OCTOBER 1982 

Commission Decisions 

10-29-82 

10-29-82 

Conso1idation Coal Company 

Old Ben Coal Company 

10-04-82 Washington Construction Company 

10-06-82 Wade Kemp III, William Kure et al. 

10-07-82 FMC Corp. 

10-07-82 FMC Corp. 

10-08-82 Homestake Mining Company 

10-12-82 Merle E. Wegner v. Asphalt Mining & 

10-14-82 Harold Crumley v. Anamax Mining Co. 

10-22-82 NBC Energy, Inc. 

10-25-82 · Delmont Resources, Inc. 

10-26-82 Sterling Energy, Inc. 

10-26-82 Hillard Bentgen et al. 

10-26-82 Consolidation Coal Company 

10-27-82 Virginia Pocahontas Co. 

10-27-82 S & P Coal Co. 

10-28-82 Elmer Harris v. McGinnis Coal Co. 

10-28-82 Consolidation Coal Co. 

10-29-82 A. B. Whitley, Inc. 

Concrete 

PENN 81-106-n 

LAKE 80-399 

WEST 81-63-M 

CENT 81-186-M 

WEST 80-380-M 

WEST 81-131-RM 

CENT 80-140-M 

Co.WEST 82-59-DM 

WEST 82-128-DM 

KENT 82-27 

PENN 80-268-R 

KENT 82-44 

LAKE 82-27-M 

WEVA 82-30-R 

VA 79-131-R 

VA 81-63 

KENT 82-7-D 

WEVA 82-18 

SE 81-26-M 

p~. 1791 

Pg. 1800 

Pg. 1807 

Pg. 1816 

Pg. 1818 

Pg. 1823 

Pg. 1829 

Pg. 1852 

Pg. 1859 

Pg. 1860 

Pg. 1878 

Pg. 1883 

Pg. 1892 

Pg. 1899 

Pg. 1906 

Pg. 1908 

Pg. 1911 

Pg. 1928 

Pg. 1931 
Commission Decisions 
OCTOBER 

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

Secretary of Labor, MSHA v. Great Western Electric Company, Docket Nos. 

WEST 81-213-RM, 81-258-M. (Judge Morris, September 7, 1982) 

Roger Sammons v. Mine Services, Inc., division of Drummond Coal Co., 

Docket No. SE 82-15-D. (Judge Koutras, September 15, 1982) 

Secretary of Labor, MSHA v. Florence Mining Co., Helen Mining Co., etc., 

Docket Nos. PITT 77-15, etc., IBMA 77-32. (Reconsideration of Commission 1 s 

decision dated August 31, 1982) 

Review was Denied in the following case during the month of October: 

Lehman Gilliam v. Blue Diamond Mining, Inc., Docket No. KENT 80-288-D. 

(Judge Steffey, September 9, 1982) 
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 

October. 29, 1982 

Docket No. PENN 81-106-R 

CONSOLIDATION COAL COMPANY 

DECISION 

This case involves the interpretation and of section 

104(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et~· (1976 & Supp. IV 1980). l/ The issue before us 

is the procedural propriety of the administrative law judge's modification 

Section 104 

provides: 

of the Mine Act, 30 U.S.C. § 814(d) (Supp. IV 1980), 

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

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and if 

he also finds that, while the conditions created by such violation 

do not cause imminent danger, such violation is of such nature as 

could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard, and if he 

finds such violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation given to 

the operator under this Act. If, during the same inspection or any 

subsequent inspection of such mine within 90 days after the issuance 

of such citation, an authorized representative of the Secretary 

finds another violation of any mandatory health or safety standard 

and finds such violation to be also caused by an unwarrantable 

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 ..• to be withdrawn from ... 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 withdraw~! 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. 

1791 

82-10-14 
of an invalid section 104(d)(l) withdrawal order to a section 104(d)(l) 

citation. 2/ For the reasons that follow, we conclude that, under the 

specific circumstances of this case, the judge acted properly and we 

accordingly affirm his decision. 

The facts are not in dispute. On February 2, 1981, the Secretary 

of Labor issued a section 104(d)(l) citation to Consolidation Coal 

Company ("Consol") alleging a violation of Consol's ventilation plan. 

Consol filed a notice of contest of this citation. FMSHRC Docket No. 

PENN 81-92-R. On February 26, 1981, the Secretary issued Consol a 

section 104(d)(l) withdrawal order which the parties settled on 

July 10, 1981. 3/ On March 4, 1981, the Secretary issued another 

section 104 (d)(l) withdrawal order. This order alleged improper 

grounding of equipment in violation of 30 C.F.R. § 75.701-3. 4/ The 

withdrawal order further alleged that the violation was significant and 

substantial and was caused by Consolis unwarrantable failure to comply 

with the law. On the same day the withdrawal order was issued, Consol 

abated the allegedly violative condition. Consol subsequently filed a 

notice of contest of this second order, which is the subject of the 

proceeding now before us. 

On September 24, 1981, the administrative law judge issued his 

decision in Docket No. PENN 81-92-R, finding that the violation cited 

in the February 2, 1981, section 104(d)(l) citation although significant and substantial, was not caused by Consol's unwarrantable failure 

to comply. Given this conclusion, the judge modified that citation to a 

section 104(a) citation, which he then affirmed. Consolidation Coal Co., 

3 FMSHRC 2207, 2208-10 (September 1981) (ALJ). Neither party sought 

Commission review of this decision. After the judge's decision in 

Docket No. PENN 81-92-R, however, Consol filed a motion for summary 

decision in the present case, pursuant to Commission Rule 64, 29 C.F.R. 

§ 2700.64, 5/ seeking vacation of the March 4, 1981 withdrawal order on 

the grounds-that it now lacked a necessary underlying 104(d)(l) citation. 

2/ The judge's decision is reported at 4 FMSHRC 49 (January 1982). 

3/ This settlement is not before us. 

!:./ Section 75.701-3 provides in relevant part: 

For the purpose of grounding metallic frames, casings and 

enclosures of any electric equipment or device ••• , the following 

methods of grounding will be approved[:] 

(b) A solid connection to the grounded power conductor 

of the system •••• 

The order alleged improper grounding of an electrically-operated pump, in 

that uninsulated and exposed wiring was present in the pump frame. 

5/ Commission Rule 64 provides in part: 

- (a) Filing of motion for summary decision. At any time after 

commencement of a proceeding and before the scheduling of a hearing 

on the merits, a party to the proceeding may move the judge to 

render summary decision disposing of all or part of the proceeding. 

(b) Grounds. A motion for summary decision shall be granted only 

if the entire record, including the pleadings, depositions, answers 

to interrogatories, 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 summary decision as a matter of law. 

1792 
At the outset of the hearing on Consol's contest of the March 4th 

withdrawal order, the judge ruled from the bench that a valid 104(d)(l) 

citation is a prerequisite to issuance of a 104(d)(l) withdrawal order. 

He found that, as a result of his September 24, 1981, decision invalidating the 104(d)(l) citation underlying the withdrawal order in this 

case, no precedential 104(d)(l) citation existed upon which to base the 

104(d)(l) withdrawal order at issue. 4 FMSHRC at 50-51. 6/ He held, 

however, that the proper procedure under the circumstances was not 

vacation of the withdrawal order, as urged by Consol, but rather conditional modification of the order to a 104(d)(l) citation, followed 

by a full hearing on the merits of the modified citation. Id. at 51; 

Tr. 4-19. The judge made the conditional modification on own motion. 

The Secretary's counsel, upon being questioned by the judge, declined 

to make his own motion for modification of the second withdrawal order 

and expressed his "satisfaction" with the judge's sua action. 

Tr. 17. --

The judge thus granted Consol only partial summary decision. He 

denied total summary decision because in his view a factual dispute 

remained as to the validity of the conditionally modified citation. The 

judge emphasized that if the evidence failed to show a s and 

substantial violation caused by an unwarrantable failure to comply 9 the 

tentatively modified 104(d)(l) citation would fail, and that if the 

evidence failed to show a violation at all, the case would be dismissed. 

Tr. 16. At the close of the hearing, the judge confirmed his modification and affirmed the 104(d)(l) citation. 4 FMSHRC at 51-5. We 

granted Consol's subsequent petition for discretionary review. 21 

Consol's arguments on review are narrow and, for the most part, 

procedural. Consol contends only that the judge lacked authority to 

modify the withdrawal order in this case on his own initiative and 

prior to a hearing. At the hearing below, Consol admitted the underlying violation, and challenged only the special 104(d){l) findings. 

Consol does not now, however, seek review of the judge's conclusion 

that the violation was significant and substantial and caused by its 

unwarrantable failure to comply with the law. We conclude that the 

judge acted properly. 

We first consider the question of modification from a general 

perspective. Sections 104(h) and lOS(d) of the Mine Act expressly 

6/ The judge also denied the Secretary's motion to convert to a 

104(d)(l) citation the first withdrawal order of February 26, 1981, 

which, as noted above, had been settled by the parties. 4 FMSHRC at 

50-51. The Secretary has not challenged this aspect of the judge's 

ruling. 

l/ We also granted the motion of the United Mine Workers of America to 

intervene on review, and subsequently heard oral argument in this case. 

1793 
authorize the Commission to "modify" any "orders" issued under section 

104. §_/ This power is conferred in broad terms and we conclude that it 

extends, under appropriate circumstances, to modification of 104(d)(l) 

withdrawal orders to 104(d)(l) citations. In this case, and in future 

ones raising similar issues, we will define such "appropriate circumstances." Where, as here, the withdrawal order issued by the Secretary 

contains the special findings set forth in section 104(d)(l), but a 

valid underlying 104(d)(l) citation is found not to exist, an absolute 

vacation of the order, as urged by the operator, would allow the kind of 

serious violation encompassed by section 104(d) to fall outside of the 

statutory sanction expressly designed for it--the 104(d) sequence of 

citations and orders. The result would be that an operator who would 

otherwise be placed in the 104(d) chain would escape because of the 

sequencing of citations and orders. Such a result would frustrate 

section 104(d)'s graduated scheme of sanctions for more serious 

violations. 9/ 

8/ Section 104(h) of the Mine Act, 30 u.s.c. § 814(h)(Supp. IV 1980) 9 

provides: 

Any citation or order issued under this section shall remain 

in effect until modified, terminated or vacated by the Secretary or 

his authorized representative. or modified 9 terminated or vacated 

by the Commission or the courts pursuant to section 105 or 106, 

Section 105(d) of the Mine Act, 30 U.S.C. 815(d)(Supp. IV 1980), 

provides: 

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, ••• 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 •••• 

9/ Modification under such circumstances is also consistent with our 

settled precedent. We held in Island Creek Coal Co., 2 FHSHRC 279, 280 

(February 1980), that allegations of a violation survived the Secretary's 

vacation of the 104(d)(l) withdrawal order in which they were contained 

and, if proven at a subsequent hearing, would have required assessment 

of a penalty. We reached a similar result in a companion case in which 

we held that allegations of violation also survived Secretarial vacation 

of an invalid 107(a) order (imminent danger). Van Mulvehill Coal Co., Inc., 

2 FMSHRC 283, 284 (February 1980). In both cases, we thus contemplated 

future trial of the allegations as possible 104(a) violations. (Neither 

of the vacated withdrawal orders had contained significant and substantial findings.) If less serious allegations of 104(a) violations 

survive, then, a fortiori, the more serious allegations in the present 

type of case should survive as potential 104(d)(l) violations. In 

short, the purport of our decisions is that such allegations survive, 

and modification is merely the appropriate means of assuring that they 

do. 

1794 
Any modification must be carried out on fair notice and otherwise 

comport with relevant requirements of due process. In an analogous 

situation arising under section 104(d)'s virtually identical predecessor 

provision, section 104(c)(l) of the Federal Coal Mine Health and Safety 

Act of 1969, 30 U .s .C. § 801 et seq. (1976) (amended 1977) ("the 1969 Coal 

Act"), we approved an administrative law judge's modification of invalid 

104(c)(l) orders to 104(c)(2) orders. Old Ben Coal Co., 2 FMSHRC 1187, 

1189-90 (June 1980). 10/ We premised our approval of the modification 

on the fact that the operator had not shown prejudice, had not claimed 

lack of notice, and had not indicated how its defense to a (c)(2) order 

would differ from its defense to a (c)(l) order. Id. Similar considerations 

guide our disposition of the present case. 

In of these general principles, we now return to Consol 1 s 

specific objection that the judge's modification in this case was procedurally improper. From all that appears on the record, had the 

Secretary sought modification of the second withdrawal order prior to 

trial, Consol would not have believed itself procedurally aggrieved. 

The essence of Consol's complaint is that the Secretary, not the judge, 

should have modified the order, and that even if a Commission judge may 

modify a 104 order, section 105(d) of the Mine Act mandates that he act 

only after--not before--"afford[ing] an opportunity for a hearing." We 

cannot agree to so restrictive a reading of the powers conferred by section 

105(d). 

Consol contends that the responsibilities of the Secretary and 

Commission judges differ, and that the judge's modification was a 

usurpation of Secretarial duties. The Secretary's responsibility is to 

issue section 104(d)(l) citations and orders, and to prosecute them upon 

contest by the operator. Accordingly, where as here an order fails for 

lack of a valid citation, the preferable procedure after contest and 

assumption of jurisdiction by the Commission, would be for the Secretary 

to move for modification or amendment to recharacterize the order as a 

citation. 11/ In this case, however, for reasons unexplained, the 

Secretary'S--counsel declined to make such a motion, but rather acquiesced 

in the judge's preliminary modification. Had the judge vacated the withdrawal 

order, a trial of the special 104(d)(l) findings would not have occurred, 

a result that would have frustrated the purpose of section 104(d). 

10/ The original orders had been issued outside the 90-day limit in 

-;ection 104(c)(l) (carried over to the Mine Act) and therefore, assuming 

other requirements were met, should have properly been issued as 

104(c)(2) orders. 

11/ Such change after a notice of contest has been filed must occur by 

motion, and not on the Secretary's own initiative. See Climax Molybdenum Co., 2 FMSHRC 2748, 2750-51 (October 1980)(Secretary cannot 

unilaterally vacate a contested citation.) 

1795 
We emphasize that the necessary special findings were contained in 

the order when it was issued. Hence the judge was not adding new 

findings to ucreate" a 104(d)(l) citation. Given the purpose of section 

104(d) and the broad power to modify granted the Commission and its 

judges in section lOS(d), we cannot agree with Consol that under these 

circumstances the judge erred. 

Our decision might have been different had Consol demonstrated 

prejudice. We find, however, that there was no prejudice and that the 

judge's actions were entirely consistent with due process. The judge 

granted Consol a full hearing to contest the violation and the special 

104(d)(l) findings. Consol did not, as it could have done, claim 

prejudice or request a continuance when it was required to defend 

against the tentatively modified 104(d)(l) citation. Consol did not 

show--nor do we see how it could have shown--how its defense to the 

104(d)(l) citation would differ from its defense to the 104(d)(l) withdrawal order which contained precisely the same allegations. When asked 

about prejudice at the oral argument, Consol claimed it was prejudiced 

because it was forced to go to hearing on the merits of the citation. 

Arg. Tr. 13. However, a party moving for summary decision must always 

be prepared to go to trial if the motion is wholly or partially denied; 

that does not constitute prejudice. Cf. Old Ben Coal Co., supra, 

Consol also argues that, in any event, the judge could not modify 

the order prior to the hearing. However, the judge did not modify the 

order in a final sense prior to hearing. His action was no more than a 

preliminary procedural ruling expressly conditioned on the outcome of 

the subsequent evidentiary hearing. Tr. 16, 18-19. Only after the 

hearing did the judge issue his decision finally modifying the order and 

affirming the citation. Thus, we are satisfied that Consol received an 

"opportunity for a hearing" before the final binding modification occurred 

in this case. 

Finally, Consol argues that cases arising under the 1969 Coal Act, 

in which the Interior Board of Mine Operations Appeals held that administrative law judges lacked the authority to modify withdrawal orders, 

should control resolution of the issues in the present Mine Act proceeding. This precedent is not dispositive. Section 105(b) of the 

1969 Coal Act, 30 U.S.C. § 815(b)(l976), ll:J authorized the Secretary 

12/ Section lOS(b) of the 1969 Coal Act provided: 

Upon receiving the report of such investigation, the Secretary 

shall make findings of fact, and he shall issue a written decision, 

incorporating therein an order vacating, affirming, modifying, or 

terminating the order, or the modification or termination of such 

order, or the notice, complained of and incorporate his findings 

therein. 

1796 
of Interior to modify withdrawal orders issued under section 104(c), 

the statutory predecessor of section 104(d) of the Mine Act. The 

Board and its judges were part of the Department of Interior, and 

the Secretary had, by regulation, delegated to them his adjudicative 

functions under the Coal Act. 43 C.F.R. § 4.500 ~~· (1971) 

(rescinded 1978). The Board held that administrative law judges had 

no power to convert invalid 104(c) orders to notices of violation. 

See, for example, Freeman Coal Mining Co., 2 IBMA 197 (1973), aff'd 

on other grounds, 504 F.2d 741 (7th Cir. 1974). The Board viewed 

such modification as a usurpation at the Secretary's prosecutorial 

authority to issue notices of violation. Freeman, supra, 2 IBMA at 

209-10. The Board determined that only certain specified adjudicative 

powers had been delegated to it, and that issuance or modification of 

notices or orders were not among them. Id. In contrast, under the 

Mine Act, the Commission and the Secretary are independent and wholly 

distinct entities, each possessing the powers specified in the Act. 

Section 105(d) expressly authorizes the Commission to modify 104 

orders. Thus, given the language of section 105(d), and the allocation 

of powers under the Mine Act, the delegation problems perceived by the 

Board in Freeman simply do not arise under the present Act. 13/ See 

generally, Sewell Coal Co., 3 FMSHRC 1402, 1404 (June 1981),~ 

J:1/ Consol also contends that the judge erred by failing to grant it total 

summary decision. The moving party is only entitled to summary decision if 

there is no genuine issue as to any material fact, and if summary decision 

should be rendered as a matter of law. As we decided above, Consol was 

not entitled as a matter of law to a'vacation of the subject order. 

1797 
We conclude that the judge below did not err procedurally in 

modifying the 104(d)(l) withdrawal order to a 104(d)(l) citation and 

proceeding to hearing on the citation. Accordingly, we affirm the 

judge's decision. 1!!_/ 

,/ 

14/ Commissioner Nelson assumed off ice after this case had been 

considered by the other Commissioners. A new Commissioner possesses 

legal authority to participate in pending cases, but such participation 

is discretionary and is not required for the Commission to take official 

action. The other Commissioners reached agreement on the disposition of 

the case prior to Commissioner Nelson's assumption of office, and 

participation by Commissioner Nelson would therefore not affect the outcome. 

Accordingly, in the interest of efficient decision-making, Commissioner 

Nelson elects not to participate in this case. 

1798 
Distribution 

Michael McCord, Esq. 

Linda Leasure, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Leonard Fornella, Esq, 

for Consolidation Coal Co. 

Corcoran, Hardesty, Ewart, Whyte & Polito 

Suite 210, Chatham Center 

Pittsburgh, PA 15219 

Sally S. Rock, Esq. 

Eastern Associated Coal Corporation 

1728 Koppers Bldg. 

Pittsburgh, PA 15215 

E. J. Moriarty, Esq. 

Old Ben Coal Company 

69 West Washington Street 

Chicago, Illinois 60602 

R. Henry Moore, Esq. 

Rose, Schmidt, Dixon, Hasley 

900 Oliver Bldg. 

Pittsburgh, PA 15222 

Administrative Law Judge Gary Melick 

Fed. Mine Safety & Health Rev. Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1799 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD BEN COAL COMPAl"IT 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 29, 1982 

Docket No. LAKE 80-399 

DECISION 

This penalty case arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et~· (Supp. IV 1980), and involves the 

interpretation of 30 C.F.R. 77.1700, which provides: 

Communications in work areas. 

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. 

The judge concluded that Old Ben Coal Company violated the standard in 

connection with a fatal accident which occurred when a bulldozer fell 

into a hole in a raw coal storage pile. l/ For the reasons discussed 

below, we affirm. 

The facts are basically undisputed. The coal on which the 

accident happened is located on the surface of the mine. The pile is 

cone-shaped and surrounds a vertical, 60-foot high stacking tube. Coal 

is brought from the mine by conveyors and discharged from the top of the 

stacker to form the storage pile. Bulldozer drivers, working on plateaus, 

or "benches," on the pile, push the coal away from the stacker toward 

four feeder holes located under the pile. The feeder holes are not 

visible to the bulldozer operator from the surface of the pile, but if 

coal is feeding properly, indentations, or "bird's nests," appear on the 

surface directly above the holes. By operating controls in the preparation 

plant, another employee, the preparation plant operator, opens and 

closes the feeder holes. Coal falls down through the holes on to an 

underground conveyor and is carried away to the processing plant. 

1./ The judge's decision is reported at 3 FMSHRC 1886 (July 1981). 

1800 82-10-15 
When the weather is damp and the coal pile large, coal does not 

always feed evenly into the feeder holes and "bird's nests" might not 

appear. Instead, cavities, or 11voids, 11 form between compacted coal near 

the top of the pile and looser coal at the bottom going into the feeder 

holes. Bridged-over voids are not visible from the surface. Although a 

bulldozer may be able to run over a bridge for a time, it is not uncommon 

for a bulldozer at Old Ben's mine to collapse the bridge and fall into a 

void. When a driver suspects a void, he puts the blade down and drives 

forward; the blade collapses the bridge, preventing the bulldozer from 

going too deeply into the void. 

During the two-year period preceding the accident, the coal pile 

had become unusually large. The bench on which the bulldozer drivers 

were working was about 35-40 feet above the feeder holes. At the time 

of the accident on April 8, 1980, the weather was rainy and misty. 

Shortly before Robert Mitchell, the driver involved in the accident, 

started work on the midnight to 8:00 a.m. shift, another bulldozer fell 

into a void, but the driver was not urea and was able to his 

bulldozer out. However, he was visibly shaken, and requested a means of 

communication. Tr. 75, 83, 87, 107. 

While Mitchell was working that night, the pile was illuminated by 

floodlights on the stacker and by his bulldozer headlights, but visibility was poor because of the weather. There was no radio, telephone 

or other means of communication in Mitchell's bulldozer. Three telephones were located about 200 yards away from the coal pile, and there 

was also a squawk box at some unspecified distance from the pile. 

Bulldozer operators were not required to use the telephones or squawk 

box at any set intervals, and communicated with the preparation plant on 

their own initiatives as the need arose. Mitchell's bulldozer was 

equipped with an operable back-up alarm that could be heard 300 yards 

away, and his bulldozer could have been seen at times during the shift 

when it was on certain parts of the coal pile. Old Ben conceded at oral 

argument before the Commission that, so far as the record shows, neither 

the preparation plant operator nor any other employee was required to 

observe or keep track of the bulldozer driver on the pile. Tr. Arg. 37-

8. Mitchell used the telephones off the pile to contact the preparation 

plant employee twice during the first part of his shift. After Mitchell's 

last telephone call, about 2:30 a.m., no one had contact with him until 

his bulldozer, which had backed or fallen into a void and was buried in 

coal, was discovered about 6:00 a.m. Tr. 38-9, 199-200. 

In concluding that Old Ben violated section 77.1700, the judge 

found that Mitchell was working alone in a hazardous area and was not 

"under observation" or in "sufficient communication with others to avoid 

a violation of the standard. 11 3 FMSHRC at 1891-92. On the grounds 

articulated below, we agree. We turn first to the threshold questions 

of whether Mitchell was working "alone'' in an "area where hazardous 

conditions exist[ed] that would endanger his safety." 

The term, 11 alone,1t which is not defined in the regulation, refers 

in common usage to being separated or isolated from others. Webster's 

Third New Die at 60 (1971). In our 

1801 
view, the standard is directed at situations where miners are effectively, 

or for practical purposes, working alone notwithstanding some occasional 

contact with others. Here, there is no dispute that Mitchell was working 

by himself on the coal pile. Old Ben argues that Mitchell was part of a 

"team," but the evidence shows that no one observed or had contact with 

him on a regular or continuing basis and Old Ben has conceded that no 

one was responsible for keeping in touch with him. Such interaction as 

Mitchell had with the preparation plant employee was sporadic and 

insubstantial. Under these circumstances, we conclude that Mitchell was 

working alone within the meaning of the standard. 

In concluding that the coal pile was an "area where hazardous conditions exist," the judge held that the standard applies where hazardous 

conditions outside normal conditions in the mining industry are present. 

3 FMSHRC at 1890-91. On review, Old Ben endorses the judge 1 s definition 

of hazardous areas subject to the standard, but contends that the coal 

pile did not constitute an abnormal hazard. The Secretary advocates 

defining "hazard" in its ordinary sense, without reference to industry 

norms. On the facts of this case, we are satisfied that Old Ben's coal 

pile was a hazard under either definition or under any reasonable construction of the standard consistent with its protective purposes. 

The pile was exceptionally large. As the coal pile grew and its 

surface became packed down because of moisture and the pressure of the 

bulldozers, voids were more likely to occur. Tr. 73-4, 84-5. It is 

undisputed that collapsing bridges over voids were fairly frequent 

occurrences at Old Ben's mine. The fact that these conditions had 

existed for some time without having been the subject of a previous 

citation by the Secretary does not, as Old Ben suggests, prove they were 

not hazardous. Further, on the night of the accident, these general 

risks would appear to have been aggravated. The weather was rainy and 

misty and visibility was poor. Another bulldozer operator had fallen 

into a void shortly before Mitchell's shift, and had requested better 

communication for bulldozer operators working on the pile. This incident alone placed, or should have placed, the operator on notice of 

the hazards. Under these circumstances, we are persuaded that substantial evidence supports the judge's conclusion that on the night of 

the accident conditions atop the coal pile were hazardous within the 

meaning of the standard. We emphasize that our conclusion is based on 

the facts of this case. We do not mean to intimate that every coal 

storage pile would come within the standard because it is inherently 

"hazardous." Such determinations must be made on a case-by-case basis. 

We next consider the central issue of whether Mitchell was in sufficient 

communication or contact with others. 

1802 
The standard's requirements that a miner be able to communicate, 

or be heard, or be seen are stated in the disjunctive, and an affirmative 

finding with respect to any of the three would preclude a determination 

of violation. The standard neither specifies its purpose nor the requisite 

level of communication or contact and, before analyzing the facts, we 

address these two subjects. 

The judge assumed the standard was directed more towards rescuing 

miners after an accident than towards preventing accidents. However, 

nothing in the standard suggests that prevention is not a concern. Thus, 

we adopt the Secretary's position, because it is more consistent with 

the purposes of the Mine Act and the plain language of the standard: The 

standard has a dual purpose, to prevent accidents by timely warning when 

possible and to expedite rescue and minimize injury when an accident 

does occur. 

While the individual terms used in the standard, "communicate," "be 

heard," or "be seen, 11 are ordinary words, take on a more complex 

meaning in the context of prevention and rescue. Obviously, they embrace 

the physical acts of communicating, hearing, or seeing. Of necessity, 

they also include equipment intended for such purposes as well as procedures for their use, In construing these terms, we reject either an 

approach requiring constant comrrmnication or contact under all conditions, 

or an approach allowing any minimum level of communication or contact to 

satisfy the standard. Rather, we hold that the standard requires 

communication or contact of a regular and dependable nature commensurate 

with the risk present in a particular situation. As the hazard increases, 

the required level of communication or contact increases, We now apply 

this test to each requirement of the standard. 

We disagree with Old Ben that the telephones located off the coal 

pile satisfied the communication requirement. The telephones were not 

actually available if, as here, an emergency arose on the coal pile. As 

a practical matter, driving off the pile frequently to use a telephone 

would interfere with the bulld0zer driver 1 s responsibilities, and he 

would be reluctant to do so. Tr. 27, 82, 99, 201. Both the preparation 

plant employee and another bulldozer driver testified that no procedures 

had been established for communicating by telephone; they used the 

phones solely on their own initiatives. Tr. 73, 111-12. Moreover, we 

note that Old Ben was on notice as to the inadequacies of this telephone 

system. The preparation plant employee (who was also a bulldozer driver) 

and the driver who had fallen into a void the previous shift testified, 

without effective rebuttal by Old Ben, that they had requested corrununication for the coal pile several times before. Tr. 75, 83, 87, 143, 

161; see also Pet. Exh. 14. Thus, substantial evidence supports the 

judger-s-conclusion that the operator failed to provide corrnnunication of 

a regular or dependable nature commensurate with the risk involved. 

1) Old Ben mistakenly asserts that the judge held that the standard 

required constant two-way radio communication. The judge held only that 

the communication available was insufficient. He specifically stated 

that two-way communication, while "a ~uch safer way to operate the raw 

coal storage pile, 11 was not required by the standard. 3 FMSHRC at 1892, 

These statements were dicta and we need not decide whether two-way 

radios would be in excess of the standard. 

1803 
Evidence that Mitchell could be heard and seen at certain times and 

under certain circumstances also fails to satisfy the standard. The 

sound of the bulldozer back-up alarm was not a call for help, but merely 

a signal that the machine was in reverse. Of course, a back-up alarm 

offers no protection if trouble arises while a vehicle is going forward. 

In any event, because no one was responsible for listening for Mitchell, 

it is unlikely that anyone would have responded to the back-up alarm or 

have heard a call for help. Tr. 176-77. Similarly, although Mitchell 

could be seen at times by the preparation plant employee, the gob truck 

driver, and other employees, there was a considerable discrepancy 

between what miners theoretically could see and what they actually saw. 

In our view, it is highly significant that the last known contact with 

Mitchell was about 2:30 a.m., and that the accident was not discovered 

until about 6:00 a.m. Mitchell was completely out of sight and hearing 

for about 3-1/2 hours. Therefore, substantial evidence supports the 

judge's conclusion that Mitchell was not "under observation." 

In sum, we conclude that during a time when this employee was 

working alone on a hazardous coal pile, he could not communicate with 

others nor could he be heard or seen on a regular or dependable basis 

commensurate with the risk involved. 4/ Accordingly, we affirm the 

judge's conclusion that Old Ben viol -ed the standard. 5 

Lawsr~Commissioner 

4/ Old Ben argues that the judge erred because he imposed liability 

even though he found no nexus between the fatal accident and the alleged 

violation. As we have repeatedly emphasized in our decisions, the fact 

of an accident or injury does not by itself necessarily prove or disprove the existence of a violation. See, for example, Lone Star Industries, 

Inc., 3 FMSHRC 2526, 2529-30 (November 1981). A violation may occur 

absent an accident, and an injury or death does not ipso facto make out 

a violation. As here, however, an accident may sometimes shed light on 

an unsafe situation that had escaped previous notice or citation. Our 

holding means that the standard would have been violated under the 

circumstances present on the night of the accident regardless of whether 

Mitchell had fallen into a hole and been hurt, escaped injury, or avoided 

an accident altogether. 

Commissioner Nelson assumed office after this case had been considered by the other Commissioners. A new Commissioner possesses legal 

authority to participate in pending cases, but such participation is 

discretionary and is not required for the Conunission to take official 

action. The other Commissioners reacned agreement on the disposition of 

the case prior to Commissioner Nelson 1 s assumption of office, and participation by Commissioner Nelson would therefore not affect the outcome. 

Accordingly, in the interest of efficient decision-making, Commissioner 

Nelson elects not to participate in this case. 

1804 
Distribution 

Edmund J, Moriarty, Esq. 

