September 1983 

Commission Decisions 

9-29-83 

9-29-83 

9-29-83 

UMWA v. Secretary of Labor, MSHA 

MSHA on behalf of Johnny Chacon v. 

Phelps Dodge Corporation 

MSHA on behalf of Bruce E. Pratt v. 

River Hurricane Coal Co., Inc. 

Administrative Law Decisions 

9-02-83 

9-02-83 

9-06-83 

9-12-83 

9-12-83 

9-13-83 

9-13-83 

9-14-83 

9-16-83 

9-19-83 

9-19-83 

9-20-83 

9-21-83 

9-22-83 

9-26-83 

9-26-83 

9-26-83 

9-28-83 

9-28-83 

9-28-83 

9-29-83 

9-30-83 

9-30-83 

Calvin Black Enterprises 

Emery Mining Corporation 

Kenneth Wiggins v. Eastern Assoc. Coal 

Southern Clay, Inc. 

U.S. Steel Mining Co., Inc. 

U.S. Steel Mining Co., Inc. 

U.S. Steel Mining Co., Inc. 

Elk River Sewell Coal Co., Inc. 

U.S. Steel Mining Co., Inc. 

Youghiogheny & Ohio Coal Co. 

Ralph Yates v. Cedar Coal Company 

Bear Creek Mining Comuany 

Ralph Ball, Inc. 

United States Steel Mining Co., Inc. 

United States Steel Corporation 

Patricia Swensen v. Emery Mining Corp. 

Plateau Resources Limited 

Asphalt Mining & Concrete Co. 

Palmer Coking Coal Co. 

Ross Island Sand & Gravel Co. 

Kennecott Minerals Company 

MSHA on behalf of Shelby Epers0n v. 

Jolene, Inc. 

American Mine Services, Inc. 

LAKE 82-70-R 

WEST 79-349-DM 

KENT 81-88-D 

WEST 80-6-M 

WEST 82-200-R 

WEVA 82-300-D 

DENV 79-97-PM 

PENN 82-321 

PENN 82-336 

WEVA 82-219-R 

WEVA 82-307 

PENN 82-337 

LAKE 83-36 

WEVA 82-360-D 

KENT 83-201 

KENT 83-139 

PENN 83-43 

KENT 81-136 

WEST 82-105-D 

WEST 82-117-M 

WEST 83-79-M 

WEST 83-93 

WEST 83-111-M 

WEST 82-31-M 

KENT 83-38-D 

WEST 82-1-M 

Pg. 1519 

Pg. 1528 

Pg. 1529 

Pg. 1539 

Pg. 1540 

Pg. 1542 

Pg. 1549 

Pg. 1563 

Pg. 1567 

Pg. 1571 

Pg. 1572 

Pg. 1577 

Pg. 1581 

Pg. 1587 

Pg. 1595 

Pg. 1597 

Pg. 1600 

Pg. 1604 

Pg. 1636 

Pg. 1638 

Pg. 1639 

Pg. 1642 

Pg. 1644 

Pg. 1646 

Pg. 1650 

Pg. 1658 

Commission Decisions 

SEPTEMBER 

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

Secretary of Labor, MSHA v. U.S. Steel Mining Co., Inc., Docket No. PENN 82-335. 

(Judge Broderick, July 27, 1983) 

Russell Collins & Virgil Kelley v. Secretary of Labor, MSHA, Docket No. 

EAJ 83-1. (Judge K~nnedy, July 27, 1983) 

Secretary of Labor, MSHA v. Calvin Black Enterprises, Docket Nos. WEST 80-6-M, 

WEST 80-81-M, WEST 80-82-M. (Judge Vail, August 16, 1983) 

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

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. PENN 82-221-R, 

PENN 82-259. (Judge Steffey, July 28, 1983) 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1983 

UNITED MINE WORKERS OF AMERICA 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. LAKE 82-70-R 

DECISION 

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

1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981). The issue presented is whether the United Mine Workers of America ("UMWA"), as 

a representative of the miners, has statutory authority under section 

105(d) of the Mine Act, 30 U.S.C. § 815(d), to contest the Secretary of 

Labor's vacation of a section 104(d)(l) withdrawal order issued to the 

operator. 30 U.S.C. § 814(d)(l). For the reasons below, we hold that 

under section 105(d) miners and their representatives do not have such 

a statutory right. 

The facts of the case are as follows. On March 15, 1982, a Department of Labor, Mine Safety and Health Administration ("MSHA") inspector 

issued an order of withdrawal under section 104(d)(l) of the Mine Act to 

the Saginaw Mining Company. The withdrawal order was terminated on the 

following day by a second MSHA inspector. On March 19, 1982, a third 

MSHA inspector (identified as an "Inspector Supervisor") vacated the 

section 104(d)(l) o,rder on the ground that it had been erroneously issued. 

On April 9, 1982, the UMWA (District 6), proceeding as the representative of the miners, filed a notice of contest with this independent Commission under section 105(d) challenging the Secretary's action of yacating 

the withdrawal order. The UMWA requested that the Commission reinstate the 

order. The Secretary, in turn, filed a motion to dismiss the UMWA's notice 

of contest on the ground that the UMWA did not have authority under the Mine 

Act to challenge the Secretary's action of vacating the withdrawal order. 1_/ 

On May 21, 1982, the Chief Administrative Law Judge issued an order 

dismissing the UMWA's notice of contest. 4 FMSHRC 921 (May 1982)(ALJ). The 

judge concluded that the UMWA does not have a statutory right under the Mine 

Act to contest the vacation of the withdrawal order. We agree. 

1/ The Saginaw Mining Company did not contest any of the Secretary's 

actions nor did it intervene in this case. 

1 r:-1a 

:..J .l. a 

83-9-11 
Section -105(d) of the Act sets forth the various rights that operators 

and miners have with respect to initiating Commission review of Secretarial 

enforcement actions. It 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, or citation or a 

notification of proposed assessment of a penalty 

issued ~nder subsection (a) or (b) of this section, 

or the reasonableness of the length of abatement time 

fixed in a citation or modification thereof issued 

under section 104, or any miner or representative of 

miners notifies the Secretary of an intention to 

contest the issuance, modification, or termination 

of any order issued under section 104', or the reasonableness of the length of time set for abatement by 

a citation or modification thereof issued under 

section 104, the Secretary shall immediately advise 

the Commission of such notification and the Commission shall afford an opportunity for a hearing •••• 

30 U.S.C. § 815(d)(emphasis added). 

Section 105(d) is clear and unambiguous in setting forth the extent 

to which miners and their representatives may initiate challenges to the 

Secretary's enforcement of the Mine Act. UMWA v. Secretary, 5 FMSHRC 807 

(CENT 81-223-R, May 11, 1983), pet. for review filed, No. 83-1519, D.C. 

Cir., May 13, 1983 ("UMWA v. Secretary I"). ];/ Concerning withdrawal 

orders, section 105(d) grants miners the right to contest the "issuance, 

modification, or termination" of any order issued under section 104. It 

does not, however, grant miners the right to contest the Secretary's 

action of "vacating" a section 104 withdrawal order. 

We find the omission of the term "vacating" in section 105(d) to be 

fatal to the UMWA's claim that it has the statutory right to initiate the 

present proceeding. The "vacation" of a citation or withdrawal order is a 

term of art under the Mine Act and Congress was fully aware of its discrete 

meaning. For example, in section 104(h) of the Act Congress provided that 

~ "[a]ny citation or order issued under this section shall remain in effect 

until modified, terminated or vacated by the Secretary, ••• or modified, 

2/ We stated in UMWA v. Secretary I that the language of section 105(d) 

was unambiguous in holding that miners do not have the statutory authority 

under the Mine Act to initiate review of citations issued by the Secretary 

through the filing of a notice of contest. We also noted that our finding 

section 105(d) to be ambiguous in Energy Fuels Corp., l FMSHRC 299 (May 1979) 

was inapposite to the question of miners' rights to contest under section 

105(d), because our holding in Energy Fuels Corp. was directed to the 

unrelated question of whether an operator may contest a citation prior to the 

Secretary's proposing a penalty. 5 FMSHRC at 811, n.5. 
terminated_££ vacated by the Commission or the courts •••• " 30 U.S.C. 

§ 814(h)(emphasis added). 3/ Furthermore, the latter portion of section 

lOS(d) itself provides that "the Commission shall afford an opportunity 

for a hearing ••• and thereafter shall issue an order ••• affirming, 

modifying, _££vacating the Secretary's citation, order or proposed 

penalty •••• " 30 U.S.C. § 815(d)(emphasis added). Therefore, if Congress 

intended for miners to have the right to contest the Secretary's action 

of vacating a section 104 withdrawal order, that right would have been 

specifically provided for in section 105(d). In the face of Congress' 

evident recognition of the distinctions between the issuance, modification, 

termination and vacation of citations and orders, and its failure to 

provide a right to contest the vacation of an order, we do not have the 

prerogative to provide such a right. See UMWA v. Secretary I, 5 FMSHRC 

at 515. !!_/ 

We emphasize that the failure of Congress to provide for the right 

asserted here does not leave affected miners without a remedy in the 

situation presented. Under section 103(g)(l) of the Act miners can 

request an immediate inspection by MSHA if they have reasonable grounds 

to believe that a violation of the Act or a standard or an imminent 

danger exists. A "special inspection" is thereafter required "as soon 

as possible to determine if such violation or danger exists •••• " 30 U.S.C. 

§ 813(g)(l). If upon reinspection the inspector determines that no 

violation exists, miners may seek further Secretarial review of that 

determination. 30 C.F.R. Part 43. See also, 30 U.S.C. § 813(g)(2). 

3/ In light of the language of section 104(h) distinguishing between 

the issuance and the vacation of citations and orders, we reject the 

assertion that the vacation order should be contestable under section 

105(d) because it is also "issued." This approach would render Congress' 

use of the terms "modification," "termination" and "vacation" surplusage 

and would ignore the commonly understood discrete meanings of the terms. 

4/ We note that neither party has cited any legislative history directly 

bearing on the asserted right, nor have we disco~ered any. 

1.t".'')1· 

0~ 
Accordingly, we hold that under section 105(d) of the 1977 Mine Act 

miners and their representatives do not have statutory authority to contest 

the Secretary's action of vacating a section 104(d)(l) withdrawal order. 5/ 

The judge's order dismissing the UMWA's notice of contest in this case is-; 

therefore, affirmed. 

1/ The present case involves the interpretation of section 105(d) of the 

1977 Mine Act. The decision in Eastern Associated Coal Corp., 4 IBMA 298 

(1975), addressed the Board of Mine Operations Appeals' interpretation of 

section 105(a)(l) of the 1969 Coal Act. The sections are not identical and 

the rights created by each are, quite simply, different. Therefore, the 

dissent's extensive reliance on the Board's decision in Eastern is misplaced. 

Furthermore, Eastern directly concerned the continued viability of an 

operator's challenge to a withdrawal order that subsequently had been 

vacated by the Secretary. The essential holding in Eastern was that 

under the 1969 Act the Secretary could not extinguish rights to review 

of an underlying order by the expedient of vacating the order. Eastern 

did not present any challenge to the vacation order itself and, therefore, 

the Board's comments as to the reviewability of vacation orders under the 

1969 Act was dicta. Nor is any issue presented as to the reviewability 

of a unilateral attempt by the Secretary to vacate a citation or order 

after a proper notice of contest triggering Commission jurisdiction is 

filed. See, e.g., Climax Molybdenum Co., 2 FMSHRC 2748 (October 1980), 

aff'd, No. 80-2187, 10th Cir., March 21, 1983; Kocher Coal Co., 4 FMSHRC 

2123 (December 1982). 
·Commissioner Lawson dissenting: 

The reasoning of the majority in this case substantially parallels 

that of its opinion in UMWA v. Secretary, 5 FMSHR9 807 (May 11, 1983), 

pet. for review filed, No. 83-1519, D.C. Cir., May 13, 1983). I dissent 

here also, for reasons similar to those expressed by me in that case. 

As the majority has conceded, the miner or his or her representative 

can contest "the issuance, modification, or termination of any order issued 

under section 104.". Slip op. at 2. It does not follow that, under section 

104(h) of the Act, which authorizes the Secretary, the Commission or the 

courts to modify, terminate or vacate a citation or order, that Congress 

must have intended to distinguish between "vacation" and "termination" of 

an order. 

It is unquestioned that an adversely affected miner can initiate 

review of the vacation of any order by the Commission in the Court of 

Appeals. 1._/ Since those Commission orders are subject to review, Congress 

could hardly have intended to provide insulation from review for the 

Secretary from his vacation of orders, nor does the language of the 

statute preclude such challenge. 

Miners are affected no differently by a "terminated" or a "vacated" 

withdrawal order--the protection mandated by the Act vanishes with the 

issuance of such an order. In this case, the UMWA asserts that the 

Secretary's inspector(s) improperly conducted this mine roof inspection. 

Roof falls in underground mines are and have been the leading cause of 

mine deaths for many years. !:_/ The majority would nevertheless deny 

review of vacated, but not terminated orders. For purposes of review, 

and more importantly, protection of the miner, I find no definitional 

distinction between termination and vacation of an order. Indeed, as 

the Board of Mine Operations Appeals held in Eastern Associated Coal Corp., 

4 IBMA 298, 304 (1975): 

Insofar as the right of review is concerned, vacating 

an order has no more implication than the termination 

of an order. For review purposes, a vacated order is 

a terminated order. Id at 306. \ 

1_/ "Any person adversely affected or aggrieved by an order of the 'commission 

issued under this Act may obtain a review of such order in any United States 

Court of Appeals ••• " 30 U.S.C.A. 816(a). 

!:./ Indeed,· fatalities as the result of roof falls between January 1 to 

June 4, 1982 had dramatically increased; twenty-nine miners died during 

that period, compared with nine deaths in 1981, and twelve deaths in 1980 

for the same time period. Daily Fatality Report, U. S. Dept. of Labor, 

MSHA, June 4, 1982 and June 4, 1980. 

152J 
An example makes clear that the majority's view fails to conform to 

either the language or the purpose of the Act. Under the Act a miner 

can rely upon the protection of a withdrawal or other protective order 

for thirty days, with no need to seek review thereof during that period. 

However, the reversal of Eastern (supra), will now permit the Secretary 

to vacate an order on the thirty-first day, and thus extinguish the right 

of the miner to seek review of the order. The Secretary's BMOA in Eastern, 

however, recognized the problem presented and protected this review for 

both the miner and the operator: 

Section 105(a) of the Act grants both the operator and 

representative of the miners the right to seek review 

of any order or its modification or termination, issued 

pursuant to section 104. We hold that this right of 

review must be safeguarded and cannot be frustrated by 

unilateral action of MESA. In the instant case vacation 

of the Order, as defined by MESA, would deprive both the 

operator and the representative of miners of any opportunity to seek Secretarial review of the validity of a 

section 104 withdrawal order as and when issued or the 

validity of a subsequent order modifying or terminating 

such Order. We cannot be unmindful of the consequences 

which flow from the issuance of an order of withdrawal 

under section 104 of the Act, particularly as seen in the 

provisions of sections 104(c) and 110 of the Act, as well as 

the immediate loss of production to the operator, whether or 

not issuance of the order was improvident. We believe such 

action and any subsequent action by MESA with respect to that 

order, be it modification, termination, or vacation, is 

reviewable pursuant to section 105 of the Act, if such review 

is timely sought by the operator or representative of the 

miners. We do not hold that MESA has no authority to vacate 

an order, for in many instances this may be the most 

expeditious method of accomplishing a desired result and it 

may in many instances be the preferable remedy for the operator. 

What we do hold is that MESA by "vacating" an order may not 

thereby deny an operator or representative of miners the right 

of review of the basic order or any subsequent orders. 

That a mistaken or improper vacation of a withdrawal order could be 

fatal or crippling to a miner is so evident as to need no embellishment. 

It is noteworthy that three different mine inspectors were involved in 

this case in issuing, terminating, and finally vacating the withdrawal 

order now under consideration. The suggestion that foreclosing review 

of "vacated" orders "does not leave affected miners without a remedy" 

(slip op. at 3) derives from sections 103(g)(l) & (2) of the Act. These 

statutory sections, unfortunately, merely provide for after-the-fact 

"informal" review by the Secretary of his own actions, with no appeal 

therefrom. This obviously fails to provide a meaningful, much less 

independent, adjudicatory hearing, since the Secretary will be reviewing 

his own decision, and reversal thereof is not realistically to be anticipated. Section 103(g)(l) & (g)(2). This internal administrative review 
by the Secretary (apparently largely unutilized), thus fails to provide 

the due process so evidently required by the law and the balance of the 

Act. As this Commission noted in Sec. ex rel. Gooslin v. Kentucky Carbon, 

3 FMSHRC 1707, 1712 (July 1981), in providing an operator with review and 

a hearing under section 105(c)(2) as a matter of due process, even though 

the statute was silent as to any right therefor: 

Due process contemplates fundamental fairness. As the 

Supreme Court stated in Boddie v. Connecticut, 401 U.S. 

371 (1971): 

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

granted at a meaningful time and in a meaningful manner,' 

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

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

omitted.] 

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

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

Perhaps of even more importance, the majority's acceptance of the 

Secretary's views in this case permits him to frustrate the miners' 

challenges to section 104 withdrawal orders simply by vacating these--

or any other--orders rather than terminating or even modifying such, 

thus evading any challenge by the miners' under section 105(d). It can 

hardly be maintained that modification of an order, which obviously results 

in at least some remaining protection for the miner, is more review worthy 

than vacating of the order. That is nevertheless the consequence of the 

position adopted by the majority today. 

Nor would allowing miners' representative to contest the vacation of a 

section 104(d)(l) order undermine the Secretary's prosecutorial discretion, 

since 105(d) already allows miners to challenge other Secretarial enforcement 

actions, (e.g., the "issuance, modification or termination" of section 104 

withdrawal orders; see also section 107(e)(l)). Furthermore, the logical 

corollary to the miner's right to contest the issuance of a section 104 

order, is the right to contest the vacating of that order. Perhaps the 

miners' representative in this case should have labeled its notice of 

April 9th as a contest of the termination of the challenged order, given 

the semantic analysis of the majority. Indeed, that is the reality of the 

situation presented. For, as stated in the dissent to UMWA v. Secretary I, 

(supra): 

The adversary system is, in my view, entitled to at least 

the same measure of respect as reliance on "prosecutorial 

discretion" and indeed presents preferable possibilities 

for the parties to challenge either abusive enforcement 

or lack of enforcement. For that reason, too, permitting 

the miner or miner's representative to fully participate 

and litigate issues such as those presented in this case 

appears to be far more in accord with the purpose and 

intent of the Act, certainly as reflec~ed in the legislative 

history, than the denial to the most affected parties, the 

miners, of the right to review Secretarial action or inaction 

even if limited to an abuse of discretion. Miners, too, must 

be assured that the Secretary is in compliance with the Act. 
The Secretary here maintains that he erred in issuing the challenged 

withdrawal order, but that his order recognizing that "error" is beyond 

review. The vacation objected to by the petitioner herein was accomplished 

by the issuance of the Secretary's order of March 19, 1982, pursuant to 

the authority of section 104(h) of the Act. And, as is undisputed, a 

miner's representative can contest the issuance of any order issued under 

section 104. This construction is clearly supported by the language of 

the statute; indeed, neither the majority nor the Secretary contend to 

the contrary, and is further confirmed by the issuance of that vacating 

order on MSHA Form 7000-3a, designating the action taken as an "order. 11 

This withdrawal order was issued on March 15th, terminated on March 

16th and vacated on March 19th. The miners' notice of contest was filed 

on April 9th--timely as to the issuance, termination and vacation of the 

involved order under section 105(d). This Commission should therefore 

construe this notice of contest so "as to do substantial justice", 

allowing that contest notice as a challenge to the termination of the 

withdrawal order. l_/ 

Finally, since section 105(d) does not preclude a miner's contest of 

a vacation of an order, interpreting that section as providing that for 

review purposes a_ vacated order is a terminated order would be consistent 

with the remedial and participatory enforcement pattern of the Mine Act, 

which encourages miners to participate in safety and health matters. !!._/ 

I would, therefore, for the reasons expressed both herein and in my 

dissent in UMWA v. Secretary I, reverse the decision below and remand for 

consideration on the merits of the issues presented by the Secretary's 

vacation of this withdrawal order. 

A. E. Lawson, Commissioner 

]_/ Rule 8(f) of the Federal Rules of Civil Procedure provides: 

CONSTRUCTION OF PLEADINGS. All Pleadings shall be so 

construed as to do substantial'justice. 

See the Commission's Rules of Procedure 29 C.F.R. 2700.1. 

!!_I There is substantial precedent construing the 1969 Act·--a fortiori applicable 

to the 1977 Act--which holds that between two possible interpretations of the 

Act, the one that promotes safety must be preferred. See District 6, UMWA v. 

IBMA, 562 F.2d 1260, 1265 (D.C. Cir. 1977). Accord, UMWA v. Klep_E£., 532 F.2d 

1403, 1406 (D.C. Cir. (1976), cert. denied, 429 U.S. 858 (1976); Munsey v. 

Morton, 507 F.2d 735 (D.C. Cir-:-1978); Phillips v. IBMA, 500 F.2d 772. 782 

(D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975)~t follows that the 

interpretation of section 105(d) that best promotes safety is one that permits 

miner participation. 

152b 
Distribution 

Michael A. McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Thomas M. Myers, Esq. 

United Mine Workers of America 

District 6 

56000 Dilles Bottom 

Shadyside, Ohio 43947 

Mr. R.A. Thomas, Secretary 

Saginaw Mining Co. 

1200 Hanna Building 

Cleveland, Ohio 44115 

Mr. John J. Kirn, Asst. Sec. 

Saginaw Mining Company 

1100 Superior Avenue 

Cleveland, Ohio 44114 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 

1527 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

September 29, 1983 

on behalf of JOHNNY N. CHACON 

v. Docket No. WEST 79-349-DM 

PHELPS DODGE CORPORATION 

ORDER 

In Raymond J. Donovan, Secretary of Labor, on behalf of Johnny N. 

Chacon v. Phelps Dodge Corporation, No. 81-2300, D.C. Cir., June 7, 

1983, the Court reversed the Commission's decision and remanded this 

discrimination case to the Commission for disposition consistent with 

the Court's decision. On September 15, 1983, we received from the Court 

the certified copy of its opinion and judgment. 

Pursuant to the Court's judgment and order, the decision of the 

administrative law judge is hereby reinstated, including his order of 

expungement, award of back pay and interest, and his civil penalty 

assessment. Compliance shall be within 30 days of the issuance of this 

order. 

L. 

~~ Clair Nelson, Commissioner 

83-9-12 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

HINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1983 . . 

On behalf of BRUCE EDWARD PRATT 

v. Docket No. KENT 81-88-D 

RIVER HURRICANE COAL COMPANY, INC. 

DECISION 

The Secretary of Labor filed a complaint of discrimination on behalf 

of Bruce Pratt with this independent Commission under section lOS(c) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(Supp. V 

1981). An administrative law judge of the Commission held that River 

Hurricane Coal Company violated the Mine Act when it discharged Pratt. 

3 FMSHRC 2366 (October 198l)(ALJ). We subsequently granted the operator's 

petition for discretionary review and heard oral argument. As modified 

by our decision, we affirm the judge's finding of a violation. 

River Hurricane operates an underground coal mine at Kimper, Kentucky, 

at which Bruce Pratt was employed from August 1979 to August 1980. On 

August 19, 1980, Pratt was the third shift mechanic and electrician. 

Pratt was not a certified electrician while at River Hurricane, but he took 

classes from William Harris, the mine's training and safety director. At 

approximately 11:00 p.m. on August 19, 1980, Butch Thacker, a scoop operator, 

came to Pratt and informed him that the scoop was on fire. Power to operate 

the scoop is provided by 2 trays of lead-acid batteries enclosed in a case 

that measures approximately 4"feet by 6 feet. The batteries are covered by 

a lid, which is bolted down but has louvers at the top of the casing to allow 

air to circulate. 

The fire occurred on the mine surface at the beginning of the third 

shift, when Thacker was in the process of substituting discharged scoop 

batteries for charged ones, and recharging the batteries used by the 

previous shift. 1/ He had connected the scoop to freshly charged batteries 

and had the fresh batteries on the scoop jacks. Thacker was in the process 

1/ The scoop is equipped with hydraulic jacks that raise the batteries 

onto a two-pronged stand, where they can be charged. With jumper cables, 

the scoop can then be connected to charged batteries, which are loaded onto 

the scoop while the dead batteries are being recharged. Thacker testified 

that he and miner Larry Parks, who did not testify, had removed the dead 

batteries from the scoop, placing them on the stand for recharging. 

'1528 83-9-13 
of connecting the discharged batteries to the charger when Parks informed 

him that the batteries connected to the scoop were on fire. Thacker threw 

the circuit breaker on the scoop and went to get Pratt, who was at the 

supply house. 

Pratt approached the batteries, and when he came within approximately 

35 feet of them, he saw flames coming from under the lid of the battery 

case. He then turned back to the supply house. Pratt also prevented from 

approaching the fire a miner who came out of the supply room with a fire 

extinguisher. Pratt testified that he feared the battery would explode and 

believed any attempt to extinguish the fire would be futile unless the lid 

to the battery case were unbolted and removed. Pratt had seen the results 

of the explosion of a car battery at his previous place of employment and 

feared this battery would explode and would throw shrapnel and acid over him. 

He thought an explosion would have killed him. Pratt said there was nothing 

available in the area to neutralize acid. 

After the fire went out, Pratt took the lid off the battery casing and 

examined the batteries. He determined that the batteries themselves had not 

been on fire and concluded that hydrogen gas had been burning. Pratt stated 

that the "cat heads," or electrical connectors to the batteries, were not 

damaged but that the insulation on wires connected to the cat heads was 

damaged. Thacker exchanged the batteries involved in the fire for freshly 

charged batteries and informed the shift boss, E. C. Slone, of the fire. 

Thacker and Pratt went into the mine and completed the working shift. 

Another employee of River Hurricane, Goody Deskins, testified that he 

helped James Slone, the chief electrician, repair the batteries. The 

receptacles were replaced, as well as part of the cable to them. Insulation 

had burned off one of the cables, but there was no evidence of a fire on top 

of the battery cells themselves. James Slone also testified that the fire 

was in the cables (or leads) and that the "leads and the female connector" 

were replaced. 

When the shift was over the next morning, August 20, James Slone 

discussed the fire with Pratt. E.C. Slone (no relation to James Slone), 

the third shift foreman to whom Thacker reported the fire, was present 

during the conversation. This conversation is critical to the case and 

the persons present testified consistently on its content. James Slone 

asked Pratt why he had not attempted to put out the fire. Pratt explained 

that the batteries had just been charged and he was afraid they might 

explode. James Slone tried to tell Pratt how to put out such a fire, 

generally stating that he would have made some attempt to cut the bolts 

on the lid and use a fire extinguisher or rock dust. James Slone asked 

Pratt what he would do if such a fire happened again, and Pratt indicated 

he would respond in the same manner. James Slone then stated that if 

Pratt would make no attempt to extinguish such fires, then he had no use 

for Pratt, and the conversation ended. Pratt was discharged. 

An· expert on batteries, E. R. Eddins, testified at the hearing as to 

the dangers of fires such as the fire on August 19, and the preferred methods 

of extinguishing such fires. Eddins testified that because there is nothing 

combustible in the cable or receptacle, very hot temperatures are required 

before cables will burn or melt. He stated the odds against such an 

1 ,,... ':' n ......... ... J t...> \) 
occurrence are high. Eddins further testified that hydrogen, an explosive 

gas, is formed by charging and discharging batteries. Hydrogen explodes on 

the first spark that contacts it; generally it does not burn. After the 

initial explosion, if any, the hydrogen is gone and there can be no more 

explosions. If an explosion occurs, according to Eddins, the main danger 

is from acid splashing. He testified that with the concentrations of acid 

found in batteries some eye damage--not perrnanent--might result from acid 

splash, and splashed cotton clothing would "dissipate" when first washed. 

He further testified that, if the lid were on the batteries when hydrogen 

exploded, nothing would happen because the explosion would be contained 

under the lid. He characterized the hazards from lead acid batteries as 

"minimal." He also stated that explosions could be prevented by washing 

the ha tteries. 

Eddins further stated that the witnesses appearing prior to him at the 

hearing, Pratt and James Slone, were "not totally up to date" on the problems 

in handling battery fires. He asserted that the best means of extinguishing 

such a fire is to throw an entire 50-pound bag of rock dust on the fire. He 

stated rock dust is better than a fire extinguisher because it smothers 

the fire, but an extinguisher could be used in order to get close enough 

to throw rock dust. 

Dan Grace, an expert on fire suppression systems, also testified that 

a spark or fire will set off hydrogen gas immediately. He stated that the 

danger from such an explosion is greater where the gas has no place to go, 

as in a well-enclosed 12-24 volt automotive battery. He stated the trays 

in the scoop were intentionally not well-sealed, and allowed air movement. 

Mine Safety and Health Administration Inspector Lycans testified that 

with cables arcing, and a battery short-circuiting, he "just can't see 

approaching it." He recommended letting the fire burn itself out, and 

explained that batteries are flame resistent and probably won't be ruined. 

Lycans further stated that he would object if he saw someone run up to a 

battery fire to put it out with an extinguisher, unless the person remained 

10 to 15 feet away. He said he would consider opening the battery lid 

foolish, and serious enough for the issuance of an imminent danger withdrawal order. Lycans agreed with the expert witnesses that hydrogen explodes 

on the first spark and stated that if there are flames between the top of 

the battery and the underside of the battery tray lid, it is a "safe 

assumption" that there is not sufficient hydrogen for an explosion. 

The record is replete with references to similar fires and battery 

problems at River Hurricane. Deskins reported he had stopped "arcing" 

.:ind a "frying sound" before a fire started on a similar battery two or 

three weeks before the hearing. Thacker testified concerning two 

fires on scoops which extinguished themselves, and estimated that in 

the year before the hearing he had seen five fires, including the one 

in question and three in the face area. Vinton Adkins stated that in 

his 12 or 13 years as a miner, he had seen 30 or 40 fires like the one 

that occurred in August 1980 and had experience with fires "a couple or 

three times" after the one on August 19. Finally, Raleigh Hunt testified 

that he put out a fire 2 or 3 weeks before the fire on August 19, 1980. 

1531 
Adkins, E.C. Slone, and Thacker, as well as Pratt, testified they had 

not been trained, prior to August 19, 1980, on how to extinguish battery 

fires. Thacker testified he was later taught to use the scoop's fire 

suppression system, to cover the fire with rock dust, or to use a fire 

extinguisher. The expert on the scoop's fire suppression system, Dan 

Grace, testified that the fire suppression system does not cover the 

battery trays. 

The Commiss.ion judge found two instances of protected activity: Pratt's 

refusal to fight the fire on the evening of August 19 and his refusal the 

next morning to agree to attempt to extinguish future fires under similar 

circumstances. 3 FMSHRC at 2369 (Findings 21, 25). He found that Pratt 

had a reasonable, good faith fear as to his saf~ty justifying his first 

refusal, and that his reasonable fears were not allayed by thg _o_perator' s 

explanation to him as to how to proceed in the future. In particular~ he 

found that Slone's explanation to Pratt the morning after the fire lacked 

factual and technical understanding of the hazards involved. Thus, he 

determined that River Hurricane discharged Pratt for activity protected 

by the Mine Act. Based on the parties' stipulations, the judge awarded 

Pratt $3,348.00 in back pay. He also awarded interest and assessed a 

penalty against the operator for the violation of the Act. 3 FMSHRC at 

2370. No issues are raised on review concerning the amount of the award 

to Pratt or the penalty. J:j 

2/ We note that the judge issued a bench decision at the hearing on 

October 8, 1981, followed by his almost identical written decision on 

October 19, 1981. In his written decision, the judge stated, "Any deviations in verbiage [between the bench and written decisions] are due to the 

unavailability of the transcript and extemporaneous interpolations that are 

not reflected in retained notes." 3 FMSHRC at 2366 n.l. The judge's statement shows that he failed to comply with Commission Rule 65(a), which states 

in part: 

If a decision is announced orally from the bench, it 

shall be reduced to writing after the filing of the 

transcript. 

29 C.F.R. § 2700.65(a)(emphasis added). Issuing decisions before a transcript is available can hinder the parties in attempting to file a satisfactory petition for discretionary review. Section 113(d)(2)(A)(iii) of 

the Mine Act requires that issues raised in petitions for review "shall 

be supported by detailed citations to the record when assignments of error 

are based on the record •••• " This is not possible if the 30-day statutory 

period for filing a petition for review expires before the transcript is 

available. 

In this case, however, the transcript was available November 2, more 

than 2 weeks before the petition for review was due, and counsel for 

River Hurricane cited to it in his petition. Further, the operator did 

not object to the judge's premature issuance of his decision. Accordingly, 

although we disapprove the judge's issuance of a decision prior to the 

filing of the transcript, we find his error in this case to be harmless. 
We address preliminarily two of River Hurricane's arguments. First, 

River Hurricane argues that any standard used to assess the legitimacy of 

a miner's work refusal must be an objective one supported by ascertainable 

evidence. Previously we have discussed the nature of the proof necessary 

to support a miner's perception of a danger. In Secretary on behalf of 

Robinette v. United Castle Coal Company, 3 FMSHRC 803, 809-12 (April 1981), 

and Haro v. Magma Copper Co., 4 FMSHRC 1935, 1944 (November 1982), we 

"rejected a requirement that miners who have refused to work must objectively 

prove that hazards existed •••• Rather, we adopted 'a simple requirement 

that the miner's honest perception be a reasonable one under the 

circumstances.'" Haro, 4 FMSHRC at 1843-44, quoting Robinette, 3 FMSHRC at 

812. For the reasons stated in those decisions, we reject the operator's 

arguments for a more stringent standard in this case. 

Second, the operator asserts that the Commission should articulate a 

standard as to how severe a hazard must be in order to trigger a miner's 

right to refuse to work, citing Consolidation Coal Co. v. Marshall, 

663 F.2d 1211, 1226 (3d Cir. 1981) (Sloviter, J., dissenting). We have 

declined to articulate such a standard in the past and we decline again 

to do so here. We continue to believe that, insofar as this adjudicatory 

Commission is concerned, gradual development of the law in the cases 

contested before us is the appropriate vehicle for molding this important 

right. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2793-94 (October 1980), rev'd on other grounds sub nom. Consolidation 

Coal Co. v. Marshall, supra; Robinette, at 809 n.12, 816.---We now turn 

to the central issue in this case. 

River Hurricane does not contend that the judge erred in finding that 

Pratt's refusal to fight the battery fire on August 19, 1980 was protected 

activity. The focus of this case, therefore, is not on the actual fire, but 

on the conversation the next morning, and the nature of Pratt's refusal 

during that conversation to fight fires in the future. 

The right to refuse to work has as a predicate a miner's good faith, 

reasonable belief in a hazardous condition. Pasula, supra; Robinette, supra. 

A good faith belief "simply means honest belief that a hazard exists." 

