December 1981 

Commission Decisions 

12-02-81 Joseph A Campbell v. 111.e Anaconda Co. 

12-03-81 Cowin & Co., Inc. 

12-04-81 Phelps Dodge Corp. 

12-18-81 Penn Allegh Coal Co. 

12-22-81 Consolidation Coal Co. 

12-22-81 Maben Energy Corp. 

12-31-81 Royalty Smokeless Coal Co. 

Administrative Law Judge Decisions 

12-01-81 White Pine Copper Div., Copper Range Co. 

12-07-81 Penn Allegh Coal Co. 

12-07-81 Local 2250, UMWA v. Old Ben Coal Co. 

12-09-81 Elbert Baugh Excavating Inc. 

12-09-81 Southwestern Portland Cement Co. 

12-15-81 Beckley Coal Mining Co. 

12-16-81 Penn Allegh Coal Co. 

12-21-81 Marlene Finn v. Brown Badgett, Inc. 

12-22-81 Penn Allegh Coal Co. 

12-22-81 Mathies Coal Co. & Consolidation v. MSHA 

12-23-81 CF & I Steel Corp. 

12-23-81 Richard M Atkinson dba Somis Sand & Rock Co. 

12-29-81 Absolute Coal Corp. 

12-29-81 111.e Quapaw Co. 

12-29-81 Kaiser Steel Corp. 

12-29-81 Nicholas Ramirez v. W-P Coal Co. 

12-30-81 Martiki Coal Corp. 

12-30-81 Connnonwealth Mining Co. 

12-30-81 Ernest Dials v. Wolf Creek Collieries 

12-30-81 Consolidation Coal Co. 

12-30-81 MSHA ex rel Ricky Ray Ferrell v. R&E Coal Co. 

12-30-81 A H Smith Stone 

12-30-81 Hannan Mining Co. 

12-31-81 Kaiser Cement Corp. 

WEST 80-221-IM 

HOPE 76-210-P 

WEST 79-349-DM 

PENN 81-6-R 

WEVA 80-116-R 

WEVA 79-447-R 

HOPE 76X409 

LAKE 81-106-·m.f 

PITT 78-97-P 

LAKE 82-1-C 

LAKE 81-73-M 

LAKE 81-117-M 

WEVA 81-495 

PENN 81·-154 

KENT 81-167-D 

PENN 81-154 

PENN 81-240-R 

WEST 80-350-R 

WEST 80-467-M 

VA 80-'-171 

CENT 80-388-M 

WEST 80-494-R 

WEVA 81-248-D 

KENT 80-273 

KENT 81-74 

KENT 81-89-D 

LAKE 80-352-R 

VA 81-32-D 

VA 81-51-M 

VA-81-61 

CENT 80-306-M 

Pg. 2763 

Pg. 2764 

Pg. 2765 

Pg. 2767 

Pg. 2775 

Pg. 2776 

Pg. -2780 

Pg. 2782 

Pg. 2791 

Pg. 2793 

Pg. 2799 

Pg. 2806 

Pg. 2807 

Pg. 2810 

Pg. 2812 

Pg. 2813 

Pg. 2814 

Pg. 2819 

Pg. 2826 

Pg. 2829 

Pg. 2837 

Pg. 2844 

Pg. 2858 

Pg. 2871 

Pg. 2884 

Pg. 2896 

Pg. 2905 

Pg. 2917 

Pg. 2927 

Pg. 2936 

Pg. 2947 

Commission Decisions 

DECEMBER 

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

William Haro v. Magma Copper Company, WEST 79-49-DM, 80-116-DM. (Judge Morris, 

October 23, 1981) 

Richard Clemons v. Anaconda Copper Company, WEST 81-298-DM. (Judge Broderick, 

Dismissal of October 28, 1981) 

Secretary of Labor, MSHA v. Central Ohio Coal Company, LAKE 81-78. (Judge 

Cook, Settlement Approval of November 13, 1981) 

Secretary of Labor, MSHA v. Inverness Mining Company, LAKE 81-45. (Judge 

Kennedy, November 4, 1981) 

Secretary of Labor, MSHA v. Sewell Coal Company, WEVA 79-31. (Judge Kennedy, 

November 4, 1981) 

Rosalie Edwards v. Aaron Mining, Inc., WEST 80-441-DM. (Judge Morris, 

November 17, 1981) 

Secretary of Labor, MSHA, on behalf of Gordon Bennett, et al v. Emery Mining 

Company, WEST 80-489-D(A). (Judge Morris, November 24, 1981) 

Secretary of Labor? MSHA v. Kocher Coal Company, PENN 80-174-R, 80-197. 

(Judge Laurenson, Petition for Interlocutory Revi.ew of December 14, 1981 

order) 

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

Juan Munoz v. Summit Minerals Company, CENT 80-331-DM. (Judge Boltz, 

October 23, 1981) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

JOSEPH A. CAMPBELL, 

Complainant 

v. 

THE ANACONDA COMPANY, 

Respondent 

December 2, 1981 

Docket No. WEST 80-221-DM 

ORDER 

On November 23, 1981 Anaconda filed a petition for review raising 

questions of law and fact relating to the judge's decision issued on 

October 23, 1981. That decision includes a finding that Complainant 

Campbell was discharged on October 26, 1979 in violation of the discrimination provisions of § 105(c) of the Mine Safety and Health Act of 

1977, 30 U.S.C. § 815 (Supp. III, 1979). Back pay and attorney's fees 

for the Complainant also are awarded, but the judge requests that counsel 

for both parties advise him in writing by November 16, 1981 whether they 

have agreed. on the amounts due under those awards and if so, to submit 

those amounts to him for approval. The decision provides that if approval 

is given, an order will be issued which finally disposes of the proceedings; 

if counsel are unable to agree, further posthearing orders will be 

issued. 

The October 23 decision does not resolve the monetary amounts. 

Consequently, it is not a final disposition and does not initiate the 

statutory review period under § 113 of the Mine Act, 30 U.S.C. § 823. 

Accordingly, Anaconda's petition for review filed on November 23, 1981 

is dismissed as premature. Victor McCoy v. Crescent Coal Company, 

3 FMSHRC (November 5, 1981). The parties may file appropriate 

petitions for discretionary review in accordance with § 113 of the Mine 

Act and Commission Rule 70, 29 C.F.R. § 2700.70, after the judge enters 

his final disposition of this proceeding. 

2763 

81-12-5 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

COWIN AND COMPANY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 3, 1981 

ORDER 

Docket Nos. HOPE 76-210-P 

HOPE 76-211-P 

HOPE 76-212-P 

HOPE 76-213-P 

The Secretary has filed a petition for reconsideration of a Commission decision issued November 6, 1981. He requests clarification of 

that decision through an express statement that only two petitions for 

assessment of penalties were dismissed. 

The Commission's order granting review limited the issue to whether 

30 CFR §77.1903(b) is a mandatory safety standard. We held that it is 

not. The only petitions and penalties that were before the Commission, 

and hence were dismissed, involved section 77.1903(b). In context, we 

believe it is clear that the Commission did not review and the decision 

did not affect violations of other standards at issue before the judge. 

Accordingly, the petition for reconsideration is denied. 

2764 81-12-6 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 4, 1981 

Docket No. WEST 79-349-DM 

on behalf of Johnny Chacon 

v. 

PHELPS DODGE CORPORATION 

ORDER 

The Secretary has petitioned for reconsideration of our decision 

issued November 23, 1981. The Secretary argues that the decision was 

based largely on our resolution of factual issues not properly before 

us. The Secretary relies on our direction for review, which stated in 

part, "The issues on review are limited to those raised in section IV(E) 

of [Phelps Dodge's] petition· [for discretionary review]." That section 

of Phelps Dodge's lengthy petition raised issues concerning the judge's 

application of the burdens of proof in this case. The issue reviewed 

was a broad one requiring discussion of both legal and factual questions. 

In declining to review a section of the petition challenging ten specific 

factual findings, we did not don a straightjacket. Rather, we selected 

a statement of the issue designed to focus the parties' attention on 

whether the appropriate analytical and evidentiary tests for a discrimination case had been properly applied. The fact that Phelps Dodge 

raised a question regarding a particular finding of the judge in one 

subsection of its petition did not preclude evaluation of that finding 

as an integral part of the section directed for review. Neither §113 of 

the Mine Act, 30 U.S.C. §823 (Supp. III),nor the Commission's rules 

require or encourage rigid rules of pleading. 

2765 
To determine whether the judge properly applied the various burdens 

of proof in this case, it was necessary to exam1ne the evidentiary 

factors he considered in arriving at his conclusions. Indeed, the 

Secretary himself discussed facts in his brief to the Connnission. 

Discrimination cases involve many mixed factual and legal questions. 

We could not determine whether the Secretary "had sustained [his] burden 

of proof and/or burden of establishing a prima facie case" -- the 

essential question directed for review -- without examining the evidence 

pertaining to the prima facie case and the operator's defense against 

that case. 

Accordingly, the petition for reconsideration is denied. 

2766 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PENN ALLEGH COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 18, 1981 

Docket No. PENN 81-6-R 

DECISION 

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

1977, 30 U.S.C. §801 et~· (Supp. III 1979). The proceeding involves 

the validity of a section 104(b) withdrawal order and the underlying 

citation issued to Penn Allegh Coal Company for an alleged failure to 

comply with a provision in its dust-control plan. For the reasons discussed below, we affirm the judge's decision. ];/ 

The citation alleges a violation of 30 CFR §75.316, which implements section 303(0), 30 U.S.C. §813(0), of the Act. Section 75.316 

states in part: 

A ..• dust-control plan and revisions thereof suitable to the 

conditions and the mining system of the coal mine and approved 

by the Secretary shall be adopted by the operator and set out in 

printed form •••• Such plan shall be reviewed by the operator and 

the Secretary at least every 6 months. 

(Emphasis added.) 

1./ Chairman Collyer assumed office after this case had been considered 

at a Commission decisional meeting and took no part in the decision. 

A new Commissioner possesses legal authority to participate in pending 

cases, but such participation is discretionary and is not required for 

the Commission to take official action. The other Commissioners reached 

agreement on the disposition of the case prior to Chairman Collyer's 

assumption of office, and participation by Chairman Collyer would therefore not affect the outcome. In the interest of efficient decisionmaking, Chairman Collyer elects not to participate in this case. 

Former Commissioner Nease participated in considering this case and 

voted to affirm the judge's decision, but resigned from the Commission 

before the decision was ready for signature. 

2761"( 81-12-16 
The dust control plan at issue required Penn Allegh to maintain a 

minimum water pressure of 150 psi (pounds per square inch) in all 

continuous mining machines. This provision of the plan dated January 12, 

1977, was in effect since some time prior to March 1978. The purpose of 

this requirement is to insure that an adequate amount of water is dispensed from the machines' sprays thereby diminishing respirable dust. 

The plan, however, was unclear in two respects: it did not specify the 

location at which the water pressure was to be measured, and did not 

indicate whether the reading was to be taken while the machine was 

operating ("flow condition") or while the machine was turned off ("static 

condition"). 

Despite these ambiguities, no controversy apparently arose until 

April 1980, when an inspector issued two citations for alleged failure 

to meet the 150 psi requirement. ]:_/ The inspector measured the pressure 

near the shutoff valve under flow conditions. Penn Allegh abated the 

citation under protest claiming the plan called for, and previous 

measurements had been taken under, static conditions. 11 In light of 

the April citations, Penn Allegh sought to amend the plan to require 70 

psi-flow. MSHA indicated it would tentatively approve the modification 

while it conducted a brief dust survey; it would grant final approval 

only if the survey showed that respirable dust remained at an acceptable 

level. However, Penn Allegh declined to submit to the survey claiming, 

among other things, that it was not "technically and scientifically 

sound." As a result, MSHA notified Penn Allegh that a 150 psi-flow 

requirement would remain in effect. 

In late July 1980, Penn Allegh submitted its scheduled 6-month dust 

plan review. It changed the 150 psi requirement of the plan to require 

either 150 psi-static or 70 psi-flow. An MSHA District 2 mining engineer 

John Karp, approved the revision on September 22, 1980. This official 

had seen MSHA's letter offering to conduct a survey and had mistakenly 

assumed ' that the survey had been conducted and the change made in 

accordance with the survey results. 

MSHA first noticed its mistaken approval in October 1980, when an 

inspector preparing for a dust-compliance inspection discovered the 

change. On Thursday, October 2, 1980, MSHA officials informed Penn 

Allegh by telephone and a follow-up letter mailed the same day that 150 

psi-flow would be the enforced provision. On the following Monday 

morning, an inspector issued the citation at issue in the present case 

after he measured a water pressure of 80 psi-flow near the shut-off 

valve. He returned the next morning to see if the condition had been 

abated. He measured the machine's water pressure at 110 psi-flow. When 

]:_/ These April citations are pending in a different proceeding before 

an administrative law judge. Docket Nos. PENN 80-208-R and 80-209-R. 

We note that Penn Allegh abated and did not contest a previous citation 

issued on January 29, 1980, alleging a violation of the 150 psi water 

pressure requirement. However, this citation did not specify whether 

the pressure was measured under flow or static conditions and therefore 

it does not help resolve the ambiguity. 

l_/ Both parties agreed that regardless of the measurement method, the 

water -pressure was to be measured at a location near the machines' 

shutoff valves. 

2768 
Penn Allegh informed him that no action would be taken to bring the 

machine into compliance with MSHA's interpretation of the plan (150 psiflow) he issued the §104(b) withdrawal order which is also contested on 

review. 

The judge affirmed the citation and withdrawal order. 4/ He 

construed the plan's "150 psi" term to mean 150 psi measured under flow 

conditions. Turning to the revision, the judge found that MSHA made a 

good faith mistake in its approval. He found that MSHA validly repudiated 

its approval of the revision and concluded that the original plan's 150 

psi-flow provision was the enforceable water pressure. Accordingly, the 

judge upheld the citation and withdrawal order. 

We first address the meaning of "150 psi" as the term is used in 

the plan. The 150 psi water pressure provision is listed on page 6(a) 

of the dust plan. Originally the page was one of several standard form 

sheets provided by MSHA for use in submitting a plan. The latent ambiguity 

occurs because the column headed PSI, under which the 150 requirement is 

listed, does not specify whether the measure is to be taken under static 

or flow conditions. The parties' arguments are largely conflicting 

assertions. Penn Allegh asserts the 150 psi requirement was to be 

measured under static conditions. Conversely, MSHA contends the water 

pressure was to be measured under flow conditions. 

The strongest evidence indicating that measurement under flow 

conditions was required is MSHA's District 2 policy of measuring all 

continuous miner water pressures under flow conditions. MSHA's coal 

mine technical health specialist, Robert Davis, who reviewed all dustcontrol plans in District 2, testified that he had always instructed 

inspectors to measure water pressure under flow conditions. He stated 

he knew of no District 2 dust-plans that called for measurement under 

static conditions. He concluded that MSHA had adopted the policy because 

a static measure failed to accurately indicate the water volume at the 

sprays to suppress dust. His testimony was corroborated by three other 

MSHA witnesses. 

Balanced against this evidence of District 2's practice of measuring under flow conditions is the testimony of Penn Allegh's chief 

engineer, Alfred Reisz. He stated that when he drafted and submitted 

Plan A, using the form sheets which MESA (MSHA's predecessor) provided, 

he contemplated a static measure taken at a location near the shut-off 

valve. He assumed that since the form did not have a space for the 

location or condition of measure he did not need to specify them. 5/ 

4/ The judge's decision is reported at 2 FMSHRC 3072 (1980). 

"'i_! Additionally, Penn Allegh produced evidence indicating that because 

District 2 measured the water pressure at the shut-off valve, a flow 

measure was not a better indicator of the water available at the sprays 

for dust suppression. After the water enters the continuous miner, it 

continues through the machine performing a cooling function. It passes 

through two devices, a pressure regulator and a booster pump. These 

devices coupled with the circuitous path it takes, change the water 

pressure so that the entering pressure does not bear any relation to the 

existing pressure at the sprays. Penn Allegh's explanation of the inner 

workings of the machine supports a conclusion that a flow measure taken 

at the shut-off valve might not be more logical than a static measure 

taken at the same location. However, the relative merits of the locations 

at which pressure could be measured is not before us. 
The statute and the standard require the parties to agree on a dust 

control plan in the interest of miner safety. Therefore, after a plan 

has been implemented (having gone through the adoption/approval process) 

it should not be presumed lightly that terms in the plan do not have an 

agreed-upon meaning. See Ideal Mutual Ins. Co. v. CDI Construction Inc., 

640 F.2d 654, 658 n.7 (5th Cir. 1981). We find the record contains 

substantial evidence to support the judge's finding that the plan encompassed a flow measure. We believe that the evidence of consistent 

enforcement supports the conclusion that a flow measure was intended in 

Penn Allegh's dust plan. We note that in light of the very purpose of 

the provision, i. ~· suppression of dust during the operation of continuous miners, measurement under flow conditions, rather than measurement with the shut-off valve closed, seems eminently appropriate (but 

seen. 4). We further hold that to the extent the judge's conclusion 

reflects a credibility determination, i.e., accepting the testimony of 

MSHA's witnesses as to the meaning of th; term, rather than Penn Allegh's, 

that credibility determination should be given deference. 

With the proper interpretation of the plan established, we address 

the effects of the revision. We believe the fact that the citation and 

withdrawal order were issued against the backdrop of an ongoing dispute 

is important. Penn Allegh had sought to amend its plan before it 

submitted its plan for the 6-month review under section 75.316. However, this early modification attempt failed when Penn Allegh declined 

to permit a dust survey that MSHA indicated was a prerequisite to lowering the required water pressure. MSHA official Robert Davis, both by 

letter and in conversation with Penn Allegh's chief engineer, made it 

clear that it was not MSHA's policy to modify a plan provision without 

first conducting a survey. Nevertheless, Penn Allegh submitted its six 

month review plan without submitting to the survey and without calling 

attention to the change made in the existing plan. In this regard, we 

believe that Penn Allegh could have been more open in its discussions 

with MSHA concerning the plan at this point. 

In contrast, the judge found that MSHA made a good faith mistake. 

The MSHA mining engineer who approved the revision freely admitted his 

error. He stated that in his review, he interpreted MSHA's letter 

offering tentative approval of 70 psi-flow reduction as conditioned on 

the results of a dust survey. He was unaware of and not involved in the 

ongoing water pressure dispute. He assumed the survey had been successfully concluded and therefore that the reduction was permissible. He 

admitted that if he had examined Penn Allegh's file more carefully he 

would have noted that the survey had not been conducted and, in accordance with MSHA's survey policy, would have disapproved the change. In 

the light of the circumstances, we affirm the judge's findings that the 

mistake was made in good faith, and that MSHA could repudiate the 70-psi 

revision. !!../ 

&_I We note that the present situation, where a revision of a plan is 

approved by mistake, is an infrequent occurrence. It is to be distinguished from the situation where during a review, MSHA decides that a 

dust plan provision must be revised. In the latter situation, MSHA 

would have to notify Penn Allegh of its view that a revision is necessary, 

provide a reasonable time for adopting and filing a revised plan, and, 

if a satisfactory solution is not reached, citations would be issued. 

See di~cussion infra. 

2770 
The final question concerns the ramifications of the Secretary's 

revocation. After rescinding its mistaken approval of the revision, 

MSHA unilaterally informed Penn Allegh that the former 150 psi-flow 

requirement was to be followed. The heart of Penn Allegh's argument is 

that MSHA thereby attempted to enforce a provision that Penn Allegh had 

not adopted. This, Penn Allegh asserts, violates section 75.316's 

adoption/approval scheme as interpreted in Bishop Coal Co., 5 IBMA 231 

(1975), and Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C. Cir., 1976). 

In Bishop, MESA attempted to impose a requirement for rib supports 

in an operator's roof control plan. ]_/ The operator's previous plan 

contained no rib support provision. It was added to the plan by a MESA 

official who, after preliminary discussions, obtained the operator's 

signature on a blank page of the plan and later added the rib support 

requirement ex parte. In reviewing withdrawal orders issued by MESA, 

the Board expounded on the adoption/approval process, stating first: 

[MESA] is required, in our view, to notify the operator in 

writing of a disapproval of, or the need for changes in, a roof 

control plan proposal adopted and filed by such operator for 

approval, and must include in such notice a concise, general 

statement of the reasons for such action. 

(Emphasis in the original) 5 IBMA at 243. The Board continued to 

discuss the parties' responsibilities: 

[I]f a[n operator's] proposal has a legitimate objective, but 

is in need of change, the District Manager under the subject regulation, must specify in writing the nature of the changes and afford 

the opportunity to discuss and negotiate over such changes. It is 

of course implicit that the District Manager also specify a reasonable time within which to adopt and file an amended proposal for 

approval .•. In notifying an operator in writing of the deficiencies 

of its proposal and suggested changes, a District Manager must be 

sufficiently specific to adequately apprise an operator of what 

they are. When outlining changes, a District Manager does have the 

leeway to suggest draft language or deletions from the proposal at 

hand, but he cannot impose them by fiat upon an operator who refuses 

to "adopt" such changes. It is after all the operator who must 

determine whether to adopt suggested or negotiated changes or to 

litigate in the face of enforcement actions by MESA which are bound 

to follow an impasse with the District Manager. 

(Footnotes omitted; emphasis added) 5 IBMA at 244. 

In Zeigler Coal Co. v. Kleppe, the operator contested MESA's issuance 

of a withdrawal order on the basis that the ventilation plan requirements 

that MESA sought to enforce were not enforceable mandatory standards 

even though the operator had adopted the questioned provision. The 

operator contended that, if the plan's requirements were deemed to be 

enforceable mandatory standards, arbitrary enforcement would result 

]_/ Although Bishop dealt with roof control plans under the 1969 Coal Act, 

a similar "approval by the Secretary" and "adoption by the operator" 

process was mandated. 

2771 
because the plan was not subject to the consultative procedures in 

either section 101 of the Mine Act or section 553 of the Administrative 

Procedure Act. The D.C. Circuit rejected the operator's argument and held 

that the plan's requirements were enforceable as if they were mandatory 

standards. The Court adopted the Board's rationale in Bishop and found 

the operator was adequately protected from the imposition of requirements 

unilaterally created by the Secretary because a plan had to be adopted 

by the operator. The Court stated: 

The statute makes clear that the ventilation plan is not formulated by the Secretary, but is "adopted by the operator." 

While the plan must also be approved by the Secretary's representative, who may on that account have some significant leverage in 

determining its contents, it does not follow that he has anything 

close to unrestrained power to impose terms. For even where the 

agency representative is adamant in his insistence that certain 

conditions be included, the operator retains the option to refuse 

to adopt the plan in the form required •••• 

The agency's recourse to such a refusal to adopt a particular 

plan appears to be invocation of the civil and criminal penalties 

of §109, which require an opportunity for public hearing and, 

ultimately, appeal to the courts. At such a hearing, the operator 

may offer argument as to why certain terms sought to be included 

are not proper subjects for coverage in the plan. Because we 

believe that the statute offers sound basis for narrowly circumscribing the subject matter of ventilation plans, we conclude that 

this opportunity for review is a substantial safeguard against 

significant circumvention of the §101 procedures. 

(Footnotes omitted; emphasis added) 536 F.2d at 406-407. 

Penn Allegh asserts that MSHA's return to the original plan's 

requirement breached two duties imposed by the Bishop rationale. First, 

MSHA failed to negotiate and discuss the reimposition of the original 

plan with Penn Allegh. The Secretary merely informed Penn Allegh that 

150 psi-flow would be the enforced provision. Second, MSHA failed to 

give Penn Allegh a reasonable time within which it could adopt and file 

an amended plan. MSHA issued the citation on the second working day 

after the inspector's telephone call. MSHA counters that Penn Allegh 

misperceives the negotiation process. The Secretary argues that after 

MSHA rescinded the revision that had been inadvertently approved, "[t]he 

duty to initiate straightforward, above-board renegotiation belong[ed] 

to the party seeking the revision." MSHA argues that Penn Allegh precluded the possibility of negotiation because of its absolute and 

unreasonable refusal to submit to the dust survey or to offer other 

adequate assurance that the dust level would remain acceptable. 

The important role that ventilation and dust control plans play in 

the overall statutory scheme cannot be overstated. Congressional 

recognition of the urgent need for adequate ventilation and dust control 

in the nation's coal mines is clearly reflected in the legislative 
history, as well as in section 303(o)'s requirement that such plans were 

to be adopted in the first ninety days following the passage of the 1969 

Coal Act. See also Zeigler Coal Co., supra, 536 F.2d at 408-409. Under 

section 303(0) and 30 CFR §75.316, after initial implementation the 

plans can be reviewed and revised. We hold that ventilation and dust 

control plans are continuous in nature; a plan does not expire at the 

end of a six month period simply because the parties have failed to 

finally resolve a suggested revision. In the present case, in light of 

our previous conclusion that the Secretary validly rescinded the mistaken approval of Penn Allegh's revision to the original plan, we 

conclude that the original plan remained in effect. This leaves the 

parties with the ability, in fact the duty, to negotiate in good faith 

over a resolution of the "flow-static" measurement controversy. At the 

same time it affords miners the protections of the plan previously 

adopted by Penn Allegh and approved by the Secretary. §_/ 

The only remaining issue is the timing of MSHA's issuance of the 

involved citation and order. On Thursday, October 2, 1980, MSHA informed 

Penn Allegh by telephone and by a letter that 150 psi-flow would be the 

enforced water pressure rather than Penn Allegh's 70 psi provision. On 

Monday, October 6th, the citation was issued after the inspector obtained 

a reading of 80 psi-flow. On the following day a reading of 110 psiflow was obtained and the 104(b) order was issued. Although the citation 

and orders were issued very soon after MSHA discovered its error and 

informed Penn Allegh that it no longer deemed the revision to be in 

effect, we believe that any questions as to notice and fairness to Penn 

Allegh are allayed by Penn Allegh's insistence that it would comply with 

the revision, or no plan at all. Thus, the timing of the issuance of 

the citation and order is of little significance. 

In sum, we conclude that substantial evidence supports the judge's 

conclusion that the dust control plan required a water pressure of 150 

psi measured under flow conditions; MSHA validly rescinded its mistaken 

approv~l of Penn Allegh's revision of this requirement; and the 150 psi 

provision validly was enforced against Penn Allegh. For these reasons, 

we affirm the judge's decision. 

§} The requirement of good faith negotiations by both parties eliminates 

any fear that an operator must forever labor under a provision that has 

been adopted and approved. If an operator believes a revision is warranted, 

has engaged in a reasonable period of good faith negotiation, and believes 

the Secretary has acted in bad faith in refusing to approve the revision, 

he can obtain review of the Secretary's action by refusing to comply 

with the disputed provision, thus triggering litigation before the 

Commission. The present case does not present this situation due to the 

apparent lack of good faith negotiation by Penn Allegh over the desired 

revision. 

2773 
Distribution 

Ronald S. Cusano, Esq. 

Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty 

900 Oliver Building 

Pittsburgh, PA 15222 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Forrest Stewart 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 22, 1981 

CONSOLIDATION COAL COMPANY Docket Nos. WEVA 80-116-R 

WEVA 80-117-R 

v. WEVA 80-118-R 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

ORDER 

This case is remanded to the administrative law judge for further 

proceedings consistent with the court's opinion in Consolidation Coal 

Company v. Secretary of Labor, No. 80-1862, 4th Cir., October 13, 1981. 

2775 

81-12-19 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND. HEALTH 

ADMINISTRATION (MSHA) 

v. 

MABEN ENERGY CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 22, 1981 

Docket Nos. WEVA 79-447-R 

WEVA 79-448-R 

WEVA 79-449-R 

WEVA 79-450-R 

WEVA 79-451-R 

WEVA 79-452-R 

DECISION 

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

1977, 30 U.S.C. §801 et seq. (Supp. III 1979). It involves citations 

issued for conditionsrelating to the same dam and retent.ion pond that 

was the subject of the recent Commission decision in Maben Energy Corp., 

3 FMSHRC 2280 (1981) ("Maben I"). In that case we decided Maben operated 

or controlled the dam and pond for purposes of the regulation in issue 

and the citation was affirmed. 1/ 

The instant citations remained pending before the administrative 

law judge during the resolution of Maben L '!:._/ Early in this proceeding, 

a letter was sent by counsel for Maben to the judge in which it was agreed 

that Maben would be bound by the final Commission decision in Maben I unless 

"the Commission's decision is adverse to [Maben's] interest ••. and in such 

event [Maben] would be bound by the ultimate outcome of a final decision 

of the highest court hearing the same, not by the Commission's decision." 

In addition, a formal stipulation was filed on October 6, 1980, setting 

forth the agreement of the parties that the facts in the instant case are 

"identical" to those in Maben I, but with no reference to the outcome of 

Maben l Those two documents comprise the entire evidentiary record before 

us. 

1/ The regulation cited in Maben I was 30 CFR §77 .216-3(a) which 

requires inspection of impoundments by persons owning, operating or 

controlling the structure. 

'!:_/ The citations at issue in the instant case, which were written 

about five months after the citation in Maben I, involve alleged 

violations of 30 CFR §§77.216-1 and 77.216(c) for failure to name an 

individual responsible for the impoundment and to develop a use plan 

for it. 

2776 81-12-20 
The judge issued his decision in this proceeding shortly after we 

issued our opinion in Maben I. He cited our decision in Maben I and 

stated that the parties had agreed to be "governed" by it. Accordingly, 

he affirmed the instant citations and dismissed the notices of contest 

on the basis of that "agreement." 

Maben petitioned for review of the judge's decision and we granted 

that petition on November 24, 1981. The petition argued that the judge's 

decision was "premature" and that Maben had not agreed to be bound by the 

Commission decision in Maben I until the question was resolved by the highest 

court to hear any appeal. 3/ Maben also raised questions as to the propriety 

of findings in Maben I as incorporated in the judge's decision in this case. 

We do not agree with the operator that the judge's decision in this 

case is "premature." A decision issued by this Commission is binding on 

the parties unless and until stayed or overturned by a reviewing court 

of appeals. 30 U.S.C. §816(c). The parties may not stipulate to the 

contrary and Maben may not otherwise be relieved from the legal effect 

of that decision. 

It appears, however, that the operator is correct that the parties 

did not, as the judge held, stipulate that they would necessarily be 

bound by the Commission decision in Maben I. Our reading of the August 

1979 letter, which is the only "stipulation" that refers to the outcome 

of Maben I, persuades us that the judge misinterpreted the operator's 

language. Accordingly, we hold that the judge was in error in basing 

his disposition of the case solely on the parties' "agreement" to be 

bound by Maben I and we do not adopt that portion of his opinion. 

Nevertheless, we affirm the judge as to result. The parties agreed 

in the stipulation dated October 6, 1980, that the facts in this case are 

identical to those in Maben I. Only the question of the legal effect of 

the facts remains at issue here. We decided in Maben 1 that under these 

facts, Maben maintained the requisite control to find a violation of the 

Act. Accordingly, that point is resolved against Maben in the present 

case as well. !!_/ 

l/ In fact, Maben I has been appealed to the Fourth Circuit where it 

is now pending. Maben Energy Corp. v. Secretary Of Labor and Federal 

Mine Safety and Health Review Commission, No. 81-2075. This Commission 

denied Maben's request for stay of Maben I pending the outcome of the 

appeal and on December 9, 1981, the Fourth Circuit also declined to 

issue a stay. 

!!_/ There being no dispute as to operative facts, no evidentiary 

controversy exists which would require us to return this case to the 

presiding judge for resolution. Rather, economy and efficiency of 

adjudication dictate that the Commission itself apply the previously 

established law to the stipulated facts. We anticipate no prejudice to 

any party by our action. Cf. Knox County Stone Co., Inc., DENV 79-359-

PM, November 6, 1981, slip. op. at 4 (approving disposition at review 

level in appropriate circumstances). 
For the reasons set forth above, the citations are affirmed and 

the notices of contest are dismissed. 

Commissioner 

2778 
Distribution 

James M. Brown, Esq. 

File, Payne, Scherer & Brown 

P.O. Drawer L 

Beckley, West Virginia 25801 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Gary Melick 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2779 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 31, 1981 

Docket No. HOPE 76X409 

IBMA 77-26 

ROYALTY SMOKELESS COAL COMPANY 

ORDER 

The Secretary of Labor's unopposed motion for voluntary dismissal 

is granted. 

2780 81-12-26 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 1181 

WHITE PINE COPPER DIVISION, Contest of Citation 

COPPER RANGE COMPANY, 

Contestant Docket No. LAKE 81-106-RM 

v. 

White Pine Mine 

SECRETARY OF LABOR, 

Respondent 

UNITED STEEU10RKERS OF AMERICA, 

Intervenor 

SECRETARY OF LABOR, Civil Penalty Proceeding 

Petitioner 

v. Docket No. LAKE 81-171-M 

A.C. No. 20-00371-05037 

WHITE PINE COPPER DIVISION, 

COPPER RANGE COMPANY, White Pine Mine 

Respondent 

UNITED STEELWORKERS OF AMERICA, 

Intervenor 

Appearances: 

Before: 

DECISION 

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill 

& Greenlee, Ishpeming, Michigan, for White Pine Copper 

Division, Copper Range Co.; 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for Secretary of Labor; 

Harry Tuggle, Assistant Safety Director, United Steelworkers 

of America, Pittsburgh, Pennsylvania, for United Steelworkers 

of America. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This proceeding was commenced on March 12, 1981, when White Pine Copper 

Division, Copper Range Company (hereinafter "White Pine") filed a notice of 

contest under section lOS(d) of the Federal Mine Safety and Health Act of 

2782 
1977, 30 U. s.C. § 815(d) (hereinafter "the Act") to contest a citation issued 

by the Mine Safety and Health Administration (hereinafter "MSHA") for violation of a mandatory safety standard, 30 C.F.R. § 57-3.20. Thereafter, the 

United Steelworkers of America (hereinafter "USWA") intervened in this proceeding and the civil penalty proceeding arising out of this citation was 

consolidated with the contest action. 

A hearing was held in Houghton, Michigan on June 2-3, 1981. MSHA's 

witnesses were Walter Leppanen and William Letzens. White Pine called the 

following witnesses: William Carlson, Glenn Scott, Albert Ozanich, David 

Charles, Albert Goodreau, Julio Thaler, Joseph Maher, and Jack Parker. The 

USWA called the following witnesses: Ed Hocking, Dale Sain, Frank Dove, 

Malcolm Penegor, Eugene DeHut, Gordon Seid, Joe Aknisko, and John Cestkowski. 

All three parties filed posthearing briefs. 

A brief historical review is necessary to place the instant controversy 

in its proper perspective. White Pine management believed that no valid 

purpose was served by using roof bolts in certain parts of its mine. 

Accordingly, it decided to demonstrate that uniform installation of 4 foot 

roof bolts on 4 foot centers was not necessary and did not enhance safety. 

As White Pine's first initiative in this direction it removed roof bolts from 

an area in Unit 56 on February 5, 1980. Two weeks later, an MSHA inspector 

issued an imminent danger order pursuant to section 107(a) of the Act. The 

validity of this order was litigated before Judge Edwin S. Bernstein. On 

January 14, 1981, Judge Bernstein vacated the order and found that an imminent 

danger did not exist at the time the order was issued. White Pine Copper 

Division v. Secretary, 3 FMSHRC 211 (January 14, 1981). Neither MSHA nor the 

USWA petitioned for review of that decision. On February 27, 1981, White 

Pine began the next phase of its demonstration program by mining an area in 

Unit 56 without using roof bolts or other roof support. Thereupon, the instant 

citation was issued on March 3, 1981. 

ISSUES 

Whether White Pine violated the Act or regulations as charged by MSHA 

and, if so, the amount of a civil penalty which should be assessed. 

APPLICABLE LAW 

30 C.F.R. § 57.3-20 states as follows: 

Mandatory. Ground support shall be used if the operating 

experience of the mine, or any particular area of the mine, 

indicates that it is required. If it is required, support, 

including timbering, rock bolting, or other methods shall be 

consistent with the nature of the ground and the mining 

method used. 

Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent 

part as follows: 

2783 
In assessing civil monetary penalties, the Conunission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue 

in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

STIPULATIONS 

The parties stipulated as follows: 

The White Pine Mine is an underground copper mine owned and operated by 

the Contestant. The mine has products which enter commerce and has operations and products which affect conunerce. The mine is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. The 

Administrative Law Judge has jurisdiction pursuant to section lOS(d) of the 

Federal Mine Safety and Health Act of 1977. Walter Leppanen is and was a 

duly authorized representative of the Secretary of Labor to represent him at 

all times relevant herein as a federal mine inspector. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. White Pine Mine is a large underground copper mine located at 

White Pine, Michigan. 

2. Mining is done by the room and pillar method at depths ranging 

from 150 feet to 2,100 feet. 

3. White Pine has used three different mining configurations: parting 

shale, full column, and upper shale. 

4. Underground m~ning began at White Pine in the mid 19SO's. At that 

time, the parting shale configuration was used but uniform roof bolting was 

not employed. Roof bolting was used in 60 to 70 percent of the area mined 

during the 1950's. All areas developed since the 1960's have used uniform 

roof bolts except for the area involved in the instant citation. 

S. At various times in various areas, White Pine used the following 

types of roof bolts: 4 foot mechanical bolts on 4 foot centers; alternating 

4 foot and 7 foot bolts; alternating 4 foot and 6 foot bolts; and finally, 

4 foot resin roof bolts. Today, the entire mine, except for the area in 

controversy here, employs 4 foot resin bolts. 

6. White Pine's ground control department monitors movement of the 

mine roof or back through use of extensometers, lights and gauges. This 

2784 
equipment can measure convergence of as little as 1/1000 of an inch. 

Flashlights attached to some of this equipment will light up if the ground 

converges a tiny fraction of an inch. The purpose of these lights is to 

warn miners of roof movement which might indicate instability. 

7. On February 12, 1981, White Pine Superintendent, Julio Thaler, 

notified MSHA that White Pine intended to mine a drift in Unit 56 without 

the use of uniform roof bolts. 

8. On February 27, 1981, White Pine began to mine the demonstration 

drift. 

9. Approximately three pulls 1/ of 10 feet each had been completed by 

March 3, 1981. No roof bolts or other ground control had been installed 

in this area. 

10. On March 3, 1981, MSHA inspector Walter Leppanen was conducting 

a regular health and safety inspection of the White Pine Mine. Before going 

underground on that date, he was informed that mining was being performed 

in Unit 56 without roof bolts. 

11. Inspector Leppanen traveled to the demonstration drift in Unit 56. 

He observed that the sandstone roof or back was unsupported for a distance 

of approximately 32 feet from the face to the last row of bolts. White Pine 

foreman Joseph Lobeck informed the inspector that White Pine did not intend 

to install any bolts in the area. The inspector heard a popping and snapping 

sound in the roof or back which indicated to him a movement caused by 

pressure. He also observed a slip running a distance of about 27 feet 

diagonally through the roof. He also heard loose material falling from the 

roof to the floor. He saw a 3 foot area from which brown granular material 

had fallen from the roof. He saw a discoloration or oily substance along 

the edge of the slip for the entire length. Later, he observed a foreman 

standing in the area in controversy scaling the loose back in the unbolted 

area. 

12. On March 3, 1981, Inspector Leppanen issued Citation No. 294190 

pursuant to section 104(a) of the Act alleging a violation of 30 C.F.R. 

§ 57.3-20 as follows: "Roof support was not provided in N-94 & W-53 

intersection in Unit 56. Prior operating experience of the mine indicates 

that roof support is required. Miners were/had been working under the 

unsupported roof." 

13. The citation was terminated when White Pine abated the condition 

by permanently closing the area and posting it against entry. 

1/ A pull is the unit or linear advance of each drilling and blasting 

cycle. 

2785 
14. There had been approximately eight roof fall fatalities at this 

mine. 

DISCUSSION 

Contentions of the Parties 

White Pine asserts the following: (1) The mine roof in the cited area 

does not require ground control; (2) White Pine's prior operating experience 

in parting shale establishes that uniform ground control is not required in 

the cited area; and (3) the issuance of the citation constituted a denial 

of due process of law. MSHA contends that the operating experience of the 

mine requires the use of ground support and the condition of the particular 

cited areas indicates a need for ground support. The USWA supports MSHA's 

position herein but goes on to assert the novel argument that "it is 

psychologically unhealthy to mine at White Pine without roof support even 

under the most ideal conditions." USWA Brief at 9. 

The merits of this controversy will be discussed in detail infra. 

However, White Pine's "due process" and USWA's "psychologically unhealthy" 

arguments will be dealt with summarily. White Pine claims that the issuing 

inspector failed to consider data proffered by White Pine and that an MSHA 

supervisor failed to promptly respond to White Pine's request for advice 

concerning the demonstration project. It is not surprising that White Pine 

cites no -authority in support of its claim since there is none. i find that 

the procedures followed by MSHA concerning the issuance of this citation 

afford White Pine the due process of law guaranteed by the Constitution. 

The USWA argues that "it is psychologically unhealthy to mine at 

White Pine without roof support even under the most ideal conditions." 

Resolution of the issue of whether the mental health of miners, absent a 

contemporaneous threat to the physical health of miners, falls within the 

ambit of the Act must be postponed to another day. Suffice it to say at 

this time that the USWA failed to present any probative or credible evidence 

of probable impairment of the mental health of the miners due to the cited 

condition. Hence, this argument is without merit. 

Condition of Roof or Ground in Cited Area 

The citation was issued in the demonstration area where White Pine was 

attempting to establish that neither roof bolts nor ground support was needed. 

The citation does not allege any specific problem with the roof in the 

particular area cited. However, MSHA devoted much time at the hearing to 

establishing that roof bolts or ground support was needed in the particular 

area. It is undisputed that no roof bolts were used for a distance of 

approximately 32 feet in the drift in controversy. 

While there is a dispute as to the condition of this particular roof, 

White Pine's safety engineer, Albert Goodreau, conceded the following: he 

heard cracking and popping in the roof; he observed loose on the floor 

2786 
measuring up to 1 by 5 inches; and there was a 3 inch band of discoloration 

extending diagonally across the roof for a distance of 27 feet. MSHA 

Inspector Leppanen testified that in addition to the facts conceded by 

Mr. Goodreau, he observed a slip in the discolored area which was unstable. 

The inspector also observed loose falling from the roof. The miners' representative essentially confirmed the testimony of the inspector. 

White Pine's witnesses testified that the condition of the roof in the 

cited area was good and that only a slight amount of scaling was necessary. 

MSHA witnesses testified that the combination of roof noise, falling loose, 

and a slip of considerable length in the roof mandated the use of ground 

control in the particular area. I find that the testimony of MSHA's 

witnesses was more credible and persuasive than the testimony of Wh-ite Pine's 

witnesses. Hence, I accept MSHA' s contention that ground support was 

required in this particular area. 

while it might be possible to terminate the decision at this point, that 

would leave undecided the basic controversy surrounding the entire demonstration project and the substance of the citation, to wit: whether the operating experience of the mine indicates that ground support is required. 

Failure to address and resolve this issue would lead to further attempts to 

mine without ground support under different roof conditions. I believe that 

it is unfortunate that the provisions of 30 C.F.R. § 75.200 do not apply outside of coal mining. Under that regulation, a coal mine operator must adopt 

a roof control plan approved by MSHA. Such plans must be reviewed every 

6 months. There is no comparable requirement in metal mines such as 

White Pine. Thus, there is no formal method by which an operator may obtain 

MSHA approval for a roof or ground control plan. This is the second time 

within a year that White Pine has litigated its asserted right to employ an 

alternative ground support plan. I believe that, without further ado, White 

Pine is entitled to an answer to the question of whether the operating 

experience of the mine indicates that ground support is required. 

