g) request for an inspection, listing their 

complaints. An inspector arrived at the mine on August 27, 

1980, and subsequently issued two citations and one withdrawal order. 

Issue 

Did the complainants engage in activity protected under 

§ 105(c) and, if so, were they discharged because of it? 

Discussion 

In Secretary of Labor ex rel. Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786 (1980), the Commission announced its 

formula for weighing the evidence in a discrimination case. 

To establish a prima facie case, the Secretary must demonstrate that the Complainants engaged in protected activity 

which played some role in the decision to discharge them. 

The parties agree that during the months preceding 

their discharges, each complainant notified management of 

various problems with his equipment affecting safety. These 

ranged from broken mirrors and windshields to faulty brakes. 

The fact that the complaints were registered orally, rather 

than written on slips of paper as required by company rules, 

is immaterial. The complaints constituted protected activity. 

By the date of their discharges, dissatisfaction with 

Robert Sykes had been building for months among the miners 

on the second shift. No doubt, personality clashes played a 

major role. J. C. Duncan, in particular, believed neither 

Anderson nor Sykes were running the mine as it ought to be 

run. When Sykes arrived at the mine on August 23, 1980, 

with beer on his breath, the miners decided that he was 

unfit to supervise thew. They therefore requested a meeting 

with Sykes and Jessup. Whether concern for their safety was 

the dominant motive for the request is unclear. The fact 

that it figu:i:-ed in the request is enough, however. The 

request for a meeting was protected under § 105(c). 

On August 25, 1980, the miners on the second shift 

found that no meeting had been arranged. They were determined to air their grievances before commencing work, so 

J. C;,;. 'Duncan stopped Sykes, who was working a short distance 

from them, and began to relate the miners' concerns. Sykes 

and Duncan began to argue almost immediately, so Sykes left. 

1882 
Sykes soon returned and once again exchanged heated words 

with J. C. Duncan. Beyond raising the incident of August 23, Duncan did not relate any specific safety concerns 

but rather expressed general dissatisfaction with the way 

the mine was being operated. Finally, Duncan dared Sykes to 

fire him, which he did. 

Again, the fact that concern over safety played some 

role in J. C. Duncan's complaints to Sykes on the miners' 

behalf is enough to bring the complaints within the protection of§ 105(c). Although the complaints were voiced in a 

provocative and combative tone, I cannot conclude that 

Duncan's conduct was so opprobrious as to forfeit the 

protection of the Act. Cf. American Telephone and Telegraph Co. v. NLRB, 521 F. 2d 1159 (2d Cir. 1975). 

Before they were discharged, the miners on the second 

shift collectively and individually refused to work. Whether a refusal to work is protected under§ 105(c) depends 

on whether a miner has a good faith, rea·sonable belief that 

continuing work would pose a safety hazard. Secretary of 

Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 812 (1981). In my judgment, none of the complainants 

satisfied this standard. 

I assume, as Respondent's brief concedes, that the complainants honestly believed their jobs presented unjustifiable risks from time to time. However, while generalized 

complaints over safety are protected under § 105(c), they 

cannot form the basis for a refusal to work. Reasonableness 

requires, at a minimum, that the miner's refusal to work 

concern a condition actually confronting him at the time. ~/ 

Only two miners on the second shift expressed any 

concern over the safety of the tasks they we~e about to 

perform. James East, who did not join the complainants in 

this action, renewed his misgivings about the brakes on his 

dozer. Sykes responded that the dozer had been taken out of 

service for repairs and that he would lay off East temporarily and recall him when the brakes were fixed. East 

~/ Reasonableness cannot be established after the fact. 

The day after they were fired, the complainants prepared a 

list of unsafe conditions and presented it to the local MSHA 

office, requesting an inspection under§ 103(g). Had they 

coupled their refusal to work with such specific complaints, 

I could then analyse whether their beliefs in these allegedly 

dangerous conditions were reasonable. As it was, even this 

threshold element of reasonableness was not present. 

1883 
declined, preferring to remain with the group. According to 

Sykes, Tommy Turner claimed that the mirrors on his truck 

had not been fixed. Sykes told him they were fixed earlier 

in the day. Still, Turner refused to work. 