Robinette, at 810. This requirement's purpose is to "remove from the Act's 

protection work refusals involving frauds or other forms of deception." Id. 

The judge found that Pratt refused "to agree to attempt to extinguish a fire 

in or around lead acid batteries under circumstances similar to those that 

occurred on August 19" and that the refusal "was made in a good faith, 

reasonable belief that a serious risk of injury from an exploding battery 

existed." 3 FMSHRC at 2369 (Finding 25). The judge's description of 

Pratt's refusal is supported by substantial evidence. River Hurricane 

does not suggest that fraud or deception motivated Pratt. Rather, River 

Hurricane urges that the judge erred in finding Pratt's refusal reasonable 

both because the hazard was not serious enough to warrant a work refusal, 

and because Pratt continued to refuse to work after James Slone attempted 

to explain what should be done. 

The perception of a hazard is viewed from the miner's perspective. 

Robinette, supra. Haro, 4 FMSHRC at 1943-44; Secretary on behalf of 

Bush v. Union Carbide Corp., 5 FMSHRC 993, 997-98 (June 1983). Pratt 

1530 
had reason to believe the battery could explode because he had seen the 

results of the explosion of a car battery. Pratt feared an explosion of 

the scoop batteries would throw shrapnel and acid over him and might 

kill him. The hazard Pratt feared was severe enough to warrant his work 

refusal. Thus, the judge's finding that Pratt reasonably believed in a 

serious risk of injury from an exploding battery is supported by substantial evidence. 3 FMSHRC at 2369 (Finding 25). Once a reasonable 

good faith fear in a hazard is expressed by a miner, the operator has an 

obligation to address the perceived danger. See Bush, 5 FMSHRC at 998. 

In this case the operator's explanation or attempt to address 

Pratt's fears did not include specific information or support as to why 

fighting the battery fires may not have been as dangerous as Pratt 

believed. Rather, the record amply supports the judge's conclusion that 

James Sloan's "explanation and instructions to Mr. Pratt ••• concerning 

how to cope with fires on battery trays was lacking in technical and 

factual understanding of the hazards and failed to allay Mr. Pratt's 

reasonable fears." 3 FMSHRC at 2269 (Finding 24). 3/ Slone did not 

know that an explosion was unlikely or that if an explosion did occur it 

would probably be contained within the battery casing. This technical 

information was only developed at the hearing. Slone did not present 

such information to Pratt. Rather, he simply attempted to tell Pratt 

how he thought Pratt should proceed to put out such a fire. Further, 

Slone's testimony as to his instructions was sorely lacking in detail 

and not entirely consistent with the safe practices testified to by 

Eddins at the hearing. Thus, we conclude that the judge's finding that 

Slone did not provide a response sufficient to allay the reasonable 

fears expressed by Pratt is supported by substantial evidence. !±_/ 

1./ We agree with the judge's characterization of Slone's "instructions". 

At the hearing Slone testified as follows: 

Tr. 171. 

I tried to--1 asked him why he didn't make some 

attempt to extinguish the fire. I asked him 

didn't, you lmow--or I tried to explain to him 

what he could do, you know, that he could--we 

have got bolt cutters and we have got fire 

extinguishers, anything, you know, to make an 

attempt to extinguish a fire, instead of, you 

know, letting the company loss--or damage the 

company property and so forth. Several different 

things he could have done. 

Mr. Pratt told me that he had no intention of 

fighting any fire in such a manner as that, or--

and I told him I would have no further use for 

anybody like that in his position. 

4/ River Hurricane also asserts that in the crucial conversation of 

August 20, Pratt not only refused to fight such fires, but also refused "to 

undertake schooling and training with regard to combating and extinguishing 

such electrical fires." The operator asserts that even if Pratt engaged 

1,-·q ·1· ~0" 

(Footnote continued) 
In sum, we find that substantial evidence of record supports the 

judge's findings that Pratt had a good faith, reasonable belief that 

fighting the battery fire at issue was hazardous, that the operator 

failed to address adequately Pratt's reasonable fears of the perceived 

hazard, and that the operator violated section 105(c) of the Mine Act 

by discharging Pratt for his refusal to perform a task still reasonably 

believed by him to be dangerous. 2_/ 

Finally, although we affirm the judge's· finding as to the protected 

work refusal and illegal discharge, we find it necessary to strike two 

portions of the judge's decision as not supported by the record. First, 

in Finding 18 the judge stated that Slone's discharge of Pratt was 

"largely an overreaction to Mr. Pratt's provocative rejoinder and the 

long simmering personality conflict between the two men." We can find 

no record support for this characterization of the cause of the discharge and reject it as unsupported speculation. Second, in paragraph 

4 of his enforcement order the judge ordered the operator to "cease 

and desist from any retaliation or other disciplinary action against 

miners who refuse to comply with the company policy that requires 

miners to assume the risk of injury in order to suppress electric fires 

that pose no hazard other than to equipment." 3 FMSHRC at 2370. Based 

on our review of the record, we conclude that the requisite support for 

this finding concerning an asserted company "policy" is lacking and that 

the cease and desist order is therefore unwarranted. Accordingly, we 

strike Finding 18 and paragraph 4 of the enforcement order in the 

judge's decision. 

fn. !!_/ continued 

in protected activities, he was legally discharged for the unprotected 

activity of refusing to accept training. The operator's characterization 

of the pivotal conversation as including an offer and refusal of 

"schooling and training," in "combating" electrical fires is wide of 

the mark. Slone's vague instructions described above did not 

constitute such an offer and, therefore, the refusal alluded to did 

not occur. 

1_./ We emphasize that the fire that occurred was an equipment fire on 

the surface that posed no threat to the safety and health of other 

miners if allowed to run its course. We also emphasize that we 

believe the judge found, and the evidence supports, that Pratt's 

prospective refusal to fight fires was directed at similar fires in 

similar circumstances, i.e., surface fires posing no danger to other 

miners. 

1535 
As modified by this decision, the judge's decision is affirmed. 

A. E. Lawson~ Commissioner 

~ L. Clair Nelson, Commissioner 

l r··q . ·.J utJ 
Distribution 

Garred 0. Cline, Esq. 

Farley Building 

Pikeville, Kentucky 41501 

Marcus P. McGraw, Esq. 

Greenbaum, Doll & McDonald 

1400 Vine Center Tower 

P.O. Box 1808 

Lexington. Kentucky 40592 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

153i 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

CALVIN BLACK ENTERPRISES, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 SEP 2 1983 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 80-6-M 

A/C No. 42-00784-05001 

Docket No. WEST 80-81-M 

A/C No. 42-00550-05001 R 

Docket No. WEST 80-82-M 

A/C No. 42-00784-05002 R 

Blue Lizard and Markey Mines 

CORRECTION TO DECISION 

ISSUED AUGUST 16, 1983 

On page 

appearing in 

8, under paragraph titled "ORDER", the citation No. "336697" 

line 2 is corrected to read "336696." 

~1v::a;Z Administrative Law Judge 

Distribution: 

James H. Barkley, Esq., (Certified Mail} Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colqrado 80294 

Mr. Calvin Black, President, (Certified Mail} 

Calvin Black Enterprises, P.O. Box 906, Blanding~ Utah 84511 

153J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

EMERY MINING CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, 

Respondent 

SEP 2 um 

CONTEST PROCEEDING 

Docket No. WEST 82-200-R 

Order. No. 2073785; 8/13/82 

Little Dove Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-18 

A.C. No. 42-01393-03504 

Little Dove Mine 

DECISION AND ORDER 

Before: Judge Broderick 

On July 25, 1983, I issued an order consolidating the above 

proceedings. I also denied Emery's motion for summary decision 

and granted the cross motion of the Secretary for limited summary 

decision. I retained jurisdiction to determine whether the violation was significant and substantial, and to assess a civil 

penalty. I directed the parties to attempt to stipulate the facts 

necessary for me to make such determinations. 

On August 29, 1983, the parties filed a stipulation of facts 

with a computer printout of Emery's history of previous violations. 

Based on the stipulation of facts , I conclude that Respondent 

is a large operator (its annual production is approximately 

4 million tons). Its history of previous violations is not such 

that a penalty otherwise appropriate should be increased because 

of it. 
The stipulation states that on August 12, 1982, during the 

4:00 p.m. to 12:00 midnight shift coal was being produced and the 

crew unknowingly came within approximately 1 foot of breaking 

through to the abandoned workings of an adjacent mine. On the 

next shift, a maintenance shift, a breakthrough occurred either 

because of natural forces or as a result of the cleanup operations. 

The breakthrough was approximately 10 to 12 inches and it released 

a quantity of carbon dioxide gas into the working section. This 

was discovered on the preshift examination prior to the 8:00 a.m. 

shift on August 13, 1981. No miners were injured or killed as a 

result of the breakthrough. 

I have previously concluded that.the facts do not show that 

the violation was the result of Emery's unwarrantable failure or 

negligence. I further conclude that the evidence does not show 

thai the violation was of such nature as could significantly and 

substantially contribute to the cause and effect of a coal mine 

safety or health hazard. I further conclude, however, that the 

violation was moderately serious, since it could have resulted 

(though it was unlikely to have resulted) in injuries to miners. 

Based upon the above findings and conclusions, I conclude that 

an appropriate penalty for the violation is $75.00. 

ORDER 

Therefore, IT IS ORDERED that Emery Mining Company within 

30 days of the date of this decision pay the sum of $75 as a civil 

penalty for the violation found in my order of July 25, 1983, and, 

subject to such payment, the civil penalty proceeding is DISMISSED. 

IT IS FURTHER ORDERED that in the notice of contest proceeding, 

the citation is AFFIRMED and the proceeding is DISMISSED. 

Distribution: 

j 04tuX k(j vctbv'7 ek._ 

James A. Broderick 

Administrative Law Judge 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut 

Avenue, N.W., Washington, DC 20036 (Certified Mail) 

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

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

80294 (Certified Mail) 

/fb 

1541 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 6 1918 

KENNETH A. WIGGINS 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No: WEVA 82-300-D 

HOPE CD 82-32 

Keystone No. 1 Mine 

EASTERN ASSOCIATED COAL CORP, 

Respondent 

Appearances: 

Before: 

DECISION ON THE MERITS 

William B. Talty, Esq., Talty and Carroll, 

112 Central Avenue, Tazewell, Virginia for 

the Claimant 

Mark C. Russell, Esq., Jackson, Kelly, Holt 

& O'Farrell, P.O.B. 553, Charleston, West 

Virginia for the Respondent 

Judge Moore 

On April 9, 1982, Kenneth A. Wiggins, an underground 

supervisor, was discharged by Eastern Associated Coal Corporation. 

According to Mr. Fraley, the superintendent, Wiggins was 

discharged because he lied about the progress his crew had 

made toward abatement of a citation that ha.d been issued for 

coal accumulations along a beltline. Mr. Fraley also thought 

that Mr. Wiggins had lied about an earlier incident which 

will be discussed later. 

Jacky Jackson may well have been a key witness in this 

case, had he been called. He was the assistant general mine 

foreman. He was directly under Mr. Fraley in the chain of 

cor:1I1land and he is the one with whom Mr. Wiggins had most of 

his problems. It was he who allegedly made statements to 

Mr. Wiggins that were critical of Mr. Wiggins because of 

activities which Mr. Wiggins took on behalf of safety. 

Lying about the condition of a mine is not a protected 

activity and if that is the reason for the discharge of Mr. 

Wiggins he can not prevail. If, however, the "lying incident" 

was a trumped up charge and Mr. Wiggins was in fact fired 

for his earlier safety concerns then he has a legitimate 

case. 
Respondents exhibit 5 contains excerpts from respondents 

discharge and discipline procedures. Insofar as salaried 

employees are concerned, for the first offense there should 

be a verbal reprimand and warning. For the second offense 

there should be a written warning in the presence of a 

witness and a written warning is to be signed by both the 

employee and the witness. The third offense can result in 

"discharge if the situation warrants." This procedure is 

known as the "progressive disciplinary steps". Some offenses 

are considered so serious that the progressive disciplinary 

steps are bypassed. 

A list of the offenses which would require immediate 

discharge appears on Page 66 of the manual, but on the 

preceeding page and also on Page 72 it is stated that the 

offenses which could result in immediate suspension are not 

limited to the 8 listed on page 66. Lying is net one of 

the reasons listed on page 66. Respondent argues that the 

words "not limited to" means there are other offenses which 

would justify immediate suspension. But if respondent can 

add any offense it desires to the list then there is no 

point in having the list in the first place. I find that 

respondent did not follow its published discharge procedures 

in firing Mr. Wiggins, but regardless of whether lying is 

sufficiently serious to justify an immediate discharge, 

failure to follow the published procedures is not an act of 

discrimination. 

On March 26, 1982 Mr. Wiggins was working a shift that 

began at 3 P.M. and ended at 11 P.M. It was a production 

shift, meaning that he was expected to produce coal during 

that shift. According to Mr. Wiggins, and the testimony was 

undisputed, the belt broke about 9 P.M. and there was a 

large accumulation of spilled coal along the No. 1 belt. 

Because he knew that he would have to be gone for a considerable time repairing the belt, he made his ventilation checks 

at the faces (required every 2 hours) and found that all 

faces had insufficient air. Before he took half of his crew 

with him to repair th~ belt he instructed the roof bolters 

to repair the check curtain and t9 check the ventilation to 

make sure it was sufficient in the faces. They were then 

given some other assignments to do before beginning roof 

bolting. 

It took until almost the end of the shift for Mr. 

Wiggins and half of his crew to repair the belt, and shovel 

the coal on to it. And when he got back to the face area he 

checked all the faces and found good roof and sufficient 

air: He then left the mine and filled out the form describing 

the accomplishments made during this shift. (Exhibit B.) !f 

1/ Complainants exhibits are marked with letters and 

respondents exhibits are marked with numbers. 
When he next saw Jacky Jackson and was questioned about why 

he bolted only 1-1/2 places he explained the problems 

including the lack of ventilation and Jacky Jackson said 

"you're never to shut a roof drill down on a continuous mine 

section; that mine is usually waiting on the roof drill." 

(Tr. 83). As a result of the incident Mr. Wiggins received a 

notice of improper action (complainant's exhibit C) which 

complained because he "shut bolter down at 9 P.M." This is 

one of the incidents that Mr. Fraley 3aid he thought that 

Mr. Wiggins was lying about. There were 8 men underground 

with Mr. Wiggins that night, and none were called to testify, 

nor was there any explanation as to why they could not be 

reached by subpoena. Jacky Jackson could have denied that he 

made the above-quoted statement, but as stated earlier he 

was not subpoenad either. According to Mr. Fraley, Mr. 

Jackson had been his number one assistant but whe~ Jackson 

decided to leave, Fraley did not ask why he was leaving or 

where he was going. 

Respondents exhibit 3 is the "daily and on-shift report 

mine foreman or assistant". Among other things it shows the 

times when methane examinations were made in the faces of 

the 5 entries involved, as well as the methane content 

discovered. The exhibit shows no methane found but checks 

made at regular intervals, and it is obvious that if Mr. 

Wiggins had made the methane checks in the faces at the 

exact times indicated on the exhibit, Mr. Wiggins' statements 

concerning his activity on that shift could not be true. 

His testimony is that the times are approximate and that's 

the way all foremen fill out their on-shift reports. Mr. 

Larry, who makes up the State's mine foremen examinations 

and administers the test testified that the exact time 

should be used on the forms represented by respondent's 

exhibit 3. Two other witnesses, however, testified that at 

this mine all foremen used approximate times and all entries 

were in regular intervals such as is shown on Mr. Wiggins' 

report. With the work that a foreman has to do it would be 

impossible to examine the No. 1 room at exactly 4:05, examine 

it again at exactly at 6:05, again at exactly at 8:05 and 

again at exactly 10:05. The same sequence is shown for all 

5 rooms or faces. And all of these reports have to be approved 

by the mine foreman or mine manager. Respondents exhibit 3 

may indicate a violation of a safety standard but it does 

not destroy Mr. Wiggins' credibility. I find that Mr. Wiggins 

failure to live up to expectations insofar as roof bolting 

was concerned, was caused by his concerns for safety and 

that the notice of improper action issued because of this 

protected activity was an act of unlawful discrimination. 

1 r' A .· ·._) i ·1 
About 3 weeks prior to the above incident Mr. Wiggins 

had a discussion with Jacky Jackson concerning the safety of 

certain stoppings that had been constructed. The stoppings 

had been leaking and cinder blocks had been falling out. At 

one point a stopping collapsed and fell on the portobus that 

Mr. Wiggins' crew was in. The stoppings were made by piling 

cinderblock on top of each other with no cement or mortar in 

the joints. He later told Jacky Jackson that he had better 

rebuild the stopping in accordance with the law (substantial 

construction) and Jackson just looked at him and said nothing. 

The stopping was rebuilt the same way it had been constructed 

in the first place. While this incident illustrates a 

disagreement between Mr. Wiggins and management concerning 

matters of safety it does not in itself constitute an act of 

unlawful discrimination. After the incident involving the 

broken belt and lack of ventilation, Mr. Wiggins was transferred 

to the third shift which is a non-production shift. During 

the week of his discharge he was told to go to a certain 

section and bolt as many places as he could, service the 

equipment and supply the section so it would be ready for 

the day shift (a production shift) . When he got to the area 

in question he found two mechanics working on the cable reel 

of the roof bolter, (sometimes referred to as the roof 

drill). The reel had ''burned up" on an earlier shift so 

that it was no longer working. Mr. Wiggins explained that by 

"burned up'' he did not mean that the cable burned but that 

the inner workings that drive the reel so that it automatically 

takes up cable when the drill ia backing, had burned up. 

The roof bolter had been used by an earlier shift by bypassing 

the cable reel and attaching the cable through the sides of 

the connector case. "It is not permissible and if they 

happened to be operating that machine and ran into an accumulation 

of methane, it could easily be ignited." (Tr. 102). 

Mr. Wiggins was unwilling to have his men operate the 

drill in that condition. The cable leads were there, and in 

his opinion there was an electrical shock hazard. 

Mr. Wiggins and his crew did other maintenance work 

while the roof bolter was being repaired. It took about half 

the shift to repair the roof bolter and after that Mr. 

Wiggins and his crew bolted until quitting time. When he 

got on the surface Mr. Jackson questioned him about the fact 

that he had not finished the bolting he was supposed to do. 

Mr. Wiggins explained the condition of the roof bolter. Mr. 

Jackson's response was to shake his head and turn away and 

leave. While he did not specifically so state, Mr. Wiggins 

apparently interpreted this as a rejection of his explanation. 

On the last shift that Mr. Wiggins worked for respondent 

before being discharged, Mr. Wiggins was told to take four 

men to a certain area of the mine and clean the area. A 

1545 
citation had been issued by a federal mine inspector for 

accumulations of coal and dust, and the company had been 

given until 7 A.M. to abate the violation. It is unclear 

when the citation was actually issued or, which shift, or 

foreman was responsible for the condition that had developed 

in the designated area. When Mr. Wiggins and his crew saw 

the area there was no doubt in their minds as to why the 

citation had been issued. It was a clear violation of the 

clean-up regulations. 

Before the end of their shift Mr. Wiggins and his crew 

had loaded 3-1/2 cars of coal and debris. In order to get 

the men out of the mine by 8:00 A.M. it was necessary to 

leave the section at 7:00 A.M. And at 6:00 A.M. or 6:05 A.M. 

Mr. Wiggins informed Mr. Jackson by phone that he would not 

be able to get the place ready. Mr. Harris, the shift 

foreman, had also informed Mr. Jackson at around 6:00 A.M. 

that the place would not be ready by the end of the shift. 

Mr. Dunavant overheard the 6:00 A.M. call from Mr. Wiggins 

to Mr. Jackson and said that Mr. Jackson did not ask Mr. 

Wiggins to stay over after the shift was over. Mr. Dunavant 

listened on the phone as he was required to do until at 

least 6:45 A.M. and he at no time heard Mr. Wiggins tell Mr. 

Jackson that the place was ready. Mr. Harris claims that 

at 6:25.A.M. he was listening on the phone and heard Mr. 

Wiggins say that the place was ready. Mr. Harris got confused 

about the difference between saying a place was ready, and 

it would be ready, and I am not sure which he meant. 

According to Mr. Fraley at 6:15 A.M. Mr. Jackson told him, 

Mr. Fraley, that the place would not be ready but also said 

that Mr. Wiggins told Jackson that the place was ready at 

6:35 A.M. At 7:15 A.M. while he was on his way out of the 

mine, Mr. Wiggins again told Mr. Jackson that the place was 

not ready, that it needed spot-cleaning and rockdusting. I 

accept this testimony since no one bothered to call Mr. 

Jackson to refute it. And it does not make sense to me that 

any foreman, having a good record for working overtime and 

unexcused absences as Mr. Wiggins has would lie about the 

condition of the place when he knew the next foreman would 

be there within the hour, and when he could reasonably 

expect a federal mine inspector to be there within a short 

time. Mr. Wiggins was requested to seek to get the miners to 

work overtime into the next shift but Mr. Wiggins was unsuccessful 

in attempting to get them to stay. 

I also find that he was not asked to stay over even if 

the miners refused. I also find that Mr. Harris was confused 

about a telephone call between Mr. Wiggins and Mr. Jackson 

at 6:25 A.M. He either overheard the 6 or 6:05 call, or the 

7:15 call, and if he heard the 7:15 call he was mistaken 

about whether Mr. Wiggins said the place was ready, would 

be ready, or would not be ready. When Jackson asked Harris if 

the place was ready Harris replied "it's readv, Kenny said 

it's ready". But Mr. Harris was just repeating what he 

thought he heard Wiggins say to Jackson. 
Mr. Harris contradicted himself numerous times during 

cross-examination; for example, his discussion of respondents 

exhibit V begins on page 378 of the transcript. 2/. Not only 

is the testimony contradictory but exhibit v itself which was 

handwritten by Mr. Harris, contains the following contradictory 

statement: "Jacky called back into mine and Kenny '3aid belt 

would not be ready, and he told Kenny to stay over and work until 

dayshift got there. And Kenny said the belt would be ready." 

I find with respect to the events that occurred on the 

morning of April 8, 1982, that the version of those events 

as described by Kenneth Wiggins, Fred Powers and Ronny 

Dunavant is the more reliable. I find that Mr. Wiggins did 

not report that the belt was ready for inspection. I further 

find that he and his crew did their best to clean the belt 

in time, and that the firing was totally unjustified. 

Mr. Fraley was the one who made the decision to discharge 

Mr. Wiggins. Mr. Jackson had recommended a suspension. But 

Mr. Fraley decided that a discharge was proper. He was 

told, and I find that he believed, that Wiggins had lied 

about the condition of the belt. He thought Mr. Wiggins had 

lied about the ventilation problem of March 26, 1982 which 

resulted in Mr. Wiggins receiving a "notice of improper 

action" (plaintiff's exhibit C), and he was unaware, until 

the trial, of the other 2 events involving some improperly 

constructed stoppings and the cable reel of the roof bolter. 

While I have found that Mr. Wiggins was not lying, I also 

find that Mr. Fraley thought he was. 

Although I believe Mr. Fraley's testimony, that he 

thought that Mr. Wiggins was lying and that he had no knowledge 

of the other safety related incidents, knowledge of those 

incidents is imputed to the company by reason of the fact 

that a foreman was aware of those events. A foreman is a 

part of "management" and if a company could escape liability 

by denying that it knew of a foreman's activities, the Act 

would not work. Mr. Fraley of course, was acting for the 

company when he discharged Mr. Wiggins and though he made 

the decision personally, it was nevertheless a company 

decision. Inasmuch as the notice of improper action issued 

on March 27, 1982 was in itself an act of illegal discrimi.nation, 

and inasmuch as that notice, and the events that brought it 

about, were in part responsible for Mr. Wiggins' discharge, 

then under the Pasula test Mr. Wiggins established a prima 

facie case and it then became the burden of Eastern Associated 

Coal Corporation to show that it would have discharged Mr. 

Wiggins in any event, even if the events of March 26 and 27, 

1982 had not occurred. The company has made no attempt to 

~/The transcript refers to plaintiff's exhibit B. The 

transcript is replete with such errors. And it is the 

worst transcript that I have been involved with. 
carry this burden and consequently Wiggins must prevail. 

All proposed findings inconsistent with the above are 

REJECTED. 

PENDING A FINAL ORDER 

The Complainant shall have 15 days from the date of this 

decision to submit a proposed order granting relief for the 

violation found above. Respondent shall have 15 days from 

receipt of the Secretary's prop~e~~~ ~. 

Distribution: 

Charles c. Moore, Jr., 

Administrative Law Judge 

William B. Talty, Esq., Talty and Carroll, 112 Central Avenue 

Tazewell, Virginia 24651 (Certified Mail) 

Mark C. Russell, Esq., Jackson, Kelly, Holt and O'Farrell, 

P.O.B. 553, Charleston, West Virginia 25322 (Certified Mail) 

/db 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE SEP 12 l!ID FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN CLAY, INC., 

Respondent 

: 

CIVIL PENALTY PROCEEDING 

Docket Nos. Assessment Control Nos. 

DENV 79-97-PM 

CENT 79-194-M 

CENT 80-67-M 

CENT 81-47-M 

23-01602-05001 

23-01602-05002 

23-01602-05003 

23-01602-05004 

Southern Clay Pit and Plant 

Stoddard County, Missouri 

CENT 81-146-M 

CENT 81-270-M 

23-01005-05001 

23-01005-05002 

Southern Clay Plant 

Scott County, Missouri 

BARB 79-27-PM 40-00204-05001 

SE 81-104-M 40-00204-05003 

Southern Clay Mine 

Henry County, Tennessee 

LAKE 79-170-M 11-00494-05001 

LAKE 80-101-M 11-00494-05002 

LAKE 80-137-M 11-00494-05003 

LAKE 80-138-M 11-00494-05004 

LAKE 80-282-M 11-00494-05005 

LAKE 81-62-M 11-00494-05006 

LAKE 81-83-M 11-00494-05007 

LAKE 81-145-M 11-00494-05008 

LAKE 81-172-M 11-00494-05009 

LAKE 82-20-M 11-00494-05010 

Southern Clay Pit and Mill 

Pulaski County, Illinois 

DECISION APPROVING SETTLEMENT, AS CORRECTED 

Before: Judge Steffey 

Counsel for the Secretary of Labor and Southern Clay, Inc., 

filed on August 19, 1983, in the above-entitled proceeding a 

joint motion for approval of settlement. Under the settlement 

agreement, respondent would pay reduced penalties totaling 

$4,968.90 instead of the total penalties of $5,521.00 proposed 

by the Mine Safety and Health Administration. 

1548 
Discussion of Required Corrections 

The settlement amount given in the preceding paragraph is 

$398.84 higher than the total of the settlement penalties which 

will be obtained by adding the columns of settlement penalties_ 

shown on pages 2 through 7 of the joint motion for approval of 

settlement. The reason that the actual settlement amount is 

$398.84 larger than the total amount indicated in the motion is 

that there are about ten errors in the tabulations shown on 

pages 2 through 7 of the motion. I considered returning the 

joint motion to the parties so that they could correct the errors, 

but I found that all of them are either typographical or inadvertent errors of omission. Therefore, I have corrected the 

errors and have no reason to believe that the difference in the 

amounts I am approving in this decision will cause any real concern after the parties have had an opportunity to check the corrections which I have made. 

I shall first explain the errors which were made in listing 

the penalties proposed by MSHA and thereafter I shall explain the 

errors resulting from the parties' application of a flat 10-percent reduction in all of the penalties proposed by MSHA. 

As indicated in the first paragraph of this decision, if 

the total penalties proposed by MSHA in all 18 cases are added, 

the result is $5,521.00, whereas the amount which will be obtained by adding the proposed penalties listed on pages 2 through 

7 of the motion for approval of settlement is $4,984.00 which is 

$537.00 less than the actual proposed penalties. The difference 

of $537.00 between the actual penalties and the listing in the 

motion is specifically explained in the following discussion. 

On page 2 of the motion, under Docket No. LAKE 80-137-M, 

the parties overlooked the need to list Citation No. 366077 

dated 8/29/79 citing a violation of section 55.14-6 with an 

associated proposed penalty of $72.00. On page 3, the list of 

citations supporting the violations alleged in Docket No. LAKE 

80-137-M continues. There are two additional errors under 

Docket No. LAKE 80-137-M on page 3. Citation No. 367465 shown 

on the first line of page 3 should be changed to Citation No. 

366075 and the omitted alleged violation of section 55.12-30 

associated with that citation should be inserted in column 3 

on page 3. Also on line 2 of page 3, Citation No. 367465 should 

be changed to Citation No. 367464. The remaining facts given 

with respect to those two citations are correct and .no changes 

in the amounts of the proposed penalties are required. 

On page 3 of the motion, under Docket No. 

the parties failed to list Citation No. 189111 

1979, alleging a violation of section 55.9-2. 

penalty for the violation associated with that 

is $66.00. 

1550 

CENT 79-194-M, 

dated February 13, 

The proposed 

omitted citation 
On page 4 of the motion, under Docket No. LAKE 79-170-M, 

the parties failed to list Citation No. 366451 dated April 18, 

1979, alleging a violation of section 55.12-32. The penalty 

proposed for that alleged violation is $34.00. Also on page 4, 

under Docket No. LAKE 82-20-M, the proposed penalty shown in 

column 4 for the single violation alleged in that docket is 

$60.00, but that penalty should be corrected to show $160.00 

in column 4. • 

On page 6 of the motion, the first case listed is Docket 

No. CENT 81-146-M. That reference to Docket No. CENT 81-146-M 

should be deleted in its entirety because the proposed assessment for that case is already listed in full on page 5 and 

should not be repeated on page 6. Also on page 6, under Docket 

No. LAKE 80-101-M, the parties overlooked the need to list Order 

No. 366088 dated August 29, 1979, alleging a violation of section 55.12-17 with an associated proposed penalty of $305.00. 

Addition of the amounts 

errors equals the deficiency 

paragraph of this decision. 

cussed above is given below: 

associated with the above-described 

of $537.00 referred to in the fourth 

A summary of the corrections disLAKE 80-137-M (addition of proposed penalty 

associated with omission of 

Citation No. 366077) ..•••.••..•• $ 72.00 

CENT 79-194-M (addition of -proposed penalty 

associated with omission of 

Citation No. 189111 ••• • . .•• . .• .• 66.00 

LAKE 79-170-M (addition of proposed penalty 

associated with omission of 

Citation No. 366451) • . • • • . • • . • • . 34. 00 

LAKE 82-20-M (addition of $100 to increase incorrect proposed penalty of $60 

to $160 for Citation No. 500519) . 100.00 

CENT 81-146-M (reduction of proposed penalty 

associated with deletion of 

second listing of Docket No. 

CENT 81-146-M) •••••••.•••••..... -40.00 

LAKE 80-101-M (addition of proposed penalty 

associated with omission of 

Order No. 366088) •••.••.•.••.•.• 305.00 

Total difference between actual proposed penal ties and incorrect proposed penalties 

listed in joint motion •..•••••.••..••.••.... $ 537.00 
Since the parties' errors in deriving the total settlement 

penalties are different from those which caused the errors in 

listing. the total penalties proposed by MSHA, a somewhat different explanation is necessary to account for the difference of 

$398.84 between the total settlement amount of $4,968.90 (which 

results from taking 90 percent of the corrected proposed penarties of $5,521.00) and the amount of $4,570.06 which results 

from adding the settlement penalties listed on pages 2 through 

7 of the joint motion for approval of settlement. An explanation 

of the errors in listing the settlement penalties is given below: 

On page 2 of the motion, under Docket No. LAKE 80-137-M, a 

settlement penalty of $64.80 must be added in column 5 to reflect the omission of the proposed penalty of $72.00 associated 

with Citation No. 366077. 

On page 3 of the motion, under Docket No. CENT 79-194-M, a 

settlement penalty of $59.40 must be added in column 5 to reflect the omission of the proposed penalty of $66.00 associated 

with Citation No. 189111. 

The listing for Docket No. CENT 81-270-M begins on the last 

line of page 3. Under that same docket on the first line of 

page 4, a settlement penalty of $30.80 is shown in column 5 for 

Citation No. 544241 having a proposed penalty of $34.00. That 

settlement penalty is 20 cents more than 10 percent of $34.00 

and should be reduced to $30.60 to agree with all the other 

settlement penalties associated~ith proposed penalties in the 

amount of $34.00 which have been correctly reduced by 10 percent 

to $30.60. 

Also on page 4 of the motion, under Docket No. LAKE 79-170-M, 

a settlement penalty in the amount of $30.60 should be added in 

column 5 to correspond with the parties' failure to include 

Citation No. 366451 in that docket along with an associated proposed penalty of $34.00. 

It should additionally be noted on page 4, under Docket No. 

LAKE 82-20-M, that it is unnecessary to make an adjustment in 

the settlement penalties to reflect the fact that the proposed 

penalty for the single violation in that docket was incorrectly 

listed as $100.00 less than MSHA had proposed. No adjustment is 

necessary because the parties had listed a settlement penalty of 

$144.00 which is 10 percent of the corrected proposed penalty of 

$160.00. 

A somewhat complicated discussion is required for correcting the settlement penalty pertaining to the single violation 

alleged in Docket No. CENT 81-146-M. As previously indicated 

above, the entire listing for Docket No. CENT 81-146-M appears 

first on page 5 and then is repeated on page 6. The first 
listing on page 5 incorrectly shows the settlement penalty as 

$30.00 in column 5, and that amount should be corrected to reflect a correct settlement penalty of $36.00. Of course, the 

repeated listing of Docket No. CENT 81-146-M should be deleted 

where it is shown on page 6, but on page 6, the correct settlement penalty of $36.00 is shown in column 5. Nevertheless, to 

obtain a correct total for all settlement penalties, only $30.00 

should be deducted, when the second listing for Docket No. CENT 

81-146-M is deleted, because the first listing for that docket 

reflected an incorrect settlement penalty of $30.00 which has 

already been changed on page 5 to the correct amount of $36.00. 

On page 5 of the motion, under Docket No. LAKE 81-62-M, 

the settlement penalty shown for Citation No. 499968 should be 

changed from $102.86 to $102.60 because the amount of $102.86 is 

not 10 percent of the proposed penalty of $114.00. The aforesaid correction requires that the settlement penalties be reduced 

by 26 cents. 

On page 4 of the motion, under Docket No. LAKE 80-101-M, 

a settlement penalty of $274.50 must be added to reflect insertion of a settlement penalty to correspond with the proposed 

penalty of $305.00 associated with omission of Order No. 366088 

from that docket. 