Condition of Roof or Ground of Entire Mine 

White Pine posits its contention that uniform ground control is not 

needed upon the fact that during the 1950's "thousands of lineal feet of mine 

drift were mined without the use of any roof bolts whatsoever." White Pine 

Brief at 20. Moreover, much of the bolting which was done in those days was 

added "after many feet of mining and blasting had been accomplished under 

unsupported roof." Ibid. MSHA's objection, that such evidence was irrelevant 

to the instant proceeding because there was no federal law applicable to 

underground metal mines during the period of time when White Pine Mine was 

without ground support, was overruled. However, the weight to be given to 

such evidence remains to be decided. 

For the past 20 years, White Pine has followed a uniform roof bolting 

plan throughout its mine. Previously, roof bolting was used in the majority 

of areas mined but not in all of them. Even with roof bolting, White Pine 

has a history of approximately eight fatalities due to roof falls. White Pine 

2787 
presented evidence that the roof in Unit 56 consists of massive sandstone and 

that roof bolts do nothing to insure the stability of the roof. Joseph Maher, 

White Pine's Director of Mine Planning and Engineering, testified that the 

only function of roof bolts in this area was to suspend the immediate roof 

from the main roof. On the other hand, MSHA mining engineer, William Lutzens, 

testified that, in his opinion, roof control was required throughout the mine 

because of factors such as the location of the mine in horizontal bedding, 

the presence of square openings rather than arched openings, and the fact that 

sandstone rock is not the most competent rock. 

The removal of roof bolts was the subject of a prior imminent danger 

order which was vacated after a hearing. MSHA's objection to the evidence 

concerning this demonstration project was overruled. The evidence on this 

matter is subject to different interpretations. White Pine claims that all 

of the loose which fell upon the bolt removal was anticipated. Moreover, 

White Pine asserts that no material fell above the roof bolt line. MSHA 

doubts that White Pine expected some of the roof falls and noted that loose 

of up to 2 feet in depth fell after bolt removal. Furthermore, MSHA asserts 

that the roof bolting had already accomplished its purpose by the time the 

bolts were removed and this demonstration area was not an active production 

section which was subject to blasting. I conclude that the roof bolt removal 

project and the results thereof are entitled to little weight because of the 

failure to connect those results with the instant controversy. In other 

words, White Pine failed to establish that the evidence gathered from the 

bolt removal project shows that mining without any roof support is as safe 

as mining under uniform roof bolts. Likewise, I find that the evidence con-· 

cerning convergence data is also entitled to little weight in this proceeding 

because it is not connected to predicting when a roof fall will occur. In 

fact, Joseph Maher, White Pine's Director of Mine Planning and Engineering, 

conceded that even with all of the data and devices for measuring convergence, 

White Pine was unable to predict with any precision when a roof fall would 

occur. Thus, the methds of measuring convergence and the convergence data 

do not establish that roof support is unnecessary. 

Returning to the issue of whether the operating experience of the mine 

indicates that roof or ground support is required, I am persuaded that the 

most relevant evidence on this subject is the uninterrupted 20 year history 

of uniform roof bolting. Although the regulation speaks only of the 

"operating history" as relevant to the issue of roof or ground control, I 

believe that even without any operating history, a new program would be 

acceptable if the operator proved that it was just as safe as the prior 

program. However, in the instant case, White Pine's evidence fails to meet 

that test. I have previously found that the roof in the·cited area included 

a slip which was unstable and required bolting. The testimony of Jack Parker, 

a self-employed consultant from White Pine, Michigan, is not entitled to much 

weight in this proceeding because he appears to be an advocate of "no bolt" 

mining rather than an impartial expert. In fact, Mr. Parker was employed by 

White Pine from 1961 to 1971 and, during that period of employment, he recommended "no bolt" mining. I find the testimony of MSHA mining engineer William 

Lutzen to be more credible. Thus, I conclude that the pertinent operating 

2788 
history of this mine requires the use of roof bolts in all areas of the mine. 

White Pine failed to establish that "no bolt" mining or "bolting as required" 

mining would be as safe as uniform bolting. The citation is affirmed and 

White Pine's contest is denied. 

Civil Penalty 

MSHA proposed a civil penalty of $500 for the violation in this case. 

Although White Pine failed in its contest of this citation, I find that it 

was acting in good faith and was not negligent in choosing to eliminate the 

need for ground support in this manner. However, the gravity of this violation was serious because miners were exposed to severe injury or death in 

the event of a roof fall. The preponderance of the evidence further establishes that without ground support in the affected area, a roof fall was 

likely. 

Based upon all the evidence of record and the criteria set forth in 

section llO(i) of the Act, I conclude that a civil penalty of $250 should be 

imposed for the violation found to have occurred. 

CONCLUSIONS OF LAW 

1. The administrative law judge has jurisdiction over the parties and 

subject matter of this proceeding. 

2. White Pine and its White Pine Mine are subject to the Act. 

3. The operating experience of the White Pine Mine indicates that 

ground or roof support is required throughout the mine. 

4. The condition of the unsupported ground or roof in the area cited 

herein indicated that the area required ground or roof support. 

5. Hhite Pine's evidence concerning certain areas of the mine which 

were mined in the 1950's without ground or roof support is entitled to 

little weight. 

6. White Pine's evidence concerning the demonstration roof bolt removal 

project in Unit 56 is entitled to little weight. 

7. Citation No. 294190 issued on March 3, 1981, charging a violation 

of mandatory safety standard 30 C.F.R. § 57.3-20 is affirmed. 

8. Pursuant to section llO(i) of the Act, a civil penalty in the amount 

of $250 is assessed against White Pine. 

ORDER 

WHEREFORE IT IS ORDERED that White Pine's contest of Citation No. 294190 

is DENIED and Citation No. 294190 is APPROVED. 

2789 
IT IS FURTHER ORDERED that White Pine pay the sum of $250 within 

30 days of the date of this decision as a civil penalty for the violation 

of 30 C.F.R. § 57.3-20. 

Distribution Certified Mail: 

Ronald E. Greenlee, Esq., Clancey,' Hansen, Chilman, Graybill & Greenlee, 

P.C., Peninsula Bank Building, Ishpeming, MI 49849 

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

4015 Wilson Blvd., Arlington, VA 22203 

John Cestkowski, President Local 5024, U.S.W.A., Box 101, 

Watersmeet, MI 49969 

Harry Tuggle, Ass't Safety Director, U.S.W.A. 115 Gateway Center, 

Pittsburgh, PA 15222 

Ernest Ronn, 706 Chippewa Square, Marquette, MI 49855 

Sylvia Guisfredi, 80 Elm St., White Pine, MI 49971 

Linus Wampler, District Director II 33 U.S.W.A., 609 Providence Bldg., 

Duluth, MN 55802 

Gerald A. Hudson, Esq., Office of the Solicitor, U.S. Department of Labor, 

231 W. Lafayette, Room 657, Detroit, MI 48226 

2790 
FEDERAL MINE. SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 7(8 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEAtTH 

ADMINISTRATION (MSHA), Docket No. PITT 78-97-P 

Petitioner 

v. 

PENN ALLEGH COAL CO., INC., 

Respondent 

Allegheny No. 2 Mine 

DECISION AND ORDER 

After remand, this matter is before me on the parties' motion to 

approve settlement of this much protracted litigation at a reduction 

in the penalty from $106 to $25 .. 00. 

While it appears that the Commission was without authority or 

jurisdiction to consider the issue it found dispositive, namely the 

claimed unavailability of the "diminution of. safety" defense in an 

enforcement proceeding, there is no necessity to pursue the consequences 

of that further in this proceeding. l/ 

Accordingly, it is ORDERED that for good cause shown the motion 

to approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED 

that the operator pay the penalty upon, $25.00, on or before 

Monday, December 28, 1981. 

Administrative 

l/ Under the Mine Safety Law the Commission does not have de novo review 

powers. Section 113(d)(2)(iii)(A) and (B) of the Act preclude~view of 

any issue not raised before the administrative law judge or covered by 

the Order Directing Review. In this case the record shows and the 

Commission's decision admits that the issue concerning the "diminution 

of safety" defense was raised by the Commission ~ sponte and that 

neither the trial judge nor the parties were afforded an opportunity to 

pass on the matter. Compare, Brown & Root, Inc. v. Marshall, __ F.2d 

, 1981 OSHD Par. 25,741, p. 32110 (5th Cir. 1981); McGowan v. Marshall 

604 F.2d 885, 889 (5th Cir. 1979). -

2791 
.. --. -

Distribution: 

Stephen P. Kramer, Esq. U.S. Department of Labor, Office of the Solicitor, 

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

Glenn E. Bost, Esq., Thorp, Reed & Armstrong, 2900 Grant Bldg., Pittsburgh, 

PA 15219 (Certified Mail) 

.' .. ·--~-- .. .., ., -: . -.. ';.,. 

.·_, :'...-

2792 

...... ~·. :,#··' 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

LOCAL UNION 2250, DISTRICT 12, Complaint for Compensation 

UNITED MINE WORKERS OF 

AMERICA (UMWA), Docket No. LAKE 82-1-C 

Complainant 

v. 

OLD BEN COAL COMPANY, 

Respondent 

Mine No. 25 

DECISION 

This matter came on for oral argument on the parties' cross 

motions for summary disposition on December 2, 1981, in Falls Church, 

Virginia. Based on an independent evaluation and de novo review of the 

circumstances I find there is no need for an evidentiary hearing; that 

there is no genuine issue as to any material fact; and that as a matter 

of law the Union is entitled to recover on behalf of the seventy-four 

claimant miners short-term compensation claimed under section 111 of 

the Act, 30 U.S.C. § 821. 

The facts which give rise to this claim are undisputed. On 

Saturday, August 1, 1981, at approximately 7:30 a.m. a fire occurred 

in the "A" shaft at the No. 25 mine. The miners were immediately 

withdrawn from the mine, and management began efforts to extinguish 

the fire. When the Federal inspector, Jessie Melvin, arrived at the 

mine sometime after 8:15 a.m., he issued a 103(k) withdrawal Order No. 

1117966 requiring that only persons necessary to investigate the fire 

scene and conduct an air examination of the immediate vacinity should 

enter the mine. At 12:45 p.m. the order was modified to allow rehabilitation 

of the accident area and to resume normal operations at the mine. 

The afternoon shift (4 p.m. - 12 a.m.) worked their full shift that day. 

The morning shift was paid four hours reporting pay pursuant to the 

UMWA contract. 

The union claims that under Section 111 of the Act the miners are 

entitled to compensation for an additional four hours pay for the 

balance of the shift. 1.f The operator has raised as a defense the 

!/ Sec. 111 reads in part, "If a coal or other mine or area of such mine 

is closed by an order issued under section 103, section 104, or section 

107, all miners working during the shift when such order was issued who 

are idled;. by such order shall be. entitled, ·regardless of the result of any· 

review of such order, to full compensat:ipn by the operator at their regular · 

·rates of pay for the period they are. idled, but for not more than the 

balance of such shift •.• " Tliis'order was issued under Section 103(k) 

of the-Act. 

2793 
claim that where the miners were immediately withdrawn from the mine 

before the 103(k) order was written it is not in accord with the 

policy of the Act to award compensation. !: ./ 

In the legislative history accompanying section 111 Congress 

made clear that " •.• miners should not lose pay because of the operator's 

violation, or because of an imminent danger which was totally outside 

their control." (Emphasis added). S. Rep. No. 95-181, 95th Cong. 1st 

Sess. 46-47 (1977), in Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 634-635. This case presents a situation in 

which an order was written to facilitate an investigation of an immin~nt 

danger outside the miners control. The prior Interior Board of Mine 

Operations Appeals, the Commission and its judges have consistently 

awarded compensation in cases where the miners had been withdrawn prior to 

the issuance of an order. Peabody Coal Co. v. Mine Workers, 1 FMSHRC 

1785 (November 14, 1979); UMWA v. Consolidation Coal Co., 1 MSHC 1668 

(1978); UMWA v. Consolidation Coal Co., 1 MSHC 1674 (1978); UMWA v. 

Clinchfi~Coal Co., 1 IBMA 33 (May 4, 1971); Roscoe Page v~lley 

Camp Coal Co., 6 IBMA 1 (January 28, 1976). 

Unlike UMWA v. Eastern Associated Coal Corp., 3 FMSHRC 1175 

(May 11, 1981), where the miners had withdrawn prior to the issuance of 

an order in observation of a contractual memorial period, the miners 

here were idled by the same condition which led to the issuance of the 

order, i.e., the mine fire in shaft A on August 1, 1981. There was, 

therefore, a clear "nexus between the underlying reasons for the idlement 

and pay loss and the reasons for the order". Id. at 1178. I conclude 

that the existence of the "exigent or emergencyconditions" created by 

the mine fire was the proximate and effective occasion for issuance of 

the closure order. Id. at 1178. 

While the order was modified to permit operations to clear the mine 

of smoke and to conduct the necessary preshift operations at 12:45, the 

record shows these actions were not accomplished until just after 4:00 p.m. 

The period of idlement that was occasioned by the condition that caused.the 

order to issue was not terminated until that time. For this reason, 

the miners are entitled to be compensated for an additional four hours, 

the balance of· their shift. 

']} At oral argument, counsel for the operator suggested voluntary withdrawal 

of the miners on the midnight shift be treated as the effective time of 

idlement for the purposes of statutory entitlement and that the four 

hours reporting pay for which the next shift was paid be considered as 

payment for the four hours to which the "next working shift" would be 

entitled under the second sentence of section 111. This afterthought 

contention is obviously without merit under the uncontested facts of this 

case, and would not affect the right of recovery of the morning shift 

for four hours compensation in any event. See, Local 1374, UMWA v. Beatrice 

Pocahontas Co., 3 FMSHRC 2004 (August 27, 1981); Local 5869, UMWA v. 

Youngstown Mines Corp., 1 FMSHRC 990 (August 15, 1979). 

2794 
It is ·in accord with the "make whole" policy of the Act to award 

interest on the sums due the miners from the date of the idlement until 

the date of payment. UMWA v. Youngstown Mines Corp., 1 FMSHRC 990 

(August 14, 1979); UMWA v. Kanawha Coal Co., 1 FMSHRC 1299 (September 4, 

1979); Peabody Coal--;:-UMWA, 1 FMSHRC 1785 (November 1979). I find, 

therefore, that the requested rate of interest, 12%, is reasonable. 

UMWA v. Beatrice Pocahontas Co., 3 FMSHRC 2004, 2013 (August 27, 1981); 

Johnny Howard v. Martin-Marietta Corp., 3 FMSHRC 1876 (July 31, 1981). 

The Union's request for an award of attorney fees is without merit. 

The statute, of course, does not provide for an award of attorney fees 

in compensation cases. UMW v. Tansy Beth Mining Company, 3 FMSHRC 466, 

471 (February 19, 1981); UMW v. Royal Coal Company, 3 FMSHRC 1738, 

1747-48 (July 7, 1981). The Union seeks to bring itself within the 

exception to the American Rule. That exception permits an award of 

attorney fees in the absence of statutory authority where a party has 

acted in bad faith, vexatiously, wantonly or for oppressive reasons. 

Roadway Express v. Piper, 447 U.S. 752 (1980). 

While the operator's denial of total liability in this matter may 

be viewed as unwarranted, if not frivolous, in view of the extensive 

case law,it must be remembered that it was not until November 18, 1981, 

that the Union filed an Amended Complaint deleting its claim for 

compensation for the evening shift which might also be viewed as · 

vexatious. Furthermore, the Union had the burden of proof and, as 

the record shows, it was, with an assist from the trial judge, able 

to discover the facts necessary to sustain that burden with a minimum 

of time, trouble, and expense. The operator's resistance to the Union's 

interrogatories while obviously very annoying to Union counsel was 

justified to the extent the interrogatories covered a subject matter 

later found to be without the scope of the Union's claim. The record 

discloses nothing more than that the operator, while somewhat intransigent 

in the face of the Union's interrogatories, furnished the information 

necessary to resolve the factual issues promptly and in good faith in 

response to the trial judge's pretrial order. This disclosure mooted 

the Union's motion to compel answers and enabled the Union to file its 

cross motion for summary judgment. 

While the hostility between counsel that emanates from the record 

is regrettable, it seems a necessary byproduct of the industry's 

generally poor labor relations. '}_/ In any event, the law does not 

recognize the ordinary and necessary costs of litigation, however 

unwarranted and vexatious they may appear to the parties, as grounds 

for an award of costs or attorney fees. As Justice Powell noted in 

Roadway Express: 

1/ One would hope that professionals would eschew use of some of the 

pettifogging tactics observed, such as respondent's denial of receipt 

of the order at issue because counsel for the Union had inadvertently 

misstated the proper number. 

2795 
Due to sloth, inattention, or desire to seize tactical 

advantage, lawyers have long indulged in dilatory 

practices. Cf. Dickens, Bleak House 205 (1948). A 

number of factors legitimately may lengthen a lawsuit, 

and the parties themselves may cause some of the delays. 

Nevertheless, many actions are extended unnecessarily 

by lawyers who exploit or abuse judicial procedures, 

especially the liberal rules for discovery • . • The 

glacial pace of much litigation breeds frustration with 

the federal courts and, ultimately, disrespect for the 

law. 447 U.S. at 757, n. 4. 

The same problems plague the administrative process, as I have so often 

pointed out. The problem is what sanctions may be imposed on lawyers 

who abuse the administrative process and unreasonably protract administrative 

proceedings. In Roadway Express, the Supreme Court held that under 

Rule 37(b) of the F.R.C.P., which, I believe, apply to Commission 

proceedings, "both parties and counsel may be held personally liable 

for expenses 'including attorney's fees,' caused by the failure to comply 

with discovery orders." 447 U.S. at 763. The Court also held that the 

courts, and presumably administrative adjudicative agencies, have, 

after notice and an opportunity for hearing, inherent power to levy 

sanctions against litigants and counsel who "willfully abuse judicial 

processes." 447 U.S. 766. 

The record here fails to show that either party was put to any added 

expense to prove facts that the other should have admitted or that there 

was any willful abuse of the administrative process. Only the usual 

"sloth, inattention and desire to seize tactical advantage" that 

characterizes our vaunted adversary system. 

Accordingly, complainant's Motion for Summary Decision is GRANTED. 

It is ORDERED that the operator forthwith pay the sums agreed upon to 

the individuals listed in the Appendix attached hereto plus 12% interest 

from August 1, 1981 to the date of payment, and that subject to payment 

the captioned matter be DISMISSED. /} 

Distribution: 

(IL ·. ~- Kenned 

Administrative Law Judge 

Robert J. Araujo, Esq., Old Ben Coal Company, 69 West Washington, 

Room 700, Chicago, IL 60602 (Certified Mail) 

Joyce Hanula, Esq., UMWA, 900 15th St., NW, Washington, DC 30005 

(Certified Mail) 

2796 
NAME 

Larry J. Barton 

Larry Wharton 

James D. Moore 

Dwight Spiller 

James D. Cook 

Frank W. Maynor 

Carl Brannan 

Franklin Abbott 

Ronald D. Cullum 

David B. Cullum 

Vincent Baker 

Gary A. Hill 

Bob J. Johnson 

Jerry C. Pigg 

Maurice Hill 

Ken W. Cochrum 

Duglas R. Hitt 

Kenneth L. Hargis 

Frank Varis 

Marvin Eberhart 

Randall Roberts 

Phil Grosshenrich 

Donald W. Snyder 

Donald Herring 

Richard Knapp 

Charles Laurenti 

Lawrence Bragg 

Jeff S. Davidson 

Randy Spreitler 

James R. Allen 

Ralph L. House 

Stephen Reese 

Ron Tate 

Joseph Ruzich 

C. Dean Haseker 

Kevin Rudolph 

Bill E. Mueller 

Michael Merrett 

Robert Smith 

Roger Melvin 

Mike Durkota 

Gary Beavers 

Gary D. Mueller 

Ronald Niblett 

George Willard 

Steven L. Tolbert 

Gary W. Kelton 

APPENDIX A 

2797 

AMOUNT PAID 

$ 70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

64.62 

64.19 

68.16 

68.16 

68.16 

68.16 

68.16 

68.16 

68 .• 16 

68.16 

68.16 

70.59 

70.59 

70.59 

70.59 

68.16 

70.59 

70.59 

68.16 

70.59 

70.59 

70.59 

70.59 

70.59 

70.59 

65.96 

68.16 

68.16 

68.16 
Page 2. 

NAME 

Floyd Smith 

Betty Tennison 

Troy E. Colp, Jr. 

Darryl Rendleman 

Randy K. Evans 

Robert Chamness 

Stella Powers 

Greggory Collins 

Vern L. Rodgers 

Pete Golio 

O. Joe Tasky 

Lyndell Kelley 

Obe Roberts 

Terry L. Ollis 

Freddie Coyser 

Daryl L. Melvin 

Donald Richerson 

Michael Grant 

Ronald Rowe 

James Wagner 

Dale Rentfro 

Lloyd Wilburn 

Greg Sloan 

Frank R. Hess 

T. Scott Williams 

Jaceson K. Wall 

Floyd S. Rotramel 

2798 

APPENDIX A (cont.) 

AMOUNT PAID 

$ 65.96 

65.96 

65.96 

64.19 

64.19 

64.19 

64.19 

64.19 

64.19 

64.19 

65.96 

65.96 

65.96 

65.96 

65.96 

65.96 

64.19 

64.19 

64.19 

64.19 

64.19 

64.19 

64.19 

64.19 

64.19 

64.19 

65.96 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 9\9 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ELBERT BAUGH EXCAVATING, INC., 

Respondent 

Docket No. LAKE 81-73-M 

A/O No. 11-01098-05001 

Baugh Pit & Mill 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Don C. Hammer, Esq., Hayes, Schneider, Hammer & Miles, 

Ltd., Bloomington, Illinois, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

On October 15, 1980, Inspector Henson issued Citation No. 049957 

alleging a violation of 30 C.F.R. § 56.9-22 because "the elevated roads 

around the top of the pit walls were not provided with berms." Respondent 

operates a gravel pit which is more or less rectangular. The east-west 

road cited is at the southern end of the pit and the north-south road 

cited is at the eastern edge of the pit. The inspector thought that 300 

feet of the east-west road needed berms and that 200 feet of the northsouth road needed them. 

The mine is developing toward the east, and the western edge of the 

pit is being filled in as the mine advances. The north-south road is 

therefore one which moves eastward as the mine is advanced. When the 

overburden is stripped on the eastern edge of the pit, it creates a 

drop-off of some 8 to 10 feet and a bench is created, but when the 

gravel is later taken out, the bench disappears and the drop-off is in 

the neighborhood of 20 to 25 feet. Respondent maintains that its roadway running north and south is always 60 feet from the edge of the pit 

and that the roadway advances eastward as the stockpiles, sandpiles, and 

gravel piles advance in that direction. The Government inspector saw no 

vehicles near this edge of the pit but he did see tire tracks which 

indicated to him that vehicles had been driven near the edge of the 

drop-off. Respondent's response is that these were old tire tracks 

having been made ba~k when the road was in that location and when the 

edge of the pit was farther west. It maintains that there is no reason 

for any of its vehicles to be closer than 60 feet from the edge of the 

drop-off and that that edge is not a road. 

2799 
I find Respondent's position persuasive insofar as the north-south 

road goes. If it were a bench with a highwall on one side and a dropoff on the other, 80 or 90 feet wide, I might well hold that the entire 

plateau was a roadway, but where there is no evidence that equipment had 

to turn around in the area and the route that the equipment was required 

to travel was never closer than 60 feet from the drop-off, I hold that 

the roadway did not extend over to the edge of the pit. There is no 

requirement that pit walls be bermed. The requirement is only that 

elevated roadways used for loading, hauling, and dumping be bermed and 

I am holding, in the circumstances, that the north-south road was not a 

roadway which was elevated so as to require berms. 

The east-west road is a permanent road used by both the mine and 

the farmer who owns the land to the south of that road. While the 

primary use of this east-west road is not related to loading, hauling, 

or dumping, it is occasionally used for that purpose and, in my opinion, 

it is subject to the berm standard. This road, or at least that part of 

it that Respondent contends is the road, is separated from the south 

edge of the pit by about 10 feet. There may be grass or weeds in this 

10-foot strip but it is level ground and I hold that it is part of the 

road. If it is part of the road, then it is elevated and requires 

berms. '!:._/ I am not sure where the line should be drawn as to how close 

the used part of the roadway needs to be to the drop-off so that it can 

be considered an elevated roadway, but I think driving within 10 feet of 

such a drop-off is sufficiently dangerous that the area should be considered an elevated roadway. The fact that Respondent does not own the 

road is not controlling. (See section 3(h)(l) of the Federal Mine 

Safety and Health Act of 1977). 

I therefore find that the inspector was correct in issuing the 

citation for the east-west roadway but incorrect for issuing it as to 

the north-south roadway. He issued only one citation and since there 

was justification insofar as the east-west road was concerned, I affirm 

the citation. In my opinion, the negligence here was small. The company 

is a small company and there was good faith abatement. Gravity is high 

because a 10-foot deviation in the route could have caused a serious 

injury. There is no history of prior violations. Irt fact, in the last 

4 years there have been some eight inspections with no citations issued. 

In the circumstances, the Assessment Office thought $38 was an appropriate 

penalty. To me, that seems entirely too low an assessment; but in the 

circumstances of this case where Respondent has won half of this case, I 

do not feel it would be fair to raise the proposed assessment. It would 

be like punishing Respondent for daring to challenge the propriety of 

the citation. On the other hand, I see no reason to cut the penalty in 

half just because I agree with Respondent as to the north-south road. A 

penalty of $38 will therefore be assessed. 

*I I happened to hear the first non-coal case under the Federal Mine 

Safety and Health Act of 1977, and it involved berms. Cleveland Cliffs 

Iron Company v. Secretary of Labor, VINC 78-300-M (Sept. 8, 1978). I am 

attaching a copy of that decision and I adopt the discussion of the berm 

standard contained therein. 

2800 
ORDER 

Respondent is therefore ORDERED to pay to MSHA, within 30 days, a 

civil penalty of $38. 

Charles 

~f.J/l~~· C. Moore, Jr. 

Administrative Law Judge 

Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn.Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Don C. Hammer, Esq., Hayes, Schneider, Hammer & Miles, Ltd., 202 N. 

Center, P. 0. Box 3067, Bloomington, IL 61701 (Certified Mail) 

2801 
ATTACHMENT 

FEDERAL rt.11NE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

September 8, 1978 

CLEVELAND CLIFFS IRON COMPANY, 

Applic~nt 

Application for Review 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. VINC 78-300-M 

Order No. 286165 

March 20, 1978 

Empire Mine 

DECISION 

Appearances: Ronald E. Greenlee, Esq., Clancey, Hansen, Davidson, 

Chilman & Graybill, Ishpeming, Michigan, for Applicant; 

David F. Barbour, Esq., Office of the Solicitor, Department of Labor, for Respondent; 

Paul Gravedoni, Local Union #4950, United Steel Workers 

of America, Negaunee, Michigan. 

Before: Administrative Law Judge Moore 

This is the first noncoal case filed and heard under the new 

Act 1/ but it involves the old safety standard requiring berms or 

guards published at 30 CFR 55.9-22 under section 55.9 entitled 

"Loading, Hauling, Dumping." On page 254 of Volume 30 of the Code 

of Federal Regulations as revised July 1, 1977, the standard i-n~­

question is designated section 155.9-22 but since it is preceded 

by 55.9-21 and succeeded by 55.9-23, I assume the numbering of the 

standard is a typographical error. In any event, it provides: 

Mandatory. Berms or guards shall be provided on the 

outer bank of elevated roadways. 

The standards applicable to surface coal mines and surface areas 

of underground coal mines have an identical provision although with 

a somewhat different heading at 30 CFR 77.1605(k). 

Withdrawal Order No. 286165, which alleges a violation of 30 CFR 

55.9-22, was issued on March 20, 1978. This order was based on Citation No. 286163 which was issued on March 16, 1978. The citation and 

withdrawal order referred to the following conditions: 

1/ The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

91 Stat. 1290, which supersedes the 1969 Act. 

2802 
Berms or guards were not provided along either side 

of the elevated pipeline roadway from the laydown area, 

approximately 600' south to the end of the existing roadway. 

Vehicles of various types up to and including 120 ton haulage 

trucks were used on the roadway. 

A hearing was held on the merits on May 23, 1978, in Ishpeming, 

Michigan. The evidence pertaining to the Application for Review 

and also the Civil Penalty Case stemming from Withdrawal Order 

No. 286165 was presented in this proceeding by stipulation of the 

parties. 

While the facts in the instant case are quite clear, the applicability of the regulation to those facts is not at all clear. The 

road in question is under construction (Tr. 52), is elevated in some 

areas (Tr. 32, 51) and is approximately 100 feet wide (Tr. 26). When 

completed it will be used to carry a tailings pipe to a tailings dump 

and as an access road to the pipe for repair and maintenance purposes 

(Tr. 114). At the present time, however, or at least until the order 

was issued, it was a road under construction and the operator was 

constructing it by having trucks haul rock and dirt along the road, 

dumping them over the end and then having a bulldozer smooth the 

surface (Tr. 58), I visited the site of the alleged violation and 

in my opinion the roadway in that area was elevated approximately 

40 feet above the surrounding terrain. In fact, on one side of the 

road it was about treetop level. The banks were constructed of rock 

at an angle sharper than 45 degrees, probably closer to 60 degrees. 

There is therefore no question but that the road is elevated and 

that it has steep banks which would involve an extreme hazard if 

a truck were to go over the side. The questions are whether the 

road was used for "loading, hauling, dumping" and the meaning of 

the term "outer bank" in the regulation, 

I disagree with MSHA's position that all roads are haulage roads 

and thus require berms when they are elevated (Tr. 64, 74). The standard is restricted to roads where either loading, hauling or dumping 

is taking place (30 CFR 55.9). On the other hand I cannot agree with 

the contentions of Applicant's witness Joseph Crites, the mine 

manager, to the effect that only ore haulage constitutes "haulage" 

(Tr. 123, 124, 130). The trucks involved in building this road were 

hauling rock and dumping it over the edge and I do not see how I 

could possibly find that this road, at least while it is under 

construction, is not used for hauling and dumping. 

If this road is constructed and used eventually as a pipeline 

road as described by the witnesses and depicted in one of the 

exhibits (App. Exh. 1, Tr. 112, 114, 119), it may not be involved in 

hauling, loading, or dumping and the standard in question, unless it 

is amended may not require berms. The necessity of berms will depend 

on the facts. I see no logical reason for providing less protection 

2803 
to the users of an elevated road .1erely because it is no longer used 

for hauling, dumping or loading, but I do not promulgate the standards. But in any event, the road while being constructed, is 

covered by the standard and in its elevated portions requires berms 

"on the outer bank." 

The use of the term "outer bank" in the regulation indicates 

that the drafters were thinking of a road elevated by virtue of the 

fact that it was going"up the side of a mountain or other elevated 

topography so that one side of the road would be next to the mountain and the other side, the outer bank, would be the only place 

where there was a danger of driving over the edge. With that type 

of road in mind, the outer bank is obviously the only place where 

berms would be necessary to protect the vehicle from leaving the 

road. But while the drafters must have been thinking of that type 

of road they did not so restrict the stand~rd, because it applies 

to all elevated roadways used in loading, hauling or dumping. And 

while a curved road, which is elevated, might be" described as having 

an outer bank and inner bank, a relatively straight road such as the 

one involved in this case has no outer or inner banks. But it nevertheless has banks. 

Inasmuch as it is the elevation which creates the hazard that 

berms are designed to alleviate, the intent of the regulation must 

be to require those berms wherever there is a hazard created by the 

elevation. Therefore, the term "outer bank" means whichever bank 

is hazardous because of the elevation, and if both sides of the 

road present a hazard of rolling do~m a steep embankment, then both 

sides of the roads are required to have berms. 

I find that the road in question, or at least the elevated portions thereof, is required to have berms as long as it is used for 

hauling and dumping. I therefore affirm the citation and order 

issued by the inspector. 

In affirming the citation and order, I am not accepting MSHA's 

position that the regulation requires that berms be as high as the 

midaxle on the biggest piece of equipment which uses the road (Tr. 

36). That position raay or may not be reasonable but there was no 

evidence presented which would allow me to decide the issue. Since 

it uas not contested, I am assuming that the piles of rocks that 

existed on the sides of the road in question were insufficient and 

that it was therefore proper for the HSHA inspector to issue his 

citation and order on the ground that the berms cequired by the 

regulations did not exist. I cannot decide the appropriate height 

required merely on the basis of the written publications of :HSHA 

which are referred to as "applications" in the testimony and in 

one of the exhibits (Tr. 36, Govt. Exh. #3). The decision here is 

that berms are required on the road in question and the assumption, 

because of the absence of a challenge, is that such piles of rocks 

C;lS did exist did not constitute the required berms. 

28Qil 
Inasmuch as the evidence normally associated with a civil penalty case was, by agreement of the parties, presented in this case 

so that only one hearing and decision would be necessary to decide 

all issues, I find that the company is large, that no penalty 

assessed will affect its ability to continue in business, that the 

violation could contribute to serious injury but that in view of 

the doubts about the requirement of the regulation very little 

negligence was involved. The operator has no history of prior 

violations and insofar as "the safety of the miners is concerned 

ceasing construction of the road had the same effect as good faith 

compliance because it eliminated the possibility of injury to a 

miner. In fact, ceasing construction was even more to the interest of the miner than rapid compliance since the berms of the height 

which MSHA considers necessary would not stop a runaway coal truck, 

but at best, might slow it down in order to give the driver sufficient time to jump (Tr. 99). 

In the circumstances I find that a penalty of $·200 is 

appropriate. 

ORDER 

It is therefore ORDERED that Cleveland Cliffs Iron Company, 

within 30 days of the issuance of this decision, pay to the Secretary of Labor a civil penalty in the amount of $200. 

It is further ORDERED that the citation and o:i:der of withdrawal 

are AFFIRMED. 

Distribution: 

~f.1/7~~. Charles C. Moore, Jr. 

Administrative Law Judge 

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman & Graybill, 

P.C., Law Offices, Peninsula Bank Building, Ishpeming, MI 49849 

David F. Barbour, Esq., Mine Safety and Health Administration, 

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

4015 Wilson Blvd., Arlington, VA 22203 

Marco D. Vestich, Assistant to Director, Safety and Health Dept., 

United Steelworkers of America, Five Gateway Center, 

Pittsburgh, PA 15222 

Mr. Paul Gravedoni, President, Union Local #4950, United 

Steelworkers of America, 936 Baldwin Street, Negaunee, MI 49866 

Acting Administrator, Mine Safety and Health Administratio~, U,S. 

Department of Labor 

Standard Distribution 

··2805 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE DEC 9 9Jl FALLS CHURCH, VIRGINIA 22041 · 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHWESTERN PORTLAND CEMENT, 

COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. LAKE 81-117-M 

A/O No. 33-00161-05011F 

Fairborn Plant Mine 

DECISION 

The Secretary has filed a motion to withdraw its penalty proposal 

and dismiss this case. His motion is not filed because there is some 

infirmity in the case, but because Respondent has tendered the full 

amount of the proposed assessment and "withdrew its Notice of Contest of 

the Civil Penalty .••• " The Secretary relies on the Commission's 

decision in Secretary of Labor v. Mettiki Coal Corp., Docket No. YORK 

80-140 (Oct. 16, 1981). 

I am not sure what the Commission intended by its Mettiki opinion, 

but there are clearly some things that it did not intend. It did not 

intend to indicate that the fact that the amount of the penalty the 

Respondent proposed to pay was the same as the "proposed assessment" was 

of great significance. And it did not hold that the parties could 

circumvent the Commission's settlement procedures by trying to accomplish by motion to withdraw what they could not do by a motion to approve 

settlement. Regardless of the form, this is in essence a settlement and 

the same standards apply. 

In the instant case there was a fatal accident but it appears from 

the special assessment and the accident report that Respondent was in no 

way responsible. It appears to be a "no fault" violation and the nominal 

$200 assessment seems reasonable. I would have approved this amount if 

the motion had been for settlement approval and I will approve it by 

granting the motion. 

The motion to withdraw is granted and the case is DISMISSED. 

~e ?noo4P,. Charles C. Moore, Jr. '/ 

Administrative Law Judge 

Distribution: 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Building, 1240 East Ninth St., Cleveland, OH 

44199 (Certified Mail) 

Ronald E. Meisburg, Esq., Smith, Heenan, Althen & Zanolli, 1110 Vermont 

Avenue, NW., Washington, D.C. 20005 (Certified Mail) 

28.06 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINSTRATION (MSHA), 

Petitioner 

v. 

BECKLEY COAL MINING CO., 

Respondent 

DEC 15 1981 

Civil Penalty Proceeding 

Docket No. WEVA 81-495 

A.O. No. 46-03092...g~g21 

0308 f 

Beckley Mine 

DECISION AND ORDER 

For the reasons set forth in my interim decision of November 24, 

1981, a copy of which is attached hereto and incorporated herein, 

the parties' amended motion to approve settlement in this matter in the 

total amount of $660 is GRANTED. Accordingly, it is ORDERED that on or 

before Thursday, December 31, 1981, the operator pay the amount of the 

penalty agreed upon, •$660, and that sub' t to payment the captioned 

matter be DISMISSED. 

Distribution: 

Joseph B. Kenne y 

Administrative Law 

Harold S. Albertson, Jr., Esq., Hall, Albertson & Jones, Box 1989, 

Charleston, WV 25327 (Certified Mail) 

David E. Street, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

280? 
ATTACHMENT TO FINAL DECISION DATED DECEMBER 15, 1981. 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BECKLEY COAL MINING CO., 

Respondent 

November 24, 1981 

Civil Penalty Proceeding 

Docket No. WEVA 81-495 

A.O. No. 46-03092 93981 

0308 I 

Beckley Mine 

INTERIM DECISION AND ORDER 

The parties move for approval of a settlement at 100% of the 

amount initially assessed for the two serious violations of the 

ventilation standards charged, namely $320. 

Keeping line curtain within 10 feet of the working face at all 

times is, admittedly,•a difficult requirement; checking for the presence 

of a dangerous amount of methane before energizing electric face 

equipment at a working face is not. Furthermore, line curtain 

violations that vary up to 10 feet from the norm are not exceptionally 

hazardous as they are unlikely to trigger a fire or explosion and are 

easily detected. Detection of a failure to make a methane check is, 

on the other hand, almost fortuituous. This is because there is no 

requirement that a record of these checks be made or entered in the onshif t or any other permanent report. 

It is not surprising, therefore, that there were 25 previous 

violations of the line curtain requirement and only one of the methane 

check requirement during the preceding 24 months. 

Because the latter requirement is so vital to safety, so difficult 

to detect and may result in what amounts to reckless endangerment, I 

find the amount proposed for settlement of this violation is insufficient 

to deter future violations and ensure voluntary compliance. It is my 

considered judgment that this violation, if proved, warrants the 

imposition of a penalty of $500, not the $160 proposed. 

Accordingly, it is ORDERED: 

1. That the motion to approve settlement be, and hereby 

is, GRANTED as to the line curtain violation and 

DENIED as to the methane check violation. 

2808 
2. That the operator pay the amount of the penalty agreed 

upon and approved for the line curtain violation, $160, 

on or before Friday, December 4, 1981. 

3. That unless on or before Friday, December 4, 1981, the 

parties amend their motion to approve settlement consistent with the views expressed herein, the requirements 

of the Pretrial Order of October 2, 1981 are reinstated 

as to the methane check violation, 30 C.F.R. 75.307 with 

compliance due as to Part A on Decem er 18, 1981 and 

Part B on January 4, 1982. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Harold S. Albertson, Jr., Esq., Hall, Albertson & Jones, Box 1989, 

Charleston, WV 253~7 (Certified Mail) 

David E. Street, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market ST., Philadelphia, PA 19104 (Certified Mail) 

2809 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PENN ALLEGH COAL CO., INC., 

Respondent 

DEC 16 1981 

Civil Penalty Proceedings 

Docket No. PENN 81-154 

A.O. No. 36-02581-03043 

Docket No. PENN 81-183 

A.O. No. 36-02581-03044 

Allegheny No. 2 Mine 

ORDER 

Counsel for the Secretary has filed a motion for approval of a 

settlement agreement in the amount of $1400, 48% of the amount originally 

assessed for the seven citations at issue. As grounds for 'this 

reduction the Secretary cites the respondent's allegedly mistaken 

reliance on the April 7, 1978 decision of the Administrative Law Judge 

declaring the cited standard null, void and unenforceable. That 

decision has been reversed by the Commission. 1/ In addition, the 

respondent is now participating in a program to retrofit its equipment 

with cabs or canopies. 

In light of the recent Commission decision holding that the 

defense of diminution of safety is unavailable where the operator has not 

filed a prior petition for modification, regardless of the danger 

enforcement of the standard may present to the miners, '.!:_/ the defense 

raised by the operator has been foreclosed. While it appears that the 

Commission was without authority or jurisdiction to consider the issue 

it found dispositive, namely the claimed unavailibility of the "diminution 

!/ Secretary of Labor v. Penn Allegh Coal Co., Inc., 3 FMSHRC 

1392 (June 29, 1981). See also, Secretary of Labor v. Sewell Coal Co., 

3 FMSHRC 1402 (June 29,J:98U-:--

2/ Id. at 1398-99. 

2810 
of safety" defense in an enforcement proceeding, there is no necessity 

to pursue the consequences of that further in this proceeding. lf 

Accordingly, it is ORDERED that for good cause shown the motion to 

approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED 

that the operator pay the penalty agreed upon, $1400.00, on or before 

Monday, January 4, 1982. 

Distribution: 

Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the 

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

Glenn E. Bost, II, Esq., Thorp, Reed & Armstrong, 2900 Grant Bldg., 

Pittsburgh, PA 15219 (Certified Mail) 

1_/ Under the Mine Safety Law the Conunission does not have de novo 

review powers. Section 113(d)(2)(iii)(A) and (B) of the Act precludes 

review of any issue not raised before the administrative law judge or 

covered by the Order Directing Review. In Labor v. Penn Allegh, supra, 

the record shows and the Comniission's decision admits that the issue 

concerning the "diminution of safety" defense was raised by the 

Conunission ~ sponte &nd that neither the trial judge nor the parties 

were afforded an opportunity to pass on the matter. Compare, Brown & 

Root, Inc. v. Marshall,~- F.2d ~-' 1981 OSHD Par. 25,741, p. 32110 

(5th Cir. 1981); McGowan v. Marshall, 604 F.2d 885, 889 (5th Cir. 1979). 

2811 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR DEC 21 81 

MARLENE FINN, 

Complainant 

v. 

BROWN BADGETT, INC., 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complaint of Discharge, 

Discrimination, or 

Interference 

Docket No. KENT 81-167-D 

MSHA Case No. MADI 

CD 81-19 

ORDER OF DEFAULT 

The case was scheduled for hearing on the merits December 11, 1981 at 

9:30 a.m. in Louisville, Kentucky pursuant to a notice of hearing served on 

both parties. 

Upon the Applicant's failure to appear at the hearing at 9:30 a.m. 

and after waiting two hours for her to appear, the Applicant was held in 

default at Ll:30 a.m. on December 11, 1981. 

Wherefore, the Applicant's complaint of Discrimination is DISMISSED 

on the merits for default and for want of prosecution. 