Old Ben Coal Company 

69 West Washington Street 

Chicago, Illinois 60602 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charles Moore 

Fed. Mine Safety & Health Rev. Commission 

5203 Pike, 10th Floor 

Falls Church, Virginia 22041 

1805 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

r l.\J 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

WASHINGTON CORPORATION, d/b/a/ 

WASHINGTON CONSTRUCTION COMPANY, 

Respondent. 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NO. WEST 81-63-M 

) A/C No. 10-00556-05010 

) DOCKET NO. WEST 81-64-M 

) A/C No. 10-01382-05002 

) DOCKET NO. WEST 81-102-M 

) A/C No. 10-00556-05012 F 

) DOCKET NO. WEST 80-285-M 

) A/C No. 10-00556-05008 

) MINE: State Pit El 109 and 

) Dry Valley 

) DOCKET NO. WEST 81-351-M 

) A/C No. 10-00634-05004 

) MINE: Monsanto Quartize Quarry 

) (Consolidated) 

~~~~~~~~~~~~~~~~~-) 

DECISION 

Appearances: 

Ernest Scott, Esq., Office of the Solicitor 

United States Department of Labor, 8003 Federal Building 

Seattle, Washington 98174 

For the Petitioner 

Mr. James A. Brouelette, Safety Officer 

P.O. Box 8989, Missoula, Montana 59807 

For the Respondent 

Before: Judge Virgil E. Vail 

These consolidated cases arising under the Federal Mine Safety and 

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

the Act", involve the same parties, andTetitions for assessment of civil 

penalties by the Secretary against the respondent. A hearing on the above 

cases was held on July 27, 1982, at Idaho Falls, Idaho. The parties waived 

filing post-hearing br fs. 

DOCKET NOS. WEST 81-351-M and WEST 81-64-M 

At the connnencement of the hearing, the Secretary moved to dismiss 

Docket No. WEST 81-351-M involving Citation No. 353269 and Docket No. WEST 

81-64-M involving Citation No. 350433. The reason presented for dismissing 

these two cases was that the principle witnesses, the mine inspectors, could 

not be located and therefore were unavailable for the hearing. 

180? 
Counsel for the Secretary stated that reasonable effort had been made to 

locate the inspectors but due to the release of these men from their duties 

because of a reduction-in-force he was unable to find them. The Secretary 

stated that without this testimony, he was unable to prove these cases. 

The motion was unopposed and based on good cause presented, I granted 

same. 

DOCKET NOS. WEST 80-285-M and WEST 81-63-M 

Regarding the above two cases, respondent had stated in the answer in 

both cases the same defense, that is, the timeliness of the Secretary in 

issuing its proposal for assessment of a penalty. It was agreed by the 

parties at the hearing that they would present the facts at that time for a 

ruling thereon. 

In Docket No, WEST 80-285-M, Citation No. 351050 was sued to the 

respondent on August 4, 1978 and abated on August 9, 1978. Citation No, 

349218 was sued on July 18, 1979 and was terminated on January 30, 1980. 

On May 19, 1980, a petition for the assessment of a penalty was proposed 

for these two citations by the Secretary and filed with the Commission. On 

December 10, 1981, the Secretary filed a motion to amend its petition for 

assessment of penalty by vacating Citation No. 349218 as he did not believe 

that he could prove this citation. This motion is granted and Citation No. 

349218 is vacated. 

In Docket No. WEST 81-63-M, Citation Nos. 351056, 351057, and 351059 

were all issued to the respondent on August 4, 1978. The date of 

termination of all citations was August 9, 1978 and the proposal of a 

penalty was made on November 13, 1980. The Secretary filed its petition 

for assessment of penalty on August 19, 1981. Respondent argues that 

Section 105(a) of the Act requires that the operator must be notified 

within a reasonable time after the termination of such inspection or 

investigation of the penalty proposed. Respondent points out that in 

Docket WEST No. 81-63-M, the citations were terminated on August 9, 1978 

and penalty was not proposed until November 13, 1980, which is more than 

two years later. In Docket No. WEST 80-285-M, the Citation No. 351058 was 

terminated on August 9, 1978 and proposal for a penalty was issued on March 

11, 1980 which was over a year and a half later. As to both cases, 

respondent contends that this delay has prejudiced its ability to present a 

proper defense as it was not feasible to preserve the necessary evidence 

and is now difficult to know what witnesses would be required or available 

for presentation at the hearing (Tr. p. 7 and 10). 

The Secretary argues that the respondent must show it has been 

prejudiced by the delay and also whether it had any defense in the first 

place for without a defense, the passage of time would not prejudice it. 

Also, that the respondent was put on notice that the violation existed and 

1808 
that it was reasonable to assume the respondent would preserve such 

evidence necessary in defense of its position in these pending cases. 

The Secretary stated that the delay in filing the proposal of a 

penalty in these cases was due to the fact that the department responsible 

for processing these assessments found its established method was not 

compatible with the volume of citations issued and they had to change their 

procedures (Tr. p. 9-10). 

In these two cases, I reject the Secretary's arguments. Section 

lOS(a) of the Act states in part as follows: 

If, after an inspection or investigation, the Secretary 

issues a citation under section 104, he shall, within a 

reasonable time after the termination of such inspection 

or investigation, notify the operator by certified mail 

of the civil penalty proposed to be assessed under llO(a) 

for the citation cited*** (Emphasis added). 

Obviously, the words "reasonable time" is crucial here. In a recent 

decision, the Connnission considered a similar defense as that raised by the 

respondent here. In Secretary of Labor v. Salt Lake Count Road Dept., 3 

FMSHRC 1714, (July 28, 1981), the Commission reasoned that consideration 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. The Connnission 

proposes two reasoned excuses to reach a fairness for both parties in such 

procedural matters and states as follows: 

In order to help strike a proper balance and to insure 

that the Secretary does not ignore section lOS(d)'s 

injunction to act "irrnnediately", we hold that if 

the Secretary does seek permission to file late, he 

must predicate his request upon adequate cause. 

C.F. 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 Corrnnission. 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 operators case. 

The Commission therefore has established two tests to determine if the 

late filing of the proposal is in substantial compliance with the Act and, 

1809 
therefore, should not be dismissed. The Secretary must show that there was 

adequate cause for the delay. The mine operator on the other hand must 

show it has been prejudiced by the delay. These two requirements are 

balanced against each other with the scales weighing heavily on the side of 

enforcement. 

The above tests can be directly applied here. The delay of over two 

years in Docket No. WEST 81-63-M and over a year and a half in WEST No. 

80-285-M is on its face a serious disregard of the objectives established 

by Congress for prompt assessment of a penalty for effective enforcement of 

the Act. A reasonable time to implement the assessment procedures by the 

Secretary should be condoned, but I am persuaded that the time limits of 

reasonableness were violated in the above two cases. I also find that the 

lengthy delay here has been inherently prejudicial to the operator's 

preparation of a proper defense. 

For the above stated reasons, the citations in Docket Nos. WEST 81-

63-M and WEST 80-285-M are dismissed with prejudice 

DOCKET NO. WEST 81-102-M 

STIPULATION 

The parties at the hearing jointly agreed to submit the above case 

upon a stipulation of the facts. The issue for decision herein is, whether 

a violation of the Act occurred and, if so, whether a penalty should be 

assessed, and, if so, what the amount of the penalty should be. 

The parties stipulated as follows: 

1. Paragraph 1 of the petition for assessment of a penalty 

admitted. 

2. Respondent for all purposes of this proceeding is covered by the 

Act. 

3. At all times material to this action, the respondent was engaged 

in the operation of a mine located in Soda Springs, Caribou County, Idaho. 

The name of such mine is Dry Valley Mine. 

4. Respondent admits paragraph III of the petition for assessment of 

penalty. 

5. As a result of an investigation of the aforesaid mine by an 

authorized representative of the Secretary of Labor on or about September 

24 and 25 of 1980, Citation No. 350197 was issued to the respondent. 

6. A copy of said citation may be admitted into evidence for the 

purpose of showing what was issued. (Joint Exhibit No. 6) 
7. A total penalty of $5,000.00 was proposed for the aforesaid 

alleged violation. 

8. A copy of MSHA's assessed violation history report may be admitted 

into evidence. (Joint Exhibit No. 5) 

9. Respondent employed approximately 325 full time employees from 

September, 1980 to November, 1981. From December, 1981 to the present time 

respondent has employed approximately 75 full time employees. 

10. Respondent mined approximately 2.5 million tons of phosphate per 

year on a contract basis during the years 1980 and 1981. 

11. Payment of the proposed penalty would not affect respondent's 

ability to continue in business. 

12. Respondent demonstrated good faith in achieving abatement after 

notification of the alleged violation. 

13. The investigation report of John M. Moore, metal and nonmetal 

mine inspector, United States Department of Labor, may be admitted into 

evidence as representative of facts supporting the issuance of Citation No. 

350197~ and the facts pertaining to the accident which he investigated, 

(Joint Exhibit No. 4) 

14. That it is Washington Construction Company's policy and practice 

that employees engaged in moving rail cars wear safety belts. 

15. Respondent's employees are made aware at safety meetings and in 

training, of the requirement that they utilize safety belts when engaged in 

moving rail cars. 

16. Joint exhibit No. 1 is a photograph of a portion of the rail car 

in which Todd Martindale was standing at the initial time of the accident. 

The platform has been encircled. 

17. Joint exhibit No. 2 depicts a full side view of the type of rail 

car on which Todd Martindale was standing at the initial time of the 

accident. 

18. Joint exhibit No. 3 depicts, among other things, the tipple which 

is in the irmnediate area where Todd Martindale was working on the night of 

the ace ident. 

19. Joint exhibits 1, 2, and 3 may be admitted into evidence. Each 

fairly or accurately represents the scenes photographed by Mine Safety and 

Health inspector John Moore. 

1811 
DISCUSSION 

Following a fatal accident which occurred at respondent's mine at Soda 

Springs, Idaho, on September 23, 1980, a duly authorized representative of 

the Secretary conducted an investigation and issued Citation No. 350197 

alleging a violation of 30 C.F.R. § 55.15-5. The citation alleges as 

follows: 

Todd Martindale, Social Security No. 518-94-7830, victim 

of a fatality at the Dry Valley Mine Tipple, was not 

wearing a safety belt at the time of the accident, The 

victim was standing on the braking systems work platform 

of the railroad car, The height of the platform from the 

ground was approximately 7 feet. The victim was knocked 

to the ground by cars up track striking the cars being 

loaded. 

30 C.F.R. § 55.15-5 prov 

Mandatory. Safety belts and lines shall be worn when 

men work where there danger of falling; a second 

person shall tend the fe line when bins~ tanks, or 

other dangerous areas are entered, 

From the facts included in the stipulation and the arguments of the 

parties at the hearing, it does not appear that there is an issue as to 

how the accident occurred, Further, respondent has a requirement that 

employees wear safety belts while moving rail cars. Predicated on this, I 

find that there was a violation of mandatory safety standard § 55.15-5. 

The respondent argues that it has an established safety program and 

that in force in that program the requirement that men wear safety belts 

while moving rail cars. That the foreman at the time of the accident was 

having a problem with start-ups and did not have time to check each individual on the job. The foreman was unaware of the fact that men were not 

wearing safety belts. 

James A. Brouelette, safety officer for respondent, testified at the 

hearing that they have had problems with miners not wearing their safety 

belts and have threatened them with firing if they didn't comply. 

No one had been fired as the operator has a large turnover of employees and 

firing is the last resort (Tr. p. 23-24). He argued that the operator had 

not incurred an injury in the past for miners not wearing a belt or been 

cited for this and that the violation was a result of misconduct on the 

part of the employee and should not be charged as a violation against the 

operator. 

This argument by the operator has been addressed by the Connnission in 

the past. To prove a violation of the standard involved herein, as with 

most standards, "noncompliance with the standards terms need only be 

1812 
shown 11 Eastern Associates Coal Corporation v. Secretary, 4 FMSHRC 835 

(May 3, 1982). The mere occurrence of the infraction of the safety 

standard constitutes a violation since liability is imposed on the mine 

operator without regard to fault. El Paso Rock Quarries, 3 FMSHRC 35 

(1981). 

The failure of the miner in this case to wear the safety belt resulted 

in his death. This was a violation of the standard. Although the operator 

had a rule regarding the wearing of such belts, they also knew the men did 

not always comply and should have foreseen that an accident would result. 

The Court in Heldenfels Bros. v. Marshall, 636 F. 2d 312 (5th Cir. 1981) 

(unpublished opinion), involving an accident which also resulted solely 

from fault on the part of an employee, affirmed the principle of both 

strict liability and vicarious liability peculiar to the mine safety law 

and stated as follows: 

Heldenfels claims they were denied due process by the 

imposition of a civil penalty for this alleged violation, 

Underlying this due process argument is Heldenfel's 

assertion that there was noth~ng they could have done 

to prevent the accident in question. The Secretary 

responds by pointing out the fact that the Act imposes 

strict liability on operators for violation of regulations. This argument misses the mark. Heldenfels is 

not claiming that it should not be held liable since 

it was not negligent; Heldenfels argues that it should 

not be held liable because it did not cause the violation 

of the regulation. However, Section llO(a)(l) of the 

Act, 30 U.S.C. § 820(a)(l), authorizes assessment of a 

civil penalty against the operator of a mine when a 

violation of a mandatory regulation occurs at the mine. 

Thus, Congress has provided for a sort of vicarious 

liability to accompany the provision for strict liability. 

(emphasis added). 

Therefore, it is found that respondent is liable for the violation of 

the mandatory safety standard committed by its employee. 

ASSESSMENT OF PENALTY 

The rema1n1ng issue is the amount of the penalty to be assessed 

against the respondent. The amount of the penalty must relate to the 

degree of the operator's culpability in terms of wilfulness or negligence, 

the seriousness of the violation, the size of the business, number of 

previous violations and respondent's good faith in abating the violative 

condition. 

The stipulation in this case provided that respondent operates a small 

to moderate size mine and the imposition of a penalty in this case would 

1813 
not impair their ability to continue in business. The history of prior 

penalties as shown in joint exhibit No. 5 did not reflect a large number of 

violations but did show several violations for which large assessments were 

made indicating several serious types of violations involved. The 

respondent demonstrated good faith in achieving abatement after 

notification of the violation in this case. 

The uncontrovert~d evidence of record shows that the respondent made 

an effort to enforce safety rules at its mine including the use of safety 

belts. The Secretary in its argument for a penalty related that the mine 

inspector represented to him that respondent had a good safety policy. 

(Tr. p. 20) Further, the accident was such that it inflicted injury resulting in death only upon the employee himself and not upon other 

employees. However, there can be no shifting of responsibility from 

employer elsewhere for maintaining strict enforcement of its safety rules 

and although at times the operator may become discouraged, it must still 

continue to press for compliance from its employees. Because the record is 

void of evidence that the respondent was willful or grossly negligent in 

enforcing compliance with the mandatory standard herein, I believe a 

penalty less than that originally proposed is in order. However, because a 

grievous injury resulted from the non-compliance herein, a penalty of 

$1500.00 is assessed. 

ORDER 

In Docket No. WEST 81-351-M, Citation No. 353269 is vacated. 

In Docket No. WEST 81-64-M, Citation No. 350433 is vacated. 

In Docket No. WEST 80-285-M, Citation No. 349218 and 351058 are both 

vacated. 

In Docket No. WEST 81-63-M, Citations Nos. 351056, 351057, and 351059 

are vacated. 

In Docket No. WEST 81-102-M, respondent is ORDERED to pay the 

Secretary the sum of $1500.00 as a civil penalty for the violation of 30 

C.F.R. 55.15-5 within 40 days of the date of this decision. 

Virgil JOVail 

Administrative Law Judge 
Distribution: 

Ernest Scott, Esq. 

Off ice of the Solicitor 

United States Department of Labor 

8003 Federal Building 

Seattle, Washington 98174 

Mr. James A. Brouelette, Safety Officer 

P.O. Box 8989 

Missoula, Montana 59807 

1815 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

0CT6 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MI 'lE SAFETY fu~D HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WADE KEMP III, WILLIAM KURE, 

RUSSELL COLLINS, VIRGIL KELLY, 

EUGENE WEIGENSTEIN, DONALD 

DARRELL GOODMAi~, 

Respondents 

Docket Nos. CENT 81-186-N 

CENT 81-187-M 

CENT 81-188-M 

CENT 81-189-11 

CENT 81-190-M 

CENT 81-191-M 

Annapolis Quarry and Mill 

The captioned matters came on for a consolidated before the 

trial judge in St. Louis, Missouri on July 13 through 16, 1982. Respondents 

were charged, as agents, with violating section llO(c) of the Act by 

knowingly authorizing, ordering, or carrying out the corporate mine 

operator's violation of the mandatory safety standard set forth in 30 

C.F.R. § 56.9-2. The standard cited requires that equipment defects 

affecting safety be corrected before the equipment ~~ used. The gravamen 

of the charge was that the individual respondents with knowledge that 

the braking system on a large haulage truck was defective authorized or 

ordered miners to operate the truck on a haulage road with several steep 

grades thereby endangering their lives. The corporate operator, GAF 

Corporation, had previously paid a modest civil penalty for the violation 

pursuant to section llO(a) of the Act. 

On the third day of the hearing, Thursday, July 15, 1982, counsel 

for the Secretary moved to dismiss with prejudice the charges against 

respondents Kemp, Kure, Weigenstein and Goodman on the ground there was 

insufficient evidence to show they authorized or ordered use of the 

Euclid truck in question with knowledge of the alleged defective braking 

system. This motion was granted (Tr. 605). 

Thereafter, the trial judge denied a motion to dismiss for failure 

to make a prima facie case against the other two respondents and they 

proceeded to present their defense-in-chief. After both parties rested, 

on Friday, July 16, 1982 counsel for the last two respondents moved to 

dismiss the charges against them on the ground that the Secretary failed 

1816 
to establish their complicity in the violation charged by a preponderance 

of the reliable, probative and substantial evidence in the record 

considered as a whole. Counsel for the Secretary opposed this motion. 

After considering the arguments of counsel, together with their proposed 

findings and conclusions, the trial judge entered a tentative bench 

decision in which he found that because the Secretary had failed to 

prove either the violation charged or respondents' knowing participation 

therein the charges should be dismissed. 

On September 20, 1982, counsel for the Secretary filed a motion to 

join respondents' motion to dismiss at the close of the evidence stating: 

"After reviewing the hearing transcript, particularly the 

testimony given by Respondents' witness, Weigenstein, 

(hearing transcript, pp. 814-924), Petitioner agrees that there 

is insufficient evidence to show that Respondents knowingly 

authorized, ordered or carried out the corporate mine operator's 

violation of 30 C.F.R. § 56.9-2. Accordingly, Petitioner now 

joins in Respondents 1 motion to dismiss on this particular ground, 

In the alternative, Petitioner independently moves to dismiss the 

Petitions against Respondents on said ground," 

Counsel for respondents advised of his concurrence in the Secretary's 

motion on September 24, 1982. 

The premises considered, it is ORDERED that the parties joint motion 

to dismiss the charges against respondents Kelly and Collins be, and 

hereby is, GRANTED and the captioned petitions be DISMISSED AS TO ALL 

RESPONDENTS WITH PREJUDICE. 

Administrative Law 

Distribution: 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Patrick E. Daly, ., EEO/Labor Attorney, GAF Corp., 140 West 5lst 

Street, New York, NY 10020 (Certified Mail) 

Mike Mathes, Esq., United Steelworkers of America, P.O. Box 351, 

Ellington, MO 63638 (Certified Mail) 

1817 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRA lWE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

) 

OCT 7 1962 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, 

v. 

FMC CORPORATION, 

RespondentD 

) DOCKET NO. WEST 80-380-M 

) 

) MINE: FMC 

) 

) 

) 

) 

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

Appearances: 

Robert J. Lesnick~ Esq.s Office of 

Henry C. Mahlman~ Associate Regional Solicitor 

United States Department of Labor 

Denver, Colorado 

for the Secretary of Labor 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall and McCarthy 

Salt Lake City, Utah 

for the Respondent 

Before: Judge John J. Morris 

DECISION 

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

Health Administration, (MSHA), charges respondent, FMC Corporation, (FMC), 

with violating two safety regulations adopted under the authority of the 

Federal Mine Safety and Health Act, 30 U.S.C. 801 ~~·(Supp. III 1979). 

After notice to the parties a hearing on the merits was held in Green 

River, Wyoming on September 1, 1981. 

FMC filed a post trial brief. 

ISSUES 

The issues are whether respondent violated the regulations and, if so, 

what penalties are appropriate. 

1818 
CITATION 575950 

This citation alleges a violation of Title 30, Code of Federal 

Regulations, Section 57.9-2, which provides as follows: 

Mandatory. Equipment defects 

affecting safety shall be 

corrected before the equipment 

is used. 

The evidence: on March 13, 1980 MSHA respresentative Merrill Wolford 

inspected a GMC pickup truck owned by Western Steel Company, a 

subcontractor for FMC (Tr. 3, 19, 27-28). 

Another person turned the steering wheel of the truck while Inspector 

Wolfo_rd checked the suspension system. Re observed that the idler ann, 

the ball joint, and the tie rods were loose. The loose linkage showed 

excessive wear (Tr. 4-7, PS). 

In the opinion of the inspector excessive play in the steering system 

could cause the driver to loose control of the vehicle (Tr. 17-18). In 

addition, there could be a complete failure of the ball joint. It could 

come out of the socket or crystallize and break (Tr, 15). 

The truck was being operated in the mine area in the presence of 

numerous workers (Tr. 9-10). 

DISCUSSION 

The evidence establishes a violation of the regulation, 30 C.F.R. 

Section 57.2. 

Respondent attacks the credibility of MSHA's evidence, and relies on 

its own evidence. 

I find MSHA's evidence to be credible. Inspector Wolford has had 

considerable experience in motor vehicle mechanical work. And the experience included work with front end alignments, tie rods, and ball 

joints. (Tr. 1, 2). In addition the credible evidence establishes the 

linkage and tie rods were loose and showed excessive wear (Tr. 6, 7, P6). 

The record establishes that there existed an "equipment defect" within the 

meaning of Section 57 .9-2. It is also apparent that the defect "affected safety" since such excessive play could cause the operator to loose 

control of the vehicle (Tr. 17-18). 

On the other hand I am not persuaded by FMC's defense. FMC offered no 

evidence to contradict the inspector's testimony as to the condition of the 

suspension system. The fact that Wolford did not drive the truck to check 

its steering would not, in my view, destroy his credibility. The inspector 

used a proper method to check the truck's suspension system. 

1819 
In support of its view FMC relies on Judge George Koutras's decision 

in Medusa Cement Company, 1 MSHC 2554, (1980). It is apparent in Medusa 

Cement that Judge Koutras concluded that the worn steering control arm did 

not present a real safety hazard. I find to the contrary in this case: the 

defective parts, that is, the loose tie rods and the loose ball joints did 

affect safety. 

For similar cases. construing the meaning of 30 C.F.R. 57.9-2 compare 

Phelps Dodge Corporation, 4 FMSHRC 1078 (1982), and Allied Chemical 

Corporation, 4 FMSHRC 503 (1982). 

The citation should be affirmed. 

The parties do not address the proposed civil penalty of $106, 

Considering the statutory criteria, 30 U.S.C. 820(i), I deem that the 

proposed penalty is appropriate. 

CITATION 575955 

This citation al a violation of Title 30, Code of Federal 

Regulations, Section 57.12-16 which provides as follows: 

Mandatory. Electrically powered equipment shall be 

deenergized before mechanical work is done on such 

equipment. Power Switches shall be locked out or 

other measures taken which shall prevent the equipment from being energized without the knowledge of 

the individuals working on it. Suitable warning 

notices shall be posted at the power switch and signed 

by the individuals who are to do the work. Such locks 

or preventive devices shall be removed only by the 

persons who installed them or by authorized personnel. 

The evidence: before the FMC electrician began to soder the lines on 

the 480 volt air conditioner he turned the electrical switch to "off." (Tr. 

3-6, 8). The air conditioner could not become operational with the switch 

off (Tr. 15). But the unit remained energized where the lines entered it 

and at the top of the contactors (Tr. 17, 20). 

As he was sodering the electrician's left arm was two feet from the 

energized portion of the unit (Tr. 30). It was not necessary to have the 

unit energized in order to soder the lines (Tr. 48). 

The center and bottom cover plates were removed because the worker 

intended to attach his air-conditioning hoses to the high side pressure 

valves (Tr. 15, 43). The electrical switches in the motor control center 

controlling this unit were not tagged or locked out (Tr. 32). 

DISCUSSION 

The evidence establishes a violation of the regulation. The 480 volt 

air conditioner was not deenergized before the FMC electrician sodered the 

lines. 

1820 
FMC contends that the condition described in the citation is 

authorized by 30 C.F.R. Section 57-12. 32 and in any event, FMC asserts no 

violation occurred. 

FMC initially contends that a different regulation, 30 C.F.R. Section 

57-12.32, specifically authorizes the removal of cover plates during 

testing and repairs. And FMC says the citation was only issued because of 

the hazard that the worker might contact the energized portion of the air 

conditioner which were exposed because the cover plates had been removed. 

The exception for "testing or repairs" contained in 30 C.F.R, 57.12-32 

provides: 

Mandatory. Inspection and cover plates on 

electrical equipment and junction boxes shall be 

kept in place at all times except during testing 

or repairs. 

I disagree with FMC 1 s view of the evidence. The FMC electrician was 

sodering at the top right portion of the unit (Tr. 9, Pl). At that point 

the energized portion of the unit were below him and to the left (Pl). 

The removal of the bottom cover plate appears completely unrelated and 

several feet from the sodering repair. I agree that the cover plate had to 

be removed after the sodering but it was removed in order tt'r attach the 

high pressure hoses to the valves, But the FMC electrician indicated he 

could have locked out the equipment while he was doing the welding, then 

reenergized it, and thereafter checked the pressure (Tr. 20). These 

circumstances render 30 C.F.R. 57.12-32 inapplicable. 

FMC cites Bill's Coal Companft, 1 MSHC 2088 (1979), a decision by Judge 

Forrest Stewart which involves a rtesting or repairs" regulation similar to 

the one relied on by FMC. In that decision a cover plate had been removed 

in order to replace a drive motor. Judge Stewart vacated the citation as 

he concluded that the repair exception applied. This pivitol fact did not 

occur in the instant case. The record is clear: the electrician did not 

have to remove the cover plate to weld the lines (Tr. 13, 14, 15). It was 

more convenient to do so because after the welding was completed he could 

hook up the high side pressure valves and then test the unit. 

Repondent has the burden of proving that an exception rather than a 

mandatory regulation is applicable. On this record FMC did not carry its 

burden. 

FMC further contends that Section 57-12.16 is designed to protect 

workers from mechanical rather than electrical hazards. FMC bases this 

view on the grounds that the contested regulation does not refer to 

"circuits". And the succeeding regulation, Section 57.12-17, is designed 

to prevent electrical hazards. 

A reading of Section 57.12-16 indicates it refers to "electrically 

powered equipment." An air conditioner would be such equipment. On the 

other hand Section 57.12-17 clearly refers to power circuits. 

1821 
FMC's final argument is that its worker deenergized the air 

conditioner by use of the "off" switch which was always in view of the 

worker and 4 1/2 feet away from where he was sodering (Tr. 13-14). 

No defense is presented. The regulation requires that the equipment 

be deenergized. Merely turning the air conditioning switch to "off" did 

not deenergize it. The unit remained energized at the points where the 

power entered the unit and at the top of the conductors (Tr. 18-20, Pl). 

The failure to deenergize the equipment establishes the violation. 

The citation should be affirmed. 

The parties raise no issue as the proposed civil penalty of $52. 

Considering the statutory criteria, 30 U.S.C. 820(i), I deem that the 

proposed penalty is appropriate. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following 

ORDER 

1. Citation 575950 and the proposed civil penalty of $106 are 

affirmed. 

2. Citation 575955 and the proposed civil penalty of $52 are 

affirmed. 

Distribution: 

Robert J. Lesnick, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall & McCarthy 

50 S. Main Street, Suite 1600 

Salt Lake City, Utah 84144 

1822 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

OCT 7 1982 

FMC CORPORATION, ) CONTEST OF CITATION PROCEEDINGS 

Contestant, ) 

) DOCKET NO. WEST 81-131-RM 

v. ) 

) MINE: FMC 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

Respondent. ) 

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

) 

SECRETARY OF LABOR, MINE SAFETY AND ) CIVIL PENALTY PROCEEDINGS 

HEALTH ADMINISTRATION (MSHA), ) 

Petitioner~ ) DOCKET NO. WEST 81-234-M 

v. ) 

) MINE: FMC 

FMC CORPORATION, ) 

Respondent. ) 

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

Appearances: 

John A. Snow, Esq., Vancott, Bagley, Cornwall & McCarthy 

Salt Lake City, Utah 

for the FMC Corporation 

Robert J. Lesnick, Esq., Office of 

Henry C. Mahlman, Associate Regional Solicitor 

United States Department of Labor, Denver, Colorado 

for the Secretary of Labor 

Before: Judge John J. Morris 

DECISION 

In these consolidated cases the FMC Corporation, (FMC), contests an 

order of withdrawal issued by the Mine Safety and Health Administration, 

(MSHA), for an alleged violation of Title 30, Code of Federal Regulations, 

1823 
57.6-177. 1/ The Secretary of Labor, on behalf of MSHA, seeks to 

impose a civil penalty for the alleged violation. 

All of the proceedings herein arise under the Federal Mine Safety and 

Health Act, 30 U.S.C. 801 ~seq. (Supp III, 1979). 

After notice to the parties a hearing on the merits was held in Green 

River, Wyoming on September 2, 1981. 

FMC filed a post trial brief, 

ISSUES 

The issues are whether FMC violated the regulation and, if so, what 

penalty is appropriate. 

SUMMARY OF THE EVIDENCE 

Armnonium nitrate, (ANFO), a blasting agent, has the appearance 

texture of BBs. The explosive is mixed with fuel oil (Tr, 5, 49). 

underground trona mine FMC explodes the ANFO with high velocity cap 

dynamite. These serve as a primer. An 18 inch water bag acts as a 

stemming device (Tr. 6, 11, 44). 

and 

In its 

and 

After the blast the area is mucked out, Roof bolts provide overhead 

protection (Tr. 6). 

On the day of the inspection an MSHA representative found two misfires 

(Tr. 7, 8, Pl, P2). Ignition wires were sticking out of one of the 

drilled holes. FMC washed out the misfire holes after the withdrawal order 

was issued (Tr. 9, P2). 

The 

could be 

out (Tr. 

top hole: was shot "clear through" and both sides of the hole 

seen. No cap or primer could be seen. No cap or primer washed 

9, 31, 39, 42-43, 50-51). 

1/ The cited regulation reads: 

57.6-177 Mandatory. Misfires shall be reported to the proper supervisor. 

The blast area shall be dangered-off until misfired holes are disposed of. 

Where explosives other than black powder have been used, misfired holes 

shall be disposed of as soon as possible by one of the following methods: 

(a) Washing the stemming and charge from the borehole with water; 

(b) Reattempting to fire the holes if leg wires are exposed; or 

(c) Inserting new primers after the stemming has been washed out. 

1824 
The bottom hole: detonation wires were sticking out. It could not be 

determined if the hole had fired. Only the blasting agent (ANFO) could be 

seen in the hole (Tr. 50-51). 

The holes had been primed and fired on the swing shift the previous 

night. This was 11 hours before the inspection (Tr. 12, 15). The day 

shift foreman hadn't seen the misfires (Tr. 13). 

In everyday use ANFO is as inert as cement. 

friction, drop weight, and cap sparks. Shooting 

cause it to explode (Tr. 67, 68). 

It is insensitive to 

it with a bullet will not 

If over compacted, as from a blast, ANFO will desensitize (Tr. 68), 

But the compaction of ANFO to the point of being inert cannot always be 

determined (Tr. 70, 74). 

DISCUSSION 

MSHA's witness defines a misfire as a drilled hole loaded with 

explosives which did not fire on the initial detonation (Tr. 27). 

The Secretary 1 s definition in Title 30, Code of Federal Regulations~ 

Section 57.2 states: 

Misfire means the complete or partial failure of 

a blasting charge to explode as planned. 

The facts here establish a violation of the regulation. Both the top 

and bottom holes had misfired. 

The misfire in the top hole was somewhat more obscure than the bottom 

hole since it had "shot through," that is, the hole on the back side of the 

blast would indicate that the primer and cap had exploded (Tr. 27). No 

evidence was presented as to precise appearance of a drill hole after it 

is "shot through". 

The misfire in the bottom hole was more readily apparent since the 

detonation wires were still hanging out of the hole after the blast (Tr. 

39, P2). 

The presence of ANFO, the explosive, in the drill hole after the 

blast, fairly indicates at least a partial failure of the blasting charge. 

It accordingly falls within the definition of a misfire. 

CONTENTIONS 

FMC contends that no misfire occurred, further, the drill holes 

contained only ANFO, and, finally, that even if a violation occurred the 

proposed civil penalty is excessive. 

1825 
FMC's initial contention is that the drill holes observed by the MSHA 

inspector were not misfires. This position evolves in this fashion: 

30 C.F.R. 57.6-8 2/ and 30 C.F.R. 57.6-190 3/ refer to ammonium 

nitrate as blasting agents therefore ammonium nitrate is not a "blasting 

charge" as contemplated in the regulatory definition of a mis fire. 

FMC correctly observes that the term "blasting charge" is not defined 

in the regulations. However, a common definition in a mining dictionary is 

that a "c~arge" is the explosive that is loaded into the borehole for 

blasting. I In short, the charge is the total explosive package. In 

this case-it includes the primer, the ammonium nitrate, and the dynamite. 

FMC places considerable reliance on the fact when the drill holes were 