As indicated above, the corrected total of the proposed 

penalties is $5,521.00 so that the total settlement penalties, 

or 90 percent of $5,521.00, are-$4,968.90. Also, as explained 

above, the motion, when filed, reflected total settlement penalties of $4,570.06. The difference between the motion's incorrect settlement penalties in the amount of $4,570.06 and the 

corrected total settlement penalties in the amount of $4,968.90 

is achieved by making the following adjustments which have been 

explained above: 

LAKE 80-137-M (insertion to correspond with 

omission of Citation No. 366077) ... $ 64.80 

CENT 79-194-M (insertion to correspond with 

omission of Citation No. 189111) ..• 59.40 

CENT 81-270-M (reduction of 20 cents to reflect correction of settlement 

penalty for Citation No. 544241) •.• -.20 

LAKE 79-170-M (insertion to correspond with 

omission of Citation No. 366451) ••. 30.60 

CENT 81-146-M (reduction of $30.00 to reflect 

deletion of Docket No. CENT 81-

146-M which had been listed twice). -30.00 

155J 
LAKE 81-62-M (reduction of 26 cents to reflect correction of settlement 

penalty for Citation No. 499968) .•.• $ . -.26 

LAKE 80-101-M (insertion to correspond with 

omission of Order No. 366088} ••.•.• 274.5~ 

Total Adjustments in Settlement Penalties ••••••• $ 398.84 

The ordering paragraphs at the end of this-decision list 

all the corrected proposed penalties along with the corrected 

settlement penalties. Therefore, if counsel 1/ for the parties 

become confused by the explanation of the corrections as they 

have been given above, they will be able to compare the listing 

of the proposed penalties and settlement penalties set forth on 

pages 2 through 7 of the joint motion with the tabulations at 

the end of this decision and find all of the corrections which 

have been explained above. 

Discussion of the Six Criteria 

Hearings in this consolidated proceeding were scheduled and 

then continued several times because counsel for the parties believed that the Federal Mine Safety and Health Act of 1977 was 

going to be amended by Congress so as to transfer inspection of 

respondent's mining operations from the jurisdiction of the Mine 

Safety and Health Administration to the jurisdiction of the 

Occupational Safety and Health Administration. That anticipated 

legislation never was passed by Congress and the parties have 

agreed to this settlement subject to respondent's right to contest MSHA's jurisdiction in the future if respondent should 

choose to do so. 

Section llO(i} of the Act lists six criteria which are required to be used in determining civil penalties. The joint 

motion for approval of settlement (pp. 7-8) discusses the six 

criteria in very general terms. As to the criterion of whether 

the payment of penalties would cause respondent to discontinue 

in business, the joint motion states that "[t]he proposed settlement will not deter Southern Clay, Inc.'s ability to continue 

in business." 

The criterion of the size of respondent's business is not 

discussed in specific terms in the joint motion. The 18 proposed assessments in the official files were prepared over a 

period of years beginning in 1978 and ending in 1981 and reflect 

that respondent's total business involves from 563,807 to 

619,548 man hours per year. Therefore, the proposed assessment 

1/ None of the attorneys who ultimately signed the joint motion 

participated in its original preparation. 
sheets assign two penalty points for the size of respondent's 

total operations under the penalty formula set forth in 30 C.F.R. 

S 100.3 as that formula was constituted prior to its amendment 

on May 21, 1982. Respondent has four different sites where mining operations are conducted. The assessment sheets reflect the 

man hours for those specific mines to be from a low of 29,964 to 

a high of 218,500. All but one of the proposed assessment sheets 

have assigned five penalty points pursuant to section 100.3(b). 

Therefore, the proposed assessment sheets assign from two to six 

points under section 100.3(b) (1) (ii) for the size of respondent's 

individual mines under the penalty formula. Inasmuch as a maximum of 15 points may be assigned solely on the basis of the size 

of an operator's business, I find that respondent should be 

classified as operating a relatively small business because the 

assignment of points under the criterion of size ranges from a 

low of 4 points to a high of 8 points. 

As to the criterion of respondent's history of previous 

violations, the joint motion states that respondent has no significant history of previous violations. The aforesaid statement as to respondent's history of previous violations is correct 

for the majority of the violations alleged in this proceeding, 

but the 76 violations alleged in all 18 dockets are spread over 

a 4-year period. The alleged violations, therefore, range from 

the very first inspections made of respondent's mines to those 

made in 1981. Consequently, the first proposed assessment 

sheets reflect assignment of zero penalty points under the criterion of respondent's history o~ previous violations, but in 

some of the most recent cases, such as the proposed assessment 

sheets in Docket Nos. LAKE 81-145-M and LAKE 82-20-M, the sheets 

reflect assignment of 16 and 15 penalty points, respectively, for 

respondent's history of previous violations under section 100.3(c). 

Inasmuch as a maximum of 20 penalty points can be assigned under 

the criterion of history of previous violations, it is obvious 

from MSHA's assignment of up to 16 penalty points under that 

criterion, that respondent, by 1981, had at least an average 

history of previous violations. Since all of the penalties proposed by MSHA reflect a gradual increase in assignment of penalty points under the criterion of history of previous violations as respondent continued to be cited for additional violations, the proposed penalties all reflect proper consideration 

of respondent's history of previous violations. 

As to the criterion of whether respondent demonstrated a 

good faith effort to achieve rapid compliance after the alleged 

violations were cited, the joint motion states that "Southern 

Clay, Inc. exercised good faith in abatement of the alleged · 

violations." While the joint motion is correct as to the criterion of good-faith abatement, it understates respondent's 

excellent record in abating violations rapidly. Under section 

100.3(f) of the formula in effect prior to May 21, 1982, an 

1555 
operator is assigned zero penalty points if it merely abates a 

violation within the time given by an inspector in his citation, 

but is assigned negative penalty points if it makes "special 

efforts" to abate the violation. In almost every instance, MSHA 

assigned respondent from 2 to 8 negative penalty points under the 

criterion of good-faith abatement. Rarely was respondent assigned 

zero penalty points and, in no case, was respondent assigned additional points for failure to abate a violation within the time 

given by the inspector. Here, again, of course, all of MSHA's 

proposed penalties reflect a reduction of the penalty because of 

respondent's having demonstrated "special efforts" in abating the 

alleged violations. 

With respect to the criterion of negligence, the joint motion 

avers that "[t]he above-stated alleged violations were the result 

of low to moderate negligence." The parties' statement as to 

negligence is overly broad and general. In Docket No. LAKE 80-

101-M, for the violation of section 55.12-17 alleged in Order No. 

366088, MSHA assigned 25 penalty points under the criterion of 

negligence pursuant to section 100.3(d) of the penalty formula. 

Section 100.3(d) provides for a maximum of 25 points to be 

assigned when there is existence of gross negligence. The violation involved was the alleged failure of an employee to block 

out the principal switch at a time when he was working on a 440-

volt switch box. In Docket No. LAKE 81-83-M, a total of 16 penalty points were assigned under the criterion of negligence for 

the single violation alleged in that case. 

Despite the fact that a few alleged violations were considered to have been associated with more than the "moderate" degree 

of negligence referred to in the joint motion, it is a fact that 

in the majority of cases, MSHA assigned in the neighborhood of 

from 10 to 12 "moderate" penalty points under the criterion of 

negligence. In each case, of course, the Assessment Office specifically considered the criterion of negligence and assigned 

an appropriate number of penalty points under that criterion. 

Finally, as to the sixth criterion of gravity, the joint 

motion states that the "* * * alleged violations were only mildly 

serious". The joint motion understates the seriousness of the 

alleged violations because the vast majority of the violations 

pertained to failure to erect guards over moving machine parts 

or along walkways. Those were generally assigned at least 7 

penalty points under section 100.3(e) of the penalty formula 

which means that the inspector thought the accidents which the 

standards were designed to prevent would "probably" occur and 

that they would result in at least lost work days for one person. 

Many of them were given 11 penalty points indicating that the 

isnpector thought they would be associated with injuries of a 

permanently disabling nature. Of course, some of the violations 

were also electrical in nature and those were given penalty 
assignments of 14 to 16 under the criterion of gravity. In 

each instance, however, MSHA assigned the number of penalty 

points under the criterion of gravity which the conditions described in the inspectors' citations and order seem to require. 

In most settlement proceedings, the parties' motions for, 

approval of settlement provide detailed facts as to unusual 

mitigating circumstances which were apparently not taken into 

consideration by MSHA when it derived the penalties which are 

being contested.· In this proceeding, the parties have given no 

specific reason to justify a 10-percent reduction in all of the 

76 penalties involved in this proceeding. If the proposed reduction were any more than 10 percent, I believe that the settlement would have to be returned for the parties to provide some 

specific reason for seeking a 10-percent reduction. It is a 

fact, however, that I have received detailed evidence in some 

proceedings pertaining to as many as 98 alleged violations. It 

is generally true that an operator is able to introduce mitigating circumstances in such proceedings so that, in most cases, I 

end up assessing slightly lower penalties than MSHA. 

I have read the conditions described in all of the citations 

and order involved in this proceeding and I believe that in an 

evidentiary proceeding I would be inclined to reduce many of 

them below the amount proposed by MSHA. For example, many of the 

electrical violations pertain to failure to replace a cover on a 

switch box or control box. If that box should prove to be in a 

remote area which was dry and in~requently used, I would be inclined to assess a lower penalty than has been proposed by MSHA 

because I believe the likelihood of a serious injury from such a 

violation is remote. Also, in many of the alleged violations 

pertaining to failure to guard a walkway or moving machine parts, 

the testimony at a hearing generally shows that the openings for 

which guarding is being required are somewhat small or are located in an area of infrequent travel by personnel. The mitigating circumstances in such cases usually warrant a reduction of 

the penalties to amounts less than those proposed by MSHA. 

As I indicated in the first paragraph of this decision, the 

total corrected proposed penalties amount to $5,521.00 and respondent has agreed to pay corrected settlement penalties in the 

amount of $4,968.90, or a reduction of $552.10. In my opinion, 

if a hearing had been held as to the 76 alleged violations involved in this proceeding, it is more likely than not that I 

would have assessed penalties of no more than the settlement 

amount agreed upon by the parties. Therefore, I find that the 

joint motion for approval of settlement should be granted and 

that the corrected settlement agreement should be approved. 

WHEREFORE, it is ordered: 

155~ 
(A) The joint motion for approval of settlement, as corrected in this decision, is granted and the corrected settlement 

agree~ent is approved. 

(B) Pursuant to the corrected settlement agreement, respondent, within 30 days from the date of this decision, shall pay 

civil penalties totaling $4,968.90 which are allocated to the 

respective alleged violations as follows: 

Southern Clay Pit and Plant, Stoddard County, Missouri 

Docket No. DENV 79-97-PM 

Proposed Settlement 

Penalties Penaltjes 

Citation No. 188803 4/25/78 §55.14-1 •••... $ 66.00 

Total Penalties in 

Citation No. 189105 

Citation No. 189106 

Citation No. 189107 

Citation No. 189110 

Citation No. 189111 

Citation No. 189112 

Docket No. DENV 79-97-PM 

Docket No. CENT 79-194-M 

2/13/79 §55.4-23 . ..... 2/13/79 §55.9-2 . . . . . . . 2/13/79 §55.14-1 . . . . . . 2/13/79 §55.20-11 . .... 2/13/79 §55.9-2 . . . . . . . 2/13/79 §55.~-3 . ...... 

$ 

$ 

66.00 

36.00 

38.00 

60.00 

52.00 

66.00 

60.00 

Total Penalties in Docket No. CENT 79-194-M $ 312.00 

Docket No. CENT 80-67-M 

Citation No. 191807 7/19/79 §55.4-2 •••..•. $ 52.00 

Citation No. 191808 7/19/79 §55.14-29 .•••. 56.00 

Total Penalties in Docket No. CENT 80-67-M .. $ 108.00 

Docket No. CENT 81-47-M 

Citation No. 546219 8/21/80 §55.12-25 . . . . . $ 18.00 

Total Penalties in Docket No. CENT 81-47-M. $ 18.00 

Southern Clay Plant, Scott County, Missouri 

Docket No. CENT 81-146-M 

Citation No. 544230 12/3/80 §56.14-1 . . . . . . $ 40.00 

Total Penalties in Docket No. CENT 81-146-M $ 40.00 

$ 59.40 

$ 59.40 

$ 32.40 

34.20 

54.00 

46.80 

59.40 

54.00 

$ 280.80 

$ 46.80 

50.40 

$ 97.20 

$ 16.20 

$ 16.20 

$ 36.00 

$ 36.00 
Docket No. CENT 81-270-M 

Proposed Settlement 

Penalties Penalties 

Citation No. 544240 6/10/81 §56.9-11 •...•.• $ 32.00 

Citation No. 544241 6/10/81 §56.9-2 .•..•.•• 34.00 

Total Penalties in Docket No. CENT 81-270-M. $ 66.00 

Southern Clay Mine, Henry County, Tennessee 

Docket No. BARB 79-27-PM 

Citation No. 101201 3/15/78 §55.12-34 •.•.•• $ 30.00 

40.00 

60.00 

72.00 

48.00 

90.00 

90.00 

60.00 

98.00 

Citation No. 101202 3/15/78 §55.12-8 ...... . 

Citation No. 101203 3/15/78 §55.11-12 ..... . 

Citation No. 101204 3/15/78 §55.11-2 •...... 

Citation No. 101205 3/15/78 §55.14-1 ...... . 

Citation No. 101208 3/16/78 §55.11-12 ..•... 

Citation No. 101209 3/16/78 §55.14-1 ..••..• 

Citation No. 101210 3/16/78 §55.17-1 .....•• 

Citation No. 101211 3/16/78 §55.14-1 •.•.... 

Total Penalties in Docket No. BARB 79-27-M . $ 588.00 

Docket No. SE 81-104-M 

Citation No. 110971 2/18/81 §55.5-5 .•..•... $ 36.00 

Total Penalties in Docket No. SE 81-104-M $ 36.00 

$ 28.8-0 

30.60 

$ 59.40 

$ 27.00 

36.00 

54.00 

64.80 

43.20 

81. 00 

81. 00 

54.00 

88.20 

$ 529.20 

$ 32.40 

$ 32.40 

Southern Clay Pit and Mill, Pulaski County, Illinois 

Docket No. LAKE 79-170-M 

Citation No. 366449 4/18/79 §55.12-32 •.•... $ 

Citation No. 366450 4/18/79 §55.14-1 .....•. 

Citation No. 366451 4/18/79 §55.12-32 •..... 

Citation No. 366452 4/18/79 §55.12-25 .....• 

Citation No. 366454 4/18/79 §55.20-11 ••...• 

44.00 

44.00 

34.00 

34.00 

66.00 

Total Penalties in Docket No. LAKE 79-170-M. $ 222.00 

Docket No. LAKE 80-101-M 

Citation No. 366079 8/29/79 §55.12-68 •..... $ 52.00 

Order No. -366088 8/29/79 §55.12-17 ..••..••. 305.00 

Total Penalties in Docket No. LAKE 80-101-M. $ 357.00 

r~•) 0uv 

$ 39.60 

39.60 

30.60 

30.60 

59.40 

$ 199.80 

$ 46.80 

274.50 

$ 321.30 
Docket No. LAKE 80-137-M 

Proposed Settlement 

Penalties Penalties 

Citation No. 366483 4/18/79 §55.5-5 . ... •.• .. $ 48.00 $ 43:-20 

Citation No. 366484 4/18/79 §55.5-5 . . . . . . . . 48.00 43.20 

Citation No. 366485 4/18/79 §55.5-5 . . . . . . . . 48.00 43.20 

Citation No. 366075 8/29/79 §55.12-30 . . . . . . 44.00 39.60 

Citation No. 366077 8/29/79 §55.14-6 . . . . . . . 72.00 64.80 

Citation No. 366078 8/29/79 §55.11-1 . . . . . . . 48.00 43.20 

Citation No. 366081 8/29/79 §55.12-32 . . . . . . 44.00 39.60 

Citation No. 366082 8/29/79 §55.12-32 . . . . . . 44.00 39.60 

Citation No. 366083 8/29/79 §55.14-1 . . . . . . . 52.00 46.80 

Citation No. 366084 8/29/79 §55.12-30 . . . . . . 44.00 39.60 

Citation No. 366086 8/29/79 §55.12-32 . . . . . . 44.00 39.60 

Citation No. 366087 8/29/79 §55.14-1 . . . . . . . 52.00 46.80 

Citation No. 366089 8/29/79 §55.12-8 . . . . . . . 30.00 27.00 

Citation No. 366090 8/29/79 §55.11-1 . ...... 48.00 43.20 

Citation No. 367461 8/29/7_9 §55.12-32 . . . . . . 44.00 39.60 

Citation No. 367462 8/29/79 §55.12-20 . . . . . . 44.00 39.60 

Citation No. 367463 8/29/79 §55.12-20 . . . . . . 44.00 39.60 

Citation No. 367464 8/29/79 §55.12-20 . . . . . . 44.00 39.60 

Citation No. 367465 8/29/79 §55.12-25 . . . . . . 44.00 39.60 

Citation No. 367466 8/29/79 §55.12-32 . ..... 44.00 39.60 

Total Penalties in Docket No. LAKE 80-137-M. $ 930.00 $ 837.00 

Docket No. LAKE 80-138-M 

Citation No. 366091 8/30/79 §55.14-1 . . . . . . . $ 72.00 $ 64.80 

Citation No. 366092 8/30/79 §55.4-2 . . . . . . . . 32.00 28.80 

Citation No. 366093 8/30/79 §55.11-2 . . . . . . . 32.00 28.80 

Citation No. 366094 8/30/79 §55.12-25 . . . . . . 44.00 39.60 

Citation No. 366095 8/30/79 §55.11-1 . . . . . . . 48.00 43.20 

Citation No. 367467 8/29/79 §55.12-25 . . . . . . 44.00 39.60 

Citation No. 367468 8/29/79 §55.12-32 . . . . . . 44.00 39.60 

Citation No. 367469 8/29/79 §55.12-32 . . . . . . 44.00 39.60 

Citation No. 367470 8/30/79 §55.12-18 . ...... 44.00 39.60 

Citation No. 367471 8/30/79 §55.12-8 . . . . . . . 44.00 39.60 

Total Penalties in Docket No. LAKE 80-138-M. $ 448.00 $ 403.20 

Docket No. LAKE 80-282-M 

Citation No. 366486 4/18/79 §55.5-5 . . . . . . . . $ 36.00 $ 32.40 

Total Penalties in Docket No. LAKE 80-282-M. $ 36.00 $ 32.40 

1,..... ·- '} ' •.J ' : \.. )' 'l .J' 
Docket No. LAKE 81-62-M 

Proposed Settlement 

Penalties Penalties 

Citation No. 499967 9/16/80 §55.12-25 . .... $ 140.00 $ 126-.00 

Citation No. 499968 9/16/80 §55.12-20 . . . . . 114.00 102.60 

Citation No. 499969 9/16/80 §55.14-1 . . . . . . 180.00 162.00 

Citation No. 499970 9/16/80 §55.14-1 . . . . . . 180.00 162.00 

Citation No. 499971 9/16/80 §55.14-6 . . . . . . 180.00 162.00 

Total Penalties in Docket No. LAKE 81-62-M. $ 794.00 $ 714.60 

Docket No. LAKE 81-83-M 

Citation No. 499972 9/16/80 §55.11-27 ..... $ 420.00 $ 378.00 

Total Penalties in Docket No. LAKE 81-83-.M. $ 420.00 $ 378.00 

Docket No. LAKE 81-145-M 

Citation No. 499973 9/16/80 §55.5-50(b) . . . $ 122.00 $ 109.80 

Total Penalties in Docket No. LAKE 81-145-M $ 122.00 $ 109.80 

Docket No. LAKE 81-172-M 

Citation No. 500513' 4/14/81 §55.J-2-18 . .... $ 160.00 $ 144.00 

Citation No. 500514 4/14/81 §55.12-25 . .... 160.00 144.00 

Citation No. 500515 4/14/81 §55.12-32 . . . . . 130.00 117.00 

Citation No. 500516 4/14/81 §55.4-24(c) . .. 98.00 88.20 

Citation No. 500517" 4/14/81 §55.11-26 . .... 106.00 95.40 

Citation No. 500518 4/14/81 §55.12-20 . .... 72.00 64.80 

Citation No. 500520 4/14/81 §55.12-30 . . . . . 72.00 64.80 

Total Penalties in Docket No. LAKE 81-172-M $ 798.00 $ 718.20 

Docket No. LAKE 82-20-M 

Citation No. 500519 4/14/81 §55.15-1 . . . . . . $ 160.00 $ 144.00 

Total Penalties in Docket No. LAKE 82-20-M. $ 160.00 $ 144.00 

Total Penalties in This Proceeding . . . . . . . . $5' 521. 00 $4,968.90 

~ e. rJ'o/71 

Richard c. Steffey ~ Administrative Law Judge 

1561 
Distribution: 

Edward H. Fitch IV, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

James H. Stock, Jr., Esq., Attorney for Southern Clay, Inc., 

Weintraub, DeHart, Robinson, Coggin & Trotter, P.C., Suite 2560, 

One Commerce Square, Memphis, TN 38103 (Certified Mail) 

yh 1 r- f~) '~J v ,._, 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 1Z1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

Respondent 

Docket No. PENN 82-121 

A.C. No. 36-03425-03503 

Maple Creek No. 2 Mine 

DECISION 

Appearances: 

Before: 

Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

In the above proceeding, the Secretary seeks civil penalties 

for seven alleged violations of mandatory safety standards. The 

violations were charged in citations issued by the Secretary, 

each of which alleged that the violations charged were significant 

and substantial as that term is used in the Mine Act. ~espondent 

admits that the violations occurred, but denies that they were 

significant and substantial, and contests the penalties proposed. 

Pursuant to notice, the case was heard in Uniontown, Pennsylvania, 

on April 28 and 29, 1983. Francis Wehr, Cleutas Mcconville, Wayne 

Schneider, and Joseph Baniak testified on behalf of Petitioner; 

David Coffman, Paul Shipley, and Gary Stevenson testified on behalf 

of Respondent. Each of the parties has filed a posthearing brief. 

Based on the entire record and considering the contentions of the 

parties, I make the following decision. 

ISSUES 

1. Are the violations cited of such nature as could signifcantly and substantially contribute to the cause and effect of a 

mine safety or health hazard? 

1563 
2. What is the appropriate penalty for each violation? 

FINDINGS AND CONCLUSIONS CO~.MON TO ALL VIOLATIONS 

1. At all times pertinent to this proceeding, Respondent was 

the owner and operator of an underground coal mine in Washington 

County, Pennsylvania, known as the Maple Creek No. 2 Mine. 

2. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in its operation of the Maple 

Creek No. 2 Mine, and the undersigned Administrative Law Judge has 

jurisdiction over the parties and subject matter of this' proceeding. 

3. The subject mine has an annual production of 872,848 tons 

of coal. Respondent has an annual production of 15,046,082 tons. 

Respondent is a large operator. 

4. The assessment of civil penalties in this proceeding will 

not affect Respondent's ability to continue in business. 

5. Between June 21, 1980 and June 20, 1982, there were 538 

paid violations at the subject mine. Of these, 42 were violations 

of 30 C.F.R. § 75.1403i 13 were violations of 30 C.F.R. § 75.605i 

and 56 were of 30 C.F.R. § 75.200. I conclude that this history is 

not such that penalties otherwise appropriate should be increased 

because of it. 

6. In the case of each citation involved herein, the violation 

was abated promptly and in good faith. 

7. Whether a cited violation is properly checked as a significant and substantial violation is per se irrelevant to a determination of the appropriate penalty to be assessed. The penalties 

hereinafter assessed are based on the criteria in section llO(i) of 

the Act. 

CITATION NOS. 1250086, 1250091, 1250093, 0829641, AND 0829647 

ISSUED MAY 25, 1982, JUNE 1, 1982, JUNE 2, 1982, JUNE 4, 1982 

AND JUNE 9, 1982 

Each of the above citations was issued for violation of the 

same notice to provide safeguard. The safeguard notice was issued 

July 26, 1973, and required that "all track locomotives operated 

in this mine shall be equipped with a suitable lifting jack and 

bar." The purpose of a lifting jack and bar is to assist in 

putting a derailed locomotive back on the track. The requirement 

that a lifting jack and bar be available is designed to prevent or 

mitigate two hazards: (1) in the absence of such equipment, miners 

might use other and less safe means to slew the derailed locomotive 

back on tracki (2) it may be more difficult to free a miner who is 

pinned or trapped by a haulage accident or derailment without such 

equipment. The locomotives involved herein all had "rerailers" but 

l r-r> l uli< 
in some circumstances these devices are not effective to rerail 

locomotives. Derailments are common at the subject mine. Injuries 

have occurred at the mine in attempting to rerail locomotives without a lifting jack and bar. Injuries have occurred at the subject 

mine due to derailments where a lifting jack and bar might have 

mitigated their severity. I conclude that all of the violations 

here were of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or health 

hazard. The violations were serious. There is no evidence that 

mine management was aware of the violations, but proper ~nspection 

would have revealed them. They resulted from Respondent's negligence. I conclude that an appropriate penalty for each violation 

is $100. There is no support in the record for Petitioner's proposal to assess a higher penalty for the violation charged in 

Citation No. 1250086. 

CITATION NO. 1250100 ISSUED JUNE 4, 1982 

This citation was issued because a clamp was missing from the 

trailing cable of a shuttle car. The clamp is designed to protect 

the cable, to keep it from pulling off the reel. Should that 

occur, the possibility of a spark occurring when the cable leads 

come apart, or the possibility of the trailing cable energizing 

the shuttle car are very remote. I conclude that the violation 

was not significant and substantial. I conclude further that it 

was not serious and Petitioner has not shown that it was caused by 

Respondent's negligence. I conclude that an appropriate penalty 

for this violation is $30. 

CITATION NO. 0829648 ISSUED JUNE 10, 1982 

This citation charges a violation of the approved roof-control 

plan and therefore of 30 C.F.R. § 75.200, in that the diagonal distance in the intersection of a room was 34 feet. The approved plan 

provides that whenever the sum of the diagonals exceeds 62 feet or 

either diagonal exceeds 32 feet, additional supports shall be provided. There was a slip or fault in the roof. The roof bolting 

was on pattern. The roof in the area in question had a drurnmy 

sound. The excessive width causes a situation of unsupported roof 

and, because of the abnormal roof conditions, created a likelihood 

of a roof fall. The failure to comply with the roof control plan 

under these circumstances could result in a roof fall which could 

seriously injure or kill miners. I conclude that the violation 

was significant and substantial. It was serious and was known or 

should have been known to Respondent. Therefore, it resulted from 

Respondent's negligence. I conclude that an appropriate penalty 

for this violation is $250. 

1565 
ORDER 

Based upon the above findings of fact and conclusions of law, 

Respondent is ORDERED to PAY within 30 days of the date of this 

decision the following penalties for the violations found herein 

to have occurred: 

CITATION 

1250086 

1250091 

1250093 

0829641 

0829647 

1250100 

0829648 

Distribution: 

PENALTY 

$ 100 

100 

100 

100 

100 

30 

250 

Total $ 780 

Jtl»v--6 d Yi?Jvviel__ 

James A. Broderick 

Administrative Law Judge 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

Respondent 

Docket No. PENN 82-336 

A.C. No. 36-00970-03504 

Maple Creek No. 1 Mine 

DECISION 

Appearances: 

Before: 

Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This proceeding involves a single citation alleging a violation of the mandatory safety standard contained in 30 C.F.R. 

§ 75.517. Respondent concedes that the violation occurred but 

denies that it was significant and substantial as the citation 

charges. Pursuant to notice, the case was called for hearing in 

Uniontown, Pennsylvania, on April 29, 1983. William P. Brown 

testified on behalf of Petitioner; Gary Stevenson and Samuel Curtis 

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. 

FINDINGS OF FACT 

1. R~spondent is the owner and operator of an underground 

coal mine in Washington County, Pennsylvania, known as the 

Maple Creek No. 1 Mine. 

2. The subject mine has an annual production of 541,835 tons 

of coal, and Respondent has an annual production of 15 million tons. 

Respondent is a large operator. 

15G'/ 
3. The imposition of a penalty in this case will not affect 

Respondent's ability to continue in business. 

4. In the 24 months prior to May 18, 1982, Respondent had 

538 violations of mandatory health and safety standards, of which 

28 were of 30 C.F.R. § 75.517. This is a moderate history of 

prior violations and penalties otherwise appropriate should not 

be increased because of it. 

5. Citation No. 1146357 was issued to Respondent o~ May 18, 

1982, because of damage to the outer jacket of a trailing cable 

to a continuous mining machine. The damage consisted of a 6 inch 

cut in the cable jacket, 2 inches of which were covered by tape. 

The ground wire was exposed. There was no visible damage to the 

insulation covering the three power wires. 

6. The miner was cutting coal at the time the citation was 

issued. 

7. The trailing cable is dragged along behind the miner on 

the mine floor as the miner moves from place to place, and is 

subject to damage upon such movement. 

8. The violation was abated promptly and in good faith. 

ISSUES 

1. Was the violation of such nature as could significantly 

and substantially contribute to the cause and effect of a mine 

safety or health rrazard? 

2. What is the appropriate penalty for the violation? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the subject 

mine, and the undersigned administrative law judge has jurisdiction over the parties and subject matter of this proceeding. 

2. The condition cited by the Federal Mine Inspector on 

May 18, 1982, described in Finding of Fact No. 5 was a violation 

of the mandatory standard contained in 30 C.F.R. § 75.517. 

3. The violation found above was of such nature as could 

significantly and substantially contribute to the cause and effect 

of a mine safety or health hazard. 
DISCUSSION 

A continuous miner trailing cable is subject to extraordinary 

abuse in the harsh atmosphere of an underground coal mine. For 

this reason, it has extraordinary protection: a thick outer jacket 

of reinforced lead cured neoprene, inside of which is a bare ground 

wire and three conductor wires, each of which is insulated with 

ethylene-propylene rubber. From the standpoint of miner safety, 

both the outer jacket and the conductor wire insulation are important. The area of the mine where the continuous miner ip operating 

is characteristically wet. Water can of course enter through a 

break in the outer jacket. If there is a pin hole in the inner 

insulation through which water seeps, this could result in cutting 

the power by tripping the ground fault. However, it also may cause 

electric shock to a miner handling the cable, particularly if he is 

standing in water. Following the test in the National Gypsum case, 

3 FMSHRC 822 (1981), I conclude that the latter event is reasonably 

likely to occur. Should it occur, it would result in an injury of 

a reasonably serious nature. 

Whether a violation is significant and substantial must be 

determined as of the time the citation is issued. It cannot be 

assumed either that it will be corrected or that it will not be 

corrected. The condition cited by the inspector in the context 

of continued normal mining operations, was of such nature as could 

contribute to the cause and effect of a mine safety hazard. 

4. The violation was serious and since the cable damage was 

visible and should have been observed on examination, it resulted 

from Respondent's negligence. 

5. Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for this violation is $175. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED 

1. The citation No. 1146357 including its designation as 

significant and substantial is AFFIRMED. 

2. Respondent shall within 30 days of the date of this 

decision pay the sum of $175 for the violation found herein to 

have occurred. 

~ kf3vo&vvz:d 

James A. Broderick 

Administrative Law Judge 

15GJ 
Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 ~arket Street, 

Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified ~ail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

U.S. STEEL MINING CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SEP 131~ 

CONTEST PROCEEDING 

Docket No. WEVA 82-219-R 

Citation No. 9914460; 3/3/82 

Gary No. 9 Mine 

ORDER OF DISMISSAL 

Before Judge Kennedy 

The parties having moved to withdraw the captioned 

notice of contest and to dismiss this matter, it is ORDERED 

that the same be, and hereby is, GRANTED and the matter 

DISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Louise Q. Symonds, Esq., U.S. Steel Mining Co., Inc., 600 Grant 

Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

Agnes Wilson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

ejp 

1571 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 ·SEP 14 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

ELK RIVER SEWELL COAL 

COMPANY, INC., 

Respondent 

. . 

. . 

. . 

DECISION 

Docket No. WEVA 82-307 

A.C. No. 46-06306-03005 F 

Stillhouse Run No. ·l Mine 

Appearances: Janine C. Gismondi, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Before: 

Charles A. Sinsel, Esq., Sinsel & Warder, 

Clarksburg, West Virginia, for Respondent. 

Judge Melick 

This case is before me upon the Petition for Assessment of 

Civil Penalty filed by the Secretary of Labor pursuant to section 

105Cd) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. section 801 et seq., the "Act" for one violation of the 

operator's roof control plan under the regulatory standard at 30 

C.F.R. § 75.200. The general issue before me is whether the Elk 

River Sewell Coal Company (Elk River) has violated the cited regulatory standard and, if so, whether that violation was "signif icant and substantial" as defined in the Act as interpreted by the 

Commission in Secretary v. Cement Division, National Gypsum Com-

~' 3 FMSHRC 822 (1981). If it is determined that a violation 

has occurred, it will also be necessary to determine the appropriate penalty to be assessed. Hearings on these issues were held 

in Morgantown, West Virginia, on August 3, 1983. 

As amended at hearing, the citation at bar alleges a violation of page 15, paragraph 4 of the operator's roof control plan 

and reads in relevant part as follows: 

The approved Roof Control Plan ••• was not complied with in the active working place in No. 2 entry 

on the third left section ••• in that only approximately 50% of the length of the 4 foot rods which [were] 

1 r:···.l .} 

u ' h-
permanent roof support [were] grouted and additional 

supports were not provided. The approved roof control 

plan requires that 80% of the length of each bolt be 

grouted .•• 

The roof control plan provides in relevant part as follows: 

The minimum length of rods shall be 4 feet, and 

the proper quantity of resin specified for proper' installation shall be used. When it is determined that 

less than 80% of each bolt is grouted, additional support shall be installed. All resin bolts shall be installed with approved bearing plates installed firmly 

against the roof. (Ex. G-3, p.4) 

On December 3, 1981, at approximately 9:20 p.m., a 6 foot 

thick section of roof measuring 20 feet by 40 feet fell in the 

intersection of the No. 2 entry 3 left panel of the Elk River 

Stillhouse Run No. 1 Mine, resulting in the deaths of three miners and injuries to a fourth. The fall was attributed to undetected fractures in the roof several feet above previously installed 4 foot resin-grouted roof bolts. 

MSHA Inspector Homer Grose was at the scene of the roof fall 

shortly after it occurred and participated in recovery operations. 

He observed that of the fifteen to twenty roof bolts that were 

exposed by the fall, none had been grouted as required by the 

roof control plan. The plan required that 80% of each bolt be 

grouted, whereas none of these bolts had been grouted more than 

50% of their length. This evidence is not disputed. Moreover, 

it is conceded that in the area of the fall, the only additional 

roof support was that provided by temporary "turnposts" installed 

in accordance with a State approved roof control plan. These 

posts were admittedly not "additional supports" within the meaning of paragraph 4, page 15 of the MSHA approved plan. 

Within this framework of undisputed evidence, it is apparent 

that there was in fact a violation of the roof control plan as 

alleged. Whether that violation was "significant and substantial", however, depends on whether, based on the particulars surrounding the violation, there existed a reasonable likelihood 

that the hazard contributed to would have resulted in an injury 

of a reasonably serious nature. Secretary v. Cement Division, 

National Gypsum Co., supra. The test essentially involves two 

considerations, Cl) the probability of resulting injury, and (2) 

the seriousness of the resulting injury. MSHA readily acknowledges in this case that there was no direct causal relation between the roof fall on December 3rd and the inadequately grouted 

1573 
roof bolts ci~ed herein. Inspector Grose observed that the fracture in the roof that caused the fall in this case occurred some 

2 feet beyond the reach of the required 4 foot roof bolts and 

opined that even if the bolts had been grouted to 80% of their 

length as required by the plan, the roof fall would not have been 

avoided. Grose did suggest, however, that if the insufficient 

grouting had been discovered by the operator and the operator had 

provided the additional roof support required by the roof control 

plan, then it "might have helped". 