•of"') 

w~~ /~<i/.~t: WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Mrs. Marlene D. Finn, Route 3, Bruce School Rqad, Beaver Dam, Ky. 42320 

Ralph W. Wible, Esq., 100 St. Ann Building, PO Box 727, Owensboro, Ky. 42320 

2812 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 2 1981 

SECRETARY OF LABOR, 

MINE SAFETY 1\.ND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PENN ALLEGH COAL CO., INC., 

Respondent 

ORDER 

Civil Penalty Proceedings 

Docket No. PENN 81-154 

A.O. No. 36-02581-03043 

Docket No. PENN 81-183 

A.O. No. 36-02581-03044 

Allegheny No. 2 Mine 

Pursuant to Commission Rule 65(c) the order issued December 16, 

1981 is corrected to reflect approval of the agreement of the parties 

to settle the above captioned cases for a total of $1800.00. The 

last sentence of the order is therefore corrected to read: "It is 

FURTHER ORDERED that the operator pay the penalty agreed upon, 

$1800.00, on or before Monday, January Ji• 1982, and that subject 

to payment the captioned matters be, r,'f hereby are, DISMISSED." 

Distribution: 

Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the 

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

Glenn E. Bost, II, Esq., Thorp, Reed & Armstrong, 2900 Grant Bldg., 

Pittsburgh, PA 15219 (Certified Mail) 

2813 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MATHIES COAL COMPANY, Contests of Citations 

Contestant 

and 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. PENN 81-240-R 

Citation No. 1142325 

September 11, 1981 

Mathies Mine 

Docket No. PENN 81-241-R 

Citation No. 1050290 

September 11, 1981 

Westland Mine 

DECISION 

Appearances: 

Before: 

Jerry F. Palmer, Esq., Pittsburgh, Pennsylvania, for 

Contestant; 

Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Respondent. 

Judge Melick 

These consolidated cases are before me upon notices of contest filed 

by the Mathies Coal Company (Mathies) and the Consolidation Coal Company 

(Consolidation) under section 105(b) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq., the "Act," challenging the validity 

of citations issued pursuant to section 104(a) of the Act. Hearings were 

held in these cases in Pittsburgh, Pennsylvania, commencing October 27, 

1981. 

Docket No. PENN 81-240-R 

The issue before me in this case is whether there was a violation of the 

mandatory standard at 30 C.F.R. § 75.1405 as alleged in Citation No. 1142325, 

and if so, whether that violation was "significant and substantial" as defined 

in the Act and as interpreted in Secretary of Labor v. Cement Division, National 

Gypsum Company, 3 FMSHRC at 825 (1981). 

2814 
Citation No. 1142325 alleges as follows: 

There were four supply cars located on the No. 2 Thomas 

supply track, at Thomas Portal bottom, that were equipped with 

automatic couplers. However, chains or rings in addition to 

automatic couplers are used on the automatic couplers, and a 

bar is used to uncouple the supply cars which is not approved 

device. 

The cited standard provides as follows: 

All haulage equipment acquired by an operator of a coal 

mine on or after March 30, 1971, shall be equipped with automatic couplers which couple by impact and uncouple without 

the necessity of persons going between the ends of such 

equipment. All haulage equipment without automatic couplers 

in use in a mine on March 30, 1970, shall also be equipped 

within 4 years after March 30, 1970. 

The essential facts are not in dispute. On September i1, 1981, Francis 

Wehr, a coal mine inspector for the Mine Safety and Health Administration 

(MSHA), was performing a regular inspection of the Mathies Mine accompanied 

by his supervisor, William Dupree, the company safety inspector, Mr. Hamilton, 

and a union representative. At the Thomas portal, they observed eight to 

10 rail cars coupled together on the supply track. A combination of coupling 

systems was employed on the cars. Two of the systems were found by Inspector 

Wehr to be in violation of the cited standard. The cited coupling systems 

combined an automatic coupler, which coupled by impact and which uncoupled 

without the necessity of persons going between the ends of the rail cars, and 

a link chain or metal ring which did not couple by impact but which could have 

been uncoupled without the necessity of persons going between the ends of the 

rail cars if a specialized "safety bar" was used. The chains and rings were 

engaged and disengaged from hooks attached to the automatic couplers either 

by hand or by the use of the "safety bar." In the former instance, miners 

would necessarily place themselves between the ends of the rail cars to engage 

or disengage the chain or ring. In the latter instance, if the "safety bar" 

was correctly used, miners would not necessarily be positioned between the 

ends of the rail cars. 

The purpose of the standard here cited 30 C.F.R. § 75.1405, is to prevent miners who must couple and uncouple haulage equipment from subjecting 

themselves to injury by going between the ends of haulage cars. Pittsburgh 

Coal Company v. Secretary, 1 FMSHRC 1468 (October 1979). In that case, a 

miner was fatally injured while attempting to uncouple two haulage cars. All 

of the haulage cars had operable disconnect levers on one side, and some of 

the cars had additional disconnect levers on the other side as well. Not all 

of the additional levers were operable, however, and the victim had attempted 

to uncouple with one of the inoperable levers. When the lever failed to 

work, he reached between the ends of the cars to manually disconnect them. 

The locomotive operator, unaware that the victim was between the cars, 

2815 
started the train and the victim was crushed. In rejecting the operator's 

argmnent that it had been in compliance with the cited standard because it 

had uncoupling devices operable on one side, the Commission stated that the 

purpose of the standard was best effectuated by requiring that all uncoupling 

devices be maintained in an operable condition. The Commission observed 

that an inoperable device might induce a miner to go between the ends of the 

haulage equipment to attempt manual uncoupling. As the Commission further 

noted, the miner was killed after going between the ends of haulage cars 

after unsuccessfully attempting to use an inoperable device and that the 

standard was designed to prevent exactly that type of accident. 

In Canterbury Coal Company, 6 IBMA 276 (1976), aff'd., Canterbury Coal 

Company v. Kleppe, 559 F.2d 1207 (3rd Cir. 1977), a petition for modification 

of the application of the standard here cited was rejected because a linkaligner system used by Canterbury was found to be unacceptable. Canterbury's 

link-aligner system was apparently similar to the chain, ring and hook systems 

used by Mathies in this case in that if certain specific procedures were 

invariably followed, there would be no need for mine personnel to go between 

rail cars during coupling and uncoupling operations. The problem with any of 

these systems is, however, similar to that described by the former Interior 

Board of Mine Operations Appeals in Canterbury: 

While the testifying motorman might well do as he said at 

all times, we must always consider what might occur if someone else were performing the coupling. Another miner, substituting for the regular motorman, might not be so conscientious 

or might be confronted with an emergency situation and perform 

a coupling or uncoupling without thinking to use the link 

aligner. Further, * * * even though only a short distance 

away * * * a substitute might be inclined to perform a 

coupling without employing the li~k aligner. Such is not the 

case with automatic couplers which couple on impact. An 

automatic coupler is always available and except for the possibility that it might require positioning within its gathering range, it does not require hmnan input to perform a 

coupling. 

The chain and ring systems utilized by Mathies present the same hazard as 

the link-aligner found inadequate in Canterbury. Thus, a miner not familiar 

with the coupling and uncoupling operations might be called upon to perform 

such work. In addition, the "safety bar" needed under Mathies' system to 

position the chain and ring might not be immediately available to the miner. 

Indeed, the undisputed testimony in this case is that "8 out of 10 times" the 

"safety bar" was in fact not available when needed. Moreover, because of the 

difficulty of manipulating with an extended bar, there is always the temptation for the miner to perform the task manually without the safety bar. As 

noted in Canterbury, the automatic coupling system mandated in the cited 

standard essentially eliminates the possibility of these occurrences. 

Under the circmnstances, I conclude that the coupling systems here cited 

do not meet the requirements of the standard at 30 C.F.R. § 75.1405. Th.e 

2816 
systems as a whole admittedly did not couple on impact under any circumstance. 

In addition, since the uncoupling operation of these systems presents the same 

hazard found unacceptable in the Pittsburgh Coal and Canterbury Coal cases, it 

is clear for this additional reason that the systems are in violation of the 

cited standard. 1/ 

Whether a violation is "significant and substantial" depends on whether 

"based upon the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to would result in an inJury 

of a reasonably serious nature." Secretary v. Cement Division, National Gypsum 

Company, 3 FMSHRC at page 825 (1981). The test has essentially two aspects: 

the probability of resulting injury and the seriousness of resulting injury. 

Within this framework, I indeed find that the violation here was "significant 

and substantial." 

The undisputed evidence in this case demonstrates that serious injuries 

and fatalities have resulted from miners positioning themselves between the 

ends of rail cars. In particular, case histories have shown that such incidents occurred where the miner placed himself between the cars in efforts to 

manually operate a coupling mechanism. While the hazard herein may have been 

reduced somewhat as a result of company directives and training given subsequent to the citation at issue, the determination of "significant and substantial" must be made in view of the facts existing at the time the citation was 

issued. The undisputed evidence in this case shows that before company 

directives were issued and a training program was instituted on September 23, 

1981, employees responsible for coupling and uncoupling the subject rail cars 

had received no training in the use of the "safety bar." One witness testified that in any event "eight times out of 10" the safety bars were not even 

available during coupling and uncoupling operations. It was accordingly not 

uncommon for employees to manually engage and disengage the chains and rings 

while positioned between the rail cars. MSHA supervisor William Dupree also 

opined that serious injuries and fatalities were highly probable under the 

circumstances. If the cars should move while the miner is between them, 

crushed or broken fingers and hands and even fatal injuries were likely. 

According to Dupree, not even the so-called "safety bar" was free of hazard. 

An employee could be dragged by the "safety bar" into the path of the cars 

upon sudden movement of those cars. 

1/ Mathies appears to suggest that, even assuming there was a violation, it 

would diminish safety to require abandonment of the chain and ring system 

here employed. It is now clearly established however that such a contention 

must be first resolved in a modification proceeding under section lOl(c) of 

the Act. Secretary v. Penn Allegh Coal Company, 3 FMSHRC 1392 (1981). The 

assertion is accordingly premature in this proceeding. Apparently, in 

anticipation of a petition for modification being filed in the matter here 

at issue, MSHA had, presumably under the provisions of 30 C.F.R. § 44.16, 

allowed interim relief to Mathies to permit continuing operations under 

strict controls. 

2817 
While Mine Safety and Health Committeeman Jack Schmitt testified that he 

had begun, at least a month before the citation herein was issued, to notify 

miners to use the safety bar for coupling and uncoupling operations, it is 

not clear how many miners were actually so notified or what effect that advice 

might have actually had. Accordingly, I do not find that the hazard was 

reduced in any significant way by Schmitt's efforts. 

Under the circumstances, Citation No. 1142325 is AFFIRMED with its 

attendant "significant and substantial" findings. The contest, Docket 

No. PENN 81-240-R, is accordingly DISMISSED. 

Docket No. PENN 81-241-R 

Because of the legal and factual similarities between the citation in 

this case, No. 1050290, and the citation in Docket No. PENN 81-240-R, the 

parties agreed at hearing that the disposition of that case would be controlling in this case. Accordingly, Citation No. 1050290 is also AFFIRMED 

and the contest, Docket No. PENN 81-241-R, is D SMISSED. 

Distribution: 

Je1rry F. Palmer, Esq., 

Pittsburgh, PA 15241 

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

14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900 15th Street, 

NW., Washington, DC 20005 (Certified Mail) 

2818 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

_______ D_E_C 2 3 1981 

C F & I STEEL CORPORATION, 

Applicant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

APPLICATION FOR REVIEW 

DOCKET NO. WEST 80-350-R 

Order of Withdrawal No. 827038 

Mine: AU en 

DECISION AND ORDER 

APPEARANCES: 

Phillip D. Barber, Esq. 

Wellborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

For the Applicant 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Respondent 

BEFORE: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

This proceeding involves an application for review of an innninent 

danger order of withdrawal pursuant to the provisions of section 107 of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1978) 

[hereinafter cited as "the 1977 Act" or "the Act"]. On Junel2-:-T980, 

Applicant, C F & I Steel Corporation [hereinafter "C F & I ] , filed with 

the Connnission its Application for Review. Respondent, the Secretary of 

Labor, Mine Safety and Health Administration (MSHA) [hereinafter "the 

Secretary"] responded to the application for review by filing an Answer 

with the Connnission on July 14, 1980. Pursuant to notice, a hearing on the 

merits was held in Pueblo, Colorado. 

2819 
FINDINGS OF FACT 

1. C F & I is the operator of an underground coal mine located nenr 

Weston, Colorado, known as the Allen Mine. 

2. Products of the Allen Mine enter or affect interstate connnerce. 

3. On May 8, 1980, a C F & I section foreman, in the company of MSHA 

inspectors, was conducting face checks for accumulations of methane prior 

to the commencement of work by his crew. In the crosscut between entries 

No. 2 and No. 1, the section foreman detected a 1.5 per centum concentration of methane near a rib. Utilizing a permissible methane detector 

similar to the one used by the foreman, an inspector detected accumulations 

of methane in concentrations of 1.8 and 2.1 per cent. Two vacuum bottle 

air samples were taken by the inspector at a point twelve inches from the 

roof, the right rib and the face area of the advancing crosscut. Upon 

subsequent analysis, the two air samples revealed methane concentrations of 

1.53 and 1.83 per cent. 

4. Order of Withdrawal No. 827038 1/ was issued to C F & I by the 

inspector pursuant to the imminent danger provision of the Act, section 

107(a), and a citation provision of the Act, section 104(a). I~ the part 

and section category of the order, the inspector alleged a violation of 

1/ The "CONDITION OR PRACTICE" cited alleges: 

"Upon arriving in section 1 south off 1 east section [unintelligible 

characters] 041-0 at 7:00 am an accumulation of methane was detected in 

the face by a prmissible (sic) methane detector The CH4 ranged from 1.8 to 

2.1 per centum citation 75.308 This section is normaly (sic) provided 

ventilation by an auxiliary fan had been deenigized (sic) by the night 

shift and no means was provided to ventilate the face area to prevent 

accumulations of methane a citation of 75.302-4(d) This condition was 

observed in the last crosscut between No 1 and 2 - entry". 

2820 
2 30 C.F.R. § 75.308. / The inspector did not mark the "CITATION" box on 

the order issued to C F & I , hut the "ORDER OF WITHDRAWAL" box was markr'.i 

with an "X". 

5. Upon discovering the accumulation of methan~, the section foreman 

assembled his crew and put them to work clearing the mine atmosphere of 

the gas. The crew tightened the existing brattice line, eliminating any 

gaps, and installed additional brattice in the crosscut extending towards 

the face area. Within 35 minutes of the time the order of withdrawal was 

issued, the condition was abated by increased ventilation of the crosscut. 

6. Methane is potentially explosive in air when present in 

concentrations of 5 to 15 per cent by volume. 

7. At the time the imminent danger withdrawal order was issued, and 

immediately prior thereto, no miners were present at the working face where 

the methane was detected. The miners waited in a lunchroom in a different 

entry while the section foreman completed his face checks for methane. No 

power was energized in the section at the time the order was issued or 

prior to its termination. No production was ongoing. The area covered by 

the order of withdrawal was well rock dusted. A volume of approximately 

13,000 c.f.m. of air was present at the last open crosscut at the time the 

order issued. After the order of withdrawal was issued, only authorized 

personnel were allowed into the subject area and the only work performed 

there were attempts to establish a greater volume of ventilation. 

2/ § 75.308 Methane accumulations in face areas. 

[STATUTORY PROVISIONS] 

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[c] 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. 

2821 
ISSUES PRESENTED 

1. Whether the conditions which existed in C F & I 's Allen Mine, at 

the time the order of withdrawal was issued, constituted an imminent 

danger? 

2. Whether a violation of a mandatory safety and health standard, 

capable of supporting a penalty, occurred at C F & I 's Allen Mine? 

DISCUSSION 

Supporting its case for vacation of the imminent danger order of 

withdrawal, C F & I cites the decision of Secretary of Labor, Mine Safety 

and Health Administration (MSHA) v. C F & I Steel Corporation, 3 FMSHRC 99 

(1981). In that case, I dismissed an imminent danger order of withdrawal 

issued to C F & I when mine personnel were in the process of attempting to 

clear an accumulation of methane in a belt haulage entry by increasing 

ventilation of the area. The concentration of methane involved was 

demonstrated to be somewhere between 1.42 and 1.86 per cent. 

The significant fact involved in that case was that when the inspector 

issued the order of withdrawal, C F & I was already doing everything it 

possibly could do to pbate the condition. The work was being done only by 

those persons who would have been authorized to be in the area had an 

imminent danger order been in effect. The critical distinction between the 

cited case and the case at bar is that, in the former case, abatement was 

already in progress and being performed by authorized personnel. Here, 

even though no production was ongoing, abatement had not yet commenced. 

C F & I emphasizes that no miners were present in the section covered 

by the imminent danger order of withdrawal. Pursuant to C F & I preshift 

policy, the miners waited in a lunchroom located in a different entry, some 

300 feet from where the methane was detected, while the section foreman 

completed his face checks for methane. Following that practice, only when 

the section foreman had completed his face checks, determined it was safe 

and personally energized the section power source would the miners be 

allowed to enter the working section. I must conclude, however, that the 

conditions which existed at C F & I 's Allen Mine, at the time the order of 

withdrawal was issued, constituted an imminent danger. 

For the proposition that the presence of 1.5 volume per centum or more 

of methane, as a matter of law, requires the issuance of a withdrawal 

order, the Secretary cites the decision of Pittsburgh Coal Company, 2 IBMA 

277 (1973). The Secretary contends that an imminent danger order must be 

issued even though no miners are in the affected area since one purpose of 

a withdrawal order is to insure that miners remain out of the affected area 

until the condition is corrected. For this proposition, the Secretary 

cites the decision of The Valley Camp Coal Company, 1 IBMA 243 (1972). 

2822 
I would characterize the holding of the first cited case :>amewhat 

differently. Pittsburg Coal Company, supra, stands for the proposition 

that the presence of 1. 5 volume per cent um or more oF methane •·1ill suppo•·t 

the issuance of an innninent danger withdrawal order. Id. at 277, 279. Tf1e 

Valley Camp Coal Company, supra, stands for the proposition that an orde-~­

of withdrawal can properly be issued if no miners are in the mine because 

an order of withdrawal not only takes the miners out of the mine, but also 

keeps them out until the danger has been eliminated. Id. at 248. In 

Secretary of Labor, Mine Safety and Health AdministratTOn (MSHA) v. C F & I 

Steel Corporation, supra. I concluded that the danger presented by the 

accumulation of methane had been eliminated. That is not the case with the 

matter at hand. The accumulation of methane that existed on May 8, 1980, 

having been only recently discovered, could reasonably be expected to cause 

death or serious physical harm before the danger posed had been eliminated. 

No abatement was in progress. Therefore, I find that the order of 

withdrawal is valid and should be affirmed. 

On the issue of whether or not a mandatory safety or health violation 

occurred, I find for the Applicant. The mandatory safety and health 

standard allegedly violated was 30 C.F.R. § 75.308 (see footnote 2/ page 

2). Given the facts as found, it is clear that when the air at the working 

face was found to contain 1.0 volume per centum or more of methane, C F & I 

at once made changes or adjustments in the ventilation of the Allen Mine to 

reduce the methane concentration to less than 1.0 per cent. 

While such changes or adjustments were underway and until they had been 

achieved, the power to electric equipment in the area remained off, no 

production was ongoing, and due precautions were exercised by C F & I so 

as not to endanger other areas of the mine. Additionally, all persons 

other than those referred to in section 104(c) of the Act were withdrawn to 

a safe area of the mine. On these facts, no violation of the mandatory 

safety and health standard contained in 30 C.F.R. § 75.308 occurred and I 

cannot sustain the violation alleged in Order of Withdrawal No. 827038. 

The condition or practice cited in the orde~ also makes reference to 

an alleged violation of 30 C.F.R. § 75.302-4(d). I No evidence is 

contained in the record regarding the use vel non of auxiliary fans, the 

existance of scheduled idle periods or the--ventilation scheme in use at the 

Allen Mine. Therefore, I have no basis upon which to sustain the violation 

of 30 C.F.R. § 75.302-4(d) alleged in Order of Withdrawal No. 827038. 

3/ § 75.302-4 Auxiliary fans and tubing. 

(d) In places where auxiliary fans are used, the ventilation during 

scheduled idle periods such as weekends and idle shifts, shall be by means 

of the primary air current conducted into the place in a manner to prevent 

accumulations of methane. 

2823 
As no viol at ion of a mandatory s11fety or health standard was found ro 

exist, it is not necessary for me to rule on the s{gnificance of the fact 

that the "CITATION" box on the order was not marked, how that fact af feet. s 

the sufficiency of the order as a section 104(a) citation or ~1ether 

C F & I was given adequate notice that a citation alleging a violation oE 

30 C.F.R. § 75.302-4(d) was being issued. 

CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and subject matter of this proceeding. 

2. The conditions which existed at C F & I 's Allen Mine on. May 8, 

1980, did constitute an imminent danger at the moment that Order of Withdrawal No. 827038 was issued. 

3. The order was valid and should be affirmed. 

4. The alleged violation of 30 C.F.R. § 75.308 contained in Order of 

Withdrawal No. 827038 was not proven by a preponderance of the evidence. 

5. The allegation was not sustained and should be vacated. 

6. The alleged violation of 30 C.F.R. § 75.302-4(d) contained in 

Order of Withdrawal No. 827038 was not proven by a preponderance of the 

evidence. 

7. The allegation was not sustained and should be vacated. 

ORDER 

Based upon the foregoing findings of fact and conclusions of law, 

Order of Withdrawal No. 827038 is AFFIRMED, the violation of 30 C.F.R. 

§ 75.308 alleged therein is VACATED and the violation of 30 C.F.R. § 75. 

302-4(d) alleged therein is VACATED. This proceeding is hereby DISMISSED 

WITH PREJUDICE. 

/~~. -;:.~ .·, '- _//.-!iJ\~ />ion n. !fotf7-==z7 

,_/ Administrative Law'Judge 

2824 
Distribution: 

Phillip D. Barber, Esq. 

Wellborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

2825 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

) 

) 

) 

) 

) 

) 

) 

) 

RICHARD M. ATKINSON, doing business as ) 

SOMIS SAND & ROCK CO., ) 