washed out no cap or primer were observed. Therefore, it concluded the 

holes contained only ANFO. 

FMC's view of the evidence is based on hind sight. With the wires 

sticking out of the bottom hole a strong possibility of a misfire existed. 

It is true that no cap or primer were found in either hole but one cannot 

ignore the fact that some of the material in the hole was originally a part 

of the explosive charge. FMC aptly states that the obvious purpose of 30 

C.F.R. 57.6-77 is to avoid the possibility of an unplanned detonation of a 

live charge. In short, what appears to be a misfire should be treated as a 

misfire. 

FMC also argues that any ANFO in the drill hole would have been inert 

after an explosion. Therefore, it presented no hazard, 

2/ 57.6-8 Mandatory. Ammonium nitrate-fuel oil blasting agents shall be 

physically separated from other explosives, safety fuse, or detonating cord 

stored in the same magazine and in such a manner that oil does not 

contaminate the other explosives, safety fuse, or detonating cord. 

3/ Sensitized Ammonium Nitrate Blasting Agents 

All of the standards in this § 57 .6 in which the term "explosives" appears 

are applicable to blasting agents (as well as to other explosives) unless 

blasting agents are expressly excluded. 

General -- Surface and Underground 

57.6-190 Sensitized ammonium nitrate blasting agents, and the components 

thereof prior to mixing, should be mixed and stored in accordance with the 

recommendations in Bureau of Mines Information Circular 8179, "Safety 

Recommendations for Sensitized Ammonium Nitrate Blasting Agents," or 

subsequent revisions. 

4/ A dictionary of Mining, Mineral, and related terms, United States 

Department of Interior, 1968. 

1826 
I disagree. The evidence establishes that it is impossible to tell 

when and if a blast has compacted ANFO to a point where it becomes inert 

(Tr. 70, 74). 

The nexus of this violation lies in the fact that an unplanned 

detonation could have occurred had a cap, or a primer, or ANFO exploded 

after the initial firing. The possibility of this occurring establishes 

that a misfire exists. This in turn mandates the remedial action contained 

in Section 56.9-177. 

FMC cites Day Mines, Inc., 2 FMSHRC 1720, (1980), and Mulzer Crushed 

Stone Company, 2 FMSHRC 2497, (1980). While these cases involve the 

regulation in contest Judges Koutras and Moore did not address the issues 

raised here. 

CIVIL PENALTY 

The Secretary seeks to impose a civil penalty of $1000 for this 

violation. 

FMC asserts that the penalty is excessive. I agree. While the 

gravity is severe the negligence is low. In the only the prior citation 

against FMC involving a misfire the inspector wrote up the citation as one 

involving unexploded materials (Tr. 84). Further, in this case MSHA issued 

the citation at 11 a.m. and the abatement was accomplished 11:23 a.m. (Tr. 

18, Citation). This would indicate rapid abatement after notification of 

the violation. 

Considering the statutory criteria, 30 U.S.C. 820(i), I deem that a 

penalty of $200 is appropriate. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following order: 

1. Citation 577230 is affirmed. 

2. A penalty of $200 is assessed. 

3. The contest of Citation 577230 filed by respondent is dismissed. 

Judge 

1827 
Distribution: 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall & McCarthy 

50 S. Main Street, Suite 1600 

Salt Lake City, Utah 84144 

Robert J. Lesnick, Esq. 

Of of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

1828 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 OC1 8 \98'l 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

v. ) 

) 

HOMESTAKE MINING COMPANY, ) 

) 

Respondent. ) 

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

UNITED STEELWORKERS OF AMERICA, 

LOCAL UNION 7044, DISTRICT 33, 

Complainant, 

v. 

HOMESTAKE MINING COMPANY, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

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

CIVIL PENALTY PROCEEDING 

DOCKET NO. CENT 80-140-M 

A/C No. 39-00055-05022 W 

MINE: Homestake 

COMPLAINT FOR COMPENSATION 

DOCKET NO. CENT 80-198-CM 

MD 79-107 Through 125 

MINE: Homestake 

DECISION 

Appearances: 

Robert J. Lesnick, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building, 1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

Robert A. Amundson, Esq. 

215 West Main Street, P.O. Box 898 

Lead, South Dakota 57754 

For the Respondent 

Mr. Harry P. Tuggle 

Safety & Health Representative, United Steelworkers of America 

Five Gateway Center 

Pittsburgh, Pennsylvania 15222 

Before: Judge Virgil E. Vail 

JURISDICTION AND PROCEDURAL HISTORY 

On June 21, 1979, an inspector employed by the Mine Safety and Health 

Administration (hereinafter MSHA) issued an order of withdrawal for the 

1829 
Ross shaft area from the collar to the 4500 foot level of the Homestake 

Mine of the Homestake Mining Company (hereinafter Homestake). The order of 

withdrawal was issued pursuant to section 103(k) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. 813(k) (hereinafter the Act), based upon 

the inspector being told by Homestake officials that there was smoke in the 

Ross shaft area. 

On August 22, 1979, a special inspection was conducted by MSHA at the 

Homestake Mine and citation No. 329655 was issued to Homestake pursuant to 

section 104(a) of the Act (30 U.S.C. § 814) alleging that Homestake had 

worked miners in the Ross shaft area in violation of the 103(k) withdrawal 

order issued on June 21, 1979. On February 6, 1980, Local Union No. 7044, 

District 33, of the United Steelworkers of America (hereinafter USWA) filed 

a complaint for compensation under section 111 of the Act (30 U.S.C. § 821) 

for its members who are employees of Homestake, On February 19, 1980, MSHA 

filed a proposal for assessment of a civil penalty pursuant to section 105 

and 110 of the Act (30 U.S.C. § 815 and 820). On March 20, 1980, Homestake 

filed an answer to MSHA's proposal for assessment of a penalty. On October 

30, 1980, Homestake filed a motion for surrnnary decision alleging that 

USWA's complaint for compensation was untimely filed and an answer denying 

miners were required to work in areas of the mine covered by the l03(k) 

order. On November 28, 1980, an Order was issued denying respondent's 

motion for summary decision based upon a showing by USWA of good cause for 

its delay in this matter, 

These two cases were consolidated pursuant to Procedural Rule 12 of 

the Federal Mine Safety and Health Review Commission, 29 C.F.R. § 2700.12 

and a hearing was held in Lead, South Dakota. All three parties filed 

post hearing briefs. 

ISSUES 

1. Whether Homestake, having previously failed to seek administrative 

review of 103(k) order issued by MSHA is now foreclosed from contesting 

validity of the order in a 104(a) penalty proceeding and a section 111 

compensation proceeding. 

2. Whether Homestake worked miners in violation of a 103(k) order on 

June 21, 1979, as charged by MSHA and, if so, the amount of the civil 

penalty which should be assessed? 

3. Whether Homestake employees were forced to work in areas of the 

mine in violation of the 103(k) order and, if so, whether they are entitled 

to compensation under section 111 of the Act and, if so, the amount of 

compensation which they are entitled to receive? 

4. Whether Homestake employees who reported for work on June 21, 1979 

at 6:00 a.m. and were subsequently released from duty at 11:00 a.m. as a 

result of the 103(k) withdrawal order are entitled to compensation under 

1830 
section 111 of the Act in addition to the four hours show-up pay provided 

for in Article 5, Section C(l) of the collective bargaining agreement 

between Homestake and employees. 

APPLICABLE LAW 

Section 103(k) of the Act, 30 U.S.C. § 813(k) (Supp. 111, 1979), 

provides as follows: 

In the event of any accident occurring in a coal or 

other mine, an authorized representative of the 

Secretary, when present, may issue such orders as he 

deems appropriate to insure the safety of any person 

in the coal or other mine, and the operator of such 

mine shall obtain the approval of such representative, 

in consultation with appropriate State representatives~ 

when feasible, of any plan to recover any person in 

such mine or to recover the coal or other mine or return affected areas of such mine to normal. 

30 C.F.R. § 50.2(h) defines an "accident" as pertinent herein as 

follows: 

(6) An unplanned mine fire not extinguished within 

30 minutes of discoveryo 

Section 104(a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 814(a) (Supp. III, 1979), provides as follows: 

If, upon inspection or investigation, the Secretary or 

his authorized representative believes that an operator 

of a coal or other mine subject to this Act has violated 

this Act, or any mandatory health or safety standard, 

rule, order, or regulation promulgated pursuant to this 

Act, he shall, with reasonable promptness, issue a citation 

to the operator. Each citation shall be in writing and 

shall describe with particularity the nature of the violation, 

including a reference to the provision of the Act, standard, 

rule, regulation, or order alleged to have been violated. 

In addition, the citation shall fix a reasonable time for 

the abatement of the violation. The requirement for the 

issuance of a citation with reasonable promptness shall 

not be a jurisdictional prerequisite to the enforcement 

of any provision of this Act. 

Section 111 of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 821, (Supp. III, 1979), provides in part as follows: 

If a coal or other mine or area of such mine is closed 

by an order issued under section 103, section 104, or 

1831 
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 working 

shift, all miners on that shift who are idled by such 

order shall be entitled to full compensation by the 

operator at their regular rates of pay for the period 

they are idled, but for not more than four hours of 

such shift, ••• Whenever an operator violates or fails 

or refuses to comply with any order issued under section 

103, section 104, or section 107 of this Act, all miners 

employed at the affected mine who would have been withdrawn from, or prevented from entering, such mine or 

area thereof as a result of such order shall be entitled 

to full compensation by the operator at their regular 

rates of pay, in addition to pay received for work performed after such order was issued, for the period beginning when such order was issued and ending when such 

order is complied with, vacated, or terminated. The 

Commission shall have authority to order compensation 

due under this section upon the filing of a complaint 

by a miner or his representative and after opportunity 

for hearing subject to section 554 of title 5, United 

States Code. 

STIPULATIONS 

Homestake and the Secretary stipulated the following: 

1. Homestake is the operator of the Homestake Mine. 

2. Homestake is subject to the jurisdiction of the Federal Mine 

Safety and Health Act. 

3. The Administrative Law Judge has jurisdiction over this 

proceeding. 

4. Homestake is a large gold mine operator. 

5. Homestake's ability to continue in business after imposition of a 

reasonable civil penalty is not at issue. 

6. The citation at issue was properly served on Homestake. 

1832 
7. Homestake exhibited good faith in abating the contested citation 

or order. 

8. Homestake's history of previous violations will be reflected by 

MSHA's computer print-out of past violations subject to review and 

concurrence by counsel for Homestake. 

9. USWA and Homestake stipulated to the identity of the miners, 

hourly wage rates, and work assignments relative to the 103(k) order issued 

on June 21, 1979 as set forth in Appendix "A" attached hereto and incorporated herein. 

SUMMARY OF THE EVIDENCE 

Homestake is a large gold mine located in Lead, South Dakota, the 

deepest level being 8000 feet underground, The has three distinct 

ventilation systems including three air intake and two exhaust shafts, The 

Ross and Yates shafts, located approximately one-half mile apart and 

descending parallel from the surface collar to the 4550 foot level are the 

two main access, hoisting, and ventilation shafts, 

At the start of a working shift and preparatory to going underground, 

miners walk to and assemble in the "ramp" which is an area constructed of 

concrete and steel located approximately 20 feet below the surface collar, 

The first working level located 100 feet below the surface collar of 

the Ross and Yates shafts is a haulage-way called a tramway. Ore is 

hoisted up the shafts and dumped in crushers and bins located in the 

tramway to be later hauled along the tramway to the mill. The tramway runs 

partly underground and partly above ground with a portion covered by a 

snowshed for protection from the weather. The tramway is open at both ends 

to the atmosphere and is not dependent upon the ventilation systems served 

by the Yates and Ross shafts. Doors are installed at the entrances to the 

shafts to prevent intake of air from the ventilation system to enter the 

tramway or air from the tramway to enter the shaft. The tramway runs 

approximately 300 yards underground at the 100 foot level from the Ross 

shaft to the first open portal or open surface area and connects with the 

tramway from the Yates shaft and continues on to the mill which is located 

above ground. 

On June 21, 1979, at 6:00 a.m., miners being lowered in the Ross shaft 

to commerce working the day shift reported the smell of wood smoke from the 

2000 foot to the 4500 foot level. Sam Grover, acting safety director for 

Homestake, was notified of the smoke and called Earl Phelps of the safety 

department at approximately 6:10 a.m. to go underground to invest e, 

Phelps rode the man-cage down the Ross shaft checking for "bad air" with a 

Drager tester. Phelps testified that CO (carbon monoxide) was not detected 

in the shaft until he reached the 2150 foot level where he got out of the 

man-cage and conducted several tests. A level of CO at the 2150 foot level 

183~1 
at 6:25 a.m. was tested at 90 parts per million. Larry Issac, a miner who 

had been lowered before Phelps, reported that the smell of wood smoke was 

stronger on the 2600 foot level than it was on the 2150 foot level. Phelps 

reported this information to Sam Grover and it was decided not to lower any 

more miners and that those miners who had previously been lowered would be 

taken out of the mine. Phelps continued on to the 2600 foot level and 

tested for CO finding 90 parts of CO per million at that level but further 

testing at the 4800 and 5000 foot levels revealed only traces of CO. 

Phelps continued checking areas until 9:30 a.m. at which time he returned 

to the surface. The miners who had been lowered earlier were all removed 

from underground by 7:30 a.m. 

Ray Smith, mine superintendent, was in the ramp area of the Ross shaft 

at 6:10 a,m, when the report of the smell of wood smoke in the shaft was 

received and remained in that area until 10:30 a.m. Smith testified that 

he had several conversations with the miners assembled in the ramp area to 

keep them informed as to the results of the investigation into the cause of 

the smoke. At 7:00 a.m. an announcement was made by authority of Ray 

Smith, to the miners assembled in the Ross shaft ramp area that any miner 

who chose to could go home and would receive four hours show-up pay as 

provided in the Union's contract with Homestake. It was also announced 

that management thought the mine would be cleared of smoke during the 

day-shift and that the miners would be allowed to go to their regular 

working places. A few miners left at this time and some left later on in 

the morning, the exact number being unknown. 

At approximately 9:15 a.m., the remaining miners were told to report 

to their bosses for reassignment to other jobs. Three bosses were selected 

for clean-up in the tramway area and three for clean-up around the 

headframe and the miners remaining in the ramp area were assigned to these 

bosses. It took approximately 15 to 30 minutes to assemble the miners and 

take them to their respective job assignments. At 11:00 a.m., the miners 

from the Ross shaft area who were not allowed to work at their regularly 

assigned locations and duties were released to go home. This was the end 

of the four hour show-up period. 

At 7:30 a.m., on June 21, 1979, Dallas Tinnel, president of local 

union 7044 of USWA at Homestake telephoned the MSHA office in Rapid City, 

South Dakota to report high levels of CO and smoke in the Ross shaft of the 

Homestake Mine. At 8:10 a.m. on the same day, Sam Grover telephoned MSHA's 

office and made a similar report. At 10:00 a.m., MSHA inspectors William 

Donley, Wayne Lundstrom, Guy Carstens and Jeram Sprague arrived at the mine 

to investigate the reported incident. 

1834 
A meeting betweeen MSHA inspectors and members of Homestake's 

management was held in the map room of the mine office at which time a 

discussion occurred as to what Homestake's management had determined was 

the cause of the CO and smoke in the Ross shaft area. Management stated 

that there were concentrations of CO from the 2150 foot level to the 4500 

foot level of the Ross shaft and that a sizeable VCR (vertical crater 

retreat) blast had been set off at the 4243 D stope, 9 ledge 4700 level at 

the end of the night shift at approximately 3:30 a.m. on June 21, 1979. 

Homestake's management was of the opinion that the wooden spacers used in 

the VCR blast had ignited and was the source of the wood smoke smell which 

the miners on the day shift encountered as they were lowered in the shaft 

and that this "bad air" was being exhausted outside through the ventilation 

system. Inspector Donley asked of management if they had positively 

determined that the VCR blast was the cause of the CO and smoke. Members 

of management stated that they could not be certain but they were 

reasonably certain that there was not a fire in the mine. 

At 10:12 a.m., following the above discussion and upon an order from 

supervising inspector Donley, inspector Lundstrom issued 103(k) order No. 

329637 1/ which states as follows: 

High concentration of CO in Ross shaft from collar 

to 4500' level. All persons except Company officials 

MSHA personnel and Union representatives are not 

allowed in the area until an investigation has been 

made to determine the concentration of CO and other 

gases. 

Following further discussions with management, Donley instructed Lundstrom 

to insert the word "area" after the words "Ross shaft" in the order and 

told them he would exclude the Ross shaft itself from the 103(k) order so 

that the shaft could be used to lower men and materials if it was necessary 

to fight a fire. Donley further explained to management that areas below 

the 4500 foot level of the Ross shaft and all of the Yates shaft were not 

to be included in the order based upon information from management that 

there was no evidence of CO or smoke in those areas. The tramway was never 

discussed at this meeting. 

After the 103(k) order was issued, the MSHA inspectors, miners and 

management representatives went underground and inspected the various 

levels of the Ross shaft from the 4100 to 4850 foot levels taking various 

readings for air contaminants. Based upon this inspection, the 103(k) 

order was terminated at 1:45 p.m. on June 21, 1979. A meeting was held at 

the mine on the following day, June 22, 1979, between MSHA inspectors and 

Homestake's management to discuss the procedures followed by Homestake the 

day before. 

1/ Exhibit P-1. 

1835 
On August 21, 1979, Donley received a telephone call from Tinnel 

requesting MSHA investigate complaints of miners that they were forced to 

work on June 21, 1979 in violation of the 103(k) order. Donley and 

Lundstrom met with Tinnel and several miners that day and on the following 

day, August 22, 1979, Citation No. 329655 was issued to Homestake alleging 

a violation of section l04(a) of the Act and alleging as follows: 

On June 21, 1979, Homestake officials worked approximately 30 men in violation of a 103(k) order 

number 329637 issued 10:12 hours June 21, 1979. '!:.._! 

This citation was terminated immediately as the condition complained of no 

longer existed. 

DISCUSSION 

The first issue to be addressed is whether Homestake, having 

previously failed to seek administrative review of the 103(k) order issued 

on June 21, 1979, is now precluded from contesting the validity of the 

order in the subsequent 104(a) citation and section 111 compensation 

proceedings? 

All of the parties herein contend, and I must concur, that there is no 

specific provision, either in the Act or the Connnission's Rules of Procedure, 29 C.F.R. Part 2700, setting forth what procedures should be followed 

in contesting a 103(k) order, be it administrative or otherwise. Other 

sections of the Act do specifically provide for administrative review. 

Under section 105, 30 U.S.C. § 815(d), an operator may contest a citation 

or order issued pursuant to section 104 of the Act and orders issued under 

section 107 of the Act before the Federal Mine Safety and Health Review 

Commission (hereinfa~er the Commission), pursuant to the language of 

section 107 itself. _/ 

2/ Exhibit 2 

3/ 30 U.S.C. 2700.20 of Connnission rules states as follows: 

••• (a) Section 105(d) of the Act, 30 U.S.C. § 815(d), provides, in 

part: 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 ••. the Commission shall 

afford an opportunity for a hearing 

30 U.S.C. 2700.21 Commission's Rules provides as follows: 

••• (a) When to file an application for review of an order of 

withdrawal issued under section 107 of the Act, 30 U.S.C. § 817, shall 

be filed within 30 days of receipt by the applicant of the order sought 

reviewed ••.• 

1836 
Homestake argues that the reason there is no mention in the 

Connnissions Rules of a procedure for review of a 103(k) order is that such 

an order does not entail or contemplate the issuance of a citation or 

proposal for a penalty. I reject this argument as there are more than a 

few cases reported up to the present time in which both the 103(k) order 

and either a citation or compensation proceeding followed. Harman Mining 

Corporation v. Secretary of Labor, F. 2d (4th Cir. l98l)(Unpublished), Secretary of Labor v. MTIIer Mining Co., Inc., Docket No. WEST 

81-267-M, (August 1982), Secretary of Labor v. B & N Construction, Inc., 

Docket No. WEST 80-226 and 260-M (1981). 

The Secretary argues that Homestake failed to raise this issue in its 

July 3, 1980 prehearing statement and should not be allowed to raise it at 

this time. He also contends that Homestake is precluded from raising the 

validity of the order in a 104(a) proceeding having failed to do so prior 

to its issuance and cites as its authority therefore C F & I Steel 

Corporation v. Morton, 516 F. 2d 868, 871-872 (10th Cir, 1975)~ 

USWA argues that Homestake was required to raise the validity of the 

103(k) order within 30 days of its issuance for the reason that the 

Commission Rules provides time frames of 30 days to contest other orders. 

It suggests that although such references do not specify such 30 days for a 

103(k) order, a time frame should be no more or less than those established 

for all other orders under the Act. 

I reject all of these arguments as there appears to be no doubt that 

the operator has a right to administrative appeal of a 103(k) order. In 

the case of American Coal Company v. United States Department of Labor, 639 

F. 2d 659, (Tenth Cir. 1981), the Court considered the fact that there was 

no provision within the Act for administrative review of the 103(k) order 

but concluded such a right existed and stated as follows: 

We do not believe, however, that merely because 30 U.S.C. 

§ 813(k) makes no specific references to administrative 

review, such omission means that there no administrative 

review. A reading of the entire Act, coupled with its 

legislative history leads us to conclude that the action 

taken ••• under 30 U.S.C. § 813(k)(section 103(k)) was 

subject, first to administrative review, with final action 

by the Review Connnission to then be subject to judicial review in the appropriate Court of Appeals under 30 U.S.C. § 816. 

The Connnission in the case of Secretary of Labor v. Eastern Associated 

Coal Company, Docket No. HOPE 75-699 (1980), considered the right to appeal 

an order issued under section 103(£) of the Coal Act of 1969, 30 U.S.C. 

§ 801 et seq. (1976)(Amended 1977), which is the statutory predecessor to 

section-103(k) of the 1977 Act. The Commission concluded that there was no 

1837 
express provision precluding a review of such order and agreed with the 

Board of Mine Operators conclusion that the Interior Secretary had 

established an administrative adjudication system for review of 103(f) 

orders and further concluded that the Commission succeeded to the Interior 

Secretary's powers to adjudicate the cases under consideration relating to 

this section. 

That Homestake has a right to contest the validity of the 103(k) order 

issued on June 21 1979, appears clear from the decisions in the American 

Coal and Eastern cases. However, neither case addressed the question of 

when such an appeal must be commenced or whether its validity would be 

precluded from being raised in a subsequent case involving a 104 citation 

or a compensation proceeding. The Secretary cites the Court's decision in 

CF&I Steel Corporation v. Morton, 516 F. 2d 868, 871-872 (10th Cir, 1975), 

as authority for his argument against Homestake raising the issue, This 

case arose under the 1969 Coal Act and is distinguishable from the present 

case in that the withdrawal order in the CF&I case was issued under section 

104(a) of the Act and provision is made the Act requiring that 

administrative review of such order must be obtained under provisions of 

section 815 prior to the expiration of 30 days of the issuance or 

modification of such order, I find that there is a d tinguishing feature 

between 103(k) orders and those contemplated under section 104 and 107 of 

the Act. The 107 order is issued in the event of an imminent danger 

occurring in the mine which may or may not give rise to a subsequent 

citation and proposal for a penalty against the operator. Usually a 

citation is included as part of the basis for issuing orders under section 

104 and 107 of the Act. In those cases involving accidents, section 103(k) 

provides for the issuance of orders" ••• as appropriate to insure the 

safety of any person in the coal or other mine • • • •11 ( 

The issuance of citations as a result of such an occurrence, if such 

arises, usually would come later. The Commission in the Eastern case in 

footnote No. 6 stated as follows: 

••• the philosophy of review of both the 1969 

and 1977 Acts is that operators are to comply with 

administrative orders first and litigate their merits 

later • • • . 

This philosophy is most appropriate when applied to those situations 

involving accidents in the mines. It follows that an operator should not 

be expected to file for an administrative review of the order until he has 

been notified that the Secretary believes that a violation occurred in 

connection with the accident which gave rise to the order. Prior to the 

notice or issuance of a citation, the operator would not likely have cause 

for requesting a review and only after such notice or issuance of a 

citation and anticipation of a proposal for a penalty does the validity of 

the order become material. Also, the very same evidence involved in the 

1838 
validity of the order may be material to consideration of the citation 

although the basis for the issuance of the order is sacrosanct. I 

therefore conclude that Homestake had the right to have the validity of the 

103(k) order reviewed in the present 104(a) citation and compensation 

proceeding. I also find that the general denial in the respondent's answer 

raises this issue. All the parties at the hearing and in subsequent 

post-hearing briefs were given ample opportunity to present evidence on 

this matter and argue the law and facts as pertinent therein. 

Having concluded that Homestake has the right to administrative review 

of the 103(k) order in this case, the next question is whether or not such 

order was valid, 

Homestake argues that the 103(k) order was vague and indefinite and 

that it was erroneously issued because there was neither an 11 accident 11 or 

an 11 unplanned fire" as contemplated in the Act. 

I reject Homestake's arguments and find that there was a valid basis 

for issuing the 103(k) withdrawal order on June 21, 1979, The pertinent 

portion of 103(k) of the Act provides that in the event of any accident 

occurring in a coal or other mine, an authorized representative of the 

Secretar may sue such orders as he deems appropriate to ensure the 

safety of any person in the coal or other mine, 30 C.F.R. § 813 k , It is 

apparent that this section is broad enough to permit the closing of any 

section of or the whole mine upon the occurrence of an accident, if under 

the circumstances it is deemed appropriate. The Secretary's regulations at 

30 C.F.R. Part 50 provides several definitions of an accident. The one 

applicable here is section 50.2(h)(6) which states in part as follows: 

Accident means, 

An unplanned mine fire not extinguished within 30 

minutes of discovery. 

Homestake contends that the evidence of record does not establish that 

there was an accident on June 21, 1979 within the meaning of the Act and 

that the "bad air" detected in the mine was a result of the VCR blast which 

was planned and set off at the end of the night shift. On the other hand, 

the Secretary contends that there was an accident which warranted the 

inspector issuing the order of withdrawal. He relies on the fact that the 

inspectors upon arriving at the mine over 6 hours after the VCR blast were 

informed by Homestake management that they had found high concentrations of 

CO in the amount of 90 parts per million on the 2150 level and that they 

were not certain as to the cause although they believed it was a result of 

the VCR blast. 

A reasonable assessment of the facts known by Homestake at 6:30 a.m. 

prompted management to withdraw the miners from the Ross shaft that 

morning. Further, as late as 10:00 a.m. when the inspectors arrived, 

1839 
Homestake management had not made a positive determination as to the cause 

of the CO and smell of wood smoke in the shaft. Based on these facts, it 

is reasonable for the inspectors to believe there were grounds to issue the 

103(k) order for the health and safety of the miners. If subsequent 

investigation revealed that the condition causing the CO and smoke in the 

shaft had abated, this would not make the original decision wrong. 

However, the facts support the conclusion that the results achieved by 

Homestake with their VCR blast were unplanned and that it was not correctly 

determined within 30 minutes of the blast that a fire did not exist. The 

evidence established that thousands of board feet of pine spacers were used 

in the blast and this could have caused the wood smell and CO in the shaft, 

It is clear to me that section 103(k) of the Act clearly authorized the 

inspectors to issue the order of withdrawal on June 21, 1979, The 

language of this provision of the Act and related regulations authorizes 

respresentatives of the Secretary to issue such orders as they deem 

necessary to protect the health and safety of the miners. As the 

conditions existed at the time of the inspectors arrival at the mine, a 

prudent reading of the potential perils warranted the action taken in 

issuing the order and conducting the subsequent inspection of the affected 

area. Until the inspectors could he assured there was no further danger to 

the miners from a fire or CO, the issuance of the 103(k) order was valid 

and proper. 

The next question to be considered in these two cases is whether 

Homestake worked miners on June 21, 1979 in violation of the 103(k) order. 

To resolve this issue, a determination must be made as to the scope of the 

area of the mine intended to be covered by such withdrawal order. 

Homestake argues that the order was vague and indefinite as to the 

area of the mine that MSHA inspectors intended to have miners withdrawn 

from. A review of the evidence shows that the order was issued at 10:12 

a.m. in the map room of the mine office. Charles Tesh, mine production 

superintendent testified that he was present and had a discussion with the 

inspectors when the order was written and it initially stated that the area 

to be closed was "The Ross shaft. 11 Tesh told the inspectors that this 

created many problems, including being unable to make ambulance runs from 

the 4500 foot level to the surface which might be necessary as the other 

areas of the mine were operating. Also, Tesh argued that if the shaft was 

totally shut down Homestake would be unable to bring materials into the 

mine. Further, that the Ross shaft was a fresh air intake system and there 

were no contaminants in the shaft itself. He testified that the inspectors 

then offered to modify the order by inserting the word "area" after the 

word shaft which would allow Homestake to continue to use the hoist. 

Homestake agreed to this and the order was so modified. Tesh testified 

that from this discussion, he understood that once the inspector inserted 

"area" into the 103(k) order, that the Ross shaft itself was not closed and 

only the area between the 2150 and the 4550 was closed. He recalled no 

discussion regarding the tramway, although he knew men were working there. 

Allen S. Winters, mine manager, was present at this meeting and 

1840 
testified that following the issuance of the order, he explained to Ray 

Smith that it covered the Ross shaft down to the 4500 foot level and from 

the outer stations where they T off to the various drifts. 

The Secretary contends that the order as written was clear as to its 

meaning by reason of common usage of the terms in the body of the order and 

rejects the arguments of Homestake that the order was vague. 

A careful review of all of the testimony convinces me that the members 

of Homestake's management and inspectors fully discussed the areas intended 

to be covered by the order at the meeting in the map room of the mine 

office and resolved whatever differences they had or anticipated from such 

closure at that time, All of the witnesses agreed that the tramway was not 

discussed at this time. Inspector Donley was familiar with the various 

areas of the mine as his testimony was that he had started inspecting the 

Homestake mine in 1972. Also, various members of Homestake 1 s management 

testified that they knew men were working in the tramway when the order was 

issued and did not discuss the consequences of this in relationship to the 

scope of the order. 

In view of the above~ either the parties to the discussion of the area 

to be covered by the order at the time of its issuance did not consider the 

tramway a part of the Ross shaft or did not consider that area to be 

potentially hazardous to the health and safety of the miners working there. 

The tramway by description, as deduced from the evidence of record, is, 

distinguishable from the drifts that connect with the Ross shaft at the 

various levels. It is located 100 feet under the collar and runs approximately 300 yards underground in the area of the Ross shaft. However, 

the tramway runs both underground and on the surface and also connects with 

the Yates shaft. Its source of air supply is independent of the Ross shaft 

which receives its air from the outside through its portals. Winter 

described the tramway as a tunnel that begins on the north side of the 

mountain and travels through to the south side with doors that are kept 

closed at the Ross shaft so that fresh air from the outside does not enter 

the shaft from the tramway. He stated that traditionally he did not 

consider the tramway a part of the mine. 

Based upon the above testimony and all of the other evidence of record 

I find that the tramway as located and utilized in the Homestake mine was 

not understood to be covered by the order as issued on June 21, 1979 and 

it was not a violation of the 103(k) order to work miners therein. I am 

persuaded by the evidence that it was not just a mistake that the tramway 

was not discussed at the meeting in the mine office when the order was 

issued but rather was not a concern to the parties at that time. Further, 

there is no evidence that any danger existed to the miners in the tramway 

area from the CO or smoke in the Ross shaft. Therefore, I find Homestake 

did not violate the 103(k) order when it continued to work the tramway crew 

after the order was issued or assigned miners to clean-up in the tramway 

area June 12, 1979. Citation No. 329655 is hereby vacated. 

1841 
The remaining question to be decided is whether the Homestake 

employees who showed up for work on June 21, 1979 at 6:00 a.m. and were 

subsequently released at 11:00 a.m. are entitled to compensation under 

section 111 of the Act for the balance of their shift in addition to the 

four hours show-up pay provided for in their collective bargining 

agreement. 

A review of the evidence shows that the facts are not in dispute as to 

this issue. On June 21, 1979, at approximately 6:00 a.m. the miners 