The violation in this case was, in any event, quite serious. 

Mine Foreman and Safety Director of Elk River, R. Nat Williams, 

admittedly knew that this mine had a "checkerboard" top fraught 

with vertical and horizontal hairline cracks. J.W. Post, Elk 

River's president, was also aware of the cracks and fissures in 

the roof and had experienced particular problems because of this 

in supporting the roof. Inspector Grose concluded that, particularly under these poor roof conditions, the insufficient grouting 

of the roof bolts without additional permanent support would reasonably likely contribute to a roof fall and thereby lead to serious injuries and death. The Inspector's conclusions are not disputed and, based upon my own independent appraisal of the circumstances, I conclude that this violation indeed was "significant 

and substantial". For the same reasons, I find that the violation reflected a high level of gravity. 

In determining whether the operator was negligent, however, 

it is necessary to look at the history of the provision in the 

roof control plan calling for only 80% grouting of the roof bolts 

in this mine. It is not disputed that when the operator first 

submitted its plan to MSHA, it provided for 100% grouting of its 

four foot resin roof bolts. When 100% grouting is required, compliance may readily be determined by observing during the insertion of the bolt whether some of the resin oozes out around the 

head of the bolt. In recognition of the "checkerboard" fractured 

roof at the Stillhouse Run No. 1 Mine, into which much of the inserted resin would often dissipate, MSHA proposed the 80% grouting specification. 

Unfortunately, no completely satisfactory or reliable method 

apparently exists to determine whether roof bolts have been grouted to less than 80% of their length. While MSHA maintained at 

hearing that a piece of coathanger or similar wire may in some 

limited situations be inserted around the bearing plate and roofbolt head into the hole adjacent to the bolt in order to estimate 

the length of roof bolt that is not grouted, MSHA apparently 

failed to inform the mine operator of even this limited technique. 

The mine operator, on the other hand, agreed to the 80% grouting 

~~·~ 

~) ' -~ 
provision in its roof control plan while apparently not knowing 

how to determine whether less than 80% of roof bolt was grouted. 

According to Elk River's Mine Foreman and Safety Director 

Arnett Williams, they were using enough resin with their 4 foot 

bolts that was sufficient by manufacturer's specifications for 

five foot bolts. Williams nevertheless knew that even that 

amount of resin could "leak out" through the fissures. He had 

heard of the so-called "wire test" but had never seen it done. 

The president of Elk River, J. W. Post, had not even heard of the 

"wire test" before the citation herein and did not in any event 

believe the test was feasible. There was insufficient clearance 

to insert coat hanger wire into a roof bolt hole and, in most 

cases, the bearing plate would be flush against the roof, thereby 

preventing the insertion of any wire. He had tried to perform 

such tests but found it impossible. 

Mine Foreman John Cochran knew of no method to determine 

whether the 80% grouting requirement had been met, except through 

the use of a torque wrench. Cochran noted that if the bolt has 

been insufficiently grouted, you may get a "springy" sensation 

upon torque testing. There is no evidence in this case that Elk 

River had not been performing required torque tests on the roof 

bolts and there is similarly no evidence that any of the def icient roof bolts in the fall area had been detected during the 

torque tests. Cochran thought the "wire test" could, in any 

event, only rarely be used because, in most cases, the bearing 

plate is flush against the roof, leaving no room to insert anything adjacent to the roof bolt. 

Within this framework, I conclude that the operator was not 

free from negligence. It was incumbent upon the operator in accepting a less than 100% grouting requirement in its roof control 

plan to have determined whether or not it could comply with that 

requirement. In this case, the operator admittedly believed 

there was no satisfactory or reliable way to determine. whether it 

was complying with that requirement and apparently made little 

effort to determine whether there was in fact such a test. 

In determining an appropriate civil penalty, I consider that 

the operator is relatively small in size, that it has a minimal 

history of violations and that the penalty here imposed would not 

affect its ability to stay in business. Within this framework, I 

find that a penalty of $1,000 is appropriate. 

1575 
ORDER 

Citation No. 886891 is affirmed. 

shall be paid by the Elk River Sewell 

30 days of the date of this decision. 

Distribution (by certified mail): 

Janine C. Gismondi, Esq., Office o 

ment of Labor, 3535 Market Street, 

civil penalty of $1,000 

al Company, Inc. within 

Law Judge 

Charles A. Sinsel, Esq., Sinsel and Warder, Goff Building, P.O. 

Box 1206, Clarksburg, WV 26801 

nsw 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SE'- .. O I 1fi1983 . .>- -.• 1 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Docket No. PENN 82-337 

A.C. No. 36-03425-03505 

Maple Creek No. 2 Mine 

DECISION 

Appearances: 

Before: 

Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks penalties for two violations of mandatory 

safety standards. The violations were charged in citations ·which 

alleged that the violations were significant and substantial. During the hearing, the inspector conceded that the violation charged 

in Citation No. 1249719 was not significant and substantial. 

Respondent does not contest.the fact that the violations occurred 

but denies that they were significant and substantial and contests 

the penalties proposed. Pursuant to notice, the case was heard in 

Uniontown, Pennsylvania.on April 29, 1983. Francis Wehr and Alvin 

Shade testified on behalf of Petitioner; Samuel Cortis testified 

on behalf of Respondent. Each party has filed a posthearing brief. 

Based on the entire record, and considering the contentions of the 

parties, I make the following decision. 

FINDINGS OF FACT 

1. Respondent is the owner and operator of an underground 

coal mine in Washington County, Pennsy,lvania, known as the Maple 

Creek No. 2 Mine~ 

1571 
2. The subject mine has an annual production of 872,848 tons 

of coal and Respondent has a total annual production of 15 million 

tons. Respondent is a large operator. 

3. The assessment of civil penalties in this case will not 

affect Respondent's ability to continue in business. 

4. Between June 3, 1980 and June 2, 1982, there were 656 paid 

violations in the subject mine. Of these, two were violations of 

30 C.F.R. § 75.1105, and eleven were violations of 30 C.F.R. 

§ 75.605. This is a moderate history of prior violations, and 

penalties otherwise appropriate will not be increased because of 

the history. 

5. The imposition of penalties for the violations charged 

will not affect Respondent's ability to continue in business. 

6. Each of the violations charged occurred except as otherwise found herein and in each case the violation was abated 

promptly and in good faith. 

7. Citation No. 1249719 issued May 19, 1982, charged a violation of 30 C.F.R. § 75.605, consisting of a loose strain clamp 

on the trailing cable of a roof bolter. 

8. Citation No. 1249387 issued May 7, 1982, charged a violation of 30 C.F.R. § 75.1105 because the air current used to 

ventilate the battery charging station was not coursed directly 

into the return. Coal was not being mined, but mechanics were 

present on the section. 

9. The hazard presented by the latter violation was two-fold: 

(1) toxic fumes from the battery could be coursed to the working 

faces; (2) should a fire occur, the smoke would be coursed to the 

working faces. 

10. The condition described in Citation No. 1249387 had been 

cited on prior occasions at the subject mine. 

ISSUES 

1. Was the violation charged in Citation No. 1249387 properly 

designated significant and substantial? 

3. What is the appropriate penalty for the violations? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the 

subject mine, and the undersigned Administrative Law Judge has 

jurisdiction over the parties and subject matter of this 

proceeding. 
2. The violation of 30 C.F.R. § 75.6G5 charged in Citation 

No. 1249719 issued on May 19, 1982, occurred, but was not of such 

nature as could significantly and substantially contribute to the 

cause and effect of a mine safety hazard. The violation was not 

serious. It was not known to Respondent and was not readily 

apparent. Respondent "might have been aware of it" on weekly 

examination of the equipment. Negligence was not shown. 

3. Whether a cited violation is found to be significant and 

substantial is per se irrelevant to a determination of the appropriate penalty to be-assessed. The Commission is not bound by 

the Secretary's regulations setting out how he proposes to assess 

penalties. Secretary v. U.S. Steel Mining Co., Inc. 5 FMSHRC 934 

( 1983) (ALJ) • 

4. Based on a consideration of the criteria in section llO(i) 

of the Act, I conclude that an appropriate penalty for the violation charged in Citation No. 1249719 is $30. 

5. Respondent argues in its brief that the condition cited in 

Citation No. 1249387 was not a violation of 30 C.F.R. § 75.1105. 

However, in its answer, in effect it admitted the violation, challenging only the significant and substantial designation. I conclude that a violation of the mandatory safety standard was shown. 

The battery charging station involved herein was "an area enclosing electrical installations" and air currents ventilating it are 

required to be coursed directly to the return. 

6. The condition cited was reasonably likely to result in 

reasonably serious injuries, either from toxic fumes or smoke inhalation. The violation was serious. 

7. The violation was known or should have been known to 

Respondent. It had been cited before. The violation therefore, 

was the result of Respondent's negligence. 

8. Based on a consideration of the criteria in section llO(i) 

of the Act, I conclude that an appropriate penalty for the violation charged in Citation No. 1249387 is $250. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED 

1. The violation of 30 C.F.R. § 75.605 described in Citation 

No. 1249717 was not significaint and substantial. 

2. Respondent shall within 30 days of the date of this decision pay the sum of $30 for the violation of 30 C.F.R. § 75.605 

found herein to have occurred. 

1579 
3. The violation of 30 C.F.R. § 75.1105 was properly designated as pignificant and substantial. 

4. Respondent shall within 30 days of the date of this decision pay the sum of $250 for the violation of 30 C.F.R. § 75.1105 

found herein to have occurred. 

J~f.!:~eL Administrative Law Judge 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

• OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 19 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

YOUGHIOGHENY & OHIO COAL 

COMPANY, 

Respondent 

Docket No. LAKE 83-36 

A.C. No. 33-00968-03513 

Nelms No. 2 Mine 

DECISION 

Appearances: 

Before: 

Patrick M. Zohn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for 

Petitioner; 

Robert C. Kota, Esq., St. Clairsville, Ohio, 

for Respondent 

Judge Broderick 

STATEMENT OF THE CASE 

A Federal mine inspector issued an order of withdrawal under 

section 107(a) of the Mine Act for an imminent danger which 

alleged a violation of 30 C.F.R. § 75.308, because he found an 

accumulation of methane in a working place in the subject mine. 

Respondent does not challenge the finding of methane accumulation 

or the propriety of the imminent danger withdrawal order, but 

contends that no violation of the mandatory standard was shown. 

Petitioner's brief argues that the imminent danger order was 

properly issued, but this is conceded, and, in any case, is not an 

issue in a penalty proceeding. 

Pursuant to notice, a hearing was held on June 27, 1983, in 

Wheeling, West Virginia. Federal Mine Inspector Charles J. Hall 

testified for Petitioner. John Repella and Nelson Cramblett 

testified for Respondent. Both parties have filed posthearing 

briefs. Based on the entire record and considering the contentions of the parties, I make the following decision. 

FINDINGS OF FACT 

1. Respondent is the operator of an underground coal mine 

in Harrison County, Ohio, known as the Helms No. 2 Mine. 

1581 
2. Coal was produced by the subject mine and its operation 

affected interstate commerce. 

3. Respondent is a moderate sized operator, employed 339 

miners, and produced 820,000 tons of coal annually at the subject 

mine. 

4. Respondent's history of prior violations shows only one 

previous violation of the safety standard in 30 C.F.R. § 75.308, 

and that violation was in 1973. The history is not such that a 

penalty otherwise appropriate should be increased because of it. 

5. The subject mine is classified as a gassy mine and is 

on a 5-day inspection cycle under 103(i) of the Act because it 

liberates more than one million cubic feet of methane during a 

24-hour period. 

6. On July 19, 1982, Federal Mine Inspector Charles J. Hall 

conducted a roof control inspection of the subject mine, including 

the 4 North off the Main East Section where coal was being produced. 

7. Inspector Hall issued a withdrawal order for an imminent 

danger when he found a concentration of methane in excess of 

5 percent within 12 inches of the roof at the last row of roof 

supports in the E entry. The order alleged a violation of 30 C.F.R. 

§ 75.308. 

8. A sample of the atmosphere was taken at the time the 

order was issued and when tested at the MSHA laboratory in 

Mt. Hope, West Virginia, showed 6.34 percent methane. 

9. The inspector took a ventilation reading at the last open 

crosscut which showed 10,208 cubic feet per minute which in the 

inspector's judgment was marginal under the circumstances. 

(30 C.F.R. § 75.301 requires.a minimum of 9,000 cubic feet a minute 

at the last open crosscut) • 

10. There had been a roof fall in the E entry on the previous 

shift. The fall knocked out a jack and tore the curtain which was 

up in the fall area. Miners were installing breaker posts behind 

the fall when the order was issued. 

11. The section foreman decided to abandond the E entry and 

cut coal in the crosscut. Tubing f~om the air dyne fan was 

extended into the crosscut. The continuous miner was cutting coal 

approximately 40 feet from where the methane concentration was 

found. 

12. The section foreman checked the area of the fall at the 

beginning of the shift and again about 20 minutes before the 

inspector arrived and found approximately .2 percent methane. 

1

,-q ... 

-..)·Ji .... 
13. Following the issuance of the order, the power was shut 

off, and the men were withdrawn except those engaged in abating 

the condition. The curtains were tightened and curtain was 

extended into the E entry to the fall area. The condition was 

abated in about 1 hour when the methane concentration was reduced 

to less than .1 percent. 

14. Eleven miners were working in the section at the time 

the order was issued including 2 in the E entry installing posts, 

and 2 in the crosscut off the E entry cutting coal. A shuttle car 

was running in and out from the continuous miner. 

15. The methane monitor on the continuous miner was operating 

properly at the time the order was issued. No permissibility 

violations were cited in the section. The section was adequately 

rock-dusted. The section was somewhat damp. 

16. The methane concentration in the E entry was due in part 

to the fan pulling the air to the face being mined (the crosscut) 

and short circuiting the air to the E entry. 

REGULATION 

ISSUE 

30 C.F.R. § 75.308 provides as follows: 

If at any time the air at any working place, when 

tested at a point not less than 12 inches from the roof, 

face, or rib, contains 1.0 volume per centum or more 

of methane, changes or adjustments shall be made at 

once in the ventilation in such mine so that such air 

shall contain less than 1.0 volume per centum of 

methane. While such changes or adjustments are underway and until they have been achieved, power to electric 

face equipment located in such place shall be cut off, 

no other work shall be permitted in such place, and due 

precautions shall be carried out under the direction of 

the operator or his agent so as not to endanger other 

areas of the mine. If at any time such air contains 

1.5 volume per centum or more of methane, all persons, 

except those referred to in section 104(d) of the Act, 

shall be withdrawn from the area of the mine endangered 

thereby to a safe area, and all electric power shall be 

cut off from the endangered area of the mine, until the 

air in such working place shall contain less than 1.0 

volume per centum of methane. 

Whether a finding of a concentration of methane in the explosive range under the circumstances of this case constitutes a 

violation of 30 C.F.R. § 75.308? 

158J 
CONCLUSIONS OF LAW 

1. Respondent was subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the subject 

mine, and the undersigned administrative law judge has jurisdiction of the parties and subject matter of this proceeding. 

2. Although excessive accumulation of methane in a working 

place is not per se a violation of the mandatory safety standard 

in 30 C.F.R. '§75:308, the failure of an operator to take reasonable and necessary steps to control and dissipate methane concentrations before they reach the explosive range is a violation of 

the standard. 

DISCUSSION 

In a case under the 1969 Coal Act, the Board of Mine Operations Appeals held that a finding of methane in excess of six 

percent 6 feet from the working face did not in itself establish 

a violation 0£ section 303(h) (2) of the Coal Act (this statutory 

provision is identical to 30 C.F.R. § 75.308). Eastern Associated 

Coal Corporation, 1 IBMA 233 (1972). The holding was reaffirmed 

in Mid-Continent Coal and Coke Company, 1 IBMA 250 (1972) where 

the Board said: "Neither the Act nor the Regulations provides that 

a mere presence of methane gas in excess of 1.0 volume per centum 

is per sea violation." 1 IBMA at 253. In 1977, the Board held 

that a 5 percent methane accumulation in the face did not establish 

a violation of 30 C.F.R. § 75.301 (requiring ventilation of active 

workings with air of sufficient volume and velocity to dilute, 

render harmless and carry away explosive gasses) . "The Board is 

of the opinion that it would be patently inconsistent administration to hold that an excessive methane accumulation constitutes a 

violation under 30 C.F.R. § 75.301 when the provisions of 30 C.F.R. 

§ 75.308 provide for specific actions to be taken when such an 

excessive accumulation is discovered." Mid-Continent Coal and Coke 

Company, 8 IBMA 204, 212 (1977). 

It is a well known fact that the 1977 Mine Act was passed in 

part because of the Scotia mine disaster in March, 1976. The 

Senate Committee Report on S. 717 (which became the Mine Act) reads 

in part: 

"At Scotia, in March, 1976, twenty three miners and 

three Federal inspectors died in two explosions of 

accumulated methane gas when the mine safety enforcement effort was unable to detect and address chronic 

conditions of inadequate ventilation in the mine. 

* * * * * * * 

The Scotia disasters demonstrated once again that 

until the Congress finally provides truly effective 

1,.... <) ' dU'l 
mine health and safety laws and insists on responsive 

administration and enforcement of those laws, this 

problem will continue to occur." 

s. Rep. 95-181, 95th Cong., 1st Sess. 4-5 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong., 2d Sess., Legislative History of The Federal Mine 

Safety and Heal th Act of 1977, at 592-3 ( 197 8) ["Leg is. Hist."] • 

The Committee Report further made it clear that the civil 

penalty provisions of the Act were intended to induce compliance 

with the Act and its standards, and the Scotia disaster was 

specifically related by the Committee to the failure of the civil 

penalty procedures under the 1969 Coal Act. See Legis. Hist. 597, 

629. 

Whatever the authority of the Board decisions under the Coal 

Act, it is clear that when it passed the 1977 Mine Act, Congress 

intended that methane buildups in underground mines be prevented 

by the imposition of civil penalties in appropriate circumstances. 

It is clearly not enough that a mine operator take steps to 

eliminate explosive concentrations of methane after they are found 

by an inspector and a withdrawal order is issued. 

In the case of C F & I Steel Corporation v. Secretary, 

3 FMSHRC 2819 (1981) , Judge Boltz found that because the operator 

at once made necessary ventilation changes when served with an 

order alleging that 1.0 percent methane was contained in the air 

at the working face, no violation of 30 C.F.R. § 75.308 was established. However, in a later case, Consolidation Coal Company v. 

Secretary, 4 FMSHRC 1960 (1982), Judge Kennedy observed (dicta) 

11 I believe a more precise reading of the law would show that while 

a 1% concentration is not a violatiop [of 75.308] an operator's 

failure to control and dissipate the concentration before it 

reaches 1.5% warrants a finding of violation." 4 FMSHRC at 1962, 

fn 4. 

3. The following factors singly or in combination require a 

mine operator to take extra precautions to avoid permitting a 

methane buildup to reach the explosive range: (a) the mine liberates excessive methane and is classified as a gassy mine; (b) a 

recent roof fall; (c) an abandoned area or gob area near the working 

places. 

4. In this case, the operator was aware of the three factors 

listed above. It knew or should have known that extending the fan 

tubing into the crosscut would short circuit the air going to the 

abandoned entry. Under the circumstances, it was required by 

30 C.F.R. § 75.308 to take necessary and reasonable steps - including directing a greater quantity of air to the last open crosscut, 

and tightening and extending the curtains - to assure that there 

would not be a methane buildup in entry E. 

1585 
5. Because the Respondent failed to take such steps, it was 

in violation of the mandatory standard in 30 C.F.R. § 75.308. 

6. The violation was extremely serious. The methane concentration was in a working place. It could have resulted in an 

explosion and multiple fatalities. 

7. The Respondent should have been aware of the violation. 

See conclusions of law 3, 4, and 5 above. The violation resulted 

from Respondent's negligence. 

8. Respondent's history of prior violations is not such that 

a penalty otherwise appropriate should be increased because of the 

history. 

9. There is no evidence that the imposition of a penalty 

will have any effect on the operator's ability to continue in 

business. 

10. The Respondent promptly and in good faith abated the 

violation after it was cited. 

11. Considering the criteria in section llO(i) of the Act, 

I conclude that an appropriate penalty for the violation is $2,500. 

ORDER 

Based on the above findings of fact and conclusions of law, 

Respondent is ORDERED to pay within 30 days of the date of this 

decision the sum of $2,500 for the violation found herein to have 

occurred. 

Distribution: 

J Ml)Uj kfiY'.Jdin~i James A. Broderick 

Administrative Law Judge 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Robert C. Kota, Esq., P.O. Box 1000, St. Clairsville, OH 43950 

(Certified Mail) 

/fb 158\J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RALPH YATES, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 191983 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 82-360-D 

MSHA Case ~o. HOPE CD 82-26 

CEDAR COAL COMPANY, 

Appearances: 

Before: 

Respondent Big John No. 4 Mine 

DECISION 

John Boettner, Esq., Boettner and Crane, Charleston, 

West Virginia, for Complainant; 

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

Charleston, West Virginia, for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

Complainant alleges that he was discharged from the position 

he held with Respondent as section foreman because he made complaints to his supervisor concerning improper ventilation in the 

subject mine and that these complaints constituted activity protected under the Mine Act. Complainant's employment was terminated 

on March 9, 1982. On March 11, 1982, he filed a complaint with 

MSHA. Following an investigation, MSHA notifed Complainant by 

letter dated April 29, 1982, that it had determined that a violation 

of section 105(c) of the Act had not occurred. On August 22, 1982, 

Complainant filed a letter with the Commission which was accepted 

as a complaint. Following an order to show cause, Respondent's 

Answer was filed December 10, 1982. Respondent contends that the 

complaint was not timely filed, and that it failed to state a cause 

of action under the Mine Act. Further, it denied that Complainant's 

employment was terminated because of activity protected under the 

Act. 

The case was heard in Charleston, West Virginia, on January 27, 

1983, May 5 and May 6, 1983. The record was held open for depositions which were taken on May 18, 1983 and June 21, 1983. The 

record was closed July 22, 1983. Both parties were afforded an 

opportunity to file posthearing briefs with proposed findings of 

fact and conclusions of law. Respondent filed such a brief. 
Based on the entire record, and considering the contentions 

of the parties, I make the following decision~ 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding, Respondent 

Cedar Coal Company was the operator of an underground coal mine in 

Keith, West Virginia, known as the Big John No. 4 Mine. 

2. Complainant was employed as a section foreman by Respondent 

beginning November 4, 1980. He originally worked at Grace No. 2 

Mine but in a short time he transferred to Big John No. 4 Mine as 

belt foreman. In approximately the fall of 1981, he became section 

foreman at Big John No. 4 Mine in the 3 South section. Hecontinued 

working as section foreman through March 8, 1982. He signed a 

"quit slip" on March 9, 1982. 

3. On November 5, 1981, State Mine Inspector Carl Val Hoffman 

inspected the subject mine and issued a notice of violation because 

in the No. 4 entry off the 3 South section, the designated escapeway was ventilated by return air and did not have reflective material 

at 25 feet intervals on the life line cord. On the same day, two 

other notices of violation were issued, one because the No. 4 entry 

was mined at an excessive width for a distance of 18 feet, and the 

other for another violation of the roof control plan in the No. 4 

entry. The first violation was abated November 6, 1981, and the 

others by 9:30 p.m., November 5. 

4. In approximately November, 1981, the evening shift mine 

foreman in the 3 South section of the subject mine, Gary Davita, 

relayed to Superintendent Forms complaints from the evening shift 

section foreman that the section had on occasion been left with 

insufficient air, had torn curtains, and was not properly cleaned 

and rock dusted. This continued for some weeks. Davita made a 

written report to Forms and participated in a meeting with 

Complainant and Forms, where the complaints were discussed. 

5. Following that meeting, on November 6, 1981, Mine 

Superintendent David J. Forms wrote Complainant as follows: 

"On •.• November 5, 1981, I called underground 

· to inform you that we had a State Mine Inspector in 

the office. I instructed you to clean your section 

and ventilate it properly before you came outside. 

You failed to follow my instructions and your dereliction of duties resulted in a loss of two hours of 

production on the evening shift. 

1,... () -. :j00 
Your actions of gross negligence and failure to 

accept and respond to instructions will not be tolerated. This letter is to inform you that any future 

actions of this nature will be jeopardizing your 

position at Cedar Coal Company." 

6. A similar letter was sent the same day to section foreman 

Shelby Burgess. 

7. In late fall, 1981, Complainant called out of the mine to 

mine foreman Walter Kincaid and told him that there was insufficient air to ventilate his section, and that he had pulled his 

miners out of the face area. Kincaid replied that if Complainant 

had "hung (his) damn curtains, (he) would have air." In fact the 

curtains were properly hung. Finally, sufficient air was introduced in the section and the crew returned to work. Shortly thereafter, the air was again insufficient. Complainant called Kincaid 

and the condition was rectified. 

8. In approximately December, 1981, a new section was opened 

in the subject mine, and Respondent attempted to ventilate it with 

the same split of air that was used to ventilate Complainant's 

section. This resulted in a decrease in the air coming into 

Complainant's section, and he complained to the mine foreman and 

superintendent. 

9. On February 18, 1982, notices of violation were issued by 

a State mine inspector to the subject mine because of insufficient 

air at a last open crosscut and in the faces of entries 2 and 3 in 

the 2 South section. Three other notices were issued for violations on the 2 South section on the same day. Three additional 

notices were issued for violations on the Number 1, 3 and 4 belts. 

10. On March 8, 1982, while Complainant was working the day 

shift, he complained to Kincaid that his section did not have 

enough air. Kincaid came to the section and agreed that the air 

was insufficient. Kincaid then "went back somewhere and it was 

not long before we had enough air." The section continued working 

until the end of the shift and the air was sufficient at that time. 

11. On March 8, 1982, State Mine Inspector Harry T. Linville 

arrived at the subject mine at about 4:00 p.m., as the afternoon 

shift was beginning. The inspector arrived at the 3 South section 

about 5:00 p.m. and he took air readings at the last open crosscut 

between entries 1 and 2 and found only 3,094 cubic feet per minute. 

Readings at the last open crosscut between entries 2 and 3 showed 

only 4,900 cubic feet per minute of air. (The minimum quantity of 

air reaching the last open crosscut is supposed to be 9,000 cubic 

feet per minute) . A notice of violation was written which required 

the condition to be abated by 5:30 p.m. the same dav. 

158J 
12. When the above condition was not abated by 5:30 p.m., on 

March 8, the Inspector issued an order of withdrawal from the last 

open crosscut to each of the working faces in No. 1, 2, 3 and 

4 rooms in the 3 South section. 

13. About 2 hours after the beginning of the day shift on 

March 9, the operator asked the inspector to check the air, after 

the curtains were rehung and the "back up flies" were tightened. 

Ten thousand seven hundred and ninety cubic feet of air was found 

at the last open crosscut between the No. 1 and 2 entries of the 

3 South section and the order of withdrawal was terminated. 

14. On March 9, 1982, Complainant arrived at the mine site 

prior to 7:30 a.m., and prepared to go underground. Mine Superintendent Forms asked him to come into the office. Forms told 

Complainant that the company "got fined" for not having air on 

the section the previous night. Complainant was told he would be 

fired unless he signed a iermination slip indicating that he quit 

for personal reasons. Superintendent Forms noted on the slip that 

"Mr. Yates failed to conform with our program and had problems 

adapting to a different style of management." 

15. On March 11, 1982, Complainant filed a complaint under 

section 105(c) of the Mine Act with MSHA. Following an investigation, MSHA informed Complainant by a letter dated April 29, 1982, 

that it had determined that a violation of section 105(c) had not 

occurred. 

16. In April, 1982, mine foreman Kincaid and mine superintendent Forms were told that their employment with Respondent would be 

terminated. They last worked on April 28, although they were continued on the payroll until June 30, 1982. 

17. In May, 1982, Complainant discussed the possibility of 

his being rehired with the new superintendent of the subject mine, 

Woody Goins. Although Goins did not promise to rehire him, 

Complainant was led to believe that he might be rehired. The position was in fact filled by another in about July, 1982. 

DISCUSSION 

The testimony of Complainant and that of Goins are sharply 

divergent on the question of whether a job offer was made or 

implied. I am accepting the testimony of Complainant on this 

issue since it is largely supported by the testimony of Roy French, 

President of the Local Union and a member of the Safety Committee 

at the subject mine. 

1 r-:. '\ ~, J \..: 
18. Kincaid and Forms had certain written memoranda or notes 

present when they discussed Complainant's case with the MSHA 

investigator. They apparently retained such memoranda when they 

left Respondent's employ. 

STATUTORY PROVISION 

Section 105(c) of the Act provides in part as follows: 

(c) (1) 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. 

(2) Any miner or applicant for employment or 

representative of miners who believes that he has been 

discharged, interfered with, or otherwise discriminated 

against by any person in violation of this subsection 

may, within 60 days after such violation occurrs, file 

a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary 

shall forward a copy of the complaint to the respondent 

and shall cause such investigation to be made as he 

deems appropriate. 

* * * * * * 

(3) Within 90 days of the receipt of a complaint 

filed under paragraph (2), the Secretary shall notify, 

in writing, the miner, applicant for employment, or 

representative of miners of his determination whether 

a violation has occurred. If the Secretary, upon 

investigation, determines that the provisions of this 

subsection have not been violated, the complainant 

shall have the right, within 30 days of notice of the 

Secretary's determination, to file an action in his 

own behalf before the Commission, charging discrimination or interference in violation of paragraph (1) • 

* 

The Commission shall afford an opportunity for a hearing 

1581 
(in accordance with section 554 of title 5, United 

States Code, but without regard to subsection (a) (3) of 

such section), and thereafter shall issue an order, 

based upon findings of fact, dismissing or sustaining 

the complainant's charges and, if the charges are sustained, granting such relief as it deems appropriate, 

including but not limited to, an order requiring the 

rehiring or reinstatement of the miner to his former 

position with back pay and interest or such remedy as 

may be appropriate. Such order shall become final 

30 days after its issuance. Whenever an order is 

issued sustaining the complainant's charges under this 

subsection, a sum equal to the aggregate amount of all 

costs and expenses (including attorney's fees) as 

determined by the Commission to have been reasonably 

incurred by the miner, applicant for employment or 

representative of miners for, or in connection with, 

the institution and prosecution of such proceedings 

shall be assessed against the person committing such 

violation. Proceedings under this section shall be 

expedited by the Secretary and the Commission. Any 

order issued by the Commission under this paragraph 

shall be subject to judicial review in accordance with 

section 106. Violations by any person of paragraph (1) 

shall be subject to the provisions of sections 108 and 

110 (a) • 

ISSUES 

1. Whether Complainant's case is barred because of failure 

to timely file his complaint? 

2. Whether Complainant was discharged for activity protected 

under the Mine Act? 

3. If Complainant was discharged for protected activity, 

what relief should be awarded? 

CONCLUSIONS OF LAW 

1. At all times pertinent to this proceeding, Complainant 

and Respondent were subject to the provisions of the Federal Mine 

Safety and Health Act of 1977, and the undersigned administrative 

law judge has jurisdiction over the parties and subject matter of 

this proceeding. ' 

2. From November, 1980, until March 8, 1982, Complainant was 

employed by Respondent as a miner. 

3. The complaint is not barred by the limitations for filing 

claims set out in section 105(c) of the Act or by !aches. 

l r:n .: ~.J J /,, 
DISCUSSION 

The statutory filing deadlines in the Mine Act, including 

the requirement that a Complainant file a complaint with the 

Review Commission within 30 days of the Secretary's negative 

determination, are not jurisdictional. Secretary/Bennett v. 

Kaiser Aluminum and Chemical Corporation, 3 FMSHRC 1539 (1981) 

(ALJ); Allen v. UNC Mining and Milling, 5 FMSHRC 30 (1983) (ALJ). 

Sees. Rep. No. 95-181, 95th Cong., 1st Sess. at 36, reprinted in 

LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT 

OF 1977, Senate Subcommittee on Labor, Committee on Human 

Resources, 624 (July 1978): "It should be emphasized, however, 

that these time frames [in 105(c}] are not intended to be jurisdictional." The filing deadlines are therefore to be treated as 

a statute of limitations, and it must be determined whether 

Complainant showed justifiable circumstances for his late filing, 

and whether the delay prejudiced Respondent. See Herman v. 

Imco Services, 4 FMSHRC 2135 (1983); Montoya v. Valley Camp of 

Utah, Inc., 5 FMSHRC 630 (1983) (ALJ}. 

I have found (Finding of Fact No. 17) that Complainant was 

led to believe that he might be rehired by Respondent. He continued to believe in this possibility until a replacement was 

hired in July. I conclude this constituted justifiable circumstances for his delay. Respondent argues that it was prejudiced 

because Complainant's supervisors, Kincaid and Forms, left its 

employ and took certain notes with them before the complaint was 

filed with the Review Commission. However, Respondent was aware 

of the complaint filed with MSHA and did not show that an attempt 

was made to preserve testimony or documents, or that Kincaid and 

Forms could not have been subpoenaed or deposed. I conclude that 

prejudice was not shown. See Allen v. UNC Mining and Milling, 

supra. 

4. The complaints which Complainant made concerning inadequate ventilation described in Findings of Fact Nos. 7, 8 and 10 

herein, constituted activity protected under the Mine Act. Any 

adverse action because of this protected activity would violate 

section 105 of the Act. 

5. Complainant was constructively discharged although he 

signed a "quit slip" since he was required to sign the slip or be 

fired. 

6. Complainant has failed: to establish that his discharge 

was motivated in any part by activity protected under the Act. 

DISCUSSION 

To establish a prima facie case of discrimination under the 

Act, Complainant must show that he was engaged in activity protected by the Act and that his discharge was motivated in any part 

1593 
by the protected activity. Secretary/Fasula v. Consolidation Cqal 

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

Consolidation Coa.l Company v. Marshall, .:66,3 F • 2d,.1211 ~rd. Cir. 