Respondent. 

~~~~~~~~~~~~~~~~~~~~-

Appearances: 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-467-M 

A/C No. 04-01951-05003 

MINE: Balcolm Canyon Plant 

Theresa Kalinski, Esq., Office of the Solicitor 

United States Department of Labor 

Room 3247 Federal Building 

300 North Los Angeles Street 

Los Angeles, California 90012 

For the Petitioner, 

Annie Verdries, Esq. 

4115 East Live Oak Avenue, Suite 108 

Arcadia, California 91006 

For the Respondent 

Before: Judge Jon D. Boltz 

DECISION AND ORDER 

The Petitioner filed a petition proposing that civil penalties be 

assessed against the Respondent for the alleged violation of five 

regulations promulgated pursuant to the Federal Mine Safety and Health Act 

of 1977 ("Act"). The alleged violations took place at Respondent's sand 

and rock operation on April 2 and April 3, 1980. In its answer, the 

Respondent generally denied the allegations of the Petitioner. 

At the connnencement of the hearing on the issues, counsel for the 

Petitioner stated that the parties had reached a proposed settlement of all 

issues. Based upon statements of counsel for the Petitioner, I make the 

following findings: 

1. Respondent has a history of eight assessed violations. 

2. Respondent is a small operator with production of 11,943 tons per 

year. 

282-S 
3. The proposed penalties will not impair the ability of the 

Respondent to continue in business. 

4. There was demonstrated good faith by the Respondent in achieving 

rapid compliance after notification of the alleged violations. 

Considering the above findings, the statements filed by counsel for 

the parties, as well as the proposal for settlement as stated by counsel 

for the Petitioner, I find that the proposal for settlement should be 

approved. 

Citation No. 384514 

A violation of 30 C.F.R. 56.11-12 was alleged as a result of an unsafe 

travelway in that there was an open hole approximately 18" x 18" in the 

work deck at the discharge hopper. A worker could have fallen into it and 

been injured. Respondent's statement is that there was a support platform 

approximately 3 inches under the deck which contained the opening, thereby 

preventing men and material from falling into and being injured by the 

opening. The parties agreed that a penalty of $70.00 would be reasonable 

for the violation. 

Citation No. 384516 

This citation alleges a violation of 30 C.F.R. 56.4-11. The 

Petitioner alleges that the power supply to a cone crusher, that had been 

removed, had three bare leads coming out of the cable. There was a shock 

hazard because this cable could have been contacted by persons working in 

the area, The Respondent's statement is that the circuits were 

deenergized. The parties stipulate that a reasonable penalty would be 

$90.00. 

Citation No. 384517 

This citation alleges a violation of 30 C.F.R. 56.9-7. It is alleged 

that the walkway side of the gravel conveyor was not provided with adequate 

guarding or an emergency stop device along the length of the elevated 

conveyor, The Respondent's statement is that parts of the existing guards 

were temporarily removed for cleaning and repair work. The parties have 

agreed that a reasonable penalty for the violation would be $65.00. 

Citation No. 384518 

A violation of 30 C.F.R. 56.12-32 is cited. The Petitioner alleges 

that there was wiring coming out of the junction box on the southeast 

support leg of the dry plaster sand storage bin. This condition presented 

a potential shock hazard to persons coming into contact with the structure. 

The Respondent's statement is that the equipment involved was situated in 

an abandoned part of the mine. All lines were deenergized and the wires 

were taped off and had been isolated, No employees were working in the 

abandoned section of the mine. The parties stipulate that proposed penalty 

of $65.00 would be reasonable, 

2827 
Citation No. 384529 

Petitioner alleges a violation of 30 C.F.R. 50.40(b) and specifically 

alleges that records, including quarterly reports and accident reports, 

were not being maintained at the mine office located on the property. 

Respondent's statement is that the reports were temporarily transferred to 

the main office for information necessary to answer allegations contained 

in a complaint filed by MSHA against the mine operator. The parties agree 

that a penalty assessment of $10.00 would be reasonable. 

The foregoing penalty assessments total $300.00. The parties further 

stipulate that to ease the difficulty of making payment in full immediately, four consecutive monthly installments of $75.00 each will be paid 

corrnnencing December 15, 1981. The final monthly installment will thus be 

paid March 15, 1982, making a total of $300.00. 

From the bench I approve the proposed settlement, including the method 

of payment. This approval was made after considering the statutory 

criteria set forth in section llO(i) of the Act. 

ORDER 

The settlement approved from the bench is hereby AFFIRMED. 

The Respondent is ORDERED to pay civil penalties in the total amount 

of $300.00. This judgment is to be satisfied by paying monthly installments of $75.00 each, commencing December 15, 1981, and on the 15th day of 

each month thereafter, including March 15, 1982, until a total of $300.00 

has been paid. 

Distribution: 

Theresa Kalinski, Esq. 

Office of the Solicitor 

J ~ n D. Bo 1 t z " ( ) 

Administrative Law Judge 

United States Department of Labor 

3247 Federal Building 

300 N. Los Angeles Street 

Los Angeles, California 90012 

Annie Verdries, Esq. 

4115 East Live Oak Avenue, Suite 108 

Ar~adia, California 91006 

2828 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 9 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY Afm HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ABSOLUTE COAL CORPORATION, 

Respondent 

Docket No. VA 80-171 

Assessment Control 

No. 44-04880-03027 V 

No. 1 Mine 

SUMMARY DECISION 

A notice of hearing was issued on August 10, 1981, in the above-entitled 

proceeding providing for a hearing to be held on September 16, 1981. Prior to 

the date of the hearing, counsel for the parties filed on September 15, 1981, 

a joint stipulation of undisputed material facts and a motion for stmmlary decision pursuant to 30 C.F.R. § 2700.64. Counsel for the parties also indicated 

that they would file briefs in support of their respective positions. Counsel 

for respondent ];/ submitted on November 3, 1981, a memorandum in support of his 

request for summary decision and counsel for the Secretary of Labor submitted 

on November 19, 1981, a memorandum in reply to respondent's memorandum. 

Stipulations 

The parties' stipulations are set forth below: 

1. The Administrative Law Judge has jurisdiction over the parties and 

subject matter of this proceeding. 

2. Absolute Coal Corporation and its No. 1 Mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et 

~· 

3. Absolute Coal Corporation owns and operates the No. 1 Mine located in 

Bee, Dickenson County, Virginia. 

4. A violation of mandatory safety standard 30 C.F.R. 75.316 occurred on 

January 2, 1980, at Absolute's No. 1 Mine as charged in Withdrawal Order No. 

0686121. 

1_/ After the decision in this proceeding had been written, but before the 

decision had been issued in final form, the attorney who wrote respondent's 

memorandum in this proceeding filed a letter on December 23, 1981, stating 

that he no longer is employed by respondent and that respondent's parent, AOV 

Industries, Inc., has initiated bankruptcy proceedings. Therefore, this decision is being sent to the attorney who represents respondent's parent in the 

bankruptcy proceedings instead of to the attorney who wrote respondent's 

memorandum. 

2829 
5. A violation of mandatory safety standard 30 C.F.R. 75.200 occurred 

on January 2, 1980, at Absolute's No. 1 Mine as charged in Withdrawal Order 

No. 0686122. 

6. The civil penalty of $2,000.00 that has been proposed for the violation charged in Withdrawal Order No. 0686121 is reasonable in light of the 

six statutory criteria set forth in Section llO(i) of the Act. 

7. The civil penalty of $2,000.00 that has been proposed for the violation charged in Withdrawal Order No. 0686122 is reasonable in light of the six 

statutory criteria set forth in Section llO(i) of the Act. 

8. On or about October 26, 1979, Respondent retained Apple Mountain Coal 

Company (Joe Davis) as a contract miner (hereinafter the "contractor"), for 

the Absolute No. 1 Mine, pursuant to a Contract Mining Agreement ("Agreement") and equipment lease. (See Discovery Documents.) 

9. These contracts constitute the only relationship or affiliation between Respondent and the contractor. (See Respondent's Answers to Petitioner's 

Interrogatories; "Answers" No. 3, 12, 15, et al.). 

10. On or about January 2, 1980, Petitioner issued citations for violations of federal law committed by the contractor. (See answer No. 12). 

11. On July 1, 1980, Petitioner promulgated certain amendments to 30 

C.F.R. Part 45 and further published an Enforcement Policy and Guidelines 

for Independent Contractors ("Guidelines") 45 F.R. 44494-98. 

When respondent's counsel submitted his memorandum in support of his 

request for sunnnary decision, he prefaced his arguments with four paragraphs 

under the heading "Statement of Material Facts Concerning Which There Is No 

Material Dispute". His memorandum does not specifically state that counsel 

for the Secretary has jointly agreed to sponsor the additional "Statement of 

Material Facts" and, while the Secretary's counsel does not deny the accuracy 

of the additional "Material Facts", she does not state that she agrees with 

them or that she participated in their preparation. Except for Stipulation 

No. 11 above, which is simply a statement of that which has been published in 

the Federal Register, the additional facts are taken from materials which 

respondent supplied in reply to petitioner's interrogatories and the additional 

statement of facts appears to be accurate. Therefore, I have added the four 

additional statements of material fact set forth in the preface to respondent's 

memorandum to the original stipulations submitted by the parties. The four additional statements appear as Nos. 8 through 11 in the stipulations above. 

Issue 

The only issue raised in respondent's memorandum (p. 2) is whether respondent should be cited or assessed penalties for violations of law committed by a 

third-party contract miner. 

Consideration of Parties' Arguments 

2830 
Respondent Should Not Be Cited for the Violations Here Involved 

In ~upport of its argument that it should not be cited for the violations 

involved in this proceeding, respondent's IDemorandum (p. 2) relies upon the 

provisions of its mining agreeIDent with Apple Mountain Coal Company, or contractor, to argue that the contractor should be held liable for the violations. 

Respondent refers to the prbvisions of the mining agreement for the purpose of 

showing that the contractor was obligated (1) to produce the coal reserves 

until they were exbausted, (2) to conduct mining operations in a workmanlike 

manner, (3) to comply with all applicable laws and regulations, (4) to indemnify respondent against any breach of MSHA's regulations or the Act, (5) to 

accept the coal properties as they existed at the time the agreement was signed 

in October 1979, and (6) to perform as an independent contractor with power to 

control the acts of its employees. Respondent uses the aforesaid contractual 

obligations to reach a conclusion that it was the contractor's responsibility 

to comply fully with the Act and the regulations promulgated thereunder. 

After having asserted that the contractor was liable for its own violations, respondent's memorandum (p. 3) proceeds to review MSHA's connnents in 

the Federal Register (Stipulation No. 11, supra) pertaining to MSHA's decision 

to cite independent contractors for violations which occur as a result of 

their work at coal or other mines. Respondent emphasizes MSHA's comments to 

the effect that health and safety interests at mines will best be served by 

placing responsibility for compliance with health and safety standards on 

independent contractors because they are in the best position to prevent safety 

and health violations in the course of their work and to abate any violations 

which may occur. 

While respondent concedes that MSHA's comments in the Federal Register 

show that MSHA might hold production-operators liable for violations in some 

circumstances, respondent argues that those circumstances do not apply in this 

instance because (1) it was the contractor, not respondent, who failed to comply 

with the mine's ventilation plan, (2) it was the contractor, not respondent, 

who failed to comply with the mine's roof-control plan, and (3) it was the contractor's employees, not respondent's employees, who were exposed to hazardous 

conditions because of the contractor's violations. For the foregoing reasons, 

respondent contends that only the contractor should be cited for the violations 

observed by the inspector on January 2, 1980 (Stipulation Nos. 4 and 5, supra). 

Petitioner's reply memorandum (pp. 1-2) argues that respondent was properly 

cited for the violations of section 75.316 and 75.200 because (1) respondent 

retained the U.S. Department of Labor Legal Identification Number for the mining property involved and also obtained all necessary licenses and permits for 

authorization to produce coal from respondent's No. 1 Mine, (2) respondent retained the right to have all coal produced from the mine delivered to respondent's preparation plant, (3) respondent reserved the right to enter upon the 

mine property at all suitable times for the purpose of inspecting the contractor's 

operations, (4) respondent may require the contractor to cure any potential violations of legally mandated health or safety standards, and (5) respondent owned 

all the equipment which the contractor used to produce coal. Petitioner concludes 

from the aforementioned extensive control which respondent exercised over the 

contractor's operations, that respondent was properly cited for the violations 

which occurred at respondent's mine. 

2831 
Petitioner's reply memorandtnn (p. 3) also argues that an owner of a coal 

mine should not be able to escape all statutory duties and responsibilities 

under the Act by entering into contracts under which the owner seeks to transfer all of the owner's obligations under the Act to the contractor who is 

carrying out the owner's interest in seeing that coal is produced. 

I believe that petitioner has correctly pointed out that respondent retained so much control over the operation of the No. 1 Mine that MSHA may 

properly hold respondent liable for the violations which occurred at respondent's mine ... Respondent controlled the operations at the the mine to an even 

greater extent than petitioner's reply memorandum has indicated. It should be 

noted that the mining agreement allows the contractor to be paid only $16.50 

per ton for clean coal delivered to-respondent's preparation plant. From the 

payment of $16.50 per ton, respondent deducts 50 cents per ton to hold in 

escrow. The mining agreement also provides that the contractor must deliver a 

minimum amount of coal per month. If the contractor fails to deliver the 

minimum monthly tonnage, respondent reserves the right to cancel the agre~­

ment and retain all money held in escrow. Respondent also deducts 50 cents 

per ton from the $16.50 payable to the contractor to reimburse respondent for 

supplies which the contractor is required to obtain from respondent. 

Respondent owns the mining equipment required for the contractor's production of respondent's coal. The only rent which the contractor has to pay for 

use of respondent's equipment is the contractor's obligation to fulfill the 

terms of the mining agreement described above. Of course, the contractor has 

to pay for any repairs which have to be made to respondent's equipment and the 

contractor must pay for or replace any lost or stolen equipment. The contractor is also required to carry insurance and pay the premiums on insurance 

covering respondent's equipment. 

It is obvious from the above-described provisions of the agreements between 

respondent and contractor, that respondent has absolute control over the operation of the No. 1 Mine and that the agreements place such severe economic limitations on the contractor that the contractor will find it very difficult to 

make a profit from extracting respondent's coal. Moreover, the financial constraints placed upon the contractor by respondent will put pressure on the 

contractor to scrimp on compliance with safety standards in order to save money. 

An indication of the contractor's lack of funds is shown by the inspector's 

language in Order No. 686122 which states that the contractor was installing 

only three rows of roof bolts instead of the four rows required by the roofcontrol plan. The roof bolts were supposed to have been no more than 48 inches 

apart, but they were 67 to 68 inches apart, or 20 inches farther apart than they 

should have been. One way to save money, of course, is to install as few roof 

bolts as possible. Nothing is more hazardous in an underground coal mine than 

failing to install an adequate number of roof bolts. The violation of section 

75.~16 cited in Order No. 686l21 also shows a failure of the contractor to supply adequate materials because, according to the inspector's order, the contractor 

was using line curtain only 48 inches long to ventilate the face area at a time 

when the mining height was 55 inches. 

As I have previously noted, respondent's memorandum (p. 3) concedes that 

MSHA's connnents in the Federal Register refer to circumstances under which it 

would be appropriate to cite the production-operator for violations, as well as 

2832 
the independent contractor, but respondent claims that MSHA's comments about 

citing production-operators do not apply to the circumstances which exist in 

this proceeding. The comments to which respondent refers are set forth below 

(45 Fed. Reg. 44,497): 

* * * Accordingly~ as a general rule; a production-operator may be 

properly cited for a viola~ioli involving an independent contractor: 

(1) when the p~oduction-operator has contributed either an act or an 

omission to the occu:r.rence of a violation in the course of an independent contractor's work, or (2) when the production-operator has contributed by either an act or omission to the continued existence of a 

violation committed by an independent contractor, or (3) when the 

production-operator's miners are exposed to the hazard, or (4) when 

the production-operator has control over the condition that needs 

abatement. * * * 

An examination of the above-quoted comments of MSHA in light of the facts 

in this proceeding shows that respondent comes within MSHA's guidelines under 

which the production-operator should be cited, in either a separate or joint 

proceeding, for violations committed by the independent contractor. Although 

respondent had reserved the right to inspect the contractor's production operations to determine whether the contractor was complying with all safety regulations (Agrement, par. 7), respondent either did not make such inspections or 

failed to assure that the contractor was complying with the health and safety 

standards. Such failures constituted an "omission" within the meaning of MSHA's 

guidelines which would make respondent liable for the violations which occurred 

while the contractor was producing respondent's coal. 

An "act" by respondent which would make respondent liable for being cited 

for the contractor's violations is the insertion in the agreement between 

respondent and the contractor of a minimum monthly volume of coal which the 

contractor is required to produce or run the risk of having the agreement 

canceled with escrowed funds being retained by respondent (Agreement, pars. 

3(c) and 13). Cancellation of the contractor's agreement with respondent 

would also have exposed the contractor to loss of any funds which it had expended for insurance and repairs on respondent's equipment. Clearly, respondent exercised sufficient control over the production of coal at its No. 1 

Mine to subject it to being cited for violations committed by the contractor 

at its No. 1 Mine. 

Petitioner Should Apply its Enforcement Policy Retroactively 

The last portion of respondent's memorandum (pp. 3-4) is devoted to contending that MSHA.'s policy for citing independent contractors for violations 

of the mandatory health and safety standards should be applied retroactively. 

Respondent supports its argument about retroactive application of the policy 

of citing independent contractors by reference to a number of persuasive court 

decisions, but it is unnecessary to consider those cases because MSHA has 

already retroactively applied its policy of citing independent contractors 

for violations of the mandatory standards. In fact, the most recent actions 

taken by the Commission with respect to citing independent contractors, as 

opposed to production-operators, or both, was in Pittsburgh & Midway Coal 

Mining Co., 2 FMSHRC 2042 (1980), in which the Commission remanded a case to 

2833 
an administrative law judge so that the Secretary of Labor could determine 

whether to apply the procedures for citing independent contractors for violations as those procedures were set forth in Volume 45 of the Federal Register 

(Stipulation No. 11, supra). The Connnission indicated in its decision that 

the Secretary was free to proceed against either the independent contractor or 

the production-operator, or both. The Connnission has issued similar orders in 

at least two other pr6eeedings, remanding the cases for the purpose of allowing 

the Secretary to apply the rules pertaining to citing ·i:ndependent contractors 

for violations of the mandatory safety standards (C and K Coal Co., 2 FMSHRC 

2047 (1980), and Phillips Uranium Corp., 2 FMSHRC 2050 (1980)). 

My decision issued November 30, 1981, in Old Dominion Power Company, Docket 

No, VA 81-40-R, describes a factual situation in which MSHA applied its procedures for citing independent contractors on a retroactive basis. In the Old 

Dominion case, an electric power company had installed some metering facilities 

in a substation located on a coal operator's mine property. One of the power 

company's employees was electrocuted while performing some work at the substation. The accident occurred on January 22, 1980. After inspecting the 

site of the fatal accident, an MSHA inspector cited the production-operator 

for a violation of the mandatory safety standards. After the promulgation of 

MSHA's regulations providing for the citing of independent contractors, the 

inspector modified his citation to allege that the power company, or independent 

contractor, should be cited for the violation instead of the production-operator. 

The citation was issued against the power company on January 21, 1981, or almost 

a year after the production-operator had been cited for the violation and about 

6 months after the rules for citing independent contractors had been promulgated. 

Petitioner's reply memorandum (p. 4) first argues that MSHA's regulations 

for citing independent contractors should not be applied retroactively. Petitioner's reply memorandum (p. 5) then takes a realistic alternative position 

and argues that even if the policy for citing independent contractors is applied retroactively, that respondent should be held liable in this proceeding. 

In support of petitioner's claim that respondent should be held liable, petitioner again refers to the facts in this proceeding which show that respondent 

retained control of the mine property, retained the right to inspect the operator's activities to assure that the contractor complied with the safety standards, provided the equipment used in mining operations, and otherwise controlled 

the mining operations sufficiently to be held liable for the violations which 

occurred at respondent's mine. 

As I have indicated above, the Commission has not ruled that MSHA is precluded from proceeding against an owner or a production-operator in any given 

situation. It is only necessary that MSHA advance reasons for having cited 

the production-operator in addition or instead of the independent contractor. 

In this proceeding, MSHA's inspector first wrote the orders in the name of the 

contractor and then modified the orders to cite respondent because the inspector 

found that respondent was still shown in MSHA's files as the company which had 

filed the Legal Identity Report required by 30 C.F.R. § 41.10. If respondent 

wished to have the contractor shown as the operator of the No. 1 Mine, it should 

have filed, pursuant to section 41.12, a change showing that respondent was no 

longer operating the No. 1 Mine. 

2834 
Respondent's failure to file a change in its Legal Identity Report and its 

retention of· complete control over the mine and all mining operations make it 

liable for being cited for the violations of section 75.316 and 75.200 as alleged in Order Nos. 686121 and 6861220 Inasmuch as respondent has already 

stipulated that the penalties of $2,000 proposed by the Assessment Office for 

each violation is reasonable ln light of the six assessment criteria set forth 

in section llO(i) of the Act (Stipulatien Nos. 6 and 7, supra), the order accompanying this decision will require that respondent pay penalties totaling 

$4,000.00. 

Nonexistence of an Independent Contractor in This Proceeding 

While I have considered the parties' arguments in this proceeding under the 

assumption that the facts warrant treatment of Apple Mountain Coal Company as 

an independent contract (Stipulation No. 8, supra), Apple Mountain does not 

really come within the meaning of an independent contractor as that term is 

used in the regulations promulgated by MSHA in the Federal Register in Volume 

45, pages 44,494 through 44,498. 

If one examines the definition of the word "operator" as that term was 

modified by the 1977 Act, it may be seen at a glance that the ind~pendent contractor is described in the last clause of that definition which provides as 

follows: "'operator' means any owner, lessee, or other person who operates, 

controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine." The facts in this proceeding 

show that Apple Mountain would qualify as an "operator" under the foregoing 

definition 9 but it would qualify under the word "lessee" because Apple Mountain 

had become the lessee of respondent's mining equipment and had become the "person" who operated a coal mine for the purpose of producing coal for respondent 

which was and still is the owner of the No. 1 Mine here involved. 

When MSHA promulgated its rules for citing independent contractors, it 

defined an "independent contractor" in section 45.2(c) as "* * * any person, 

partnership, corporation, subsidiary of a corporation, firm, association or 

other organization that contracts to perform services or construction at a 

mine," whereas a "production-operator" was defined in section 45.2(d) as "* * * 

any owner, lessee, or other person who operates, controls or supervises a coal 

or other mine". MSHA's definition of an independent contractor would clearly 

exclude Apple Mountain as a qualified "independent contractor" and would obviously 

include Apple Mountain as a "production-operator". 

One of the primary reasons for MSHA's having promulgated Part 45 of the Code 

of Federal Regulations was to establish a procedure whereby actual independent 

contractors could obtain an indentification number for use by an inspectbr when 

he is writing citations or orders for the purpose of alleging that an independent 

contractor has violated a health or safety standard. The inspector used an independent contractor's identification number when he issued the citation to which 

I referred in the Old Dominion case, supra. Apple Mountain, as the entity which 

actually produced the coal at respondent's No. 1 Mine, would not qualify for an 

independent contractor's identification number under section 45.3 because Apple 

Mountain was not performing mere services or construction at respondent's No. 1 

Mine. Additionally, Apple Mountain would have had no need to comply with section 

2835 
45.4 of the regulations because they require independent contractors to report 

to the production-operator the type of work to be performed at the productionoperator' s mine and the place at the mine where such work is to be performed. 

Section 45.5 also requires production-operators to provide a complete description of independent contractors' work at their mines, and keep a record of 

their names and addresses for service of documents, and be able to supply such 

in.formation to MSHA upon request. 

Although respondent was the owner and therefore a production-operator at 

the time the orders here involved were written 9 Apple Mountain was also a production-operator at the time the orders were written. Therefore, neither Apple 

Mountain nor respondent was obligated to keep a record of the type of information required by section 45.4 because there was no independent contractor performing services or construction work at respondent's mine at the time the 

o~ders involved in this proceeding were written. Since both Apple Mountain 

and respondent were production-operators, they were both liable for the violations that occurred at respondent's mine and either or both of them could 

have been cited for the violations, but the inspector properly issued the 

orders in the name of the production-operator which had filed a Legal Identity 

Report with MSHA showing that respondent was the production-operator in charge 

of all operations at the No. 1 Mine at the time the orders were issued on 

January 2, 1980. 

WHEREFORE, it is ordered: 

Absolute Coal Corporation, as the operator of the No. 1 Mine on January 2, 

1980 9 was properly cited for violations on January 2, 1980, and shall, within 

30 days from the date of this decision, pay civil penalties totaling $4,000.00 

which are allocated to the respective violations as follows: 

Order No. 686121 1/2/80 § 75.316 .•.•.•...••....•..•..... 

Order No. 686122 1/2/80 § 75.200 ....•.....•••••.••.•..•• 

Total Civil Penalties Assessed in This Proceeding •...... 

$ 2,000.00 

2,000.00 

$ 4,000.00 

~.f~~.;J~ 

Distribution: 

Administrative Law Judge 

(Phone: 703-756-6225) 

Catherine M. Oliver, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 14480-Gate~ay Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Stanley Salus, Esq., Docter, Docter & Salus, Suite 700, 1612 K Street, NW, 

Washington, DC 20006 (Certifed Mail) 

2836 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 91981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

THE QUAPAW COMPANY, 

Petitioner 

Respondent 

Docket No. CENT 80-388-M 

A/O No. 34-00033-05003 

Badger Mine 

DECISION 

Appearances: Ron Howell, Esq., Office of the Solicitor, U.S. Department 

of Labor, Dallas, Texa8, for the Petitioner; 

Before: 

Wo L. Childress~ President, The Quapaw Company, Dumright~ 

Oklahoma, for the Respondent. 

Judge Stewart 

I. Procedural_Bac~round 

On February 6, 1981, the Secretary of Labor (Petitioner) filed a complaint proposing penalty in the above~captioned case pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (Supp. III 1979) (Act), charging The Quapaw Company (Respondent) 

w~th one violation of mandatory standard 30 C.F.R. § 56.5-50(a). On 

March 26, 1981, the Respondent filed an answer to the complaint in response 

to an order to show cause issued by Chief Administrative Law Judge James A. 

Broderick on March 16, 1981. Subsequent thereto, a notice of hearing was 

issued. 

The hearing was held in Oklahoma City, Oklahoma, with representatives 

of both parties present and participatingo The Petitioner called one witness~ Federal mine inspector Millard Smith. The Respondent was represented 

by Mro W. Lo Childress, the company president, who took·the stand and testified as a witness fo:r the Respondent. 

Following the presentation of the evidence, a schedule was set for the 

filing of postheariug briefs and proposed findings of fact and conclusions 

of law. However 9 neither party filecl a posthearing br:l:ef or p:rnposed find~ 

ings of fact ar1d con~lusions of lawa 

2837 
II. Opinion 

Two basic issues are involved in this civil penalty proceeding: (1) 

did a violation of mandatory standard 30 C.F.R. § 56.5-50(a) occur, and (2) 

what amount should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should be assessed 

for a violation, the law requires that six factors be considered: (1) history 

of previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of 

the penalty on the operator's ability to continue in business; (5) gravity of 

the violation; and (6) the operator's good faith in attempting rapid abatement 

of the violation. Section llO(i) of the Act. 

Federal mine inspector Millard Smith issued Citation No. 167396 during 

the course of his April 1, 1980, inspection of the Respondent's Badger Mine 

(Exh. P-2; Tr. 5, 19). 1,/ The citation charges the Respondent with a violation of mandatory standard 30 C.F.R. § 56.5-50(a) 2/ in that "[t]he 988 Cat 

loader, S/N 87A6382, was exposed to noise at the level of 157.9%. The 

maxim\llll permissible limit at any time is 100%. Hearing protection was not 

being worn" (Exh. P-2). 

1/ The Badger Mine was en open-pit limestone mine and related milling 

operation (Tr. 6). 

2/ Mandatory standard 30 C.F.R. § 56.5-50(a) provides as follows: 

- "No employee shall be permitted an exposure to noise in excess of that 

specified in the table below. Noise level measurements shall be made using 

a sound level meter meeting specifications for type 2 meters contained in 

American National Standards Institute (ANSI) Standard Sl.4-1971, 'General 

Purpose Sound Level Meters,' approved April 27, 1971, which is hereby 

incorporated by reference and made a part hereof, or by a dosimeter with 

similar accuracy. This publication may be obtained from the American 

National Standards Institute 9 Inc. 1430 Broadway, New York, New York 10018, 

or may be examined in any Metal and Nonmetal Mine Safety and Health District 

or Subdistrict Office of the Mine Safety and Health Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, 

hours of exposure 

Sound level 

dBA, slow 

response 

8 ••o••oeoeeoeoooeoeosooeooeoeoeooooo•••••oeeooooo 

6 

4 

3 

2 

1 

1 

eeooooooooeooooeoaeeeoooooooooe•••o•e•ooo•oooooo 

o o • ~ o " o o o • o o o o o o o o o o • o o o o o o o • o o • o o o o o o ·o o o o o o o o o o 

eooo•ooeeooeoogo"ooooeoeooooa•oooeoooooeooe<..eooo 

0 0 0 0 0 • 0 0 0 • 0 0 0 :"'i f\ 0 Q Q 0 0 0 0 • 0 0 0 !> 0 0 ~ 0 0 0 0 • 0 0 0 ~ 0 0 0 • 0 0 ';) 0 0 

It 2 o " o o o " o o o o o o o o ~ o o • o o ~ o :a. " ~ .. a o o e a o • o a c Q o o o o • o a 

ooonoooo.-i.000.0000000013000000000':103000000000000000 

1/2 • 0 0. 0. 0 0 0. 'S. 0 0 0 0 0 •••• 0 c 0 0 0. 0 c 0 0 0. '.). 0 0 0 0. 0 0 •• 0 0 

1/4 or less •••••••••••••••••••••••••••••••••••••• 

90 

92 

95 

97 

100 

102 

105 

110 

115 

No exposure shall exceed 115 dBA. Impact or impulsive noises shall not 

exceed 140 dB, peak sound pressure level. 

2838 
As relates to the fact of violation, the record discloses that the 

inspector arrived at the mine early enough to obtain an 8-hour noise exposure 

reading for each of the four employees to whom he attached dosimeters. He 

calibrated the dosimeters prior to attaching them to the four individuals, 

and obtained an 8-hour noise exposure reading for each of the four (Tr. 6-7). 

The results of the survey disclosed that the operator of the Model No. 988 

Caterpillar loader was overexposed to noise in that the exposure meter on the 

the dosimeter read between 157 and 158 percent (Tr. 7-9, 11). Of the four 

employees sampled,. only the loader operator was overexposed to ·noise (Tr •. 7). 

The inspector then performed some calculations which disclosed that the 

loader operator had been exposed ·to noise rated at more than 92 dBA but less 

than 93 dBA during the 8-hour sampling period (Tr. 8-9, 19-21). 3/ The 

inspector also noted that hearing protection was not being worn (Exh. P-2). !!_/ 

fn. 2 (continued) 

"NOTE: When the daily noise exposure is composed of two or more periods 

of noise exposure at different levels, their combined effect shall be considered rather than the individual effect of each. 

If the sum 

(C1/T1)+(C2/T2)+. • • (Cn/Tn) 

exceeds unity, then the mixed exposure sha·ll be considered to exceed the 

permissible exposure. Gn indicates the total time of ·exposure at a specified 

noise leve·l, and Tn indicates the tota·l time of exposure permitted at that 

level. Interpolation between tabulated values may be determined by the 

following formula~ 

"Log T=6.322-·0.0602 SL 

Where T is the time· in hours and SL is the sound .level in dBA. 11 

1_/ It appears that the calculations must reveal that the individual has been 

exposed to more than 91 dBA during an 8-hour sampling period before a cita-, 

tion will be issued on the basis of noise exposure exceeding 90 dBA for an 

8-hour period. The inspector testified that both the manufacturer of the 

dosimeter. and the U.S. Department of Labor allow 1 dBA as an error factor 

for the equipment (Tr. 7, 20, 22). 

4/ The use or absence of personal hearing protection on the facts of this 

case is immaterial to the determination as to whether a violation occurred, 

Mandatory standard 30 C.F.R. § 56.5-50(b) provides that! 

"When employees' exposure exceeds t'hat listed in the [table set forth 

in 30 C.F.R. § 56.5-50(a)], feasible administrative or engineering controls 

shall be utilized. If such controls fail to reduce exposure t~ within permissible levels, personal protection equipment shall be provided and used to 

reduce sound levels to within the levels of the table." 

Thus, the law authorizes the use of personal protection e·quipment as a 

means of achieving compliance. with 30 C-.F.R, § 56.5-50(a) only if feasible 

administrative or engineering controls fail to reduce noise exposure to 

within permissible levels. The evidence presented· in tlris case clearly 

shows that feasible adm±nistTative or engineering ·conteo1s existed which 

could have been utilized by the Respondent to reduce noise exposure to 

within permissible levels. 

2839 
Mandatory standard 30 C.F.R. § 56.5-50(a) provides, in part, that no 

employee shall be permitted an exposure to noise in excess of 90 dBA during 

an 8-hour period. The results of the April 1, 1980, noise survey disclosed 

that the loader operator was exposed to noise rated at more than 92 dBA but 

less than 93 dBA during the 8-hour sampling period. Even allowing for the 

1 dBA margin of error (see footnote 3, supra), it is clear that the loader 

operator was exposed to noise in excess of 90 dBA during the 8-hour sampling 

period. Accordingly, it is found that a violation of mandatory standard 

30 C.F.R. § 56.5-50(a) has been proved by a preponderance of the evidence. 

As relates to the· gravity of the violation, the standard is designed 

primarily to afford protection against a partial or total loss of hearing 

as a result of exposure to excessive noise over a period of time (see,~·_&•, 

Tr. 9-10). 5/ Any eventual loss of hearing occasioned by overexposure to 

noise could-reasonably be expected to· be permanent (Tr. 9-10). 

Applying the 1 dBA margin of error (see footnote 3, supra), the record 

discloses that the loader operator was exposed to greater than 1 dBA but 

less than 2 dBA in excess of the allowable exposure during the 8-hour sampling period. Although the inspector testified that he felt the violation was 

"serious enough" (Tr. 24), he also gave testimony which indicated that the 

overexposure was not great (Tr. 24). In view of all of the circumstances, it 

is found that the violat.i.on was nonserious and that the gravity was of a 

moderate nature. 6/ 

In order to establish that the. Respondent demonstrated negligence in 

connection with the v.iolation, the Petitioner must prove by a preponderance 

of the evidence that the Respondent either knew or should have known of the 

violative condition. When asked whether he believed that the mine operator 

either knew or should have known of the violative condition, the inspector 

testified that it was "pretty hard to say" that the mine operator knew because 

he did not believe that a noise inspection had ever been performed on the 

fn. 4 (continued) 

Inspector Smith testified that such controls existed in the form of 

lining the cab with insulation and/or relocating the muffler and exhaust 

sy·stem (Tr. 11-12). In fact, the Respondent abated the citation by relocating the muffler and by running the exhaust pipe approximately 4 to 5 feet 

farther from the equipment operator's cab. The actions taken to abate the 

citation achieved compliance with the standard (Tr. 12). 

2_./ In this-regard, it should be noted that the standard prohibits exposure 

to greater than 115 dBA. 

6/ Although it is not deternii.native of the gl'.'avity issue~ it should be noted 

that earplugs had been issued to the loader opet:ator.; Mr.; Childress gave 

testimony which seemed .t(., indica.t.:e e:LEher_.that the loc:i.det~- operator simply was 

not weariug the eaq,lngo 0r that he had lost the earplugs and had not sought 

replacements from the Respondent. The Respondent has issued earplugs to its 

employees several times and always keeps replacements available (Tr. 28). 

2840 
cited loader by the Mine Safety and Health Administration. He also testified 

that it is rather difficult to detect the difference between 90 and 92 dBA by 

listening to the equipment because (1) the noise survey measurements are made 

over an 8-hour period; (2) the difference between 90 dBA and 92 dBA is not 

very great; and (3) the type of sound involved is a variable which must be 

taken into account (Tr. 24). 

Mr. Childress testified that the Respondent had "no way to know about 

the noise level" (Tr. 27). He also testified that the Respondent purchased 

the equipment new in the late 1960's or early 1970's, that the loader was 

exactly the way it was when it came from the factory, and that it had a good 

muffler, a cab, doors, and glass (Tr. 27, 29). It should be noted, however, 

that the windows and doors were open at the time of the inspection (Tr. 23)o 

In view of the foregoing circumstances, it is found that the Petitioner 

has failed to prove operator negligence by a preponderance of the evidence. 7/ 

The inspector testified that the Respondent was cooperative (Tr. 14) 

and that the Respondent demonstrated good faith in abating the violation 

(Tr. 23). Accordingly, it is found that the Respondent demonstrated good 

faith in attempting rapid abatement of the violation. 

The evidence presented shows that the size of the Badger Mine was rated 

at approximately 69,938 man~hours in 1977, 69,089 man-hours in 1978, 57,902 

man-hours in 1979, and 15,509 man-·hours as of the first 3 months of 1980 

(Exh. P-1; Tr. 18)0 The inspector testified that the facility-was a mediunc· 

size mine for the state of Oklahoma, but indicated that the mine would be 

classified as small when compared to mine operations throughout the country 

(Tr. 19). Mr. Childress testified that, as of the date of the hearing, the 

mine was no longer operational because it had been shut down and the equipment sold (Tr. 29). He also testified that another mine was opened but that 

it too had been shut down and all of its equipment sold (T1· o 30), The 

Respondent operated two mines as of the date of the hearing, one a quarry and 

the other a sand pit. The Respondent operates the sand pit only approximately 

1 day per month and the sand extracted is for the Respondent's own use (Tr. 

30··31). In view of the foregoing, it is found that the Respondent is a small 

operator. 

7/ The inspector recorded on his inspector's statement that the loader 

operator led him "to believe that he had complained to management about 

excess noise on this particular machine" (Exh, P~·2) o However, the inspector never gave testimony on this point so as to explain the foundation for 

this belief, and the Petitioner did not prove that the loader operator had 

in fact complained to the Respondent concerning excessive noiseo 1'he state~~ 

ment appearing on the inspector 9 s statement is itot considered reliable 

evidence that such a complaint had been lodged with the-Respondent, and 

cannot form the basis for a finding that the Respondent knew or should have 

known of the violative condition. 

2841 
The evidence presented as to the Respondent's history of previous 

violations shows that the Respondent has no history of violations prior to 

November 1978. The Respondent was cited for a total of 19 violations from 

November 1978 through December 1980, and paid assessments for 18 of those 

cited violations. The 19th violation cited, i.eo, the one for which no 

assessment has been paid, is the violation which is the subject matter of 

this proceeding. Of the 18 violations for which assessments have been 

paid, 12 occurred prior to April 1, 1980. 

It is well settled that paid assessments are the only assessments 

properly included in a mine operator's history of previous violations. See 

Peggs Run Coal Company, Inc., 6 IBMA. 212, 83 IoD. 245, 1976-1977 CCR OSH~ 

par. 20,839 (1976); Peggs Run Coal Company, Inc., 5 IBMA 144, 148-150, 

82 I.D. 445, 1 BNA MSHC 1343, 1975-1976 CCH OSHD par. 20,001 (1975); Old Ben 

Coal Company, 4 IBMA 198, 217-218, 82 I.D. 264? 1 BNA MSHC 1279, 1974-1975 

CCR OSHD par. 19,723 (1975); Corporation of the Presiding Bi!!hop, Church o~ 

Jesus Christ of Latter Day Saints 9 2 IBMA 285, 80 I.Do 633, 1973-1974 CCR 

OSHD par. 16,913 (1973); Valley €amp Coal Company, 1 IBMA 196, 203-204, 

79 I.D. 625, 1 BNA MSHC 1043, 1971-1973 CCR OSHD par. 15,385 (1972). Additionally, only those paid assessments for violations charged prior to the 

one in issue may be properly considered in determin:i,ng a mine operator's 

history of previous violations. §ee Peggs Run Coal Company, Inc., 5 IBMA 

144, 82 I.D. 445, 1 BNA tMSHC 1343, 1975-·1976 CCR OSHD par. 20,001 (1975). 

Accordingly, I conclude that the Respondent has a history of 12 prev:f.ous 

violations which are cognizable in this proceeding. I further conclude that 

the Respondent·'s history of previous viqlations is f;'JOdo 

The Respondent did not introduce in evidence any business-or tax records 

to establish that the assessment of a civil penalty will impair its ability 

to remain in business. Hall Coal Company. 1 IBMA 175, 180, 79 I.D. 668, 

1 BNA MSHC 1037, 1971-1973 CCR OSHD par. 15,380 (1972); see also Davis Coal 

Company, 2 FMSHRC 619, 1 BNA MSHC 2305, 1980 CCR OSHD par:-24,291 (1980)0 

-It should be noted that the Respondent was specifically accorded the oppor~, 

tunity to present evidence on this point, but that the Respondent declined 

to do so (Tr. 29-30). Mr. Childress did testify that the Respondent has 

assets (Tr. 30). 

In Hall Coal Company, 1IBMA175,,79 IoDo 668, 1 BNA MSHG 1037, 1971-

1973 CCR OSHD par. 15,980 (1972), the Federal Mine Safety and Health Review 

Commission's predecessor, the Interior Board of Mine Operations Appeals, 

held that evidence relating to whether a civil penalty will affect the 

operator's ability to remain in business is within the operator's control, 

resulting in a rebuttable pr.esump.t:lou that the operatorJs ability to continue in business will not: be affected by the assessment of a civil pen~ 

altyo Therefore, I find that a civil ~enalty oth~rwise properly assessed 

in this proceeding willLnot imp~ir the Respondent's ability to remain in 

business. 

Upon consideration of~the entire record in this case and the foregoing 

findings of fact and conclu~;ions of lawp I find that the assessment of a $25 

2842 
civil penalty is warranted for the April 1, 1980, violation of mandatory 

standard 30 C.F.R. § 56.5-50(a) set forth in Citation No. 167396. 

ORDER 

Accordingly, IT IS ORDERED that the Respondent pay a civil penalty in 

the amount of $25 within 30 days of the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Ron Howell, Esq., Office of the Solicitor, UoS. Department of Labor, 

555 Griffin Square Building~ Suite 501, Dallas, TX 75202 (Certified 

Mail) 

W. L. Childress, President, The Quapaw Company, P.Oo Box 72, Dumright, 

OK 74030 (Certified Mail) 

Administrator for M'etal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

AdministTator fo1· Coal Nine '5'a:Eet.y an:Ct He":Jth? U._,_S" D::opa<:tment of Labor 

Standard Dist1·ibution 

2843 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENYER. COLQRADO 80204 

) DEC 2 9 1981 

KAISER STEEL CORPORATION, ) 

) 

) 

) 

) 

CONTEST OF CITATION PROCEEDING 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

~~~~~~~~~~~~~~~~~~~~~ 

) 

) 

) 

) 

) 

) 

DECISION 

APPEARANCES: 

DOCKET NO. WEST 80-494-R 

Citation No. 827208; 9/23/80 

DOCKET NO. CENT 81-26-R 

Citation No. 827236; 9/1.4/80 

MINE: York Canyon Mine No. 1 

David B. Reeves, Esq., Kaiser Steel Corporation 

P.O. Box 217, Fontana, California 

For the Contestant, 

Robert Cohen, Esq., Office of the Solicitor 

United States Department of Labor, 4015 Wilson Boulevard 

Arlington, Virginia 22203 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF PROCEEDINGS 

Pursuant to section 105(d) 1/ of the Federal Mine Safety and Health 

1/ Section 105(d) provides as follows: 

''If, within 30 days of receipt thereof, an operator of a coal or other 

mine notifies the Secretary that he intends to contest the issuance or 

modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or 

(b) of this section, or the reasonableness of the length of abatement time 

fixed in a citation or modification thereof issued under section 104, or 

any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modification, or termination of any order 

issued under section 104, or the reasonableness of the length of time set 

for abatement by a citation or modification thereof issued under section 

104, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in 

accordance with section 554 of title 5, United States Code, but without 

regard to subsection (a)(3) of such section), and thereafter shall issue an 

order, based on findings of fact, affirming, modifying, or vacating the 

Secretary's citation, order or proposed penalty, or directing other appropriate relief. Such order shall become final 30 days after its 

issuance. The rules of procedure prescribed by the Commission shall provide affected miners or representatives of affected miners an opportunity 

to participate as parties to hearings under this section. The Commission 

shall tak~ whatever action is necessary to expedite proceedings for hearing 

appeals of orders issued under section 104." 

2844 
Act of 1977, 30 U.S.C. ~ 801 et seq. (hereinafter referred to as "the 

Act"), the contestant filed two separate Notices of Contest challenging the 

validity of two citations issued at two different mine sites. 

The contestant's motion to consolidate these two cases and expedite 

the proceedings was-granted and a hearing on both cases was held in Raton, 

New Mexico, on December 17, 1980. 

CENT 81-26-R 

STIPULATIONS 

At the outset of the hearing, the parties stipulated as follows: 

1. The West York Strip mine produces 800,000 tons of coal a year. 

2. The products produced at the mines enter into and affect interstate commerce. 

3. That the said mine is under the jurisdiction of the Federal Mine 

Safety and Health Act of 1977. 

ISSUES 

1. Whether the Contestant violated safety standard 30 C.F.R. 

§ 77.404(a) by operating a pickup truck after it was determined that said 

truck was in an unsafe condition? 

2. Whether the alleged violation was of such a nature as could 

significantly and substantially contribute to the cause and effect of a 

mine safety or health hazard? 

FINDINGS OF FACT 

1. Contestant operates a strip coal mine in the State of New Mexico 

designated as the West York Strip Mine. 

2. Daniel R. Martinez, safety inspector for the Mine Safety and 

Health Administration, issued a citation to the contestant on September 23, 

1980, for a violation of 77.404(a) as the result of an inspection of a 

motor vehicle. 

3. The inspection of the motor vehicle was prompted by a statement of 

a representative of the miners that said vehicle was in an unsafe condition 

(Tr. 10). 

4. The motor vehicle inspected was a light blue pickup truck, license 

number CG-7344 usually operated by Michael Stairwalt, assistant superintendent of strip operations during the day shift. The vehicle was also 

driven by Rocky Sanchez on the second shift and Manuel D. Romero on the 

third shift. 

2845 
5. A bent steering stabilizing ~ar was observed on the pickup truck 

by the mine inspector. 

6. During a test drive of the truck, the steering wheel and truck 

would vibrate at a speed of 25 miles per hour (Tr. 14). The "shaking" of 

the vehicle increased as the speed was increased (Tr. 15). 

7. The mine inspector issued a 104(d)(l) citation removing the motor 

vehicle from service until it was repaired. The violation was abated on 

September 26, 1980 after the stabilizing bar was replaced (Tr. 21 and Exhibit 1). 

8. The condition cited herein was classified by the inspector as 

"significant and substantial." 

DISCUSSION 

Citation number 827236 2/ charges the contestant violated mandatory 

safety standard 77.404(a). -The standard provides that: 

Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or 

equipment in unsafe condition shall be removed from service 

immediately. 

Further, the inspector issued the above citation pursuant to section 

104(d)( 1) of the Federal Mine Safety and Health Act of 1977 which provides 

as follows: 

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

representative of the Secretary finds that there has been 

a violation of any mandatory health or safety standard, and 

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

violation do not cause imminent danger, such violation is of 

such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine 

safety or health hazard, and if he finds such violation 

to be caused by an unwarrantable failure of such operator 

to comply with such mandatory health or safety staridards, 

he shall include such finding in any citation given to the 

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

any subsequent inspection of such mine within 90 days after 

the issuance of such citation, an authorized representative 

of the Secretary finds another violation of any mandatory 

health or safety standard and finds such violation to be also 

2/ Citation No. 827236 states as follows: 

The light-blue Ford truck (N.M. license No. CG-7344) used on the mine 

property for transportation of Mike St~irwalt was not maintained in a safe 

operating condition. The stabilizing jack for the steering of the truck 

was bent and the truck would shake at speeds ranging from 25-45 miles per 

hour. Mike Stairwalt stated he knew the violation existed. 

2846 
caused by an unwarrantable failur= of such operator to so 

comply, he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by such 

violation, except those persons referred to in subsection 

(c) to be withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the Secretary 

determines that such violation has been abated. 

The contestant in its Notice of Contest alleged, inter alia, (1) that 

no violation of the cited mandatory standard existed to support the 

issuance of the citation; (2) that the citation was improper since the 

alleged violati-on was not "caused by unwarrantable failure" of contestant 

to comply with the cited standard or any other mandatory health or safety 

standard; and (3) that the conditions set forth in the citation were not 

"of such nature as could significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard." An answer was filed 

by the Mine Safety and Health Administration (MSHA) on October 29, 1980. 

The facts in this case, as developed through the testimony of the 

witnesses, do not support the contestant's position regarding the violation 

of the standard. It was uncontroverted that the pickup truck cited herein 

would "vibrate and shimmy" at speeds over 25 miles per hour. The testimony 

of Mike Stairwalt, contestant's assistant superintendent of Strip 

Operations, who operated this vehicle on his shift, testified that the 

pickup had a bent stabilizer on the front and that the part was on order 

(Tr. 38). During the test drive, Stairwalt was driving the pickup 

accompanied by the mine inspector and testified that the vehicle started to 

"shake" around 27 and 28 miles per hour. He then stated as follows: 11 1 

slowed it down and got it back under control and drove it back up and 

turned it around and came back down, and the second time it started to 

shimmy was probably 45 miles per hour" (Tr. 39). 

The question here is whether this pickup continued to be used and 

driven by the miners after it developed the unsafe condition referred to in 

safety standard 77.404(a). The bent stabilizing bar, as part of the 

steering mechanism of this pickup truck, caused it to vibrate and shake at 

speeds over 25 miles per hour. This had the potential of causing the 

driver to loose control of the vehicle and either collide with other 

vehicles or roll. over. Either occurrence would endanger the health and 

safety of the driver or other miners in the area. This obviously was an 

unsafe condition, and the standard requires that the equipment be removed 

from service. 

The contestant. argues that the condition is not different from other 

mechanical defects of vehicles, such as broken head lights, faulty 

windshield wipers, etc. I find a distinct difference between these items 

and the more essential parts of a vehicle such as brakes and .the steering 

mechanism involved herein. 

2847 
The subject 104(d)(l) citation contains the allegation that the cited 

condition was caused by the contestant's unw~rrantable failure to comply 

with mandatory safety standard 30 C.F.R. § 77.404(a). A violation of a 

mandatory health or safety standard is caused by an unwarrantable failur~ 

to comply where "the operator involved has failed to abate the condition 

or practices the operator knew or should have known existed or which it 

failed to abate because of a lack of due diligence, or because of 

indifference or lack of reasonable care" Zeigler Coal Company, 7 IBMA 280, 

295-296, 84I. D-127, I BNA MSHC 1518, 1977-1978 CCH OSHD par. 21, 676 

(1977). The findings of fact as set forth in this decision clearly show 

that the contestant, through its' employees, knew of the damaged part on 

the cited pickup truck and failed to abate this violative condition by removing said truck from service. Accordingly, it is found that the 

violation wa·s caused by the contestant's unwarrantable failure to comply 

with mandatory safety standard 30 C.F.R. § 77.404(a). 

The citation contains the allegation that the violation was of such 

nature as could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. In National Gypsum Company, 3 

FMSHRC 822, 2 BNA MSHC 1201, 1981 CCH OSHD par 25, 294 (1981), the Review 

Corrnnission held "that a violation is of such nature as could significantly 

and substantially contribute to the cause and effect of a mine safety or 

health hazard if, based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed 

to will result in an injury or illness of a reasonably serious nature." 3 

FMSHRC at 825. Additionally, the Review Corrnnission stated that "[a]lthough 

the [1977 Mine Act] does not define the key terms 'hazard' or 'significantly and substantially,' in this context we understand the word 'hazard' 

to denote a measure of danger to safety or health, and that a violation 

'significantly and substantially' contributes to the cause and effect of a 

hazard if the violation could be a major cause of a danger to safety or 

health. In other words, the contribution to cause and effect must be 

significant and substantial." 3 FMSHRC at 827. (Footnote omitted). 

The particular facts surrounding the violation involved herein reveal 

that the condition of the steering mechanism on the pickup truck could have 

been a major cause of a serious accident with a reasonable likelihood that 

it would result in an injury of a reasonably serious nature. Accordingly, 

I conclude that the violation was of such a nature as could significantly 

and substantially contribute to the cause and effect of a mine safety or 

health hazard. 

Accordingly, IT IS ORDERED that the contestant's contest in Docket No. 

CENT 81-26-R be, and hereby is DENIED, and that Citation no. 827236 be, and 

hereby is AFFIRMED. 

WEST 80-494-R 

This proceeding was initiated by the contestant filing a Notice of 

Contest pursuant to section lOS(d) of the Federal Mine Safety and Health 

2848 
Act of 1977, 30 U.S.C. § 801 et seq. (1978) 3/ to contest the issuance of 

Citation No. 827208, dated September 23, 1980. The citation alleged that 

the contestant failed to follow its approved roof control plan in violation 

of 30 C.F.R. 75.200. Specifically, it alleged that miners were allowed to 

proceed a gistance of 12 feet beyond permanent support and under temporary 

supports._/ 

STIPULATIONS 

The parties stipulated that the contestant's York Canyon No. 1 Mine is 

a large, underground, coal mine and is under the jurisdiction of the 

Federal Mine Safety and Health Act of 1977 (Tr. 68). Also, stipulated to 

and received into evidence were the following Exhibits: 

Government Exhibit No. 1 : Citation No. 827208, Modification, 

and Abatement 

Government Exhibit No. 2: Roof Control Plan 

Government Exhibit No. 3: Drawing of Entry 1 and 2, ten left section. 

Contestant Exhibit No. l : Drawing of Entry No. l and 2, ten left 

section 

Contestant Exhibit No. 2: Ins_pectors notes and drawing of area. 

FINDINGS OF FACT, DISCUSSION AND CONCLUSION 

The question of whether or not there was a violation of 30 C.F.R. 

75.200 centers around an interpretation of this section of the Act and 

several provisions of the contestant's roof control plan. Section 75.200 

provides as follows: 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system 

of each coal mine and the means and measures to accomplish 

such system. The roof and ribs of all active underground 

roadways, travelways, and working places shall be supported 

or otherwise controlled adequately to protect persons from 

falls of the roof or ribs. A roof control plan and revisions 

thereof suitable to the roof conditions and mining system of 

each coal mine and approved by the Secretary shall be adopted 

and set out in printed form on or before May 29, 1980. The 

plan shall show the type of support and spacing approved by 

the Secretary. Such plan shall be reviewed periodically, at 

1 3/ See footnote No. 1. 

4/ Citation No. 827208 alleges the following: 

The roof control plan was not been complied with in that miners (jack leg 

drillers) were allowed to proceed beyond the last permanent support for a 

distance of 12 feet under temporary supports to drill 5 - 6 foot holes and 

shot down 3 to 4 feet of top sandrock to allow for height in the No. 1 room 

in the 10 feet section, I.D. No. 008-0. This was conducted during the 

third shift. 

2849 
least every 6 months by the Secr~tary, taking into consideration any falls of roof or ribs. No perso~ shall proceed beyond the last permanent support unless adequate-temporary 

support is provided or unless such temporary support is not 

required under the approved roof control plan and the absence 

of such support will not pose a hazard to the miners. A copy 

of the plan shall be furnished to the Secretary or his authorized representative and shall be available to the miners 

and their representatives. [Emphasis added.] 

MSHA mine inspector Anthony Duron testified that he congucted a 

regular safety and health inspection during the "grave yard" I shift at 

the contestant's York Canyon Mine No. 1 on September 23, 1980. While 

accompanying the fire boss on his tour of the mine, the inspector observed 

what he described as something wrong in the No. 1 entry of the ten left 

section (Tr. 75 and 76). A sign was posted near the last permanent roof 

supports in the No. 1 entry saying "unsupported roof." Further investigation by the inspector indicated that there was a distance of 

approximately 19 feet from the last permanent support to the working face 

(Tr. 95). 

Inspector Duran testified that the mining sequence followed in this 

two entry section was to first have the continuous miner cut a 20 foot cut, 

approximately four foot high or the height of the coal seam. This is done 

under permanent roof supports. Then the continuous miner moves to the 

other entry while the "jack leg drillers 116 / come into the area vacated by 

the continuous miner and "drills" and "shoots" 7/ the sandrock overlay or 

cap which is approximately 4 foot thick. When-cleaned out, the entry is 

then approximately 8 feet high so other equipment and machinery can enter 

(Tr. 99 and 100). 

The inspector testified that the jack leg or drill is operated by two 

miners. One miner, described as a helper, will hold the end of the "bit" 

at the face while the operator proceeds to move the drill forward on its 

hydraulic leg towards the face to drill a 6 foot hole to receive the 

explosives. In this instance, the operator starts approximately six feet 

from the face due to the six foot steel or drill (Tr. 100). Under normal 

procedures, the helper and operator of the drill are under supported roof, 

5/ The night shift usually beginning at 11 or 12 p.m. and relieved by the 

day shift. 

6/ An operator of a compresses-air, percussion type rock drilling machine 

mounted on a leg called a jack. 

7/ To break coal or rock away from seam with explosives. 

2850 
as the roof bolter will have previously installed permanent roof supports 

up to at least five foot of the working face of the entry. If it is over 

five feet away from the face, temporary supports wil 1 be placed to support 

the roof (Tr. 101). 

Inspector Duran testified that what he saw as an "unusual situation" 

was that the "jack leg" operators had gone in under temporary supports in 

entry No. 1 to drill the overlay of rock. He concluded this from observing 

that there was a distance of 12 feet from the last permanent support to the 

area where drilling and shooting had occurred and then the additional 6 

foot of rubble which showed that the area had been drilled and "shot" 

(Government's Ex. No. 3 and Tr. 102). Duran testified that in his opinion, 

the operator and helper would have been under temporary and then 

unsupported roof (Tr. 102). There were three temporary jacks installed as 

shown on Contestant's Exhibit No. 1 as "x" and on Government's Exhibit No. 

3 as 11 0 11 • Two additional temporary supports were observed laying in the 

last open cross cut near the continuous miner (Government's Ex. 2 and Tr. 

124). 

Pertinent parts of the contestant's approved roof bolting plan described the roof bolting sequence as follows: 

Page 6-3 (a) Upon completion of the loading cycle, a reflectorized warning device, such as a "stop" sign, shall be 

conspicuously placed to warn persons approaching any area that 

is not permanently supported. It is to be emphasized that the 

warning device has been placed to cause the person to stop, examine, and evaluate the roof and rib conditions prior to entering the area--even after temporary supports have been installed. 

(b) Where required, temporary supports shall be installed immediately after the loading cycle is completed unless roof bolting machines are equipped with acceptable automated temporary 

supports. 

(i) Except when the District Manager has determined that 

more than 5 minutes are needed, "irmnediately" is interpreted to mean that the installation of such temporary 

supports shall be started no later than 5 minutes after 

mining of the cut is completed and, after the installation 

of such sup~orts is started, the installation of supports 

shall be continued until at least the minimum number are 

installed as required in the approved plan. If the installation of permanent supports is not started within 

60 minutes after the loading cycle is completed, temporary 

supports shall be installed in the entire cut on 5 foot 

centers. 

Page 7 (c) Only those persons engaged in installing temporary 

supports shall be allowed to proceed beyond the last row of 

permanent supports until temporary supports are installed. Before any person proceeds inby permanently supported roof, a 

thorough visual exaITTination of the unsupported roof and ribs 

shall be made. If the visual examination does not disclose any 

hazardous condition, persons proceeding inby permanent supports 

2851 
for the purpose of testing the roof by the sound and 

vibration method and installing supports shall do so with 

caution and shall be within 5 feet (less if indicated on 

sketch Nos. D) of a temporary or permanent support. If 

hazardous conditions are detected, corrective action shall 

be taken to give adequate protection to the workmen in the 

area involved. 

4. When installing permanent supports, temporary supports may be 

repositioned in the sequence indicated on the attached sketch (Nos. C). 

However, if it is necessary to remove temporary supports (other than those 

specified above) before permanent supports are installed, such temporary 

supports shall be removed by some remote means, or another temporary 

support shall be installed in such a manner that the workman removing the 

support remains in a supported area. Means of removal of such supports 

shall be approved by the District Manager. 

5. Work such as extending line curtains, other ventilating devices or 

making methane tests inby the roof bolts shall not be done unless a minimum 

or two temporary supports are installed. This minimum is applicable only 

if they are within 5 feet of the face or rib and the work is done between 

such supports and the nearest face or rib. Other methods of providing 

temporary supports for this work will be accepted if equivalent protection 

is provided. 

6. Where rehabilitation work is being done, the following temporary 

support pattern shall apply: 

a. Where bolts are being replaced in isolated 

instances (such as where equipment has knocked bolts 

loose) one temporary support shall be installed within 

a radius of 4 feet from each bolt to be replaced. 

b. Where crossbars or roof bolts are being ins·talled 

in an area where roof failure is indicated, a minimlllll 

of two rows of temporary supports shall be installed 

on not more than 5 foot centers across the place so that 

the work in progress is done between the installed temporary supports and adequate permanent supports in sound roof, 

7. (a) Where loose material is being taken down, a minimum of two 

temporary supports on not more than 5 foot centers shall be installed 

between the miner and the material being taken down unless such work can be 

done from an area supported adequately by permanent roof supports. 

(Emphasis added). 

Section 75.200 requires a mine operator to adopt and maintain a roof 

control plan suitable for its mine and it is well settled that any 

violation of the approved plan is a violation of Section 75.200, Peabody 

Coal Company,8 IBMA 121 (1977) and Affinity Mining Company, 6 IBMA 100 

0976). 

2852 
Citation No. 827208 contains a d~scription by ti1e inspector of what 

condition or practice he considered caused a violation of Section 75.200. 

It states in part: "The roof control plan was not complied with in that 

miners (Jack leg drillers) were allowed to proceed beyond the last 

permanent support for a distance of 12 feet under temporary supports to 

drill ..• " (Government's Exhibit No. 1). A further understanding of the 

inspector's interpretation of how the roof control plan was violated is 

provided in a review of the following transcript colloquy at pages 120, 

121, and 122: 

Mr. Reeves (Contestant's counsel): Mr. Duran, did you issue the 

citation because you believed the roof control plan was not being 

complied with? 

Mr. Duran (MSHA inspector): Yes. 

Mr. Reeves: Was the company violating a specific section? 

Mr. Duran: 75.200. 

Mr. Reeves: Was the company violating a specific section of its 

roof control plan? 

Mr. Duran: Yes. 

Mr. Reeves: What section is that? 

Mr. Duran: That is Page 7, Item C. 

Mr. Reeves: Item C at the top? 

Mr. Duran: Yes. 

Mr. Reeves: Was that the only section that was violated? 

Mr. Duran: Yes. 

Mr. Reeves: If that section had not been violated, you would not 

have issued a citation, is that correct? 

Mr. Duran: I didn't quite get that question. 

Mr. Reeves: If that Section C on Page 7 had not been violated, then 

you would have not issued a cit at ion; is that correct? 

Mr. Duran: I might have not. 

Mr. Reeves: Is it your testimony, that you issued the citation 

because you believed the company was in violation of Section C on 

Page 7? 

Mr. Duran: Yes. 

2853 
Mr. Reeves: ls it your testimony that you believed the company was 

in violation of any other section? 

Mr. Duran: No, only to allow people to go in by the last permanent 

support. 

Mr. Reeves: Well, you issued the citation because you believed the 

company was in violation of its roof control plan? 

Mr. Duran: Yes. 

Mr. Reeves: And is it correct, that the only section you believed 

the company violated was Section C, which is found on Page 7? 

Mr. Duran: Yes. 

Mr. Reeves: I would like you to examine Section Con Page 7 and tell 

us how the company violated that section? 

Mr. Duran: "Only those persons engaged in installing temporary 

supports shall be allowed to proceed beyond the last row of permanent 

supports." 

Mr. Reeves: Does your copy have a period there, or does it go on? 

Mr. Duran: No, it don't. 

Mr. Reeves: It continues on to say "until temporary supports are 

installed." 

Mr. Duran: Until temporary supports are installed. 

Mr. Reeves: What about the second section, did the company violate 

that? 

Mr. Duran: I do not know that. 