assigned to work in the Ross shaft area arrived at the ramp area to prepare 

to go to their designated work areas. Due to the smell of wood smoke and 

CO in the Ross Shaft, the miners who had been lowered were removed and the 

remaining miners were not allowed to enter the mine. After an investigation of the cause of the CO in the shaft, Homestake made a 

determination that the miners would be assigned to other work duties until 

11:00 a.m. and then sent home. Homestake paid the miners four hours of 

show-up pay in accordance with the provision of their collective 

bargaining agreement with the USWA. 

Charles Tesh testified that the miners in the ramp area that morning 

were kept advised of the progress being made by Homestake in investigating 

the "bad air" in the shaft and that a decision was made by management and 

announced by Tesh to the miners at 8:53 a.m. that they would be assigned to 

crews for work in the tramway and headframe areas and would be sent home at 

11:00 a.m. The evidence further shows that the miners were assigned to the 

work crews and arrived at their various assigned areas around 10:00 a.m. or 

shortly thereafter. The 103(k) order was issued at 10:12 a.m. 

A careful review of section 111 of the Act and prior decisions of the 

Connnission support the position of the USWA herein. The first sentence of 

section 111 of the Act reads as follows: 

If a coal or other mine or area of such mine is closed 

by an order issued under section 103, section 104, or 

section 107, 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. *** (Emphasis 

added). 

The purpose of the above section is to provide limited compensation 

solely for regular pay lost because of the issuance of an order designated 

in that section. 

Homestake argues that it had informed the miners prior to the time the 

order was issued that concentrations of gas in the affected area of the 

mine had exhausted and they could go back to work. However, the miners 

1842 
were uncomfortable about the situation and did not want to go to work in 

that area of the mine. Homestake then made the decision between 8:30 a.m. 

and 9:00 a.m. not to have the miners return to the affected area but to pay 

the miners 4 hours show-up pay. Homestake argues that the decision in UMWA 

v. Eastern Associated Coal Corp., 3 FMSHRC 1175 (May 11, 1981) applies. 

find a distinction exists between the situation in the present case and 

that which occurred in Eastern, supra, wherein the miners had withdrawn 

from the mine prior to the issuance of an order to observe a memorial 

period which the union had contracted for. In the case involved here, the 

Homestake miners were idled by the same condition which led to the issuance 

of the order, i.e., the smoke and CO in the shaft on June 21, 1979" There 

was therefore, a clear "nexus between the underlying reasons for the 

idlement and pay loss and the reason for the order"" Id at 1178" The 

reason for the issuance of the withdrawal order was the existence of the 

"exigent or emergency conditions" created by the conditions in the Ross 

shaft portion of the mine. Id. at 1178. 

Homestake also argues that the miners were not idled by the order, but 

rather a mutual decision was made between management and the miners to not 

return to production prior to the issuance of the order. They cite Royal 

Coal and Cowin and Company, Inc., 2 FMSHRC 1738, (July 7, 1981) and contend 

that this supports their position that miners are entitled to compensation 

only if they are "idled by11 such an order and that in the instant case, 

the miners were not idled by the order as they were assigned to other areas 

of the mine and working therein when the order was issued. 

The argument above misses the mark in that the claim herein for 

compensation does not cover the period when the miners were working at the 

tramway and head frame. It is for the balance of the shift after the 

miners had put in their four hours and were sent home. The decision in the 

Royal Coal case, supra. supports the USWA argument. The decision states: 

Royal and Cowin concede that the miners idled in 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 ••• The dispute over compensation here at issue concerns the second part of 

section 111. *** 

The claim in the instant case similar to the facts in the case of 

UMWA v. Old Ben Coal Company, 3 FMSHRC 2793, (December 7, 1981) where a 

fire occurred at approximately 7: 30 a.m. in the "A" shaft and miners were 

irmnediately withdrawn. At 8:15 a.m. an inspector for MSHA issued a 103(k) 

withdrawal order. At 12:45 p.m. the order was modified to allow rehabilitation of the area and to resume normal operations. The afternoon 

shift worked their full shift for that day but the morning shift was paid 

1843 
four hours reporting pay pursuant to the USWA contract. The operator in 

above case raised the same arguments as Homestake does in this case and the 

Judge found such arguments without merit and stated as follows: 

In the legislative history accompanying section 111 

Congress made clear" ••• miners should not lose pay 

because of the operator's violation, or because of an 

imminent danger which was totall outside their control." 

(Emphasis added • S. Rep. No. 95-181, 95th Cong. 1st 

Sess. 46-47 (1977), in Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 634-635. *** 

Homestake's argument that they voluntarily withdrew the miners before 

the 103(k) order was issued, and therefore the miners were not withdrawn by 

the order and should not have compensation under section 111 is rejected. 

In Clinchfield Coal Co., 1 IBMA 31 (1971), the former Board of Mine 

Operators Appeals rejected a similar argument and said that 

••• [r]egardless of the sequence of the events or the 

method by which the miners were originally withdrawn, 

a mine, or section thereof, is officially closed upon 

the issuance of an order pursuant to 104, and the miners 

are officially idled by such order. 

In this proceeding, the miners were working at other jobs when the 

103(k) order was issued at 10:12 a.m., but they were officially idled by 

the order when they were sent home at 11:00 a.m. Those 117 miners listed 

in Item 4, page 2, 3 and 4 of the stipulation entered into between 

Homestake and USWA are entitled to full compensation for the balance of 

their shift at their regular rate of pay, which pay is in addition to the 

show-up pay they received for the first four hours. 

The USWA failed to request interest in either their petition for 

compensation, or at the hearing, or in their briefs. However, the 

Commission considered this situation in Peabody Coal Company v. Secretary 

of Labor and UMWA, 1 FMSHRC 1785 (November 14, 1979) and stated as 

follows: 

Furthermore, to deny interest would be to award the miners 

less than the full compensation mandated by section llO(a). 

Although the Peabody case, supra, concerned the 1969 Act, the application 

of this provision is the same as section 111 in this instance. In that 

case the Commission awarded interest at the rate of six percent per year 

from the date compensation was due to the date payment was made. However, 

I find it more reasonable at this time to award interest at the rate of 12 

percent per year from the date compensation was due to the date payment is 

made. This is in accordance with the "make whole" policy of the Act to 

1844 
award interest on the sums due miners from the date of idlement to the date 

of payment. UMWA v. Youngstown Mines, 1 FMSHRC 990 (August 14, 1979); UMWA 

v. Beatrice Pocahontas Co., 3 FMSHRC 2004, 2013 (August 27, 1981); Johnny--

Howard v. Martin Marietta Corp., 3 FMSHRC 1876 (July 31, 1981); UMWA v. Old 

Ben Coal Company, 3 FMSHRC 2793 (December 7, 1981). The decision that 12 

percent interest, rather than 6 percent awarded in Peabody is based upon a 

realistic view that the rate of interest has risen to new levels within the 

past year and even at that rate is below the rate of interest in most 

commercial transactions. 

CONCLUSIONS OF LAW 

Based upon the entire record in these two cases, and consistent with 

the findings embodied in the narrative portion of this decision~ the 

following conclusions of law are made: 

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

(2) Homestake, having previously failed to seek administrative review 

of the 103(k) order, is permitted to contest the validity of the order in a 

104(a) penalty proceeding and a section 111 compensation proceeding filed 

as a result of such order. 

(3) Homestake did not violate the 103(k) order by working miners in 

the tramway for the reason that it was not within the scope of the order. 

(4) The 117 miners identified in section 4, pages 2, 3, and 4 of the 

stipulation entered into between USWA and Homestake (Addendum A) are 

entitled to full compensation at their regular rate of pay for the balance 

of such shift in addition to the show up pay they received for the first 

four hours. 

(5) In addition to the above, the 117 miners are entitled to interest 

on the balance of pay they are due at the rate of 12 percent from the date 

the compensation was due to the date payment is made. 

ORDER 

WHEREFORE, for the reasons herein before given, it is ordered: 

(A) That Citation No. 329655 issued on August 22, 1979 is hereby 

vacated. 

(B) The complaint for compensation filed on February 6, 1980, is 

granted, only in part, as it pertains to those 117 miners listed in section 

4, pages 2, 3, and 4 of the stipulation (Addendum A), and Homestake is 

1845 
ordered to pay the 117 miners listed therein, within 40 days from the date 

of this decision, full compensation at said miners regular rate of pay for 

the period described as the balance of such shift. The compensation shall 

be paid with interest at 12 percent per annum from June 21, 1979, to the 

date of payment. 

Distribution: 

Robert J. Lesnick~ Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Robert A. Amundson, Esq. 

215 West Main Street 

P.O. Box 898 

Lead, South Dakota 57754 

Mr. Harry P. Tuggle 

Safety & Health Representative 

United Steelworkers of America 

Five Gateway Center 

Pittsburgh, Pennsylvania 15222 

Virgil Evvail 

Administrative Law Judge 

1846 
'~. I 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . • t' 

•• 11.,.. •, ''. <. " , '(I' 

1730 K Street NW, 6th Floor 

Washington, D.C. 20006 

UNITED STEELWORKERS OF AMERICA 

LOCAL 7044, DISTRICT 33, 

Petitioner, 

-vsHOMESTAKE MINING COMPANY, 

Respondent. 

) 

) Docket No. 

) CENT 80-198-CM 

) 

) 

) MSHA Case No. MD 

) 79-107 through 125 

) 

) Homestake Mine 

) 

STIPULATION 

The undersigned representatives of the above 

captioned parties, pursuant to a stipulation entered on the 

record at the close of the hearing held in the above 

captioned matter, hereby submit the following written 

stipulation for the Court's consideration: 

1. The following employees of Respondent did work 

their full and normally assigned shift on June 21, 1979, as 

the "normal tramway crew" in Homes take Mine, with the 

tramway being shown on exhibits which were entered at the 

time of hearing. These employees reported to work at the 

Yates Shaft work area and are as follows: 

Miners Submitting Complaint 

For Compensation 

James Vitel 

Linda Washburn 

Robert Ford 

Gary Rath 

Hourly Wage Rate 

June 21, 1979 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

2. It is further agreed that the exact amount of time 

that the above named employees were in fact performing their 

work duties in the allegedly affected area of the 103 

Closure Order, which is the subject of this litigation, 

cannot be exactly calculated, nor has any testimony been 

submitted on the part of the Petitioner setting forth the 

exact amount of time these employees were in the allegedly 

affected area while performing their duties on June 21, 

1979, during their normal eight-hour shift. 

1a4·1 
3. It is further stipulated by the parties that the 

employees listed below were in fact assigned clean-up duties 

in the "Ross Tramway Area" of the Homestake Mine on June 21, 

1979, between the hours of 10:12 a.m. and 11:00 a.m. of that 

day, and were employees whose normal work area was the "Ross 

Shaft 0 , who had shown up for work on June 21, 1979, and were 

paid for a total of four hours of work that day. These 

employees and rates of pay for that day are as follows: 

Miners Submitting Complaint 

For Compensation 

Paul Sterk 

David Holmes 

Roger Meyer 

Don Mayhugh 

Barry Martin 

Leo Lipp 

Donald Hiltebridle, Jr. 

Herbert Burnett 

Kenneth Rowan 

Charles Dorothy 

Leroy Bertsch 

Adam Lewis 

Harold Covell 

Homer Watson 

Bernard Zastrow 

Richard Weise 

Terry Allerdings 

David Fredericksen 

Fred Raubach 

Hourly Wage Rate 

June 21, 1979 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.07 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7,55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

4. It is further specifically agreed by the parties 

that the employees and miners listed below were paid four 

hours "show-up" pay, per contract agreement for June 21, 

1979, and were released from their jobs at 11:00 a.m. on 

June 21, 1979. The following are the names and rates of pay 

of these employees and miners for that date: 

Miners Submitting Complaint 

For Compensation 

Bob L. Perry 

James R. Richard 

Jerome A. Wallin 

Broderick E. Stevens 

Ken Britiga.n 

William J. Cooper 

Donald S. Sanders 

Darwin R. Aldinger 

Gary J. Bown 

Gerald A. Clement 

Claude E. Crane 

1848 

Hourly Wage Rate 

June 21, 1979 

$ 6.01 

$ 7.07 

$ 7.07 

$ 6.70 

$ 6.70 

$ 7.33 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.07 

s· 1. 45 
Anthony Desimone, II 

Duane Dillman 

Leonard O. Dittus 

Jerome G. Feterl 

Leonard Feterl 

Janet M. Fonder 

Charles G. Geffre 

Lennie R. Grove 

Hilmur E. Hanson 

Ron R. Hayes 

Donald J. Hendrickson 

Stephen A. Kilmer 

Katherine L. Kimball 

Richard R. Kleinheksel 

Don J, Kleinheksel 

Arlen D. Kl 

Robert J. Kruske 

Herbert L. Burnett 

Richard Cottrill 

Thomas E. Jones 

Barry E. Martin 

Donald E. Mayhugh 

Roger D. Meyer 

Paul V. Sterk 

Paul Strecker 

David 1. Sykes 

Wesley A. Schaffer 

Ricky D. Allen 

Charles Culver 

Keith M. Ehnes 

Lowell D. Labau 

Jimmy D. Snow 

James J. Grosek 

Raymond S. Grosek 

Daryle J. Poling 

Terry J. Wermers 

Mark J. Geffre 

Norman E. Stuen 

George J. Huck 

Ralph Huck, Jr. 

Michael R. Isaak 

John P. Kraft 

Kenneth E. Prue 

Gerald L. Rempfer 

Dennis D. Shumacher 

Jerry L. Barton 

Russell L. Burton 

Javier Barrios 

Blain M. Brown 

Robert L. Carl 

Charles B. Donner 

Donald J. Gifford 

Albert Grantz 

Raymond F. Hertel 

1849 

$ 6.70 

$ 7.45 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.45 

$ 7.07 

$ 7.45 

$ 7.07 

$ 7.45 

$ 7.07 

$ 7.07 

$ 7.55 

$ 6.70 

$ 7.26 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.33 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.45 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.33 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 
Ralph L. Long 

Robert G. Murray 

Larry D. Ostwald 

Joseph J. Shinabarger 

Clarence W. Young 

Vernon W. Fisher 

Richard A. Goe~z 

Palmer E. Carlson 

Terry R. Allerdings 

Leroy E. Bertsch 

Barry J. Brierly 

Harold G. Covell 

Charles G. Dorothy 

David D. Frederickson 

Roger G. Hanson 

Donald L. Heltibridle 

Adam S. Lewis 

Leo J. Lipp 

Fredrick L. Rauback 

Homer W. Watson 

Richard W. Weisz 

Bernard F. Zastrow 

Timothy P. Dillman 

Cecil Holman 

David J. Holmes 

Everett A. Johnson 

Michael A. Kilmer 

Donald R. King 

Rick J. Tinnell 

Bruce A. Tracy 

Joe B. Sterri.a 

Robert C. Steeves 

Julius E. Adam 

Henry J. Bowers 

Leonard R. Bowling 

Jinrrny R. Dower 

George T. Gross 

William A. Hall 

John B. Perkovich, Jr. 

Robert W. Raines 

Dale L. Rear 

James F. Richards 

Kenneth J. Rowan 

Leo Silvernagel 

Donald D. Spry 

Ramon N. Sterry 

Deborah M. Wood 

Alfred H. Brinkman 

Laverne Caldwell 

Oren Knightlinger 

Edgar Mutchler 

Charles Wuitschich 

1850 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.18 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.45 

$ 7.33 

$ 7.55 

$ 7.45 

$ 7.55 

$ 7.45 

$ 7.45 

$ 7.45 

$ 7.45 

$ 7.45 

$ 7.07 

$ 7.55 

$ 7.55 

$ 7.45 

$ 6.70 

$ 6.70 

$ 7.55 

$ 7.55 

$ 7.55 

$ 7.55 
HOMESTAKE MINING COMPANY 

Respondent 

By? 

Ro ert A. 

Date f-f- 'if l 

UNITED STEELWORKERS OF AMERICA 

Petitioner 

By~k~ Daas Tinne;reBlerit 

Date g;/; / 7/ 

1851 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

oc112 

HERLE E. lJEGHER, Complaint of Discharge, 

Complainant Discrimination, or Interference 

v. 

ASPHALT :rrnrnG & CONCRETE COHPANY' 

Respondent 

Docket Ho. \TEST 82-59-Dl'i 

11SHA Case No. ifD 31-133 

Appearances: 

Before: 

Higley lload Pit 

DECISION 

Frank Spiegel, Esq., , Arizona, for Complainant; 

Daniel F. Gruender, Esq., Shimmel, Hill, Bishop & 

Gruender, P.C., Phoenix, Arizona, for Respondent. 

Administrative Law Judge Broderick 

STATEl1ENT OF THE CASE 

Complainant was discharged on July 14, 1981, from the position he 

had with Respondent as a truck driver. Be contends that the discharge 

resulted from complaints he voiced to Respondent concerning the safety 

of the vehicle he operated. Respondent contends that he was discharged 

for unsatisfactory and unsafe performance of his job. 

Pursuant to notice, the case was heard on the merits in Phoenix, 

Arizona, on Hay 27 and Nay 28, 1982. 'ferle ~·Tegner, Leonard Van '.Jagenen, 

Leon Richardson, Stewart Powers and Rodney Lippse testified on behalf of 

Complainant. Therese Sanders was called by Complainant for crossexarnination. Clarence Ellis, '.Jilliar.1 A. Ireland, James W. Lake, Robert 

Kreilins, Chris Reinesch, Verle Snodgrass, Gary Nord and Bryon Handy, 

testified on behalf of Respondent. 

Both parties have filed posthearing briefs. Based on the entire 

record and considering the contentions of the parties, I make the 

following decision. 

185~~ 
FINDINGS OF FACT 

1. Respondent is engaged in the mining, constructing and supplying 

of materials for building roads and paving parking lots - primarily 

asphalt. It is a mine as that term is used in the Federal Mine Safety 

and Health Act. 

2. Complainant worked for Respondent as a truck driver from 

September 12, 1930 to July 14, 1981. He was a miner as that term is 

used in the Act. 

3. From about May 14, 1981 to July 14, 1931, Complainant operated 

a "water-pull," which consisted of a diesel operated tractor pulling a 

large water tank. It was used to spray water on the haulage road and 

around the pits, yard and scale house. It carried approximately 8,000 

gallons of water, and, when fully loaded, weighed approximately 75,000 

pounds. It was equipped with air brakes. 

4. During the period of Complainant's employment, Respondent had 

irregular employee safety meetings held at least monthly. 

5. At every safety meeting attended by Complainant while he drove 

the water pull, he complained that the brakes on the water pull were 

inadequate. 

6. Leonard Van Wagenen, a truck driver for Respondent from about 

April 1980 to November 1981, operated the water pull for about 3 months. 

He complained of inadequate brakes on the vehicle many times at safety 

meetings. Leon Richardson, a truck driver for Respondent for about 

10 months, and Stewart Powers, who worked for Respondent from September 

1980 to November 1981, and who drove the water pull on occasion, both 

were present at safety meetings when the subject of the inadequacy of 

the water pull brakes was discussed. 

7. Respondent instructed its truck drivers to submit a nDrivers 

Repair Report" also called a "cry sheet" at the end of each shift to 

point out equipment items needing repair. Of the 38 reports on the 

water pull introduced in evidence, six refer to the brakes. Three of 

these were submitted by Complainant. On July 9, he reported that 

"brakes are bad." On July 13, he reported that the left rear drive had 

a brake pancake. On July 14, he reported that "brakes are bad." 

3. The brakes on the water pull were adjusted on July 13, 1981, 

and a brake pancake was installed. On July 14, 1981, after the accident 

described below, the brakes were checked and found to be in good 

condition. 

1858 
DISCUSSION 

I am generally accepting the testimony of Verle s, the 

heavy equipment shop foreman, as to the condition of the brakes on the 

water pull. I also find that because of the kind and of the 

vehicle, it was often difficult to stop even with good brakes. I also 

find that the brakes required frequent adjusting. I am specif 

rejecting the testimony of Complainant and the other drivers that 

were told at safety meetings and by the mechanics that the water 

did not have brakes or had inadequate brakes. 

9. At some time between :fay and July, 1981, Complainant asked 

Chris Reinesch, Ifanager of the Quarry for Respondent, if he could have 

a canopy or umbrella constructed on the water pull to shade. 

Reinesch refused on the ground that a canopy would interfere with the 1 s standing to see back underneath the standp Sometime 

later, when Reinesch was away from the quarry, asked Therese 

Sanders, Respondent's President to have the canopy installed and she 

\Jhen Reinesch returned he was upset and the canopy was removed. 

10. On one or more occasions, Complainant 

Kreil truck foreman and later Assistant to the ion 

Manager, about alleged unsafe driving on the part of Chris Reinesch and 

near accidents between the vehicle driven by Reinesch and the water 1 

driven by Complainant. He made the same complaints to Therese Sanders 

at least once. 

11. On July 13, 1981, Complainant drove the water pull to the Salt 

River loading area. As the tanks were being filled with water the 

vehicle motor stalled and Complainant was unable to restart it. He 

asked a truck driver in the vicinity to call the shop and have someone 

come down to start it. He then sat in the vehicle with his head resting 

on the steering wheel. After some minutes, Chris Reinesch drove up and 

accused him of sleeping on the job. Complainant told Reinesch that he 

could not start the motor. Reinesch told him he could cables 

from the crusher plant but Complainant refused, Reinesch that he 

did not take orders from him and threatening to "kick his ass." After 

about 20 minutes, a mechanic came from the shop and the water was 

started. 

12. Reinesch reported the incidents described above to Byron 

Handy, Vice-President and general manager of Respondent. Reinesch 

recommended that Complainant be dischar3ed. 

13. Robert Kreiling, the truck foreman and later assistant to 

James Lake, Transportation Hanager, hired Complainant. He assigned 

Complainant to drive the water pull and generally Complainant was 

answerable to Kreiling for the operation of the vehicle. When the water 

pull was operated in the area of the crusher, watering the yard roads, 

Reinesch had authority over the operator. This was never made clear to 

Complainant to July 13, 1981, however. 
14. Following the incidents described in Finding of Fact ~o. 11, 

Complainant, Lake, Reinesch and Hs. Sanders had a meeting concerning the 

incidents. Lake told Complainant that although he was under the direct 

supervision of Lake, he was also subject to direction by Reinesch when 

in the crusher plant area. Lake stated that Complainant declined to 

follow Reinesch's directions and that this was insubordination and 

would not be tolerated. There was also discussion of the canopy incident concerning which Reinesch was still upset. Reinesch said that he 

found Complainant at the wheel of his vehicle and that 

threatened to kick Reinesch's ass. Lake reprimanded Complainant, but 

did not further discipline him at that time. 

15. On July 14, 1981, while Complainant's water pull was be 

filled, he picked up a snake near the pond. The snake wrapped itself 

around Complainant's arm as he operated the watering the haulage 

road. He deviated from his normal course and drove with one hand, 

holding dowll the arm on which the snake was to avoid letting Reinesch 

see him with the snake on his arm. He later threw the snake away and 

continued on his normal duties. 

16. On July 14, 1981, the water pull operated Complainant 

collided with a road grader, also called a blade, which was grading or 

regrading the haul road. Prior to the accident, the blade was 

tioned in the center of the road and was westerly. According 

to a company rule, the blade has the over other vehicles on 

the road. The blade operator saw Complainant in the water-pull approximately 175 feet away coming in the opposite direction. The blaJe operator stopped his vehicle and stood up and waived because he wanted 

Complainant to discontinue watering the road at that time. 

17. The water pull continued coming and attempted to pass the 

blade on the right but the left rear tire of the water pull struck the 

corner of the mold board on the blade. The was stopped when the 

collision occurred. 

18. As a result of the collision, the left rear tire of the water 

pull was cut and the wheel rim was bent. The control arm on the blade 

was broken and the blade later fell off. 

19. The was visible from the prior to the 

collision from at least 175 feet. 

20. There was room on the road for the water pull to pass the 

grader without with it. 

2L The brakes on the \later pull were operative at the time of the 

accident. 

22. Following the accident, Complainant drove up to the yard and 

was told by the to go home since the other water-pull was 

inoperative. 

1855 
23. When Lake arrived at work on July 14, 1981, he was told of the 

accident by Kreiling. Lake examined the vehicles and talked to the 

blade operator and a truck driver who witnessed the accident. Be also 

discussed the condition of the brakes with the heavy equipment mechanic. 

He was told by Kreiling about Complainant driving earlier that morning 

with a snake on his arm. Lake decided to terminate Complainant because 

he concluded that Complainant was driving the water pull in an unsafe 

manner and that this caused the accident. 

24. The decision to terminate Complainant was made Lake alone. 

25. Lake was appointed to the position of Transportation :1anager 

on July 1, 1981. He did not attend any saf meet prior to 

Complainant's termination and was not aware of any complaints of bad 

brakes on the water pull made at those meetings. He was aware of the 

"cry sheet" which Complainant submitted on July 13, 1981. 

STATUTORY PROVISION 

Section lOS(c) of the Act provides in part as follows: 

(c)(l) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal 

or other mine subject to this Act because such miner, 

representative of miners, or applicant for employment 

••• has filed or made a complaint under or related to 

this Act, including a complaint notifying the operator 

or the operator's agent, or the representative of the 

miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine . • . 

or because 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. 

ISSUES 

1. Whether Complainant was terminated from his employment because 

of safety complaints. 

2. If so, what is the appropriate relief. 

1856 
CONCLUSIONS OF LAW 

1. Complainant and Respondent were subject to the provisions of 

the Nine Safety Act at all times pertinent hereto, and the undersigned 

Administrative Law Judge has jurisdiction over the parties and subject 

matter of this proceeding. 

2. The complaints made by 

the inadequacy of the brakes on 

Fact ~os. 5 and 7 related to 

under the Act. 

Complainant orally and in writing about 

the water pull described in Findings of 

and constituted protected 

3. Complainant failed to establish that he was terminated as a 

result of the safety complaints referred to above. 

DISCUSSION 

I accept the testimony of James Lake that at the time he discharged 

Complainant, Lake was not aware of any complaints concerning the brakes on 

the water pull voiced by Complainant at safety meet He was aware 

of the July 13, 1981, cry sheet whicn stated "Left rear drive has a brake 

pancake." I generally accept Lake 1 s test that he discharged Complainant because of (1) the accident; (2) the snake incident; and (3) 

the reprimand issued to Complainant on July 13, 1981, for insubordination. 

Whether Complainant was fairly blamed for the accident, and whether the 

reasons given for the discharge were sufficient to justify discharge are 

not issues before me. See Secretary/Chacon v. ~helps Dodge Corporation, 

3 FMSHRC 2508 (1981). Further, the reasons for Complainant's personality 

clash with Reinesch and Complainant's contention that he was not adequately informed as to his supervisors, are of no importance to a 

decision in this proceeding. I think the evidence establishes that the 

brakes on the water pull caused difficulty to the operators of the 

vehicle. The evidence establishes that Complainant complained of inadequate brakes on the vehicle. These complaints were made in good faith, 

were reasonable and were related to employee safety. But the evidence 

does not show a nexus between the complaints and Complainants discharge. 

4. Complainant failed to establish a violation of section lOS(c) 

of the Act. 

ORDER 

On the basis of the above findings of fact and conclusions of law, 

the complaint and this proceeding are DISUISSED. 

J

ti,vrt-£5 ;ifd:f;vrk/t.--i el(_ 

James A. Broderick 

Administrative Law Judge 

185? 
Distribution: By certified mail 

Frank Spiegel, Esq., 2609 W. Southern 1152, Tempe, AZ 85282 

Daniel F. Gruender, Esq., Shimmel, Hill, Bishop & Gruender, P.C., 

10th Floor, 111 \Jest Honroe, Phoenix, AZ 85003 

1858 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

HAROLD CRUMLEY, 

Complainant 

v. 

ANAMAX MINING COMPA.i.'IT, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OC114 \982 

Complaint of Discharge, Discrimination 

or Interference 

Docket No. WEST 82-128-DM 

Twin Buttes Mine 

ORDER OF DISMISSAL 

On September 15, 1982 a combined Notice of Hearing and Prehearing 

Order was issued by the undersigned and duplicate service by certified 

mail was attempted at Complainant's last known address. The envelopes 

containing said documents were returned unopened and marked presumably 

by postal authorities "not deliverablen, "records searched, no address 

on file", "moved, left no address" and "unable to forward". Additional 

efforts were made to locate Complainant but without success. 

Commission Rule S(c), 29 CFR § 2700.S(c), requires, and common 

sense dictates, that a party "promptly" give to the Commission "written 

notice" of "any change in address or business telephone number". It is 

apparent that Complainant has failed to comply with t e requirements of 

said rule, thereby making further prosecution of thistcase impossible. 

Accordingly, I have no alternative but to dismiss thi~ case for lack 

of prosecution. · 

Distribution: 

G 

A 

Charles L. Fine, Esq., O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, 3003 North Central, #1800, Phoenix, AZ 85012 

(Certified Mail) 

Mr. Harold Crumley, 1331 East Wyoming, Tucson, AZ 85706 (Certified Mail) 

1859 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NBC ENERGY, INCORPORATED, 

Respondent 

DECISION 

Docket No. KENT 82-27 

A/O No. 15-08906-03046 

No. 1 Mine 

Appearances: W. F. Taylor, Esq., Trial Attorney, Office of the Regional 

Solicitor, U.S. Department of Labor, Nashville, Tennessee; 

Messrs Uayne W. Clark and Jack D. Bush, Co-Owners, NBC 

Energy, Inc., Prestonburg, Kentucky. 

Before: Judge Kennedy 

Statement of the Case 

This matter is before me on the Secretary's unopposed motion for 

summary disposition. The motion is supported by (1) affidavits of the 

• federal mine inspectors responsible for the charges made, (2) answers 

to interrogatories by Mr. Clark on behalf of the corporate respondent, 

NBC Energy, Inc. (NBC), (3) depositions of the co-owners and principal 

officers of NBC, Messrs Clark and Bush, (4) the transcript, exhibits 

and decision of the trial judge in Secretary v. NBC Energy, Inc., 4 FMSHRC 

1498 (August 2, 19R2), and (5) financial statements and corporate and 

individual tax returns of the corporate respondent and its co-owners for 

the period July 1979 through May 1982. 

1860 
The principal issue presented is whether imposition of the penalties 

proposed, $1,680, for the ten violations charged, will adversely affect 

the ability of the corporate respondent and its co-owners to continue in 

business. After discovery, the Secretary invokes the alter ego or "single 

enterprise entity" doctrine to pierce the corporate veil of NBC and its 

affiliated corporation, C&B Coal Company (C&B), and thereby subject NBC, 

C&B, their successor corporations and their co-owners, Messrs Clark and 

Bush, to liability for the penalties proposed" 

The Supreme Court has encouraged use of the 0 s enterprise 

entity" theory to penetrate schemes that employ corporate shells or 

proprietary corporations to circumvent enforcement of regulatory statutes 

and orders. NLRB v. Deena Artware, Inc., 361 U.S. 398, 403 (1960). l 

];/ As explained by the Court: 

" •• the question [is] whether in fact the economic enterprise 

is one, the corporate forms being largely paper arrangements that 

do not reflect the business realities. One company may in fact 

be operated as a division of another; one may be only a shell, 

inadequately financed; the affairs of the group may be so intermingled that no distinct corporate lines are maintained. These 

are some, though by no means all, of the relevant considerations 

" Id. 

The seminal exposition of the theory is set forth in Berle, The 

Theory of Enterprise Entity, 47 Col. L. Rev. 343 (1947). It is 

based on a recognition of the fact that, despite its long history 

of entity, a corporation or group of corporations are at bottom 

but an association of individuals united for a common purpose and 

permitted by law to use a common name. When the corporate fiction 

is disregarded, an actual underlying enterprise entity may be 

made to appear. According to Berle: 

" • the underlying principle seems plain. Whenever corporate 

entity is challenged, the court looks at the enterprise. Where 

the enterprise as such would be illegal or against public policy 

for individuals to conduct, that enterprise is equally illegal 

when carried on hy a corporation, and the corporate form is not 

1861 
Thus, in Deena Artware, supra, the Court held that a regulatory agency 

is entitled to show in an enforcement proceeding that a group of "separate 

corporations are not what they appear to be, that in truth they are but 

divisions or departments of a 's enterprise'". Id. at 402. 

A subsidiary issue is whether the penalties proposed are excessive 

to the policy of deterrance and should, therefore, be reduced to more 

realistically reflect the seriousness of the violations chargedo 

Under the Commission's rules when a motion for summary decision is 

made and supported as provided in the rule, an adverse party may not 

rest upon the mere ions or denials of his pleadings~ but his 

response, by affidavits or as otherwise provided in the rule, must set 

forth specific facts showing there is a genuine issue for trial. If 

he does not so respond, summary decision, if appropriate, will be entered 

against him. 

fn. ];_/ (continued) 

a protection. This is, in essence, not so much a 'disregard 

of the corporate fiction' as it is a holding that the economic 

enterprise is illegal or criminal, or in violation of public 

policy, or fraudulent, or otherwise objectionable, as the case 

may be. The nature of the enterprise determines the result, 

iving the corporate personality or any other form of 

organization of that enterprise. 

"If it be shown that the enterprise is not reflected and comprehended by the corporate papers, books and operation~ the 

court may reconstruct the actual enterprise, giving entity to it, 

based on the economic facts. Thus one corporation may be shown 

to be only an 'instrumentality' of a larger enterprise, or to be 

so intermingled with the operations of such larger enterprise as 

to have lost its own identity. On such reconstruction of the 

true entity the court may assign the liabilities of the paper 

fragment to the economic whole •••• n Id. at 354. 

1862 
Because the operator has the burden of proof on the issue of financial 

jeopardy and appears pro se, the trial judge has subjected the Secretary's 

motion and evidence to close scrutiny and made an independent audit 

and de novo evaluation of the propriety of granting the motion. Applying 

this standard, I find there is no triable issue of fact and that the 

Secretary is entitled to summary decision as a matter of law. !:_/ 

2/ The parallel penalty proceeding cited above was heard and decided 

by another Commission judge in May 1982 on a record that embraced the 

same time frame, the same parties and the same claims and issues with 

respect to financial jeopardy. The final disposition issued in August 

was not appealed or docketed by the Commission for review. Because 

the decision did not specify the basis on which the judge chose to 

disregard the separate identities of NBC and C&B or why they should 

together with their co-owners~ Clark and Bush, be considered part of 

a single integrated business entity, I have undertaken to make a de 

novo review of the evidence and the applicable law and precedents-.-

same lack of articulation in the earlier decision also leads me 

to conclude that application of the twin doctrines of res judicata 

and collateral estoppel would be inappropriate. 

While the Secretary did not name Clark and Bush as individual 