The actual safety of the work the complainants were 

about to perform has some bearing on the reasonableness of 

the complainants' refusal to work. An MSHA inspector 

visited the mine two days after they were discharged, with a 

list of their complaints. Two citations were issued, one 

for an inoperative back-up alarm and one for a missing fire 

extinguisher. One withdrawal order was issued, covering a 

road grader with faulty brakes, which none of the complainants had operated. The equipment that caused them the 

greatest concern had been removed from service. I cannot 

conclude, on the basis of this record, that complainant's 

refusal to work was reasonably related to conditions 

believed to be unsafe. 

Whether the Secretary has established that the complainants' protected activity figured in the decision to 

discharge is academic at this point. Even if it did, the 

record is clear that they would not have been discharged had 

they not refused to work. Therefore, Respondent has established an affirmative defense under Pasula, supra, at 2799 - 2800. 

Based on the above, I find that Respondent did not violate § l05(c) when it discharged the complainants. 

Conclusions of Law 

1. I have jurisdiction over the parties and the subjectmatter of this proceeding. 

2. Respondent did not violate § 105(c) when it discharged 

the complainants. 

Order 

1. The complaint of discrimination in this case is DISMISSED. 

1884 
2. Any proceedings aimed at assessing a civil penalty 

against Respondent for the allegations in the complaint are 

hereby ordered DISMISSED. No penalty shall be assessed. 

ti {l/v'JWf> » tVrivi~ ~James A. Broderick 

Chief Administrative Law Judge 

Distribution: By certified mail. 

E. Robert Goebel, Esq., Attorney for T.K. Jessup, Inc., 233 

Saint Ann Street, Owensboro, KY 42301 

George Drumming, Jr., Attorney, Office of the Solicitor, 

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

Nashv.ille, TN 37203 

Special Investigation, MSHA, U.S. Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

1885 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA . 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 80-399 

Petitioner A.C. No. 11-00588-03079 F 

v. 

No. 21 Mine 

OLD BEN COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Thomas Lennon, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, 

for Petitioner; 

Robert J. Araujo, Esq., Old Ben Coal Company, 

Chicago, Illinois, for Respondent. 

Judge Charles c. Moore, Jr. 

The above case was tried in Evansville, Indiana, on April 8, 1981, and 

final briefs of the parties were submitted by May 29, 1981. The citation 

alleged a violation of 30 C.F.R. § 77.1700 in that: 

A bulldozer operator was allowed to perform work in a 

hazardous area where he could not be seen or heard by others 

and no communication means was provided. This violation was 

determined during a fatal accident investigation of the bulldozer operator working atop the raw coal storage pile on 

4/8/80. 

Although no one will ever know exactly how this accident occurred, and 

although there was some difference of opinion as to whether the bulldozer 

backed into a hole or fell through a bridged-over area of the coal, the evidence indicates that the events could have taken place as described in the 

"Commentary" and "Discussion and Evaluation" sections of the accident report 

(Petitioner Exh. 13). Those sections are as follows: 

"Commentary 

On Tuesday, April 8, 1980·, at midnight, the surface prepaation plant crew under the supervision of Gale Pearce, Surface 

1886 
Foreman, entered their respective work areas and routine coal 

preparation activities commenced. At this time, Robert 

Mitchell, Bulldozer Operator, mounted the TD-25-C International 

bulldozer and began coal pushing operations on top of the 

unusually large raw coal pile located near the preparation 

plant. Mitchell's duties consisted of pushing coal away from 

the coal stacker and pushing coal over the four load-out holes 

located beneath the coal pile. Coal is loaded out from beneath 

the raw coal pile by feeders located on four sides of the coal 

stacker. The preparation plant operator, Jesse Jones, began 

loading out coal from the north feeder at the beginning of the 

shift and continued until 1:30 a.m. when he received a telephone call from Mitchell requesting that he switch over and 

load from the south feeder. Jones switched to the south feeder 

and continued loading out coal until he received _another call 

from Mitchell at 1:45 a.m. At this time, Mitchell told Jones 

it was alright to load from any hole because he had come down 

off the raw coal pile with the bulldozer. Jones then began 

loading coal from the various feeders until he achieved the 

desired flow rate of coal to satisfy the preparation plant. 

To do this, Jones loaded coal approximately 10 minutes from 

the west feeder which would have conveyed approximately 

100 tons of coal from the coal pile on the west side of the 

stacker. At approximately 2:30 a.m., Mitchell pulled a stuck 

vehicle from a mud hole in the mine yard and trammed the bulldozer onto the coal pile to resume coal pushing. However, 

Mitchell did not contact the plant operator, Jones, to inform 

him that he was returning to the coal pile. 