Mr. Reeves: And the third sentence, did the company violate that? 

Mr. Duran: I cannot answer because I didn't observe that. 

Mr. Reeves: And the fourth sentence, did the company violate that? 

Mr. Duran: We are talking about No. 4. 

Mr. Reeves: The fourth sentence of Paragraph Con Page 7? 

Mr. Duran: I cannot answer that either because I don't know they 

would have found hazardous conditions. 

2854 
Mr. Reeves: I would like to direct your attention to Sketch A. Did 

the company violate Sketch A in some fashion? 

Mr. Duran: Yes, they did. 

Mr. Reeves: And the provisions of Sketch A, did they violate that? 

Mr. Duran: The last permanent support was over four foot as required 

of the working face. 

Mr. Reeves: What particular sentence are you referring to? 

Mr. Duran: I'm referring to the maximum distance from the last roof 

bolts to the face shall equal four feet before continuous mining 

starts. 

Mr. Reeves: Wasn't the last permanent support within four feet of the 

face before the continuous mining started? 

Mr. Duran: I cannot answer that, because I didn't observe the mining 

cycle. 

Mr. Reeves: Do you know that it wasn't? 

Mr. Duran: No, I don't. 

Mr. Reeves: So you can't say the company violated that? 

Mr. Duran: No, sir. 

Mr. Reeves: When is the loading cycle completed? 

Mr. Duran: In this particular condition, I would say when the loading 

cycle is completed is when the rock is cleaned up. 

Mr. Reeves: And you saw the rock hadn't been cleaned up? 

Mr. Duran: No, sir. 

Mr. Reeves: Would you say the loading cycle had not been completed? 

Mr. Duran: In this particular condition, I would say, yes. 

Mr. Reeves: Did the company violate Sketch B in any way? 

Mr. Duran: I would say, no. 

Mr. Reeves: Did the company violate Sketch C in any way? 

Mr. Duran: I would say, yes. 

2855 
Mr. Reeves: And a particular prov1s1on was violated? 

Mr. Duran: In that only three temporary jacks were used. 

Mr. Reeves: Do you know how many were used? 

Mr. Duran: No, I don't. 

Mr. Reeves: So maybe more than three were used; 1s that correct? 

Mr. Duran: That 1s possible. 

Mr. Reeves: So you don't know how many were used? 

Mr. Duran: I only seen two, and I won't say they were not there. 

They were thrown over by the miner if they did use temporary 

supports there was only two that I could observe at the time of the 

citation. 

Mr. Reeves: Is that why you wrote the citation, because you believe 

only two temporary jacks were used? 

Mr-. Duran: No, I wrote the violation because people were allowed to 

go in by the last permanent support under the temporary support. 

Much of the trial time in this case involved questioning the inspector 

as to his interpretation of how the roof control plan and Section 75.200 

was violated. The sole issue appears to be that miners were allowed to go 

in by the last permanent support to advance the working face under 

temporary supports (Tr. 97 and 126). 

In earlier testimony, the inspector indicated that it was usual 

practice for the miner's helper to go beyond the permanent roof support, 

and under temporary supports to hold the end of the drill bit near the face 

(Tr; 101). Also, testimony was given that the "fire boss" was permitted to 

go to the entry and check for methane under temporary support. At the 

conclusion of the Secretary's case he argues that, although the plan does 

not specifically address this particular situation, it is obvious from 

tradition and from the inferences drawn from the plan itself, that this 

type of activity is prohibited (Tr. 150). 

If, as the Secretary argues, the Contestant's roof control plan or 

Section 75.200 does not address this particular situation, and the 

Secretary is relying on "tradition" or "inference" then an ambiguity exists 

here. In a similar case where the documents resulted in an absolute 

ambiguity in the points which were the crux of the case, it was determined 

that MSHA has a duty to immediately make an effort to clarify the plan so. 

that no quest ion exists in the future as to what is required for the safety 

of the miners. Secretary of Labor v. Penn Allegh Coal Company, Inc., 

Docket No. PITT 79-190-P; (February 28, 1979), 1 MSHC 2028. 

2856 
The roof control plan and Sectio11. 75.200 both provide that only those 

persons engaged in installing temporary supports shall be allowed to 

proceed beyond the last row of permanent supports until temporary supports 

are installed. After careful review of this approved roof control plan, I 

am persuaded that there are no specific restrictions that would notify the 

contestant that the activity described in the citation in this case was 

either a violation of the plan or Section 75.200. 

At the con~lusion of the presentation of the Secretary's case, Contestant moved for a summary judgment on the grounds that the Secretary had 

not established a prima facie case in that the Secretary failed to prove 

that the Contestant did not follow the approved roof control plan and 

violated Section 30 C.F.R. 75.200. 

At the hearing, I granted the Contestant's Motion and ordered that 

Citation No. 827208 be vacated. That bench decision is hereby AFFIRMED. 

Accordingly, it is ORDERED that the Citation is VACATED and the case 

DISMISSED. 

Distribution: 

Robert Cohen, Esq. 

Office of the Solicitor 

Administrative 

v~ Law cf. 

Judge 

~ 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

David B. Reeves, Esq. 

Kaiser Steel Corporation 

P.O. Box 217 

Fontana, California 92335 

2857 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

NICHOLAS RAMIREZ, 

v. 

W-P COAL COMPANY, 

OFFICE OF ADMINISTRATIVE lJ\W JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 9 J98J 

Complainant 

Complaint of Discharge, 

Discrimination or Interference 

Docket No. WEVA 81-248-D 

Respondent No. 21 Mine 

DECISION 

Appearances: Larry Harless, Esq., Charleston, West Virginia, on behalf 

of Complainant; 

Harold S~ Albertson, Esq., Hall, Albertson and Jones, 

Charleston, West Virginia, on behalf of Respondent. 

Before: Judge Stewart 

• 

I. Procedural Background 

This is a discrimination or interference proceeding arising under section lOS(c) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et~· (hereinafter, the Act). 

Nicholas Ramirez (Complainant) alleges that W-P Coal Company (Respondent) committed acts of discrimination or interference in violation of 

section lOS(c)(l) of the Act. The complaint was filed before the Federal 

Mine Safety and Health Review Commission (Commission) pursuant to section 

105(c)(3) of the Act following the Complainant's receipt of a written 

notification of the Secretary of Labor's determination that no violation 

of section lOS(c)(l) occurred. };/ 

};/ The Complainant, acting pro se, filed various documents between January 28, 

1981, and March 16, 1981, which collectively constitute the complaint of discrimination or interference. All documents, except the one filed on January 28, 

1981, were filed in response to various orders to show cause issued by Chief 

Administrative Law Judge James A. Broderick. The Respondent's answer was filed 

on April 3, 1981. 

It is undisputed that the Complainant was not suspended or discharged by 

the Respondent (~, ~·_&•, Tr. 67). The claim, as set forth in the various 

documents constituting the complaint, is one of discrimination or interference 

not entailing suspension or discharge. 

2858 
The hearing in this matter was held on June 17, 1981, in Charleston, 

West Virginia, with representatives of both parties present and participating. The Complainant called three witnesses: Nicholas Ramirez, Charles 

Blankenship, and Thomas Marcum. The Respondent called one witness, Kenneth 

Cooper. Both parties submitted posthearing briefs. 

II. Findings of Fact and Conclusions of Law 

The Complainant has been employed as a roof bolter at the Respondent's 

No. 21 Mine for over 4-1/2 years. 

When the Complainant arrived on the Second South Section on November 5, 

1980, he was directed by one of his supervisors, William Meade, .to drill test 

fn. 1 (continued) 

One of the documents which is part of the complaint is a copy of a 

February 2, 1981, letter from the Complainant to the Respondent addressed to 

the attention of Mr. Joe. Bragg, foreman; Mr. Ray Herndon, superintendent; and 

Mr. Kenneth Cooper, general manager. The letter advises the Respondent of the 

Complainant's disagreement with the Secretary of Labor's determination that no 

violation of section 105(c) occurred, and states that the Complainant has 

"requested that the [Convnission] review my case." The letter further states 

that "I have filed this complaint because of your (Mr. Cooper's) decision to 

have me discharged because of my opinion (requested by MSHA Mine Inspector) 

on roof conditions on my section." 

Another document which is part of the complaint is a February 23, 1981, 

letter from the Complainant to the Commission which states, in part, as 

follows: 

"The company more or less requested that I keep quiet on safety or loose 

[sic] my job. I feel that I was wronged in picking me as a guinny [sic] pig 

t~how the other men (union members) what could happen to them if they spoke 

up on safety problems. 

"I was not the person who requested the safety inspection, but I was the 

one who they threatened to punish for it. If these practices by the company 

continue, I fear not only for the safety of myself but for my fellow workers 

who will be reluctant to report safety violations for fear of their jobs." 

Another document which is part of the complaint is a March 12, 1981, 

statement by the Complainant setting forth a detailed statement as to the 

facts upon which the claim of discrimination or interference is based. In 

the statement, the Complainant maintains that "I fear not only for myself but 

[also] for my fellow workmen who must work under the fear of being punished 

for reporting safety violations." 

As to the relief requested, the February 23, 1981, letter requested 

"$20,000 in damages for myself and my family stemming from the pressures put 

on us by the company (W-P Coal Co.)." The posthearing brief filed by the 

Complainant, acting through counsel, requests that the "complaint be upheld; 

that the company be required to post appropriate notices; that reasonable 

attorney fees and other costs incident to this matter be awarded; and that 

Your Honor grant such other and further relief as seems proper and just." 

2859 
holes in the Nos. 1 and 2 Entries. The test drilling confirmed reports that 

the roof therein was bad. Mr. Meade then directed the Complainant to bolt 

No. 3 Entry at 3 Left Break. Upon entering that area, the Complainant 

observed a board lying in the break which read "needs six foot bolts." After 

the Complainant drilled test holes in the No. 3 Entry, he discovered that 

the roof had broken at 5 feet and conveyed this information to Mr. Meade. 

Mr. Meade ordered the Complainant to proceed elsewhere. 

Before the Complainant left the area, Joe Bragg, the assistant min~ foreman, ordered him to drill yet another test hole. Mr. Bragg then ordered the 

Complainant to bolt the area with 30-inch bolts. The Complainant questioned 

Mr. Bragg's decision, pointing out that the roof was broken, but Mr. Bragg 

responded "we'll take care of it later on." The Complainant performed the 

work as ordered until Mr. Meade returned and ordered the Complainant to work 

elsewhere. 

Federal mine inspector Thomas Marcum conducted a regular inspection at 

the Respondent's No. 21 Mine on November 5, 1980. While conducting this 

inspection, he was informed, during a telephone conversation with his supervisor, of a complaint that had been made during the earlier shift concerning 

the roof conditions in the Nos. 1 and 2 Entries on Second South Section. He 

proceeded to the Second South Section accompanied by Charles Blankenship, the 

chairman of the local UMWA safety committee and an employee of the Respondent, 

Mr. Hawkins, the Respondent's safety representative, and Ray Herndon, the 

superintendent of the Respondent's property in West Virginia. After a number 

of test holes were drilled in the roof and it was confirmed that the roof in 

the two entries had broken, the inspection party discussed the alternative 

methods for supporting the roof. Inspector Marcum, Mr. Blankenship, and 

management ultimately agreed that the use of straps, headers, legs, and pins 

would be appropriate. After this agreement had been reached, Inspector 

Marcum asked the Complainant for his opinion. The Complainant replied that 

he did not think that the methods proposed would be safe. As a consequence, 

Inspector Marcum decided to call in a Mine Safety and Health Administration 

(MSHA) roof-control specialist and obtain his opinion. Management agreed, 

dangered off the Nos. 1 and 2 Entries and directed that work continue only 

on the left side of the mine. 

Before the inspector left, the Complainant informed him of the conditions in the No. 3 Entry at 3 Left Break, including Mr. Bragg's instruction 

that 30-inch roof bolts be used. Inspector Marcum thereafter told Mr. Bragg 

that he wished to speak with him outside. 

If the roof conditions were discussed by Inspector Marcum and mine 

management either on the way out of the mine or upon reaching the surface, 

they did so casually. Inspector Marcum, Mr. Blankenship, Mr. Hawkins, 

Mr. Herndon, and Mr. Kenneth Cooper gathered in the trailer which served 

as the mine office. Kenneth Cooper was the general manager of the Respondent's property in West Virginia. Inspector Marc tnn, Mr. Blankenship, and 

Mr. Hawkins were in one office, either filling out forms or eating lunch. 

Messrs. Herndon and Cooper went into the adjoining office, closing the door 

2860 
behind them. These two remained in that office for approximately 5 to 

10 minutes. Inspector Marcum testified that some loud talking went on in 

Mr. Cooper's office, but that he did not recall anything that was said. 

After Mr. Herndon left Mr. Cooper's office, and while Mr. Blankenship 

sat approximately 3 to 5 feet from the door eating his lunch, Mr. Blankenship 

overheard Mr. Cooper make a telephone call and ask for Cleve Campbell, 

Director of Public Relations for Picketts and Mathes Company. 

Mr. Blankenship heard Mr. Cooper say that "one man has the whole operation 

shut down up here".and asked if he had grounds to discharge him. 

Mr. Blankenship, who testified that Mr. Cooper talked on the telephone in 

a "hollering manner," believed that Kenneth Cooper intended for him to 

overhear the conversation. 

Mr. Cooper testified that he called Cleve Campbell because he felt that 

management "had exercised every option." Mr. Cooper knew Mr. Blankenship 

was in the adjoining office but the telephone call was not staged for 

Mr. Blankenship's benefit. Although Mr. Blankenship testified that the 

office door was open, the testimony of Mr. Cooper and that of the disinterested witness Inspector Marcum that the door was closed is more persuasive. 

However, notwithstanding the fact that the office door was closed, Mr. Cooper 

testified that he has no doubt that Mr. Blankenship overheard the conversation 

because the office door was thin. 

Mr. Cooper called Mr. Campbell because he believed that the Complainant 

had caused a drop in production. Mr. Campbell told Mr. Cooper to get the 

facts, weigh them and make a decision. When the shift ended, Mr. Cooper 

asked his foremen whether they had directed the Complainant to pin the 

affected area and was told that they had not. Because the Complainant had 

not disobeyed orders, Mr. Cooper felt that he did not have grounds to 

suspend him with intent to discharge. Mr. Cooper testified that "that was 

the end of it." 2/ 

When the shift concluded, the Complainant found Mr. Bragg waiting for 

him in the parking lot. Mr. Bragg asked the Complainant what he had told 

Inspector Marcum. The Complainant responded that he had told Inspector 

Marcum what Mr. Bragg had ordered him to do. Mr. Bragg then accused the 

Complainant of lying. The Complainant responded that he would not lie for 

Mr. Bragg to keep Mr. Bragg out of trouble because Mr. Bragg knew that what 

he did was wrong. 

2/ There is some uncertainty in the record as to whether Mr. Cooper received 

accurate information when the inspection party returned to the surface. The 

Complainant had informed Inspector Marcum that Mr. Bragg had instructed him 

to install 30-inch roof bolts in the No. 3 Entry at 3 Left Break. However, 

Mr. Cooper may have been told, or he may have concluded from what he was 

told, that the Complainant had been ordered to bolt the roof in the Nos. 1 

and 2 Entries. However, it is clear that the Complainant was never ordered 

to install roof bolts in the Nos. 1 and 2 Entries. 

2861 
Mr. Blankenship observed Joe Bragg and the Complainant in the parking 

lot. Mr. Blankenship testified that Mr. Bragg was "kind of yelling." However, Mr. Blankenship did not hear what was said. After Mr. Bragg left, 

Mr. Blankenship informed the Complainant of the telephone call and stated 

that he would contact Richard Cooper, the union safety representative, for 

assistance. 

On the following day, an inspection party comprised of Inspector Marcum, 

Mr. Alitzer (Inspector Marcum's supervisor), Mr. J. C. Wharf (an MSHA roofcontrol specialist), Mr. Griffin (a state roof-control man), Richard Cooper, 

the Complainant, Clifford Tomlin (the Complainant's helper), Mr. Herndon, 

Mr. Meade, Mr. Bragg, and Mr. Blankenship returned to the Second South Section. Kenneth Cooper did not enter the mine. Earlier that morning, Kenneth 

Cooper was asked by Mr. Alitzer if somebody was "going to lose their job 

over this." Mr. Cooper responded to the question by asking Mr. Alitzer what 

he was referring to. Mr. Alitzer then said "We're here because we heard 

somebody was going to be discharged." Mr. Cooper stated that no one was to 

be discharged. 

The inspection party observed the condition and discussed resolution of 

the problem. They agreed among themselves that the area should be supported 

with 5-foot roof bolts, and with "headers and legs." }_/ This conclusion was 

the same as that reached on November 5. The miners working in the area were 

called together and asked if they thought this would be safeo No one 

responded. Mr. Wharf then asked the Complainant what he thought of this 

method of supporting the roof. The Complainant responded with the following 

statement: "Well, I heard the company was trying to fire me yesterday for 

what I had suggested or the statement that I had made and I don't want to 

say anything about it today." 

One week later, Ray Herndon approached the Complainant while the 

Complainant and his helper, Clifford Tomlin, were putting up headers and were 

roof bolting. There were four or five other union men in the area helping to 

put up the headers. Mr. Herndon watched the work for a while and then asked 

the Complainant who had told him that the company was trying to fire him. The 

Complainant "didn't say anything." Mr. Meade, who was present at the time, 

said, "Well, I guess he don't want to tell you Ray; he's not saying anything." 

The Complainant replied, "No, I don't." Herndon then said, "Well, there must 

be something wrong with you." The Complainant replied, "No, Ray. There's not. 

What's wrong up here is bad management; you've got bad management up here." 

Mr. Herndon "got kind of mad at that." The Complainant "just went about his 

job and started to bolt the headers." Mr. Herndon ordered Clifford Tomlin to 

shut the machine off, but the Complainant turned the machine off before Tomlin 

could do so. Mr. Herndon told the Complainant that, if the conditions were 

}_/ Mr. Blankenship testified that the Nos. 2 and 3 Entries were timbered off 

as a result of the November 6, 1980, inspection. He further testified that 

mining continued in the No. 1 Entry which was headered and timbered, and that 

"forty-some inch" pins were used to bolt the No. 1 Entry. 

2862 
as bad as the Complainant thought, he should find employment somewhere else. 

Mr. Herndon stated that the Complainant was given his job through Pedro Mendez, 

a night foreman at the mine who was a distant relative of the Complainant. 'lb.e 

Complainant interpreted the statement as implying that he was somehow indebted 

to the company for hiring him, and he responded by stating, "Well, what does 

that mean, Ray; am I supposed to kiss your butt or something for it * * *·" 

When Mr. Herndon attempted to continue arguing, the Complainant did not say 

anything in response because he felt that Mr. Herndon was trying to "start 

something up." This opinion as to Mr. Herndon' s motive stemmed from the 

Complainant's belief that the Respondent was attempting to discharge him. 

The Complainant finished his shift. 

Mr. Herndon reported this incident to Mr. Cooper. He stated that he had 

gone to the Complainant because he "want[ed] things to be different" but when 

he attempted to talk with the Complainant, the latter began cursing and said 

that he was not a fit mine manager; that the Complainant had called Mr. Herndon 

a liar in the presence of other miners but, when questioned, had failed to 

identify the occasions on which Mr. Herndon had lied. Mr. Herndon also told 

Mr. Cooper that he wanted to bring suit against the Complainant because he 

felt that the statements jeopardized his job. Mr. Cooper advised Mr. Herndon 

to simply forget the incident. 

Section lOS(c)(l)•of the Act- provides as follows: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or because 

such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 

or because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or 

is about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 

In order to establish illegal discrimination or interference within the 

meaning of section lOS(c)(l) of the Act, the Complainant must prove by a 

preponderance of the evidence: (1) that he engaged in protected activity, 

and (2) that an adverse action was taken against him which was motivated in 

2863 
any part by the protected activity. Secretary of Labor ex rel. David Fasula 

v. Consolidation Coal Company, 2 FMSHRC 2786, 2 BNA MSRC 1001, 1980 CCR OSRD 

par. 24,878 (1980), rev'd. on other grounds sub nom. Consolidation Coal 

Company v. Marshall, No. 80-2600 (3rd Cir., filed October 30, 1981); 

Secretary of Labor ex rel. Thomas Robinette v. United Castle Coal Company, 

3 FMSHRC 803, 2 BNA MSRC 1213, 1981 CCR OSRD par. 25,287 (1981); Secretary 

of Labor ex rel. Johnny N. Chacon v. Phelps Dodge Corporation, No. WEST 

79-349-DM (FMSHRC, filed November 13, 1981). 

The Complainant maintains in his posthearing brief that he engaged in 

protected activity on November 5, 1980, when he voiced his disagreement with 

the decision reached by Inspector Marcum and the other members of the inspection party regarding correction of the roof problems in the Nos. 1 and 2 

Entries. The Complainant argues that the Respondent's management employees 

reacted to such protected activity in such a fashion as to discriminate 

against him and interfere with the exercise of his statutory rights under 

the Act; and that such unlawful discrimination or interference can reasonably be expected to have a chilling effect on the exercise of statutory 

rights by other miners in that they will be deterred either from reporting 

safety violations or from expressing their concerns over safety matters. 

The initial question presented is whether the Complainant engaged in 

protected activity on No~ember 5, 1980. The evidence establishes three 

separate instances of protected activity occurring on that dayo The first 

instance of protected activity occurred when the Complainant questioned 

Mr. Bragg's decision to use 30-inch roof bolts iI1 the Noo" 3 Entry of the 

Second South Section. The second instance occurred when the Complainant 

voiced his disagreement with the decision reached by Inspector Marcum and 

the other members of the inspection party regarding the roof problems in 

the Nos. 1 and 2 Entries. In challenging the proposed solution, the 

Complainant engaged in protected activity. 4/ The third instance of protected activity occurred when the Complainant informed Inspector Marcum of 

the roof conditions in the No. 3 Entry and of Mr. Bragg's instructions to 

use 30-inch roof bolts there. 

The second question presented is whether the Respondent either discriminated against the Complainant or otherwise interfered with the exercise of 

the Complainant's statutory rights. The burden is upon the Complainant to 

prove by a preponderance of the evidence that the Respondent took adverse 

action against him and that such action was motivated in any part by the 

Complainant's participation in protected activityo 

It is undisputed that the Respondent neither suspended nor discharged 

the Complainant. Instead, the Complainant argues that adverse action was 

4/ This is the sole incident of protected activity expressly relied upon by 

the Complainant in his posthearing brief as forming the basis for the claim 

of discrimination or interference. 

2864 
taken against him in that he was the "recipient of a series of threats or 

verbal reprisals merely because he gave an honest answer to a directed 

question by a federal safety inspector" (Complainant's Posthearing Brief, 

p. 1). The so-called series of threats or verbal reprisals which allegedly 

constitute the adverse action taken against the Complainant allegedly 

occurred when the Respondent's agents allegedly (1) berated the Complainant, 

(2) threatened him with the loss of his job through his safety committeeman, 

and (3) impliedly threatened him with the loss of his job on November 12, 

1980, because he luid participated in a Federal mine safety inspection. For 

the reasons set forth below, I conclude that no threats or verbal reprisals 

were directed against the Complainant in retaliation for his having engaged 

in protected activities. 

The incident in which the Respondent's agent allegedly berated the 

Complainant occurred at the end of the November 5, 1980, day shift when 

Mr. Bragg, the assistant mine foreman, confronted the Complainant on the 

parking lot (Complainant's Posthearing Brief, p. 2). The relevant facts and 

circumstances surrounding the incident show that the Complainant was never 

ordered to bolt the roof in the Nos. 1 and 2 Entries. However, early in the 

day shift on Novembe·r 5, 1980, Mr. Bragg ordered the Complainant to perform 

roof bolting in the No. 3 Entry at 3 Left Break. Mr. Bragg ordered the 

Complainant to use 30-inch roof bolts despite the fact that the roof was 

broken at a depth of apRroximately 5 feet. The Complainant questioned 

Mr. Bragg's decision, but performed the work as ordered until told by 

Mr. Meade to work elsewhere. 

Later that shift, during the inspection of the Second South Section, 

the Complainant informed Inspector Marctnn of the conditions in the No. 3 

Entry at 3 Left Break and of Mr. Bragg's instructi~n to use 30-inch roof 

bolts. The Complainant subsequently overheard Inspector Marctnn tell 

Mr. Bragg that he wanted to talk to him outside. 

After the November 5, 1980, day shift, Mr. Bragg confronted the 

Complainant on the parking lot. He asked the Complainant what he had said to 

Inspector Marcum and accused the Complainant of lying to the inspector. 

Mr. Bragg left after the Complainant responded forcefully. 

The Complainant has failed to prove either that this confrontation 

amounted to adverse action or that it was motivated in any part by the 

Complainant's participation in protected activity. First, the 

Complainant's characterization of the parking lot episode is palpably 

inaccurate. The Complainant argues that the confrontation on the parking 

lot addressed the incident in which he voiced his disagreement with the 

decision reached by Inspector Marcum and the other members of the inspection party regarding correction of the roof problems in the Nos. 1 and 2 

Entries. In his posthearing brief (p. 2), Complainant states: 

Surely the accusation of a supervisor to an employee that 

the latter is "lying" about his participation in a safety 

inspection, when all the employee did was to voice his 

solicited, unenforceable opinion to a government safety 
inspector, constitutes a clear violation of the Act and 

undermines its effective enforcement. 

The record clearly discloses that Mr. Bragg was not motivated by such 

considerations. Additionally, it should be noted that during the confrontation neither the Complainant nor Mr. Bragg addressed the incident of protected activity which the Complainant relies upon in his posthearing brief 

as forming the basis for the claim of unlawful discrimination or interference. 

Second, Mr. Bragg did not challenge the Complainant for his having spoken 

with Inspector Marcum concerning the situation in the No. 3 Entry at 3 Left 

Break. Rather, he disputed only the accuracy of that commllllication and the 

truthfulness of the Complainant. 'J../ The Complainant did not establish that 

Mr. Bragg attempted to intimidate or threaten the Complainant in any manner. 

In fact, the record indicates that Mr. Bragg walked away from the Complainant 

and did not raise the matter again. To put things in complete perspective, 

note should be taken of the inflamatory statements made by the Complainant 

to Mr. Herndon on November 12, 1980, in which the Complainant vilified 

Mr. Herndon in the presence of other miners, cursing and berating him, and 

calling him a liar and an unfit mine manager. 

In view of the foregoing, the Complainant's assertion that Mr. Bragg's 

action amounted to a violation of section 105(c)(l) of the Act is rejected. 

The Complainant also argues that one o.f the Respondent's agents employed 

Mr. Blankenship, the union safety committeeman 9 as a conduit to threaten the 

Complainant with the loss of his job. The Complainant is referring to the 

November 5, 1980, telephone call placed by Mr. Kenneth Cooper to Mr. Cleve 

Campbell from the trailer which served as the mine office, a telephone call 

which concerned the possibility of discharging the Complainant. The 

Complainant maintains that Mr. Cooper either staged the telephone call exclusively for Mr. Blankenship's benefit or at least intended for Mr. Blankenship 

to overhear the call, and, accordingly, argues that Mr. Cooper relied upon 

Mr. Blankenship to unwittingly act as a company agent by relaying the threat 

to the Complainant. 

The specific facts surrounding the alleged threat show that during the 

course of the November 5, 1980, inspection of the Second South Section, mine 

management, Inspector Marcum, and the union safety representative reached a 

conclusion as to the proper method of supporting the bad roof in the Nos. 1 

and 2 Entries. When Inspector Marcum questioned the Complainant, he objected 

to the methods agreed upon by the others. As a result, the inspector and 

management agreed to danger off the area and to postpone final decision as 

to the proper methods for support until the following day when the opinion 

of a roof-control expert could be obtainedo Work was to continue in another 

area of the mine. 

5/- See footnote 2, supra. 

2866 
After this decision had been reached, members of the inspection party 

proceeded to the mine office. Mr. Ray Herndon went into Mr. Kenneth Cooper's 

office, closing the door after himself. Inspector Marcum, Mr·. Hawkins, and 

Mr. Blankenship remained in the adjoining office. After a few minutes, 

Mr. Herndon left Mr. Cooper's office, and Mr. Cooper then placed a phone 

call to Cleve Campbell. Mr. Cooper was aware that Mr. Blankenshi·p and 

Inspector Marcum were in the adjoining office and that the conversation 

might be overheard by them. Although· the door to the office was closed, 

the construction of the trailer which housed the offices was such that 

Mr. Blankenship did overhear the conversation. Although Inspector Marcum 

was in the room with Mr. Blankenship, he did not know that Mr. Cooper was 

talking on the telephone and he did not overhear what was said. 

Mr. Cooper told Mr. Campbell of the earlier safety complaint filed with 

MSHA by some unknown individual concerning the roof conditions in the Nos. 1 

and 2 Entries of Second South Section, ~/ of the subsequent inspection of 

the two entries, and of the concurrence of all but the Complainant as to the 

proper method of roof support. Mr. Cooper asked if he had grounds to discharge the Complainant. Mr. Campbell responded by asking whether the 

Complainant had disobeyed direct orders, and he advised Mr. Cooper to gather 

and weigh the facts and to thereafter make a decision. At the end of the 

shift, Mr. Cooper questioned his foremen and found that the Complainant had 

not disobeyed a direct.order to work. He therefore dropped the matter. J_/ 

As noted above, the gist of Complainant's position here is that 

Mr. Cooper. intended Mr. Blankenship to overhear, his conversat:lon with 

Mr o Campbell, to comprehend it as a: threat and to -relay the threat to 

the Complainant. According to the Complainant, Mr. Cooper intended the 

Complainant to be influenced thereby to drop his objections to the method 

proposed for supporting the roof in the Second South Section and hesitate 

to voice safety complaints in the future. 

Mr. Cooper testified, and it is accepted herein, that he did not stage 

a demonstration for Mr. Blankenship's benefit. He had no intention of conveying a threat either to Mr. Blankenship or to the Complainant through the 

agency of Mr. Blankenship. The surrounding circumstances lend credence to 

Mr. Cooper's assertion that he did not intend to threaten the Complainant. 

To begin with, Mr. Cooper knew that Inspector Marcum was also in the adjoining office and that he might overhear the telephone call. It is highly 

improbable that he would threaten a miner for safety-related activity within 

hearing of a representative of the Secretary of Labor, the entity with 

principal responsibility for ensuring compliance with section 105(c) of the 

6/ Mr. Cooper testified that he never discovered the -identit~ of the indi~ 

vidual who lodged the complaint with MSHA concerning xhe roo£--conditions in 

the Nos. 1 and 2 entries of Second South Section (Tr .• 80-81). It appears 

that Mr. Cooper also discussed this unidentified individual with Ml·. Campbell 

during their November 5, 1980, telephone conversation (see Tr.- 9lp lines 5-8). 

!_/ See footnote 2, supra. --

2867 
Act. Furtherinore, the testimony of both Mr. Cooper and Inspector Marcum 

establishes that the door between the offices was closed. That the door 

was closed further reduces the likelihood that Mr. Cooper intended to have 

Mr. Blankenship overhear his conversation. 

In addition to the foregoing, the telephone conversation was limited to 

a discussion of the propriety of discharging the Complainant. Clearly, a 

decision to discharge had not been made. The question was raised as to 

whether grounds for discharge existed and the conversation concluded with· 

the decision to seek more information. 

Mr. Cooper's follow-up actions are also inconsistent with the theory 

that the conversation was a threat. When Mr. Cooper questioned the 

Complainant's supervisors and discovered that grounds for discharge did 

not exist, he dropped the matter. 

Finally, it is noted that Mr. Herndon initiated his conversation with 

the Complainant on November 12, 1980, by asking who had told him that he was 

to be discharged for having voiced a safety complaint. Mro Herndon left 

Mr. Cooper's office immediately prior to the telephone call to Mro Campbell 

and was present on November· 6 when the Complainant stated that he was to be 

discharged for his safety complaints. If it was the intent of mine manage~ 

ment to have threatened ~he Complainant on November 5, it is likely that 

Mr. Herndon would have been aware of the threat. His posing the question 

to the Complainant on November 12, 1980, is inconsistent with his having had 

such knowledge. 

In view of the foregoing, I conclude that Mro Cooper did not make the 

telephone call for the purpose of having Mr. Blankenship overhear the telephone conversation and conveying it to the Complainant. I further conclude 

that in conducting the telephone call, Mr. Cooper neither threatened nor 

intended to threaten the Complainant, either directly or indirectly, with 

the loss of his job. Accordingly, the telephone conversation did not constitute discrimination or interference in violation of section lOS(c)(l) of 

the Act. 

The Complainant also maintains that an agent of the Respondent, Mr. Ray 

Herndon, impliedly threatened him with the loss of his job on November 12, 

1980, because he had participated in a Federal mine safety inspection. The 

Complainant argues that one "perceive[sJ the unmistakable hues of illegal 

reprisal" in this conversation. 

The record shows that Mro Herndon approached the Complainant in a conciliatory manner and attempted to discuss the Complainant's allegation that 

the company was trying to discharge him. The Complainant made little or no 

effort to accommodate Mr~ Herndon. The testimony of both the Complainant and 

Mr. Cooper established that the Complainant was antagonistic in the presence 

of other miners to the point of cursing and berating Mr. Herndon, and calling 

him both a liar and an unfit mine manager. It is Complainantws contention 

that Mr. Herndon threatened him by suggesting 11 that, if the conditions were 

2868 
as bad as [the Complainant] thought they were * * * maybe [the Complainant] 

should find employment somewhere else"; and by reminding him that he had 

obtained his job through a company supervisor who was also one of the 

Complainant's distant relatives. However, Mr. Herndon made these statements 

after the Complainant antagonistically stated that management at the mine was 

bad. Mr. Herndon reported to Mr. Cooper that the Complainant had specifically stated in the presence of other miners that Mr. Herndon was both a liar 

and an unfit mine manager. Mr. Herndon's statements are mild even taken out 

of context. When considered in context, they cannot be considered a threat 

or reprisal of any sort. 

Additionally, a preponderance of the evidence does not support the position that the Respondent, acting through Mr. Herndon, discriminated against 

the Complainant or interfered with the exercise of his statutory rights when 

Mr. Herndon approached the Complainant and sought the identity of the individual who had informed him that the Respondent was trying to discharge him. 

As noted above, Mr. Herndon was aware of the November 5, 1980, telephone conversation between Mr. Kenneth Cooper and Mr. Cleve Campbell during which the 

latter directed the former to seek more information and to thereafter reach a 

decision respecting whether or not to discharge the Complainant. Mr. Cooper 

followed Mr. Campbell's instructions and concluded that grounds for the 

Complainant's discharge pid not exist. The November 5, 1980, telephone call 

was intended to be a communication between or among members of the 

Respondent's management, and was not intended for dissemination outside mine 

management. .Additionally, it app.ears that Mro Cooper's further inquiries as 

to whether the Complainant had disobeyed orders were not intended for disclosure to anyone outside mine management. 

Mr. Herndon approached the Complainant on November 12, 1980, because he 

"want[ed] things to be different," which has been construed to mean that he 

approached the Complainant in a concil-iatory manner. This at least arguably 

implies that the question as to the informant's identity was directed toward 

ultimately reassuring the Complainant that the informant had been misinformed 

and that the Respondent was not trying to discharge him. It is also arguable 

that Mr. Herndon asked the question, at least in part, in order to determine 

the identity of the individual who had "leaked" confidential information. 

In summary, I conclude that although the Complainant engaged in three 

instances of protected activity on November 5, 1980, he has failed to establish that the Respondent illegally discriminated against him or interfered 

with the exercise of his statutory rights in violation of section 105(c)(l) 

of the Act as a result of his having engaged in such protected activities. 

Accordingly, the complaint will be dismissed. 

Proposed findings of fact and conclusions of law which are not expressly 

or impliedly adopted herein are rejected on the grounds that ·i:hey are, in 

whole or in part, contrary to the facts and law or becuase they are immaterial 

to the decision in this case. 

2869 
ORDER 

Accordingly, IT IS ORDERED that the above-captioned complaint be, and 

hereby is, DISMISSED. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Larry Harless, Esq., P.O. Box 1313, Charleston, WV 25328 (Certified 

Mail) 

Harold Albertson, Esq., Hall, Albertson and Jones, P.O. Box 1989, 

Charleston, WV 25327 (Certified Mail) 

2870 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 3 0 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 80-273 

Assessment Control 

No. 15-07295-03013 

v. 

Hartiki Surface Mine 

MARTIKI COAL CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

George Drumming, Jr., Esq., and Darryl A. Stewart, Esq., 

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

Petitioner; 

William G. Francis, Esq., Francis, Kazee and Francis, 

Prestonsburg, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued March 12, 1931, as &'!lended April 30, 

1981, July 15, 1981, and August 5, 1981, a hearing in the above-entitled proceeding was held on May 6, 1981, and October 7, 1981, in Prestonsburg, Kentucky, 

under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d). 

After the parties had completed their presentations of evidence, I rendered the bench decisions which are reproduced below. Two of the bench decisions are contained in the first volume of transcript and the third decision is 

contained in the second volume of transcript. 

Citation No. 707702 1/8/80 § 71.603(c)(Tr. 48-52) 

In order to rule on Mr. Francis' raotion that Citation No. 707702 

be dismissed for failure of the Government to prove that a violation of 

section 71.603(c) existed, I should make some findings of fact. 

1. Inspector Dingess, on January 8th 1980, which was a Tuesday, 

examined the shop area belonging to Martiki Coal Corporation. At that 

time, he issued Citation No. 707702 stating that the drinking water 

fountain was not being maintained in a sanitary condition. He subsequently modified the citation by issuance of a subsequent action sheet 

on February 14, 1980, in which he changed the original section alleged 

to have been violated from section 71.602(c) to section 71.603(c). 

2. There was introduced in evidence as Exhibits A and B two 

pictures which show that the water fountain was adjacent to a refrigerator. The inspector stated that the citation was primarily issued 

2871 
on the ground that an excessive amount of dust, in his opinion, had 

been allowed to accumulate on the drinking cups which were hanging 

at the drinking fountain. The cups had been inverted and the dust 

was on the outside of the cups. The inspector also said that an 

excessive amount of dust was on the valve which is pressed to obtain 

water from the inverted container of water on top of the fountain. 

The inspector did not know how long it had been since the drinking 

fountain had been cleaned, but he pressed the valve and water did 

come out of the. fountain. Therefore, the fountain was capable of 

being used. The inspector admitted that the refrigerator contained 

a supply of sanitary water containers in individual cups. 

3. Respondent's witness, Justice, testified that he is the 

welding supervisor in the area adjacent to the location of the water 

fountain and refrigerator and he stated that the man who normally did 

the cleaning of the fountain had been off for a period of time and had 

been unable to clean the fountain, but that he had assigned other people 

to clean the bathrooms and the fountain from time to time. He was uncertain as to how long it had been since the cleaning person had become 

sick, but he testified that he believed that the fountain had been cleaned 

within a week prior to the inspector's writing of the citation and that 

in his opinion more dust would have been on the fountain than was there 

on the day the citation was written if the fountain had not been cleaned 

for 7 days. 

I think those are the basic facts on which a decision will have to 

be based. The section at issue, namely, 71.603(c), reads as follows: 

"Drinking fountains from which water is dispensed shall be thoroughly 

cleaned once each week." The inspector definitely satisfied the first 

part of that provision in that he tested the drinking fountain and found 

that water could be dispensed through it, and while the respondent's 

evidence shows that some of the employees had been told to use the water 

in the refrigerator until the cleaning employee was able to resume his 

duties,or until someone had been designated permanently to do his work 

in his absence, the fact remains that the water fountain could have been 

used by other employees who had not been advised to get their water from 

the refrigerator. 

The difficulty I have with finding a violation, of course, is that 

the last part of section 71.603(c) provides that the fountain shall be 

thoroughly cleaned once each week. The inspector did not find out for 

certain that the fountain had not been cleaned within a week's time. 

The gap in his proof, therefore, as to whether the fountain had been 

cleaned for a week is filled in by Justice's testimony which indicated 

that in his opinion the fountain had been cleaned within a period of 

1 week prior to the time the citation was written. 

I am aware that the Commission has been very liberal in the interpretation of the standards. For example, in Ideal Basic Industries, 

Cement Division, 3 FMSHRC 843 (1981), the Commission dealt with a citation which had alleged a violation of section 56.9-2, which provides 

that equipment defects affecting safety shall be corrected before the 

equipment is used. In that decision the Commission interpreted that 

2872 
section to mean that use of a piece of equipment containing a defective 

component that could be used, and which if used, could affect safety, 

constitutes a violation of section 56.9-2. The Commission said that 

its interpretation of that section would come closer to requiring 

corrective action before an accident occurred than the broader interpretation which had been used by an administrative law judge. The Commission then made a very broad interpretation of that section by saying 

that if equipment with defects affecting safety is located in a normal 

work area fully capable of being operated, that constitutes use within 

the meaning of that section. So I am sure, based on what the Commission 

said in that case, by analogy the Commission would take a very broad 

interpretation of the section that's before me in this instance, but 

I don't see how I can ignore language stating that fountains "shall be 

thoroughly cleaned once each week." 

Since I have the testimony of an inspector who is not certain that 

the fountain had been cleaned within a week's period and I have the 

opinion of the welding supervisor, who worked in the area, who says that 

it was cleaned in less time than a week prior to the citation, I believe 

that I am required to rely upon his testimony for the latter part of 

that section and find that no violation of section 71.603(c) was proven. 

That does not mean that I am critical of the inspector for having issued 

the citation because the Commission has constantly pointed out that the 

purpose of the regulations is to achieve healthful and safe conditions 

in coal mines and surface facilities and the inspector's testimony shows 

that this particular drinking fountain needed attention and probably the 

inspector did the company a service in issuing the citation by showing 

them that they were not cleaning this fountain as often as was desirable, 

even though it may have been cleaned 7 days before January 8, 1930. Since 

I have found that no violation was proven the Proposal for Assessment of 

Civil Penalty is dismissed to the extent that it alleges a violation of 

section 71.603(c) in Citation No. 707702. 

Citation No. 708229 1/8/80 § 77.1605(d) (Tr. 105-113) 

I shall make some findings of fact upon which my decision will be 

based: 

1. On January 8, 1980, Inspector Barry Lawson inspected Martiki 

Coal Corporation's surface mine. While the inspector was checking equipment, a Caterpillar 992 end loader was driven into the area where the 

inspector was located. The inspector checked the end loader and then 

discussed with the operator of the end loader whether the operator had 

any problems that the inspector had not noted and the operator of the 

end loader stated that there was a light on the top of the cab which 

was not working and that the operator would appreciate it if the inspector would have the company replace that light because it helped him 

when he was operating the end loader. The inspector had noted that the 

light had been damaged and was not functioning but he wanted to determine 

whether the lack of light was a problem for the operator. When the operator indicated to the inspector that he would appreciate having the 

light replaced, the inspector wrote Citation No. 703229 at 9:45 p.m., 

alleging a violation of section 77.1605(d). 

2873 
2. There was introduced in evidence as Exhibit C a picture of the 

end loader here involved after the right topmost light had been replaced. 

The end loader not only has two topmost lights on each corner of the 

uppermost part of the cab but also has dual headlights on each side of 

the cab located at the bottom of the windshield. The evidence shows that 

all of the lights were functional on the end loader except for the topmost corner light at the top of the cab. 