respondents in either proceeding, both had notice and appeared se 

to defend on the ground of limited liability (corporate shield and 

inability of their corporate instrumentality, NBC, to respond without 

allegedly jeopardizing their ability as individuals to continue in the 

business of mining coal. If, as the Secretar~ contends, therefore, 

NBC and the other corporate entities are the alter egos of Clark and 

Bush they have no right to any additional notice. Valley Finance, Inc. 

v. United States, 629 F.2d 162, 169 (D.C. Cir. 1980). On the other 

hand, if Clark and Rush prevail in their view that NRC and C&B and 

their successor corporations should be recognized as a shield against 

derivitive liability they obviously need no additional notice. 

Further, since the fact of violation is admitted and the only issue 

is the amount of the penalties warranted for the ten violations charged 

this is not a proceeding to determine responsibility for violating the 

law but only who shall pay for the violations admitted. Under these 

circumstances, the Court of Appeals for the Second Circuit has held 

that the thrust of Deena Artware, supra, is that an already adjudicated 

or, as here, judicially admitted liability may be imposed on parties 

not themselves charged in the initial proceedings where, under the 

single enterprise theory, they are found to be derivatively liable as 

part of the single business enterprise involved in the violations 

admitted or adjudicated. NLRB v. C.C.C. Associated, Inc., 306 F.2d 

534, 539 (2d Cir. 1962). 

1863 
Findings and Conclusions 

The Capitalization of NBC 

The corporate respondent, NBC Energy, Inc., a Kentucky corporation, 

began operat the Noo 1 Mine, a non-union mine, near Coal Run, Pike 

County, Kentucky on or about July 23, 19790 The company ceased active 

operations at the mine on or about 17, 1982, and was immediately 

succeeded by Wayne Clark, Inc., a Kentucky corporation owned by the 

same individual, Wayne Clark, who appears on respondent's behalf in 

this matter and who succeeded to sole ownership of NBC in February 

1982. The ten violations charged occurred during the period April 

1981 through September 1981 at a time when Wayne Clark and Jack Bush, 

who also appears on behalf of respondent in this proceeding, each 

owned 50% of NBC. 

Wayne Clark, the president of NBC functioned as the outside man 

and managed business. Jack Bush, the vice president and secretary of 

NBC, functioned as the inside man and was in charge of producing coal. 

As Mr. Clark noted, they started the business on a "shoestring." 

Clark, Bush and a man named Stanley Neese each put up $1,000 for a 

total capitalization of only $3,000. 1_/ Neese dropped out in 1980 

and thereafter Clark and Bush owned equal shares of NBC. The company 

operated on a fiscal year that ran from June 1 to May 31. 

3/ When Clark and Bush started the C&B Coal Company a few years earlier, 

they capitalized it at $25,000. 

186t1 
Operation of NBC and C&B 

According to Bush, Clark worked only part time, about 20-hours a 

week, at managing NBC. Bush as mine superintendent and foreman worked 

more or less full time on the production end of the business. 4/ NBC 

was incorporated May 29, 1979 and operated the mine under a lease from 

Kentucky Coal Companyo Kentucky Coal paid NBC a royalty on the coal 

produced that averaged $16.00 a tono In February 1982, Clark bought 

out Bush's interest in NBC and after May 1982 declared NBC insolvent 

and continued the business through Wayne Clark, Inco, another of 

Mr. Clark's proprietary corporations. 

At the time it commenced operations, NBC owned $28~000 worth of 

mining equipment. 5/ It leased equipment from Kentucky Coal for which 

4/ The record shows that for the three years NBC was in business it 

produced approximately 185,000 tons of coal for which it received an 

average price of $16.00 a ton. Its gross revenues from the sale of 

coal were approximately $2.9 million dollars. According to the operator's 

unaudited financial statements and answers to interrogatories, its cost 

of production for the three year period totalled approximately $2.7 

million dollars. Its gross profit for the pertod was therefore approximately $200,000. Despite this, the operator claims a loss on the 

operation of approximately $189,000. The Secretary's response is that 

<luring at least the first two years of its operations NBC leased coal 

mining equipment valued at $60,000 from Clark and Bush doing business 

as the C&B Coal Company for which they paid themselves $177,832 in 

equipment rentals. In addition, the Secretary claims Clark and Bush 

through NBC paid management fees and administrative salaries to C&B 

that C&B in turn paid to them individually that totalled $153,120. 

These allegedly unwarranted diversions of funds totalled $330,952.55 

for the first two years of NBC's operations. 

2_/ By the time it ceased operations, NBC had increased the value of 

these assets to $75,000. Of this, $37,500, was owned outright and the 

rest was held subject to the usual installment credit arrangements on 

mining equipment. 

1865 
it paid an equipment rental of $61,571.61 during its first year of 

operations. It also leased equipment from C&B Coal Company, Inc. C&B 

was a non-operating company jointly owned by Clark and Bush. C&B 

hecarne inoperative in September 1979, a few months after NBC 

operations. C&B was shut down because it was subject to the collective bargaining agreement between the BCOA and the ill-fl~A. Mr. Clark 

testified that C&B's mining equipment was not needed to operate the 

No. 1 Mine because the "Kentucky Coal Company had enough at 

the NBC Energy Number One Mine to operate it." 6/ Despite this, 

Clark and Bush leased C&B's equipment to NBC. The first year 1 s rental 

on unneeded equipment that Clark valued at only $60,000~ was $116,720.26. 

During its second year of operations, NBC paid C&B an additional equipment rental that totalled $61,112. J./ NBC apparently continued to pay 

an equipment rental to C&B until some time between February and May 

1982 when NBC turned operation of the No. 1 Mine over to Wayne Clark, 

Inc. I find this leasing arrangement was not a bona fide arms-length 

transaction and was designed to cloak the true. nature of the financial 

condition of the affiliated corporations and their co-owners. I also 

find (1) that as the controlling stockholders of NBC and C&B Clark and 

Bush were at all times relevant the beneficiaries and true parties 

in interest with respect to revenues and income received and disbursed 

6/ This testimony was given in the parallel proceeding and appears at 

pages 58, 61-62 of the transcript in Docket Nos. KENT 81-133, ~al. 

]_/ During this period, C&B claimed almost $50,000 in depreciation on 

this and other equipment it leased out. 

1866 
by NBC and C&B and (2) that the corporations were the mere alter egos 

of the two individuals and part of a single, integrated, economic entity. 

Analysis of NBC and C&B's Financial Condition 

An analysis of the financial condition of the single enterprise 

entity (NBC, C&B) as disclosed by unaudited data and the testimony of 

Clark and Bush discloses the following. For the period ending May 31, 

1980, NBC had gross revenues of Sl,061,591 but claimed a net loss of 

$108,860. Its itemized cost of production included the $116,720 paid 

C&B for equipment rental as well as $76,700 paid C&B for management 

fees. During the first year of operations, Clark and Bush took their 

salaries from the sums paid C&B for management fees and drew no salaries 

from NBC. Clark was paid a salary of $30,975 and Bush was paid $32,975. 

It is not clear what the remainder of this fee was used for. If the 

management fee is considered a wash, the revenue from the equipment 

rental still more than offset the claimed loss of $108,860 and resulted 

in a profit before taxes, and after handsome salaries, of almost $8,000, 

a four fold return on each individual's initial investment of $1,000. 

Further analysis shows NBC's profit was even greater because Clark 

and Bush charged as a cost of production the unpaid civil penalties 

assessed against NBC by MSHA. For the first year of their operations 

this totalled $8,026 and for the second year $19,859. Penalties are, 

of course, a cost of doing business, but they are not tax deductible. 8/ 

8/ Treasury Regulation ~rl.162-21 (1975). Apparently IRS is not policing 

this as NBC's accrued but unpaid civil penalties for both 1979 and 1980 

were claimed and allowed as deductible costs on NBC's tax returns for 

1867 
Nor, in my view, is it proper to consider penalty assessments 

as contributing to an operator's financial impairment where the monies 

were actually used to fund operations. 

Thus, instead of net losses for the first year of operations 

NBC, C&B and their owners had a return on investment during that time 

of something like 100% on equipment rental alone ($60,000, investment 

v. $117,000 rental). In fact, Mr. Clark admitted that the first year 

rental between C&B and NBC resulted in a profit to C&B 

of approximate $37,000. In addition, as we have seen, each individual 

took home a of over $30,000. J./ 

For the second year, it appears the rental was $61,112, 

most of which was sheltered by a $50,000 deduction for depreciation. 

NBC also paid C&B $13,650 for management fees during the second year. 

During the second year, Bush was paid a salary by NBC of $34,450 plus 

$6,825 in management fees by C&B for a total compensation of $41,275. 

Clark was paid a salary of $28,320 by NBC plus $6,825 in management 

cont 

those years. For just those two years the amount totalled almost $28,000, 

almost twice the amount of NBC's present civil liability of 

$16,520. The reduction from the amount initially assessed of $35,598 

resulted from 80% reductions that were approved on settlement by a trial 

judge who apparently was unaware of the true business and financial 

relationship of Clark, Bush and their alter corporations. Secretary 

v. NBC Energy, Inc., Dkt. Nos. KENT 80-185, et al.; Secretary v. NBC 

Energy, Inc., Dkt. Nos. KENT 80-173, et al., (Decisions Approving Settlement issued 14 and December 29, 1981). 

9/ Curiously enough, neither individual seems to have reported any 

investment income or loss on his individual income tax return. 

1868 
fees by C&B for a total compensation of $35,145. Clark, who worked at 

management only part time, curtailed his salary in the latter part of 

1980 but still drew a salary from NBC of approximately $23,000 in 1980. 

The amount of Mr. Clark's unearned or investment income from C&B for 

the second year was not disclosed. It must have been substantial since 

C&B reported rental income for that year of $87,000. 

Furthermore in the second year NBC's gross t would have been 

$105,492 if the equipment rental siphoned off by C&B for the benefit 

of Clark and Bush had been available as operating or working capital 

for NBC. Even after paying management fees and administrative salaries 

to Clark and Bush of $76,420 this would have left NBC a net profit 

before taxes of approximately $16,000. Again, it was the diversion of 

working capital coupled with the initial undercapitalization that 

created the illusion of a losing operation that was, in fact, quite 

profitable. Even more profitable than appears from the face of the 

financial records because almost $20,000 in accrued but unpaid assessments were diverted and expended for purposes chat apparently served 

the personal interests of Clark and Bush. Thus, NBC's profit before 

taxed during its second year may actually have been almost $36,000. 

The unaudited records of NBC's third, and last year of operations, 

May 1981 to June 1982, shows NBC produced approximately 60,000 tons of 

coal at a gross revenue of approximately $975,000. Net earnings after 

all expenses for the first eight months totalled $16,900. Mr. Clark's 

salary for this period was at least $20,000 and Mr. Bush received 

approximately $30,000. Again neither individual's investment income 

was disclosed. 

1869 
The Successor Corporations 

After Messrs Clark and Bush dissolved their association in February 

1982, Mr. Clark decided to declare NBC "insolvent," to rent NBC's 

equipment to his successor proprietary corporation, Wayne Clark, Inc., 

and to continue operation of the No. 1 Mine. 10/ Mr. Bush, also, and 

without interruption, continued in the business as the J&L Coal Company, 

operating the No. 2 ~ine in Pike County, Kentucky. There is no suggestion, let alone evidence, that payment of the modest penalties assessed 

for these ten violations would create any cash flow problem or otherwise 

have an adverse effect on the continued viability of either of the two 

successor corporations. 11 

10/ Mr. Clark testified that in May 1982 he had twelve miners working 

the mine, was mining 4,000 tons of coal a month, and was meeting a $20,000 

a month payroll. 

11/ In fact, the record shows that Messrs Clark and Bush are not really 

concerned with paying the $1,680 involved in this case. What they are 

seeking is a declaration by a Commission judge that they can cite as 

establishing once and for all their right to violate the Mine Safety Law 

on a discount basis. After years of persistent effort this was the type 

of relief obtained by the Davis Coal Company. Compare Secretary v. Davis 

Coal Company, 4 FMSHRC 1168 (1982) [despite small operator's history o 

poor compliance, marginally safe operation and prior decisions establishing 

its financial responsibility, operator granted right to write off dozens 

of violations at 20 cents on the dollar] with Secretary v. Davis Coal 

Company, Dkt. Nos. WEVA 82-111, et al. (September 15, 1982), [same small 

operator allowed to write off violations at 20 cents on the dollar before 

same judge based on his earlier decision and fact that operator had filed 

a petition in bankruptcy]. Here, unlike Davis however, the solicitor has 

compelled the production of sufficient financial data concerning the 

totality of Messrs Clark and Rush's business dealings to permit an objective analysis and evaluation of the operator's self-serving declarations 

and accounting practices. More aggressive and imaginative use of discovery 

and the single enterprise theory should do much to curb the belief among 

small operators that the Commission is prepared to confer a prescriptive 

right to violate the Act on almost any small operator who is willing 

to swear his operation is unprofitable. Congress never intended that 

1870 
I find that NBC, C&B, J&L and Wayne Clark, Inc. were and are the 

alter egos of their individual owners, Clark and Bush, and that to 

recognize them as separate corporate identities would merely further 

a scheme to circmnvent effective enforcement of the Mine Safety Lawe 

There is for application therefore the principle that: 

Although a corporation and its shareholders are deemed 

separate entities for most purposes, the corporate form 

may be disregarded in the interests of justice where it 

is used to defeat an overriding public policyo New 

Colonial Ice Co. v. Helvering, 292 U.S. 435, 442~934); 

Chicago M. & St. P.R. Co. v. Minneapolis Civic Assn., 

247 U.S. 490, 501 (1918). In such cases, courts of 

equity, piercing all fictions and disguises, will deal 

with the substance of the action and not blindly adhere 

to the corporate form. Bangor Bunta Operations v. 

Bangor & A.R. Co., 417 U.S. 702, 713 (1974). 

The precedents establish there where, as here, a closely held proprietary 

corporation is undercapitalized, and its financial resources drained off 

by the controlling stockholders the corporate form may be disregarded 

if its recognition as an entity separate and distinct from its ownership 

will enable the corporate shield to be used to defeat a regulatory 

statute. Schenley Distillers Corp. v. United States, 326 U.S. 432, 437 

(1945); Bruhn's Freezer Meats v. United States Dept. of Agr., 438 F.2d 

1332, 1343 (8th Cir. 1971). See als6 1 Fletcher, Corporations ,45 

(Rev. F.d. 1974). 

fn. ll_/ (continued) 

a mitigating factor should be invoked to systematically deprive miners 

of the protection of the law or to justify a policy of tokenism in 

the assessment of civil penalties. Clark and Bush have used the 

administrative process to their advantage in obtaining an 80% reduction 

on the 81 violations previously settled. One coalscam is more than 

enough. 

1871 
Further, it is clear that where enforcement of a regulatory statute 

or order may be frustrated because a corporation has been inactivated, 

dissolved or rendered judgment proof while the individuals involved 

under the cloak of a new corporation continue to engage in proscribed 

activities the corporate fiction will not be permitted to "stand athwart" 

the regulatory purpose. Bruhn's Freezer, Capital Telephone 

Company, Inc. v. FCC 498 F.2d 734, 738 n. 10 (D.C. Cir. 1974). Under 

these and similar circumstances a federal regulatory agency is entitled 

to look through the corporate veil and to treat the individual owners 

and the separate entities as one for purposes of regulation. General 

Tel. Co. v. United States, 449 F.2d 846, 855 (5th Cir. 1971). 

Indeed, the fiction of a corporate entity must be disregarded whenever it has been adopted or used to defeat a paramount public policy such 

as that designed for protection of a vital national resource--the nation's 

miners. This doctrine is firmly entrenched in our jurisprudence. See 

cases collected in footnotes 95, 107 of Quinn v. Butz 510 F.2d 743 (D.C. 

Cir. 1975); l' Fletcher, Corporations n41-46 (Rev. Ed. 1974). 

Consequently, whenever recognition of the corporate device will 

frustrate the clear intendement of the law such as the ability of the 

Government to collect taxes or penalties, the courts have not hesitated 

to ignore the fiction of separateness and approve a piercing of the 

corporate veil. Valley Finance, Inc. v. United States 1 629 F.2d 162, 

171 (D.C. Cir. 1980); Casanova Guns, Inc. v. Connally, 454 F.2d 1320? 

1322 (7th Cir. 1972). 

1872 
Nor does application of the doctrine require allegation or proof 

of actual fraud; it suffices that the corporate fiction has actually 

been used to frustrate the statutory scheme. Addressing the contention 

that an intent to circumvent must be shown the court in Kavanaugh v. 

Ford Motor Co., 353 F.2d 710, 717 (7th Cir. 1965) held: 

Intention is not controlling when the 

entity defeats a legislative purpose. 

the parties did what they intended to 

did contravened the policy of the lawo 

fiction of corporate 

The question is whether 

do and whether what they 

Nor in cases involving the frustration of a regulatory statute 

is the single enterprise entity or alter ego doctrine subject to the 

strict standards that govern application of the doctrine in tort or 

contract cases. Capital Telephone, supra, at 738. State law limitations on the alter ego theory are not controlling in determining the 

permitted scope of remedial orders under federal regulatory statutes. 

Sebastopol Meat Company v. Secretary of Agriculture, 440 F.2d 983, 

958 (5th Cir. 1971). Even under the strictest of standards a controlling 

factor in denying stockholders the defense of limited liability is a 

showing of obvious inadequacy in the capitalization of a corporation. 

Anderson v. Abbott, 321 U.S. 349, 362 (1944). 

For these reasons, I conclude that where, as here, the corporate 

device was manipulated to create an erroneous appearance of a failing 

corporate operator, it is my duty to look through form to substance 

and to fashion an order that will preclude evasion of either corporate 

or individual responsibility. Anderson v. Abbott, supra, at 362-363. 

1873 
This conclusion is based on undisputed evidence which shows: 

1. That if C&B~s unneeded mining equipment had been 

contributed as part of the capital contribution of 

NBC, or 

2. If the unnecessary leasing arrangement had not been 

used to create a dearth of working capital while 

funneling funds to Clark and Bush through C&B, 

there would have been no deficit in NBC's operating account or balance 

sheet for the three years of its operationo 

Turning now to the claim that the individual penalties assessed 

are excessive in the light of the negligence, gravity, and the operator 1 s 

history or prior violations, I find that for the reasons detailed in the 

Secretary's motion as supported by the uncontradicted affidavits of the 

inspectors involved the penalties assessed for the violations charged 

are, with one exception, fully warranted and in accord with the statutory 

criteria. 12/ 

The exception is the charge that the operator was violating its 

approved roof control plan by driving two entries four to eight feet in 

excess of the 20 foot width specified. This violation was aggravated 

by the fact that (1) two scoop operators were required to work under 

unsupported roof; (2) that it was a violation which the operator knew 

or should have know existed; and (3) that during the previous 14 month 

12/ I specifically find that NBC's history of prior violations, approxi-

;:;ately 200 over a three year period at an average rate of 66 per month is 

indicative of a serious lack of concern for mine safety on the part of the 

operator. 

1874 
period there had been six roof control violations. l.ll For these 

reasons, I find the amount of the penalty warranted for this violation (Citation 958072) should be increased from $295 to $500. }}:_/ 

Summary 

In summary, during the three year period the No. 1 Mine was operated 

under the control of Clark and Bush through NBC they (1) compiled a record 

of some 200 violations (at the rate of 66 violations a month), (2) paid 

only $425 in civil penalties, (3) sold 83,000 tons of coal during the 

first year of operations at $16.00 a ton and produced a gross revenue of 

approximately $1,300,000; (4) sold 50,000 tons of coal a year the last 

two years of their operations that produced a gross revenue of approximately $1,600,000; (5) had gross revenues over the three year period of 

13/ The MSHA District Manager after canvassing his inspectors furnished 

the following with respect to the contractor's attitude toward safety: 

"Approximately two weeks prior to the beginning of a regular 

mine safety AAA (11/30/81) inspection, the mine management 

replaced the mine foreman (inside foreman), with a foreman 

who is a more mine safety regulation oriented individual. 

This foreman has reduced the number of citations with little 

or no expense to the operator. 

An opinion by our inspectors is that much of the previous 

inability to comply with the mine safety law was due to a lack 

of effort instead of inadequate working capital. In previous 

inspections, there were instances of deluge fire suppression 

systems dismantled on belt drives, face ventilation devices not 

being used during production and loose coal and float coal dust 

being allowed to accumulate on equipment and working section. 

Many of these violations could have been avoided by good management practices. In the most recent regular inspection conducted 

after the new foreman had taken over, only one violation of the 

law was observed." 

14/ Roof falls this year, as every year, are again the leading cause of 

death in the mines accounting for 39 of the 94 deaths as of September 15, 

1982. 

.1875 
approximately $2.9 million dollars; (6) diverted approximately $200,000 

of NBC's working capital or revenues to themselves through unneeded 

equipment rentals paid C&B, (7) reaped a 7% return on sales; (8) almost 

doubled their assets; (9) persuaded the Secretary and one judge to 

approve settlements on 81 violations that reduced the penalties proposed 

by 80% on the ground NRC was a "small" operator in "dire financial 

condition"; (10) but, in May 1982, left another judge 11 unconvinced11 of 

their claimed "dire" financial straits when, as the result of financial 

disclosure made pursuant to discovery orders, the answers to interrogatories, the depositions taken in April 1982, and the testimony adduced 

at the hearing in May 1982 a preponderance of the probative evidence showed 

conclusively that Clark and Bush had taken advantage of "opportunities for 

asset concealment and manipulation" through the use of "multiple corporations." Secretary v. NBC Energy, Inc., 4 FMSHRC supra, at 1501. 

I conclude therefore that: 

1. The undisputed evidence in the recora considered as a 

whole shows there is no genuine issue of material fact. 

2. That Clark and Bush operated NBC and C&B as a single 

integrated business profitably and successfully during 

the period July 1979 through May 1982, notwithstanding 

the failing company appearance reflected on the face of 

NBC's unaudited financial statements. 

3. Applying the alter ego or single entity doctrine, Clark, 

Bush, NBC, C&B, J&L and Wayne Clark, Inc. are jointly 

and severally liable for payment of the penalties hereinafter assessed. 

4. The Secretary is entitled to summary decision as a 

matter of law. 

, 1876 
Order 

The premises considered, it is ORDERED: 

1. That for the violations found the following penalties 

be, and hereby are, ASSESSED: 

Citation 953508 ••••••••••••••••••••••••••••••• $130.00 

Citation 957626 ••••••••••••••••••••••••••••••• 98.00 

Citation 958069 ••••••••••••••••••••••••••••••• 114.00 

Citation 95807000000000•0000000000000000000000 140000 

Citation 958071 •••••••••••••••••••••••••.••••• 114.00 

Citation 9580724•o~oosooo~oooooooooooooooooooo 500000 

Citation 957222 ••••••••••••••••••••••••••••••• 114.00 

Citation 966468 ••••••••••.•••••••••••••••••••• 225.00 

Citation 966469 ••••••••••••••••••••••••••••••• 225.00 

Citation 966470 ••••••••••••••••••••••••••••••• 225.00 

Total $1,885.00 

2. That Wayne W. Clark, Jack D. Bush, NBC Energy, Inc., 

C&B Coal Company, Inc., J&L Coal Company and Wayne 

Clark, Inc., jointly or severally pay the amount of 

the penalties assessed, $1,885, on or before Friday, 

November 26, 1982, and that su ject to payment the 

captioned matter be DISMISSE • 

Distribution: 

William B. Taylor, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Mr. Jack Bush, Route 2, Harold, KY 41635 (Certified Mail) 

Mr. Wayne Clark, P.O. Box 147, Prestonsburg, KY 41653 (Certified 

Mail) 

187'/ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OC1Z5 \982 

DELMONT RESOURCES, INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD:1INISTRATIOfl C1SHA). 

Respondent 

Contest of Citation 

Docket No. PENN 80-268-:1 

Appearances: Harvey A. Zalevsky, • ; Greensburg, Pennsylvania, for 

Before: 

Contestant; 

David Bush, 

Department of 

Respondent. 

., Office of the Solicitor, U.S. 

Labor, Philadelphia, ?ennsylvania, 

Administrative Law Judge Broderick, 

on remand from the Commission 

for 

This proceeding were originally heard by Judge John F. Cook on 

September 16, 1930. Judge Cook issued a decision on April 23, 1981, 

in which he found that the contested citation was properly issued under 

the Federal :1ine Safety and Health Act of 1977, that the violation 

charged in the citation was caused by the unwarrantable failure of 

Contestant to conply with the safety· standard; but that the evidence 

did not support a finding 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. On the basis of the latter 

finding, Judge Cook modified the citation from one issued under section 

104(d) to one under section 104(a). 

The Secretary filed a petition for discretionary review, seeking 

review of the Judge's finding that the violation was not "significant 

and substantial." The United Hine ~'1orkers of Ar;lel)ica sought review on 

the same ground. Both petitions were granted by the Commission on 

June 2, 1931. 

1878 
The Commission remanded the case on Hay 3, 1982, "to give the 

parties an opportunity to present evidence relevant to the National 

Gypsum test" (on the meaning of significant and substantial). Following 

remand, the case was assigned to me. Pursuant to notice a hearing was 

held in Washington, Pennsylvania on June 29, 1982. Anthony Russo and 

Roger Uhazie testified on behalf of the Secretary of Labor. Homer 

Hiller, Kenneth Cutlip and John Cunnard testified on behalf of 

Contestant. The United Mine Horkers of A.'Tierica did not ap;:;ear at the 

hearing. Both parties filed posthearing briefs. Based on the entire 

record and considering the contentions of the parties, I make the 

followine decision: 

I accept as res judicata the conclusion of Judge Cook that the 

"evidence establish(es) a practice at the Delmont mine in violation of 

the roof-control plan 1 s 18-foot width requirement for entries and 

crosscuts. The evidence is sufficient to establish the existence of 

the individual conditions cotlprising the practice only at those locations where measurements were actually taken." (Judge Cook 1 s decision, 

p. 13). The Judge found three such locations on January 15, 1980, in 

each of which the conditions existed for a distance of 2 to 3 feet: 

(1) the second open crosscut between No. 2 and No. 3 entries; (2) the 

last open crosscut between No. 1 and No. 2 entries; (3) a 11 spot 11 in 

No. 1 entry approximately 60 feet outby the face. In each of these 

locations, the crosscut or entry was from 19 to 21 feet wide, and there 

were no additional supports. 

The issue before me in this proceeding is whether this practice 

as shown by the conditions referred to above is of such nature as 

could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. 

FINDINGS OF FACT 

1. On the date of the violation, January 15, 1980, the immediate 

roof in the No. 1 entry was composed of sandstone. The roof conditions 

were good and there was no evidence of cracks or scaly material in 

the roof. 

2. The excessive widths found to be involved in the violation 

resulted from the mine floor in the area sloping to the right which 

caused the miner to drift toward the right rib when cuttin3 the coal. 

3. In at least two of the areas of excessive width found by 

Judge Cook, the last row of roof bolts were from 4 to 6 feet from the 

right rib. The approved roof control plan called for bolts not more 

than 3 feet from either rib. 

1879 
4. There was a fault running across the overburden in entries 2 

and 3, consisting of a separation of sandrock, so that the sandrock 

went up into the covering strata instead of running parallel to the 

coal seam. As of January 15, 1980, it was not clear in what direction 

the fault was running, or whether it would intersect entry No. 1. 

5. An unintentional roof fall occurred in the subject mine in 

March 1980 in a crosscut between entries No. 1 and 2. 

6. The practice of driving entries wider than permitted by the 

roof control , without additional roof supports, creates a greater 

stress on the roof and is more likely to cause the strata above to 

deteriorate and separate than would be the case if the roof control 

plan were followed. 

7. The failure to maintain supports within 3 feet of the rib 

results in an area of unsupported roof which creates a stress 

on adjacent roof. 

STATUTORY PROVISION 

ISSUE 

Section 104(d)(l) provides in part as follows: 

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 standard, and 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 sucn operator to 

conply with such mandatory health or safety standards, 

he s'.1all include such finding in any citation given to 

the operator under this Act . ~ • • 

1. Whether the ice followed by Contestant of driving entries 

wider than the 18 feet prescribed by the roof control plan as evidenced by the three locations of excessive width found by Judge Cook 

was reasonably likely to result in an injury or illness of a reasonably 

serious nature? 

1880 
THE NATIONAL GYPSUM DECISION 

The Commission, in a decision issued April 7, 1981, Secretary v. 

Cement Division, National Gypsum Company, 3 FMSHRC 822, interpreted the 

significant and substantial provisions of section 104(d) as follows: 

We hold that a violation is of such a nature as 

could significantly and substantially contribute to the 

cause and effect of a mine or he~lth hazard, if, 

based on the particular facts surrounding the violation, 

there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a 

reasonably serious nature. Id. at 825. 

[nder this test it is necessary (1) to consider the particular 

facts surrounding the violation; (2) to determine whether an injury or 

illness is reasonably likely to occur as a result of the hazard; (3) if 

so, to determine whether the injury or illness will be of a reasonably 

serious nature. 

CONCLUSIONS OF LAU 

The hazard contributed to by the violation found is this case is a 

roof fall. If a roof fall occurred, a resulting injury would clearly 

be of a reasonably serious nature. The only substanLial question in the 

case is whether under the conditions present, a roof fall was reasonably 

likely to occur. 

The evidence in this record establishes that roof falls are quite 

unpredictable. What appears to be good roof may unexpectedly fall even 

if supported in accordance with the roof contrql plan. A sandstone 

roof is more stable and much safer than a soapstone roof. However, 

unsupported roof, of whatever kind, is per sea saf hazard and 

to fall and cause injury to miners. 

The practice of driving entries at widths in excess of those called 

for in the roof control plan creates an area of unsupported roof since 

the roof bolt supports only a small area of roof (the plan in question 

calls for bolts on 11 4 foot centers." The theory is that a bolt provides 

support to the roof only for 2 feet to either side). The rib acts as 

a roof support for a distance of 1 to 2 feet. Therefore, a practice of 

installing the first row of bolts more than 4 feet from the rib creates 

an area of unsupported roof between the rib and the bolt. 

1881 
I conclude that the practice constituting the violation of the roof 

control plan found by Judge Cook was reasonably likely to result in a 

roof fall which would injure a miner. There is the further fact that a 

fault was running through the roof strata and it was not certain at the 

time the citation was issued what course it was following. Should it 

intersect with No. 1 entry what was a solid sandstone roof would become 

a much less stable soapstone roof, and a fall would become even more 

likely. I have already found that if an injury occurred it would be 

reasonably serious. 

Therefore, I conclude that the violation found by Judge Cook to 

have occurred, and to have been the result of Contestant's unwarrantable 

failure to comply with the regulation in question, was of such a nature 

as could significantly and substantially contribute to the cause and 

effect of a mine safety hazard. 

ORDER 

Based on the above findings of fact and conclusions of law, 

Citation No. 624406 issued under section 104(d)(l) is AFFIRHED as 

issued; the Notice of Contest is DENIED and this proceeding is 

DISMISSED. 

... 

J(ltill.f /4-/ic<.fc t 1~c,£ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Harvey A. Zalevsky, Esq., 102 N. ~lain Street, Suite 200, Greensburg, 

PA 15601 

David T. Bush, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480 Gateway Building,.3535 Market Street, Philadelphia, 

PA 19104 

1882 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

oc126\8 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STERLING ENERGY, INC., 

Respondent 

Docket No. KENT 82-44 

A.O. No. 15-11652-03015 

Ely Hollow Deep 

DECISION 

Appearances: Carole M. Fernandez, Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner; Ralph Ball, 

Corbin, Kentucky, .J2.E2_ se, President, Sterling Energy 9 Inc,, 

respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

This proceeding concerns a proposal for assessment of civil penalties 

filed 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), 

charging the respondent with 11 alleged violations issued pursuant to the 

Act and the implementing mandatory safety and health standards. Respondent 

filed a timely answer in the proceedings and a pearing was held on 

August 24, 1982, in London, Kentucky, and the parties appeared and 

participated fully therein. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulation as in the proposal for assessment of civil penalties 

filed in this , and, if so, (2) the appropriate civil penalties 

that should be assessed against the respondent for the alleged violations 

based upon the criteria set forth in section llO(i) of the Act. 

In determining the amount of civil penalty assessments, section llO(i) 

of the Act requires consideration of the following criteria: (1) the 

operator's history of previous violations, (2) the appropriateness of 

1883 
such penalty to the size of the business of the operator charged, (3) 

whether the operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the violations, and 

(6) the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of the violations. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S.C. § 801 et ~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et~· 

Discussion 

Citation No. 987853, October 19, 1981, 30 CFR 75.1715, states as 

follows: 

The check-in and check-out system at the mine did 

not provide positive identification of every 

person underground at the mine. 

Citation No. 987854, October 19, 1981, 30 CFR 75.200, states as 

follows: 

The operator's roof control plan requiring roof 

bolts to be installed when loose or drummy 

roof are encountered was not being followed in 

that loose roof was present at one location in the 

No. 3 intake road way entry located about 300 feet 

inby the portal. 

Citation No. 987855, October 20, 1981, 30 CFR 75.400, states as 