1981); Secretary/Robinette y. ·uni~ed Castle coal ,Co~, ,3 .F!1SHRC _8_03 

(1981); Secre_tary/Bush- v.; union c;arbide. Corpqratiqn; 5 :FMpHRC 993~ 

(1983). ':I:'here,.is.no evidenc~:)l§:t;e t;.ha,t Cqmpla;inant was.disc;hargec:l 

because of li.;ts;· complaints o;f •. _i11aCJ.eq:uate vetjtilat;i,.on •.. Ra:th~r, the. 

evidence clearly· establishes that· ne ·w~s .Gl:~scharged .<for<w!lat w~s . percecive~l tq· be .his fa;i:lure. to 'ke~p C(dequate .. Ventilat;ioI'l.·.9p. his 

section apd, "\1 ar ious 01:.11.~r perceiy~d:·~ .inadequac,ie s in·.• his wor~ as 

section fo;r::-eman. ~ There, .is· sub~ri:§._ntial .. evidenqe that~. Complainant's 

superyisq;r;-s ~eJ;"e: gμilty of. vario:ys: defl.cienc}es_ q;E tpeir · o~ •• ;in .. the.ir supervisiqn: of.· the mine including a. f a;i.lu:re to provide ade.~ 

quate: ven"t;~lation to Compfaina,J:J.t 1 .s sec:t~pn. :i:i: may pe that -11.J.s. - supervis9rs a:ttempted to. ma]<e. COfD.PJ-C:linap.t th-~. scapegoat fq;-. t}1~'°e, 

deficiences ang i;:he resu.ltant violatiqns ci t~d- aJ:1d .. closure.9 O]'.'.'.g.~red 

by the State mt:I:J.e •. inspector ... -· T.he .fact th.:;it Forms: an,d Kinca.id .. were 

discharged. shortly after Complainant lends some. support· to thl.s · .. 

conclusion~ Assuming that FOrJ!1,S,.' and Kincaid.fired .co;mplairiant,-: :: ; '. 

because of their own inadequacies, it would still not.establisfr·a· 

cause of c:i,ction, unde:r the~ Mine:: Act. . See Sizemo:):"e v.. Dolla.r Branch 

Coal. Company, .5 FMSiiRC 12.51 A 19.8;:3) (!\LJ.) • ; · If: Col1tplainant: ,~a.s dt.9~ 

charged becq;us.e of the violation: notice,s and closure orders i.S;S.ued 

by tJ:ie St,ate1 : :Cl~d j_f. pe Yf_e:r;e i O~ly~, p~:r;,tJy, r~-S.POD-9i~le or_ no,t t.~,§l{l­ re:sp9nsibJe for su9h notip'?S 5111d: ,op:].e,r'.9,. /the dis.cha:r:-ge may h(aY,(fE:J ..... 

been upfai:J;.", bμt it dip not.,re~ul.tf.rom.p:i;:-p.tected.act._iyity und~:i;.,; 

the Mine. Act. -. Therefore, no violation of; section lOS(c) ··has be.en es~abl4-shed~· . . . .. - ...•. ,, ~:; . ; , •'. . > - , ;,_,_: - ~ r~. 

' . ·'· ~ .; _ . -.. (-· 

. ORDER ... ,. ·-_: !·, 

~ased .~~011 the; ,above f-ind-ing,s 9f. J(lCt• and·; conci~s,ions_. O;f: .r·~~~ the complaint and' this proceeding a:re DISMISSED for failure tp' ··· ,·:_ 

establish a violation of section 105(c) of the Act. 

·--... :.,.: .. 

• . - ;" ' .' ) ~) --· r:'.:. 

Distribut.:j_,on: 

- •' -' .· '· '.. ·:. ..' . -~ ~ _-. - . . _; 

John :Boettner,· Jr., Esq., Boettner & Crane, 1115 Charleston i ... c ..L -. .:: 

National Plaza, Charleston, WV 25301 (Certified Mail) 

:--_ ,· f " ·: - '· ~i 

Joseph M .. }?rice:, : :\!!sq. , .F.()b~ns9n; ,_& r.foiiwee,_. P.-. 0. ·.Box: 1}~1:"' . , Charleston, WV 25326 (Certified Mail) · · ·-· ~ ·, -~ ;· 

.. ·,: _;;· ___ : _.,,: 

- '.-~ r.' ···. 

' .. l ~ ' - L •· :. :_·~ 

.. l-· 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION .. -. ., . - - ~:.o __ ;,.t.:·:.;;·~1·.~·:.._ •.;•.'· ~-::,::. ···, ~-. 

OFFICE OF· ADMINiSTRATIVE :LAW JUDGES 

2 SKYLINE, lp~~, fL90R 

5203 LEESBURG PIKE '.I .... ,--; : -~ t; ::.. 

FALLS CHURCH •. Vll~G!NIJ}:; 22041 

September 20, 1983 

sE,c:im'l'ARY OF LABolji, . .. . MINESAFE!I'Y AND/ HEALTH 

ADMINISTRATION\, (r1,SHA) I 

Petitioner 

... 

.. CIVIL PENALTY PROCEEDINGS 

BEAR CREEK MINING/COMPANY, 

Respondent 

r .··· 

· ... · :,!: .... '.· 

:· .. ' .. 

.. . ;.: .... 

. ._, ~; ' . . : ~.':::' ': 

. ' ~ - - -. ·. . ~ :, __ : . 

Docket No. KENT 83-201 

.A'.C. No. 15-12515-03502 

Docket No. KENT 83-202 

A.c. 'Nd~ is-12339..:03sos 

•.:: .. PEFAUL'I' QECISTONS ' · ,_. .. .., ; -- . <::; '._ ·. \ ,_. f_::·· 

Before: Judge Melick 

A Notice of Hearing was issued on August 22, 1983, for·" 

hearings to commence in these cases on September 22, 1983, 

in Knoxville, Tennessee. Said Notice was returned from the 

address provided by Respondent marked, presumably by the 

U.S. Postal Service, "Moved, left no address". Additional 

efforts were made to locate a representative for Respondent 

but without success. 

Commission Rule 5{c), 29 CFR § 2700.5(c), requires that 

the parties "promptly" give written notice of any change of 

address or business telephone number. It is apparent that 

Respondent has failed to comply with the requirements of 

said rule, thereby making it impossible to serve notice upon 

it and to grant its request for hearing. Issuance of a show 

cause order would obviously be futile under the circumst~nces. I accordingly find that Respondent has waived its 

right to a hearing in these cases and I hereby issue decisions by default granting the Secretary's requests for civil 

penalties. 

ORDER 

The Bear Creek Mining Company is Ordered to pay the 

following civil penalties within 30 days of the date of this 

decision: 

: \ 

(J .... > ., ..... 

~9 .. u·u 
Docket No. 

KENT 83-202 

KENT 83-201 

Citation/Order No. 

Distribution: (by certified 

Amount 

$195 

84 

84 

$363 

tive Law Judge 

Mr. James Trosper, Safety Director, or Mr. Duane Bennett, 

Partner, Bear Creek Mining Company, Pathfork, KY 40863 

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

of Labor, 280 U.S. Courthouse, 801 Broadway, ~ashville; TN 

37203 

nsw 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 21 llS 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. KENT 83-139 

A.C. No. 15-13339-03502 

v. Pruden Mine 

RALPH BALL, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Mary Sue Ray, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Ralph Ball, pro se, Lafollette, Tennessee, for 

Respondent. --

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty 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 one violation of mandatory safety standard 30 C.F.R. 

77.506, and one of 30 C.F.R. 75.200. Respondent contested 

the citations and requested a hearing. The case was heard 

in Knoxville, Tennessee, Wednesday, August 10, 1983. 

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 seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i}. 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 
;-·-: ~. ·. . •.'•v 

-·.· . . :., 

.. \· ...... :. : .- /;. ' ' ·-· .. ;:. ! 

The principal issues present~d':·ip .. this proceeding are 

(1) whether respondent has y,iolp.t~~~t.h~provisions of the Act 

and implementing safety regul:aJipn P.9:alleged in the proposal 

for assess~ent of .civil penalty filed in this proceeding, and, 

if so, (2J· the appropriate civil penalty that should be assessed 

against the respondent for the alleged violation based upon the 

criteria set forth in section llO{i) of the Act. 

Stipulations . , , 

The. parties stipulated that the respondent is.subject> ,. i· 

to the. Act, .. that· I. have' juripdiction to !iear aJ?.c:1.Jt:1ec'.iae·~ the 

case, that the resp6ndeht is a sm~ll mirie· operator, and that 

the conditions cit~c:1~~Y-t4e :inspector were timely abated. 

In addition, Mr. Ball' testified that the subject mine' is closed, 

that it was operated only for several months, and tpat at.,. th.e 

time it was active he employed five miners, i11cl:uding'himsel:L' 

Mr. Ball also indicated that he is still in t~i ~ining business 

and operates a small mine elsewhere. This information was 

confirmed by MSHA Inspector Broc~~¥ho was present at the hearing. 

P:iscussion 

Section 104 (a) Citation 'No: 2057'746-~ Decei:nber 3, 1982, cites 

a violation of. mandatory safety stknda~d. 3.d C.F.R. 75.200, as 

follows: ' 

The approved roof control pl.an w_as not being 

complied with in that temporary roof support 

(Roof Jacks) was.not.provided for the Willcox roof bolter. · ··· · ,. '· '··. · ..· .... · · · 

Section' 104{a) citation No~ 20S77'4i~ December 3,; I98i, cites 

a violat_ion.·ot rnanda_ to_ ty·. ·. 'sa,fety -· t d d 30 c F 'R 77 ~·so6 as · · follows:· · · · · .· ·· ·' _s_ ap ar. ·. _-·. · · · .· · ,_ · '. •• ~ • • 1' • I • • • 

Ove~load ·a:na'· hb.t· ccirc.ui t protection was '.riot 

pro:Vid~d .tb{ the 2.20Vl\C. elec::ttic drill_. 

1. 4/.3 cabl,e anc;l fuses ,were wired over~ ' ' 

Respond,ent hp.s concede,d t.he f a,ct .of violations in this 

case and he ddes' not disput'~'··the cohditiens'·or 'p::riact'icks cited 

by the inspector op tfi.e- face of the cJ tations ... _His p;r-incipal 

contention is that. since ·the mine had, not be'coitle" t~Tly op·e,ratio:rial 

at the time of the inspection ahd subsequently ceased operation, 

the violations were not significant and substantia,J .. _·. Inspector 

Brock confirmed that this was in fact the case. Given these 

circumstance9 1 the parties agreed to settle the matter without • • • -~ J _; • ' ' ' • - •• • -· ' 
the need for. a\full heariYrgf and:~c;i:f·i;:et giving \both:.the . ·, 

respondent and the inspec;tor an opportu,nit;y tqbe heard, I 

rendered a bench decision approv'ihg ,:f_pi'(?posed settlement of 

the matter . " ' · · · 

Taking into account al:l of the st.atutor:y criteria found 

in sectio:ri. 110 (i)' of the Act, and the fact that the respondent 

closed the mine within several months after the inspection, 

petitioner recommended a reduction in the civil penalties 

assessed in this case. In addition, petitioner relies on the 

inspector's testimony that he does not at this time believe 

that the violatio~s ~ere "significant and substantial". 

Petitioner requested tha't I ·assess civil penal ties in -the 

amount of $20 for each of the citations, and in support of 

this recommen(lation argUed that under MSHA's regulations; all 

rnon-S&S" citations are autom.itically assessed'at $20. 

This proposal was rejected, and my views of MSHA's regulations 

concerning civil penalt~ assessments for "non-S&S" citations 

were articulated on the record and need not be iepeat~d here~ 

Suffice it to say that counsel's motion that I accept a 

settlement of $20 for each citation on the grourid that Inspector 

Brock has now changed his mind and believes that the violations 

are not "significant and substaritial" was rejected. However, 

the proposed settlement, based on my independent de novo 

consideration of all of the evidence.adduced on the·record 

was approved, and the civil penalty assessments are allocated 

as follows: 

Citation No. 

2057746 

2057747 

Date 

12/3/82 

12/3/82 

30 CFR Section· 

75.200 

77.506 

ORDER 

Assessment 

$25 

15 

$40 

Respondent IS ORDERED to pay civil penalties in the amounts 

shown above in ·satisfaction of the citations. in question:, and 

payment is to be made within thirty (30) 0 days of 'the date of 

this decision and.order.· Upon receipt of payment by the petitioner, 

this proceeding is dismi~sed. · · · 

. 

ktt~ Administrative ·Law Judge · 

Distribution: 

Ralph Ball, President, Ralph Ball, Inc., Box 1528, 407 N.· 5th SL, 

Lafollette, TN 37766 (Certified Mail) 

Mary SU:e Ray, Esq., USDL, Office· of the Solici.tor, 280 u .. s. Court-· 

house, 801 Broadway, Nashville, TN 37203 (Certified Mail) 

/slk 

15!JJ 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 22118 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

UNITED STATES STEEL MINING 

CO., INC., 

Respondent 

Docket No. P~NN 83-43 

A.C. No. 36-00970-03506 

Maple Creek No. 1 Mine 

DECISION 

Appearances: 

Before: 

Matthew J. Rieder, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, E·sq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This proceeding involves two citations alleging violations of 

mandatory safety standards contained in 30 C.F.R. § 75.503 and 

30 C.F.R. § 75.200. Both violations were originally designated as 

"significant and substantial," but at the hearing counsel for 

Petitioner conceded that the violation of 30 C.F.R. § 75.503 was 

in fact not significant and substantial. In its answer and by a 

clear statement in open court, Respondent has admitted that the 

violations occurred but denies that there were significant and 

substantial and contests the penalties proposed. Pursuant to 

notice, the case was heard in Uniontown, Pennsylvania, on June 21, 

1983. William R. Brown and Francis E. Wehr, Jr. testified on behalf 

of Petitioner; Ira Seaton, Jr. testified on behalf of Respondent. 

Each of the parties has filed a posthearing brief. Based on the 

entire record and considering the contentions of the parties, I make 

the following decision. 

FINDINGS OF FACT 

1. Respondent is the owner and operator of an underground 

coal mine in Washington County, Pennsylvania, known as the Maple 

Creek No. 1 Mine. 

lGOO 
2. The subject mine is a large mine and the Respondent is 

a large operator. 

3. The imposition of penalties in this proceeding will not 

affect Respondent's ability to continue in business. 

4. Between August 17, 1980 and August 16, 1982, Respondent 

in all its mining operations had 4,245 paid violations of mandatory 

health and safety standards. Of these violations, 51 were of 

30 C.F.R. § 75.503, and 55 were of 30 C.F.R. § 75.200. Considering 

the size of Respondent's operation, this is a moderate history of 

prior violations, and penalties otherwise appropriate should not 

be increased because of it. 

5. Citation No. 1146360 was issued to Respondent on May 21, 

1982, alleging a violation of 30 C.F.R. § 75.503 because a plug on 

a scoop was not padlocked to the receptacle. 

6. The hazard caused by the violation cited was the possibility of an ignition if the plug was accidentally pulled from the 

receptacle. The scoop was in a section which had been idle for 

approximately 6 months and the occurrence of an ignition was remote. 

7. Citation No. 2012243 was issued to Respondent on 

September 16, 1982, alleging a violation of 30 C.F.R. § 75.200 

because the approved roof control plan was not being complied with 

in the 7 flat left section MMV006. Only five temporary supports had 

been installed in the 1 butt cut, 11 room 2 split, which cut was 

12 feet deep. For such a cut, the plan required six temporary 

supports. 

8. The citation was issued at 8:55 a.m., prior to any work 

being performed on the day shift. The five temporary supports had 

been set during the previous shift (12:00 m. to 8:00 a.m.). 

9. The hazard caused by the violation was an area of unsupported roof. 

10. There was a slip in the roof and the roof was loose and 

drummy sounding. 

11. Both violations were abated promptly and in good faith. 

ISSUES 

1. Was the violation charged in Citation No. 2012243 properly 

designated significant and substantial? 

2. What are the appropriate penalties for the violations? 

1601 
... : -. ·~ -

CONCLUSIONS OF LAW 

.. L ... Responcient is subject ,j:.Q , t::he proyisions of 1:he Federal 

Mine Safety and Jieal th Act at 1977 .in the .operation ()f the subject 

mine, and the undersigned administrative law judge has jurisdicti9n over, the parties and subjE?,ct rnc:ttteL of this proceec:ling. 

2~ ,T~e~violafion-of 30 ~~F.R.~§ 4~~~6~.~harged :in 9itati6n 

No. 1146360. was .. not of such·nature ai;;.couldsignif:Lcantly q,nd sub-, 

stant:ially contribute to.the caupe and effect of a. mine safety 

hazard.. ' 

3. The violation was moderately serious because it could 

have resulted~in serious injury if an. :igni~ion occurred, 

.· ' 

4. There is no evidence that the. violation was due to 

Respondent's negligence. 

·~ . ·-

5. Wll.ether a cited v:L<::>l.a:tion Js properly designated as a 

signif ica11t ~m4:. substantial violati~:ni :is' p~r se irrelevant to a 

determination,o.f the· approp:i:;-ia:t;.e:: penalty ,;to be assessed. 

6. Based on the criteria in section llO(i) of the Act, I 

conclude tha~ an appropriate pen~lty fo~ this violation is $100. 

7. The violation of 30 C.F.i~ § 7~-206-charged in Citation 

No. 2012243 was ()f such nature as could significantly and substantially contribute to the cause and, ef:f ect of a mine safety or 

health hazard. 

DISCUSSION 

Setting fewer supports.than.are called for in the approved 

minimum roof control plan results pro tanto in an area of unsupported roof. Unsupported roof can fall and result in s.erious 

injury to miners.· Following the test in the National Gypsum cas.e, 

3 FMSHRC 822 (1981) , I conclude that a roof fall and serious 

injury is reasonally likely tq.occur •. Therefore, the violation 

was significant and substantial. Respondent argues that if no 

temporary supports had been set by the midnight shift, no violation would have been cited, since it would be assumed that the 

day· shift would set the posts before beginning to bolt. However, 

the absence of a single support could easily be overlooked. In 

fact the absence of the support was not noted in the preshift 

examiner's book. The absence of all temporary supports would more 

likely result in a roof fall, but it would.also be more evident, 

and miners would be much less likely to travel under the roof. 

l ('f\'' ·.J vi.... 
8. The; ;:c6rtditlbh' vrafs' Seri'bus-j :._ Itc: \;,as'i kho&n· '.()\r; should have 

been known to Responden~:,; ThE?.· midnight: shift foreman and the 

pre shift examiner on the day s,hift shoulg have noted it. Therefore, it resulted from Respond°i:nt's .. ,negi:b<Jence. 

9. B<;ised qn J:.be er i teria i~' sect:i'oi:'i' 110 ( i) of the Act, I 

conclude that an appropriate penalty for this violation is $250. 

ORDER 

2. Respondent shall within 30:days of the date of this 

decision pay the sum of $100 for the violation qf~~O C;F~R~ 

§ 7 5. 5 03 found herein to have occurred. --

3. The violation of 30 C.F.R. § 75.200 described in Citation 

No. 2012243 was properly designated!as~significant and substantial. 

4. Respondent shall within_ 30-:days .of ,the dg.te of :this :decision pay,-the,sum of,$250.for_the-violation of 30.C.F.R. § 75.200 

found herein to have occurred. , : . ,,, 

· Jcu~~:/:::f~l Administrative Law Judge 

Distribution: 

Matthew J. Rieder, Esq.,, Office of the SoJicitor,_Q'.S. pepartment 

of Labor,_ Room 14480 -Gateway Building, _3535 ~larket Street., 

Philadelphia, . PA 19104 (Certified )1ail} - " 

Louise Q •• _ Symons, Esq., 600 Grg.nt Street1 Room 1580, Pittsburgh, 

PA1~230-{Certified Mail) 

/fb 160J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

Docket No. KENT 81-136 

A.C. No. 15-02008-03036 

v. No.· 32 Mine 

UNITED STATES STEEL CORP., 

Respondent 

Appearances: 

Before: 

DECISION 

Carole Fernandez, Esq., U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for the petitioner; 

Louise Q. Symons, Esq., Billy Tennant, Esq., 

U.S. Steel Corp., Pittsburgh, Pennsylvania, 

for the respondent. 

Judge Koutras 

Statement of the Case 

This case concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent on 

July 6, 1981, pursuant to Section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. 820(a), seeking a 

civil penalty assessment for an alleged violation of mandatory 

safety standard 30 CFR 77.1605(k), as detailed in a Section 104(a) 

citation no. 981185, served on the respondent by MSHA Inspector 

Alex R. Sarke, Jr., on January 23, 1981. 

The cited standard states that "[b]erms or guards shall 

be provided on the outer bank of elevated roadways.". The 

inspector cited the alleged violation after concluding that 

·the respondent had failed to provide appropriate berms or 

guards at three locations along an elevated roadway leading 

to the mine. At one location, the inspector observed an 

existing guardrail which had been dislodged for a distance 

of 29 feet. At a second location, he observed a berm 6 to 

8 inches high for a distance of 22 feet in length, and at 
the third location he observed a berm 16 inches high for a 

distance of 29 feet in length. Locations two and three were 

cited because the existing berms were less than 22 inches, 

the axle height of what the inspector believed was the largest 

vehicle using the roadway. The relevant MSHA inspector's 

manual contained a policy providing that under Section 77.1605(k) 

berms "shall be at least as high as the mid-axle height of 

the largest vehicle using the roadway". The first location, 

where the inspector found the guardrail to be dislodged, was 

cited because the inspector considered the dislodged guardrail 

to be tantamount to no guardrail at all. 

By summary decision issued on February 24, 1982, 4 FMSHRC 

563, I vacated the citation after concluding that the language 

of Section 77.1605(k) is so vague and ambiguous as to render 

the standard unenforceable. I also concluded that the inspector 

could not rely on an MSHA internal "mid-axle height" guideline 

to support his citation because the guideline was not in 

fact part of the cited mandatory standard. 

On appeal, the Commission reversed and remanded the case 

to me for further proceedings consistent with its decision, 

5 FMSHRC 3, January 27, 1983. At 5 FMSHRC 5, the Commission 

stated as follows: 

We hold that the adequacy of a berm or 

guard under section 77.1605(k) is to be 

measured against the standard of whether 

the berm or guard is ohe a reasonably prudent 

person familiar with all the facts, including 

those peculiar to the mining industry, would 

have constructed to provide the protection 

intended by the standard. See Alabama 

By-Products, supra. See also Voegele Company, 

Inc. v. OSHRC, 625 F.2d 1075, 1077-79 (3rd Cir. 

1980). The definition of berm in section 77.2(d) 

makes clear that the standard's protective 

purpose is the provision of berms and, by 

implication, guards that are "capable of 

restraining a vehicle." (Footnote omitted.) 

The Commission agreed with my conclusion that the citation 

in this case was issued and litigated by MSHA largely, if not 

solely, on the basis of the inspector's manual mid-axle policy 

guideline, and observed as follows at 5 FMSHRC 6: 

Reliance on the mid-axle guideline, without more, 

does not necessarily establish the berm or guard 

that a reasonably prudent person would have 

constructed under the circumstances. If the 

1605 
Secretary .bel,ieyes that 9-: berm of, mid-,axle . ·.·. .... neigJ:J.t Ls: in,de.eP. what a· i'e,as6nah1~ -peisori_.·.·· '. ·· ·· 

. ; wou_i:a -prmz'ide .. -~n a' 'partt¢ular, :cas;e,, j;he .... '.· .. -

Secret:ary 1nμs1. _prove tha.'.f by ... a -prepo,n,der'ance, .·• ... ··: -· -· -· 

1'1...; 

'of c.rk:di}J_~-~ .eV'.id~rice. ' - . ., '. ' ' -.. - ·,. -; . ..: ~:-.; .. . ·' . . : . 

: Wf th 're,gard t_o,:"th~ ~f\Vp .Jci~_a.·tions whei~_ fne -exi,sting ·berms-·'. ~'" .. · 

were foundby the :i.l'.),s,pec~or ·to be .,, inad-equate" beqrnse_ they_-~~ __ . 

were less than:22 iriches.· (the axle height: ,of the lar,gest. - : _, - . ,,,_ .v· 

vehicle usi~g · th'e, rpar:l-w.ayJ ; _',the. Coimni'ssion held. that. in or-der '.> .. · 

to prove 'this. alie'g'ati.on -MSHA _5~1qs't; _:Pl7_e.seri.~ ~yi~e-nCe as, .:~8:-- _,. _ ·.·.· . " 

what type of berm or guard a reasonably prudent person would 

install.- under .the circumsta~cesi. Wi.th ,r.espect, ,to .the. l,oc~.tj,,an ,-

where th~-.g~ard was dislo~§ed, .. tl;le.co#issiolj,·o;Ssery~d tila..s~. : 

while a P f~!ll~. ·:_f~Cie <?~'$,':: />f: yfo1)at;i6P:. ffic;l.Y '}jayE1' }J~e!); ··Efl:!tabl:i:?Jl~d,, ; " 

I shoulc;l have m,ade ,findings , as to -~hether t.he guarq ,was, . - -.c ..... 

actually·,'rnissip.g 'an4. w,hef,her_:the 'ie-S:porident -:e·s~tabJis,h~d ~a : . ' . valid deferis'e 'fn .its ciairri that.the'guard~wa:s ·being replaced . ' ·•. . '. ' ' ' ~ . : ·.' . : '. .. . , . . . ' .. ' . ' :: .. "' '-.. : ·- - ' . _, ·-. : ~ ; . . ..' . _ ... ; . -._: ' .. ·. - -' ; , . - :~' ··:, 

at the time Of the inspection -ah.Cl. issuapce pf the ;.Cl t,ation,. -~ . ,,, . ... . . . . . ~ . - . : .. -. - . .· ·. •' - -- . 

Aft,e:r .. rerna,nd. ,anst c.qmpleti,on .of qiscove.:ry., b~r t;~e 12a;t~.e,$,_, ~· 

a hearing wa~f. cori,d;ucted. i,n, Pikeville, Kent,q_cky '· :0\l Ma,:i ~17 r '),~,8-3 r:r:: 

and the p.~r~fes -filed -'proposed findirigs arid ,c6nclt{siops, with,,-'-~:'' 

supporting brie·f s :· The . argumen'i:s presente'cf- therein -·have .J)e~i;i, ··,c· ; :; -; •. 

considered by me in the course of this decision. -

MSHA' s Testimonyo: aricLEvidenc~ , : 

"· \ 

. ·-~ ; : . 

'":" ,:~ ~-= .... : : ·<· ·· ... ~-. :'.·, . ~'. ··; _;~~ .· ;' ::: '.. < > ~'.· :? -~- ,\ .. :., .. ;·) _;_"_,: ::':· ~;~ .. _, ,.-;, · .. . ·:· 

MSHA Inspect.or.Ale~ S,a:r;~e t~stified as -t;q his-.,ba,ckg.rcmnd 

and experience,.· and .·he confirmec1 that he. issued ;citati.on -No. 

9s11ss on Janu~.lf:Y 2,3'·,· .1981,._'d.uiirig:a.rEiguiai . .',,insp~c;ti~ri·of 

the mine. Howevef~ .h~ ¢orifirmgd ·,that ,he :wa,s -aware ,O:f- a .. vehicular acciderit.-whl'ch had' OGCUrrec;i,' when ari .. :automobile . ' · ·· : , ·, .. : • , · · - • '. , _ . ; • ~· • . · . _ . ' t . .' : ! "' .. ~ ~ _, .,I \. : .' . . •• \ • 

went through a berm, but~-indicated .that. the incident did not 

meet MSHA' s P&r-f'.·_"~0- r~g4i-atory ·d~f±iJ_itio~ ,=qf 'a~~-6'.:ep()ita-t;ie 

accident II {+'f ~. 14'~17 ) ... B~cau~e of' .tl:ie, :heavy .. tog,,and' s~l;-;t¢'k roads, 

the so-called "ac.::;~;ident ' wai:;' riot {rivestJgati.~d :uritiL,th,e -c;l~y 

after it occurred; ;arid)?a~~d _,()ri~;hii:.ob.~ervatJ.:qns ·;_ ~-he,,cC:mo].uded 

that the car left -~~e ·rp~~~~y-- ~~"tsh()μ#·;1~~v~pg -~nY {!ri~~9~£j;ons 

that the driver ev;er : at.t~mpted, ,to stoI? ~ :-:JB · ~dd:hi;:j,9n, L'he-:( 

was of the view thatthe automobile was travelling in excess 

of the posted 2;p"'.';mi:/,e ~ S:F~.ec;LJ~lll:~<t;. -..·!:-.Hj1: ~;>,s~e.g~, :P,he ,,g~-t::a,if~9x1,·, _ ,, !' 

because. of 'his be;I.J,et' ,-th\'.l.t;. th,e b,erms :.g.t th~rtl:i:i;~e.;oJoq~:t;,i().l}§:_--, c_':i-L; '• 

detail~d_.~n.::h:i-,s s~~~~i~~:::w~r,e, iije4~sh~~~e K'I'.~- ::.~o);,~"'i: -1 :;;·::: ; Io: 

• • .. {'~ ::~ >: :·:·:·_ ·-~:-, :~--~-'~ ~:.. ~--Li .'-~ ·;p; :" ... J : . :: ;:··2 ,;:~~ .b ~-~-~ ~/ ·:L ::.' :·. ·:_:; -.~:. .h)·:: ;__:, ~. :;-) ;-" --~ .i_ :~-; t) j_ .1·_:r; 

Mr. Sarke indicated that the normal traffic on the roadway 

in 9uestiop ._;F9n~ip,}::~q.,pf ·:::Ba,i:;~~11-<iJ:rr '. .q:~f s h';~:ec:l,)~rY ~:~.h~ _m~,!f~J;f:l coming and :-.99J-.,10g .J,rp~,-Y>lo:r:k, h~±:€:-;};9B ,,eq~:,qB1!):§μt, ~;9;Rd.:_tguppby;J'· 

trucks, and -~ar~~ f.:.'.',s~,~~ ''.<,t:r;us:k:~jis~~,:t,9qhc:tlfl6 c-~gμ~alt!ei:i~:'a,~g supplies. 

The roadway in':,~i._te~t:io:r;:};~, ,t.:i;.~,-5mly.-,m~Jfn ~S~~~s £J'.'.9<:1,~.-~.:~Il.t9:~ 
and out of the mine (Tr .. 22).. Tht:=: +oactway; is; 11?_t :μ.~~q fpr 

coal haulage, .and coal. ha,ula,ge trus:;ks,, ,wqulCl._. no:t .b~. part, of 

the normal traffic (Tr •.. 22) • _ ·He, also indfcated ·that 'some 

he~vy equipment such as g~ader~ a~d "h{~h-lifts" -~isci ·~se' 

-the roadway, but that they. would_ r}:)e t_ravellir,ig: at very slow 

speeds because they would. be_: pe:r:fqrming _y.rork 'on.,, th-F!' ·:roa:d,W.ay (Tr. 23). ··- - ~· ... -··· -

- ·_:_, -:· ·' 

Mr. Sarke descri.bed ')the roadway in 'ques,t'ipn ~.~' h~virig an 

average width of. abol;lt :~O,. -f~et. a;lcmg its entire· route, and 

an angle of incl.ine .ot .. abput- 1-0% ~· ·• In _his opird.ori; 'the 'r,qadway 

is "a very steep 0roadway'': dTr, ..... 24). : .-He also bei).eved_J::ha't 

the entire roadway was an "eleva',t,ed" roadway., .:and Ji:e 4e:fined 

the term "elevated" as "any roadway that is above normal levels. 

And I'm talking no~mal_;highwct-y. leveJ.- . qnce ;yo~ lea.ve 1;:.:Q.e .. ,_ 

normal •highway leve.l,~a,nd :yoμ start up -:--:-. when .y0u s:i:a,I;t. .an. r· :r: 

incline, ·you: haver ~tarted an. elev.ated roadwc:ty'' , ('I:'~ .,J?,f. ·· · 

.Mr. Sark~ ·stated that ·the ;be:r:;,rns ()n .. 1:he r0,~4w~y 1"i,,ere, i __ , . 

in as good a-·condition as yoμ~qgul(l-,e}{Pect 1j:.1}$m.:t8:.§e:.'. ,and ,,; ·; -~;.·,: 

he agreed, that the respondent 11 does <?-ti .qμt~tal=}d~I1$." . .j9}),.9(,~~kipg 

care of the·. roads -- as,_ a, rnatte:r;- ~ of.,,f act;.-. they do tne _best .. , .-. . ··· 

j Ob of anybody I ha ye. . ,l-\nd . they. do-: a good Job Qrl the berms." .' : . :

1 He expressed his concern over the cited, condi tioii.s" as 'follows' . : ' ' 

(Tr. 2.S-.26):• _ :·,):: 1 _,,,·· 

. :-. 

And these par~ic~iar -ar:~_as,,, , I don\ t, ~npw ~ha{,.. _,_,;\ , .. ,;,, 

happened to:< caμ.se ~:th~,: p~rms,- J:o1; .b.e .... ~.- otl)er · -.: .. , , , 

'than the'. gμard+ail, I :know, why ::the __ gu.ard.tfl,i)_,,, ,::_,,, .. ' was Up I~ causec ;tJ1ey .had had ,a .. slip. 'C But lr1: , •: ' '.• ;: ~··;'. 

. : the two. ,a,r:eas-; whe;re the~ be-:i;:-rμs \v,er:e- 40y.!1 · a' !~Jltl_e ·; .·: ; . • i· L. 