"At approximately 6 a.m., a belt line in the head house 

stopped and Steve Mazur, Top Utility Man, walked up to the 

top of the stacker to investigate why it had stopped. At 

that tim_e, Mazur looked out over the coal pile and saw a 

small portion of the bulldozer blade protruding from beneath 

coal directly over the west feeder hole location. 

"It was quickly determined that Mitchell was still on the 

buried bulldozer because he could not be located elsewhere. 

Rescue operations were commenced immediately. An endloader 

and a backhoe were driven onto the coal pile to h-elp, but 

they were ineffective in moving the large quantity of coal. 

Two large bulldozers brought to the accident scene from a 

nearby mine began digging out Mitchell and the buried bulldozer. The stacker had apparently dumped a large quantity 

of coal on top of Mitchell and the bulldozer after the accident occurred. 

"At approximately 9 a.m., enough coal had been removed to 

get to the operator's cab which had filled up with coal when 

the front windows of the cab were pushed in under the weight 

1887 
of the coal which buried the bulldozer. At 9:20 a.m., 

Mitchell who had apparently been suffocated by the inrush of 

coal into the cab was found and removed from the cab of the 

still partially buried bulldozer. 

"Discussion and Evaluation 

The investigation revealed the following factors relev.ant 

to the occurrence of the accident: 

"l. The unusually large raw coal pile, approximately 

75,000 tons, had accumulated due to poor coal sales recently. 

"2. It had rained heavily several times during the shift 

on which the accident occurred. 

"3. Illumination for the coal pile was provided by large 

spotlights on the top of the stacker as well as headlights on 

the bulldozer. 

"4. It was assumed that as Mitchell operated the bulldozer in reverse it fell through crusted over coal into a 

void created when coal was loaded out by the west feeder. 

"5. The two previous shifts had not loaded coal from the 

west feeder and the bulldozer operators had trammed over the 

west feeder hole location numerous times. This action presumably tightly compacted the loose coal on the surface of 

the pile in this area. 

11 6. The gear shift in the cab of the bulldozer was in the 

reverse position when the bulldozer was recovered. 

"7. The bulldozer was examined after the accident and 

found to be mechanically sound. 

"8. No means of communication was provided between the 

preparation plant operator and the dozer operator." 

The statement above that there was no means of communication between the 

bulldozer operator and the preparation plant operator means that there was no 

means of constant communication. There were telephones that the bulldozer 

operator could use to phone the preparation plant operator. But in order 

to do so, he would have to drive his dozer off of the top of the raw coal 

storage pile to telephone the preparation plant operator. There were three 

locations from which he could make such telephone calls. 

Mr. Jesse Jones and Mr. Hosea Thomas are both bulldozer operators who 

work on top of the raw coal storage pile at the present time. At the time 

of the accident, however, Mr. Jones was the preparation plant operator. The 

1888 
testimony of these two miners resulted in a detailed description of the operations of the raw coal storage pile and the preparation plant insofar as this 

accident is concerned. The pile itself is created by the stacker which is a 

tube approximately 60 feet high containing rectangular holes at various levels. 

The coal is brought to the top of the stacker by means of a conveyor tube and 

is dropped into the top of the stacker. The coal comes out of the stacker 

through the aforementioned rectangular holes and forms a cone of coal around 

the stacker. The bulldozer operator's job is to create a plateau out of the 

lower portions of this cone in such a manner that he can keep coal feeding 

into four coal feeders which are openings 6 feet on a side with grates at the 

bottom or ground level of the stack of coal. The coal feeders are in all 

four cardinal directions from· the stacker and 40 feet away from it. The bulldozer driver has to guess where these coal feeders are because on the surf ace 

of the coal, which at the time of the accident was approximately 40 feet above 

the coal feeders, he has no way of knowing where they are located except, as 

aforesaid, that they are 40 feet from the stacker and either north, east, 

south, or west. When a feeder is taking coal and the coal is feeding properly an indentation or a "bird's nest" appears above the feeder at the surface 

of coal and the dozer operator can continually push coal in such a manner as 

to make sure there is an adequate supply over the feeder. At the time of the 

accident, the plateau area had become unusually large and about 40 feet in 

height. When coal gets wet, it is possible for the bulldozer running over 

the surface to compact it in such a way that when a feeder starts to load 

coal from beneath the pile a cavity or a void is created in that the looser 

coal near the feeder goes into the feeder and onto a conveyor belt to be 

taken into the preparation plant, whereas the surface of the coal bridges 

over creating a situation similar to that of a snow bridge over a crevasse 

in a glacier. A bulldozer may be able to run over the bridged-over area for 

a time, but it is not uncommon for one to collapse the bridge and fall into 

the void. There appears to be no problem when the bulldozer goes forward 

into a void, because both of the bulldozer operators said when they suspected 

a void they deliberately put their blade down into the area and drove forward. 