follows: 

Loose coal and float coal dust were deposited on 

rock dusted surfaces in the No. 2 belt conveyor 

entry beginning at the portal and extending inby 

for a distance of about 350 feet. 

Citation No. 987857, October 20, 1981, 30 CFR 75.503, states as 

follows: 

The lights on the permissible type mark 20 Wilcox 

Continuous mining machine being used in the face 

area of 001 working section was inoperative. 

1884 
Citation No. 987858, October 20, 1981, 30 CFR 75.523-1, states 

as follows: 

The Wilcox roof bolting machine in 001 working 

section was not provided with a deenergization 

device. 

Citation No. 987859, October 20, 1981, 30 CFR 75.326, states as 

follows: 

The main intake and the conveyor coal haulage 

belt was not separated, in that rock had fallen and 

crushed out a portion of the 5th stopping inby the 

intake portal. 

Citation No. 988361, October 21, 1981, 30 CFR 75.316, states as 

follows: 

The operator's ventilation methane and dust control 

plan requiring at least 20 water sprays to be operative 

on the Wilcox continuous mining machine was not 

being followed in that none of the water sprays 

were operating. 

Citation No. 988364, October 21, 1981, 30 CFR 75.1103, states as 

follows: 

The sensor cable to the automatic fire warning 

devices on the No. 1 main belt conveyor was not 

maintained in that the sensor cable was broken 

in to and laying on the mine floor. 

Citation No. 988365, October 23, 1981, 30 CFR 75.1725, states as 

follows: 

There were 14 bottom belt conveyor rollers stuck 

on the No. 1 Mine belt conveyor. 

Citation No. 988367, October 26, 1981, 30 CFR 75.316, states as 

follows: 

The operator's ventilation methane and dust control 

plan requiring permanent stoppings up to and including the third open cross cut outby the face 

area was not being followed, in that permanent 

stoppings had not been installed in the third 

open cross cut outby the face area in first 

right 001 section. 

1885 
Citation No. 988369, October 27, 1981, 30 CFR 75.400, states as 

follows: 

Loose coal and float coal dust was deposited on rock dusted 

surfaces beginning at the belt drive and extending inby 

for a distance of about 150 feet. This condition existed 

in the No. 2 entry 001 first right section. 

Stipulations 

The parties stipulated that the respondent's mine is subject to 

MSHA's enforcement jurisdiction (Tr. 5). In addition, the respondent 

indicated that it does not contest citations 987855, 988365, and 988367, 

and admits the fact of violations insofar as those citations are 

concerned 6), 

MSHA Inspector Robert Sawyers confirmed that he inspected the 

mine in question in October 1981, and he confirmed that he issued all 

of the citations which are the subject of these pro He testified 

as to the conditions and practices which he observed, and which led him 

to issue each of the citations. He also testified as to the 

gravity, and good faith abatement concerning each of the citations 

• 8-19; 19-28; 35-49; 50-68; 68-85). 

Respondent's testimony and evidence 

Mine operator Ralph Ball appeared se in this case and was 

a full opportunity to present testimony and evidence in defense of all 

of the citations, including an opportunity to cross-examine the inspector 

as to all of his findings. Aside from the fact that he was Lot present 

on at least two occasions when the inspector conducted his inspections, 

Mr. Ball asserted that the citations resulted from the fact that he was 

in the process of moving his mining equipment from one underground mine 

area to another. However, he candidly admitted that on the days the 

citations issued work was in fact being performed in the mine and that 

the areas which were cited were active working areas of the mine (Tr. 94). 

Inspector Sawyers testified that during the days of his inspections 

which resulted in the issuance of the citations in question in this case 

the mine was operating and producing coal. The haulage road was in use, 

the main belt conveyor haulage system was operational, the continuous 

mining machine was in operation cutting coal, and the roof bolter and 

other mine equipment was in use during the coal producing shifts (Tr. 53-57, 

77, 21-35, 44). In addition, Mr. Sawyers indicated that the mine is 

still considered an active mine by MSHA (Tr. 83), and that if this were 

not the case he would not have conducted the inspections in question (Tr. 35). 

1886 
Findings and Conclusions 

Fact of violations 

I conclude and find that the testimony and evidence adduced by 

MSHA in these proceedings establishes the fact of violations as to each 

of the citations issued, and all of the citations are therefore AFFIRMED. 

Negligence 

The inspector testified that the respondent had a mine foreman who 

was required to insure that all of the areas cited were preshif ted or 

inspected sometime during the daily mining operations so as to preclude 

the conditions or practices cited (Tr. 11, 12, 22-23, 30, 69, 78). I 

conclude and find that the conditions cited resulted from the respondent 9 s 

failure to exercise reasonable care, and that this failure on its part 

constitutes ordinary negligence as to all of the citations which have 

been affirmed. 

History of prior violations 

MSHAvs counsel asserted that for the period October 19, 1979 to 

October 18, 1981, the mine had 8 citations issued against it, five of 

which were assessed civil penalties for which payment was made (Tr. 90). 

Respondent's prior history of violations appears to indicate a satisfactory 

safety record for an operation of its size, and I cannot conclude that 

additional increases in the assessments made are warranted. 

Good Faith Abatement 

Inspector Sawyers testified that with the exception of Citation No. 

987854, all of the remaining citations were abated within the time fixed 

and that the respondent demonstrated good faith compliance (Tr. 9-12, 

15, 29, 37, 53, 69, 78). 

With regard to Citation No. 987854 for failure to roof bolt a loose 

roof area in the roadway, Mr. Sawyers testified that he gave the respondent 

until the next morning to bolt the area. However, when he returned the 

next morning and found that the bolting had not been done, he was .concerned 

that the loose roof could fall and therefore issued an order. Abatement 

was then immediately achieved (Tr. 22). In defense of this lack of timely 

abatement, Mr. Ball testified that it took longer than the time originally 

fixed by the inspector because roof bolting equipment had to be moved 

down to the area of loose roof (Tr. 26). The inspector did not dispute 

this fact, but there is nothing to suggest that anyone from mine management 

indicated that more time was required to abate the loose roof conditions 

(Tr. 27). 

In view of the foregoing, I conclude and find that all of the 

conditions and practices cited by the inspector in this case were corrected 

by the respondent in good faith and timely compliance was achieved. With 

1887 
regard to the situation which necessitated the issuance of an order to 

achieve compliance, I have considered the fact that the equipment 

necessary to achieve rapid compliance had to be moved to the affected 

roof area and that immediate compliance was then achieved. Under these / 

circumstances, and in view of the inspector's agreement with the fact 

that an equipment problem may have existed, I cannot conclude that the 

respondent exhibited a total lack of good faith in achieving compliance 

once the order issued. 

Gravity 

Citation 7 

The inspector indicated that the conditions cited could have resulted 

in a serious interruption to the mine ventilation (Tr. 9). 

The inspector stated that stuck rollers constitute a fire hazard 

in that they could heat up when not turning properly, and while the mine 

is wet, a fire hazard was still present (Tr. 10-11). 

Citation 

The Inspector indicated that the loose coal and float coal in 

the cited areas presented a possible fire or explosion hazard in the 

event methane or float coal dust were present. Although he detected 

no methane, he still considered the conditions cited to be hazardous 

(Tr. 12-13). 

Citation 987853 

The inspector believed that the lack of a positive individual 

miner identification system did not per se pre$ent any danger, and 

was not likely to cause any injury (Tr. 15). 

Citation 987854 

The inspector stated that the lack of roof bolts at the loose roof 

area on the roadway where men and equipment traveled presented a dangerous 

situation and exposed miners to possible injuries or death (Tr. 21). 

Citation 987857 

The inspector believed that the lack of lights on the continuous 

mining machine exposed anyone in the area to a possible hazard since all 

they would have for illumination would be their cap lamps (Tr. 29-31). 

Citation 

The inspector believed that the lack of a "panic bar" on the roof 

bolting machine would prevent the operator from stopping or controlling 

1888 
it sufficiently in the event of any emergency. The machine had been 

used to bolt the roadway, and the machine operator would have been 

exposed to a hazard if the machine were in motion and could not be stopped 

(Tr. 38-40). 

Citation 987859 

The inspector stated that the rock fall here crushed out a portion 

of the ventilation stopping, thereby resulting in the interruption to 

the mine ventilation system in that no separation was maintained between 

the intake and return aircourses. This could have short-circuited the 

ventilation (Tr. 54). 

Citation 988361 

The inspector indicated that the lack of required water 

on the miner prevented the proper suppression of mine dusts, 

miners would be exposed to this dust (Tro 56-57). 

Citation 988364 

sprays 

and the 

The inspector believed that the broken sensor cable to the automatic 

fire warning device on the same belt which had stuck rollers presented a 

hazard in that in the event of a fire the sensor would not give any 

warning or activate the surface warning device (Tro 68-71), 

Citation 988369 

The inspector indicated that the presence of loose coal and float 

coal dust at the belt drive and entry in question presented a possible 

explosion hazard which would have affected the eight men on the section 

(Tr. 78-79). 

In view of the foregoing testimony and evidence presented by the 

inspector, I conclude and find that all of the' citations except for one 

constituted serious violations of the cited safety standards. I conclude 

that citation 987853 is nonserious. 

Size of Business and Effect of Civil Penalties on the Respondent's 

Ability to Remain in Business 

Inspector Sawyer testified that at the time the citations issued, 

the mine was operating two production shifts and one maintenance shift, 

employing approximately eight miners on each of the production shifts 

(Tr. 17; 81). He also indicated that the mine was first opened in 1979, 

and was operated by a prior owner (Tr. 51). Mine production was approximately 

140 tons of coal a shift and when he last visited the mine in June 1982, 

mine production was down to one shift (Tr. 82). The mine is still active, 

and respondent is still in the mining business (Tr. 83). 

1889 
Mine operator Ball testified that he became the operator of the mine 

when he leased it on July 1, 1981, and he confirmed that mine production 

averaged about 140 tons of coal for each production shift, or approximately 

280 tons a day when the mine is working (Tr. 86-87). 

Mr. Ball testified that it could be difficult for him to pay the 

civil penalties proposed by MSHA in this case because he is not producing 

or selling as much coal as he has in the past. Due to the depressed coal 

market, he is not certain that he can remain in business for the "next 

few weeks" (Tr. 87-90). 

MSHA's counsel stated that she had no reason to question the economic 

state of respondent's mining operation, and that the inspector confirmed 

that he observed little mining activity going on when he last visited 

the mine and that mine production had been reduced (Tr. 91). 

I conclude and find that the respondent is a small mine operator. 

Although respondent did not produce any credible evidence to support a 

conclusion that the assessment of civil penalties will put him out of 

business, his testimony that his mining operation is marginal remains 

unrebutted by the petitioner. Further, the asserted decrease in mine 

production is supported by the testimony of the inspector. 

It is clear that in litigated civil penalty proceedings, the 

determination of appropriate civil penalty assessments for proven 

violations is made on a novo basis by the presiding judge and he is 

not bound by any assessment method of computation utilized by MSHA's 

Assessment Office, Boggs Construction Company, 6 IBMA 145 (1976); 

Associated Drilling Company, 6 IBMA 217 (1976); Gay Coal Company, 7 IBMA 

245 (1977); MSHA v. Consolidated Coal Company, VINC 77-132-P, IBMA 78-3, 

decided by the Commission on January 22, 1980. 

In the instant proceedings, the initial civil penalty assessments 

which appear as part of the petitioner's initial pleadings and civil 

penalty proposals in the form of "assessment w~rksheets" as exhibits 

to the proposals, reflect proposed penalty amounts derived from the 

application of "points" assessed for each of the statutory criteria set 

out in section llO(i) of the Act, made pursuant to Part 100, Title 30, 

Code of Federal Regulations. It is clear that I am not bound by those 

initial assessments, and the penalty assessments which I have imposed 

have been made after full consideration of the record evidence concerning 

the respondent's small size, its reduced mine production, and its marginal 

mining operation, as well as the other statutory criteria found in section 

llO(i) of the Act. 

Penalty Assessments 

On the basis of the foregoing findings and conclusion, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

that the following civil penalty assessments are appropriate for the 

citations which have been affirmed: 

1890 
No. Date CFR Section Assessment 

987853 10/19/81 75.1715 $ 10 

987854 10/19/81 75.200 100 

987855 10/20/81 75.400 40 

987857 10/20/81 75.503 15 

987858 10/20/81 75.523-1 30 

987859 10/20/81 75.326 45 

988361 10/21/81 75.316 35 

988364 10/21/81 75.1103 42 

988365 10/23/81 75.1725 60 

988367 10/26/81 75.316 35 

988369 10/27/81 75.400 30 

$ 442 

ORDER 

Respondent IS ORDERED to pay civil penalties in the amounts shown 

above within thirty (30) days of the date of this decision and order, 

and upon t of payment by the ioner this matter is DISMISSED. 

hK~ra~ Administrative Law Judge 

Distribution: 

Carole M. Fernandez, Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courghouse, 801 , Nashville, TN 37203 

Mail) 

Ralph Ball, President, Sterling Energy, Inc., P.O. Box 407, Corbin, KY 

40701 (Certified Mail) 

1891 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceedings 

l1INE SAFETY AND HEALTH 

ADHIHISTRATION (HSHA), 

Petitioner 

v. 

HILLAI'J) BENTGEN, 

GRANT HACKLIN, 

RUSSELL HEEHAN, 

Respondents 

Docket No. LAKE 82-27-;'1 

A/O No. 20-00603-050015-A 

Docket No. 1&1<.E 82-28-~1 

A/O No. 20-00608-05017-A 

Docket No. LAKE 82-29-~ 

A/O No. 20-00608-050019-A 

Ottawa Silica Company 

Michi5an Division Quarry and Nill 

DECISION 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for Petitioner; 

Frank X. Fortescue, Esq., Brown, McGlynn, Fortescue and 

Smith, Bloomfield Hills, Michigan, fur Resporidents. 

Before: Administrative Law Judge Broderick 

STATE~1ENT OF THE Cl\SE 

Petitions were filed in each of the above cases under section 

llO(c) of the Federal Mine Safety and Health Act of 1977, alleging that 

each of the Respondents, acting as agent of the Ottawa Silica Company, 

a corporate mine operator, knowingly. authorized, ordered, or carried 

out a violation of the mandatory standard contained in 30 C.F.R. 

§ 56.9-2 committed by the mine operator between October 31, 1980 and 

November 25, 1980. On motion of Petitioner, the three cases were consolidated for hearing and decision since they involved the same corporate 

mine operator and the same violation is charged against each Respondent. 

Pursuant to notice, the case was heard on the merits in Detroit, 

Hichigan, on Au3ust 4, 1982. 1rwin Uowitzke, :'lonald J. Baril and Russell 

Spencer testified on behalf of Petitioner. Peter Roan and Hillard 

Bentgen testified on behalf of Respondents. Counsel for Petitioner and 

Respondents waived their rights to file posthearing briefs and each submitted oral arguments on the record at the cloee of the testimony. 

Based on the entire record, and considering the contentions of the 

parties, I make the following decision. 

1892 
FINDINGS OF FACT 

1. Ottawa Silica Company at all times pertinent hereto was the 

operator of a mine in Hayne County, Michigan, known as the lfichigan 

Division Quarry and Uill, the products of which entered interstate and 

foreign commerce. Ottawa Silica Company is a Delaware Corporation \lith 

headquarters in Ottawa, Illinois. 

2. At all times pertinent hereto, Respondent Hillard Hilliam 

Bentgen was employed by Ottawa Silica Company as Industrial Relations 

Safety Supervisor at the Michigan Division Quarry and HilL 

3. At all times pertinent hereto, Respondent Grant }~cklin was 

employed by Ottawa Silica Company as pit foreman at the Michigan 

Division Quarry and MilL 

4. At all times pertinent hereto, Respondent Russell Heeman was 

employed by Ottawa Silica Company as maintenance foreman at the :1ichigan 

Division Quarry and Mill. 

5. Ottawa Silica Company owned and used a piece of equipment known 

as a Grove Cherry Picker Crane #33. This was a large crane with four 

rubber tired wheels. It weighed between 15 and 20 tons, and had a 

lifting capacity of 14 tons. There were brakes on all four wheels. 

6. Ottawa Silica Company required all employees operating powered 

industrial equipment, including the cherry picker, to complete and 

submit each day a forn called Nobile Equipment Daily Operator Inspection. 

7. At all times pertinent hereto, the employee who operated the 

Grove Cherry Picker Crane #33 at the subject mine was Erwin ~owitzke. 

8. The report submitted by Nowitzke on Odtober 30, 1980, indicated 

a defect in the emergency brake at the beginning and end of the shift. 

No defect was noted in the service brakes. On the reports submitted 

beginning October 31, 1980 and continuing through November 24, 1980, 

a defect was noted in the service brakes both at the beginning and the 

end of each shift. Thirteen such reports were submitted during that 

period of time. In addition to the written reports, Nowitzke orally 

complained of the brakes to his supervisors. 

9. The reports referred to above were submitted to the mine office. 

They were turned over to Respondent Bentgen. After the first such 

report, Bentgen talked to the mechanics. Brake fluid was added to the 

service brakes. As the reports continued to indicate a defect, Bentgen 

was told that the brakes tended to fade after use, and could be brought 

back to an acceptable level by adding fluid. At some time between 

October 31, 1980 and November 6, 1980, the master cylinder was replaced, 

but the problem continued. 

1893 
10. Ottawa Silica's mechanics were unable to fix the brakes so 

Contractors ;.fachinery Company, which sold and serviced construction 

equipment, was called on November 6, 1980. 

11. The Contractors Machinery Company representative found 

defective seals in the front wheel cylinders. Because parts had to be 

ordered, the brakes were "blocked off," that is, rendered entirely 

inoperative. This was done with the knowledge and authorization of 

Ottawa Silica officials. New parts were 01'.'dered by Contractors 

Machinery. 

12. Respondents , Macklin and Heeman were aware that the 

brakes had been blocked off on the Grove cherry picker crane at the 

time or shortly after this was done. 

13. The Grove cherry picker crane in question was operated on 

sand and gravel surfaces some of which were roughly graded, and had 

bumps. It traversed a long curved hill with a pond at the bottom and a 

dropoff at the side of 50 to 60 feet. Other vehicles travelled in the 

area including pick up trucks. The crane had a normal speed when emp 

of 10 to 20 miles per hour. When loaded, it would travel 5 to 10 miles 

per hour. Where Nowitske travelled down a grade, he tried to keep the 

speed down to 2 to 3 miles per hour. 

14. While the crane was carrying a load up or down travelway 

described above, the rear wheels would sometimes be raised off the 

ground on striking a bump in the road. Hhen the rear wheels were off 

the ground, the crane had no brakes at all after the front brakes were 

blocked off. On occasion, during this time, it was neceFsary for the 

crane operator to shift into reverse gear to slow the crane down. 

15. During the period in question, Nowitzke was not involved in 

any accident with the crane, nor did he ever lose control of the 

vehicle. 

16. On one or more occasions subsequent to November 6, 1930, 

Nowitzke was directed by Respondent Macklin to operate the crane to 

pick up and carry pumps to and from the pit. These weighed from 

400 pounds for small pump motors to over 1,000 pounds for sand pump 

motors. Macklin was aware that the front brakes were blocked off 

during this time. 

17. On one or more occasions subsequent to November 6, 1980, 

Nowitzke was directed by Respondent Heenan to operate the crane. Heeman 

was aware that the front brakes were blocked off during this time. 
18. Respondent Bentgen knew that the crane was being operated 

after its front brakes were blocked off. Bentgen told Macklin and 

Reeman that in his opinion the crane was safe to operate. 

19. On November 25, 1980, Federal Mine Inspector Ronald J. Baril, 

a duly authorized representative of the Secretary of Labor, issued a 

citation to the Ottawa Silica Company charging a violation of 30 C.F.R. 

§ 56.9-2. The citation that the company was aware that Grove 

cherry picker No. 33 had defective brakes which should have been 

corrected on October 31, 1980, or the machine should have been removed 

from service. It further alleged that equipment operator inspection 

forms had reported the defect from October 31, 1980 on 13 separate work 

days. 

20. The citation referred to above was terrainated on the it 

was issued when the Saf Manager informed company supervision that 

they must review the employee equipment reports and correct defects 

affecting safety. The brakes were repaired on l~ovember 26, 1980, and 

the cherry crane was returned to service. 

2L HSHA assessed a penalty of $1,000 Ottawa Silica 

Company for the alleged violation and the assessment was paid in 

September, 1981. 

STATUTORY 

Section llO(c) of the Act provides in part as follows: 

Whenever a corporate operator violates a mandatory 

health or s~fety standard or knowingly violates or fails 

or refuses to comply with any order issued under this 

Act ••• , any director, officer, or agent of such 

corporation who knowingly authorized, ordered or carried 

out such violation, failure or refusal shall be subject 

to the same civil penalties • • . that may be imposed 

upon a person under subsection[s] (a) ..•• 

REGULATORY PROVISION 

30 C.F.R. § 56.9-2 provides as follows: "Equipment defects affectsafety shall be corrected before the equipment is used." 

ISSUES 

1. Whether the corporate operator, Ottawa Silica Company, violated 

the mandatory safety standard charged in the citation involved herein? 

1890 
2. If the corporate operator violated the saf 

in the case of each Respondent, did he, acting as an 

corporation, knowingly authorize, order, or carry out 

standard charged, 

of the 

such violation? 

3. If Respondents or any of them did knowingly authorize, order, 

or carry out the violation, whet is the appropriate penalty therefor? 

CONCLUSIONS OF LAW 

1. Ottawa Silica 

contained in 30 C.F.R. 

brakes on the Grove 

October 31, 1980 to 

the crane. 

DISCUSSION 

Company violated the mandatory safety standard 

§ 56.9-2 in failin~ to correct the defective 

picker crane #33 during the period 

tember 25, 1981, while it continued to operate 

There is no question that the crane had defective brakes: from 

October 31, 1980 to November 6, 1980, the front wheel cylinders leaked 

and the brakes lost their hold power each day while be used. 

From November 6 to November 25, the front brakes were blocked off and 

inoperative. s contend that the defect did not 

affect safety. This flies in the face of common sense. The vehicle 

was equipped with four wheel brakes and obviously brakes on only 

the rear wheels seriously diminished the ability of the operator to 

stop. The most important evidence in this regard is the testinony of 

Mr. Nowitzke, the equipment operator. He stated that he considered 

driving the crane without brakes to be hazardous, especially when 

lifting and carrying loads. The crane operator and other employees 

working or travelling in the area of the crane were endangered by the 

defective brakes. 

2. Each of the Respondents was an agent of Ottawa Silica Company, 

a corporation, during the months of October and November, 1981. 

3. Respondent Grant Nacklin and Respondent Russell Reem.an knowingly ordered the crane operator to use the crane without having the 

defective brakes corrected. They thereby knowingly ordered the 

commission of the violation found herein to have been committed by the 

corporate operator. 

4. Respondent Hillard Bengten, the Safety Director of the corporate operator, knowingly authorized the use of the crane without havin~ 

the defective brakes corrected. He thereby knowingly authorizeq,--the 

violation found herein to have been committed by the corporate operator. 

DISCUSSION 

There is no question but that each of the Respondents knew that 

the crane had defective brakes. I conclude further that each of them 

knew or should have known that this was a defect affecting safety. It 

is not necessary in order to establish a violation under section llO(c) 

that wilfullness or bad faith be shown. See Secretary v. Kenny Richardson, 

1 FHSIIRC 8 (1981). 

1896 
5. The violation was a serious one in 

and very serious in the case of Respondent 

the case of each Respondent, 

for to the safety of all employees at 

an obvious one, known to all Respondents for many 

and in writing on many occasions by the 

who was responsible 

The defect was 

and reported 

operator. 

6. There is no evidence in the record the ability or 

lack of ability of any of the Respondents to pay penalties that may be 

assessed. 

7. After the violation was cited the it was 

abated and, so far as the record shows, each of the Respondents 

in the abatement. 

8. I conclude that appropriate ies for the knowing violations 

should be imposed as follows: on Respondent , $700; on Respondent 

Macklin, $500; on Respondent Heeman, $500. 

ORDER 

Based on the above findings of fact and conclusions of law, IT IS 

ORDERED: 

1. That within 30 days of the date of this decision, 

Respondent Hillard Bentgen pay the sum of $700 as a civil 

penalty for the violation found herein to have occurred; 

2. That within 30 days of the date of this decision, 

Respondent Grant Macklin pay the sum of $500 as a civil 

penalty for the violation found herein to have occurred; 

3. That within 30 days of the date of this decision, 

Respondent Russell Heeman pay the sum of $500 as a civil 

penalty for the violation found herein to have occurred. 

/ (!., (1AA: -; /f,/3c,Vrk Vl e ;l ..../ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

J. Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson J3lvd., Arlington, VA 22203 

Frank X. Fortescue, P.C., Brown, HcGlynn, Fortescue and Smith, Attorneys 

at Law, 500 North Woodward, Suite 320, Dloomfield, Hills, HI 48013-7164 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceedings 

unrn SAFETY k~D HEALTH 

ADMINISTRATION (11SHA), 

Petitioner 

Docket ::-lo. LAKE 82-27-'.1 

A/0 No. 20-00608-050015-A 

v. 

HILLARD BENTGEN, 

GRANT HACKLIN, 

RUSSELL HEEMAN, 

Respondents 

Docket No. LAKE 82-28-~1 

A/O No. 20-00603-05017-A 

Docket No. LAKE 82-29-"J 

A/O No. 20-00603-050019-A 

Ottawa Silica Company 

Hichigan Division Quarry and :Iill 

CORRECTIONS TO DECISION 

ISSUED OCTOBER 26; 1982 

On page 5, Conclusion of Law No. 1 should read as follows: 

1. Ottawa Silica Company violated the mandatory 

standard contained~in 30 C.F.R. § 56.9-2 in 

failing to correct the defective brakes on the Grove 

cherry picker crane i/33 during the period October 31, 

1980 to November 25, 1930, while it continued to 

operate the crane. 

On page 5, Conclusion of Law No. 2 should r.ead as follows: 

2. Each of the Respondents was an agent of Ottawa 

Silica Company, a corporation, 9uring the months of 

October and November, 1980. 

-a<~u.7/5 /.vi:1.'{/dt1~6L James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

J. Smith, ., Office of the Solicitor, U.S. Department of 

Labor, 4015 \lilson Blvd. , Arlington, VA 22203 

Frank X. Fortescue, P.C., Brown, McGlynn, Fortescue and Smith, Attorneys 

at Law, 500 Horth Woodward, Suite 320, Bloomfield, Hills, MI 48013-7164 

1898 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR ocr 26198Z 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant-Respondent 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner-Respondent 

DECISIONS 

Contest of Citation 

Docket No. WEVA 82-30-R 

Citation No. 861598; 9/24/81 

McElroy Mine 

Civil Penalty Proceeding 

Docket No. WEVA 82-120 

A.O. No, 46-01437-03115 

McElroy Mine 

Appearances: Robert Vukas, Esquire, Pittsburgh, Pennsylvania, for 

Consolidation Coal Company; Janine C. Gismondi, Attorney, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for MSHA. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern a citation issued by an 

MSHA inspector pursuant to section 104(a)' of the Federal Mine Safety 

and Health Act of 1977, charging the Consolidation Coal Company with an 

alleged violation of mandatory health or safety standard 30 CFR 70.207(a). 

Docket WEVA 82-30-R is the Contest filed by Consolidation Coal challenging 

the legality of the citation, and Docket WEVA 82-120, is the civil 

penalty proposal filed by MSHA seeking a civil penalty assessment for 

the alleged violation. The cases were consolidated for trial in 

Washington, Pennsylvania, on July 14, 1982, and the parties appeared 

and participated fully therein. Consolidation Coal filed a post-hearing 

brief, but MSHA did not. However, I have considered the oral arguments 

made by both counsel during the course of the trial, as well as 

Consolidation Coal's written brief, in the course of these decisions. 

Applicable Statutory Provisions 

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

et~ 

1899 
2. Section llO(i) of the 1077 Act, 30 U.S.C. § 820(i), which 

requires consideration of the following criteria before a civil penalty 

may be assessed for a proven violation: (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. 

3. Commission Rules, 29 C.F.R. § 2700.1 .::_!._ ~ 

Issues 

The issues presented in these proceedings includes the following: 

(1) whether the conditions or practices cited by the inspector on the 

face of the citation constituted a violation of the cited mandatory 

safety standard, (2) whether the violation was of such a nature as could 

significantly and substantially contribute to the cause and effect of 

a coal or other safety or health hazard, and if such violation was caused 

by the unwarrantable failure of the operator to comply with the mandatory 

health or safety standard, (3) the appropriate civil penalty which should 

be assessed against the operator for the alleged violation based upon 

the criteria set forth in section 110 of the Act. Additional issues 

raised are identified and disposed of where appropriate in the course 

of these decisions. 

Stipulations 

The parties stipulated to the following (Tr. 4-5): 

1. The McElroy Mine is owned and operated by the 

Consolidation Coal Company. 

2. The respondent and the mine are subject to the 

jurisdiction of the Act and the Commission. 

3. Citation No. 871598 was properly served on the 

respondent by a duly authorized representative of 

the Secretary of Labor. 

4. The McElroy mine produces approximately 1,419,120 

tons of coal annually. 

5. The assessment of a civil penalty in this case will 

not adversely affect the respondent's ability to 

continue in business. 

Discussion 

The citation issued by the inspector in this case, No. 861598, 

September 24, 1981, (Exhibit G-1), describes the condition or 

practice cited as a violation as follows: 

1900 
Only one of the five required valid respirable dust 

samples were taken by the operator from the 036 continuous 

miner operator designated occupation on the 079-0 4D mechanized 

mining unit for the July-August 1981 bimonthly sampling cycle, 

as evidenced by Advisory No. 0029 dated September 8, 1981. 

According to mine records, there were 65 production shifts 

from July 1 to August 18, 1981 when production on this section 

temporarily ceased. John Kulavik, Health and Safety Technician, 

stated that sampling for this section was scheduled for 

August 18-24, 1981, but after sampling on 8-19-81 was informed 

that this section was shut down immediately due to needing 

air for a new longwall on 1 South face section. 

MSHA 1 s testimony and evidence 

John M. Dower, MSHA Mining Engineer, testified as to his mine 

training and experience, and he indicated that his duties include the 

inspection of mines. His current duties include the inspection and 

investigation of respirable dust and noise problems in underground 

mines in MSHA's District 3. Mr. Dower confirmed that he issued citation 

861598 on September 24, 1981, and served it on John Kulavik, respondent 1 s 

health and safety technician employed at the McElroy Mine (Tr. 8-12; 

Exhibit G-1), 

Mr. Dower stated that he issued the citation on the basis of a 

September 8, 1981, MSHA "advisory 11 computer print-out which indicated 

that for the bi-monthly respirable dust sampling cycle period July through 

August 1981, only one sample had been received. The regulations require 

that five valid designated occupation samples be taken and submitted. 

The occupation samples required were for the 036 continuous miner operator, 

operating in the 079-0 mechanized mining unit (Tr. 12-15; Exhibit G-2). 

Mr. Dower testified that when he spoke with Mr. Kulavik at the mine 

on September 24, 1981, he confirmed that only one respirable dust sample 

was taken of the miner operator in question du~ing the July-August 

sampling period and that this sample is reflected on the "advisory" as 

cassette number 43877984. Mr. Dower stated further that according to the 

mine records there were 65 production shifts from July 1 to August 18, 1981, 

when production ceased on the 4-D section. He also indicated that the 

purpose of sampling is to assure that the mine ventilation methane and 

dust control systems are adequate to control any miners respirable 

dust exposure to a level at or below 2.0 milligrams per cubic meter in 

any 8-hour work shift (Tr. 15-16). 

On cross-examination, Mr. Dower testified that his inspection 

confirmed that the 079-0 mechanized mining unit was located on the 4-D 

section. He also confirmed that during the time period in question the 

section was operating three shifts a day, and that Mr. Kulavik was the 

person performing dust sampling for the mine. Mr. Dower did not know when 

the 65 production shifts in question took place, and he did not check 

the records in this regard. He also stated that he did not check Mr. Kulavik's 

dust sampling schedule to determine what he was doing during the shifts 

in question (Tr. 17-18). 

1901 
Mr. Dower explained the procedures used to take the required dust 

samples, and he confirmed that MSHA's District Manager may require a 

mine operator to submit its proposed sampling procedures. Once the plan 

is placed in writing and submitted to MSHA, the operator must inform the 

district office of any mine operational change of status which may preclude 

the taking of samples. Mr. Dower confirmed that Mr. Kulavik advised him 

that he took only one sample on August 18, and took no others because 

the section in question was shut down for the remainder of the month 

of August. However, Mr. Dower did not know whether Mr. Kulavik submitted 

an operational status change form showing that it was to be impossible 

to sample the section, nor could he recall checking MSHA's records to 

determine whether he did or not (Tr. 18-23). 

Mr. Dower stated that he checked the mine operational records and 

confirmed that section 4-D was not a producing section for the period 

August 18 through 31, and he confirmed that the require that 

five valid be taken only on a production shift (Tr. 24). 

Consolidation Coal Company's testimony and evidence 

John , testified that during July and t 1981, he was 

responsible for the taking of dust and noise samples at the 

mine. He stated that the first two weeks of July was the miner's vacation 

period, and that it ended on July 12. He was not at work during the 

subsequent week due to a death in his family. He started sampling the 

long wall section during the last week of July through August 11th. He 

indicated that he submitted an operational status change fo,r the 4-D 

section after production on that section was shut down, and he stated 

that he started sampling on that section late because of vacations and 

personal reasons. During his nine years of taking samples, the citation 

issued in this case was the first one he has received for non-compliance 