3. Respondent's testimony shows that the Caterpillar Company produces the end loader of the type here involved with what is known as 

standard lighting and also offers optional lighting. If the Caterpillar 

992 end loader is ordered with standard equipment only the dual lights 

at the bottom of the windshield on each side of the cab are provided. 

The testimony of one of respondent's witnesses was to the effect that 

respondent always ordered its 992 end loaders with the two optional headlights at the top of the cab because in respondent's opinion the additional lighting is helpful to the operator of the 992 end loader when 

they're being used. 

4. The foreman of the night operations testified that any light, 

including those at the top of the cab of the 992 loader, would be replaced immediately if he were aware of the fact that such a light is 

missing or damaged and he said that in his opinion the lights at the top 

of the cab do provide illumination which is helpful and that he approves 

of the fact that his company ordered the equipment with the additional 

optional lighting at the top of the cab. 

5. The inspector believes that the two lights at the top of the 

cab are very helpful because he says that when the end loader is being 

operated and the bucket is raised that the lower lights have a tendency 

to reflect off the bucket into the operator's eyes and that the two 

additional lights at the top of the cab definitely provide illumination 

for the operator which is very helpful and would not otherwise be available to the operator to assist him in operating the equipment. 

6. The end loader in question had been used during the shift for 

the purpose of widening a roadway. The work for which it was intended to 

be used on that shift had been completed and the operator of the end loader 

was returning it to the storage area, but on the way to the storage area 

he stopped to ask the foreman, who was in the company of the inspector, 

if any further work needed to be done with that end loader before it was 

returned to the parking lot. It was at that point that the inspector 

examined the lights and other equipment on the end loader and wrote the 

citation which I have previously described. The inspector stated that 

the end loader had no other defects and that the only violation that he 

observed was the lack of a headlight at the top of the cab on the right 

side. 

I think that those are the basic facts which have been adduced by 

both parties in support or in opposition to the violation alleged in 

';tation No. 708229. 

2874 
The section here involved is 77.1605(d), which states in pertinent 

part that, "Lights shall be provided on both ends when required." The 

first part of that section refers to mobile equipment. The argument 

advanced by respondent in this case is that since respondent had provided lights on both ends of the mobile equipment here involved, that 

respondent was not in violation of that provision because it had purchased this Caterpillar end loader with both standard and optional lighting, that is, with lights at the bottom of the windshield, and those 

lights were burning, plus one of the optional lights at the top of the 

windshield, and there were lights on the rear of the end loader. Therefore, it is respondent's position that both ends had been provided with 

lights as required. 

Counsel for the Secretary of Labor, on the other hand, states that 

he would agree that if the two words, "when required", simply refer to 

the condition of a piece of equipment as it is delivered with standard 

equipment, that respondent had complied with section 77.1605(d) because 

there were in fact lights on both ends. The Secretary's counsel contends, 

however, that the words, "when required", in that section mean lights required to give the type of illumination that is desirable when a person 

is operating the end loader. He believes that since the testimony shows 

that the optional lighting, or both lights, at the top of the cab do 

provide the light that is required for the best possible vision and 

illumination when the end loader is being used, that respondent violated 

section 77.1605(d) when it allowed the end loader to be used without 

having the optional topmost right lamp in operation. 

I cited, in dealing with the previous alleged violation, the Commission's decision in the Ideal Basic Industries case, 3 FMSHRC 843(1981), 

and I think that that decision is very pertinent to the interpretation 

that's required in this instance. In that case, as I indicated, the Commission had said that if a piece of equipment is in a work area and it's 

fully capable of being operated, that that constitutes use of the equipment. 

So in this case we're sure that this equipment had been used and the 

question then is whether the words, "when required", mean lights required 

for the best possible illumination or lights required simply because the 

manufacturer happens to put them on both ends of the equipment as standard 

equipment. 

The Commission stated in the Ideal Industries case that it believed 

that interpretations to be given to the statute are those which are likely 

to prevent accidents, which is the primary goal of the Act. I believe 

that the interpretation argued for here by the Secretary's counsel is the 

one which I am required to follow because even respondent's own witness 

agreed that that one light could make a difference if it were missing. 

The operation of this equipment is facilitated and the likelihood of 

accidents is prevented when the operator has the maximum illumination 

that the equipment was purchased to have on it. Since the operator of 

the equipment himself is the one who noted to the inspector that he 

found the extra light to be an advantage, I believe that the words, "when 

required", in this case must be that interpretation which would require 

both lights at the top of the cab to be functional. Therefore, I find 

that a violation of section 77.1605(d) was proven. 

2875 
Having found a violation, section llO(i) of the Act requires that 

a civil penalty be assessed. The parties have entered into stipulations 

which cover some of the six criteria which must be considered pursuant 

to section llO(i). It has been stipulated that respondent is subject 

to the Act and that I have jurisdiction to hear the case and that respondent operates the Martiki surface mine here involved. 

With respect to the size of the operator's business, it has been 

stipulated that respondent is a large operator with an annual tonnage of 

six million, and approximately three million tons for the Martiki surface 

mine on an annual basis. 

Exhibit 1 in this proceeding, and also an additional statement submitted by respondent, show that there has been no previous history of a 

violation of section 77.1605(d). It has been my practice to increase a 

penalty under the criterion of history of previous violation only if the 

evidence before me shows that the violation being considered has been 

previously violated. Since there has been no previous violation in this 

instance, the penalty should not be increased under the criterion of 

history of previous violations. 

It has been stipulated that the operator's ability to continue in 

business would not be adversely affected by the assessment of a civil 

penalty. It has also been stipulated that all of the violations alleged 

in this case were abated after the operator had demonstrated a good-faith 

effort to achieve compliance. In this instance, abatement of the violation alleged in Citation No. 708229 is indicated in a Subsequent Action 

sheet written by a different inspector from the one who wrote the citation, 

but it is obvious that respondent demonstrated a good-faith effort to 

achieve compliance. 

As to respondent's negligence, the evidence shows that the end loader 

here involved was a spare end loader and was only used when one of the 

other end loaders was not available or that a special job needed to be 

done that wouldn't take but a short period of time. In this instance, 

an operator who normally operated a Caterpillar tractor had been asked 

to use the end loader to widen a place in the road. Consequently, he 

would not have had any reason to know how long this light had been off 

the piece of equipment. The supervisor who testified stated that he 

was not aware of the missing light prior to the time that the end loader 

was driven to his vicinity. Consequently, the evidence does not support 

a finding of a high degree of negligence but I assume, since anyone who 

operates a piece of equipment is required to check it and make sure that 

it is without defects before it is operated, that we must attribute some 

negligence in this instance to the fact that this particular piece of 

equipment was used without having this one light replaced. So I find 

that ordinary negligence existed. 

As to gr:avity, the final criterion to be considered, there is 

not any real testimony to show that people were exposed to any great 

hazard in this instance by the lack of the one light on the right side 

of the cab because the operator of the end loader did not tell the 

2876 
inspector where he had used the end loader. The purpose for which it 

had been used had already been completed. At the time that the end 

loader was pulled up in the vicinity of the inspector, there was another 

truck and another end loader in that area, but there was no one on foot, 

so no one was apparently exposed to any hazard in the circumstances that 

we have in this case. Consequently, since there's a lack of evidence as 

to just exactly what was done with the end loader in this instance, I find 

that there was a low degree of gravity based on the evidence that we have 

in this proceeding. Considering all those six criteria, as outlined above, 

I find that a penalty of $50 is adequate. 

Citation No. 726078 3/21/80 § 77.1001 (Tr. 326-335) 

I shall make some findings of fact on which my decision will be based. 

1. Inspector William Creech went to the surface mine of Martiki 

Coal Corporation on March 21, 1980, to make an inspection based on a 

complaint which had been submitted to MSHA through another inspector. The 

complaint was an oral one and apparently alleged that the highwall at the 

dragline area was unsafe. The inspector was accompanied to the area of 

the highwall by respondent's assistant safety director. At the highwall 

the inspector noted some coal production was in progress but the coal was 

being scraped up about 300 feet from the highwall at the far end of the 

pit and no actual production was going on close to the highwall. 

The inspector noticed a rock near the top of the highwall about 2 to 

3 feet in size and which was located about 10 to 12 feet from the top of 

the highwall. He could not tell whether the rock was loose, but as a 

matter of judgment, he concluded that it was a hazard because it might 

be loose. Additionally, he felt there were loose materials at the top 

of the highwall about 2 to 3 feet in depth, and consequently he wrote 

Citation No. 726078 stating that loose and unconsolidated material had not 

been stripped from the top of the highwall in an active dragline pit. 

2. The inspector introduced as Exhibit 9 the ground control plan 

which was then in effect, and he stated that page 4 of the ground control 

plan showed a sketch of the type of mining activity which was in progress. 

That particular sketch does not show any bench on the highwall. The 

inspector stated that the highwall was about 90 to 100 feet in height, 

and the inspector said that he examined the highwall from a distance of 

100 to 125 feet and that he saw no bench on the highwall. He also testified that trucks and other vehicles coming into the pit area would have 

to travel fairly close to the highwall in going in and out. 

Based on those conditions, the inspector believed that a violation 

existed and that it was fairly serious. The dragline had already been 

moved from the area and there apparently was no equipment around which 

could be used to remove either the rock or any other loose material at 

the top of the wall; consequently, the citation was abated within 1.hour 

after its issuance by the construction of a berm about 20 feet out from 

237~; 
the highwall which forced all traffic to go on .the outby side of the 

berm and therefore insured no people would be closer to the highwall 

than 20 feet. 

3. Respondent presented five witnesses in support of its contention that no violation existed. The composite testimony of all five 

witnesses is to the effect that, first, the highwall was not unsafe 

because the rock which the inspector had said was along the face of the 

highwall was imbedded so far into the basic rock strata that it could 

not have fallen; and second, respondent's witnesses claim that even if 

the rock had fallen, it would have been contained by a bench which had 

been constructed about 25 feet from the bottom of the pit with a width 

of 15 to 25 feet and therefore anything falling from the highwall would 

not have endangered anyone working in the pit. 

Respondent's witnesses additionally explain that under the ground 

control plan which they were following but which was technically not in 

effect at that moment because they had never started using the one which 

was actually in effect on March 21, 1980, and that under the plan they 

were actually following, respondent had been cutting a bench along the 

highwall at all times. Respondent further contends that the ground control plan introduced by the inspector -- that is, Exhibit 9 -- which 

reflected no bench along the highwall was erroneous because that plan 

had been submitted in anticipation of respondent's encountering solid 

sandstone as a highwall, when, in fact, solid sandstone did not materialize for a sufficient length of time to merit going to a vertical highwall without a bench along the highwall. 

4. The rock at the top of the highwall which was discussed by the 

inspector was also the subject of considerable testimony by respondent's 

witness, James Lewis, who said that he had inspected the rock on March 21, 

1980, and that he did not see any cracks in the rock; but he apparently 

agreed with the inspector that the rock was on the face of the highwall 

a little distance down from the top. 

The other witness was respondent's superintendent, Jerry Lewis, and 

it was his testimony that the rock was imbedded in the actual top of the 

highwall but extended down over the face of the highwall so that, if 

examined from the ground, the rock would appear to be a hazard, but if 

inspected from the top, it could be seen the rock was thoroughly 

anchored in the basic strata of the ground and therefore served as no 

hazard to the people working in the pit area. Jerry Lewis also said 

that there is some loose material at times on the highwall but that most 

of the time the dragline succeeds in cleaning it up so as to present no 

loose material to speak of. 

5. Respondent presented as Exhibit D an aerial photograph which 

shows areas, primarily in the form of shadows, indicating where flat 

places exist and where elevated places exist. According to James Lewis, 

a bench was constructed along the highwall at the area which is shown on 

Exhibit D as of March 21, 1980, and that is quite obvious if one looks 

at the pit area which is still visible on the aerial photograph at about 

one inch from the arrow shown on Exhibit D below the words "Pit Area 

3-21-80. 11 

2878 
I believe those are sufficient findings of fact for rendering a 

decision in this proceeding. Section 77.1001 provides, '~oose hazardous 

material shall be stripped for a safe distance from the top of pit or 

highwalls, and the loose unconsolidated material shall be sloped to the 

angle of repose, or barriers, baffle boards, screens or other devices 

be provided that afford equivalent protection." 

If one examines the actual language of the inspector in Citation 

No. 726078, it can be seen that he stated "loose and unconsolidated 

material had not been stripped from top of highwall in active dragline 

pit." It's been my experience over the years that inspectors tend to 

use the exact language from any of the sections that they are alleging 

have been violated, and that would be true in this case because the 

inspector uses the exact language of the first few words of the section 

by saying that loose and unconsolidated material had not been stripped 

from the top of the highwall. 

Now, if the inspector's testimony had been that the only thing he 

saw was a rock which he was afraid might fall, then one could say that 

the only loose material that he was citing was the rock. But he referred 

to other material sufficiently to have discussed the fact that he thought 

it was 2 or 3 feet in depth, so I cannot agree with respondent that the 

only thing that is cited in the citation is a single rock. 

Assuming 9 nevertheless, that the only thing the inspector was concerned about was a rock, we have the other unreassuring testimony of 

respondent's witness Jerry Lewis, who had examined the rock most carefully, and said that he would want to have examined the rock from both 

the bottom and the top to be sure that it would not fall or that it was 

anchored thoroughly in the ground. Since Lewis had looked at the rock 

from the bottom and the top and felt you could not be sure about it without inspecting both the top and the bottom, it seems to me that he was 

saying that he couldn't be sure it was thoroughly grounded in the earth 

from the bottom, and he couldn't be sure of it from the top and it was 

a judgment matter as to whether this rock could have fallen or not have 

fallen. 

To his credit, we must say he at least looked at it from both the 

top and the bottom, whereas the inspector did not look at it from both 

the top and the bottom. If the inspector had looked at it from the top 

and the bottom, perhaps he would have come to a different conclusion. 

There is also a difference of opinion between Jerry Lewis and the inspector, and apparently as to James Lewis as well, because James Lewis seemed 

to think that this rock was somewhere down the side of the highwall, 

whereas Jerry Lewis thought the rock was solely at the top, with an 

extension over the side of the highwall. 

So, based on the testimony of those who examined this rock, there 

must be some doubt about whether the rock was safe or not, because according to the inspector, it was doubtful that the rock was safe because he 

said it was 10 feet or so from the top; and, if it had come loose, it 

would have come on down the highwall. Jerry Lewis felt you couldn't be 

2879 
sure about its safety without checking it from both the top and bottom. 

In evaluating the conflicting testimony, it should be borne in mind 

that the inspector is required to cite anything which looks to him as 

if it is a hazard. All of the people who testified in this proceeding 

agree that this rock could have been a hazard if it had come loose. 

Consequently, I don't think I can say the inspector was entirely 

out of line for being concerned about this rock. Based on the testimony 

I have received from the two Lewises, I think I would have to find that 

the rock was not loose and therefore it did not constitute hazardous 

material. 

On the other hand, the problem that bothers me about this rock is 

that it either was hanging out over the highwall or it was on the highwall in such a position that it might have been hazardous material, and 

it seems to me the operator should have been able to knock off a piece 

of rock that big with this huge dragline they use, because they apparently 

didn't have any trouble doing it anywhere else. So, I don't think this 

rock should have been left there in the first place, regardless of 

whether it was loose or not. 

In addition to the foregoing observations, there is no testimony 

by respondent's witnesses which really addresses the inspector's allegation that there were other loose materials at the top of the highwall. 

Therefore, I shall take the inspector's word that he wrote the citation 

on the basis of loose materials at the top of the highwall as well as 

this rock that has been extensively discussed. 

The next question that must be decided is whether the section here 

involved is violated if there is a shelf on this highwall to catch any 

material that might fall off of it; because the section says, "The 

loose unconsolidated material shall be sloped to the angle of repose or 

barriers, baffle boards, screens or other devices be provided that afford 

equivalent protection." The inspector agreed in his testimony that if 

there had been a bench 15 to 20 feet wide in this highwall, he would have 

to say that that would eliminate the violation of section 77.1001. The 

part of the testimony that is troubling in this area is that it is hard 

to conceive how the inspector could have been 125 feet from the highwall 

and not have seen the bench if, in fact, the bench was there. 

On the other hand, it's just as hard to conclude that five witnesses 

presented by respondent would have come into this proceeding and testified 

in what I felt was a very convincing and straightforward manner that the 

bench existed if, in fact, it did not. The aerial photograph shows that 

the bench was there, because it is shown in the picture. 

The only explanation I can conjecture which would possibly reconcile 

the inspector's failure to see this bench with the testimony of respondent's witnesses, who say it was there, is that there may have been 

some sort of dragline work at one end of this highwall which might have 

obliterated the bench at the point of entrance into the pit area; but 

I have no testimony to show that that actually happened. I do believe, 

2880 
since the inspector had gone here on a complaint, that it would have 

been possible for him to have been concerned so much about what was at 

the top of the highwall that he might not have noticed that there was 

a bench toward the bottom of it. The bench was high enough above the 

bottom of the pit to have protected anyone in the pit from a fall of 

this rock or other loose material, because all witnesses stated that the 

bench was anywhere from 15 to 25 feet wide, and the inspector said that 

that would be wide enough to provide safety. 

I think the preponderance of the evidence, therefore, supports a 

conclusion that the bench did exist and that it did afford sufficient 

protection to eliminate a violation of section 77.1001; therefore, I find 

no violation of section 77.1001 occurred and the Government's proposal 

for assessment of civil penalty will be dismissed as to the alleged violation of section 77.1001 in Citation No. 726078. 

After I had rendered the third bench decision set forth above, counsel for 

the Secretary of Labor orally moved for reconsideration of the third bench 

decision on the ground that section 77.1001 is intended not only to protect 

employees in the pit below the highwall from injury, but also to protect employees from stumbling in loose material on top of the highwall and falling 

from the highwall into the pit below. The Secretary's counsel stated that 

although a bench would keep material from falling on men working below a highwall, he did not believe that a bench could be interpreted as being in accord 

with the rule of ejusdem generis in that a bench was not the same as the other 

ite~s enumerated in section 77.1001 because the bench would be situated well 

below the other enumerated devices of "barriers", "baffle boards", and "screens". 

It was the position of the Secretary's counsel that barriers, etc., would be 

placed at the top of the highwall to protect men and equipment from going 

over the edge of the highwall and he believed that a violation had been proven 

because respondent had not placed any barriers, baffle boards, or screens at 

the top of the highwall. 

Counsel for respondent argued that the Secretary's counsel was belatedly 

raising an issue and argument on which no testimony whatsoever had been presented and that the Secretary's motion for reconsideration should be denied for 

raising novel issues as to which the inspector had not testified. 

I denied the motion for reconsideration at transcript pages 339 and 340. 

My reasons for denying the motion should be set out in more detail than they 

were at the hearing. 

As for the argument that benches located a considerable distance from the 

top of the highwall cannot be considered to be in accord with the principle of 

ejusdem generis because a bench is not in the same category as the enumerated 

devices of "barriers", "baffle boards", and "screens" which would be at the 

top of the highwall, I disagree with the Secretary's argument for at least 

two reasons. First, I do not believe that the barriers, baffle boards, and 

screens necessarily have to be placed at the top of the highwall, as was contended by the Secretary's counsel. Section 77.1001 states that "[l]oose 

hazardous material shall be stripped for a safe distance from the top of pit 

or highwalls * * *"· The section then states that if such materials can't be 

2881 
sloped to the angle of repose, barriers, baffle boards, screens, or other 

devices shall be used to afford "equivalent" protection. The words "for a 

safe distance", in my opinion, mean that no person is required to strip 

loose materials from the top if doing so would endanger that person's life. 

Therefore, if the loose materials are too far from the top to be stripped 

from the top, it may well be that the only way persons in the pit below the 

highwall can be protected from falling materials is for the operator to construct barriers, baffle boards, screens, and other devices near the bottom 

of the highwall so that any loose materials will not fall on employees working in the pit. 

Second, it must be recalled that the highwall in this instance was about 

100 feet in height. Respondent had cut a bench about 25 feet from the bottom 

of the highwall to protect employees from materials which might fall off the 

highwall. The construction of barriers, baffle boards, or screens near the 

top of a highwall which is 100 feet high would be a hazardous undertaking. 

Yet the inspector wanted employees in the pit to be protected from the possibility that a rock, which was located from 10 to 12 feet from the top of the 

highwall, might fall from the highwall into the pit below. In such circumstances, I believe that the bench cut along the highwall was the safest way 

that employees could have been protected and that the bench may properly be 

considered as the use of a satisfactory "other device" within the meaning of 

section 77.1001 and application of the principle of ejusdem generis. 

As to the argument by the Secretary's counsel that the barriers, etc., 

required by section 77.1001 must be adequate to protect both equipment and 

persons from falling from the top of the highwall, it is obviously impractical, 

if not impossible, to construct a barrier of sufficient strength and size to 

prevent a dragline 300 feet high (Tr. 338) from slipping or rolling off the 

top of the highwall if its operator should happen to position it close enough 

to the edge of the highwall for it to fall off the highwall. 

Finally, as I stated at the hearing, there is no language in section 

77.1001 which even implies that that section is designed to protect employees 

from falling off the top of the highwall. Perhaps the most damaging evidence 

showing that the inspector did not interpret section 77.1001 in the same 

fashion as the Secretary's counsel argued in support of his motion for reconsideration, is that the inspector allowed respondent to abate the violation 

in this instance by having respondent construct a berm in the bottom of the pit 

which would prevent vehicles from getting closer than 20 feet to the highwall. 

If section 77.1001 is really intended to require barriers at the top of the 

highwall to prevent employees from falling off the highwall, nothing was done 

by the inspector in this case to carry out that intent of section 77.1001 

because the only protection provided was constructed in the bottom of the pit 

solely to prevent loose material from falling on employees working in the pit. 

For the reasons given above, I find that the motion for reconsideration 

should be denied. 

WHEREFORE, it is ordered: 

(A) Respondent, within 30 days from the date of this decision, shall pay 

a civil penalty of $50.00 for the violation of section 77.1605(d) alleged in 

Citation No. 708229 issued January 8, 1980. 

2882 
(B) The Proposal for Assessment of Civil Penalty filed in Docket No. 

KENT 80-273 is dismissed insofar as it seeks assessment of civil penalties 

for the violation of section 71.603(c) alleged in Citation No. 707702 issued 

January 8, 1980, and for the violation of section 77.1001 alleged in Citation 

No. 726078 issued March 21, 1980. 

(C) The oral motion of the Secretary's counsel for reconsideration of 

the bench decision appearing at transcript pages 326 to 335 is denied for the 

reasons hereinbef ore given. 

Distribution: 

~ C. r;/;J:tJll,~ Richard 

Administrative 

C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

George Drumming, Jr., and Darryl A. Stewart, Attorneys, Office of the 

Solicitor, U.S. Department of Labor, Room 280, U.S. Courthouse, 

801 Broadway, Nashville, TN 37203 (Certified Mail) 

William G. Francis, Esq., Attorney for Martiki Coal Corp., Francis, 

Kazee and Francis, 111 East Court Street, P.O. Rox 110, Prestonsburg, 

KY 41653 (Certified Mail) 

2883 
FEDi:RAI.. MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, DEC 3 o 1991 

: · ~ivil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket ~o. KENT 81-74 

Assessment Control 

No. 15-12484-03001 

v. 

No. 1 Tipple 

COMMONWE-ALTH MINING CO., INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner; 

Michael Templeman, President, Commonwealth Mining Co., Inc., 

Pikeville, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued August 4, 1981, as amended 

October 30, 1981, a hearing in the above-entitled proceeding was held on 

November 3, 1981, in Prestonsburg, Kentucky, under section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 315(d). 

After the parties had completed their presentations of evidence, I rendered the bench decision which is reproduced below (Tr. 160-184): 

This proceeding involves a Proposal for Assessment of Civil Penalty 

filed on March 5, 1981, by the Secretary of Labor in Docket No. KENT 81-

74 alleging four violations of the mandatory safety standards by Commonwealth Mining Co., Inc. A hearing was held and, after testimony had 

been presented by petitioner and by respondent as to Citation No. 720668, 

respondent's representative stated that he had another commitment and 

that he would have time to present testimony only as to one other citation which is No. 947345. During a recess, respondent agreed to pay 

the full amount of $52.00 proposed by the Assessment Office with respect 

to two other citations. The result of the settlement as to two citations 

out of the four alleged by the Proposal for Assessment of Civil Penalty 

is that the contested aspect of this proceeding involves only two cita·-

tons. My bench decision will first deal with the two contested citations; the remaining part of my decision will approve the settlement 

agreed to by the parties. 

Contested Citations 

Jurisdictional Issue. Respondent raised an issue as to whether 

the citations involved in this proceeding were properly written with 

respect to facilities which are subject to the provisions of the Federal 

Mine Safety and Health Act of 1977. That issue pertains to all four of 

the citations even though a settlement was reached as to two of them 

because the settlement was based on the assumption that if I decide 

2884 
the jurisdictional issue adversely to respondent that the other matters 

would be considered on the assumption that everything involved in this 

case is subject to the provisions of the Act. The facilities involved 

in this proceeding constituted a crushing and processing plant and 

loading facility for loading coal into railroad cars. The plant had 

been constructed just a few days before the inspection was made and, 

in fact, the inspectors wrote their citations on the day that the plant 

first engaged in a trial period of operation. Consequently, the plant 

had been run to produce only about a half railroad car of coal before 

it was shut down in order that the belts could be realigned on the conveyor. It was at that point in time that the citations were written, 

that is, while the plant was inoperative. It is respondent's position 

that since coal had neither been sold in interstate commerce or sold 

so as to affect interstate commerce at the time the citations were 

written, no jurisdiction should attach to the facilities here involved. 

Section 4 of the Act provides, with respect to jurisdiction, as follows: 

"[e]ach coal or other mine, the products of which enter commerce, or the 

operation or products of which affect commerce, and each operator of 

such mine, and every miner in such mine shall be subj ec.t to the provisions of this Act." 

The courts have held that when Congress uses the phrase "affecting 

commerce", that Congress intends for a statute written with that provision in it with respect to jurisdiction to be interpreted to the farthest 

possible reach of the commerce clause, and a court so stated in Secretary 

of Interior v. Shingara, 418 F. Supp. 693 (M.D.PA. 1976). In Ray Marshall 

v. Wade Kilgore, 478 F. Supp. 4 (E.D. TENN. 1979), the court stated that 

even activity which appears to be entirely intrastate commerce may be regulated where the activity affects commerce. In the Kilgore case, the court 

indicated the extent to which jurisdiction may be held to apply by citing 

the Supreme Court's opinion in Wickard v. Filburn, 317 U.S. 111 (1942), in 

which the Court held that wheat grown for one's. own consumption had an 

effect on commerce because if sold in the market, it would affect the 

price of wheat, or if eaten, would affect the market because the grower 

of the wheat would not have to buy wheat. Since the commerce clause has 

been applied to a person who grows and eats his own wheat, it is certain 

that the commerce clause would apply to a facility from which coal is sold 

only in the intrastate market, as apparently was the case for the coal 

ultimately sold by respondent in this proceeding. 

The real thrust of respondent's argument as to jurisdiction, however, 

is that until coal processed from its plant had actually been sold in 

interstate or intrastate commerce, no jurisdiction should attach to such 

facilities or coal. The obvious response to that argument is that independent contractors have been held subject to the jurisdiction of the 

Act, even though they may construct a shaft or do other work in connection 

with a coal mine that has never sold any coal at the time they do their 

work and they may leave the premises and be gone for a month or two before 

any coal is sold. Yet, the courts have held that their activities and 

2885 
their workers are subject to the provisions of the Act and that they 

can be cited for violations which were committed on mine property. ".};_/ 

There is no merit to respondent's jurisdictional argument in this 

case based on the fact that· the coal, which has been run through respon·-

dent' s tipple and processing facilities, had not yet been sold to anyone 

at the time the citations were written. Obviously, the facilities had 

been constructed for the purpose of processing coal and the coal, even 

if ultimately used only in intrastate connnerce, would have en affect 

on commerce and, therefore, be jurisdictional. The mere fact that the 

inspectors wrote the citations before such coal had started moving in 

intrastate commerce is immaterial. Therefore, I find that the facilities 

here in issue were jurisdictional and that all the citations written by 

the inspectors were properly issued to an operator which was subject to 

the jurisdiction of the Secretary of Labor and the Commission under the 

Act. 

Citation No. 720668 dated 9/18/80, § 77.701 

I shall make some findings of fact with respect to Citation No. 

720668 and they will be set forth in enumerated paragraphs. 

1. On September 17, 1980, Inspector Martin C. Sma~lwood was at 

the No. 1 tipple of Commonwealth Mining Co., Inc., in order to inquire 

about the operator's training program and some other matters in contemplation that the facility being constructed would soon become operable. 

While Inspector Smallwood was there, respondent's President requested 

that the inspector come back the next <lay, if possible, and bring an 

electrical inspector with him so that the two inspectors could advise 

respondent's President as to whether his facility properly complied 

with the safety standards. 

2. The next day, September 18, 1980, two inspectors, Smallwood 

and Waddles, appeared at the plant. Inspector Waddles is an electrical 

inspector and he wrote Citation No. 720668, or Exhibit 1, in this proceeding. In that citation, the inspector stated that the crusher plant 

was not provided with frame grounding for the respective metallic structures where electrical motors and circuits are located. The inspector 

considered the lack of frame grounding to be a violation of section 77.701 

which provides "[m]etallic frames, casings, and other enclosures of 

electric equipment that can become 'alive' through failure of insulation 

or by contact with energized parts shall be grounded by methods approved 

by an authorized representative of the Secretary." 

3. The inspector testified that there was one grounding rod in the 

vicinity of the crusher plant. He was uncertain whether the grounding rod 

was actually attached to the crusher plant because his citation was 

written over a year before the testimony in this case was given and his 

1/ Bituminous Coal Operators' Assn. v. Secretary of the Interior, 547 F.2d 

Z40 (4th Cir. 1977), and Association of Bituminous Contractors v. Andrus, 

581 F.2d 853 (D.C. Cir. 1978). 

2886 
memory simply wasn't sufficiently perfect to enable him to be certain 

as to that point. The inspector said, however, that if one grounding 

point had been attached, and he had known it was attached at the time 

he wrote his citation, that he would not have written the citation with 

respect to the crusher plante It is a fa.ctj however, that the crushing 

plant was only part of the facility here because the crusher plant was 

also attached to a screening plant and the inspector said that there was 

no connection between the screening p.J.ant and the crushing plant which 

would have permitted him to find that the screening plant was properly 

grounded. Therefore, he stated that his citation had primarily been 

written because there was no interconnection between the crushing plant 

and the screening plant in the sense that a grounding conductor between 

the two facilities had actually been installed. 

4. The inspector was asked several questions about whether the 

conveyor belt and its associated framework, which did pass from the 

crushing facility to the screening facility, would be sufficient to act 

as a ground, and he stated that it was possible that the metal framework on the crusher extending over to the screening facility might act 

as a ground in a given situation but that he could not, under the regulations, officially sanction the use of a metal framework on a conveyor 

belt as an adequate ground within the meaning of sec.tion 77. 701. 

5. The inspector was also asked by respondent's representative 

in this case if the radial. stackers constituted a ground between the 

crushing facility and the screening facility and the inspector stated 

that he would not accept that as a grounding mechanism either; and, 

that he was not acquainted with the exact way that a radial stacker was 

constructed, but he still would not consider that to be an adequate 

ground for the purpose of meeting the provisions of section 77.701. 

6. The alleged violation was abated rapidly because respondent 

sent one of its employees to obtain grounding rods and wire immediately 

after the citation was written and some of the grounds were installed on 

the same day the citation was written, that is, September 18, 1980; but 

there was not at the supply house sufficient wire to complete installation of all of the grounds on September 18 and the remainder were 

installed the following Monday, September 22. Therefore, respondent 

showed an effort to abate the violation as soon as possible and should 

be given full credit for that mitigating factor. 

7. Counsel for the Secretary of Labor stated that since this was 

the first inspection made of the facilities of Commonwealth Mining Co., 

Inc., that no previous citation or alleged violations had been written 

with respect to Commonwealth Mining Co., Inc.; consequently, there is 

no history of previous violations to be considered in this proceeding. 

8. The facilities involved here were leased from another company 

and were installed by respondent. Only three employees, plus respondent's 

President, worked at the facility which never did process more than 500 

tons of coal per day. The facility was not operated by respondent after 
July 1981 and has now been removed from the premises where the facilitie~ 

were located at the time the citations were written. On the basis of 

those facts, I find that respondent is a small operator and that insofar 

as penalties should be assessed under the criterion of the size of respondent's business, they should be in a low range of magnitude. 

9. Respondent first introduced some exhibits with respect to the 

criterion of whether the payment of penalties would cause respondent 

to discontinue in business and respondent's representative later stated 

that he did not wish to avail himself of a defense insofar as respondent's 

financial condition is concerned; and, therefore, respondent's position 

in this case is that payment of penalties would not cause respondent to 

discontinue in business. Respondent is in business at the present time, 

in that it now operates a surface mining facility, but it is no longer 

the operator of the tipple which is involved in this proceeding. 

10. Respondent's position in this proceeding is based on a combination of arguments and facts. First of all, respondent's testimony 

in this proceeding was to the effect that when the facilities here involved were moved from a location in the vicinity of Pikeville to the 

place in the vicinity of Whitesburg, where the facilities were operated 

at the time the citation was written, a single grounding rod had been 

attached to the crusher. When respondent reconstructed the facilities 

after moving them from Pikeville to Whitesburg, a single grounding rod 

was installed in the same manner that it existed at the previous Pikeville location. 

11. Additionally, respondent's President testified that the radial 

stackers at the plant had been constructed by driving rods through a 

metal plate into the ground and then attaching the radial stackers to 

that metal plate, somewhat like a trailer is situated on the fifth 

wheel of a tractor. Respondent's position is that the radial stackers, 

plus the framework of the conveyor belt referred to in Finding No. 4 

above, constituted a grounding mechanism or connection between the screening plant and the crusher. For abatement in this instance, the inspector 

required that six grounding rods be driven into the ground around the 

screening facility and that an additional five grounding rods be driven 

into the ground around the crushing facility. 

Those nine findings constitute the necessary facts required for 

rendering a decision as to the parties' arguments. 

I find that a violation of section 77.701 occurred. I base that 

conclusion on the fact that the regulation here involved provided that 

the metal frames, casings and other enclosures of electrical equipment 

that could become "alive" through failure of insulation should be grounded 

by methods approved by an authorized representative of the Secretary. 

Respondent's argument that the facility, as it was installed in Pikeville, met all of the criteria of section 77.701 when it was used in 

Pikeville and then was cited for a violation under that same section 

after it was moved to Whitesburg, is not relevant when it comes to 

2888 
determining whether there was a violation sufficient to bring about a 

possible hazard to people working at the plant. 

There is no proof that the facility was inspected in Pikeville for 

compliance with the same section here involved. Different inspectors go 

to the different facilities and they each have certain points that they 

are trying to check for and they are not always uniform in their interpretation of the regulationso The important thing is that an inspector, 

in this instance~ examined the facilities here involved after they were 

ready to operate in Whitesburg; and, as far as he was concerned, there 

was a possibility that the ground that was attached to the crusher was 

not sufficient to take care of the possible hazard of an "alive" frame 

or piece of equipment in the screening facility. Since he could not be 

certain that the metal radial stackers or metal frame on a conveyor belt 

was a proper ground, he legitimately came to the conclusion that a violation had occurred. 

Respondent's other argument was that since respondent had provided 

a single grounding rod for the crusher that it had, at least, made a 

bona fide effort to ground the facility. That is a correct statement, 

and the inspector's having conceded that there probably was a single 

ground for the crusher, is sufficient to show that respondent was nonnegligent in having, so far as it understood the provisions of section 

77.701, tried to install a proper ground. In other words, respondent 

thought it was complying with section 77.701 until it found a different 

interpretation had been given to that section from the one that respondent had previously expected. 

In UMWA v. Kleppe, 562 F.2d 1260, p. 1265, (D.C. Cir. 1977), the 

Court stated "[s]hould a conflict develop between a statutory interpretation that would promote safety and an interpretation that would serve 

another purpose at a possible compromise to safety, the first should be 

preferred." In Secretary of Labor v. Ideal Basic Industries, Cement 

Division, 3 FMSHRC 843 (1981), the Commission stated that the primary 

goal of the regulations and of the Act is to prevent accidents and the 

Commission stated that the interpretation which gets closer to the 

occurrence of an accident before a correction is required is the one 

to be avoided. 

In this instance, the inspector could have taken the position, as 

was apparently done in Pikeville that a special grounding facility was 

not required for the processing plant or to be placed between the two 

facilities. The inspector might have taken that position and then, 

there might have occurred an improper grounding situation in which someone might have been electrocuted. The inspector took a strict approach 

to the effect that additional grounding was required here and I think 

that he should be upheld in that position. It is true that the inspector could have stated in his citation that there was not adequate 

grounding but, since the testimony shows that that is what the inspector 

intended, the factor of whether there was inadequate grounding or no 

grounding, can be taken into consideration in assessing the penalty and 

it is not a reason for vacating the citation or finding that no violation 

occurred. 

2889 
Respondent has also pointed out that during his testimony, the 

inspector stated that there were methods for testing to see whether 

grounding is adequate but that the inspector did not make those tests 

in this instance. Respondent takes the position that the inspector's 

lack of testing prevents the inspector from being certain that respon·-

dent 1 s single ground was inadequate" Inasmuch as there did not exist 

a connection between the crushing facility and the screening facility 

which could even be considered to be a proper ground, the inspector 

was within a proper interpretation of section 77.701 to say that he was 

issuing the citation primarily because of that lack of connection for 

the screening facility. Since there was not a proper ground between the 

two facilities, it was unnecessary for him to get into the question of 

what might have been adequate for the crusher because he thought that 

whatever safety that ground might have provided for the crusher, it was 

insufficient to make the installation safe as a total facility. 

By way of summary, the violation of section 77.701 involves a 

small operator. There was no negligence on the part of respondent 

because it thought it had installed a satisfactory ground. The violation did not, at the time the inspector made his interpretation, involve 

a serious matter because he stated that he saw no poor insulation on 

any of the conductors or electrical facilities. Nevertheless, there 

existed a potential hazard to the extent of possible electrocution. 

Since electrocution still accounts for a lot of deaths in coal mines 

and related facilities, there was a cogent reason for this facility to 

be grounded properly. At the same time, the evidence fails to show that 

there was a hazard at the time the citation was issued. The operator 

showed a very rapid effort to achieve compliance by getting the necessary 

equipment and beginning the installation of the grounds within the same 

day. There is no history of previous violations. Consequently, a large 

penalty in this instance would be contrary to the six criteria which are 

required to be considered under section llO(i) of the Act. In such circumstances, I find that a penalty of $5 should be assessed. 

Citation No. 947345, dated 9/18/80, § 77.206(c) 

A few findings of fact are required before a decision is rendered 

as to whether a violation occurred. 

1. Inspector Smallwood issued Citation No. 947345 on the same day 

that the previous citation discussed above was written. That citation 

provides that vertical ladders at fixed locations were not provided with 

backguards which extended no more than 7 feet from the bottom of the 

ladder to the top of the ladder. 

2. The inspector cited section 77.206(c) as having been violated 

and that Regulation reads as follows: "[s]teep or vertical ladders which 

are used regularly at fixed locations shall be anchored securely and provided with backguards extending from a point not more than 7 feet from 

the bottom of the ladder to the top of the ladder." 

2890 
3. In order to understand the factual situation with respect to 

the violation here involved, it is necessary to refer to a diagram 

which was introduced at the hearing as Exhibit 3. That exhibit shows 

that the fixed ladder involved was actually 6-1/2 feet tall and its 

bottom began 1-1/2 feet off the ground. The exhibit shows that the 

top of the ladder ended at the platform shown on the exhibit and a 

handrail is provided on the platform but the handrail is not a part of 

the ladder itself. The exhibit also shows that the bottom of the ladder 

was 1-1/2 feet off the ground. 

4. The inspector took the position at the hearing that section 

77.206(c) requires backguards to be installed if the height of a ladder 

is more than 7 feet. The inspector believed that the ladder here involved was more than 7 feet high because he measured the distance from 

the ground to the top of the ladder and found the space between the 

ground and the top of the ladder to be eight (8') feet and he believed 

that the requirements of section 77.206(c) should be applied to any situation where the ladder was in a position enabling a person to climb it 

and be off the ground by more than 7 feet and he believed that the protection of the backguard was required in this instance if the height of 

the ladder, from the ground to the top, was an 8-foot distance even 

though the ladder itself only measured 6-1/2 feet. 

I believe that those four findings are all that are needed for 

discussing whether a violation occurred because the violation depends on 

the interpretation which is given to the language of section 77.206(c). 

Respondent took the position at the hearing that the ladder did not 

require a backguard because it was only 6-1/2 feet long. Since it was 

less than 7 feet, respondent concluded that the section did not require 

a backguard on the ladder. Respondent's representative also believed 

that adding the 1-1/2 foot distance between the bottom of the ladder 

and the ground to obtain the ladder's true height was not appropriate 

within the meaning of the regulation becaμse he said that there was no 

provision about the distance between the top of the ladder and the 

ground or any platform that might be beneath the ladder. He quoted 

section 77.206(c) to emphasize that the backguard should not be at a 

point more than 7 feet from the bottom of the ladder. 

As I have previously indicated in making my conclusions with respect to the violation of section 77.701 discussed above, the courts and 

the Commission have emphasized interpretations to be given to the regulations which will promote safety. The interpretation which would 

promote safety in this instance is the inspector's interpretation and 

the interpretation urged by counsel for the Secretary. If a ladder 

starts at a distance above the ground which can be reached by a person 

who lifts his or her foot to start the initial ascent of the ladder, 

then, at that point, the person taking the first step to the bottom of 

the ladder is already off the ground by 1-1/2 feet in this instance. 

It could just as easily be 2 feet in another case. By the time a person 

reaches the top of the ladder, he or she is 8 feet off the ground in 

this instance. If the 7 foot requirement for backguards were applied 

2891 
on the assumption that a fall for a distance of 7 feet, or more, is 

likely to result in serious injury, then, obviously, anyone climbing 

a distance which is more than 7 feet off the ground would be exposed 

to a possible fall; therefore, the backguard should be required. 

In this instance·, the inspector allowed the operator to abate 

the violation by placing cinder blocks beneath the bottom of the 

ladder so as to make a platform from which a person would ascend the 

ladder. Obviously, if one brings the earth or the platform up to the 

bottom of the ladder, one eliminates a distance of 1-1/2 feet. Therefore, the ladder did not have to have backguards constructed at all 

because increasing the ground level below the ladder eliminated the 

possible fall of 7 feet or more. The inspector stated that although 

he had allowed abatement to be done in this instance by the construction of a cinder block platform beneath the ladder, he was not certain 

that that was the proper way to abate the citation. 

Another argument which respondent's representative made in opposition to having to install backguards on a ladder which is only 6-1/2 feet 

long, is that he said there was a hinge point in the middle of the ladder 

which enabled the operator to raise the ladder for the purpose of cleaning beneath it. He stated that if one were to put a backguard on the 

ladder and it extended down past the hinge point, that the ladder would 

then be rendered rigid and could not be raised for cleaning purposes. 

The obvious reply to that argument is that the backguard can begin at 

a point not more than 7 feet from the bottom of the ladder. Therefore, 

the backguard could begin just above the center point of the ladder 

and provide protection for a person climbing the ladder and still allow 

the ladder to be raised for cleaning beneath it. 