' 1o.wex· than."".",~ 'I-, do.D. 't,)~now .if it was jμs.t ,<3, , •' 

mistak~· o:r: ,if J:he,y h::id. fall~;n. o~f .ana:·:-they had, , :: '. :, : ~: _, :: 

put them,J~ack:;;§lJ'.ld h,~dri.' tgq.tte;n: the~- ·~Pt to,, ,yqu··· ,, ,,··c 

know, par, ·or, y,rhat~. _ •. ·re·;:_ . , · - - ,,. : . : -_~,:1 '-~ 

Q. ·In:. other \vprds I werej the berms and the , -··-· ' ; ~ -~ C; ;' 

.guards that you,;pbsei,Y-~<I:,:-on,th~;-rp~a,ay;~y, 'were- :t'he~Y: 

higher than were present at the :three, ;l,oc~t-iori~): ... . where you cited? · -

-···A. ·T!1e• .b~rms. 11.-a.d ~:~~;): ~s-:t:a;:~-it.e<I ~~asuripg, :thos_e· _ -~··:, r .:, 

berms at; t:;h,e: fp_ot pf:, tpe ::!Iloμn;:t;a.+n: -~;s, _y.re,, s_tqJ;t,e.d , . , . 'J) 

... up. , And ·at '~:hat:·pa)'.'ti,c'.111,a;r t~-me,,, ,--I. qqlild. find.:···~---·.-_-, ". ,_., 