The blade itself apparently protects the bulldozer from going too deep into 

the void. 

MSHA's theory of this case is that if there had been two-way radio communications, the preparation plant operator would have informed the victim 

that he had been feeding out of the east feeder and that the victim upon 

seeing no "bird's nest" would have known that a void existed and would have 

avoided the area or collapsed the bridge with his blade. It is the theory 

that he did not know this, that he was running over the bridged-over area 

and that on one of his trips backing over the bridged area, it collapsed and 

that he fell backwards into the void and that coal fell in behind him, 

crushed the front window of the cab and that he suffocated under the coal. 

W,hen the bulldozer was found, only one tip of the _blade was not covered 

with coal because the coal stacker had continued to run after the accident 

and had buried the bulldozer. There is no evidence as to the extent of its 

burial innnediately after the accident. There was no autopsy report. There 

was no testimony as to what would happen if a bulldozer either backed into 

1889 
a hole or fell through a bridge and the engine continued to run with the 

treads in reverse. According to the accident report, the bulldozer was 

found with the front portion elevated 60 degrees from the horizontal. The 

pictures look more like 80 degrees but there was apparently no attempt to 

determine what caused the bulldozer engine to stop or whether the continued 

action of the treads would cause the elevation angle to become steeper. The 

victim was found with his arms stretched out in front of him but the significance of that finding was not explored. It is puzzling to me that if the 

accident happened as MSHA supposes in that the bulldozer suddenly fell into 

a collapsed void in an almost vertical position and that the inrush of coal 

following the collapse covered the cab and crushed the front windshield so 

that coal could come in and smother the driver, that he should have had his 

arms stretched out in front of him. The inrush of coal it would seem would 

have brushed his arms aside. 

Certainly if the victim had been alive and in control of himself within 

seconds after the collapse through the bridge, he would not have left the 

operating controls in a reverse position. There are thus a lot of questions 

that the investigation leaves unanswered. 

There is nothing in the accident report, for example, that would negate 

the possibility that the victim had a heart attack or some other seizure, 

backed into or caved into the hole and died while the engine was still turning 

the treads in reverse with the stacker continuing to pile up sufficient coal 

to cave in the windshield and eventually almost cover the bulldozer. 

I think it possible that the accident happened as envisioned by MSHA 

in its accident report but I think it matters little whether the victim 

backed into a hole that had collapsed behind him, or actually broke through 

the bridged-over area. In either event, there is no contention by HSHA that 

a two-way radio would have enabled the victim to call for help and thus be 

rescued. The contention is that if a two-way radio had been present in the 

cab, the operator would have found out from the plant operator which feeders 

had been in use and thus would be aware of the location of possible voids. 

30 C.F.R. § 77.1700 provides: 

No employee shall be assigned, or allowed, or be required 

to perform work alone in any area where hazardous conditions 

exist that would endanger his safety unless he can communicate with others, can be heard, or can be seen. 

This standard has been interpreted by other Commission judges. In Secretary 

of Labor v. B.S.K. Company, Inc., Docket No. BARB 79-190-P, 2 FMSHRC 998, 

1006, Judge Cook said: 

All surface mines present certain common dangers, yet 

the wording of the regulation is such that its mandate 

applies only when conditions outside the norm are present. 

1890 
The regulation is designed to assure that an individual 

working in an area where hazardous conditions exist that 

would endanger his safety is within sight or hailing distance of others who can render or summon\assistance when 

necessary. 

Judge Broderick reached a similar conclusion in a bench decision issued on 

February 11, 1981, in Monterey Coal Company v. Secretary of Labor, Docket 

No. WEVA 81-203-R,- 3 FMSHRC 439, 442, Judge Broderick said:. 

I do not accept the interpretation that apparently MSHA 

follows, that any work at a mine site is in an area where 

hazardous conditions exist that would endanger an employee's 

safety. Such an interpretation would render the words meaningless. And I am bound to give all words in a mandatory 

standard meaning, and can only conclude that the standard 

applies to areas wpere conditions exist that are hazardous, 

which would endang~r an employee's safety, over and above 

the conditions that exist throughout the mining industry, or 

indeed in any industry. 