An additional argument relied upon by respondent is that the facility involved here had been previously installed in Pikeville and had 

been approved by MSHA as it was there installed and, that since it had 

been approved by MSHA as it existed in Pikeville, that is, using a 6-1/2 

foot ladder which did not require a backguard, that it was improper for 

the inspector to cite a facility as being in violation of section 77.206(c), 

when, in fact, that facility had already been approved by MSHA. Respondent's representative claimed that he had checked with the company that 

constructed this facility with the 6-1/2 foot ladder on it and that the 

company told him that the ladders had been made 6-1/2 feet tall for the 

specific purpose of eliminating the need for the ladders to be equipped 

with backguards. 

Whether or not the facility had previously been approved by MSHA 

is not material when it comes to an interpretation of what section 

77.206 means. As counsel for the Secretary has appropriately argued in 

this proceeding, the regulation still exists and if MSHA, in approving 

this facility, made an interpretation of that regulation which would 

bring about less protection than a correct interpretation would provide 

for miners, then the facility as it was installed needed to be modified 

to provide that protection by either raising the platform or ground 

beneath the ladder to a point that a person is not subjected to a fall 

2892 
of more than 7 feet, or by having the backguard·s installed, as required 

by section 77.206(c). Therefore, I find that a violation of section 

77.206(c) occurr~d. 

In dealing with assessment of a penalty 9 the findings that have 

been given above with respect to -se:veral of the assessment criteria are 

applicable for this violation also. Respondent is a small operator. 

There is no history of previous viola.tions. The work for abating the 

violation was_cornrnencecl the same day ·that the violation was cited and was 

continued over a period of time until all of the ladders, of which there 

were four or five at both the screening plant and the crushing plant, 

were all modified to provide for abatement. Insofar as negligence is 

concerned, I think here again, respondent would have to be considered 

nonnegligent because respondent was relying on its interpretation of 

section 77.206(c) as well as the fact that it claims the facility had 

been approved by MSHA as it then existed and as it had been originally 

constructed. Insofar as gravity is concerned, it was just barely high 

enough to require a backguard, so any fall would have been at most from 

a height of 8 feet, but it still could have caused an injury which might 

have required several days of absence from work and, therefore, was at 

least moderately serious. Considering those findings as to the six 

criteria, I believe that a penalty of $10 should be assessed for this 

violationo 

Settlement Agreement 

As indicated in the opening paragraph of my bench decision, the parties 

entered into a settlement agreement with respect to two of the four violations 

for which civil penalties are sought in this proceeding (Tr. 103-104). Under 

the settlement agreement, respondent would pay the full amount proposed by 

the Assessment Office with respect to a violation of section 77.400 ($24.00) 

and a violation of section 77.205(b) ($28.00). 

In determining whether the settlement agreement should be accepted, 

it is unnecessary to discuss three of the six assessment criteria because 

my bench decision already contains findings to the effect that respondent is 

a small operator, that payment of penalties will not cause it to discontinue 

in business, and that respondent has no history of previous violations. 

The remaining three criteria of whether respondent demonstrated a goodf ai th effort to achieve rapid compliance, whether the violation were associated 

with negligence, and whether the violations exposed miners to serious or nonserious injury will be considered in evaluating each of the two alleged 

violations. 

The first violation was alleged in Citation No. 947343 which stated that 

respondent had violated section 77.400 by failing to provide a guard on the 

chain drive for the feeder under the raw coal hopper. The location of the chain 

drive was in a remote place where employees go only when they need to work on 

the equipment, so the likelihood of injury was reduced by the location of the 

2893 
chain drive. The violation was associated with ordinary negligence and a 

normal effort was made to achieve rapid compliance because respondent placed 

a guard on the chain drive within the time period given by the inspector. 

Inasmuch as a small operator is involved, it appears that the penalty o·f 

$24 c 00 proposed by the Assessmen.t Office was Teasonably determined and that 

respondent's agreement to pay the full amount pr.oposed by the Assessment Office 

should be approved" 

The second violation involved in the settlement agreement was a violation 

of section 77e205(b) alleged in Citation No. 947346 which stated that the 

travelways in and around the tipple were not kept free of extraneous material 

which constituted stumbling or slipping hazards. In the absence of any details 

as to the size and extent of the material which caused the stumbling or slipping 

hazards, it is difficult to evaluate respondent's negligence as well as the 

gravity of the stumbling or slipping hazards. The subsequent action sheet shows, 

however, that respondent cleaned up the extraneous material within the time 

allowed by the inspector. In view of the operator's small size, it appears that 

the Assessment Office appropriately proposed a penalty of $23.00 for this alleged 

violation of section 77.205(b) and that respondent's agreement to pay the full 

amount should be approved. 

WHEREFORE, it is ordered: 

(A) Respondent, within 30 days from the date of this decision, shall 

pay civil penalties of $15.00, of which an amount of $5.00 is assessed 

for the violation of section 77.701 alleged in Citation No. 720668 dated 

September 18, 1980, and of which the remaining amount of $10.00 is assessed 

for the violation of section 77.206(c) alleged in Citation No. 947345 dated 

September 18, 1980. 

(B) The parties' oral request for approval of settlement is granted 

and the settlement agreement is approved. 

(C) Pursuant to the settlement agreement, respondent, within 30 days 

from the date of this decision, shall pay civil penalties totaling $52.00 

of which an amount of $24.00 is allocated to the violation of section 

77.400 alleged in Citation No. 947343 dated September 18, 1980, and of 

which an amount of $28.00 is allocated to the violation of section 77.205(b) 

alleged in Citation No. 947346 dated September 18, 1980. 

(D) The total amount due under paragraphs (A) and (C) above is $67.00. 

R~eff:~~~ Administrative Law Judge 

(Phone: 703-756-6225) 

2894 
Distribution: 

Thomas A. Grooms, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse,. 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Commonwealth Mining Co., Inc., Attention: Michael Templeman, President, 

P.O. Box 2497, Pikeville, KY 41501 (Certified Mail) 

2895 
~EDERAL MINE' SAFETY A~~ H{!ALTH REVIEW COMMISSfON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLIMI::, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 301981 

ERNEST DIALS, Complaint of Discharge~ 

Complainant Discrimination, or Interference 

v. Docket No. KENT 81-89-D 

WOLF CREEK COLLIERIES, 

Respondent 

DECISION 

Appearances: Reginald E. Wilcox, Esq., Kirk & Wilcox, Inez, Kentucky, 

for Complainant; 

Before: 

Donald Combs, Esq., Stephens, Combs & Page, Pikeville, 

Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to an order issued July 15, 1981, as amended August 5, 1981, 

October 1, 1981, October 16, 1981, and November 2, 1981, a hearing in the 

above-entitled proceeding was held on November 6, 1981, in Prestonsburg, 

Kentucky, under section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815(c)(3). 

After the parties had completed their presentations of evidence, 

I rendered the bench decision which is reproduced below (Tr. 282-303): 

This hearing involves a Complaint of Discharge, Discrimination or 

Interference filed on February 19, 1981,. in Docket No. KENT 81-89-D, 

by Ernest Dials pursuant to section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977, alleging that complainant was discharged by 

respondent, Uolf Creek Collieries, on November 20, 1930, in violation 

of section 105(c)(l) of the Act because complainant had made health or 

safety complaints to respondent or respondent's agent regarding conditions at respondent's mine. 

The issue in this case is whether respondent violated section 

105(c)(l) of the Act so as to entitle complainant to the relief of payment of backpay and reinstatement to his former job as requested in his 

complaint. The pertinent part of section 105(c)(l) which is involved 

in this proceeding, reads as follows: 

No person shall discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the 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 * * * 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 safety or health violation in a 

coal or other mine * * * . 

2896 
I shall ma.ke some findings of fact on which my decision will be 

based. The findings will be set forth in enumerated paragraphs. 

1. Complainant, Ernest Dials, had been working for respondent, 

Wolf Creek Collieries for about 11-1/2 years before he was discharged 

on November 20, 1980. His official job title was truck foreman on the 

second shift but, because of an injury unrelated to performance of his 

work for respondent, complainant,had been unable to work for about 

6 weeks. During complainant's recuperation, respondent appointed 

another employee, Raymond Haney, to be truck foreman in complainant's 

absence. 

2. When complainant reported to work after his illness, he was 

given many different kinds of work to do, ranging from constructing a 

bridge floor to substituting for other foremen when they were absent 

because of vacation or other reasons. Complainant received his full 

salary during his convalescence and his salary was not reduced after 

he returned to work and was given a wide variety of duties to perform. 

3. The events of November 18, 19, and 20 leading up to complainant's discharge were discussed by several witnesses. On Tuesday, 

November 13, complainant worked with two other men under supervision of 

the mine superintendent, Luster Sluss, in installing a floor in a bridge. 

On Wednesday, November 19, complainant was ill and did not report for 

work on the day shift, but complainant did come to the mine office about 

4:00 p.m. on that day to discuss with the Vice President of Operations, 

Raymond Freal Mize, a report to the effect that complainant had taken 

two tires after work on Tuesday night. Mize had already checked on the 

tires and found that they had been taken from the mine site for use on 

a piece of respondent's equipment which had previously been loaned to 

the Sheriff of Martin County. 

4. Mize told complainant that no one was blaming him for the 

tires' disappearance and Mize advised complainant to go home and report 

back to work on the day shift at 6:30 a.m. the next day. After Mize 

left the office, he went to the supply shop and talked to a mechanic 

named Cecil Butcher. Some spare parts were loaded into the truck which 

complainant was driving and complainant started to drive to the lOD Mine 

which was located some 4 or 5 miles from the mine office. On complainant's way to the lOD Mine, he came to an end loader which was idle. 

The operator of the end loader, Brian Webb, was standing near the end 

loader and complainant asked Webb if the end loader was in safe condition. Complainant then proceeded to check the lights, the back-up 

alarm and other aspects of the end loader and found them to be in satisfactory condition. Complainant then asked Webb if the brakes were 

satisfactory and Hebb stated that the brakes on the 560 end loader 

being used at that time were not as good as the brakes on one of the 

other 560 end loaders, but that the brakes were satisfactory for the 

work being done at that time. When Webb indicated to complainant that 

the brakes might not be sufficiently adequate on a hill to stop the end 

loader readily, complainant ordered Webb to park the end loader and not 

operate it until a mechanic had been called to check the brakes. 
5. Complainant did not get out of his truck to operate the end 

loader and simply took Webb's statement to be an indication that the 

end loader was unsafe. Complainant then called the supervisor on the 

second shift, Raymond Haney, and told him that the end loader had been 

parked and would not be operated until it could be checked by the mechanic. Complainant had already advised Haney that the trucks which were 

hauling coal from the place where Webb was working were unsafe and would 

not be permitted to operate. Complainant thereafter called Cecil Butcher, 

the mechanic, and asked him to come and check the end loader's brakes. 

The mechanic was not certain that complainant had authority to request 

him to check the brakes and called Haney to ask if he should do so. 

Haney told the mechanic to go ahead and check the brakes. 

6. Butcher went to the location of the end loader and examined 

the brakes and decided to adjust them but he did not get into the end 

loader and operate it. After he had adjusted the brakes, Butcher left 

without checking to see whether the end loader's brakes were in any 

better condition after the adjustment than they had been before the 

adjustment. The operator of the end loader resumed loading coal because 

Haney had succeeded in getting some trucks back to the mine site after 

he had examined the trucks and determined that they were satisf actorily equipped with adequate brakes. 

7. Complainant subsequently went from the site of the end loader 

to the lOD Mine where the spare parts which had been put in his truck 

were unloaded. At approximately that time, complainant received a call 

from the Vice President of the company, Freal Mize, to report to the 

guard house. Complainant went to the guard house where there were other 

personnel, including two truck drivers and a security guard. While 

Mize and complainant were talking, the Sheriff of Martin County also 

came to the guard house. Mize and complainant had a discussion during 

which some additional reference was made to the incident of the tires 

having been taken and also to the fact that complainant had stopped the 

end loader from operating; finally, Mize told complainant that he should 

leave the mine site and go home and return to work the next day, as he 

had previously been instructed to do. 

8. Complainant states that Mize indicated, at that time, that if 

complainant did not get off of the mine property and start following 

instructions that he might be discharged and complainant asked Mize 

if that meant that he was discharged and Mize said that complainant 

could interpret that remark any way he wished to. 

9. The next morning, November 20, 1930, complainant returned to 

the mine as he had been instructed to do. Complainant went to the mine 

office and stayed in the vicinity of the mine office because he claimed 

that he could not locate Sluss, the superintendent, to whom he had been 

instructed to report on November 20. After complainant had been in the 

vicinity of the mine office for approximately 1-1/2 hours, Mize appeared 

and told complainant that he was being discharged for unsatisfactory 

work. 

2898 
10. Complainant contends that the only reason that Hize could have 

had for discharging him was that he had stopped the end loader and trucks 

from operating on the previous day and that Mize was upset with his having 

done so. Complainant also states that it was a frequent, in fact, almost 

daily, occurrence that he would order equ.ipment to be taken out of service 

because it was unsafe. He also allege.s that he was told to operate a 

truck, on one occasion, with defective Jacobs brake at a time when the 

oil gauge showed only 30 pounds of pressure, whereas, according to com·-: 

plainant, the oil pressure should be in the neighborhood of 85 pounds in 

order for the Jacobs brake to work properly. Complainant also contends 

that he was told to allow equipment to be operated on other occasions when 

he considered it to be unsafe. 

11. The Vice President of Operations, Freal Mize, testified that 

complainant had been discharged on November 20 for the many disruptive 

acts that he had committed on November 19. After Mize had returned home 

and had eaten dinner on November 19, he started getting reports about 

complainant's activities at the mine site. Around 8:30 p.m. Mize was informed that complainant had returned to mine property and had been challenged by the security guard, but the guard had allowed entrance because 

complainant had said that if the security guard didn't let him go by the 

guard house, that there were other ways he could enter mine property. 

Even though the security guard allowed complainant to enter mine property, 

he called Hize about it because he was not sure that complainant should 

be on mine property at that time of night because it was not complainant's wm:king shift at that time. 

The activities in which complainant engaged that evening are hereinafter described. Complainant went to the area of the unloading of coal 

and told Haney, who was supervising the surface activity of the loading 

and unloading of coal on the second shift, that he was going to close 

down Haney's operation. Complainant then went to the lOD underground 

mine and talked to Clay Dials, who was working at the lOD Mine, and advised the employees in the lOD Mine that they should come out of the mine 

because a Federal inspection was going to be made at the mine at 9:00 p.m. 

Complainant thereafter went to the No. 11 underground mine and used the 

mine telephone to call underground and talk to a roof. bolter named Joey 

Stepp. A considerable discussion ensued which was overheard by the mine 

foreman, Roger Scott. At first, complainant tried to get Stepp to have 

the men leave the mine because complainant said that he was on strike 

because of his treatment by the Vice President. According to Scott, 

the latter part of Stepp's and complainant's conversation showed that 

complainant had decided not to ask the men to walk out on strike. Instead, complainant asked Stepp to meet him about 12:30 a.m., after the 

second shift had been completed, for the purpose of helping complainant 

to set up a picket line at the mine site. 

12. Mize also testified that complainant had returned to mine 

property so late in the evening of November 19 that the security guards 

were worried about his presence and Mize advised them to find complainant and remove him bodily from mine property. The security guards were 

reluctant to do so by themselves. Therefore, a deputy sheriff was asked 

2899 
to come and assist the security guards in getting complainant to leave 

mine property. As it turned out, the security guard and the deputy 

sheriff were unable to find complainant and it is assumed that complainant left mine property by some exit other than coming by the guard 

house. It was Mize's contention at the hearing that he had discharged 

complainant because complainant had interfered with the mine's operation 

and had tried to close down the surface activity, as well as the underground mine Noso 11 and lOD. Complainant has never had any authority 

at all in the operation of the underground mines and, as has been indicated above, complainant's employment status on November 19 was not that 

of a truck foreman on any of the shifts. Instead, after the convalescence referred to in Finding No. 2 above, complainant had been given work 

as a substitute foreman and had been assigned other kinds of work on a 

day-to-day basis. 

13. The testimony of Mize was corroborated in this proceeding by 

other witnesses. Raymond Haney, the truck foreman on the night shift, 

stated that it was a fact that complainant had tried to close down his 

operation on the evening of November 19. Haney testified that he checked 

the end loader after its brakes had been adjusted by Butcher, the mechanic, 

and that Webb, the operator of the end loader, was satisfied that the 

brakes were in satisfactory condition; that there was no reason that coal 

could not be loaded without any hazardous exposure of miners to injury. 

Haney also testified that, insofar as a Jacobs brake on a truck is concerned, he had operated a truck for a number of years even though he does 

not have a left arni. Since a Jacobs brake is operated by a lever located 

in the left corner of the windshield, it would have been difficult for 

him to have used such a brake because of his missing left arm. Therefore, Haney stated that he never used a Jacobs brake and felt that any 

truck was safe so long as its other brakes were working. In fact, Haney 

did not even think Jacobs brakes were desirable. Haney stated that he 

checked with the drivers of the coal trucks on the evening of November 19, 

and that they assured him their brakes were satisfactory. He asked a 

number of the drivers to stop their trucks while loaded, and they were 

able to stop in a normal distance; therefore, he believed that there was 

no basis for complainant's contention that the trucks were unsafe. 

14. Brian Webb, the operator of the end loader, which was ordered 

to be parked by complainant, stated that he was standing by the end 

loader at the time that complainant came by and that he had not stopped 

operating the end loader because of any unsafe condition on it, but 

because there were no trucks available to load at that moment, and he 

had gotten out of the end loader to stretch himself and to get close to 

a nearby fire to warm himself. He said the end loader was parked at 

complainant's instructions only because complainant had previously been 

a foreman and Webb had never been told not to take instructions from 

complainant even though Webb knew on November 19 that complainant was 

not his immediate supervisor on that shift. After the brakes had been 

adjusted by Butcher, Webb continued to load coal on the second shift 

without any further problems. Webb also testified, contrary to complainant's contention, that he had not been told by the mechanic that the end 

loader should be used only on the level on which it was being used the 

evening that complainant had required the end loader to be stopped. 

2900 
15. The mechanic who repaired the end loader, Cecil Butcher, stated 

that he could not recall for certain whether he had ever told Haney or 

Webb that the end loader should be used only on level ground; that is, 

that it should not be taken down a hill. Butcher's testimony is somewhat 

inconsistent as to whether he did or did not know that the end loader 

needed additional work to be done on its brakes because he first stated 

that he might or might not have said that the end loader should not be 

operated on a hill. Later he stated that he had not operated the end 

loader, personally, on November 19 and could not state for certain whether 

it was safe on a hill or not. Thereafter, though, he stated that about 

a week after the incident of November 19, the brakes on the end loader 

had been overhauled. Therefore, it is possible that the brakes on the 

end loader would not have been sufficient to hold it on a hill; but since 

complainant didn't operate the end loader and Butcher did not personally 

operate the end loader, the only testimony in the proceeding which is reliable and probative is the testimony of the operator of the end loader, 

Brian Webb, who stated that the brakes were satisfactory; that he had had 

no problem with them before complainant ordered the end loader to be 

stopped, and that he had no problem with the end loader after the brakes 

had been adjusted. 

16. The superintendent or foreman at the No. 11 Mine, Roger Dale 

Scott, testified that it was correct that complainant had come to his 

No. 11 Mine about 8:30 p.m. and had asked to speak to Joey Stepp on the 

mine phone; that Scott allowed complainant to do so, and it was at that 

time that Scott overheard complainant state that he was going to set up 

a picket line. There are exhibits in evidence which show that complainant did subsequently set up a picket line at the mine and it was necessary for respondent to get a temporary restraining order to prohibit 

complainant from continuing to picket at the mine. 

The above findings of fact are sufficient for rendering a decision 

in this case. Although it is true that complainant on November 19 did 

have an end loader to stop operating because there was a doubt about the 

effectiveness of the end loader's brakes, there has been no testimony by 

anyone that any of the trucks which were stopped by complainant actually 

had defective brakes. Even complainant did not state that he personally 

had examined any of the trucks and knew for a fact that their brakes 

were defective. Therefore, if there is to be any finding to the effect 

that complainant was discharged because of his having made safety complaints at respondent's mine, that finding would have to be made with 

respect to the end loader. 

It is probably true that Mize, the Vice President who discharged 

complainant, was upset about complainant's having stopped the end loader 

from operating because of alleged unsafe brakes. The testimony, however, 

shows that Mize was upset more because complainant had done that stopping 

of the end loader at a time when he was not officially in charge of the 

personnel who were working at the mine. The complainant had been told 

to go home and return the next day to work on the day shift. Complainant had come to the mine on his own volition on November 19 to complain 

about questions having been raised as to his integrity in allowing tires 

2901 
to be put ·on some of respondent~s equipment which had been loaned to the 

sheriff. Complainant then ignored his supervisor's instructions about 

his need to be on mine property. Consequently, even though the brakes 

may have needed adjusting on the end loader, the fact that that adjustment was performed and th~t complainant had asked that the brakes be 

inspected 9 appears in no way to have had a bearing on complainant's 

discharge. 

It is a fact that when complainant was told to leave the mine on 

November 19 in the neighborhood of 5:00 p.m., and later in the neighborhood of 7:00 to 7:30 p.m., there was no mention that he had been discharged for certain. If complainant had known that he had been discharged, 

or thought for certain that he had been discharged on November 19, he, 

of course, would not have reported for work at the mine on November 20, 

as Mize had instructed him to do. 

The fact that complainant was discharged early in the morning on 

November 20 shows that something unusual had to have occurred between the 

time complainant left the mine on November 19 and the time that he was 

dscharged on November 20. Since complainant had engaged in a large number 

of disruptive activities which were certainly not in pursuit of tasks that 

he had been officially hired to do, his authority for engaging in any of 

the aforementioned activities on November 19 is entirely lacking. Complainant tried to justify his having stopped the end loader on November 19, 

on the basis that he had previously been a supervisor and that it was the 

company's policy that any supervisor could stop unsafe activities no 

matter when he saw those activities or whether they occurred on his own 

shift or some other supervisor's shift. 

It is significant that no specific action was' taken by Mize to fire 

complainant on November 19 at a time when the only knowledge Mize had 

as to complainant's activities was that he had stopped the end loader 

until its brakes could be checked. If Mize was upset over that incident 

enough to have discharged him, there is no reason for Mize to have told 

complainant that complainant could use his own judgment as to whether 

Mize's remarks meant that complainant had been discharged on November 19. 

On November 20, when Mize did discharge complainant, he left no doubt 

about the fact that complainant had been discharged. The reason for the 

discharge on November 20 was solely related to complainant's unauthorized and unwarranted attempt to cause trouble at three different mines 

in retaliation for the fact that complainant had been told to go home 

and come back to work the next day when his anger about the incident of 

the tires had subsided. 

It should be noted that complainant's action of trying to get the 

superintendent of the !OD Mine to withdraw his miners because there was 

allegedly going to be ·a Federal inspection at the mine at 9:00 p.m. was 

especially reprehensible conduct in view of the fact that section llO(e) 

of the Act provides that "[u]nless otherwise authorized by this Act, any 

person who gives advance notice of any inspection to be conducted under 

this Act shall, upon conviction, be punished by a fine of not more than 

$1,000 or by imprisonment for not more than six months, or both." In 

light of the fact that complainant had violated the spirit of the Act in 

2902 
deliberately announcing a bogus inspection as part of his retaliatory 

conduct of November 19, it ill behooves him to come into this proceeding 

with a claim that he was discharged because respondent had violated 

section 105(c)(l) of the Act by discharging him because of alleged complaints about the lack of adequete brakes on an end loader. 

In Fasula v. Consolidation Coal Co., ~ FMSHRC 2786 (1980), 1/ the 

Commission stated that if a miner's evidence, in general, shows that he 

engaged in a protected activity and thatthe adverse action or discharge 

was motivated in any part by the protected activity, it is complainant's 

obligation to prove that he was discharged for such protected activity. 

The Commission stated that if complainant sustains his burden in the 

first instance, respondent then has the burden of showing by a preponderance of the evidence that even if some aspects of its discharge were 

motivated by the complainant's protected activity, that complainant 

would, nevertheless, have been discharged in any event for unprotected 

activities alone. 

At the conclusion of complainant's testimony, I denied a motion by 

respondent's counsel to dismiss the complaint because of complainant's 

failure to maintain a prima facie case of discharge for protected activity. On the basis of complainant's testimony, if it had not been completely rebutted by respondent, I would have held that there was no 

apparent reason for complainant to have been discharged other than for 

his having stopped the end loader from operating on November 19. 

Now that I have heard respondent's evidence, however, it is clear 

that complainant's credibility has been greatly impaired by his omission 

of occurrences on November 19 and by his failure to explain or justify 

his activities at the mine on the evening of November 19. Respondent's 

evidence supports a finding that complainant would have been discharged 

regardless of his alleged protected activity and shows, in addition, 

that respondent's reason for discharging complainant had no actual relationship to the stopping of the end loader from operating. The most 

that can be said as to complainant's alleged protected activity is that 

he stopped an end loader from operating at a time when he was not on 

official duty and was not clothed with supervisory powers. After complainant had stopped the end loader, he thereafter tried to stop normal 

mining activities at three different mines even though he made absolutely 

no allegations that his disruptive acts had any relation to health or 

safety matters of any kind. 

Consequently, I believe that the Fasula case, supra, is inapplicable to this proceeding because respondent's evidence shows that complainant was solely discharged for reasons other than his alleged 

protected activities. 

1/ The Fasula case was reversed on grounds not here discussed in Consolidation 

Coal Co. v. Fasula, et al., F.2d (No. 80-2600, 3d Cir., decided 

Oct. 30, 1981). ~~ 

2903 
WHEREFORE, it is ordered: 

The Complaint of Discharge, Discrimination, or Interference filed in 

Docket No. KENT 81-89-D is denied because of complainant's failure to prove 

that his discharge was motivated by any activity protected under section 

105(c) (1) of the Federal Mine Safety a.nd Health Act of 1977. 

Distribution: 

R~ff~sJ~ Administrative Law Judge 

(Phone: 703-756-6225) 

Reginald E. Wilcox, Esq., Attorney for Ernest Dials, Kirk & Wilcox, 

Cain Building, Inez, KY 41224 (Certified Mail) 

Donald Combs, Esq., Attorney for Wolf Creek Collieries, Stephens, 

Combs & Page, First National Bank Building, P.O. Drawer 31, 

Pikeville, KY 41501 (Certified Mail) 

MSHA, Special Investigations, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Respondent 

Petitioner 

CONSOLIDATION COAL COMPANY, 

Respondent 

DEC 3 o 1981 

Notice of Contest 

Docket No. LAKE 80-352-R 

Citation No. 823213 

June 9, 1980 

Franklin Highwall No. 65 Mine 

Civil Penalty Proceeding 

Docket No. LAKE 81-67 

A/O No. 33-01065-03028F 

Franklin Highwall No. 65 Mine 

DECISION 

Appearances: 

Before: 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. 

Department of Labor, Cleveland, Ohio, for the Secretary of 

Labor; 

Jerry F. Palmer, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Consolidation Coal Company. 

Judge Cook 

I. Procedural Background 

On July 7, 1980, Consolidation Coal Company (Consol) filed a notice of 

contest in Docket No. LAKE 80-352-R pursuant to section 105(d) ±./ of the 

1_/ Section 105(d) of the 1977 Mine Act provides as follows: 

"If, within 30 days of receipt thereof, an operator of a coal or other 

mine notifies the Secretary that he intends to contest the issuance or 

modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or 

(b) of this section, or the reasonableness of the length of abatement time 

fixed in a citation or modification thereof issued under section 104, or 

2905 
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~· 

(Supp. III 1979) (1977 Mine Act), to contest section 104(d)(l) 2/ Citation 

No. 823213. The notice of contest states, in part, as follows:-

1. At or about 1200 hours on June 9, 1980, Federal 

Coal Mine Inspector, Jack C. Cologie, (A.R. 2-1548) representing himself to be a duly authorized representative of 

the Secretary of Labor (hereinafter "Inspector") issued 

Citation No. 0823213 (hereinafter "Citation") pursuant to 

the provisions contained in Section 104(d)(l) of the Act to 

Mike Torchik, Safety Supervisor, for a condition he allegedly 

fn. 1 (continued) 

any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modification, or termination of any order 

issued under section 104, or the reasonableness of the length of time set 

for abatement by a citation or modification thereof issued under section 

104, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in 

accordance with section 554 of title 5, United States Code, but without 

regard to subsection (a)(3) of such section), and thereafter shall issue 

an order, based on findings of fact, affirming, modifying, or vacating the 

Secretary's citation, order, or proposed penalty, or directing other appropriate relief. Such order shall become final 30 days after its issuance. 

The rules of procedure prescribed by the Commission shall provide affected 

miners or representatives of affected miners an opportunity to participate 

as parties to hearings under this section. The Commission shall take whatever action is necessary to expedite proceedings for hearing appeals of 

orders issued under section 104." 

2/ Section 104(d)(l) of the 1977 Mine Act provides as follows: 

- "If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any 

mandatory health or safety standard, and if he also finds that, while the 

conditions created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or safety 

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

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

inspection of such mine within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds another violation of 

any mandatory health or safety standard and finds such violation to be also 

caused by an unwarrantable failure of such operator to so comply, he shall 

forthwith issue an order requiring the operator to cause all persons in the 

area affected by such violation, except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary determines that 

such violation has been abated." 

2906 
observed during an "AFB" inspection (accident inspection) in 

the Franklin Highwall #65 Mine, Identification No. 33-01065, 

located in Ohio. A copy of this Citation is attached hereto 

as Exhibit "A" in accordance with 29 C.F.R. Section 2700.20(c). 

2. Said Citation under that heading captioned "Condition 

or Practice" alleges that: 

"Ari accident investigation revealed that 

work was being performed underneath an automobile 

in the outside maintenance shop on June 7, 1980. 

The automobile was raised with an electric hoist 

and was not blocked before the maintenan~e foreman began working underneath the vehicle. Ed 

Blazeski was the maintenance foreman. This was 

unwarrantable failure. 

3. Said Citation contained the allegation that the above 

condition or practice constituted a violation of 30 C.F.R. 

77.405(b), a mandatory health or safety standard and that 

the alleged violation was of such a nature that it could 

significantly and substantially contribute to the cause and 

effect of a mine safety or health ha.zard. The Inspector 

further determined that the alleged violation was caused by 

an unwarrantable failure to comply with the stated standard. 

4. At or about 0900 hours on June 10, 1980, Inspector 

Cologie issued a termination of said Citation. A copy of 

this termination is attached hereto as Exhibit "Al." 

5. Consol avers that the Citation is invalid and void, 

and in support of its position states: 

(a) That the Citation fails to cite a condition or 

practice which constituted a violation of mandatory health 

or safety standard 30 C.F.R. 77.405(b), and 

(b) That the Citation fails to cite a condition or 

practice caused by an unwarrantable failure of Consol to 

comply with any mandatory health or safety standard; 

(c) That the Citation fails to state a condition or 

practice which could significantly and substantially 

contribute to the cause and/or effect of a mine safety 

or health hazard; 

(d) That several assertions contained in the Citation 

and upon which the Citation was based are inaccurate. 

2907 
6. Consol requests an investigation of this Citation and 

further requests Cadiz, Ohio as the site for a public hearing 

on this Notice of Contest. 

WHEREFORE, Consol respectfully requests that its Notice 

of Contest be granted and for all of the above and other 

good reasons, Consol additionally requests that the subject 

Citation be vacated or set aside and that all actions taken 

or to be taken with respect thereto or in consequence 

thereof be declared null, void and of no effect. 

An answer was filed by the Secretary of Labor (Secretary) on October 27, 

1980. In his answer, the Secretary (1) admitted the issuance of Citation 

No. 823213 and stated that it was properly issued pursuant to section 104(d) 

of the 1977 Mine Act; (2) submitted that Consol violated a mandatory standard 

and that such violation was caused by Consol's unwarrantable failure to comply with the cited mandatory standard; (3) specifically denied the allegations set forth in Paragraph Nos. S(a), S(b), 5(c), and S(d) of Consol's 

notice of contest; and (4) denied all other allegations set forth in Consol's 

notice of contest. The Secretary prayed for the entry of an order denying 

the relief requested by Consol and affirming the citation. 

On November 10, 1980, Consol filed a motion requesting, amongst other 

things, the entry of an order continuing the proceeding pending the filing 

of the associated civil penalty case. The requested continuance was granted 

on December 9, 1980. 

On January 26, 1981, the Secretary filed a proposal for a penalty in the 

associated civil penalty case, Docket No. LAKE 81-67, pursuant to section 

llO(a) of the 1977 Act praying for the assessment of a civil penalty for the 

alleged violation of mandatory safety standard 30 C.F.R. § 77.405(b) set 

forth in Citation No. 823213. Consol filed an answer on February 13, 1981. 

Rule 27(d) of the Rules of Procedure of the Federal Mine Safety and 

Health Review Commission, 29 C.F.R. § 2700.27(d) (1980), requires that "[a] 

legible copy of each citation or order for which a penalty is sought shall 

be attached to the proposal [for a penalty filed by the Secretary]." The 

proposal for a penalty filed on January 26, 1981, failed, to comply with this 

requirement in th~t a copy of section 103(k) Order No. 823212 was attached 

thereto instead of a copy of Citation No. 823213. On April 7, 1981, the 

Secretary filed a motion to amend the proposal for a penalty to substitute 

a copy of Citation No. 823213 and related attachments for those filed on 

January 26, 1981. The motion was granted on April 23, 1981. 

Pursuant to various notices, the hearing was held on May 1, 1981, with 

representatives of both parties present and participating. Consol moved to 

dismiss the charge of violation at the close of the Secretary's case-in-chief. 

A ruling on the motion is set forth herein. Additionally, the record was left 

open for the posthearing filing of a computer printout setting forth the 

2900 
history of previous violations at Consol's Franklin Highwall No. 65 Mine. 

On May 27, 1981, the Secretary filed the computer printout, and on June 12, 

1981, Consol filed a written communication stating that it had no objection 

to the document's receipt in evidence. Accordingly, on June 15, 1981, an 

order was issued receiving the computer printout, denominated as Exhibit M-1, 

in evidence. 

At the conclusion of the hearing on May 1, 1981, a schedule was set for 

the filing of posthearing briefs and proposed findings of fact and conclusions 

of law. However, the schedule was later revised due to difficulties experienced by counsel. The Secretary and Consol filed posthearing briefs on July 7, 

1981, and July 8, 1981, respectively. The Secretary filed a reply brief on 

July 27, 1981. Consol filed a reply brief and proposed findings of fact and 

proposed conclusions of law on July 27, 1981. 

II. Violation Charged in Docket No. LAKE 81-67 

Citation No. Date 30 C.F.R. Standard 

823213 June 9, 1980 77.405(b) 

III. Witnesses and Exhibits 

A. Witnesses 

The Secretary called Federal mine inspector Jack Ao Cologie as a witness. 

Consol called as its witnesses Mr. Ted Kovalski, superintendent of the 

Franklin Highwall No. 65 Mine; Mr. James M. Maynard, the mine engineer at the 

Franklin Highwall No. 65 Mine; and Mr. Michael A. Torchik, a safety supervisor at the Franklin Highwall No. 65 Mine. 

B. Exhibits 

1. The Secretary introduced the following exhibits in evidence: 

M-1 is a computer printout compiled by the Directorate of Assessments 

setting forth the history of previous violations at Consol's Franklin Highwall 

No. 65 Mine, beginning June 6, 1978, and ending June 5, 1980. 

M-2 is a diagram of the maintenance shop where the accident occurred. 

M-3 is a copy of Citation No. 823213, June 9, 1980, 30 C.F.Ro 

§ 77.405(b), and a copy of the termination thereof. 

2. Consol introduced the following exhibit in evidence: 

0-1 is a diagram styled "Franklin Highwall No. 65 Mine New Portal 

Facilities" which depicts the layout of the mine showing the office, the 

parking lot, and the maintenance shop where the accident occurred. 

2909 
IV. Issues 

A. The general question presented in the above-captioned notice of contest proceeding is whether Citation No. 823213 was validly issued pursuant to 

section 104(d)(l) of the 1977 Mine Act. 1/ The specific issues presented as 

to the citation's validity are as follows: 

1. Whether the condition or practice described in Citation No. 823213 

occurred. 

2. If the condition or practice described in Citation No. 823213 

occurred, then whether such condition or practice constituted a violation 

of mandatory safety standard 30 C.F.R. § 77.405(b). 

3. If the condition or practice described in Citation No. 823213 

occurred, and if such condition or practice constituted a violation of 

mandatory safety standard 30 C.F.R. § 77.405(b), then whether such violation was caused by Consol's unwarrantable failure to comply with such 

mandatory safety standard. 

B. Two basic issues are involved in the above-captioned civil penalty 

proceeding: (1) did a violation of mandatory safety standard 30 C.F.R. 

§ 77.405(b) occur, and (2) what amount should be assessed as a penalty if a 

violation is found to have occurred? In determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness 

of the penalty to the size of the operator's business; (3) whether the operator was negligent; (4) effect of the penalty on the operator's ability to 

continue in business; (5) gravity of the violation; and (6) the operator's 

good faith in attempting rapid abatement of the violation. 

3/ Section 104(d)(l) of the 1977 Mine Act provides for the issuance of a 

citation when an authorized representative of the Secretary of Labor, upon 

any inspection of a coal or other mine, finds: (1) that there has been a 

violation of any mandatory health or safety standard; (2) that, while the 

conditions created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or health hazard; and 

(3) that such violation was caused by the mine operator's unwarrantable 

failure to comply with such mandatory health or safety standard. 

Consol's July 7, 1980, notice of contest specifically raised the issue 

as to whether the alleged violation was of such nature as could significantly 

and substantially contribute to the cause and effect of a mine safety or 

health hazard. However, at the beginning of the hearing on May 1, 1981, 

counsel for Consol withdrew his challenge to the significant and substantial 

criterion by stating that he would not make it an issue. Accordingly, the 

Secretary was relieved of his burden of presenting· a prima facie case as 

to such issue. See Youngstown Mines Corporation, 3 FMSHRC 1793, 1802-1803 

(1981) (Cook, J.). 

2910 
V. Opinion and Findings of Fact 

A. Stipulations 

1. Consol is the owner and operator of the Franklin Highwall No. 65 Mine 

located in Harrison County, Ohio (Tr. 8-10). 

2. Consol and its Franklin Highwall No. 65 Mine are subject to the jurisdiction of the 1977 Mine Act (Tr. 8-10). 

3. The Federal Mine Safety and Health Review Commission has jurisdiction 

of this case (Tr. 8-10). 

4. The inspector who issued Citation No. 823213 was a duly authorized 

representative of the Secretary (Tr. 8-10). 

5. A true and correct copy of Citation No. 823213 was properly served 

upon the mine operator (Tr. 8-10). 

6. The alleged violation was abated in good faith (Tr. 8-10). 

7. Any civil penalty assessed in Docket No. LAKE 81-67 will not affect 

the mine operator's ability to continue in business (Tr. 8-10). 

8. The size of Consol is rated at 44,855,465 tons annually and the size 

of the Franklin Highwall No. 65 Mine is rated at 409,437 tons annually (Tr. 

9). 

B. Consol's Motion to Vacate the Citation at the Close of the Secretary's 

Case-in-chief 

Citation No. 823213 charges Consol with a violation of mandatory safety 

standard 30 C.F.R. § 77.405(b) in connection with an accident which occurred 

at its Franklin Highwall No. 65 Mine on June 7, 1980. !:!:../ The citation 

alleges, in pertinent part, as follows: 

An accident investigation revealed that work was being 

performed underneath an automobile in the outside maintenance shop on June 7, 1980. The automobile was raised with 

an electric hoist and was not blocked before the maintenance 

foreman began working underneath the vehicle. Edmund 

Blazeski was the maintenance foreman. 

(Exh. M-3). 

Mandatory safety standard 30 C.F.R. § 77.405(b) requires that "[n]o 

work shall be performed under machinery or equipment that has been raised 

until such machinery or equipment has been securely blocked in position." 

4/ The citation was issued on June 9, 1980, by Federal mine inspector Jack Ao 

Cologie. 

2911 
Consol moved to dismiss the charge of violation at the close of the 

Secretary's case-in-chief and set forth two grounds in support thereof. The 

motion was taken under advisement to be ruled upon at the time of the writing 

of the decision based solely upon the evidence contained in the record when 

the motion was made. 

Neither the Rules of Procedure of the Federal Mine Safety and Healtlt 

Review Commission, nor the Administrative Procedure Act, nor the 1977 Mine 

Act set forth express standards governing the disposition of motions to dis~ 

miss at the close of an opposing party's case-in-chief. It is therefore 

appropriate to consult the Federal Rules of Civil Procedure for guidance. 

29 C.F.R. § 2700.l(b) (1980). 

Rule 4l(b) of the Federal Rules of Civil Procedure provides, in part, 

as follows: 

After the plaintiff, in an action tried by the court without 

a jury, has completed the presentation of his evidence, the 

defendant, without waiving his right to offer evidence in the 

event the motion is not granted, may move for a dismissal on 

the ground that upon the facts and the law the plaintiff has 

shown no right to relief. The court as trier of the facts 

may then determine them and render judgment against the 

plaintiff or may decline to render any judgment until the 

close of all the evidence. 

In ruling upon a Rule 41(b) motion to dismiss, the trial court is 

empowered to weigh the evidence, consider the law, and find for the defendant 

at the close of the plaintiff's case-in-chief. 5 J. MOORE, FEDERAL PRACTICE 9 

, 41.13[4] at pp. 41-189 - 41-192 (1980). The trial court may grant the 

defendant's motion when the plaintiff fails to present sufficient evidence 

during its case-in-chief to satisfy its burden of proof. See Brennan v. Sine, 

495 F.2d 875 (10th Cir. 1974); Woods v. North American Rock.Well Corporati~ 

480 F.2d 644 (10th Cir. 1973); Pittston-Luzerne Corporation v. United States, 

176 F. Supp. 641 (M.D. Pa. 1959). 

The Secretary proved during his case-in-chief, and I find, that on 

Saturday, June 7, 1980, Mr. Edmond Blazeski, the master mechanic 5/ at 

Consol's Franklin Highwall No. 65 Mine, used the facilities at the maintenance 

shop to perform work on his personal 1974 Cadillac. He had previously welded 

5/ The evidence shows that a master mechanic is a high-ranking supervisory 

employee. According to Inspector Cologie, a master mechanic is in overall 

charge of maintenance and equipment with a nwnber of workers and foremen 

under him. Mr. Ted Kovalski, the superintendent of the Franklin Highwall 

No. 65 Mine, testified during Consol's case-in-chief that a master mechanic 

ranks higher than a maintenance foreman. According to Mr. Kovalski, 

Mr. Blazeski was in charge of five maintenance foremen and 15 to 20 union 

people. Mr. Blazeski, in turn, reported to Mr. Kovalski. 