·,no·· bept1s>:that ··we.re: -.- -::the :aye_r;ag~, :ra~·.:tw:o .. fqqt ·and l ·:, · .. -'. .. ·. · abov€, • .-: 'I'hese .;l-;ocations that ·.:r, .cited :were : the · ·- ._ · - , ~- , __ 

~~~ Yk~~~~1''~~~~ ·~~!~r!i~ 6~~:t!t;~~;~i~~et;¥:~6~~,;;~' .7: ,;.~ . : ~Q~ . 'was •the~~._,q.J;l~t-.hing ~t;-l}at .YO\l :cq~i'ci_,PQJ~E, to:, '' ,;-:·; ":/ .. 

such as, perhaps, the fact that ,-t;:}le road .. was.n),t : '.' ~·. :."":· r I 
as steep there or any other condition that 

would be a reasonable basis for reducing the 

heighth of the berms at those locations? 

A. No, ma'am. I couldn't see reducing the 

height of the berms at these locations because 

even though those berms -- in an interrogatory 

I believe that the company stated that that 

was sufficient to stop a car, and I would agree, 

a 16-inch berm at one of the locations would 

stop a car. But the fact is we have so much 

other equipment on the highway besides passenger 

cars that it would not stop. 

Mr. Sarke described the .composition of the roadway as a 

mixture cf "red dog" and gravel, or general "road-composition 

material". Guardrails were at three locations along the roadway, 

and guardrails, rather than berms, were at those locations 

because 'you're looking straight down", and the company installed 

the guardrails there out of recognition of the fact that the 

steep locations were hazardous. In his view, the location of 

the guardrails were at a place where a reasonable person 

familiar with mining circumstances would have placed them (Tr. 28). 

With regard to cited location No. 1 directly across from 

the bathhouse where a 29 foot area had no berm or guardrail, 

Mr. Sarke confirmed that at one time a guardrail had been there, 

but that it slipped off and was lying under the hill and "was 

no benefit whatsoever". He did not know how long it had been 

dislodged, and in his opinion it became dislodged when the 

dirt ran off and slipped at the corner of the bathhouse, thereby 

causing the guardrail to "just sagged down" and collapsed. 

He discussed the condition with a company official, and no 

one advised him that repairs were being made, and he saw 

no evidence that the guardrail was in the process of being 

repaired (Tr. 29). The roadway drops off approximately 

10 to 12 feet "straight over the edge" at that location, and 

cars, trucks, and a soft-drink vending truck used the roadway 

at that location (Tr. 30). 

With regard to the second location mentioned in his 

citation, Mr. Sarke confirmed its location as "three-tenths 

of a mile from the bathhouse and an area of twenty-two feet, 

having a berm of six to eight inches". In his opinion, the 

existing berm was not the height that a reasonably prudent 

person familiar with the mining industry at this mine would 

have installed at that location, and he believed that a reasonable 

berm there would have to be the height of the biggest part of 

the berms on the roadway which ranged from 24 to 36 inches. 

In that area, passenger cars, trucks, graders, and supply trucks 

used the roadway (Tr. 31). 

1G06 
As for the third location, identified as the site of 

the accident, Mr. Sarke agreed that it was 1.6 miles from 

the bathhouse, and that the height of the berm which was 

provided was 16 inches for a distance of 29 feet. He described 

that area of the roadway as slightly inclined, as well as 

curved, with a width of about 21 to 22 feet and a straight 

drop of 30 feet off the edge. When asked if the existing 

berm was of a height a reasonably prudent person familiar 

with mining conditions, general and local, would have installed, 

he replied" in the negative. He believed that judging from 

the types of vehicles traveling on the roadway, a berm two 

feet in height, such as those the respondent had elsewhere, 

would be appropriate. He admitted that even a two foot tall 

berm would not restrain a vehicle traveling at an excessive 

speed, but insisted that even if the axle-height standard never 

came to his attention, he would still have required a 

berm two feet high as well as a guardrail at that location 

(Tr. 32-35). 

On cross examination, Mr. Sarke confirmed that he began 

the mine inspection in January 1981, but did not know whether 

he had been there in December 1980, or whether the inspection 

in question was the first one he had made at that mine. He 

had no idea how many times he had driven up and down the mine 

access road in question before issuing the citation. He confirmed 

that he had not felt endangered traveling on the road and 

had considered all the berms adequate except those which were 

only six to eight inches high. When asked why he made no 

determination as to the adequacy of the berms until January 1981, 

he replied that inspection procedures entail examining underground first, and leaving the surface area for last (Tr. 36-37). 

Inspector Sarke believed the berm at the location of the 

accident to be adequate for cars and trucks, but'not for the 

heavy equipment. He considered the roadway to be a haulage 

road, but was unaware of any official definition of "haulage road" 

in the MSHA regulations. Also, he confirmed that he did issue 

the citation under the regulatory section entitled "Loading 

and Haulage" (Tr. 3 8) . 

When asked if he knew of a definition of "elevated roadway" 

in the standard, Mr. Sarke replied in the negative. He denied 

stating that a road became an "elevated road" when it left 

~~e public road on mine property, but agreed that an "elevated 

roadway" could be one running across a plateau, or a route 

along a mountainside where there is a possibility of falling 

off on one side. Mr. Sarke did confirm that the road to Mine 32 

was about the same as most public roads in Harlan County. More 

specifically, he remembered driving on Black Mountain and 

recalled guardrails posted along the roadside. But he agreed 

160J 
that in most cases there were no rails or berms. He disclaimed knowledge of public road standards for the purpose 

of comparing to those he applied to the cited mine access 

road (Tr. 47). 

Inspector Sarke agreed that it was impossible to build 

sufficient barriers to keep cars from overtraveling on many 

stretches of Kentucky mountain roads. However, with regard 

to the access road in question, he did not believe it was 

impossible to build such barriers because there were existing 

guardrails and berms everywhere along that route. He confirmed 

that the first instance where guardrails were located on the 

road was on a bridge crossing a stream, but he did not know how 

those rails were mounted. He did recall that the rails 

consisted of metal posts joined by a steel rope, but did not 

know how effective they would be in preventing a car from 

falling into the stream. He guessed they could restrain an 

average car traveling at ten miles an hour (Tr. 50). 

Mr. Sarke stated that at location #1 where he observed 

the dislodged guardrail, the foreman's parking lot connects 

with the lot used by other employees. He estimated that 20 

automobiles would be passing through that location at any 

given time, and that these were automobiles driven by the 

men during shift changes. He agreed that this part of the 

roadway was level and was approximately 15 feet wide, but 

that two cars would not be able to pass each other at that 

location. He confirmed that one could observe any traffic 

coming from one parking lot to the other. He also confirmed 

that there had been problems with the ground washing away at 

this location, but denied any knowledge of a timber being 

fitted along the outer edge of the roadway. He did not know 

how deep the guardrail holes were, and assuming that they 

were in place, he could not state how much protection they 

would have provided for passing vehicles. He could not recall 

how the guardrails were installed to achieve abatement of the 

citation (Tr. 56-59). 

Mr. Sarke conceded that due to the road conditions, the 

installation of guardrails directly adjacent to the roadway 

where the guardrail was dislodged was not possible. While he 

believed that there was a danger of cars going off the hill 

because of the dislodged guardrail, he could not state whether 

the guardrail prior to being dislodged because of ground 

erosion would have restrained a vehicle (Tr. 60). 

Mr. Sarke testified that he considered the road in question 

to be a haulage road upon which people, trucks, and supplies 
moved. As for the abatement, it was his recollection that 

the guardrail was reinstalled so that it appeared to be capable 

of adequately preventing an automobile from going over the 

drop-off. Since he approximated the drop-off as 12 feet, he 

estimated that the depth of the holes in which the guardrail 

was installed would be deeper, but he could not recall what the 

guardrail was constructed of 16-foot posts (Tr. 66-68). He 

denied any knowledge of the welding of guardrail plates going 

on at the time the citation issued, and he believed that any 

such activity would have taken place at the shop located some 

250 feet from the bathhouse. He confirmed that he did not 

visit the shop during the inspection (Tr. 70). 

With regard to the citation at location #2, Mr. Sarke 

described the road as being level, approximately 20 feet wide, 

with an additional 15 foot wide level area extending along 

the outer edge. He confirmed that he considered the existing 

berm as inadequate, and expressed an opinion that ~ 24 inch 

berm would be acceptable, but conceded that an automobile 

could still overtravel such a 24-inch berm and turn over. He 

also agreed that in determining what is reasonable, he might 

consider the amount of room a driver would have to maneuver 

in before reaching the berm, and he believed that at other 

locations along the road where the berms were adjacent to 

the roadway, 24 inches would be acceptable. Although he first 

indicated that a driver would have to travel an additional 15 

to 20 feet to reach the berm, he then indicated that the 

berm was actually located on the road and not on the outer 

bank (Tr. 72). He explained further that the road was straight, 

and while the law only required the respondent to place berms 

on the outer bank, the respondent exceeded this requirement 

at location #2 by constructing the berm immediately on the 

road. However, the problem was that it was only six to eight 

inches high (Tr. 73-75). 

Mr. Sarke testified that he had interviewed the individuals 

involved in the accident, but did not ascertain how long they 

had worked at the mine, how many times they had ridden on 

the road, or if they understood what the speed limit was. 

He confirmed that the men told him they were not speeding, and 

he believed they understood the speed limit to apply to the 

entire road. He reported that he had no idea how fast the 

men were driving, but in his opinion they had to have been 

speeding (Tr. 79). 

He described the stretch of road where the accident had 

taken place to be curved, about 20 feet wide, with an area 

of ground on the right hand side before the drop-off, and 

afterwards, also on the left-hand side. In addition, he 

161~ 
intimated that there might be a few feet of apron between 

the roadside and the drop-off point. Mr. Sarke confirmed 

that while he regarded a 16 inch berm at this location to be 

unreasonable, a two foot berm would be reasonable. The 

car involved in the accident, however, probably would have 

traveled over a two foot berm due to its excessive speed. He 

admitted telling respondent's chief safety Inspector Albert Wagers 

that absent the inspector's manual instructions, he considered 

these berms adequate to restrain a car traveling at its 

normal speed (Tr. 84). While 16 inches might be acceptable 

for ordinary traffic, it was his view that the passage of 

heavy vehicles necessitated a 24 inch berm. These vehicles, 

he stated, weighed thousands of pounds and crawled along 

at less then 5 mph in low gear. He conceded that it was 

unlikely that the drivers of these vehicles would lose control 

and drive off the mountainside (Tr. 85-86). 

In response to further questions, Mr. Sarke testified that 

he knew of no tests conducted on the berms, and he confirmed 

that he interpreted the berm standards based on his experience 

as a miner and as an inspector. He did not know how long 

the cited guardrail had been dislodged (Tr. 89). He confirmed 

that all types of vehicles used the roadway cited at locations 

#2 and #3, but that at the location of the dislodged guardrail 

only automobiles and an occasional private soft drink vending 

truck would use the road (Tr. 89). He also confirmed that it 

was not likely that a truck would go off the roadway at that 

location, but that the possibility did exist (Tr. 90). When 

asked his interpretation of the cited berm standard, Mr. Sarke 

responded as follows (Tr. 93-95): 

Q. And is it your testimony as an MSHA 

inspector that a mine operator must base the 

height of his berms upon the largest vehicles 

using the road or the type most commonly found 

on the road? 

A. No, I would in my -- you know, my 

summation of it, he has got to do what is 

necessary to prevent cars from traveling over 

it. 

Even though I mentioned in my citation, 

you know, I mentioned the axle height of the 

Petibones, I believe it was. Even though I 

mentioned that, that was just for informational 

purposes telling, you know, that we do have 

a piece of equipment with a high axle on this 

roadway that is using this roadway. And we 

need to make our berms to where it's going 

to support that piece of equipment as well as 

others. 

1Gl~ 
Q. Well, is it your testimony, Mr. Sarke, 

that a reasonably prudent mine operator can 

base the height of his berms upon merely the 

cars using the road? 

A. I wouldn't think he would be using very 

good reason if he just based it solely on the 

cars if he had other vehicles that used it 

besides cars. 

Q. Mr. Sarke, could a reasonably prudent mine 

operator take into consideration the possibility 

or likelihood that bigger vehicles would be 

going slowly and less likely to run off the road 

in determining the height of a berm he thought 

was necessary? 

A. I think so, yes. 

Q. Could a reasonably prudent mine operator assume 

on the basis of his past history that large 

vehicles were not likely to go over the side of 

the road and base his decision as to the height 

of the berm upon that information? 

A. He would probably take that into consideration. 

Q. If it's true that no large vehicles have ever 

gone off the road at No. 32 Mine, why should the 

operator base his berm height upon a possibility 

that one might? 

A. To me, that's the intent of the law. What 

might happen, that is the intent of the law. It 

might be that one may never go off, if there never 

was a berm on the road. But to me that's why the 

law was written, because they have had it in 

cases where things have gone over, and things that 

moved at slow speeds, too. Not just things that 

move at high speeds. And we're talking heavy 

equipment. We've had lots of heavy-equipment 

accidents where they just go right over to the edge 

and go right over. A lot of them without reason, 

that we never could find the reason why. 

Q. And Mr. Sarke, isn't it true that if one of 

these heavy pieces of equipment got loose and 

went over the side of that road, no berm could 

restrain them? 

lGlJ 
A. If we're talking about a truck coming 

down that mountain, and its brakes went 

out, I don't know if there is anything short 

of a solid steel wall that would stop them 

from going over. 

Mr. Sarke confirmed that the berms on the roadway in 

question are constructed by road grading materials to form 

berms along the entire length of the roadway, except at three 

locations which have guardrails (Tr. 102). The accident of 

January 22, 1981, is the only such incident he was aware of 

on the road, and while he had previously inspected the road, 

he never issued prior citations for any violations of the 

berm standards (Tr. 104). In response to certain bench questions, 

Mr. Sarke explained his application of the berm standard as 

follows (Tr. 105, 110): 

Q. -- what do you consider when you decide 

whether or not a particular mine operator's 

elevated roadway is in compliance with 

this standard? 

A. Okay. I have to consider all the traffic 

that travels that roadway, the different types 

of equipment that are using the roadway, and 

what would be sufficient to take care of the 

equipment that does travel that roadway. 

Q. Now, how do you generally communicate 

this to a mine operator? 

A. Okay 

Q. Have you ever had occasion -- just let me 

ask you a follow-up question --have there ever 

been occasions where you have gone to a mine 

and you've determined that the berm is 

inadequate? And if so, how have you communicated 

this other than issuing a citation? 

Q. Okay. If I found the berms to be inadequate, 

I issued the citation, okay? I have talked to 

operators about their berms where there were 

instances where, you know, it might be a borderline 

case, that they needed to do a little extra something other than what they've got already. I 

have talked to them. And I have got them to do 

it. 
* * * * 

Q. Do you have any suggestions as to how 

a mine operator -- what he should use as a 

guideline? 

A. What he should use maybe reflects back 

to what I use. Just take the situations of 

what travels the road, you know; how many times 

a day it goes; the size of it; the amount of times 

they're there a day, a week, a month. If he's 

reasonable in his thinking of what would protect 

that when it goes up and down there --

And, at Tr. 115-117: 

Q. But do you believe that under the test the 

Commission has set up an operator is supposed to 

build his berms to take care of the situation 

when a truck is out of control coming down the 

mountain? 

A. No. I believe what he's supposed to do is 

take into consideration that truck coming off of 

that mountain and try and design them in a way 

that it could give him some protection. That's 

what they're there for, is for some. We know that 

if he gets going 50 miles an hour, you're not 

going to stop that truck coming off that mountain. 

Q. Well, isn't it true that at 20 miles an hour 

those two-feet and three-feet berms that you saw 

wouldn't stop him coming off the mountain? 

A. Possibly they wouldn't. I don't know; I've 

never had one going into that situation on that 

particular --

Q. But isn't it true that when you issued the 

citation you saw approximately 50 feet of an area 

of a 7.1 mile road that you considered to be 

inadequate? 

A. You're talking about what I wrote up. Yes. 

Q. And you considered the rest of it to be adequate? 

A. Yes, ma'am. 

l r.1 ··.· 

.J 0 
Q. And yet it is your testimony that most of 

that wasn't adequate to hold a truck coming off 

the mountain? 

A. I said I didn't know whether it would or 

not. I said we can't go into those given situations. 

I don't know whether it would or whether it wouldn't 

until after it happens. I considered what they 

had, other than the areas that I mentioned, to 

be adequate at that time. Yes. 

Respondent's testimony and Evidence 

Albert Wagers, chief inspector for respondent's Lynch 

District, and former superintendent of the No. 32 Mine, testified 

that the road in question was constructed in 1962, and that it 

was built by the construction superintendent Mr. Vicini, and 

it did not originally have berms. Mr. Wagers confirmed that 

he was mine superintendent from 1970 through 1972, and that 

during this time there were some berms, but they were not 

located along the entire length of the road (Tr. 131-133). 

He confirmed that the respondent and MSHA agreed that the 

road was an access road, and not a haulage road, and that in 

1973 a federal inspector told him that he was going to start 

citing violations for the lack of berms. Mr. Wagers stated 

that the inspector had cited another mine operator's haulage 

road and that the operator complained that he was required 

to have berms while the respondent did not. Mr. Wagers recalled 

telling his supervisor that the law did not cover access roads, 

only haulage roads, and that he wanted to test the law. However, 

when his supervisor raised the issue of cost, he pointed out 

that under normal conditions there were graders on the road 

which could create berms at no additional expense and that berm 

construction, rather than litigation, was preferred (Tr. 131-135). 

Mr. Wagers testified that the road graders began constructing 

berms beginning in November 1973, but that no determination was 

made as to how much material had to be graded to form an adequate 

berm. Because of constant grading, the berms generally grew in 

height, and there were places along the .road where the shoulder 

had eroded to such a degree that berms could not be maintained 

without widening the road, a task requiring more effort then 

could be expended at the time. He stated that in such locations 

the respondent tried to publicize road narrowness with horizontally 

laid telephone poles and other warnings (Tr. 136). 

Mr. Wagers recalled building the bathhouse in 1971, and he 

confirmed that he was responsible for building the two parking 

lots and the connecting road. He agreed with Mr. Sarke that 

lGlo 
the road was about 15 feet wide, and that part of the bathhouse 

was situated in fill, and after five years or ordinary drainage 

part of the fill turned into mud (Tr. 137). He also confirmed 

tat he decided to erect a guardrail made up of railroad 

ties laid end on end, and this was intended to warn people 

that the road was narrow. He did not think it necessary to warn 

of the bank because he felt it was plainly visible, and the 

guardrail installation took place after the MSHA citation 

(Tr. 139). 

Mr. Wagers stated that no experiment had been conducted 

to test the effectiveness of the poles for stopping cars, nor 

was he familiar with any means of testing. He confirmed that, 

judging from its construction, the cited guardrail would 

be incapable of restraining a vehicle. He insisted that they 

were only intended as warning signals, and he confirmed that 

there was not enough room to build anything sturdy enough 

to restrain automobiles because of space limitations, and 

because of the deterioration of the fill (Tr. 141). 

With regard to cited location #2, Mr. Wagers agreed with 

Mr. Sarke as to the dimensions of the roadway, and the depth 

of the drop-off. He stated that because he had no way of testing 

what type of construction would stop a vehicle, he could not 

state how high a berm should be to provide such protection. 

He further stated that because miners leaving by the road tended 

to travel quickly, the company tried to keep all traffic off 

the road in question at the time, and speed limits were posted 

above and below the hill, and safety meetings were held every 

week (Tr. 142-143). 

Mr. Wagers described the r9ad in question as an extension 

of a county road beginning at a bridge where the asphalt 

ended. Three of the 7.1 road miles were designed in a "zigzag fashion", with a steep curve at each leg, and a shallow 

grade between each curve. The remaining four miles was generally 

level, and if one were coming to work one would generally be 

on the bank side, and going home, on the hill side. The speed 

limit varied on different parts of the road, and at location #1 

it was 10 mph (Tr. 143-145). 

When asked about location #3, Mr. Wagers stated that 

as one approached the bathhouse one would be on the bank side, 

but beyond that point one would be on the hill side. The road 

had a sharp left hand curve going toward the batthouse and 

was about twenty seven feet wide with a drop-off of about thirty 

five feet (Tr. 146). He guessed that the car involved in the 

9ccident, assuming that it hit the berm, was being driven at 

35 to 40 mph, and he did not believe that there was any way 

~1:·, 

:.) ' 
to determine how much force a berm could withstand. In 

view of this uncertainty, it was his opinion that a berm 

could not be built for such a purpose, but should be intended 

to guide traffic. Assuming that access roads were governed 

by the berm requirements of the cited regulation, he believed 

that the road needed berms along its entire length, with the 

degree of elevation not important in calculating berm height. 

He admitted that the amount of berms was related to the degree 

of curve in the road, and stated that they might be necessary 

to help a driver on the sharp turns. Furthermore, he believed 

that any inside curves would not need the same type of berms 

as would an outside curve (Tr. 147-151). 

In reference to location #2, Mr. Wagers said that it was 

coming out of an inside curve, and since outside curves received 

most of the berm material, he regarded the 10 or 12 inches present 

at location #2 sufficient to stop a car on the inside curve 

(Tr. 152). He believed that the guard at location #1 was no 

less effective dislodged as it was erect. He described it as 

a light power pole, eight to 14 inches in diameter, round, fixed 

on top of other poles, supported by dirt and topped by a 

fence (Tr. 152). He doubted that it would even stop a motorcycle, 

as it was constructed only as a warning apparatus. He believed 

it was possible to build a wall capable of restraining trucks 

at the curve by piling up dirt thirty to fifty feet high at the 

turns, but he did not think protection could be provided on the 

road segment between these turns. He concluded that more 

protection existed on the access road than on the public highway 

over Black Mountain, and on the county highway which connects 

up to the access road there were neither perms nor guardrails 

(Tr. 155). 

On cross examination, Mr. Wagers agreed that he had not 

wanted to construct berms because he considered the road an 

access road rather than a haulage road. He said that the 

guardrail had been displaced in the past and that each time 

it had been restored. He conceded that at this location it 

would be reasonable to have some kind of protection, and in 

general berms did improve safety conditions. He reiterated 

that MSHA had issued citations in 1972 because of the lack of 

berms. He further stated that there were many rocky areas 

without much in the way of berms (Tr. 156-160) . 

. I~ response to bench questions regarding Exhibit R-4, 

depicting Location 1, Mr. Wagers estimated the drop-off shown 

in the right side of the photograph to be about seventy feet 

on an angle. He confirmed that one driving past the guardrail 

coul~ be killed, but denied that the rail was any more than a 

warning post or a curb feeler. He believed that the regulation 
in 77.1605(k) applied to an elevated roadway to prevent heavy 

equipment and large trucks from falling off of the hill, and 

he disputed its application to Location 1, a parking area. He 

believed that in order to build a restraining device there 

with a drop of seventy feet at an angle of seventy five degrees, 

he claimed, one would have to build retaining walls and a fifty 

foot wide base on the bottom to compensate for the fill foundation (Tr. 177). 

When asked to compare the guardrails as depicted in 

Exhibit R-4 to those in Exhibit R-5, Mr. Wagers admitted that 

the former represented what MSHA regarded as compliance, but 

claimed that no less protection was offered by the unrepaired 

guardrails in R-5. MSHA, he indicated, issued citations when 

the rails became unsightly. He regarded it as impractical to 

build a restraining wall at the location in R-5, and said that 

it had been his idea to mount railroad ties on the bank so 

that cars could be warned by scraping against them. Later, 

the company received a citation instructing it to put berms 

or guardrails along the entire length of road, a citation 

the company accepted by not contesting (Tr. 180-181). 

With regard to Exhibits R-2 and R-3 representing cited 

location 3, Mr. Wagers confirmed that the four foot berm 

shown in R-2 would do a better job of keeping a vehicle on 

the road than the sixteen inch berm depicted in R-3 as it 

existed the day after the accident. He agreed that it was 

no engineering problem to provide a four foot berm. He also 

said that because of the curved nature of the road, there 

would be reason to worry about drivers going over the side 

everywhere on it. However, he claimed it was physically 

impossible to have a continuous four foot berm along the 

entire 7.1 miles of road (Tr. 184-186). When asked if he 

believed the access road to be in compliance with section 

77.1605(k) at present, Mr.· Wagers replied positively, explaining 

that there was no place on the road where some sort of protection 

was not provided. He did not think one could draft a safety 

standard to fit all situations, and preferred to negotiate 

with MSHA on safety questions (Tr. 187). 

Robert Wilkerson, superintendent of No. 32 Mine at the 

time the citation in question was issued, testified that in 

his opinion the berms at locations 2 and 3 were adequate. He 

regarded reasonable speed and the speed limit to be his main 

determining factors. He stated that he had participated in 

the construction of the guardrail in 1973, and was aware of 

its state of disrepair in 1981. He further stated that he 

and his construction foreman had discussed repairing it, but 

had not yet done so at the time the citation issued. He 

1 r~ f J '_) _j_ 
confirmed that two new posts were completed and two more 

were being prepared. He described each post as consisting of 

a four inch pipe with a plate welding on the bottom, and two 

-railroad spikes driven through two holes to hold it upright. 

Two new posts were added near the employee parking lot, 

and a post was rolled back over and the ropes drawn taut with 

a truck before Mr. Sarke would abate the citation (Tr. 197-201). 

Mr. Wilkerson denied that the guardrail fence was designed 

to prevent vehicles from going off the road, and he stated 

that it was only to warn people, especially during foul weather 

when visibility diminished. He also explained that when one 

traveled -up to the mine there was about a half mile in which 

the drop-off was on one's left, and for the rest of the journey 

it was on one's right. He agreed that except for this one half 

mile, on the downward trip, one always drove on the high-wall 

side. When asked what he would do if he had brake problems 

while driving a truck down the road, he said he would drop 

his wheels into a ditch which followed along the highwall side, 

and he was certain that this action would slow a truck down, 

and probably stop it (Tr. 202-203). 

On cross examination, Mr. Wilkerson confirmed that since 

Mr. Vicini accompanied the inspector, he was not aware if 

Mr. Vicini had told the inspector of work being done on the 

guardrails. Mr. Wilkerson confirmed that the respondent had 

never considered closing off the parking lot, and he agreed 

that the two new posts were installed after the citation was 

issued, and estimated that the guardrail had been dislodged 

a week to two weeks prior to the issuance of the citation 

(Tr. 207). Mr. Wilkerson also confirmed that Mr. Vicini was 

in cha.rge of road maintenance, and that the grader operator 

reported to him. He further stated that the grader did not 

spend much time on the road during the summer, but during the 

winter he was assigned there twenty-four hours a day (Tr. 208). 

Inspector Sarke was recalled and testified that he did 

not remember seeing any speed limits posted other than the 20 

mph speed limit sign. He agreed that the guardrail represented 

in Exhibit R-4 was as it appeared when repaired, but he disagreed 

that Exhibit R-5 depicted what the unrepaired guardrail looked 

like. Except for two posts at the end, the rest were lying 

down under the bank, and not on the road (Tr. 209). 

Mr. Sarke confirmed that Exhibit R-3 corresponded to his 

recollection of location 3's appearance at the time of the 

citation and he speculated that the place that the car went 

off the road was shown in the lower left hand corner of the 

photograph, but was not sure because he did not know at 

what angle the picture was taken. With respect to the width 

of the roadway, he testified that, depending on how it was 

measured, the figure could vary. Although he admitted that 

Exhibit R-3 showed a portion of a berm which was three to four 

feet high, he asserted that if the camera had been swung more 

to the right, the view of the cited area would be more accurate 

(Tr. 211-213) . 
In response to further questions, Mr. Sarke refeated 

his contention that with normal safe 20 mph driving, a sixteen 

inch berm would be adequate for passenger cars. Under certain 

conditions he said, it was possible that a ten inch berm would 

be acceptable, but not for cars traveling at 20 mph. He did 

not remember a 10 mph sign posted in the road at the conveyor 

belt, and stated that he assumed it said 20 mph (Tr. 219). 

Mr. Sarke disagreed with Mr. Wager's view that the guardrail 

was to be used as a "curb feeler". He pointed out that 

Mr. Wilkerson said that the wire ropes were tightened, as 

though to give them strength to hold something back. When 

he used the axle-height test, he had understood that the 

intent of the section 77.1605(k) standard was to prevent 

overtraveling of the road, and did agree that a berm would not 

stop a runaway truck (Tr. 221). 

Mr. Sarke did not believe that a six or eight inch berm 

would keep somebody from going over the drop-off at Location 2, 

where the berm was at the edge of the road. Even if the six 

to eight inches had been on the outside, he would still 

consider it inadequate. He asserted that he was unfamiliar 

with the view that the purpose of berms was to give somebody a 

signal so he could jump out of the truck, or to alert people 

that they were getting to close to the edge (Tr. 223). 

Mr. Sarke denied that he disapproved of the sixteen inch 

berm at Location 3 merely because that was where the accident 

took place. Had the car in that situation been driven under 

normal circumstances, it probably would not have gone off the 

edge. He believed that the mere.fact that the car did not 

go off at Location 2 did not mean that the six to eight inch 

berm there was acceptable, even if the car was traveling at 

the speed limit. He indicated that his concept of the 

"reasonable-man test" basically reflected his personal itltuition 

with regard to specific circumstances, and he confirmed he 

had not conducted the actual investigation of the accident. 

Finally, when asked if whether, in retrospect, using the 

reasonable-man test to th~ available facts, including the 

fact that the vehicle was speeding, he would have issued a 

citation in regard to this one location, he replied that he 

probably would not (Tr. 226). 

Mr. Wilkerson was recalled in rebuttal and testified 

that before the citation was issued there were five to seven 

posts in the fence at cited location 1. Two of the end posts 

were laying on the bottom and the others were leaning. When 

he reset the posts, two poles were added, wires were threaded 

through the other two posts, and this wire was pulled to 

straighten out the structure, but there was not much tension on 

the wires. Afterwards, Mr. Wilkerson explained, the ropes were 

1621 
anchored by pulling an anchor plate, nailing or sticking it 

to the telephone pole, and tying the rope to it. He also 

pointed out a 10 mph speed sign visible in Exhibit R-5. He 

confirmed that he tightened the guardrail wires with a truck, 

but emphasized that this was only to straighten out the rope 

(Tr. 228). 

Respondent's arguments 

In its posthearing brief, respondent, for the first time, 

argues that the road in question is an access road and not 

a haulage road, and that section 77.1605(k) does not apply. 

In support of its argument, respondent asserts that while 

the term "haulage road" is not defined by the regulations, 

the subtitle for subpart Q of the regulations, "Loading and 

Haulage", deals only with surface areas of mines where coal 

or ore are hauled. Citing sections 77.1600, 77.1604, and 

subsections (i) (j), and (1), all of which deal with haulage 

road vehicles, ramp and dumping locations, respondent concludes 

that section 77.1605(k) obviously is not designed to cover 

the mine access road. 

Assuming arguendo that the access road is covered by 

section 77.1605(k), respondent maintains that the Commission's 

"reasonable person'' test gives no guidance in this case. 

Respondent points out that beginning in 1973 it was first cited 

by MSHA for lack of berms on its access road, and that this 

resulted from complaints filed by another mine operator who 

had been cited by MSHA for lack of berms on its haulage roads. 

Following this, the berms along the roadway in question have 

been constructed by the grader operator piling materials scraped 

from the road to the side to form a berm, and no road construction 

or engineering guidelines have ever been agreed upon by the 

parties for the construction and maintenance of berms. As a 

matter of fact, respondent points out that no such evidence was 

introduced at the hearing, and that the only evidence of record 

is that the public authorities who construct roads in the 

Commonwealth of Kentucky that are traveled by cars, trucks and 

semis do not feel berms or guardrails are necessary at most 

locations. The public road on the same mountain where the 

access road to No. 32 mine is located has few berms or guardrails 

(Tr. 47). 

The respondent maintains that the Commission's "reasonable 

person" test has no relevance to the areas cited by Inspector Sarke. 

In support of this conclusion, the respondent states that 

cited location #1 simply connects the two parking lots used by 

cars, pickup trucks, and a soft drink vending truck. Since there 
is a steep drop off, there is no way to construct a berm, and 

the respondent has provided guardrails which consist of pipes 

attached to a power pole which lays by the side of the road. 

Conceding that this arrangement is not strong enough to 

physically restrain a vehicle, respondent points out that 

Inspector Sarke abated the citation after the pipes in the 

middle of the guardrail were placed back in an upright position. 

Respondent maintains that the only reason for the guardrail 

was to warn drivers of the drop-off, and that since it served 

only as a warning, it was effective as long as some of the 

poles could be seen. Respondent also suggests that it seems 

logical that the foremen who drove this area day after day know 

the width of the road and used the side of the building as a 

guide rather than the poles. 

At cited location #2, the respondent points out that 

Inspector Sarke was of the view that a berm of 6 to 8 inches 

was not sufficient despite the fact that the vehicle had an 

additional 15 feet to gain control before reaching the drop 

off. Respondent contends that 6 to 8 inches is sufficient 

go guide vehicles on a flat piece of road, and that a berm 

of higher dimensions might serve to turn a vehicle over. 

Respondent maintains that MSHA now seems to agree that 

the location of the accident should not have been cited and 

that the berm was adequate. Part of the problem, states the 

respondent, is the fact that there is no agreement concerning 

what the berms are to protect and how. Respondent says that 

since the heavy trucks barely crawl up the steep grades at 

the mine there is little danger of them going off the side 

of the road on the trip up the mountain. When coming down 

the hill when empty, the respondent recognizes the fact 

that the trucks could attain higher speeds, but points out 

that most truck drivers would gear down if they totally lost 

their brakes and would steer into the ditch by the hill. However, if the driver crashed into a berm constructed substantially 

enough to stop a runaway truck, respondent concludes that 

the driver probably would not survive the impact. 

Finally, the respondent concludes that in this case 

the only evidence presented by the petitioner that the berms 

on the roadway were not adequate was Inspector Sarke's opinion 

that in 2 of the 3 cited locations he thought the berms were 

inadequate. However, the respondent maintains that Mr. Sarke 

used none of the guidelines established by the Commission to 

arrive at his conclusions. Respondent finds it difficult to 

determine why Mr. Sarke's opinion is any more valid than that 

of the respondent's, particularly in a case where the mine 

operator has spent 10 years dealing with the roadway in question 
on a constant basis with no accidents resulting in injuries 

to people, and where Mr. Sarke did not even realize that the 

guardrails were not designed to restrain a vehicle. Further, 

respondent concludes that Mr. Sarke's experience as an MSHA 

inspector does not seem to give him any more authority to judge 

the sufficiency of a berm with an additional fifteen feet 

of road than anyone else, and that the question as to why a 

vehicle would need a 2 foot berm, which might cause it to flip 

over, to realize it was getting too close to the edge when 

it had an additional 15 feet to stop was never explained. 

Petitioner's arguments 

In its posthearing brief, petitioner states that the 

roadway in question is a mine access road where men, equipment 

and supplies are transported to and from the mine. In response 

to the respondent's argument that an access road does not 

come under the cited section 77.1605(k) mandatory standard, 

petitioner cites several Commission Judge's decisions to the 

contrary, including one of mine, Peabody Coal Company, 

VINC 77-102-P, December 13, 1977. In addition, the petitioner 

cites cases interpreting the terms "haulage roads" and "elevated 

roadways", and petitioner concludes that on the facts presented 

in this case, it has met its burden in establishing the fact 

that at all three cited locations, respondent's berms failed 

to comply with the requirements of section 77.1605(k). 

With regard to cited location #1, the petitioner argues 

that the respondent had provided a guardrail which had 

fallen down and had not been replaced at the time the citation 

was issued. Citing Secretary v. Allied Products Co., 2 FMSHRC 

2517, 2523 (1980), aff'd in relevant oart, 666 F.2d 890, 893 

(5th Cir. 1982), petitioner argues that the failure to provide 

any berm or guard at a location along an elevated roadway is a 

violation of section 77.1605(k). 

With ~espect to the argument that the respondent may have 

taken initial steps to repair the guardrail, petitioner takes 

the position that this is not an absolute defense to the 

citation. On the evidence presented here, petitioner suggests 

that it is clear that at the time the citation was issued, 

respondent had taken no visible actions to correct the conditions 

as they were observed and cited by Inspector Sarke. 

In response to the respondent's suggestion that the 

condition of the cited guardrail was sufficient enough to 

serve as a "warning", petitioner takes the position that the 

broken down guardrail would not be adequate. Petitioner takes 

the position that the guardrail had been displaced on more 

than one occasion and replaced (Tr. 156). Petitioner asserts 
that it is ltidicrous to consider that any reasonable person 

would not replace the fallen down guardrail if it were reasonable 

to put the guardrail up in the first place. Although the two 

posts which remained standing may have constituted some form 

of warning, even respondent's witness Mr. Wagers did not 

consider that a warning sign would have been adequate at 

this location (Tr. 174). A warning sign would provide a 

visual warning, which would be of limited use under some 

conditions such as heavy rain, fog, or darkness. Whereas, 

a guardrail, even an inadequate guardrail, might provide some 

warning on the full length of the section of elevated roadway 

concerned. Although it is not the petitioner's position that 

a warning was su£ficient or that the respondent intended 

the guardrail to constitute merely a warning, petitioner 

believes it is clear t~at there is a violation in this case 

even under the very limited standard which respondent asserts 

as reasonable at location No. 1. 

With regard to cited location #2, petitioner concedes 

that there was a berm of 6 to 8 inches in height. Petitioner 

also concedes that the roadway was very level and straight, 

and that there was a fifteen foot or more distance between 

the edge of the road and the drop-off. However, petiiioner 

points out that both the inspector and the respondent considered 

that there was some danger of a vehicle running off the road 

at this point and going off the drop-off, and that all types of 

vehicles used the roadway. 

Petitioner points out that the Commission had indicated 

that the reasonable prudent person should consider the circumstances 

present and that the type and size of traffic using the roadway 

is a factor to consider. Relying on Inspector Sarke's 

testimony that a six to eight inch berm is "just a bump in the 

road", petitioner asserts that it is obvious that such a 

berm would provide for some of the vehicles using the roadway 

an insignificant amount of control and guidance of motion 

tantamount to no berm at all. 

In response to the respondent's argument concerning the 

distance between the edge of the roadway and the drop-off, 

pet~tioner suggests that while this may be relevant to the 

issue of whether or not the roadway was elevated, Inspector Sarke 

considered that there was some danger of a vehicle going over 

the edge of the drop-off. Conceding that it is not clear from 

the evidence exactly how great the distance was between the edge 

of the roadway and the drop-off, petitioner maintains that 

the respondent has provided no evidence that would support a 

finding that a vehicle of the size of those using the roadway, 

traveling within the speed limit, would be able to stop before 

it had traveled the distance between the edge of the road 

and the drop-off. Under these circumstances, petitioner concludes 

that a berm or guardrail that would provide at least some 

control and guidance, should be required. 
With regard to cited location #3, petitioner concedes 

that the parties are in agreement that the automobile involved 

in the accident was exceeding the posted speed limit and that 

Inspector Sarke was of the opinion that the 16 inch berm 

provided at this location was reasonable for a passenger car 

traveling within the posted speed limit. However, petitioner 

maintains that passenger cars are not the only type of vehicle 

using the roadway at this location and that the traffic on the 

roadway is a factor to be considered by the "reasonable man". 

In this regard, the petitioner argues that Inspector Sarke 

testified that based on the traffic on the roadway a two-foot 

berm would have been reasonable (Tr. 35). The Inspector also 

testified that he had measured the berms along the roadway, 

that the berms he measured averaged two feet in height or 

higher, and that the locations which he cited were the only 

locations where he could find berms which were of a lower 

height than the rest of the berms on the roadway (Tr. 26). 

A two-foot berm apparently was the standard size berm which 

the respondent had adopted for use along the roadway. Considering 

the conditions present at location No. 3 - an incline, a curve 

in the road, and a steep drop-off of approximately 30 feet 

(Tr. 32), petitioner concludes that it appears that a reasonable 

person would have provided at least the standard sized berm in 

use on the roadway at this location. 

Petitioner concedes that there was some distance between 

the edge of the roadway and the drop-off at location #2, 

but states that it is not clear from the testimony exactly 

what the distance was since the distance depends on the point 

from which a measurement is taken. In any event, petitioner 

argues that there is no showing that the distance was significantly 

greater at this point than at other points where the respondent 

had provided 2 foot berms, nor is there any showing that a vehicle 

leaving the roadway would be able to stop in the distance 

between the roadway and the drop-off. 

Petitioner takes the position that the respondent has 

set its own general standards along the roadway in question and 

has failed to comply with them. Further, the petitioner 

maintains that in applying the standards set forth by the 

Commission in its decision of January 27, 1983, in this case, 

it should be concluded that at location #1 there was a violation 

of § 77.1605(k) in that no berm or guardrail was provided 

at that location. Although the respondent may have taken 

some initial steps toward repairing the guardrail which had 

been used at the location, petitioner maintains that the 

respondent has not established that it was in the process of 

repairing the guardrail at the time the citation was issued. 

At location #2 petitioner asserts that the height of the berm 

1C~6 
was so low that it would have provided an almost insignificant 

amount of control and guidance of motion for some of the 

vehicles using the roadway. At location #3, the circumstances 

were such that a reasonably prudent person would have installed 

at least the average size berm in use along the roadway. At 

this location respondent may be said to have acted unreasonably 

in light of its own standards. 

Findings and Conclusions 

Application of section 77.1605(k) 

Respondent's argument that section 77.1605(k) is inapplicable 

to the cited roadway because it is a mine access road rather 

than a haulage road IS REJECTED. This same issue was raised 

and rejected by me in Peabody Coal Company, VINC 77-102-P, 

decided December 13, 1977. At page 10 of that decision, I 

made the following ruling which I incorporate by reference as 

my ruliRg in the instant case: 

* * * The regulation does not distinguish 

between access roads and haulage roads, but 

simply states "roadways". The Dictionary 

of Mining, Mineral and Related Terms, 1968, 

at page 931, defines a "roadway" as "an 

underground passage, whether used for haulage 

purposes or for men to travel to and from 

their work". It also defines "access road" 

(page 5) as "a route constructed to enable 

plant, supplies, and vehicles to reach a 

mine, quarry, or o~encast pit." While we 

are dealing in the instant case with a surface 

roadway, I find the definitions equally 

applicable even though the dictionary definition 

refers to underground. Respondent's assertion 

that for purposes of the regulation there is 

a distinction between an access road and a 

haulage road is rejected. I conclude that 

section 77.1605(k) makes no such distinctions 

and is applicable to all roadways on mine 

property used to transport coal, equipment, 

or men, regardless of the size, location, or 

characterization of the road being used. The 

purpose of the safety regulation is to protect 

the miner and to eliminate or prevent death or 

injury to men traveling the roadways during·the 

course of their mining duties. 

Although it is true that coal is not hauled on the roadway 

at the No. 32 Mine, the record establishes that the roadway 

is used to facilitate the movement of men, equipment; and 

1·."·' ·- 'j..:., { 
supplies at the mine, and that these activities are directly 

related to the mining process. Accordingly, my prior ruling 

and decision in Peabody Coal Company applies in the instant 

case. 

Fact of Violation 

Inspector Sarke conceded that out of a total distance 

of 7.1 miles along the roadway in question, the distance 

of inadequate berms comprised only the locations cited in 

his citation, namely, 29 feet at one location, and 22 feet 

at another, for a total of approximately 50 feet. The berms 

on the remaining portions of the roadway were adequate {Tr. 12). 

He confirmed that the automobile incident of January 1981, 

was the first that he was aware of, and in his opinion the 

respondent's berm program is outstanding (Tr. 26). 

It seems clear to me from the record in this case that 

the incident concerning the automobile traveling through the 

berm and over the drop-off caught Mr. Sarke's attention and 

prompted the issuance of the citation. This is not an unusual 

occurrence, and it is not the first time that MSHA has been 

prompted to act after the fact. However, even though Mr. Sarke 

characterizes the incident as an "accident" on the face of 

the citation, his testimony is that it was not technically 

a reportable "accident" because no one was injured. He testified 

that unless there is an injury, the regulatory definition 

of "accident" does not apply, and no formal investigation 

was conducted. The fact that a speeding occupied automobile 

went through a berm and became airborne before dropping over 

the embankment obviously caused Mr. Sarke to reflect on the 

possible inadequacy of the berms and guardrails along the 

remaining portions of the roadway. 

It is also clear from the record in this case that Mr. Sarke 

issued the citation because he found that the berms at two 

of the cited locations were less than 22 inches, the mid axleheight of the largest vehicle which he believed used the roadway 

at any given time. He mechanically applied the 22 inch 

"mid axle-height" standard when he issued the citation, and he 

abated the citation after the berms were constructed to at 

least that height. Now, the Commission has directed that I 

apply a "reasonable prudent man" test to determine whether 

the citation is supportable. In my view, prior to the Commission's 

remand, Mr. Sarke never heard of such an individual, and MSHA's 

promulgation of such "mid axle-height" guidelines are apparently 

communicated to the inspectors so as to preclude interference 

from any such being. 

1,.; l·' ,, ' .\ 

~.J t.... u 
As previously noted, respondent is charged with one 

violation of section 77.1605(k), even though the inspector 

cited three separate locations where he believed the berms 

or guards were inadequate and in violation of the standard. 

Findings and conclusions as to each of the cited locations 

follow below. 

Location No. 3 

Mr. Sarke confirmed that the automobile which went 

through the existing berm at location #3 was exceeding the 

posted speed limit and that the existing berm obviously did 

not prevent it from going over the embankment. However, with 

regard to the adequacy of the existing 16 inch berm at this 

location, Mr. Sarke's testimony is somewhat contradictory. 

When asked on direct whether the existing 16 inch berm was of· 

a height a reasonably prudent person would have installed, he 

replied "no" (Tr. 33) . He explained that based on the types 

of vehicles using the roadway at that location, he would 

recommend a 24 inch berm similar to those provided by the 

respondent along other portions of the roadway, even though 

the application of the ''axle-height" guideline would call for 

a 22 inch berm (Tr. 33). He then conceded that a 24 inch berm 

would not restrain an automobile traveling at excessive speed. 

On cross-examination, Mr. Sarke stated that the existing 

16 inch berm at the accident location was adequate for cars 

and trucks, but not for heavy equipment such as ''petibones, 

semis, and supply trucks" (Tr. 38). He also indicated that 

he did not feel he was putting his own personal safety in 

danger while traveling up and down the road, and that the 

existing berm at the accident location was adequate to keep 

his pick-up truck from going off the road (Tr. 37). Mr. Sarke 

candidly admitted that he told Mr. Wagers that absent the 

"axle height" MSHA guidelines, the 16 inch berm was adequate 

to restrain an automobile using the road. Mr. Sarke also 

conceded that any heavy equipment using the roadway "crawled 

along at less than 5 mph in low gear", and he conceded that it 

was unlikely that the drivers would lose control and drive over 

the edge (Tr. 85-86). 

I reject the petitioner's argument that since the respondent's 

berms along other portions of the roadway were determined to 

be at least two feet high that this somehow became a reasonable 

standard for the respondent to follow at all locations where 

berms were required, and that if the respondent failed to follow 

this standard a violation of section 77.1605(k) would result. 

While the petitioner's argument suggests that the respondent 

accepted the 22 inch ''mid-axle" height guideline and therefore 

constructed its berms to exceed that height to insure compliance, 

1623 
there is no evidence to support such a conclusion. In my 

view, if the respondent had constructed all of its berms to 

a height of 20 feet, Inspector Sarke would still have issued 

the citation because of the "mid-axle height" guideline he 

was following, and petitioner would obviously not argue that 

respondent was following its own standard. 

Petitioner's evidence that the 16 inch berm at location 

#3 was inadequate for vehicles other than automobiles and 

trucks consists entirely of the opinions of Inspector Sarke 

based on his experience as an inspector. However, there is 

no showing that Mr. Sarke has any particular expertise on 

road and berm construction, and his conclusion that a 16 inch 

berm is inadequate for "petibones, semis, and supply trucks" 

is unsupported by any credible evidence of record. Quite the 

contraryt Mr. Sarkes conceded that any heavy equipment using 

the roadway would travel at a "crawl" in low gear at less 

than 5 mph. Further, he also admitted that the existing 

berm was adequate for his pick-up truck, that he felt safe 

on the roadway with the existing berm, and that it was unlikely 

that drivers of heavy equipment would lose control of their 

vehicles. Mr. Sarke conceded that a reasonable prudent mine 

operator could take into consideration the possibility or 

likelihood that larger vehicles would be going slowly and 

were less likely to run off the road in determining the height 

of a berm he thought was necessary (Tr. 94). He also conceded 

that such an operator could also assume on the basis of his 

post accident-free history that large vehicles were not likely 

to go over the side of the road (Tr. 94). 

After careful consideration of all of the credible 

testimony and evidence adduced in this case, I conclude and 

find that the petitioner has failed to establish by a preponderance 

of the evidence that the existing berm of 16 inches cited by 

Inspector Sarke was inadequate and in violation of the cited 

standard. I concluded and find further that the petitioner 

has failed to establish that the respondent failed to act in a 

reasonable and prudent manner to insure the safety of the 

miners using the roadway in question. Accordingly, that portion 

of the citation which alleges a violation of section 77.1605(k), 

at location #3 IS VACATED. 

Location No. 1 

. Exhibit ALJ-1 is a rough sketch of cited location No. 1, 

adJacent ~o the bathhouse. The roadway is approximately 

15 feet wide at the point between the edge of the bathhouse and 

the drop-off opposite the bathhouse. Photographic exhibit R-4 

depicts th~ guardrail as it is supposed to look, with all 

poles or pipes in an upright position anchored by cables (Tr. 170). 

lGJO 
Photographic exhibit R-5 depicts the guardrail as it appeared 

when it was in disrepair, and the parties agreed that the 

photograph generally approximates the condition of the guardrail 

at the time Inspector Sarke issued the citation (Tr. 170). 

Inspector Sarke's narrative description of location No. 1 

on the face of the citation states that no guardrail was 

present for the 29 feet adjacent to the drop-off. It then 

states that the guardrail had been dislodged. It now seems 

clear to me that the inspector treated the dislodged poles 

and cables which made up the guardrail as if no guardrail 

existed. In short, since the poles or pipes were not upright 

and the cables were not drawn taut to support them, the inspector 

obviously believed that the guardrail in that condition was 

inadequate. 

As pointed out in my previous summary decision in this 

case, the term "guardrail" is not defined by MSHA's regulations. 

However, in its decision of January 27, 1983, the Commission 

stated that the protective purpose of section 77.1605(k), 

insofar as berms and guardrails are concerned, is that they 

are "capable of restraining a vehicle". In a footnote, the 

Commission explained the phrase "restraining a vehicle" to 

mean "reasonable control and guidance of vehicular motion". 

Thus~ given the facts of this case, the question presented is 

whether the existing guardrail at the time the citation was 

issued was in compliance with the requirements of section 77.1605(k). 

Respondent's assertion that it was in the process of 

repairing the collapsed guardrail at the time of the inspection 

IS REJECTED as an absolute defense to the citation. Even if 

the respondent could establish this was the case, I would consider 

this fact in mitigation of the penalty as an indication of 

respondent's good faith compliance efforts. However, I cannot 

conclude that the respondent has established through any 

credible evidence that it was in the process of repairing the 

guardrail. I accept the inspector's credible testimony that 

he saw no such activity going on at the time of his inspection, 

and my finding is that no such activity was taking place at the 

time of the inspection and the issuance of the citation. 

With regard to the actual condition of the guardrail 

at the time the inspector issued his citation, the parties are 

in agreement that it was not as originally installed. That is, 

it generally looked like it appears in photographic exhibit R-5. 

Further, Inspector Sarke indicated that the drop-off over the 

edge of the roadway where the guardrail was located was a 

"straight over-the-edge drop" of some 10 to 12 feet. He 

confirmed that the guardrail had apparently become dislodged 

because of erosion, and he could not state whether the corrected 

guardrail was capable of restraining a vehicle. 

1 (-. ') -Ju.J... 
Respondent's witness Albert Wagers took the position 

that the cited guardrail was only intended to warn anyone 

travelling along that portion of the roadway that the roadway 

was narrow, and he conceded that given the way it was constructed, 

the guardrail would be incapable of restraining a vehicle. He 

believed the purpose of the guardrail was to serve only as a 

"warning signal" or "curb feeler" to alert a driver that he was 

getting close to the edge of the drop-off. However, he conceded 

that if one were to drive over the edge, the result could be fatal. 

Superintendent W£lkerson generally agreed with Mr. Wagers' 

conclusions. 

I conclude and find that the condition of. the guardrail at 

the time the citation was issued was inadequate and that it 

did not comply with the requirements and intent of sectTon 

77.1605(k}. The record here establishes that the day of the 