(Tr. 77-80). 

Mr. Kulavik explained that 40 of the 65 skifts noted by the inspector 

were shifts during the period after the miner's vacation to the end of 

July, and that he spent his time sampling the longwall section (Tr. 81). 

He also conducted noise surveys during May and June (Tr. 82). 

In response to questions from the bench, Mr. Kulavik confirmed that 

he was first notified of mine management's decision that section 4-D 

was to be shut down after he came out of the mine on the midnight shift 

on August 18th, and at that time he had taken one dust sample on the 

morning shift (Tr. 86). The 4-D section was shut down until August 31, 

and it reopened on that day (Tr. 87), and it remained in production during 

the months of September and October. He sampled during these two months, 

and the section was in compliance (Tr. 88). The 4-D section was also in 

compliance during the months of May and June (Tr. 88). 

Mr. Kulavik stated that he discussed the citation in question with 

the inspector, and his understanding of-the reason for the citation was 

1902 
the inspector's belief ,that he should have sampled during the 65 shifts 

which had passed (Tr. 91). Mr. Kulavik indicated that had he known in 

advance that the 4-D section would be shut down he would have rearranged 

his sampling scheduled, but that he had no role in the decision to 

shut the section down (Tr. 91). 

Consol's Arguments 

Respondent-contestant Consolidation Coal Company (Consol), takes 

the position that the cited standard has not been violated in this case 

because Consol had two full months within which to take the required 

respirable dust samples. Since the 4-D Section was not in production 

after August 18, Consol argues that the inspector acted prematurely 

in issuing the citation, and that compliance was impossible because the 

section had been shut down (Tr. 24-28). In short, Consol takes the 

position that under the mandatory standard in question it has a fu:l two 

months within which to take its samples, and that it has the discretion 

and option of scheduling sampling at anytime during the two months sampl 

period (Tr. 63-64; 67-68). 

MSHA's Arguments 

MSHA counsel conceded that the standard, on its face, allows a mine 

operator to schedule its respirable dust sampling at any time during any 

bi-monthly sampling period. However, counsel argued further that a mine 

operator must advance some legitimate reason for ceasing production on 

a section, thereby excusing itself from the requirement that it take and 

submit five valid respirable dust samples. Counsel also argued that 

any shut-down or cessation of production must be made in good faith and 

that a shut down in production for the purpose of avoiding compliance 

with the dust sampling requirements of the regulation should not be 

permitted (Tr. 28-34). On the facts of this case, MSHA's counsel takes 

the position that since 65 production shifts elapsed from July 1, 1981, 

to the day the section ceased production, Consol had ample time to take 

and submit the required respirable dust samples (Tr. 43). 

MSHA's counsel argued further that the Act, as well as the cited 

regulation, imposes strict liability on a mine operator, and even though 

the standard permits an operator a full two months within which to take 

its respirable dust samples, when the operator decides to shut doW-U 

production it must show that the shut down was made in good faith and 

not for the purpose of avoiding compliance, and that the shut down was 

occasioned by circumstances which were unforeseen and outside its control 

(Tr. 44). Even if it can establish these two factors, MSHA's counsel 

nonetheless takes the position that if the samples are not taken, a 

violation is established, but that the two factors may be considered 

in mitigation of any civil penalty which may be assessed for the violation 

(Tr. 45-46) . 

MSHA's counsel conceded that section 70.220 puts the burden on a 

mine operator to notify MSHA when there is a change in the operational 

1903 
status of the mine. Assuming that an operator advised MSHA that it 

intended to take its dust samples during the last two weeks of August, 

counsel conceded further that a citation for failure to take samples 

could not be issued before the expiration of the full two month period 

(Tr. 73-74). 

Findings and Conclusions 

In this case Consol is charged with a violation of mandatory standard 

30 CFR 70.207(a), which provides in pertinent part as follows: 

(a) Each operator shall take five valid 

respirable dust samples from the designated 

occupation in each mechanized mining unit during 

each bimonthly period beginning with the bimonthly period of November 1, 1980. Designated 

occupation shall be collected on consecutive 

normal production shifts or normal production 

shifts each of which is worked on consecutive 

days. The bimonthly periods are: 

January l February 28 (29) 

March 1 - April 30 

May l - June 30 

July 1 - August 31 

September 1 - October 31 

November 1 - December 31 

Inspector Dower testified that the mine in question has an excellent record 

and that the one respirable dust sample which was submitted, and which 

reflected 0.7, was well within the compliance range required by the standard 

(Tr. 38, 42). He also indicated that he did not know what Consol's past 

dust inspection routine practice was at the mine in question (Tr. 41). 

He also conceded that Mr, Kulavik advised him that he had no prior knowledge 

that the 4-D section would be shut down during• the scheduled sampling 

period (Tr. 59). As for any MSHA policy guidelines concerning the application of section 70.207(a), MSHA's counsel confirmed that the existing 

policy does not address the issue of any possible extenuating circumstances 

that would permit an operator not to take the required dust samples without 

leaving itself open to a citation for noncompliance (Tr. 76). 

The facts in this case show that the first dust sample taken by 

Mr. Kulavik was on August 18. The section was then shut down, and 

Inspector Dower confirmed that from August 18 through 31, which constituted 

the remainder of the sampling period, the section was not in production. 

Since it was not a producing section, the remaining four samples were 

not required to be taken. 

On the facts of this case, MSHA has advanced no credible evidence 

to support a conclusion that mine manag~ment had arbitrarily shut down the 

1904 
section simply to avoid the taking of the required samples. Mr. Kulavik 

impressed me as a competent respirable dust technician and I find him 

to be a completely straightforward and credible witness. I am particularly 

impressed with his unrebutted testimony that in the nine years he has 

been sampling dust in the mine, the instant citation for noncompliance 

was his first one, and the one sample which he did take indicated that 

the mine was in compliance. 

MSHA's position of absolute liability even though an operator can 

establish that it acted in good faith by shutting down production and 

that the circumstances surrounding the shutdown were beyond its control 

is rejected. The fact that a number of working shifts had elapsed prior 

to the shut down is not persuasive, particularly where the standard itself 

allows an operator a full two months to take samples, and particularly 

where MSHA conceded that a citation may not issue before the expiration 

of the two month sampling cycle. In this case, Mr. Kulavik indicated 

that had he known in advance that the section would have been shut down, 

he would have arranged to take the required samples before the shut down. 

Since he had no control over the shut down and had no decision making 

authority in that regard, I conclude and find that he did act in good 

faith, and did not fail to take the samples simply to avoid compliance. 

While it is true that section 70.220(a) requires a mine operator 

to report any operational changes that affects the respirable dust sampling 

requirements, Consol is not charged with a violation of that standard. 

ORDER 

In view of the foregoing findings and conclusions, I find that MSHA 

has failed to establish a violation of the standard cited in the section 

104(a) Citation No. 861598, issued on September 24, 1981, and it IS 

VACATED and the civil penalty proposal filed against Consol in Docket No. 

WEVA 82-120 is DISMISSED. Further, Consol's Contest filed in Docket 

WEVA 82-30-R is sustained, but in view of my disposition of the civil 

penalty case that matter is terminated. 

~K4ras Administrative Law Judge 

Distribution: 

Janine C. Gismondi, Sidney Salkin, Esqs., U.S. Department of Labor, Office 

of the Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Robert Vukas, Esq., Consolidation Coal Company, Consol Plaza, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

1905 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

VIRGINIA POCAHONTAS COMPANY, 

Contestant 

Contest of Citations 

v. 

SECRETARY OF LABOR, 

Docket Nos. 

VA 79-131-R 

VA 79-137-R 

696067 

696089 

0C7 2 ·; i91Jl 

Nos. Date 

8/17/79 

8/17/79 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Virginia Pocahontas No. 2 Mine 

DECISION AFTER REMAND AND ORDER OF DISMISSAL 

Counsel for contestant filed on October 19, 1982, in the above-entitled 

proceeding a motion to dismiss the notices of contest with the understanding 

that the dismissal will not prejudice contestant's rights in any civil penalty proceeding arising from the same citations which were the subject of 

the notices of contest, Section 2700.22 of the Commission's procedural 

rules, 29 C.F.R. § 2700.22, provides that the failure to file a notice of 

contest of a citation "* * * shall not preclude the operator from challenging the citation in a penalty proceeding." An operator who has filed a 

notice of contest and who has subsequently asked that it be dismissed should 

be no less entitled to challenge the citation in a civil penalty proceeding 

than one who has not filed such a notice at all. Therefore, I conclude 

that dismissal of the notices of contest in this proceeding will be without 

prejudice to contestant's rights in any civil penalty proceeding which may 

develop at some future time. 

In an order issued May 20, 1982, the Commission remanded these cases to 

me for further proceedings consistent with the decision of the United States 

Court of Appeals for the District of Columbia Circuit in United Mine Workers 

of America v. Federal Mine Safety and Health Review Connnission. 671 F.2d 615 

(1982), cert. denied, No. 82-33, October 12, 1982. My original decision (2 

FMSHRC 2586 (1980)) in this proceeding vacated Citation Nos. 696067 and 

696089 because they had the effect of requiring contestant to pay a miners' 

representative for accompanying an inspector during a "spot" inspection. 

My decision had followed the precedent enunciated by the Commission's decisions in The Helen Mining Co., 1 FMSHRC 1796 (1979), and Kentland-Elkhorn 

Coal .• 1 FMSHRC 1833 (1979), in which the Connnission had held that 

operators do not have to pay miners' representatives for accompanying inspectors who are engaged in making "spot" inspections. The Connnission's decisions in The Helen Mining and Kentland-Elkhorn cases were reversed by the 

court in the UMWA case, supra. 

In the circumstances described above) it appears to me that granting 

the motion to dismiss without reinstating the citations might leave some 

doubt as to the prospective status of the citations. Inasmuch as my original decision had granted the notices of contest at the same time as the 

1906 
citations were vacated, it is possible that granting the motion to dismiss 

would have the implied effect of reinstating the citations, but the procedure which will remove all doubt as to the present validity of the citations 

under the court's UMWA decision, supra, is for me specifically to reinstate 

the citations. Therefore, my order will hereinafter reinstate the citations 

as well as grant the motion to dismiss the notices of contest. 

WHEREFORE, it is ordered: 

(A) Paragraph (B) of the order accompanying my decision issued 

September 11, 1980, in this proceeding (2 FMSHRC at 2588) is rescinded and 

Citation Nos. 696067 and 696089 dated August 17, 1979, are reinstated. 

(B) The motion to dismiss filed by contestant on October 19, 1982, is 

granted. 

(C) The notices of contest filed in Docket Nos. VA 79-131-R and 

VA 79-137-R are dismissed and this proceeding is terminated. 

Distribution: 

l!!'/!:6.1 te1fef t.i/hAdministrative Law Judge 

(Phone: 703-756-6225) 

Marshall S. Peace, Esq., Attorney for Virginia Pocahontas Company, 

Island Creek Coal Company, 2355 Harrodsburg Road, P.O. Box 11430, 

Lexington, KY 40575 (Certified Mail) 

Leo J. McGinn, Esq., Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

S & P COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. VA 81-63 

Assessment Control 

No. 44-04460-03014 

No. 1 Mine 

AND ORDER 

l 

Counsel for the Secretary of Labor filed on October 22, 1982, a motion 

for approval of settlement. Under the settlement agreement, respondent would 

pay a reduced penalty of $5 instead of the penalty of $38 proposed by the 

Assessment Office for the single violation of 30 C.F.R. § 70.208(a) which is 

involved in this proceeding. 

The motion for approval of settlement gives the following reaso0 for reducing the penalty proposed by the Assessment Office (p. 2): 

Citation No. 9924829 was issued when MSHA records indicated that 

the operator had failed to submit a valid respirable dust sample. A 

civil penalty of $38 was proposed, but it is believed that it should 

be reduced to $5.00 as the operator's negligence is very low. It was 

discovered that the operator had submitted a respirable dust sample. 

However, in transmitting the sample the operator indicated the incorrect section number for the sample, resulting in an invalidation of 

the sample by MSHA's computer. As the sampling period had passed, 

the operator was unable to submit the necessary sample. While the 

operator was somewhat negligent in submitting the sample in an incorrect form, thus rendering it invalid, it is felt that the negligence involved was very low thus warranting the proposed reduction. 

In addition, the gravity of such a violation, essentially a bookkeeping one, is extremely low further justifying the proposed settlement. The good faith of the operator was normal. The operator 

is small, payment of the proposed penalty will have no effect on 

the operator's ability to remain in business. In the 24 month 

period prior to the issuance of this citation the operator had a 

history of 10 assessed violations, a good history. 

Respondent's answer to the show-cause order issued in this proceeding 

states as follows: 

The reason why we disagree with the violation is we sent in a 

dust sample on this section, but in filling out the dust card, we 

made a mistake on the number. Instead of 200-0, we put 200-2. 

1908 
This is only a small 1 section mine. The sample was voided. When 

a sample is voided, we are notified. Another sample is taken and 

sent in. We were never notified. I got M.S.H.A. office in Richlands, Va., to trace it to find out what happened. We were issued 

a violation by Richlands Office by direction of Computer. Therefore, we don't think we deserved this violation. 

In Co-Op Mining Co., 2 FMSHRC 3475 (1980), the Conn:nission reversed an 

administrative law judge's decision which had accepted a settlement agreement in circumstances very similar to those which exist in this. proceeding. 

In the Co-Op case, a respondent had submitted a respirable dust sample for 

an employee who did work for it but had not submitted a sample for a person 

who MSHA mistakenly thought worked for respondent. The Commission said that 

no violation of section 70.250(b) had occurred in that case. The Commission 

observed that the deterrent effect of paying penalties would not be advanced 

by having a penalty paid for a violation which had not occurred. 

Section 70.208(a) provides as follows: 

(a) Each operator shall take one valid respirable dust sample 

from each designated area on a production shift during each bimonthly 

period beginning with the bimonthly period of December 1, 1980. * * * 

The violation here involved was for the first bimonthly period referred to in 

section 70.208(a), that is, from December 1, 1980, to January 31, 1981. Both 

the motion for approval of settlement and respondent's answer to the showcause order agree that the respirable-dust sample was taken and submitted to 

MSHA for the bimonthly period beginning December 1, 1980. The provisions of 

section 70.208(a) were complied with when respondent took the respirable--dust 

sample and submitted it within the required sampling period. The only mistake, 

respondent made was in writing "200-2" on the dust card instead of "200-0". . 

Since MSHA's computer had been programmed to give respondent credit for submitting a sample for section 200-0, it naturally rejected a sample bearing 

the number "200-2". 

Inasmuch as the sample here involved appears to be the very first submittal required by section 70.208(a), it is understandable that respondent 

may have thought the proper designation to enter on the dust card was 11 200-2". 

Respondent's answer to the show-cause order notes that it is customary for it 

to be advised when MSHA voids a sample so that a new sample may be submitted, 

but respondent states that it was not advised of the fact that its sample had 

been voided by the computer. 

It is true that section 70.208(a) provides that "each operator shall take 

one valid respirable dust sample" [Emphasis supplied.]. It would be possible 

to argue that a dust sample is not "valid" unless it has been given the correct section number by the operator. If an operator were to persist in submitting its samples with an incorrect number on them for two or three bimonthly periods in succession, and such repeated mistakes were to prevent a 

determination from being made on a long-term basis as to whether respondent's 

miners were being exposed to an excessive concentration of respirable dust, 

then a finding might eventually have to be made that respondent was deliberately engaged in thwarting MSHA's enforcement of its respirable-dust program. 

1909 
In the factual situation which existed in this proceeding, however, it appears that respondent made a single mistake in submitting the first bimonthly 

sample required by section 70.208(a). In such circumstances, there is considerable merit to respondent's contention that it did not "deserve this violation." 

In Amherst Coal Co., 4 FMSHRC 1236 (1982), a case almost identical to 

this one, I held that no violation of the respirable-dust standards had occurred. In the Amherst case, I stated that respondent should not have to pay 

a civil penalty for having made a clerical error. In that proceeding, I cited 

Old Ben Coal Co., 2 FMSHRC 1187 (1980), as an example of a case in which an 

inspector made a clerical error in writing section 104(c)(l), instead of section 104(c)(2), on four different unwarrantable-failure orderso Yet, it was 

held in the Old Ben case that the inspector 1 s clerical error should not be 

considered as a reason for invalidating the orders in that proceeding because 

the inspector's mistake did not in any way prejudice Old Beno 

The facts in this case do not show that MSHA 1 s respirable-dust program is 

going to be adversely affected if respondent is absolved of the violation of 

section 70.208(a) alleged in Citation Noo 99248290 As the motion for approval 

of settlement notes, respondent has been assessed for only 10 violations during the 24-month period preceding the writing of Citation Noo 99248290 An 

operator with as favorable a history of previous violations as the respondent 

in this proceeding has is not likely deliberately to submit successive respirable dust samples with incorrect section numbers on themo Consequently, for 

the reasons given above, I find that no violation of section 70o208(a) occurred and that the petition for assessment of civil penalty should be 

dismissed. 

WHEREFORE, it is ordered: 

(A) Citation No. 9924829 dated February 12, 1981, was issued in error 

and is hereby vacated. 

(B) The Petition for Assessment of Civil Penalty filed June 17, 1981, 

in Docket No. VA 81-63 is dismissed. 

(C) The motion for approval of settlement filed on October 22, 1982, is 

denied. 

Distribution: 

~ e. r<i7eJ!AyRichard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

David T. Bush, Esq., Office of the Solicitor, U. S. Department of Labor, 

Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

S & P Coal Company, Attention: Gratho Stiltner, Co-Owner, Route 3, 

Box 10, Cedar Bluff, VA 24609 (Certified Mail) 

1910 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE OC12 a \982 FALLS CHURCH, VIRGINIA 22041 

ELMER HARRIS, 

Complainant 

v. 

McGINNIS COAL COMPANY, INC., 

Respondent 

CLARENCE JUSTICE, 

Complainant 

v, 

McGINNIS COAL COMPANY, INC., 

Respondent 

DECISION 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. KENT 82-7-D 

Mine No. 2 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. KENT 82-68-D 

Mine No. 2 

Appearances: Ransome C. Porter, Esq., Inez, Kentucky, for Complainants; 

Michael J. Schmitt, Esq., Porter, Schmitt, Preston & Walker, 

Paintsville, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to an order consolidating issues and providing for hearing 

issued June 17, 1982, a hearing in the above-entitled proceeding was held 

on August 24 through August 28, 1982, in Prestonsburg, Kentucky, under 

section 105(c)(3), 30 U.S.C. § 815(c)(3), of the Federal Mine Safety and 

Health Act of 1977. 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced below (Tr. 1325-1357): 

This proceeding involves two complaints 'of discharge, dis..:. 

crimination, or interference filed by Elmer Harris and Clarence 

Justice against McGinnis Coal Company, in Docket Nos. KENT 82-7-D 

and KENT 82-68-D, respectively, pursuant to section 105(c)(3) 

of the Federal Mine Safety and Health Act of 1977. 

Both complainants filed a joint complaint with the Mine 

Safety and Health Administration on July 29, 1981, alleging 

that they were discharged on May 7, 1981, by respondent in violation of section 105(c)(l) of the Act, because they had made 

safety complaints to respondent about the handling of explosives 

and had refused to operate an end loader with bad brakes on a 

mountain road. The complaints were filed with the Commission 

1911 
under section 105(c)(3) of the Act after complainants were advised by MSHA that its investigation had shown that no violation of section 105(c)(l) of the Act had occurred. 

I shall make some findings of fact on which my decision 

will be based. These facts will be set forth in enumerated 

paragraphs. 

1. McGinnis Coal Company, respondent in this pro 

was incorporated in January 1980. Its business office is in 

Beauty, Kentucky, and its president is Ted McGinnis who testified in this Its first business consisted of operating a small coal mine, known as the No. 1 Mine, which was 

located in the Pevler complex owned by Island Creek Coal Company. McGinnis leased his coal from Island Creek and his contract with Island Creek required him to abide by the terms of 

the 1978 and 1981 Agreements between the United Mine 

Workers of America and the coal operators. McGinnis was required to hire miners who were members of UMWA. 

2. The No, 1 Mine had already been prepared Island 

Creek for coal production before McGinnis began operating it 

and McGinnis produced coal from the Coalburg coal seam on two 

production shifts, employing a total of about 15 miners on 

both shifts combined. The coal produced by McGinnis was high 

in sulphur content and waste materials which made the coal difficult for Island Creek to process in its plant. Therefore, 

Island Creek asked McGinnis to reduce the output of coal from 

his No. 1 Mine. He first laid off the second shift. During 

the latter part of 1980, Island Creek ceased to accept coal 

for about 2 weeks. When Island Creek resumed accepting coal, 

it reduced the amount of coal it would accept to such an extent 

that McGinnis could work his day-shift crew of five miners for 

half a day and produce in less than a 5-day week all the coal 

that Island Creek would accept. 

3. Island Creek advised McGinnis he could open a No. 2 

Mine at a different location and deliver coal produced from the 

No. 2 Mine to Island Creek's Gund Mine, instead of to the Pevle 

complex, but McGinnis was told that Island Creek would not prepare the mine for him, and that he would be required to obtain 

the necessary Federal and Kentucky authorizations and construct 

a road and prepare a bench on the side of a mountain to serve 

as a means of access to the No. 2 Mine. McGinnis first offered 

to let the United Mine Workers of America miners at the No. 1 

Mine work half a week at the No. 1 Mine and the other half at 

the site of the No. 2 Mine, but only three of the 

miners wanted to do that kind of work. McGinnis did not have 

the heavy equipment, such as a dozer and a loader, required for 

preparing the No. 2 Mine site. Consequently, all the three 

1912 
miners were able to do initially was cut down trees and brush 

to commence the mine site. worked up to the 

commencement of the UMWA general strike which began on March 28, 

1981, and ended on June 7, 1981, when UMWA and the coal operators entered into a new contract which is Exhibit "P" in this 

proceeding. 

4. About the time the strike , McGinnis realized that 

he would not be able to prepare the No. 2 Mine site unless he 

could hire someone who possessed heavy equipment and ability to 

perform surface construction work in mountainous terrain, 

McGinnis first engaged an independent contractor named Charles 

Moore, who purported to have the to do but 

Moore had equipment 

and did not enough time in to make 

progress. Moore became dissatisfied with the arrangement and 

withdrew his equipment and personnel, but during the last week 

that Moore worked, Moore's "ace" dozer operator, Clyde Fitch, Jr., 

was sent to the site and Fitch was such a skillful operator of 

a dozer that he accomplished more in 1 day than the other dozer 

operators had done in 2 weeks, 

5. After Moore had withdrawn his equipment, Fitch made an 

offer to McGinnis to the effect that he would prepare the mine 

site if he (Fitch) could rent heavy equipment from Moore, or anyone else. Fitch was unable to obtain the necessary and 

made a counterproposal to McGinnis to the effect that he would 

work for $700.00 per 60-hour week if McGinnis would furnish all 

equipment and supplies. McGinnis eventually accepted Fitch's 

of fer after he had determined that he could obtain a D-8 Caterpillar dozer, an end loader, and a Joy Air Track drill from 

Island Creek Coal Company. Fitch knew that he could personally 

operate the dozer and end loader as much and as of ten as would 

be required, but a second person was needed to operate the drill, 

Fitch knew that one of the complainants in this proceeding, 

Clarence Justice, could operate· a drill. Therefore, Fitch obtained McGinnis's permission to offer Justice $600.00 per 60-hour 

week, and Justice was asked to the drill for $600.00, 

but very shortly after Fitch had offered Justice $600.00 per 

week, Fitch decided it would improve his relationship with Justice 

if they were both paid $650.00 per 60-hour week. In essence, 

Fitch proposed that his $700.00 per-week payment would be reduced 

from $700.00 to $650.00 and that Justice's $600.00 payment would be increased to $650.00. 

6. McGinnis and Fitch also realized that they would need a 

laborer to cut timber, haul supplies, and do other odd jobs. 

McGinnis to pay such a perso~ $6.00 per hour but left the 

selection of the third person to Fitch. Justice that 

the other complainant in this proceeding, Elmer Harris, be given 

the job as a laborer. Harris happened to be Fitch's cousin, but 

1913 
Harris lives about a quarter mile from Justice, and it was 

Justice's suggestion that Harris be offered the laborer's job. 

7. Both Justice and Harris claim that they thought they 

were being hired by McGinnis Coal Company not only for preparing 

the No. 2 Mine site, but also for prospective work in McGinnis 1 

No. 2 Mine after they had finished getting the site prepared so 

that actual underground coal production could commence. Harris 

testified that he was in the process of building a house for 

Mary Prater, who works for a bank in Inez, Kentucky. Harris 

had a partner helping him, and it was understood that the partner would finish the house. Harris was not actually working on 

Mrs, Prater's house at the time he began working at the No. 2 

Mine site because he had just undergone an appendectomy and was 

recuperating from the operation. At Fitch's suggestion, McGinnis 

told Harris on May 7, 1981, that Harris was not needed any longer 

at the mine site unless McGinnis needed Harris to help with installation of some drainage tiles at a future time. After Harris 

stopped working at the No. 2 Mine, he returned to working on 

Mrs. Prateris house and that work was completed. Harris' partner had not finished the house in the interim between the time 

that Harris began working at the No. 2 ~fine site in March of 1981 

and the time Harris was relieved from work there by McGinnis on 

May 7, 1981. 

8. Harris also claims that he obtained an oral promise 

from McGinnis on Monday, the first day he reported for work at 

the No. 2 Mine, to the effect that McGinnis would employ Harris, 

possibly as an electrician, in the No. 2 Mine after it began 

producing coal. Both Fitch and McGinnis deny that any discussion 

took place involving employment of Harris as a coal-production 

worker at the No. 2 Mine. 

9. As to the understanding Harris had at the time he left 

the No. 2 Mine site, Harris claims that McGinnis told him to take 

a week off until some drains had been put in, and Harris thought 

he would be called back to work when the No. 2 Mine was ready to 

produce coal. McGinnis testified he installed the drain tile himself and never did have any more work for Harris to do. Harris 

never did go back personally and ask McGinnis for a job, but on 

one occasion, Harris did go to McGinnis' office at Beauty, Kentucky, and ask McGinnis' bookkeeper, Homer Wright, to tell 

McGinnis that Harris wanted to talk to McGinnis about a job. 

The bookkeeper left a note for McGinnis to call Harris, but 

McGinnis says there was no phone number on the note and that he 

did not return the call because he did not take the time required 

to see if Harris had a phone number listed in the phone book. 

10. Justice claims, just as Harris does, that he understood 

that he would be used as an underground worker in the No. 2 Mine 

1914 
and that he specifically asked McGinnis for a job as an operator 

of a roof-bolting machine. Both Fitch and McGinnis deny that 

Justice was ever promised a job as operator of a roof-bolting 

machine. Exhibit 7 in this proceeding is a list of the companies for which Justice worked from 1953 to 1973. Two auto 

service stations and a lumber company are listed among the employers, besides coal companies, and Justice did not work for 

any employer for more than 2 years before changing jobs. Justice 

also received the maximum benefits which the state of Kentucky 

pays when a miner has been found to be totally disabled from 

silicosis. Justice applied for, but failed to obtain, any benefits under the Federal program which awards payment for disability incurred from pneumoconiosis. 

11. Since Justice was laid off on May 19, 1981, while 

Harris was laid off on May 7, 1981, Justice was employed at the 

No. 2 Mine site for 12 calendar longer than Harris was. 

Justice testified that McGinnis told him on May 19, 1981, that 

it was too wet to work in the hollow fill. Justice said that 

they had often had to stop working when it was wet and that he 

expected to be called back to work when it became dry enough, 

but he says that since he was told it was too wet to work, it 

Justice also claims that Fitch brought his last check 

to Justice's home, and that Fitch told him that McGinnis would 

call him back to work, but that McGinnis did not intend-to call 

Harris back. 

12. McGinnis testified that he let Justice know that he 

was no longer needed after Fitch told McGinnis that no more 

drilling needed to be done and no more shooting with explosives 

was required. As to Justice's allegation that Fitch delivered 

Justice's last check to Justice's home, Fi~ch claims that Justice 

and he both picked up their checks in McGinnis' office in Beauty 

just as they had throughout the entire No. 2 Mine site operation, 

and that McGinnis made it clear"at that time that Justice's part 

of the work had been completed because McGinnis shook hands with 

Justice and thanked Justice for having done good work on getting 

the mine site ready for the underground mine to be opened. 

13. Justice returned to the No. 2 Mine on two occasions between May 19, Justice's last working day at the mine site, and 

July 29, 1981, when Justice and Harris filed a joint complaint 

with the Mine Safety and Health Administration which resulted in 

the filing of the complaints involved in this proceeding. Justice 

claims that McGinnis promised to call him back to work on each of 

those occasions after a further state of mine development had occurred. On each occasion, one or two other persons went to the 

mine with Justice and one of those persons, Cubert Spence, testified 

that he heard McGinnis tell Justice he would give Justice his job back 

1915 
in about 8 days after they had completed the second line of breaks 

at the No. 2 Mine. Another witness, Darvin Morrison, testified 

that he was help erect a chain link fence at Justice's home 

when Fitch came and told Justice that McGinnis was going to rehire Justice, but not Harris. Edward Moore was with Justice on 

one of Justice's trips to the mine and Moore testified that he 

heard McGinnis tell Justice that Justice would be called back to 

work in a couple of weeks, 

14. McGinnis testified that Justice did come to the No. 2 

Mine after it had begun to produce coal, but McGinnis claims that 

Justice did not ask when he would be rehired and that Justice 

merely asked in general terms how the mine was progressing. In 

fact, McGinnis said that when Justice came to the mine the last 

time, Justice looked at the unusually high roof from which draw 

rock had fallen and remarked that he did not believe he would 

like to work in that mine and that he could earn whatever he 

needed from selling scrap metal, Moreover, McGinnis stated that 

if he had ever been aware that Harris or Justice had agreed to 

work in preparing the No. 2 Mine site on the assumption that they 

would be a job in the No. 2 Mine after it was opened, that 

he would have explained that he could not give them jobs in the 

mine and that he would have made that clear to them even if both 

of them had stopped working upon finding that to be true. 

15. McGinnis testified further that hundreds of experienced 

miners have been laid off within the last 2 years, and that he 

has as many as 15 to 20 skilled miners per day come to the mine 

seeking employment. McGinnis stated that he has a practice of 

telling applicants that he will consider them along with all 

other applicants for jobs when and if he has an opening. At that 

time, he compares all applicants' background experience and inquires about their performance from past employers. McGinnis 

stated that he did not know for several weeks after Harris began 

working at the No. 2 Mine site that Harris had served some time 

in a penitentiary for conviction of interstate transportation of 

a stolen motor vehicle, and that that would have been a factor to 

be considered, along with others, if he had ever had a reason to 

consider Harris for a job in the No. 2 Mine after it was opened. 

McGinnis said he did not know that Harris had taken over 1200 

hours of electrical training at the Pikeville Mayo Technical 

School. Harris conceded, despite his electrical training, that 

he had never held a job as a mine electrician and that he would 

have had to have taken additional training to have qualified for 

such a position. 

16. McGinnis did not know when Justice worked at the No. 2 

Mine site that Justice had a history,of having applied for and 

been denied benefits under the Federal pneumoconiosis program and 

1916 
did not know that Justice had actually received the maximum 

benefits available under the State program for total disability 

as a result of silicosis. McGinnis said Justice's health problem would have been a strong deterrent to McGinnis' hiring him 

for an underground job because McGinnis' exposure to payments 

for black lung benefits would have been subject to an increase. 

17. McGinnis also claimed that the UMWA miners who had 

worked at his No. 1 Mine were placed on a panel which, under 

union procedures, required him to offer all of them jobs before 

he could have offered either Harris or Justice a job. McGinnis 

had 17 UMWA workers at the No. 1 Mine, and all but two of them 

elected to be on the panel. McGinnis did need to hire a continuous-mining machine operator and a shuttle car operator on 

or about July 27, 1981. He was fortunate in obtaining experienced miners to fill both positions. had been laid off 

at another mine and had been equipment identical to 

that used by McGinnis for Island Creek's operations. Neither 

Harris nor Justice could have been considered for either job 