I agree with these decisions. 

In hindsight, since a miner was killed on the raw storage stockpile, it 

is easy to say that it was an area that was more hazardous than other areas. 

At the time of the accident, however, falling into a void was a frightening 

and uncomfortable experience that the miners did not like, but there is no 

evidence that they feared for their lives when they fell into one of these 

voids. If the bulldozers had been equipped with two-way radios prior to 

the accident, there is no reason to assume that all of the operators, 

including the victim, would have inquired as to which feeders had been in 

use. In fact, the victim could have stopped to telephone the plant operator on his way back to the storage pile if he had been inclined to do so. 

The situation after the accident is, of course, different. The bulldozer 

operators are informed as to which feeders have been in use and if there 

is no "bird's nest" present they proceed to collapse the bridge. 

The safety standard involved in this case appears to be more concerned 

with rescuing a miner after an accident than it is in preventing the accident in the first place. If someone had kept the bulldozer constantly in 

sight, it would not have prevented the accident. Nor would the accident have 

been prevented by having another miner sit in the cab with the victim or having a miner close enough so that he could have heard the victim call out. 

Rescue operations could have begun earlier but whether that would have saved 

the miner's life is a matter of conjecture. Yet, by the wording of the regulation itself, if there had been another miner in the cab with the victim or 

within hailing distance or if the victim and his bulldozer had been constantly 

observed by someone, there would be no violation. Old Ben attempted to prove 

that the victim's bulldozer was visible but the evidence, at most, amounted 

to the fact that the bulldozer was visible when operating in certain parts of 

1891 
the raw storage coal pile area if someone had been looking. While I reject 

the Government's argument that I should disregard the words of the regulation 

and interpret it as though it were a panacea to prevent accidents of the type 

involved here, I also reject 6ld Ben's defense that the victim was under 

observation or in sufficient communication with others to avoid a violation 

of the regulation. 

I find that this was in fact a hazardous area, this raw coal storage 

pile that was 40 feet high, but I also find that it was not so considered by 

MSHA or the operator prior to the accident. MSHA was specifically requested 

at the hearing to indicate whether it considered other companies' storage 

piles as hazardous areas where communication would be required and while the 

Government's brief mentioned the problem, it did not supply an answer. I do 

not know whether any other company has been cited for failure to provide twoway communication with the bulldozer operators on top of a raw storage coal 

pile. Nor do I know whether MSHA would have issued the citation in this case 

had the coal pile been only 30 feet high or if it had not been raining or if 

there had been no accident. I find that there was a violation and that the 

current system of two-way radio communication is a much safer way to operate 

the raw coal storage pile than is required by the regulations. Under the 

present system, the accident that occurred in this case would not happen, 

if the cause actually was a bridging over of a void. At the time, however, 

it is very doubtful that two-way communication would have prevented the 

accident. The fact that the victim told the plant operator by phone that 

he could feed out of any of the feeders he wanted because,the operator was 

leaving the top of the storage pile for another chore and the fact that when 

he returned to the pile he did not stop to phone the preparation plant operator to find out which feeders had been used indicates that he did not consider it a matter of great concern. There is no reason to think he would 

have used a two-way radio to ask the appropriate questions. 

While I find a violation of the regulation, I find that MSHA has failed 

to carry the burden of proof that the violation caused the fatal accident or 

that compliance with the regulation would have prevented the accident. Old 

Ben is a large company with a substantial history of violations, although I 

am not aware of a history of violating this particular section. The negligence was of a very low order, there was good,faith abatement and the degree 

of hazard is questionable. A penalty of $900 is assessed. 

ORDER 

It is therefore ORDERED that Old Ben Coal Company pay to MSHA, within 

30 days, a civil penalty in the amount of $900. It is FURTHER ORDERED that 

all arguments not specifically adopted in the above opinion are REJECTED. 

~ c 'JJroot-. /ti. 

Charles C. Moore, Jr. 

Administrative Law Judge 

1892 
Distribution: 

Thomas Lennon, Esq., Office of the Solicitor, U._S. Department of Labor, 

230 South Dearborn Street, 8th Floor, Chicago, IL 60604 (Certified 

Mail) 

Robert J. Araujo, Esq., Old Ben Coal Company, 125 South Wacker Drive, 

#2400, Chicago, IL 60606 (Certified Mail) 

* United States Government Printing Office:1981--341-638/4359 

1893