inspection in question was not the first time the guardrail 

was allowed to be in disrepair, and that on each such occasion 

the respondent made the repairs so as to insure that the posts 

and cable were upright and taut so as to be effective. Under 

these circumstances, I conclude that the petitioner is correct 

in its assertion that any reasonable person would not replace 

or repair the guardrail if it were not reasonable to nut it un in 

the first place. I reject the notion that the guardr~il was -

installed raerely to serve as a warning, and I conclude and find 

that the condition that it was in when the inspector observed 

it would not restrain a vehicle from over-travelling and 

falling over the edge. Accordingly, the portion of the citation 

citing a violation at location No. 1 IS AFFIRMED. 

Location No. 2 

Exhibit ALJ-2 is a rough sketch of cited location No. 2. 

The parties are in agreement that at this location the roadway 

is level and straight and, that it is approximately twenty 

feet wide. Also, while there is some dispute as to the actual 

distance, there is an additional fifteen foot wide shoulder 

between the edge of the roadway where the 6 or 8 inch berm 

was located and the drop off. Under these citcumstances, a 

vehicle using the roadway would first encounter the berm and 

then would travel another 15 feet before reaching the edge 

of the drop-off. 

Inspector Sarke believed that a reasonably prudent person 

would construct a berm 24 to 36 inches high at the cited location, 

and he stated that cars, trucks, graders, and supply trucks 

used that portion of the roadway. However, he conceded that 

an automobile could still overtravel a 24 inch berm and turn 

over, and while he believed that the respondent exceeded the 

requirements of section 77.1605(k) by locating the berm immediately 

at the edge of the roadway rather than at edge of the drop-off, 

he was of the view that the 6 to 8 inch berm was "just a bump in 

the road" and was inadequate. 

r~ ~> > ... .:U .,~ 
The question here is whether or not the existing berm 

of six to eight inches would provide "reasonable control and 

guidance of vehicular motion" for the vehicle traffic using 

the cited portion of the roadway. Given the fact that any 

heavy equipment on the roadway would be travelling at a slow speed, 

and given the fact that the berm was at the edge of the roadway 

with another 15 feet of shoulder to the drop-off, one could 

possibly conclude that the existing berm was adequate for 

"controlling and guiding" heavy equipment. Petitioner's posthearing argument that the existing berm provided an insignificant 

amount of control and guidance of motion for some of the vehicles 

using the roadway suggests that this is not true for all of the 

vehicles using it. However, petitioner has presented no credible 

testimony to support its case and relies only on the opinion 

of Inspector Sarke. Since he obviously applied the "axle height" 

theory, his "hindsight" opinions applied retroactively to a 

cited condition which ~xisted over two and one-half years ago is 

of no value. Under the circumstances, I cannot conclude that 

the petitioner has established a violation at location #2, 

and that portion of the citation IS VACATED. 

Size of Business and the Effect of the Civil Penalty on the 

Respondent's Ability to Remain in Business. 

The parties have stipulated that the respondent is a large 

operator and that the payment of the civil penalty will not 

affect its ability to continue in business. I adopt this 

stipulation as my finding and conclusion on this question. 

Good Faith Compliance 

The record establishes that the respondent acted in good 

faith in abating the cited condition and I have considered 

this in the civil penalty assessed for the violation in question. 

Negligence 

I conclude and find that with respect to that portion of 

the citation citing the guardrail location respondent failed to 

exercise reasonable care to maintain the guardrail in a condition 

that would provide reasonably adequate protection for vehicles 

passing by the area. Under the circumstances, I conclude that 

the cited condition resulted from the respondent's failure to 

exercise reasonable care and that this constitutes ordinary negligence. 

Gravity 

Given the general disrepair of the guardrail at the time 

of the citation I believe it is reasonable to conclude that 

it would not restrain a vehicle from going over the edge of the 

163J 
drop off. As a matter of fact, Mr. Wagers admitted as much, 

even though he believed that the guardrail was only there to 

provide a warning. In any event, I conclude that the cited 

condition was serious. 

History of Prior Violations 

Petitioner has submitted a computer print-out which 

indicates that no violations of section 77.1605(k) were issued 

at the mine in question during the two-year period prior to 

the issuance of the citation in issue in this case. However, 

the history report does show that the respondent has been 

cited four times during this same two-year period for violations 

of section 77.1605(k) but that these violations occurred at 

other mines. Under the circumstances, and taking into account 

the inspector's testimony that the respondent's berm program 

is one of the best that he has encountered.in his district, 

I conclude that any additional increase in the penalty assessed 

because of respondent's history of prior violations is not 

warranted. 

Penalty Assessment 

Petitioner has recommended a civil penalty in the amount 

of $295, an increase of $125 over the penalty assessment 

proposed when this case was originally filed on July 6, 1981. 

That proposal took into account the fact that the citation 

cited three separate locations where the petitioner believed 

a violation of section 77.1605(k) had occurred. Given the 

fact that I have sustained the citation for the one guarding 

location and have vacated it for the other two berm locations, 

petitioner's recommendation is rejected. I believe that a 

civil penalty assessment in the amount of $125 is appropriate 

for the violation which has been affirmed. 

ORDER 

Respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $125 within thirty (30) days of the date of 

this decision in satisfaction of Citation No. 981185, January 23, 

1981, 30 CFR 77.1605(k), and upon receipt of payment by the 

petitioner, this cas~ is dismissed. 

Judge 

1G3~ 
Distribution: 

Carole Fernandez, Esq., U.S. Department of Labor, Office of 

the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant St., 

Rm. 1580, Pittsburgh, PA 15230 (Certified Mail) 

/slk 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

PATRICIA SWENSEN, 

Complainant 

v. 

EMERY MINING CORPORATION, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

DISCRIMINATION PROCEEDING 

Docket No. WEST 82-105-D 

DENV CD 82-9 

DECISION APPROVING SETTLEMENT 

Before: Judge Vail 

This proceeding involves a complaint of discrimination by 

Patricia Swensen (hereinafter "Swensen") against Emery Mining 

Corporation (hereinafter "Emery") pursuant to section 105(c)(3) of 

the Federal Mine Safety and Health Act of 1977. The complainant 

alleges that Emery is guilty of discrimination in not disciplining 

an employee accused of sexually harassing her and requests payment of 

six days of lost pay and travel expenses for 600 miles incurred as a 

consequence of this occurrence. Emery filed an answer denying any 

acts of discrimination against Swensen. This case was scheduled by 

proper notice for hearing, in conjunction with another case, on August 

23, 1983, in Price Utah. 

At the commencement of the hearing, James T. Jensen entered 

formal appearance as counsel for Emery and advised me that Swensen had 

retained w. Brent Wilcox of Salt Lake City, Utah qS her counsel. 

Neither Swensen nor her attorney appeared at the hearing. Jensen 

stated that he had received a letter dated June 17, 1983 (Ex. R-2) 

from Wilcox advising him that Wilcox represented Swensen and requesting Emery compensate Swensen for five days lost wages. Jensen wrote a 

letter to Wilcox dated August 19, 1983 (Ex. R-1) agreeing to pay the 

five days of compensation in full settlement of the compensation 

claim. Jensen reported that he received a telephone call in the 

evening of August 22, 1983, the day prior to the date of the hearing, 

advising him that Swensen had agreed to accept the proposal set forth 

in Jensen's letter of August 19. 

At the hearing, in view of the fact that neither attorney had 

entered a prior appearance in the record in this case, nor was Swensen 

present in the courtroom to confirm the agreement, I continued the 

matter and advised the parties to submit a settlement agreement for my 

approval. 

On September 14, 1983, I received a joint motion by the parties 

for an order of dismissal with prejudice of this case supported by a 

release and settlement agreement dated August 31, 1983. The settlement amount is in the sum of $469.84. 
WHEREFORE, for the reasons herein before given it is ordered: 

(A) The parties settlement agreement is approved. 

(B) The complaint of discrimination in this case is hereby dismisse 

with prejudice. 

Administrative Law Judge 

Distribution: 

Ms. Patricia Swensen, (Certified Mail), P.O. Box 459, Moroni, Utah 8464 

James T. Jensen, Esq., (Certified Mail), 190 North Carbon Avenue 

Price, Utah 84501 

W. Brent Wilcox, Esq., (Certified Mail), 500 Kearns Building, 136 S. Main 

Salt Lake City, Utah 84101 

/blc 

1837 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2° \9\B 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: Docket No. WEST 82-117-M 

A.C. No. 42-01150-05018 

v. 

Lucky Strike Mine 

PLATEAU RESOURCES LIMITED, 

Respondent 

Appearances: 

Before: 

DECISION 

Phyllis Caldwell, Esq., Office of the Solicitor, 

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

for Petitioner; 

James A. Holtkamp, Esq., Van Cott, Bagley 

Cornwall & McCarthy, Salt Lake City, Utah, for 

Respondent. 

Judge Kennedy 

The operator having failed to renew its contest of the 

penalties proposed for the two noise violations cited in 

the captioned matter as provided in the Order of March 28, 

1983, it is ORDERED that said notice of contest be, and 

hereby is DISMISSED with prejudice and that the operator 

pay the amount of the penalties pro sed, $144.00, on or 

before Friday, October 14, 1983. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Bldg., 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

James A. Holtkamp, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

Suite 1600, 50 South Main St., Salt Lake City, UT 84144 

(Certified Mail) 

ejp 

1 ·~ ., - ~ . .i;,.) 0 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 28, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASPHALT MINING & CONCRETE 

COMPANY, 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-79-M 

A.C. No. 02-02126-05501 

Portable Crusher No. 1 

DENIAL OF MOTION TO DISMISS 

ORDER TO SUBMIT INFORMATION 

In a Motion to Dismiss filed on September 12, 1983, the 

Solicitor advises that subsequent to filing his penalty 

petition Respondent paid the full amount of the proposed 

assessment for the six citations involved in this matter. 

The proposed assessments were $20 apiece for a total of 

$120. 

The Solicitor's motion to dismiss represents that this 

is a small mine with no prior history. The Solicitor does 

not discuss any of the citations individually but rather 

represents generally that gravity is estimated as moderate 

and that an accident could have occurred resulting in an 

injury causing lost work days or a disablement. In addition, 

negligence is generally estimated as moderate and the 

employer should have known of the existence of the violative 

condition. 

I am unable to approve the motion to dismiss on the 

basis of the present record. Although the operator is small 

and without a prior history, $20 is in my opinion a nominal 

penalty which indicates a lack of gravity. I have read all 

of the citations and on their face I must agree with the 

Solicitor that they appear to present the danger of a 

moderate to serious accident. Unger such circumstances the 

purposes of the Act simply are not effectuated by rubbers tamping the Assessment Office's $20 penalties. 

183J 
Although the Solicitor does not mention the MSHA penalty 

assessment regulations, it appears from the assessment sheet 

that all six penalties were assessed pursuant to the socalled ''single penalty assessment" formula. Section 100.4 

nf the regulations of the Mine Safety and Health Administration, 30 C.F.R. § 100.4, provides for the assessment of a 

$20 single penalty for a violation MSHA believes is not 

reasonably likely to result in a reasonably serious injury 

or illness. This regulation is not binding upon the Commission and indeed, is not even relevant once the Commission's 

jurisdiction attaches. The Act makes very clear tJ:iaj:. _ _E>~Ilal ty 

petitions before the Commission are de novo. The Commission 

itself recently recognized that it iS-not bound by penalty 

assessment regulations anopted by the Secretary but rather 

that in a proceeding before the Commission the amount of the 

penalty to be assessed is a de novo determination based upon 

the six statutory criteria specified in section llO(i) of 

the Act and the information relevant thereto developed in 

the course of the adjudicative proceeding. Sellersburg 

Stone Company, 5 FMSHRC 287 (March 1983). The Solicitor's 

motion to dismiss does not give me enough data upon which to 

make a reasoned and informed de novo determination of appropriate penalty amounts. The Solicitor must discuss each 

citation separately and not make blanket assertions about 

each of the statutory criteria. Moreover, in this instance 

even the blanket assertions regarding gravity and negligence 

do not support $20 penalties. 

In light of the foregoing, it is Ordered that the 

Solicitor's motion to dismiss be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine appropriate penalty amounts sufficient to 

justify settlement. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

/ln 
Distribution·: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 11071 Federal Building, 450 Golden 

Gate Avenue - Box 36017, San Francisco, CA 94102 

(Certified Mail) 

Ms. Theresa Sanders, President, Asphalt Mining and Concrete 

Company, P. O. Box 1106, Mesa, AR 85201 (Certified Mail) 

1G41 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 28, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PALMER COKING COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-93 

A.C. No. 45-02150-03502 

Section 12 - McKay 

Surf ace Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlement 

of the one violation involved in this proceeding for the 

original assessment of $20. I cannot approve the proposed 

settlement on the basis of the information submitted to 

date. 

The citation was issued because the automatic warning 

device on a dozer wa~ inoperative. The Solicitor advises 

that the operator is small in size with a small history of 

violations. She further reports that the condition was 

abated in good faith and that payment will not impair the 

operator's ability to continue in business. However, the 

Solicitor provides no information about negligence or 

gravity. She merely refers to the inspector's statement 

and the fact that the inspector would testify the hazard 

was immediately abated. Abatement is one thing and gravity 

is another. A proposed settlement of $20 would appear to 

denote a lack of gravity. Based upon the record as it now 

stands I could not find a lack of gravity. 

I recently approved a settlement motion from this 

Regional Solicitor's office, but I had difficulty in doing 

so because all the requisite information was not furnished. 

My approval was based on my own reading and evaluation of 

the citation. See United States Antimony Corp., WEST 83-98-M 

(August 29, 1983)-:- Other Regional Solicitor's routinely 

provide the necessary information. I cannot approve the 

settlement in this case without an explanation from the 

Solicitor regarding negligence and gravity sufficient to 

justify the penalty amount she proposes. 

1 ,., ~ . , I . _. .. j ..1: .. ....,,, 
Accordingly, the settlement motion is Denied and the 

Solicitor is Ordered to submit the necessary information 

within 30 days from the date of this order. If the information is not forthcoming. the cas~ will be assiqned for 

hearing. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Faye von Wrangel, Esq., Office of the Solicitor, u. S. 

Department of Labor, 8003 Federal Office Building, Seattle, 

WA 98174 (Certified Mail) 

Mr. Carl G. Folk, Manager, Palmer Coking Coal Company, 

31407 - 3rd Avenue, Black Diamond, WA 98010 (Certified 

Mail) 

/ln 

164J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 28, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ROSS ISLAND SAND & GRAVEL 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-111-M 

A.C. No. 35-00540-05501 

Ross Island Plant 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlement 

for the two violations involved in this matter. The proposed settlements are for $20 apiece. 

The Solicitor advises that the operator is small, has 

no prior history, abatement was in good faith, and payment 

of proposed penalties will not affect the ability to continue 

in business. However, the Solicitor does not furnish 

sufficient information with respect to gravity and negligence. 

She merely attaches the citations. One violation involved a 

work deck area littered with wood and other debris and the 

second violation involved an unsecured acetylene bottle 

located in the welding area. The inspector said nothing 

about gravity or negligence and neither does the Solicitor. 

There is therefore, insufficient basis for me to determinP. 

whether $20 penalties are appropriate. 

In discussing the operator's prior history the Solicitor 

states that this is a single penalty assessment situation. 

The fact that the Mine Safety and Health Administration 

treated these violations as "single penalty assessments" 

under section 100.4 of its regulations. 30 C.F.R. § 100.4, 

is not binding upon this Commission. Indeed, the single 

penalty assessment regulation is not even relevant in these 

proceedings. The Act makes very clear that penalty proceedings before the Commission are de novo. The Commission 

itself recently recognized that it is not bound by penalty 

assessment regulations adopted by the Secretary but rather 

l . n "l . , .~ :A. 1 
that in a proceeding before the Commission the amount of the 

penalty to be assessed is a de novo determination based upon 

the six statutory criteria specified in section 1'10 (i) of 

the Act and the information relevant thereto developed in 

the course of the adjudicative proceeding. Sellersburg 

Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if this 

were not so, the Commission would be nothing but a rubber 

stamp for the Secretary. Regardless of the Secretary's 

regulations once this Commission's jurisdiction attaches we 

have our own statutory responsibility to fulfill and discharge. 

This can only be done on the basis of an adequate record. 

~he Solicitor has fur~ished information regarding four of 

the six statutory criteria. She must furnish information 

regarding the remaining two which are negljgence and gravity. 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise this case will be 

assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Rochelle 1Kleinberg, Esq. i Office of the Solicitor, U. s. 

Department of Labor, 8003 Federal Office Building, Seattle, 

WA 98174 (Certified Mail) 

Mr. R. G. Tuttle, Corporate Director, Ross Island Sand & 

Gravel Company, 4315 South East McLaughlin Blvd., P. 0. Box 

02219, Portland, OR 97202 (Certified Mail) 

/ln 

1645 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 291911 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Civil Penalty Proceeding 

Docket No: WEST 82-31-M 

P.eti tioner A/O No: 42-01660-05002 

v. Ore Haulage Plant 

KENNECOTT MINERALS COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

James Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, 911 Walnut Street, 

Kansas City, Missouri, 64106, for the Petitioner; 

Mr. Vaughan Baird, Kennecott, Utah Copper 

Division, Magna, Utah 84044, for the Respondent 

Judge Moore 

At the outset of the hearing, attorney Kent Winterholler 

announced that he had been instructed by the client not to 

represent it in these proceedings. He said that Mr. Vaughan 

Baird would represent Kennecott. I approved the withdrawal of 

counsel and the substitution of Mr. Baird. At the time I did 

not realize that Mr. Baird was not an attorney but in any 

event he gave his client adequate representation. 

Government counsel then announced that with respect to 

Citation No: 0579407 the government had agreed to modify the 

citation so as to eliminate the "significant and substantial" 

finding and Kennecott had agreed to withdraw its notice of contest. 

When I asked the amount of the agreed penalty, I was told that they 

had not discussed any penalty. Mr. Baird expressed the belief 

that there was a standard penalty for a non-S&S violation. He 

also expressed his belief that the violation would not count as 

prior history if it was not S&S. I explained to the parties 

that the Commission and its judges are not bound by Part 100 of 

30 C.F.R. MSHA is of course, bound by its own regulations and 

if a citation is not marked as "significant and substantial", 

and if it is abated in the time set by the inspector it would 

be considered a single penalty and the assessment would be $20. 

If the $20 is paid in a timely manner it will not be counted as 

a part of the respondent's previous history of violation. 

Once the notice of contest is filed, however, the rules change. 

The Commission and its judges are then bound to assess a civil 

l n /4 · ~.) jj; u 
penalty in accordance with the six statutory criteria if a 

violation is proved or admitted. 30 C.F.R. §100.4 does not 

take all of the criteria into consideration and a number of 

the Commission judges have refused to be guided by that section. 

Mr. Baird then agreed to pay the proposed penalty of $106. 

I accepted that agreement. 

Citation No: 579403 initially alleged a violation of 

30 C.F.R. 55.9-2. At the trial, it was amended, without objection, to alternatively allege a violation of 30 C.F.R. 55.16-14(a). 

The subject of the citation is an overhead crane referred 

to by the witnesses as a bridge crane. The crane is used in a 

metal building where respondent builds and repairs ore cars. 

The building is 400 feet in length and 50 feet in width. The 

crane runs on rails placed near the ceiling that are 40 feet 

apart and run nearly the length of the building. The operator 

of the crane sits in a cab halfway between the two long rails 

and moves with the crane as it travels east or west along the 

400 foot distance. The operator does not move with the lifting 

device as it is moved towards one or the other of the two rails. 

The rails run east and west and the crane can move something 

from almost anywhere in the building to almost anywhere else. 

The crane lifts ore cars and parts of ore cars or material 

for use in their repair. 30 C.F.R. 55.9-2 appears under the 

heading "Loading, hauling, dumping." I need not decide whether 

the operation of this overhead bridge crane constitutes loading, 

hauling or dumping, because of the amendment to allege a violation of 30 C.F.R. 55.16-14(a). The latter standard requires: 

"operator-carrying overhead cranes shall be 

provided with: 

(a) Bumpers at each end of the rail.;" 

The rails supporting this bridge crane did have bumpers at 

the ends but they were not placed properly and the crane could 

come in contact with the wall of the building if the wheels 

went all the way to the bumpers. The inspector measured the 

distance between the extension of the cab and the wall as 

2". The distance between the wheels and the bumpers was 24". 

The bumper blocks had once been in a safe position but 

the cab of the crane was modified in such a way as to make it 

bigger than it had been and thus necessitate moving the bumper blocks 

away from the wall, and this had not been done after the 

modification. There is some question as to when the modification 

was completed, but the admittedly hearsay evidence given by the 

inspector is more persuasive than the direct but unprecise evidence given on behalf of the company. The inspector was told that the 
modification had been completed for 30 days and that a complaint 

had been filed with management concerning the lack of proper bumpers. 

Mr. Strong, a supervisor of crane operators, realized that the 

crane could hit the wall but did not think it would go through. 

He made no measurements. He thought that 3 or 4 days before the 

inspectors came in, he had sent in the order to move the bumpers. 

He does not think that the modification had been completed for 30 

days. He said the mechanics showed up on July 22 at 8:00 A.M. 

to make measurements in preparation for moving the bumpers. 

It was the same day that Inspector Palmer had shown up. He 

could not say, however, exactly when he piaced the order nor did 

the company atte:{tlpt to produce any records or any other witnesses 

to show when the work had been completed on the cab and when the 

order had been placed to move the blocks. 

The portion of the cab which would have come in contact with 

the wall contained electrical circuits connected with the control 

of the bridge crane. As stated earlier Inspector Palmer took 

measurements which indicated that this portion of the cab would 

have gone through the metal walls if the wheels had come in contact with the bumper blocks. Safety Engineer Klobchar took 

measurements after the blocks had been moved which showed that 

the addition to the cab would have penetrated the wall only 1-1/2". 

His measurements were made after the blocks had been moved. 

Measuring from the old holes to the new holes, and measuring 

the distance between the wall and the cab with the wheels up 

against the newly located blocks and subtracting, was his method 

of determining how far the extension of the cab would penetrate 

the wall. The method he used assumes that the same blocks were 

used with the holes in the same place and that no changes in 

configuration of the blocks were made. There is no testimony 

to support these assumptions. The witnesses did refer to 

moving the blocks, but it could just as easily have meant moving 

the location of the blocks with different blocks being installed. 

I credit the inspector's method of measurement. 

Furthermore, I think it was incumbent upon management 

knowing, as several witnesses knew, that the extension would hit 

the wall, to measure and find out beforehand, how much of a 

hazard was involved. Instead, they just told the crane operator 

to be careful and move slowly as she approached the blocks. 

There were people working on the floor of the building and 

under the objects being moved by the crane. Inasmuch as the 

portion of the cab that would have contacted the wall contained 

electrical circuits which control the operation of the crane, 

contact with the wall, whether it went 1-1/2" into the wall or 

through the wall, could have caused the operator to lose control 

and perhaps drop whatever load was being carried. I consider 

it a serious hazard. 
Kennecott is a large operation but it is in serious 

financial condition. Its owner, however, SOHIO is financially 

sound. There was good faith abatement and a moderate history 

of prior violations. If I were absolutely sure that the 

modifications had been completed 30 days before the inspection, 

I would find gross negligence. No one from management 

testified that the order to move the blocks was placed when 

the modification was completed. The blocks should have been 

moved before the modification was completed, so that there 

would have been no overlap in operating the modified crane 

and having the blocks in a safe position. I find a fairly 

high degree of negligence but not gross negligence. The 

citation is AFFIRMED. 

A penalty of $300 is assessed. 

Respondent is accordingly ORDERED to pay to MSHA, within 

30 days, a civil penalty in the total amount of $406. 

Distribution: 

~ (1. 9J?~rfl· Charles c. Moore, Jr., 

Administrative Law Judge 

Mr. Vaughan Baird, Kennecott, Utah Copper Division, Magna, 

Utah, 84044 (Certified Mail) 

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

of Labor, 911 Walnut Street, Kansas City, Missouri, 84044 

(Certified Mail) 

/db 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SiP308 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

on behalf of 

. . 

. . Docket No. KENT 83-38-D 

SHELBY EPERSON, . . Jolene No. 1 Mine 

v. 

JOLENE, INC. , 

Appearances: 

Before: 

Complainant 

Respondent 

. . 

. . 

DECISION 

Darryl A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Complainant; 

Bernard Pafunda, Esq., Deskins and Pafunda, 

Pikeville, Kentucky, for Respondent. 

Judge Melick 

This case is before me upon the complaint of the Secretary 

of Labor, on behalf of Shelby Eperson under section 105(c)(2) of 

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

et seg., the "Act", alleging that Jolene, Inc., (Jolene) discharged Mr. Eperson on September 4,_1982, in violation of section 

lOSCc)(l) of the Act.I Evidentiary hearings were held on the 

complaint in Prestonsburg, Kentucky. 

!section lOSCc>Cl> of the Act provides in part as follows: 

No person shall discharge *** or cause to be 

discharged or otherwise interfere with the exercise of the statutory rights of any miner *** in 

any *** mine subject to this Act because such miner *** has filed or made a complaint under or 

related to this Act, including a complaint notifying the operator or the operator's agent *** of an 

alleged danger or health violation in a *** mine 

*** or because of the exercise by such miner *** 

on behalf of himself or others of any statutory 

right afforded by this Act. 
In order for the Complainant to establish a prima facie violation of section 105(c)(l) of the Act, he must prove by a preponderance of the evidence that Mr. Eperson engaged in an activity 

protected by that section and that the discharge of him was motivated in any part by that protected activity. Secretary ex rel. 

David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980), 

rev'd on other grounds sub nom, Consolidation Coal Company v. 

Secretary, 663 F.2d 1211 (3rd. Cir. 1981). See also NLRB v. Transportation Management Corp.,~~ U.S.~~' 76 L. Ed. 2d 667, 103 

s. Ct. (1983), affirming burden of proof allocations similar 

to those in the Pasula case. 

In this case, Mr. Eperson asserts that he refused to work at 

the Jolene No. 1 Mine on the morning of September 4, 1982, because the supervisory official who was expected to perform the 

required preshift safety examination and to direct the work of 

the miners appeared that morning in an intoxicated condition. 

Eperson alleges that it would have been unsafe to have relied 

upon a person in such condition to properly perform the preshift 

examination and to work with, and under the direction of, a man 

in such condition. A miner's exercise of the right to refuse 

work is a protected activity under the Act so long as the miner 

entertains a good faith, reasonable belief that to work under the 

conditions presented would be hazardous. Robinette v. United 

Castle Coal Company, 3 FMSHRC 803 (1981). 

The operator does not dispute that a refusal to work for an 

intoxicated supervisor may be a protected activity but argues 

that since Shelby Eperson himself was supposed to be the foreman 

in charge on September 4th and indeed was the only certified foreman present, it was Eperson's responsibility to preshift the mine 

and to direct the work force that day. Eperson's failure to do 

so and his encouragement by example to other miners to leave the 

job that day was, according to the operator, non-protected grounds 

for discharge. There is accordingly no dispute that Eperson was 

discharged for his refusal to work on September 4th. The limited 

question before me is whether that work refusal was protected 

under section 105(c)(l) of the Act. Resolution of this issue 

depends on whether Eperson was responsible for preshif ting the 

mine and was in charge of the workforce on the morning of September 4th. If Eperson indeed had those responsibilities, then his 

refusal to work that morning was not protected. If, on the other 

hand, an individual named Steve Bridgeman had those responsibilities, as it is alleged by the Complainant, and Bridgeman was in 

fact unab~e to safely fulfill those responsibilities because of 

intoxication and fatigue, then Eperson's work refusal may very 

well have been protected under the Act. 

Shelby Eperson was initially hired by Jolene president Theodore Parker in June 1982 to be foreman for a new second shift at 

1S51 
the No. 1 Mine. Eperson then possessed state certification papers qualifying him to be employed as a foreman and/or electrician. The second shift was cancelled after a few weeks, however, 

for lack of work and Eperson was moved to the first shift but not 

as a foreman. According to Eperson, he then took orders from 

Steve Bridgeman who was acting as section foreman, though without 

state certification, and from mine superintendent James Comer. 

Eperson never performed any preshift examinations on the first 

shift and was never specifically asked to do so. This function 

was performed by Comer and/or Bridgeman. Moreover, although Jolene's president, Theodore Parker, claims that he once told Eperson that he would be in charge in Comer's absence, until September 4, ·1982, Comer had never been absent and Eperson had in fact 

never acted as foreman on the first shift. 

According to Eperson, on Friday, September 3, 1982, mine 

superintendent Comer told the work crew that he would be absent 

the next day. Bridgeman then purportedly told the crew they would 

start work the next day at 6:00 a.m.2 Eperson reported to the 

mine office at 5:45 the next morning. By 6:00 a.m., seven or eight 

men had arrived and were ready for work but the purported section 

foreman, Steve Bridgeman, had not shown up. A miner named Duffy 

apparently expressed doubts that Bridgeman and another miner, Chris 

Kukle, would show up at all. They had been drinking the night before and were so intoxicated, they had fallen off Duffy's porch as 

they left around 4:00 that morning.3 Some time after 6:00 a.m., 

one of the miners called Bridgeman, who reportedly said that he 

would show up later. Bridgeman still did not show up so at least 

six of the waiting miners then left, including Duffy, Cecil, Kukle, 

the belt drive man, and the shot fireman. By 7:10 a.m., Bridgeman 

had still not arrived so Eperson and the remaining miners also prepared to leave. Eperson had already removed his work clothes when 

Bridgeman finally arrived, followed by some of the other miners. 

2rn his statement dated September 29, 1982 (Complainant's Ex. No. 

6), Jolene's witness, Dana Boyd, confirms that the miners were to 

begin work at 6:00 a.m. I find that the work was indeed to commence at that time. 

3Bridgeman admits that he had been out drinking beer until early in 

the morning, that he could not remember how many beers he had had, 

and that he did in fact stumble on Duffy's porch. He showed up 

late for work because he "overslept". He concedes, moreover, that 

"he just half remembers what happened the next day." Under the 

circumstances, I find that Bridgeman was indeed under the influence 

of alcohol on the morning of September 4th and that Eperson's perceptions of Bridgeman's condition and the events that morning are 

entitled to the greater weight. 
Eperson detected alcohol on Bridgeman's breath and saw that 

he had bloodshot eyes. He suggested to Bridgeman that he should 

not take the men into the mine in his condition and told him that 

if anyone got hurt working for him in that condition, somebody 

would go to jail. Eperson then refused to work, explaining to 

Dana Boyd that the mine had not been preshifted and he was afraid 

for the men's safety with Bridgeman in his apparently intoxicated 

condition. The remaining miners also refused to work for Bridgeman but Bridgeman nevertheless proceeded to order Eperson to operate the "G.D." loader. Eperson persisted in his refusal to work 

and during a heated exchange that followed, Bridgeman told Eperson that he did not like him, citing an incident a few weeks before in which Eperson had complained about Bridgeman's improper 

spacing of roof bolts. 

Bridgeman testified that shortly after the men began leaving, he got a telephone call from Comer. He told Comer that "they 

were refusing to work with me because they said I was drunk. 11 4 

Comer, without speaking to Eperson, then told Bridgeman to send 

the men home. Bridgeman, too, then left the mine site and went 

to see Parker to explain why the men were not working that dax. 

5 k-\>.11.< (Su ... 1 0/b/a-} eo~ .\-; ..ie.- Dnl c«<" J 

On the following day, Sunday, -~brttaty 5, Eperson went fo 

Parker's houseboat to pick up his paycheck. Parker was absent, 

but Comer gave him his check and told him that Parker was letting 

him go "due to the cutbacks." According ·to Eperson, there had in 

fact been no cutbacks at the mine and, shortly after he was discharged, another certified electrician was hired to replace him. 

According to Jolene President Parker, Eperson was fired because on Saturday, September 4th, he failed to preshift the mine 

and took the.men off the job. Parker claims that he had planned 

in any event to discharge Eperson the following Tuesday because 

of an alleged 25 percent cut back in coal demand and that Eperson' s acts only accelerated that decision.5 Parker maintains 

that Eperson had been told when he was first transferred to the 

4rt may reasonably be inferred from this admission that the other 

miners were also refusing to work for Bridgeman because they also 

thought he was too intoxicated. This evidence further demonstrates 

that Eperson's work refusal on these grounds was shared by the other miners and was accordingly reasonable and made in good faith. 

Robinette, supra. 

5This allegation is far from credible. Eperson was the only certified electrician at the mine and without him, important electrical 

repairs and inspections could not legally be made. The record 

shows, moreover, that another certified electrician was hired by 

Jolene within the month and that in fact there was no production 

cutback. 

1G53 
day shift that he would be the substitute foreman in Comer's absence and that, accordingly, when Comer was absent on September 

4th, Eperson should have conducted the preshift inspection and 

taken the miners underground. In spite of this, Comer acknowledged that he did not place Eperson in charge on September 4th. 

Respondent also suggests that Steve Bridgeman could not legally 

have performed these functions because he was not then a certified foreman and asserts that Parker, Comer, and Bridgeman, as 

well as miners Dana Boyd and Bobby Dotson, all denied that Bridgeman was a foreman. 

I find from the credible evidence, however, that Bridgeman 

in fact had been regularly acting as a foreman and had been regularly performing the preshift and on-shift examinations at the 

Jolene No. 1 mine even though he was not certified as a foreman 

and was not therefore legally authorized to do so. 

Significantly, entries were made by Bridgeman in the preshift and on-shift report books for periods before September 4th 

and were signed by Bridgeman as "Preshift Mine Examiner", "Assistant Foreman", and "Assistant Mine Foreman". MSHA senior special 

investigator Charles Webb observed that only Bridgeman's signature appeared on the left hand pages when he first examined the 

preshift books on September 8, 1982, Cthus indicating that Bridgeman alone had been conducting the foreman's job of preshifting 

the mine) and that superintendent Comer's signature had been subsequently added to the books as presented at hearing. I find the 

disinterested testimony of Webb to be especially worthy of reliance and conclude that indeed in many instances the mine superintendent had co-signed the preshift/on-shift books long after the 

inspections had been performed by Bridgeman to cover up the fact 

that Bridgeman in fact had been regularly performing the functions of a foreman. 

It is also observed that, unlike non-management personnel at 

the mine, Bridgeman was paid a fixed salary with no extra pay for 

overtime work. In addition, it is significant that when Bridgeman finally showed up for work on the morning of September 4th, 

the men who had previously left the job site presumably because 

of his absence turned around and came back to the mine with him, 

obviously looking to him as the person in charge. One of Respondent's witnesses, Dana Boyd, also referred to Bridgeman as "the 

boss" and observed that Bridgeman had indeed on prior occasions 

preshifted the mine himself (Complainant's Ex. No. 6). Boyd also 

stated that when mine superintendent Comer called on the morning 

of September 4th questioning whether the men were going to work 

that day, he asked to speak to Bridgeman and not Eperson. In 

addition, it was Bridgeman and not Eperson who later that day 

went to Jolene President Parker to explain why the men had not 

worked that morning. Finally, Comer himself conceded that he did 

not direct Eperson to act as foreman on the day he refused to 

work. 

1(' •: : .. ) ;J l 
Under the circumstances, it may reasonably be inferred that 

Bridgeman in fact had been regularly acting as a foreman prior to 

September 4 and in that capacity was regularly performing the preshift examinations. It may also be inferred, just as alleged by 

the Complainant, that Bridgeman and not Eperson was expected to 

perform the preshift inspection and to direct the miners as the 

supervisor in charge on September 4th. The self serving denials 

of this fact in the face of the convincing evidence to the contrary, lead me to conclude that the testimony of Respondent's 

witnesses (Parker, Comer, Bridgeman, Dotson, and Boyd) is less 

than credible not only with respect to this issue but also in all 

essential respects. The significant contradictions between the 

testimony of Jolene witness Dana Boyd and the admissions he made 

in his September 1982 statement to MSHA investigators very well 

illustrates the lack of credibility of these witnesses. It may 

reasonably be inferred that Boyd altered his testimony because of 

legitimate concerns for retaining his job with Jolene. 

Under the circumstances, I find the Complainant's allegations entirely credible and I find that Mr. Eperson did indeed 

entertain a bona fide reasonable belief that Bridgeman was in 

charge of the work force on September 4th, that Bridgeman's functional capacities were then sufficiently diminished by alcohol 

and fatigue so that it would have been hazardous for the miners 

to have relied upon a preshift examination performed by him that 

day and that it would have been hazardous to have worked underground under his supervision. Robinette, supra.; supra, footnotes 3 and 4. Moreover, since Eperson admittedly told Bridgeman 

Cwho I have found was the acting foreman that day> of his belief 

in the safety hazard at issue and since this information was admittedly further communicated to Mine Superintendent Comer, the 

"communication" requirement stated in Secretary ex rel. Dunmire 

and Estle v.,Northern Coal Company, 4 FMSHRC 126 (1982), has 

clearly been met. Accordingly, I find that the Complainant has 

met his burden of proving that his discharge was motivated by a 

work refusal that was protected under the Act. 

DAMAGES AND COSTS 

It was stipulated at hearing that Mr. Eperson has already 

received the appropriate wages for the period November 19, 1982, 

through January 25, 1983, pursuant to an Order of Temporary Reinstatement. On January 25, 1983, Jolene ceased to operate the No. 

1 Mine in Johnson County and moved to a new location with the 

same equipment and four miners (but not Eperson) to develop a new 

mine. Production of coal began on May 1, 1983, and at the tim~ 

of hearing, fourteen miners (but not Eperson) were employed at 

the new mine. At hearing, Jolene agreed, pursuant to the Order 

1G55 
of Temporary Reinstatement, to again reinstate Mr. Eperson effective May 19, 1983, and to pay him $1,000 toward prior lost wages. 

Damages for back wag~s ust therefore be computed for the periods, September 6, 19 , through November 18, 1982, and January 

26, 1983, through May 18, 1983. " 1 10 / / ) 

9'~(5~~ ~~~-h-~ Oc~<Q(""' ~ tfo n 

Since it has also been stipulated that Mr. Eperson had been, 

prior to his discharge, working 40 hours per week at $13 per hour, 

and 14 hours per week at $19.50 per hour, his weekly gross wages 

during this· period would have been $793. It is reasonable to infer 

from the type of work performed in setting up electrical equipment 

in the new mine that Eperson would have continued to work during 

the development of the mine as the only certified electrician previously employed by Jolene, and that his wages would ac<::Qr_dl,ngly have 

continued at the same rate for the period January 26, 1983, through 

May 1, 1983,, when coal production bega. n. He is ?~ourse also enth- io/1,! 

tled to continuing wages from May 1 through May )'8 /3f983, the day Q.. /tJ 

before his second reinstatement by Jolene. Accordingly, based on Q~:~±;~ the information stipulated at hearing (and not upon unverified 

statements in the Secretary's brief), I find that Eperson is due 

gross back wages for 26 1/2 weeks of $21,014.50, less $1,000 already paid by Jolene and $810 earned from interim part time employment. Mr. Eperson is also entitled to interest on the back wages 

computed at the rate of 12 percent per annum from the date such 

wages would ordinarily have been paid to the date those wages are 

actually paid. Jolene does not dispute that Mr. Eperson is also 

entitled to $20 in expenses. 

ORDER 

Jolene, Inc. is hereby ordered: Cl) if it has not already 

done so, to immediately reinstate Shelby Eperson to the same (or 

comparable) position he held at the time of his discharge on September 4, 1983; (2) to pay Shelby Eperson back wages of $21,014.50; 

(3) to pay interest on the said back wages to be computed at the 

rate of 12 percent per annum from the date these amounts were due 

to the date actually paid; and (4) to pay Mr. Eperson's expenses 

of $20. Prepaid back wages of $1,000 and $810 Eperson earned in 

alternative employment may be deducted from the total amount to 

1 (" ~- ~" ,,; ~) u 
be paid. It is further ORDERED that th Secretary of Labor commence review of this case for considera 'on of assessment of civil 

penalties against Jolene, Inc.6 

Distribution (by certified mail) 

Bernard Pafunda, Esq., Deskins an Pafunda, 105 1/2 Division Street, 

P.O. Box 799, Pikeville, KY 41501 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

Thomas Mascolino, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

nw 

6I cannot at this time accept the amount of civil penalty profferred as settlement at hearing. Information necessary for review of 

the proposal under section llO(i) of the Act is not before me. In 

particular, before any such proposal can be considered, information 

concerning the operator's good faith abatement of the violation 

found in this case must be developed, including information about 

Mr. Eperson's reinstatement and the payment of amounts ordered due 

in this case. In any event, if the operator herein agrees to waive 

the Secretary's procedures under 30 CFR Part 100 as it appears it 

does, then the Secretary should file a separate Civil Penalty Proceeding with the Commission. 

1657 
FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 September 30, 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMERICAN MINE SERVICES, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

DECISION 

Docket No. WEST 82-1-M 

MSHA Case No. 42-01689-05003 X02 

LaSal No. 2 Mine 

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

United States Department of Labor, Denver, 

Colorado, 

Before: 

for Petitioner; 

Mr. Morris E. Friberg, Pro Se, American Mine 

Services, Inc., Denver, Colorado 

Respondent. 

Judge Carlson 

This civil penalty proceeding arises out of an inspection of 

American Mine Services, Inc.'s (AMS) LaSal No. 2 Mine by one of 

the Secretary's representatives. The Secretary charges AMS with 

the violation of two mandatory safety regulations promulgated 

under the Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seq. (the "Act"). After notice to the parties a hearing was held 

on July 27, 1983, in Denver, Colorado. Both parties waived 

post-hearing briefs in favor of oral arguments presented at the 

close of the hearing. 

During the hearing the parties agreed to the settlement of 

citation No. 584206 as follows: AMS would withdraw its notice of 

contest and pay the proposed penalty of $24 and the Secretary 

would amend citation No. 584206 to reflect that the violation was 

not significant and substantial. Because citation No. 584206 

concerns a rather minor violation, one unlikely to result in 

serious injury, the settlment was accepted and approved at trial. 

That approval is reaffirmed here. 

1 (' ~- : :.; Ju 
The only rema~ning citation is No. 583964 which alleges a 

violation of mandatory safety standard 30 C.F.R. § 57.12-65.~/ 

Issues 

The issues are: 

(1) Did AMS violate the cited standard, and, if so, was the 

violation significant and substantial? 

(2) If a violation occurred, what is the appropriate civil 

penalty? 

Stipulations 

At the outset of the hearing the parties enter~d into the 

following stipulations: 

1. AMS was the operator of the LaSal No. 2 mine at the time 

these citations were issued. 

2. The operations and products of the LaSal No. 2 Mine affect 

commerce. 

3. At the time of the citations the LaSal No. 2 mine was 

under development and there were approximately four underground 

employees (three scheduled and occasionally others) and three 

surface employees. 

4. AMS has no record of prior violations. 

5. Payment of the proposed penalty will not affect the 

ability of AMS to remain in business. 

Background Facts 

Little dispute exists as to the essential facts surrounding 

the alleged violation. Respondent's LaSal No. 2 mine is supplied 

with electricity by Utah Power & Light (Utah). Utah's transmission lines carry 13,200 volts. This transmission line terminates 

at AMS's transformer which steps down the current to 480 volts. 

Beyond the transformer, AMS's own lines take over to bring the 480 

volt current into the mine. Utah had provided their primary lines 

with lightning arrestors. The secondary system provided by AMS was 

an above-ground cable of approximately 500 feet in length, suspended 

1/ § 57.12-65 Mandatory. Powerlines, including trolley wires, 

and telephone circuits shall be protected against short circuits 

and lightning. 

1G5J 
from poles. It consisted of three power conductors spun around a 

steel messenger cable that was grounded at five poles. The three 

power conductors were encased in insulation rated to 600 volts, 

but were not connected to this grounding network. All of AMS's 

electrical equipment i.s frame grounded. The secondary system was 

not provided with lightning arrestors or a static line. The 

primary lines are located on higher ground than the secondary 

lines. 

Discussion 

The thrust of the Secretary's case is that AMS's secondary 

transmission line lacks adequate protection from lightning strikes 

and therefore violates 30 C.F.R. § 57.12-65. Section 57.12-65 

requires powerlines to "be protected against ••• lightning." MSHA 

inspector Hunt, who has more than three years experience as an 

electrical inspector and forty five years experience (1S_9-n._ 

electrician, maintained that the miners in the shop and office 

areas were endangered because AMS's line lacked either lightning 

arrestors or a static line. Lightning arrestors are circuit 

disrupters which are designed to accept a lightning discharge and 

bleed off the charge to a grounding system. After the lightning 

charge is bled otf, the arrestor restores itself to normal 

operation and allows the transfer of power through the cable. A 

static line is a bare conductor hung some distance above a 

transmission line and provided with grounding wires. such a line 

operates to draw the lightning charge and dissipate it down 

through one of the grounding lines. In the opinion of the 

inspector, the absence of these devices, or some functionally 

similar system, meant that adequate lightning protection was not 

being provided. 

In response, AMS insists that it provided adequate lightning 

protection by a variety of means, notwithstanding the absence of 

lightning arrestors or a static line. 

section 57.12-65 does not define the type or degree of 

lightning protection which is required. The Commission has 

consistently recognized the Secretary's wide latitude in 

promulgating broad or simple regulations in order to cover a large 

range of situations. E.g., United States Steel Co., 5 FMSHRC 3,5 

(1983); Alabama By-Prodllcts Corp., 4 FMSHRC 2128, 2130 (1982); 

Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (1981). 

Where the standard does not specify the type of protection 

required, the adequacy of the protection is measured against the 

objective reasonable prudent person standard. United States Steel 

Corp., 5 FMSHRC at 5. The question thus becomes whether a reasonably prudent person "familiar with all the facts, including those 

peculiar to the mining industry" would find the lightning 

protection to be adequate in the "context of the preventive 

purpose of the statute." Id. 
AMS places much emphasis on the fact that Utah provides a 

static line and lightning arrestors on their primary transmission 

line. AMS reasons that since Utah's primary line had a higher 

elevation it would be hit before the secondary line and would 

dissipate the lightning charge before it reached the secondary 

line. 

Inspector Hunt, however, testified that the protection on the 

primary circuit offers only partial protection for the secondary 

circuitry because there is a significant chance that the lightning 

would strike the 500-foot-long secondary line where the Utah's 

arrestors and static line provided no protection. 

AMS's expert, John Vickery, also has extensive electrical 

experience. Vickery has a degree in electrical engineering, is 

senior electrical engineer for AMS, and has nearly forty years 

experience in the field. Vickery's own testimony corroborates 

Hunt's concern that lightning could directly strike the secondary 

line. Vickery said that lightning "diverts from patterns from 

time to time, and you're never sure when it happens" (Tr. at 162). 

Vickery also stated that: 

[T]he [secondary] line was not supposed to go up over the 

brow of the hill as it did later. It was to stay down on the 

level more, and when I realized he had put it up that 

way, it occurred to me that that high spot might be a potential spot for lightning to strike. (Tr. at 162)(Emphasis 

added). 

Hunt gave uncontradicted testimony that lightning strikes can 

reach 200,000 volts (Tr. at 40, 77). 

Hunt also testified that a strike on the primary line could 

surge past the transformer onto the secondary line. He maintained 

that Utah's static line might not be able to bleed off all of the 

current from a powerful lightning surge before it traveled to the 

secondary. His chief concern, however, was the potential for the 

lightning to hit the secondary circuitry, rendering protection on 

the primary circuitry valueless. 

AMS insists that further protection for its secondary 

circuitry is provided by the messenger wire on the triple cable. 

Vickery felt that if lightning hit the secondary circuitry it 

would be dissipated by the messenger cable to the grounding poles 

and would not flow along the power conductors. 

Inspector Hunt did not agree. In his opinion lightning could 

strike the power conductors directly and burn through the neoprene 

1 f\f'• .· 

':.HJ j_ 
insulation which is only rated to 600 volts. Enormous current would 

then travel on the ungrounded power conductors. Even if the 

lightning did strike the messenger cable, he believed there is a 

real possibility that the 200,000 volt current from the strike would 

travel from the messenger cable to the phase conductors after 

burning the insulation. Finally, assuming that the current only 

flowed on the messenger cable, electrocution could still result to 

miners working with or near electrical equipment. The messenger is 

grounded by five poles, each of which can only dissipate a finite 

amount of charge and might not bleed off the entire charge generated 

by a heavy lightning strike. Therefore, according to Hunt, the 

messenger cable provides insufficient protection. 

I find the testimony of both Mr. Vickery and Inspector Hunt to 

be credible. Both men were knowledgeable in the field and helpful 

in understanding the technical issues. I especially appreciate Mr. 

Vickery's candor on cross-examination. He did not dispute the fact 

that lightning's behavior may be unpredictable. 

Taken as a whole, the evidence presented by AMS convinces me 

that its existing system of protection significantly lessened the 

danger that a lightning strike in the area would kill or injure a 

miner. I accept, for example, the argument that a discharge would 

be more likely to strike Utah's primary line on high ground than 

AMS's secondary line. I further accept the possibility that strikes 

of less than maximum voltage could be safely conducted away by the 

bare messenger line or the frame grounding on the electrical 

equipment in the shop. Inspector Hunt made no serious effort to 

prove otherwise. 

Nevertheless, I must conclude that the inspector is correct 

when he insists that a heavy strike on the AMS line was possible, 

and that such a strike would carry with it a real potential for 

injury or death to miners at the site. In reaching this conclusion 

I find it noteworthy that all three forms of protection which AMS 

relied upon do not have lightning protection on the mine site as 

their primary purpose. The purpose of the arrestors and static 

lines on Utah's line was to protect its equipment, not mine 

employees working near the secondary lines or circuitry, which had 

no lightning protection per se (Tr. at 28, 74, 76). The primary 

purpose of the messenger wire was to physically support the power 

conductors (Tr. at 79)·. The primary purpose of the frame grounding 

was to provide fault protection for an ordinary 480 working voltage, 

not the heavy surges which could result from lightning. I am 

reluctant to believe that a reasonable and prudent person, having 

expertise in electrical phenomena, would regard AMS's measures, 

designed as they were for other purposes, as adequate protection for 

miners against lightning hazards. Furthermore, inspector Hunt 

effectively showed where each of the systems in place was deficient 

to neutralize the hazardous effects of the megavoltages generated by 

lightning. 
Beyond that, I give weight to inspector Hunt's assertion that 

of those mines in the area which had pole~suspended power lines, an 

overwhelming majority had arrestors, static lines, or similar 

devices designed to deal with lightning (Tr. 210). This gives some 

indication that the industry regards such specific protection as 

reasonable and prudent. That Utah Power and Light saw fit to use 

arrestors and a static line strength~ns this inference. 

In summary, I must construe the standard to require either 

lightning arrestors, static lines, or some device providing 

equivalent protection. Since AMS had none of these, the level of 

protection demanded by the standard was not met, and the alleged 

violation must be affirmed. 

In considering whether the violation was significant and 

substantial within the meaning of the Act, I would note again that 

the devices in place at the time of inspection afforded some 

protection against some lightning strikes. Nevertheless, I must 

conclude that the evidence shows that the level of protection was 

such that there was a reasonable likelihood that a lightning strike 

on AMS's power line would cause injuries of a reasonably serious 

nature to miners working with electrical equipment. Cement 

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

Penalty 

The Secretary seeks a civil penalty of $87.00. Section llO(i) 

of the Act requires the Commission, in penalty assessments, to 

consider the size of the operator's business, its negligence, its 

ability to continue in business, the gravity of the violation, and 

the operator's good faith in seeking rapid compliance. The size of 

the mine is small. The parties stipulate that imposition of the 

proposed penalty would not affect the operator's ability to continue 

in business. AMS was negligent, but the negligence was in part 

attributable to an honest misapprehension of the requirements of the 

standard. The gravity of the violation was moderate. A lightning 

strike was reasonably possible, but the likelihood was not great. 

If one occurred, however, the resulting injury could well be severe. 

The number of miners exposed to potential injury, on the other hand, 

was small. The evidence as to good faith abatement is equivocal, 

and I make no finding on that element. overall, the facts do not 

favor a heavy penalty. The secretary apparently made due allowance 

for the mitigating factors, and proposed a low figure. I conclude 

that $87.00 is the appropriate penalty for the violation. 
CONCLUSIONS OF LAW 

Based upon the entire record and the factual findings made in 

tha narrative portions of this decision, the following conclusions 

of law are made: 

1. The Commission has ju~isdiction to decide this case. 

2. Respondent AMS violated the mandatory standard published at 

30 C.F.R. § 57.12~65. 

3. The violation was significant and substantial. 

4. The appropriate civil penalty for the violation is $87.00. 

ORDER 

Accordingly, it is ORDERED that citation 583964 is affirmed; 

and that AMS, within 30 days of this order, shall pay to the 

Secretary a civil penalty of $87.00 in connection therewith. 

It is further ORDERED that the settlement of citation 584206 

made at the hearing is approved; that the violation alleged therein 

is affirmed but shall not be classified as significant and substantial; and that AMS, within 30 days of the date of this order, 

shall pay to the Secretary a civil penalty of $24.00 in connection 

therewith. 

Distribution: 

/' 

~ 

#~ /-? ~ -

A. Carlson 

Adm1n1strative Law Judge 

James H. Barkley, Esq., (Certified Mail), Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 8q294 

Mr. Morris E. Friberg, (Certified Mail), American Mine Services, 

Inc., 4705 Paris Street, Denver, Colorado 80239 

/blc