because neither was qualified to fill either position, even if 

McGinnis had known either of them was an applicant for such 

employment. 

18. McGinnis maintained throughout the hearing that Fitch, 

Justice, and Harris had been hired as independent contractors 

to prepare the No. 2 Mine site. Although McGinnis personally 

paid each man for all the work he did, McGinnis wrote their 

checks from a general account and did not deduct any amount 

for income taxes, Social Security, or any other purpose. At 

the end of the year, each man was sent a Form 1099-NEC, as 

shown by Exhibit N in this proceeding. The letters "NEC" mean 

"Non-Employee Compensation." After Harris and Justice obtained 

a to represent them in this proceeding, each wrote a 

letter upon advice of counsel McGinnis to send him a 

W-2 Form instead of the Form 1099-NEC. Those letters are Exhibits 0 and 00 in this proceeding. Homer Wright is an accountant who works for McGinnis. He produced samples of checks 

written to actual employees of McGinnis Coal Company. Their 

checks are written on a payroll account, and those checks are 

accompanied by stubs showing deductions for income tax, Social 

Security, and other purposes. 

19. A copy of each check written to Harris was introduced 

as Exhibits A through F; a copy of each check written to Justice 

was introduced as Exhibits G through M; and a copy of each check 

written to Fitch was introduced as Exhibits S through FF. As 

previously indicated, Harris was paid through May 7, 1981, when 

he was laid off, and Justice was paid through May 19, 1981, when 

he was laii off. Fitch was paid through August 8, 1981, because 

1917 
all grading on the road and bench area of the mine was not completed until that time. Fitch also worked for Stafford Trucking 

Co1._;->any for 1 month after he had stopped working for McGinnis. 

During the month Fitch worked for Stafford, he drove a truck 

which was used in hauling McGinnis' coal to Island Creek's Gund 

Mine. Fitch's job as a truck driver was obtained on the basis 

of a recommendation made by McGinnis. 

20. Harris claims that the reason he was not given a job in 

McGinnis' No. 2 underground mine after preparation of the site had 

been completed, was that he had complained about the lack of brakes 

on the end loader, and had declined to operate the end loader for 

that reason after being asked by McGinnis to operate it. Justice 

claims that he was not hired because he also complained about the 

lack of brakes on the loader. Justice admits that he did operate 

the end loader on level ground for 2 days, but he says he declined 

to operate it on a hillside or steep grade. Justice additionally 

stated that he offered to repair the brakes himself, but that the 

mechanic, Morris Booth, told him it would take too much time to 

do so, particularly since Justice wanted to move a slack adjuster 

and Booth said they sometimes had to be cut off with a torch. 

21. Harris presented five pictures which he had personally taken of the trailer in which the explosives were stored 

for use at the No. 2 Mine site. McGinnis did not realize that 

the pictures had been taken, and had not seen them until they 

were introduced as Exhibits 1 through 5 at the hearing. McGinnis 

and Fitch both agreed that the explosives, consisting of ammonite, 

permacord, detonators, and blasting powder, had been stored in 

a single trailer on an aluminum floor. Such storage of explosives 

is at least in violation of 30 C.F.R. §§ 77.1301(b), 77.130l(c)(6), 

and 77.130l(f). Both McGinnis and Fitch denied that either Harris 

or Justice had ever mentioned to them that•the explosives were 

being stored in an unsafe manner. Harris and Justice requested 

that a special inspection of the explosives trailer be made by 

MSHA, pursuant to section 103(g)(l) of the Act, but that request 

was not made until July 29, 1981, the same day that Harris and 

Justice filed their joint discrimination complaint with MSHA. 

They claimed that they had tried to make complaints about the 

poor brakes on the loader and the improper storage of explosives 

while they were working at the No. 2 Mine site, but that they 

never could get in touch with the appropriate MSHA office. 

22. MSHA did inspect the No. 2 Mine site on July 30, 1981, 

the day after Harris and Justice had made the request for a 

special investigation, but the inspectors found no violations 

because, by that time, only ammonite was stored in the trailer, 

and the inspector said that storage.of ammonite, by itself, in 

a trailer having an aluminum floor was not in violation of the 

mandatory health or safety standards (Exhibit PP). 

1918 
23. McGinnis claims that Fitch was actually in charge of 

preparing the No. 2 Mine site and that Justice and Harris received all instructions and orders from Fitch, who knew the number of hours they worked. Although McGinnis found it necessary 

to explain the construction plans to Fitch, the actual construction work was performed by Fitch, who was acquainted with the 

required procedures for moving dirt and arranging it in accordance with the plan. 

24. Roger VanHoose, an operator of a continuous-mining 

machine at the No. 2 Mine, and Derek Merion, a roof bolter at 

the No. 2 Mine, testified that McGinnis operates the safest mine 

in which they have ever worked. They both stated that McGinnis 

readily considers, discusses, and shuts down production any time 

there is a problem about safety, and that it has never been necessary to invoke any kind of grievance procedures under the 

union contract in order to get McGinnis to carry out or perform 

or abide by safety regulations or maintain a safe mine. There 

was introduced as evidence in this proceeding as Exhibit RR, a 

list of results of inspections submitted to McGinnis by MSHA 

inspectors, and those reports show that inspections were made 

at McGinnis' No. 2 Mine on June 4, 1981, June 10, 1981, July 14, 

1981, July 30, 1981, and July 31, 1981, and at no time did the 

inspectors ever write citations for any violations at the 

McGinnis No. 2 Mine during those inspections. 

I believe that those are the primary findings of fact which 

need to be made in this proceeding. 

The primary issue to be considered is whether McGinnis Coal 

Company violated section 105(c)(l) of the Act when its president 

failed to give Harris and Justice jobs in McGinnis' No. 2 Mine 

after it was opened. 

Before the primary issue can be considered, however, a 

preliminary question must be resolved. Specifically, it must 

be determined whether Harris and Justice were employees of 

McGinnis Coal Company or merely independent contractors who were 

hired for a single construction project, upon the completion of 

which, both Harris and Justice would be considered to have fulfilled the purpose for which their services had been sought in 

the first place. In 30 C.F.R. § 45.2(c), an independent contractor is defined as "any person, partnership, corporation, 

subsidiary of a corporation, firm, association or other organization that contracts to perform services or construction at a 

mine." 

Harris, Justice, and Fitch are persons who agreed to perform services and construction at the No. 2 Mine site. Therefore, they come within the definition set forth in section 45.2(c). 
Part 45 was promulgated for the purpose of enabling MSHA to cite 

independent contractors for violations they commit at mines and 

Part 45 became effective on July 31, 1980, and was in effect when 

Harris, Justice and Fitch agreed to prepare the No. 2 Mine site 

in March 1981. Since Harris, Justice, and Fitch come within the 

definition of an independent contractor, each of them could have 

been cited for storing explosives improperly and for operating an 

end loader with bad brakes. 

The Commission has held in such cases as Coal 

Company, 1 FMSHRC 347 (1979), Kaiser Steel Corporation, FMSHRC 

343 (1979), Monterey Coal Company, 1 FMSHRC 1781 (1979), Old Ben 

Coal Company, 1 FMSHRC 1480 (1979), and Republic Steel Corporation, 1 FMSHRC 5 (1979), that MSHA may cite operators for violations committed by independent contractors. Therefore, even if 

the unsafe brakes and improper storage of explosives could be 

attributed to Harris, Justice, and Fitch, McGinnis Coal Company 

may also be cited for those same violations. Courts have also 

held that operators may be cited for violations committed by independent contractors and their employees. (Bituminous Coal 

Operators' Association v. 547 F.2d 

240 (4th Cir. 1977); Association Bituminous Contractors, Inc. 

v. Cecil D. Andrus, 581 F.2d 853 (D.C. Cir. 1978); and Cyprus 

Industrial Minerals Company v. FMSHRC and Secretary of Labor, 

664 F.2d 1116 (9th Cir. 1981). 

The Commission held in the Old Ben case, supra, that it 

would not approve MSHA's citing of an operator for an independent contractor's violation if MSHA did so purely for administrative convenience, and in Phillips Uranium Corp., 4 FMSHRC 549 

(1982), the Commission declined to uphold MSHA's citing of an 

operator for the independent contractor's violation. Among the 

reasons for the Commission's refusal was its belief that the 

health and safety purposes of the Act would best be served by 

citing the independent contractor who is responsible for the violations of its own employees. Also, the Commission believed 

that large independent contractors, like the one involved in 

Phillips Uranium, are in the best position to eliminate the 

hazards. Moreover, the Commission majority said that citing 

the operator for the independent contractor's violation caused 

the operator to be charged in subsequent civil penalty cases 

with a history of previous violations, for which the operator 

might be unfairly charged, just for MSHA's administrative convenience. 

In this proceeding, I believe that the operator, McGinnis, 

should be cited or held responsible for unsafe brakes, if any, 

on the end loader, because McGinnis- had agreed to obtain the 

equipment used at the mine site, and McGinnis had agreed to provide fuel and maintenance for the eq4ipment used. Likewise, 

1920 
McGinnis had agreed to obtain the explosives, and had purchased 

the explosives from the Independent Powder Company which supplied the trailer in which the explosives were stored. Therefore, McGinnis Coal Company, or the operator, should have been 

cited for the explosive-storage violations which occurred. 

It has been shown above that McGinnis Coal Company was 

liable for the violations of the mandatory health and safety 

standards alleged by Harris and Justice, but the question still 

remaining to be decided is whether McGinnis Coal Company can be 

cited for a violation of section lOS(c)(l), when the person alleging the violation qualifies as an independent contractor 

under the definition of an independent contractor in section 45.2(c). Section lOS(c)(l), in pertinent part, reads as 

follows: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause 

discrimination t or otherwise interfere with 

the exercise of the statutory rights of any miner, 

representative of miners or applicant for employment 

in any coal or other mine subject to this Act because 

such miner, representative of miners or applicant for 

employment has filed or made a complaint under or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of the miners at the coal or other mine of an 

alleged danger or safety or health violation in a coal 

or other mine, * * * or because 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. 

Section 3(f) of the Act defines a "person" as: "any 

individual, partnership, assoc~ation, corporation, firm, subsidiary of a corporation, or other organization," and section 

3(g) defines a "miner" as: "any individual working in a coal 

or other mine." McGinnis Coal Company is a person as that term 

is used in section lOS(c)(l), and Justice, Harris, and Fitch 

were miners as the term "miner" is used in section lOS(c)(l). 

Therefore, regardless of whether McGinnis hired Harris, Justice, 

and Fitch as independent contractors, those independent contractors were also miners within the meaning of section lOS(c) 

(1), and if McGinnis Coal Company declined to hire Harris and 

Justice because they made safety complaints, or disengaged them 

as independent contractors before their services as independent 

contractors had been completed, because they made safety complaints, McGinnis Coal Company viclated section lOS(c)(l) in so 

doing. 

1921 
The Commission, in Pasula v. Consolidation Coal Company, 2 

FMSHRC 2786 (1980), gave its rationale as to what must be shown 

by a complainant to establish a violation of section lOS(c)(l). 

The Fasula decision was reversed in Consolidation Coal Company v. 

Marshall, 663 F.2d 1211 (3d Cir. 1982), but the Commission has 

indicated in Northern Coal Company, 4 FMSHRC 126 (1982), and in 

Phelps Dodge Corporation, 3 FMSHRC 2508 (1981), that its Pasula 

rationale was not changed by the court's reversal which was 

based on the court's belief that the Commission had improperly 

used certain evidentiary facts. Therefore, the Pasula test is 

still applicable law, and according to Pasula (2 FMSHRC 2799-

2800): 

* * * the complainant has established a prima facie 

case of a violation of section lOS(c)(l) if a preponderance of the evidence proves (1) that he engaged in 

a protected activity, and (2) that the adverse action 

was motivated in any part by the protected activity. 

On these issues, the complainant must bear the ultimate 

burden of persuasion. The employer may affirmatively 

defend, however, by proving by a preponderance of all 

the evidence that, although part of his motive was unlawful, (1) he was also motivated by the miner's unprotected activities, and (2) that he would have taken 

adverse action against the miner in any event for the 

unprotected activities alone. On these issues, the 

employer must bear the ultimate burden of persuasion. 

It is not sufficient for the employer to show that the 

miner deserved to have been fired for engaging in the 

unprotected activity; if the unprotected conduct did 

not originally concern the employer enough to have resulted in the same adverse action, we will not consider 

it. The employer must show that he did in fact consider the employee deserving of discipline for engaging in the unprotected activLty alone and that he would 

have disciplined him in any event. [Emphasis is 

integral part of quotation.] 

I believe that the evidence shows that Justice and Harris 

engaged in a protected activity. Both of them claimed that the 

brakes were defective on the end loader. Fitch, who was the 

primary equipment operator, said there was nothing whatsoever 

wrong with the loader's brakes, but McGinnis, who also operated 

the loader at times, candidly stated that while he had no diffi-

~ulty in operating the loader, even on a grade, he would have to 

admit that the brakes were not as effective as they might have 

been. Justice is a mechanic, and his testimony about volunteering 

to move the slack adjuster sounds v~ry much like somethi.ng that 

might have occurred. McGinnis' mechanic refused to let Justice 

perform that work because he felt it would take excessive time to 

1922 
do so. While Fitch claimed that a loader without brakes could 

not be operated at all, his efforts to explain why that was so 

were unconvincing, and McGinnis' effort to explain what Fitch was 

trying to say increased my belief that a loader can be 

with poor brakes if an experienced operator really wants to 

his employer by doing so. 

I believe that Justice, rather than Harris, was the person 

who complained about the loader's brakes, because Harris had no 

experience at all in operating heavy equipment, whereas Justice, 

on occasion, did operate heavy equipment and, for 2 days, did 

run the loader on level ground. 

On the other hand, I believe that Harris was the person who 

complained about the storage of explosives. Justice was 

quite knowledgeable in use of explosives, and Justice prepared 

the shots or Harris and McGinnis in preparing the shots. 

Still, it was Harris who most often obtained explosives from the 

trailer and brought them to the holes for use in actual 

operations. If Harris had not been concerned about the unsafe 

storage methods, he would hardly have had any reason to make five 

photographs of the trailer, particularly since the pictures were made before Harris was told that his services were no 

longer needed 

Fitch and McGinnis both claim that neither Harris ·nor Justice 

ever complained about any unsafe condition, but they both admitted 

that a lot of joking about explosives occurred. It may be that in 

the kidding that existed, both Fitch and McGinnis simply ignored 

the warnings which Harris and Justice expressed. McGinnis conceded that he was not careful in checking into the fact that 

neither Harris, Justice, Fitch, nor he himself was a licensed 

shot firer. Some of the evidence thus supports a finding that 

Harris and Justice in protected activities when they complained about unsafe brakes on the loader and improper storage 

and handling of 

The preponderance of the evidence, however, fails to show 

that when McGinnis told Harris and Justice their services were 

no longer needed, that he was motivated in letting them go by 

the fact that they had complained about unsafe brakes on the 

loader or improper storage of Although both Harris 

and Justice claim that they were let go with the understanding 

that they would be recalled to work when the No. 2 Mine began 

to produce coal, they failed to show that the work for which 

they had been hired remained uncompleted at the time they were 

laid off. 

1923 
The work which Harris had been performing consisted of getting explosives out of the truck, taking it to the holes drilled 

by Justice, and helping in filling the holes and in firing shots. 

Harris also greased equipment and obtained supplies, such as 

fuel, for the equipment. Justice conceded that most of his time 

was used in drilling holes and preparing shots •. There was no 

dispute by Harris or Justice about the fact that no drilling or 

shooting on the surface needed to be done at the time McGinnis 

let them go. The only work to which they could have been recalled would have been to a position as an underground miner in 

the No. 2 Mine after it was opened, Harris was unable to show 

that he was qualified to do a job in the mine without 

taking additional training as an electrician, and Justice cou'_d 

not have qualified for a roof bolter without taking some trainIn short, Justice and Harris were unable to show that 

McGinnis had any further need for their services at the time 

they were told that no work remained for them to do. Moreover, 

they were unable to show that all dozer work had been completed 

at the time they left. Consequently, no finding can be made 

that McGinnis discriminated against them by continuing to pay 

Fitch for operating the dozer for several weeks after they had 

left. 

Assuming that another person reading the testimony in this 

proceeding might disagree with my finding that Harris and Justice 

failed to satisfy the second step of the Pasula test by showing 

that their dismissal was motivated by their complained 

about unsafe brakes and improper storage of explosives, I shall 

now examine the evidence to determine whether McGinnis would 

have taken the adverse action of dismissal, or refusal to rehire, 

in any event because of Harris' and Justice's having engaged in 

unprotected activities. 

In the Commission's Phelps Dodge decision, supra, the Commission stated (3 FMSHRC at 2516): 

* * * Once it appears that a proffered business justification is not plainly incredible or implausible, a 

finding of pretext is inappropriate. We and our judges 

should not substitute for the operator's business judgment our views on "good" business practice or on whether 

a particular adverse action was "just" or "wise". i< * * 

The proper focus, pursuant to Pasula, is on whether a 

credible justification figured into motivation and, if 

it did, whether it would have led to the adverse action 

apart from the miner's protected activities. If a 

proffered justification survives pretext analysis and 

meets the first part of the Fasula affirmative defense 

test, then a examination of its substantiality 

192 11 
becomes appropriate. The question, however, is not 

whether such justification comports with the judge's 

or our sense of fairness or enlightened business 

practice. Rather, the narrow statutory question is 

whether the reason was enough to have legitimately 

moved that operator to have disciplined that miner. 

McGinnis provided several reasons for his failure to rehire 

Harris and Justice over the experienced Ul'TI~A miners from his No. 1 

Mine. 

(1) There is no doubt but that McGinnis was required by 

Article XVII of the UMWA Coal Agreements of 1978 and 1981 

(Exhs. P and R) to fill at the No. 2 Mine taking miners 

from the panel o miners formed when McGinnis ceased to operate a 

second shift at the No. 1 Mine. There was an enlargement of UMWA 

miners with seniority rights for transfer to the No. 2 Mine when 

McGinnis closed the No. 1 Mine entirely before opening the No. 2 

Mine. 

(2) The openings at the No. 2 Mine not filled by 

transfer of U11'~.JA miners from the No. 1 abandoned Mine were the 

positions of an operator of a continuous-mining machine and an 

operator of a shuttle car, and neither Harris nor Justice was 

qualified to fill either of those positions. 

(3) There was never a showing Harris or Justice that 

McGinnis knew that they wanted jobs as underground miners. 

Neither of them actually alleged that they were qualified to 

fill even the jobs claim to have discussed, that is, roof 

bolter as to Justice, and electrician as to Harris. 

(4) There is little doubt but that Harris and Justice 

could have gone to school and could have become qualified for 

some sort of underground miner's job, but neither of them 

specifically discussed with McGinnis the actual schooling they 

would need, and neither got McGinnis' approval that he would 

undertake to hire either of them for a specific job if they 

had arranged to obtain the necessary training. While it is 

true that McGinnis may inadvertently have misled them by saying 

that he would consider them when he had an opening, McGinnis 

claims he tells all applicants that and does consider all applicants in light of their qualifications when such openings do 

occur. 

If Harris and Justice did work at clearing the site for 

the No. 2 ~ine solely because they thought they would be hired 

for a position at the No. 2 Mine wh~n it was opened, and even 

if McGinnis deliberately led them to think that they would get 

1925 
positions in the underground mine, McGinnis' failure to hire 

them as underground miners after the site was cleared was not 

a violation of section lOS(c)(l), inasmuch as McGinnis did not 

refuse to hire them as underground miners because of safety 

complaints. 

One reason for making the foregoing conclusion is that 

McGinnis does not use end loaders underground and complaints 

about brakes on surface equipment would not have been an overriding consideration when Harris' and Justice's lack of qualification is examined in light of ~cGinnis' obligation to hire 

UMWA miners on the panel from the No. 1 Mine and the highly experienced unemployed miners otherwise available. The same consideration would also apply to complaints about improper storage 

of explosives, because McGinnis did not need explosives to operate his No. 2 underground mine since the coal was produced by 

a continuous-mining machine which does not rely upon explosives 

for extracting coal. That McGinnis did not need explosives 

after the site had been cleared for opening the No. 2 Mine is 

indicated in Finding No. 22, supra, where it is noted that before McGinnis began operating the No. 2 ~line, he had removed 

from the surface area of the mine all explosives except some 

ammonite which, when stored by itself, was stated by an HSHA 

inspector to be nonhazardous. 

The foregoing examination shows that McGinnis' letting 

Harris and Justice go and his failure to rehire them as underground miners, were decisions based on business justifications, 

which were "not plainly incredible or implausible". I believe 

that the preponderance of the evidence shows that McGinnis 

would have taken the actions he did take as to Harris and Justice 

for the reasons he gave, regardless of whether they had complained 

about unsafe brakes on the loader or improper storage of explosives. 

WHEREFORE, it is ordered: 

The complaints filed by Elmer Harris and Clarence Justice, 

in Docket Nos. KENT 82-7-D and KENT 82-68-D, respectively, are. 

denied. 

~ c.rifi#:r 

Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

1926 
Distribution: 

Ransome C. Porter, Esq., Attorney for Elmer Harris and Clarence 

Justice, P. 0. Box 507, Inez, KY 41224 (Certified Mail) 

Michael J. Schmitt, Esq., Attorney for McGinnis Coal Co., Wells, 

Porter, Schmitt, Preston & Walker, P. O. Box 1179, Paintsville, 

KY 41240-5179 (Certified Mail) 

Mr. Elmer Harris, Route 3, Box 74A, Job, KY 41225 (Certified Mail) 

Mr. Ted McGinnis, Box 301, Warfield, KY 41267-0301 (Certified Hail:: 

Mr. Clarence Justice, Box 72, Job, KY 41225 (Certified Mail) 

1927 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONSOLIDATION COAL COMPANY, 

Contestant 

SECRETARY OF LABOR, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DECISION 

Civil Penalty Proceeding 

Docket No. WEVA 82-18 

AC No. 46-01867-03088V 

Contest of Citation 

Docket No. WEVA 81-552-R 

Citation No. 856134 

Dated: July 20, 1981 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner and Respondent 

Before: 

Jerry F. Palmer, Esq., Consolidation Coal Company, for Respondent 

and Contestant 

Judge Fauver 

These proceedings involve the same citation issued under the Federal 

11ine Safety and Health Act of 1977, 30 U.S.C. § 801, ~seq. The 

Secretary seeks a civil penalty for a violation of a mandatory safety 

standard as alleged in the citation. The company seeks to have the 

citation reviewed and vacated. 

The cases were consolidated and heard at Morgantown, West Virginia. 

Having considered the contentions of the parties and the record as a whole, 

I find that the preponderance of the reliable, probative, and substantial evidence 

establishes the following: 

1928 
FINDINGS OF FACT 

1. At all pertinent times Consolidation Coal Company ("Consol") 

operated an underground mine known as Blacksville No. 1 Xine, 

which produced coal for sale or use in or substantially affecting 

interstate commerce. 

2. On July 20, 981, MSHA Inspector William Ponceroff observed a roof 

condition that he found to be in violation of 30 CFR § 75.200, and, on the 

basis of this finding, issued Citation No. 956134; the citation was modified 

the next day to insert one word left out in the citationo The citation, 

as modified, reads: 

The mine roof was not adequately 

supported 35' inby the old 1 West loader 

switch. There were 3 dislodged roof 

bolts that fell out and these bolts were 

installed in a fall cavity. The distance 

between the last permanently installed 

roof bolts to a arch located inby 

measured 9'3" and 10'4"" The width of 

this area measured 13 1 10 11 o The height 

of this cavity was approximately 15 1 

high. There were loose pieces of rock 

in this area and the roof was broken. 

This area was no~ supported between the 

bolts and arch. Motormen travel through 

this area to switch emply mine cars. The 

condition was reported to Bill Galeota, 

the day shift foreman, by Glen Clutter on 

7/10/81. This condition should have been 

reported in the preshift examination book, 

and roof bolts should have been installed. 

Neither action was taken. 

3. The facts alleged in the citation were proved by a preponderance 

of the evidence. Some of the roof bolts had been dislodged, leaving the 

roof unsupported for about 9 feet, 3 inches on one side and 10 feet, 4 

inches on another side. There were loose pieces of roof hanging and some 

had already fallen. Miners normally traveled under this area of the roof. 

The cited area was in a track haulageway where empty cars were switched 

off by motormen to a rotary dump. The motormen did not have canopies 

on their vehicles. 

4. The roof condition was hazardous, and could significantly and 

substantially contribute to a mine hazard. 

1928 
5. The roof condition was readily observable and had existed for 

a substantial period before the inspection on July 20, 981. Mine management 

was negligent in not detecting and correcting the hazardous roof condition 

before the inspection. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction over the parties and subject matter 

of these proceedings. 

2. Consol violated 30 CFR § 75.200 on July 20, 1981, as alleged 

in Citation No. 856134, modified on July 21, 1981. The facts showed an 

unwarrantable failure to comply with the safety standards of this section, 

specif the sentence: "The roof and ribs of all active underground 

roadway, travelways, and working places shall be supported or otherwise 

controlled adequately to protect persons from falls of the roof or ribs." 

3. Based upon the statutory criteria for assessing a civil penalty 

for a safety violation, Consol is assessed a penalty of $1,500 for the 

above violation. 

Proposed findings of fact or conclusions of law inconsistent with the 

above are ected. 

ORDER 

WHEREFORE IT IS ORDERED: 

1. Citation No. 856134, issued on July 20, 1981, and modified on 

July 21, 1981, is, as modified, AFFIRMED. 

2. Consol shall pay to the Secretary of Labor the above-assessed civil 

penalty of $1,500 within 30 days from the date of this decision. 

/t)~~v~ WILLIAM FAUVER)JUDGE 

Distribution Certified Mail: 

Jerry F. Palmer, Esq., Consolidation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 

Robert Cohen, Esq., US Derartment of Labor, Office of the Solicitor, 

4015 Wilson Boulevard, Ar ington, VA 22203 

19aO 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OC129 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)., 

Petitioner 

v. 

A. B. WHITLEY, INC., 

Respondent 

A. B. WHITLEY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, et al 

Respondent 

DECISION 

Docket No: SE 81-26-M 

A.O. No: 00212-05001-IP 9 

Lee Creek Mine 

Notice of Contest 

Docket No: SE 81-11-RM 

Citation No. 109908; 11/18/80 

Lee Creek Mine 

Appearances: Ken S. Welsch, Esq., Office of the Solicitor, U.S. 

Department of Labor, Atlan·ta, Georgia for Petitioner 

James W. Stephens, Safety Associates, Inc., P.O. 

Box 4113, Charlotte, North Carolina for Respondent 

Before: Judge Moore 

The Respondent is accused of violating 30 C.F.R. 55.13-21 which 

provides: 

"Except where automatic shut-off valves are used, safety 

chains or other suitable locking devices shall be used at 

connections to machines of high pressure hose lines of 3/4" 

inside diameter or larger, and between high pressure hose 

lines of 3/4" inside diameter or larger, where a connection 

failure would create a hazard." 

It was admitted that the hose connection which lead to the citation 

issued in this case was between a high pressure hose line of a diameter 

3/411 or greater and a sand box or grit pot, and that there was no separate 

safety chain or other locking device used except the device which initially 

couples the two parts of the connector hose together. The purpose of 

the regulation is to prevent injuries that can occur and have occurred 

when high pressure hoses have parted. The whipping action of the hose is 

what creates the hazard. 

Petitioner exhibit 3 is a report prepared by Roy L. Jameson of the 

Department of the Interior's Denver Technical Support Center on December 

18, 1975. The title of the exhibit is "Report on Air Hose Couplings~ 

193.i 
Clamps and Restraining Devices. 11 

referred to on several occasions. 

The third paragraph in the report was 

It states: 

11 the whipping action of an unsecured or burst 

air hose or pipe has resulted in many severe injuries and 

uncounted and unrecorded near-miss accidents. Confined 

areas in underground mines causes this hazard to be particularly 

acute; the victj_m(s) often has few, if any, avenues of escape 

from the lashing and whipping action of an hose," 

It is the of the respondent and two of his witnesses that 

because of the above quoted paragraph the report is concerned with 

underground I ect that contention even though it is plain 

that the hazard could be greater in a confined area. The second accident 

described in E attached to petitioner's exhibit 3 describes an 

accident at "the Columbia Quarry and Mill, an open pit 

's exhibits 1 and 2 -are photographs of the of 

pressure hose coupling that Respondent was using at the time the citation 

was issued. Respondent's exhibit 2 shows the mechanism when it is 

disconnected and Respondent's exhibit 1 is a picture of the connected 

hose. The exhibit should be held with the red or orange p at the 

bottom. The at the bottom of the upper connector on ;s 

exhibit 2 is over the threads on the orange pipe and turned 

approximat 4 revolutions before it is fully connected as shown in 

Respondent's exhibit l, The flange is not circular but has which 

are hit with a sledge hammer to tighten the connection. The unrefuted 

testimony was that if this flange should -become loose and untightened by 

one turn, sufficient air would be lost so that the machinery could not 

be The chance that this connection could suddenly part and 

whip around uring unwary miners is almost negligible. The 

would be when the machine stopped its function of sand blasting and also 

the noise that would escape when the flange had unscrewed one turn. As 

stated it takes 4 turns to disconnect the flange and hose from the 

machine to which the pipe is attached. 

Douglas K. Wortham, is assistant director of the mine and quarry 

division of the North Carolina Department of Labor. He testified that 

he had observed numerous sand-blasting operations and that in about 90% 

of those the type of connector involved in the instant case, 

was used. He testified that a separate locking device was not used in 

those operations, that it was not required by the state of North Carolina 

and that it was not necessary because the connector was safe, 

Andrew B. Williams, a manufacturer's agent has had wide 

with compressed air equipment. He testified that the type of connector 

used by the Respondent in this case was the safest compressed air connector 

available and that it did not need a separate chain or other 

device. 

1932 

" 
There are a number of different types of high pressure hose connectors. 

(See Petitioner's exhibit 3). The two types referred to most in the 

testimony in the instant case were the type used by Respondent and a 

quick disconnect Chicago type connector. In the quick disconnect type 

one end of the hose is inserted into the other and a quarter turn (90°) 

is made to secure the connection. MSHA accepts .a pin through the connector 

in such a way as to block rotation as a suitable locking device. There 

is no requirement that the hose itself, as distinguished from the connector 

fixed at its end be connected to the other hose or machine if there is 

no other hose involved. As to the type of connector used by Respondent, 

Inspector Darryl Brennan stated that he would require that the chain or 

cable be affixed to the flexible hose itself and that the other end be 

affixed to the pot end of the connector. It appears to be a 

double standard. In the case of the quick disconnect type MSHA is 

concerned only with the metallic coupling separat , whereas with the 

type Respondent uses MSHA, or at t Inspector Brennan, is concerned 

not only that the metallic parts of the connection might separate, but 

that the hose itself might separate from the metallic connector. The 

mechanism that holds th~ connector or more properly, half of the connector 

to the hose is shown on Respondent 1 s exhibits 1 and 2. It is above the 

rotating flange and has what appears to be H-37 stamped on it. It is 

held by 4 bolts but the actual means by which it is attached to the hose 

was not explained. I do not know whether there is any danger of the 

hose separating from the 11 clamp" which contains the H-37. I am construing 

the standard as MSHA does with respect to the quick disconnect type, as 

requiring the metal connectors to be secu·red by an extra locking device. 

The hose itself could break anywhere and the only way whipping could be 

prevented would be to attach a safety chain to each 3 or 4 foot section 

of the hose and the standard certainly does not require that. 

I would like to dismiss this case, because I think the connector is 

safe but I can not overlook the fact that the standard requires 

chains or suitable locking devices in addition to the normal attaching 

mechanism of the connectors if a connection failure would create a 

hazard. Since there were men within 2 or 3 feet of the hose (Tr. 21) a 

sudden disconnection would create a hazard. I find the negligence and 

gravity low but that the violation did occur. A nominal penalty of $1 is 

assessed and Respondent is Ordered to that amount to MSHA within 30 

days of the issuance of this decision. The citation is affirmed. 

Distribution: By Certified Mail 

Charles C. Moore, Jr., 

Administrative Law Judge 

Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department of Labor, 1371 Peachtree Street, Atlanta, GA 30309 

Mr. James W. Stephens, Safety Associates, Inc., P.O.B, 4113 

Charlotte, N.C. 28204 

1933 *U,S, GOVllRNMENT PRINTING OFFICE : 1962 0-381-638/4376