2912 
the muffler and was wiring it back to prevent it from rubbing against the 

drive shaft. The rear of the car was held in a raised position by a nylon 

sling attached to an overhead electric traveling hoist. Header blocks were 

placed in front of the front wheels to block the car against forward motiono 

However, the rear portion of the car was not blocked so as to prevent the car 

from falling on an individual performing work under it. At some point in time 

between 11 a.m. and 12:30 p.m., the nylon sling broke causing the car to~ 

fall on Mr. Blazeski. ~/ He died of his injuries on June 27, 1980. !_/ 

The first argument advanced by Consol in support of its motion to dismiss the charge of violation is that the Secretary failed to adduce reliable, 

probative, and substantial evidence to prove that the car was not securely 

and properly blocked. Consol's argument is without foundation. The evidence 

adduced by the Secretary and the rational inferences drawn therefrom prove 

that at the time of the accident, Mr. Blazeski was working under the car and 

that it was not properly and securely blocked. Accordingly, it must be concluded that the Secretary met his burden of proof on this issue during his 

case-in-chief. ~/ 

The second argument advanced by Consol in support of its motion to dismiss the charge of violation is that the phrase "machinery or equipment" used 

6/ There were no eyewitnesses to the accident (Tr. 55). 

71 The evidence presented during the Secretary's case-in-chief and the 

rational inferences drawn therefrom show that Mr. Blazeski was acting outside 

the scope of his employment duties at the time of the accident. Although not 

dispositve of the issues presented herein, the evidence presented during 

Consol's case-in-chief shows: (1) that Mr. Blazeski was off duty at the time 

of the accident; (2) that Mr. Blazeski was in violation of company policy at 

the time of the accident in that company policy prohibited the use of company 

facilities, supplies, or equipment for anything other than company business; 

and (3) that neither Mr. Kovalski, Mr. Blazeski's supervisor, nor Mr. James M. 

Maynard, the mine engineer, knew or had reason to know of Mr. Blazeski's 

unauthorized activities. 

8/ There was considerable conflict in the evidence on the record as a whole 

as to whether suitable blocking material was present in or around the maintenance shop. Inspector Cologie testified during the Secretary's case-inchief that a search was conducted during the Mine Safety and Health 

Administration's accident investigation but that no blocks suitable for 

blocking were found either inside or outside the maintenance shop. He 

reiterated this position when recalled as a rebuttal witness on behalf of the 

Secretary. However, Messrs. Kovalski and Torchik testified during Consol's 

case-in-chief that crib blocks were present at the maintenance shop. 

It is unnecessary to resolve this conflict in the testimony. The evi~ 

dence presented during the Secretary's case-in-chief and the evidence on the 

record as a whole shows that the car was not properly and securely blocked 

at the time of the accident. It should be noted that Consol failed to present persuasive evidence during its case-in-chief to rebut the Secretary's 

prima facie case on this issue. 

2913 
in mandatory safety standard 30 C.F.R. § 77.405(b) does not encompass personal automobiles. According to Consol, the mandatory safety standard 

applies only with respect to machinery or equipment used in the operation of 

a coal mine. The Secretary disagrees, maintaining that the mandatory safety 

standard applies to any type of machinery or equipment, including personal 

automobiles, as long as such machinery or equipment is located on coal mine 

property. ~ 

Mandatory safety standard 30 CoF.R. § 77.405(b) was originally promulgated pursuant to section lOl(i) of the Federal Coal Mine Health and Safety 

Act of 1969, 30 U.S.C. § 801 et seq. (1970) (1969 Coal Act); see 36 Fed. Reg. 

9364, 9370 (May 22, 1971). J . ./~The 1969 Coal Act was remedial legislation~­

designed to secure a safe and healthful work environment for those miners 

working in coal mines which were subject to its provisions. See section 2 

of the 1969 Coal Act. To this end, Congress set forth both a-series of 

interim mandatory health and safety standards and procedures for the promulgation of new and improved mandatory health and safety standards. See sections 101, 201 through 206, and 301 through 317 of the 1969 Coal Act. The 

purpose of a mandatory safety standard was summarized on the floor of the 

United States Senate by Senator Harrison Williams as follows: 

To ward off the heavy toll of on-the-job fatalities and 

injuries, S. 2917 provides both a comprehensive set of interim 

safety standards and authority in the Secretary of the Interior 

to promulgate new and improved standardso The interim safety. 

standards in the bill are directed at eliminating the extreme 

hazards of coal mining. [Emphasis added.] 

LEGISLATIVE HISTORY OF THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF L969 

at 244 (1975). 

Although the terms "machinery" and "equipment" are not defined within 

Part 77 of Title 30 of the Code of Federal Regulations, it is clear that the 

mandatory safety standard in which they appear is propertly directed only 

towards the prevention of job-related injuries and fatalities. Therefore, 

I conclude that the phrase "machinery or equipment," as used in mandatory 

safety standard 30 C.F.R. § 77.405(b), encompasses only machinery or equipment used in or to be used in the operation of a coal mine. A personal 

automobile, such as the one involved herein and in the status it then 

occupied, which has no functional relationship to the operation of a coal 

mine is not "machinery or "equipment" within the meaning of the standard. 

In view of the foregoing, I conclude that the condition or practice 

cited in Citation Noo 823213 does not constitute a violation of mandatory 

9/ Mandatory safety standard 30 CoF.R. § 77.405(b) remains in effect as a 

mandatory safety standard under the 1977 Mine Act pursuant to the provisions 

of sections 30l(b)(l) and 30l(c)(2) of the Federal Mine Safety and Health 

Amendments Act of 1977, Pub. L. No. 95-164, 91 STAT. §§ 1290-1322. 
safety standard 30 C.F.R. § 77.405(b). Consol's motion to dismiss the 

charge of violation at the close of the Secretary's case-in-chief will be 

granted. 

VI. Conclusions of Law 

1. The Administrative Law Judge has jurisdiction over the subject matter 

of, and the parties to, these proceedings. 

2. Consolidation Coal Company and its Franklin Highwall Noo 65 Mine have 

been subject to the provisions of the 1977 Mine Act at all times relevant to 

these proceedings. 

3. Federal mine inspector Jack A. Cologie was a duly authorized representative of the Secretary of Labor at all times relevant to these proceedings. 

4. The condition or practice cited in Citation No. 823213 does not constitute a violation of mandatory safety standard 30 C.F.R. § 77.405(b). 

5. All of the conclusions of law set forth in Part V, supr~, are 

reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

The parties filed the posthearing submissions identified in Part I~ 

supra. Such submissions, insofar as they can· be· cunside:red to have contained 

proposed findings of fact and conclusions of law have been considered fully~ 

and except to the extent that such findings and conclusions have been expressly 

or impliedly affirmed in this decision, they are rejected on the grounds that 

they are, in whole or in part, contrary to the facts and law or because they 

are immaterial to the decision in this case. 

ORDER 

Accordingly, IT IS ORDERED that Consol's motion to dismiss the charge of 

violation at the close of the Secretary's case-in-chief be, and hereby is, 

GRANTED. 

IT IS FURTHER ORDERED that the notice of contest in Docket Noo LAKE 

80-352-R be, and hereby is, GRANTED, and that Citation No. 823213 be, and 

hereby is, VACATED. 

IT IS FURTHER ORDERED that the proposal for a penalty in Docket No. LAKE 

81-67 bep and hereby is, DISMISSED. 

2915 
Distribution: 

Jerry F. Palmer, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

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) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of 

Labor 

Standard Distribution 

2916 
~~D~RtlL MINE SAi=IC'fY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLl~E, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CompQfi~t 3op J~!lrge, MINE SAFETY AND.HEALTH 

ADMINISTRATION (MSHA)~ 

on behalf of RICKY RAY 

. 

< 

Discrimination, or Interference 

Docket No. VA 81-32-D 

'FERRELL, 

Complainant 

v. 

. . No. 11 Mine 

R & E COAL COMPANY, 

Appearances: 

Before: 

Respondent. 

DECISION 

Covette Rooney, Attorney, Office of the Solicitor, 

U.S. Department of Labor, for Complainant; 

Ronald L. King, Esq., Coleman, Robertson, Cecil & 

King, Grundy, Virginia, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued August 10, 1981, a hearing in the 

above-entitled proceeding was held on. September 15, 1981, in Richlands, 

Virginia, under section 105(c)(2) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815(c)(2). 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced below (Tr. 346-364): 

This proceeding involves a Complaint of Discharge, Discrimination 

or Interference filed on January 19, 1931, in Docket No. VA 81-32-D, by 

the Secretary of Labor on behalf of Ricky Ray Ferrell, pursuant to 

section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 

alleging that complainant was discharged by respondent, R & E Coal 

Company, on September 4, 1980, in violation of section 105(c)(l) of the 

Act, because Ferrell had made health and safety complaints to respondent 

or respondent's agent regarding conditions in the mine. 

I also consolidated for hearing in this proceeding the civil penalty 

issue which would be raised if respondent should have been found to have 

violated section 105(c)(l) of the Act, but my decision as to the merits 

of the complaint renders moot the civil penalty issue. 

At the conunencement of the hearing, counsel for complainant and 

respondent entered into the following stipulations: 

1. The Administrative Law Judge has jurisdiction over the subject 

matter of the hearing. 

291~; 
2. R & E Coal Corporation is a Virginia corporation engaged in 

the operation of a coal mine and is an operator within the meaning of 

section 3(d) of the Act. 

3. Respondent's No. 11 Mine involved in this case p:roduces 

products which enter commerce or affect commerce so that respondent 

·is subject to the provisions of the Act. 

4. Respondent has no history of a previous violation of section 

105(c)(l). 

5. The No. 11 Mine began operating in April 1980. Its annual 

production in 1980 was 83,160 tons and its annual production in 1981 

is estimated to be 81,428 tons. Respondent also operates another 

coal mine besides the No. 11 Hine and the total annual production of 

both mines for 1930, and estimated annual production for 1981, total 

155,895 and 159,456 tons, respectively. Those production figures support a finding that respondent operates a small coal business. 

6. Complainant in this proceeding was paid $63.70 per day while 

he worked for respondent. 

7. The parties stipulated as to the authenticity of exhibits 

but not to their relevance. 

My decision will be based on the following findings of fact. My 

findings of fact are based on the composite credible testimony of all 

witnesses. I shall indicate in my decision why I have used parts or 

all of the testimony of some witnesses and have rejected parts or all 

of the testimony of other witnesses. 

1. Complainant began working for respondent as a general inside 

laborer toward the end of July 1980 and worked for respondent until 

September 4, 1980, at which time he voluntarily left the mine between 

10:00 and 11:00 a.m. after complaining about excessive dust. 

2. Some background information is needed for understanding what 

happened on September 4 to cause complainant to leave the mine. Complainant's regular job was to remain at the tailpiece in order to clean 

up any coal spillage at the feeder to the conveyor belt and to stop 

the belt in case of a malfunction of the belt. 

3. On September 4, complainant went into the mine arid started 

the day at the tailpiece, but Justus, the mine foreman, came to the 

tailpiece shortly after the shift started and told complainant he would 

have to assist Junior Sesco, the operator of the coal drill and cutting 

machine, because Sesco's regular helper, Jarret Praeter, had been reassigned to be the shot fireman because an inspector had cited respondent 

for failing to have a certified person present when bore holes were being 

charged. Since Praeter was a certified shot firer, Praeter was put in 

charge of shooting the coal with explosives and it was, therefore, necessary to assign complainant to the position of helping the operator of 

the coal drill and cutting machine. 

2918 
4. After complainant had assisted the operator of the drill in 

making 10 holes in the working face of the No. 6 entry and 10 in the 

adjacent crosscut, complainant told the operator of the coal drill and 

cutting machine that he did not like holding the drill or working in 

the dust which was generated by the drill. Therefore, when complainant 

came out of the No. 6 entrys he told Justus, the foreman, that he needed 

a respirator. Justus replied to complainant that respondent did not 

have any respirators and that complainant would have to purchase a respirator, if complainant wanted to use one. 

S. Complainant returned to the drill and helped Sesco drill three 

holes in the No. 7 entry, at which time complainant stopped helping Sesco 

drill and again complained to Justus about the coal drill and the dust. 

Complainant asked Justus if working on the drill was going to be complainant's regular job, and Justμs told complainant that helping on the drill 

was the only job he had for complainant at that time. 

Complainant stood in the crosscut outby the No. 7 entry while Justus 

helped Sesco drill and cut the face of the No. 7 heading. Sesco said it 

took 15 minutes for him to drill the three holes in the No. 7 heading 

when complainant acted as his helper, and took only 10 minutes to drill 

the remaining seven holes with Justus, the foreman,acting as his helper. 

Sesco estimated that it took 3 additional minutes to undercut the 

face of No. 7 heading and required 10 minutes for him, with the help of 

Justus, to get his cutting machine over to the No. 4 entry because of his 

having to get the trailing cable to the cutting machine past the roofbolting machine. Sesco stated that Justus then told Sesco that a problem 

at the feeder required his attention, and Justus left Sesco at the No. 4 

entry and went toward the feeder. Sesco said that complainant was still 

in the crosscut outby No. 7 entry when he and Justus finished drilling 

and cutting in the No. 7 entry, but Sesco stated that complainant did not 

come over to the No. 1 entry where Sesco next went. Therefore, Sesco 

drilled all 10 holes in that heading by himself. 

Sesco learned that complainant had left the mine when Jarret Praeter, 

the shot firer, came to the No. 1 entry and helped Sesco undercut the 

No. 1 entry. Praeter had already shot the coal in the No. 7 entry before 

coming to the No. 1 entry. Complainant told Praeter when he left the 

mine on September 4, that he wouldn't drill coal for his daddy and that 

he was leaving. 

6. When complainant left the mine on September 4, he told Bobby 

Coleman, the operator of the roof-bolting machine, that he was quitting. 

Coleman said Ferrell left before lunch, somewhere in the neighborhood 

of 10:30 or 11:00 a.m. 

Complainant also passed Ned Taylor, the operator of the scoop, when 

he was leaving. Taylor said complainant held up his dinner bucket as a 

sign that he was leaving the mine. Taylor stated that complainant left 

before lunch time. Finally, when complainant left the mine on September 4, 

he walked past one of the owners of the mine, Robert Lester. Lester 

said that complainant did not tell him that complainant was leaving the 

2919 
mine, even though Lester was sitting on a barrel at the time within 

20 or 30 feet of the portal. Lester .said that lre was not aware that 

complainant was leaving until complainant got in the truck he drove 

to the mine and left. Complainant agreed that he said nothing to 

Lester about the fact that he was leaving or why he was leaving, 

although Lester was outside the mine when complainant left. Complainant stated he said nothing to-Lester when he left because Lester had 

once said that whatever Justus-~ the mine foreman, said about running 

the mine was supported by Lester, as Justus had been put in charge of 

operating the mine. 

7. Complainant stated that the mine foreman, Justus, placed tape 

over the intake of some dust pumps when they were put on some miners by 

an MSHA inspector. Complainant said he knew for certain Justus had put 

tape on the pump at complainant's position at the tailpiece, because 

complainant put the tape on his own pump when Justus told complainant 

to do so. 

Justus admitted that he had taped or had had tape put on complainant's 

pump so as to reduce the particles going into the pump, and that he had 

some other miners stay out of the dust on one day so that little dust would 

enter the pump. Justus said he did that after the inspector told him that 

some pumps were used for obtaining quartz samples instead of respirable 

dust samples. The mine foreman had deliberately placed the pump in the 

dirtiest place he could find at the tailpiece after misunderstanding 

the inspector's instructions for obtaining quartz samples. 

The inspector testified that he himself was unfamiliar with the 

procedure for obtaining quartz samples, and that he went to the mine on 

5 days, August 25, 26 and 27, and September 2 and 3, because five different 

samples were required for a sampling of quartz. The inspector could not 

say for certain how many samples were voided by heavy particles accidentally passing into the cyclone, as opposed to the number of samples which 

were so light in weight as to have no validity for sampling purposes. 

The inspector did say that his five repeated trips to the mine on the 

aforesaid dates would have been necessary in any event to obtain the 

number of samples needed for the testing of the quartz content of the 

mine atmosphere. 

8. Complainant also testified that during the five weeks he worked 

for respondent, he saw the miners haul explosives on the canopy of the 

cutting machine, and that the caps or detonators were not separated from 

the explosives at one time. Complainant said, however, that the mishandling of explosives did not contribute to his decision to leave the 

mine on September 4. 

9. Complainant testified further that Justus did not keep curtains 

up at the face or maintain the mine in good condition unless an MSHA 

inspector happened to come to the mine. The inspector's presence at the 

mine would be reported to the miners underground. At that time, the 

miners would all stop whatever they were doing and erect curtains, apply 

rock dust, and do whatever was necessary to make the mine pass inspection. 

Justus, the mine foreman, agreed that he was given a signal or call 

when an inspector was coming into the mine, and he said they did extra 

2920 
work to make the mine pass inspection. But Justus denied that he ever 

had the miners deliberately take down curtains just to get them out of 

the scoop operator's way. 

10. The inspector, Franklin Perkins~ who took the quartz and 

respirable dust samples on August 25, 26,and 27, and September 2 and 3, 

went into the mine to check all pumps within 15 or 20 minutes after the 

miners went underground. The inspector also checked all pumps on at 

least one other occasion on each of the 5 days. The inspector wrote two 

citations on August 25, 1980, at 9:00 and 9:30 a.m., which are Exhibit 

Nos. 1 and 2 in this proceeding. The inspector wrote three citations at 

about 8:30 or 9:00 a.m. on August 27, 1980, which are Exhibit Nos. 3, 

4 and 5 in this proceeding. Exhibit No. 3 was an unwarrantable-failure 

violation. The inspector thereafter wrote three unwarrantable-failure 

orders on September 3, 1980, between 8:00 and 9:30 a.m. which are Exhibit 

Nos. 6, ~ and 8 in this proceeding. Specifically, the inspector wrote 

three roof-control violations which were Citation No. 938172, or Exhibit 

No. 4, Citation No. 938173, or Exhibit No. 5, and Order No. 938176, or 

Exhibit No. 8. The inspector cited three violations pertaining to 

explosives which were Citation No. 938171, or Exhibit No. 3, Order No. 

938174, or Exhibit No. 6, and Order No. 938175, or Exhibit No. 7. The 

inspector wrote one citation pertaining to failure to maintain brattice 

curtains in the Nos. 1 and 2 entries which was Citation No. 938170, 

or Exhibit No. 2. Finally, the inspector wrote a citation regarding 

a bare wire in a trailing cable which was Citation No. 938169, or Exhibit 

No. 1. 

Complainant's credibiility was impaired for the following reasons 

which are not necessarily given in the order of greatest or least 

importance: 

1. Sherman Adkins worked at R & E's No. 11 Mine while complainant 

was working at the mine. Adkins was a relief man and ran any item of 

equipment when an operator of such equipment was absent. He was complainant's brother-in-law and could be expected to support complainant's 

testimony, especially since Adkins had left because of a back injury and 

had brought suit against respondent when respondent failed to help him 

get unemployment compensation. Adkins, however, failed to support complainant as to a number of complainant's allegations: (a) Whereas 

complainant said that Justus, the mine foreman, had curtains taken down 

deliberately to get them out of the scoop's way1 Adkins said curtains 

were along the rib in each entry and that Adkins never asked for curtains 

to be put up; also Junior Sesco, the operator of the drill and cutting 

machine, no longer works for respondent and had no reason to feel intimidated by telling the truth, said that curtains were in each entry and 

could have been installed if complainant had wanted to put up curtains. 

(b) Whereas complainant testified that he went out of the mine on 

September 4, about 2:00 p.m.1 and waited in Adkins' truck until Adkins 

left the mine at the end of the shift, Adkins testified that he was sick 

with a back injury and was not at the mine on September 4 and that complainant had driven Adkins' truck to the mine on September 4. (c) Whereas 

complainant said he left the mine about 2:00 p.m. on September 4, all 

other miners who saw complainant leave, including the scoop operator, 

2921 
bolting-machine operator, and part owner of the mine, testified that 

complainant left well before noon on September 4 and the owner of the 

mine said complainant got in his truck and left immediately without 

waiting for anyone. 

2. Complainant testified that the MSHA inspector who placed the 

pumps on the miners on August 25 and 26 stayed out of the mine all day 

on August 25 and 26, whereas the. inspector testified he checked the pumps 

at least twice by going underground to check the pumps and make an inspection of the working face. The citations and orders written by the inspector on August 25 and 27 and September 3, and described in Finding No. 10 

above, show beyond any doubt that the inspector was underground checking 

the pumps on all 5 days he was at the mine to collect samples. 

3. Although complainant stated that another miner stopped working 

on the drill because of dust, complainant could not give the miner's 

first or last name. The preponderance of the evidence shows that the man 

whose place the complainant took on the drill was transferred to the 

position of certified shot firer and that no one left the position of 

helper to the operator of the drill because of dusty conditions. 

4. Complainant stated that the curtains were deliberately taken 

down in all entries and piled up in the return entry three crosscuts 

outby the working face. That testimony was disputed by Adkins, complainant 1 s brother-in-law, and by Junior Sesco,both of whom testified 

that the curtains were lying along the rib in the headings if the miners 

wanted to use them. Also, since the tailpiece was situatiod only two 

crosscuts from the working face, there would have been no need or reason 

to carry the curtains three breaks or crosscuts outby the face. 

5. Complainant testified that he helped drill 10 holes in the No. 5 

heading and 10 in the crosscut at No. 5. He said it took 2 minutes per 

hole, so that would be 40 minutes plus time required for undercutting. 

Complainant also said he drilled 10 holes in the No. 6 heading which 

would have taken 20 minutes plus time for undercutting and that he 

helped drill seven holes in the No. 7 heading which would have required 

14 minutes. Therefore, drilling time amounted to 40 minutes plus 20 

minutes plus 14 minutes, or 1 hour and 14 minutes plus time for undercutting. Sesco stated that only 3 minutes were required to undercut 

the No. 7 heading, so even if one adds 30 minutes for undercutting in 

No. 5 heading and the crosscut and in Nos. 6 and 7 headings, complainant 

would have worked on the drill for 1 hour and 45 minutes, whereas complainant testified that he worked on the drill for 3-1/2 or 4 hours 

on September 4. 

6. Complainant testified he drilled in the No. 5 heading and the 

break at No. 5 and then in the No. 6 heading and seven holes in the No. 7 

heading, whereas both Praeter and Sesco stated that they had already 

drilled in the No. 5 heading and the break at No. 5 before complainant 

started helping. Sesco's recollection of having to get assistance from 

Justus to finish drilling in the No. 7 entry and his taking the cutting 

machine to the No. 4 entry with the help of Justus and about Justus 

2922 
having to go to the feeder shows that Sesco's recollection was vivid 

and contained sufficient details to support my conclusion that Sesco's 

version of the drilling sequence is more credible than complainant's 

recollection of the facts. 

7. Complainant testified that Justus, the mine foreman, told him 

on September 4, after he had complained about dust for the second time, 

that he would have to drill coal or else, whereas Sesco, the operator 

of the coal drill, testified that Justus told complainant that he would 

have to drill coal on September 4 because that was the job which had 

to be done on that day in view of the fact that Praeter had been transferred from the position of helping to drill coal to the position of 

shot firer. I believe that Sesco's version is more credible than complainant's version because in his complaint filed with MSHA, complainant 

stated that he asked Justus if the position of helper on the coal drill 

was going to be complainant's regular job. A reply to that question by 

Justus to the effect that the helper to the operator of the coal drill 

was the only job he had for complainant that day is a more likely reply 

to the question which the complainant says he asked than the complainant's 

allegation that Justus told complainant he would have to drill coal or 

else. 

In Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980), the Commission held that a miner has a right under the Act to refuse to work 

in a hazardous condition. ];./ The Commission stated that the miner has 

established a prima-facie case if he shows that he was engaged in a 

protected activity and that the act of discharge or discrimination was 

motivated in any part by the protected activity. The Commission said 

,that it is respondent's burden to show, if the miner makes out a primafacie case, by a preponderance of evidence that the adverse action would 

have been taken in any event for the unprotected activity alone. In 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981), the Commission 

extended its holding in Pasula as to the miner's right to refuse to work 

in hazardous conditions by ruling that a miner may engage in affirmative 

action to abate the hazardous condition which caused him to refuse to 

work. 

The evidence in this proceeding shows beyond any doubt, particularly 

as set out in Finding Nos. 5 and 6 above, that complainant refused to 

drill coal on September 4. Under the Pasula case, complainant was engaged 

in a protected activity when he refused to continue drilling coal. One 

of the witnesses called by the complainant in this proceeding was Junior 

Sesco, the operator of the coal drill and cutting machine on September 4. 

Sesco had to take his wife to the hospital on the day of the hearing in 

this proceeding. Before Sesco had testified, I denied a motion by 

respondent's counsel for dismissal of the complaint for failure to prove 

a violation of section lOS(c)(l). After respondent had presented two of 

its witnesses, respondent's case was interrupted so that complainant's 

final witness, Sesco, could be presented. If Sesco's testimony had been 

in the record when respondent's counsel made his motion to dismiss, 

1/ Reversed on other grounds, No. 80-2600 (3d Cir. Oct. 30. 1981). 

2923 
I would have been very doubtful that complainant had proven a prima-f acie 

case, or that the alleged discrimination involved in this proceeding had 

occurred, because Sesco's testimony was devastating to complainant's 

contention that he was told he had to drill coal in dusty conditions 

without being provided with curtains or any other type of relief. 

Although Sesco's testimony supports complainant's allegation that 

Justus told the complainant he would have to purchase his own respirator, 

Sesco 1 s testimony rebuts complainant's contentions by showing that Justus 

did not object to complainant's hanging a curtain and that Justus did not 

tell complainant that he would have to drill coal in unmitigated dusty 

conditions or else. Instead, Sesco testified that Justus only stated 

that he could not offer the complainant an alternate job on September 4 

in answer to the complainant's question as to whether his regular job in 

the mine would continue to be as helper to the operator of the coal drill 

and cutting machine. 

The complainant, from the filing of his initial complaint with MSHA 

to the conclusion of this hearing, had a very tenuous case at best because 

his only hope of showing a violation of section lOS(c)(l) was to establish 

that he was told that his complaint about dust would in no way be mitigated 

and that he would either work in dust or else -- which for the purposes 

of this case must be interpreted to mean that he would be discharged if 

he either tried to engage in affirmative action by erecting a brattice 

curtain or insisted that repondent provide him with a respirator. 

I believe that Justus' testimony in this proceeding has a rather 

low credibility rating because nearly all the witnesses testified that he 

failed to make them put up curtains when they were working in a heading, 

whereas Justus stated that he made the miners hang curtains when he saw 

them working without curtains. The miners had no reason to say that they 

weren't using curtains if, in fact, they were. Also one of the inspector's 

citations (Exhibit No. 2) issued on August 25, 1980, was for failure of 

respondent to use brattice curtains in all entries. Moreover, Sesco's 

testimony and that of the part owner, Robert Lester, show that Justus 

made no attempt to get a respirator by going outside for one until after 

the complainant had already left the mine. Under Sesco's testimony, 

Justus helped Sesco drill and undercut and move the cutting machine for 

at least 23 minutes before Justus went to check the feeder. The complainant did not leave for at least 28 minutes after asking Justus for 

the respirator. Thus, if Justus had actually told the complainant he 

would go outside for a respirator, he could have gone out and been back 

in the mine with a respirator before complainant left the mine. Therefore, the preponderance of the evidence supports the complainant's contention that Justus refused even to try obtaining a respirator for 

complainant. 

Nevertheless, Sesco's testimony established that Justus did not 

threaten to discharge complainant for asking about the use of curtains, 

assuming complainant really did press Justus for permission to use 

curtains. Adkins had left respondent's mine after an injury and had 

sued respondent for some compensation. Therefore, Adkins would have had 

no reason to fail to support complainant's case, especially since Adkins 

292~ 
was compla1nant's brother-in-law, but Adkins' testimony also shows that 

the miners had no need to fear using curtains if they wished to do so 

and that the curtains were left lying in the entries if they were knocked 

down by the scoop. 

For the foregoing reasons, I find that while complainant was engaged 

in a protected activity when he asked for a respirator to work in a dusty 

or unhealthful environment, he failed to prove that he would have been 

discharged for asking for the respirator or for hanging a curtain to 

alleviate the dust while he was helping to operate the coal drill. 

The complainant does -not even allege that he was discharged; at most, 

his case depended on his being able to prove that he had to drill coal 

in an unmitigated dusty condition or be discharged. His evidence simply 

does not rise to that height of proof which is necessary for him to 

prove that respondent violated section 105(c)(l) when complainant left 

the mine on September 4. 

I find that the preponderance of the evidence shows that the complainant did not like to help operate the coal drill in the first instance. Part of complainant's dislike for the coal drill may well have 

been Sesco's fault for using a dull bit longer than he should have 

because Sesco stated that it took him and complainant 5 minutes to drill 

each of the three holes which complainant helped Sesco drill in the No. 7 

entry, or a total of 15 minutes, whereas after Justus started helping 

Sesco in the No. 7 entry, Sesco and Justus drilled seven holes in 10 

minutes or about 1-1/2 minutes per hole. Consequently, there were many 

aspects of working on the coal drill which were not to complainant's 

liking. When complainant left on September 4, he told Praeter that he 

wouldn't drill coal for his daddy, but he failed to state to anyone on 

September 4 that he was forced to leave or be fired for failure to drill 

coal in a dusty environment. Therefore, the evidence simply does not 

prove that complainant was discharged for making a health or safety 

complaint. 

WHEREFORE, it is ordered: 

The Complaint of Discharge, Discrimination, or Interference filed 

on January 19, 1981, in Docket No. VA 81-32-D is denied for failure to 

prove that a violation of section 105(c)(l) occurred. 

Administrative 

Richard 

~e.~~ C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

2925 
Distribution:· 

Covette Rooney, Attorney, Office of the Solicitor, U.S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Ronald L. King, Esq., Attorney for R & E Coal Company, Coleman, Robertson, 

Cecil & King, P.O. Box 1560 9 Grundy, VA 24614 (Certified Mail) 

MSHA, Special Investigation, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

2926 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 81-51-M 

Petitioner A.O. No. 44-03995-05007F 

v. 

Culpepper Plant 

A. H. SMITH STONE, 

Appearances: 

Before: 

Respondent 

DECISION 

David T. Bush, Attorney, Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for the petitioner; 

Wheeler Green, Safety Director, A. H. Smith Stone, 

Branchville, Maryland, for the 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 alleged violation pursuant to the Act and the implementing mandatory safety and health standards. Respondent filed a timely 

answer in the proceeding and a hearing was held on November 5, 1981, in 

Falls Church, Virginia, and the parties appeared and participated therein. 

The parties waived the filing of posthearing proposed findings and conclusions 9 but were afforded the opportunity to make arguments on the record and 

those have been considered by me in the course of this decision. 

Issues 

The principal issues presented in this proceeding are (1) whether respondent has violated the provisions of the Act and implementing regulations as 

alleged in the proposal for assessment of civil penalty filed in this proceeding, and, if so, (2) the appropriate civil penalty that should be assessed 

against the respondent for the alleged violation based upon the criteria set 

forth in section llO(i) of the Act. Additional issues raised by the parties 

are identified and disposed of in the course of this decision. 

2927 
In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty 

to the size of the business of the operator, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Realth 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. § 2700.1 et seq. 

4. 30 C.F.R. § 56.4-35 provides as follows: "Mandatory. Before any 

heat is applied to pipelines or containers which have contained flammable 

or combustible substances, they shall be drained, ventilated, thoroughly 

cleaned of residual substances and filled with either an inert gas or, 

where compatible, filled with water." 

Stipulations 

The parties stipulated to the following: 

l• A. H. Smith Stone owns and operates the Culpeper Plant. 

2. A. H. Smith Stone and the Culpeper Plant are subject to the Mine 

Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over this proceeding. 

4. Citation No. 309243 was properly served upon A. H. Smith Stone by 

Carl Liddeke and may be admitted into evidence to show its issuance and not 

for the relevancy or truthfulness of the statements contained therein. 

5. The size of A.H. Smith Stone is as follows: 167,966 annual production tonnage; 17,462 annual production tonnage for the Culpeper Pla~t. 

6. Prior to the issuance of the subject citation, the operator had a 

history of eight assessed violations. 

Discussion 

Citation No. 309243, November 26, 1980, alleged the following: 

An employee was critically injured on November 24, 1980, 

at about 1:53 p.m. by an explosion and resulting fire when he 

2928 
attempted to cut a fifty-five gallon oil drum with a Victor 

C-1400 cutting torch. The oil drum had contained Exxon 

XD3-30 engine lubricating oil, but was considered empty. The 

fill plugs had not been purged of fumes or filled with an 

inert gas or water. 

Action to terminate: "All employees were instructed in the proper procedures to use when cutting or welding containers that have had flammable 

liquids." 

Testimony and Evidence adduced by Petitioner 

MSHA inspector Carl W. Liddeke testified that he issued the citation in 

question after he conducted an investigation on November 2S, 1980, the day 

after the accident. He spoke with employee Henry K. Nicholson and 

Superintendent Lonnie Fields about the accident. He observed a SS-gallon oil 

drum that had the bottom blown out of it. It appeared that the drum had 

exploded when a cutting torch had been applied to it. Mr. Liddeke stated 

that Mr. Fields had told him that he was unaware of any permission given to 

an employee to cut the drum. Since Mr. Fields also stated that he had no 

knowledge that the injured employee, actaully cut the drum, he determined 

that there was no negligence. Mr. Liddeke then testified that his opinion 

had changed regarding the operator's degree of negligence, since subsequent 

to his investigation, he received conflicting statements from the victim's 

wife (Rachael Morton) regarding kr.owledge on the part of the operator. 

Mr. Fields had told him that employees frequently took barrels for their own 

use, and Mr. Lirldeke stated that the barrels are normally emptied and stored 

without being purged (Tr. 17-30). 

On cross-examination, Mr. Liddeke stated that the respondent was 

negligent because the accide,nt happened on company property during working 

hours. He also testified that he knew from the conversations he had with the 

employees that the company had cut oil drums, but he did not know whether 

any instructions for cutting the barrels had been given to the employees (Tr. 

30-31, S3-S4). 

In response to bench questioning, Mr. Liddeke stated that the employees 

could have the barrels by merely asking for them. Mrs. Morton had learned 

from Mr. Fields that her husband had asked for the barrel which later 

exploded. He testified that normally the barrels are not purged of liquid 

before they are stored, and he confirmed that the only barrel he examined 

and tested was the one Mr. Morton had tried to cut. He determined that an 

explodable liquid was present since the barrel ignited when a torch was 

applied to it. He felt that if the barrel had been purged of the flammable 

liquid, it would not have exploded. Furthermore, part of the barrel had been 

sent to a state laboratory which showed that a petroleum distillate-type 

material was present (Exh. ALJ-1; Tr. 31-37). 

Mr. Liddeke testified that Mr. Morton intended to use the barrel as an 

oil-drain pan for his personal tractor, and that Mr. Fields told him that 

2929 
sometimes barrels were used to transport diesel fuel to vehicles. Also, they 

often were cut and used as garbage cans, but Mr. Liddeke could not recall 

seeing these barrels used in these ways (Tr. 38-49). 

Henry K. Nicholson, who was a loader operator at A. H. Smith Stone at 

the time of the accident, testified that he is presently employed as a 

correction officer by the State of Virginia. He had been an employee of ~ A. H. Smith Stone for 3 years and on the day of the accident he was using a 

welder and a torch to construct a rack on which to store tools. 

Mr. Nicholson testified that Mr. Morton came to him in his work trailer to 

ask whether he could use a torch later on that day to cut a barrel so that 

he could drain oil at his house. Mr. Nicholson stated that Mr. Fields would 

let employees have these barrels if they asked for them. Mr. Morton had 

always asked permission to take the barrels and Mr. Nicholson remembered 

seeing him use a torch on them in the past. After obtaining permission, 

Mr. Morton returned to the trailer and took the torch. Mr. Nicholson 

stated that the next thing he heard was an explosion and then he saw 

Mr. Morton on fire. Looking at the barrel afterwards, he could tell that 

a torch had been applied to it (Tr. 54-58, 59-60). 

On cross-examination, Hr. Nicholson testified that Mr. Fields had 

instructed the employees as to how barrels should be cut. Plugs were to be 

taken out and the barrels allowed to ventilate, after which they should be 

filled with water and rinsed out. After this procedure was completed, 

if the barrels were to be used as trash cans, they could be torched. 

Mr. Nicholson stated that the barrel which exploded still had a plug in it, 

so no air could get in. He also indicated that the normal storage area for 

barrels was behind the trailer. The antifreeze barrels were returnable but 

he was not sure whether the Exxon barrels were returnable. Sometimes empty 

oil drums were refilled to transport fuel. The barrel that exploded had 

contained Exxon motor oil for the loaders and dozers (Tr. 58-59, 60-63). 

Mrs. Rachel Morton, wife of the accident victim, testified that her 

husband had taken company barrels before and used a torch on them. She 

stated that she spoke with Mr. Fields in the hospital on Thanksgiving Day 

and he had told her that her husband had asked specifically for the barrel 

and that Mr. Fields told him that he could use a torch on it as long as it 

would not interfere with Henry Nicholson's job. Mrs. Morton stated further 

that during her hospital visit she repeatedly asked her husband whether he 

had asked permission to take a barrel and cut it with a torch. Although he 

could not speak at the time, he nodded affirmatively. Her husband also 

indicated that he had checked to see whether anything was in the barrel 

(Tr. 63-67). 

On cross-examination, Mrs. Morton testified that Mr. Morton brought the 

barrels home for various uses. She knew that he always asked Mr. Fields for 

them,and had observed Mr. Morton cut these barrels at home (Tr. 67-69). 

Ms. Sarah C. Honenberger testified that she was retained by Mrs. Morton 

to determine whether she was entitled to any insurance or workmen's compensation benefits as a result of Mr. Morton's death after the accident in 

2930 
question. She stated that Mrs. Morton has received all available benefits 

and has no present claims against the company. She testified that she had 

spoken with Mr. Fields regarding the circumstances surrounding the accident 

in order to know how the company would report it to the state industrial 

commission. Mr. Fields stated that Mr. Morton had asked for a barrel to 

take home as this was his usual practice. After the accident, Mr. Nicholson 

advised him that Mr. Morton had borrowed his welding torch (Tr. 70-73). 

On cross-examination, Ms. Hanenberger testified that she did not recall 

Mr. Fields stating that he specifically told Mr. Morton to use a cutting 

torch on the barrel. The only purpose of her conversation with Mr. Fields 

was to determine whether Mr. Morton's activities were work-related (Tr. 73-

74). 

Testimony and Evidence Adduced by Respondent 

Lonnie Fields, superintendent at A. H. Smith Stone at the time of the 

accident, testified that Mr. Morton had asked permission to take the barrel 

in qeustion, and he assumed Mr. Morton would take it home. Mr. Morton did 

not ask to use the torch although he had used it before. Mr. Fields stated 

that he had no knowledge that Mr. Morton was going to use the torch, but he 

had instructed him in the past on torching barrels, telling him to remove 

the plugs and to check whether anything remained inside. This was part of 

A. H. Smith Stone's regular safety program in which all regulations were 

discussed. Mr. Fields indicated that the employees knew that Exxon takes 

back empty drums (Tr. 75-82). 

On cross-examination, Mr. Fields stated that there was no doubt 

Mr. Morton had used a torch on the barrel on the day in question as he had 

used a torch on them in the past. On this particular day, however, 

Mr. Fields assumed that he was taking the barrel home with him for his own 

use. Mr. Fields gave him no instructions to cut it for some specific 

purpose, and he admitted that he would probably have given Mr. Morton 

permission to cut the barrel on company time since Mr. Morton had always 

taken proper safeguards and purged the barrels. Mr. Fields indicated that 

all the barrels were stored outside in a trailer. He stated that the empty 

drums still had the plugs in because they were returnable and the company 

wanted the used ones (Tr. 83-90). 

Findings and Conclusions 

Fact of Violation 

Upon examining the evidence of record and considering the testimony 

elicited at the hearing, I have made the following factual conclusions 

regarding the events leading t~ the accident of November 24, 1980. Mr. Morton 

asked Mr. Fields for one of the empty Exxon oil barrels which were stored 

behind the trailer waiting to be picked up by the oil company. It was 

Mr. Fields' practice to allow the barrels to be taken by the employees if 

they asked permission for them. On this particular day, Mr. Fields assumed 

2931 
that Mr. Morton would take the barrel home for his personal use. After asking for the barrel, Mr. Morton then obtained a torch from Mr. Nicholson. 

Mr. Nicholson had seen Mr. Morton use a torch on the barrels before. 

Mr. Morton then took the torch outside, applied it to the barrel, and caused 

an explosion which resulted in fatal injuries. The explosion was the result 

of a flammable liquid which was in the barrel, and the investigation aft~r 

the accident indicated that the plug in the barrel had not been removed and 

the barrel had not been ventilated or rinsed out. 

The em~loyees at A. H. Smith Stone were sometimes ordered to cut the 

barrels with a torch to make trash cans for the company's property. The 

employees had been instructed in the proper procedure for purging the 

barrels. They were supposed to take the plug out of the barrel and allow 

it to ventilate. After it was rinsed out with water, it could be torched. 

There is no question that a violation of 30 C.F.R. § 56.4-35 took place. 

The evidence indicates that Mr. Morton applied a torch to a container which 

had contained combustible or flammable oil without draining, ventilating, and 

cleaning the barrel. After the explosion9 the barrel was examined revealing 

that the plug was still intact. An examination of the plug revealed a 

residue of the fuel oil which had been in the barrel (Exh. ALJ-1). All the 

parties agree that the barrel would not have exploded if it had been properly 

cleaned and drained. Accordingly, there was a violation of the cited mandatory safety standard and the citation is AFFIRMED. 

Gravity 

The presence of empty oil drums which contained residue of the oil, 

together with a practice of using cut-off drums as garbage cans, presented a 

hazardous situation since torches were used on the drumso As indicated here, 

the danger is extremely serious, since an explosion is likely to result when 

a torch is applied to an unclean barrelo Here, Mr. Morton suffered serious 

burns which eventually led to his deatho Accordingly, I find this violation 

to be very serious. 

Negligence 

The inspector originally made a finding of no negligence because the 

oil drum was cut without the operator's knowledge. At the hearing, MSHA 

counsel stated that based on newly uncovered evidence, it was revealed that 

the operator was negligent and this negligence resulted in the accident and 

death of Mr. Mortono 

The facts in this case indicate that the barrels were stored in an 

accessible location near the trailer on the propertyo Although these empty 

barrels were returnable and sometimes picked up by the oil company, it was 

not an unusual practice for the barrels to be taken by the employees or used 

on the property. Management was liberal in granting permission to take these 

empty barrels. Management had also in the past instructed employees to cut 

the barrels into trash cans by using a torch. The employees had been told to 

2932 
take the plugs out of the barrels and to ventilate them before cutting them. 

Therefore, it was not unforeseeable that an employee who asked permission for 

a barrel might use a torch on it. In fact, Mr. Fields stated that he probably 

would have given permission to Mr. Morton to cut the drum on company time 

(Tr. 87). It is fair to assume then that the operator knew or should have 

known that there was a likelihood that Mr. Morton would use a torch on the 

oil drum in question. ~ 

Respondent has raised the argument that since Mr. Morton was negligent 

in not removing the plugs from the oil drum prior to applying the torch, the 

operator should not have been found negligent. This is based on the premise 

that since the employees had been instructed in the proper and safe way to 

purge a barrel before torching it, the operator had fulfilled ~ts 

reponsibility. 

I conclude that respondent knew or should have known of the possibility 

of an employee using a torch on a barrel before purging it. See Secretary of 

Labor v. Heldenfels Brothers, Inc., 2 FMSHRC 851 (1980). I find that the 

events of November 24, 1980, were highly foreseeable because employees often 

took barrels, and using torches on them was not an uncommon practice. Knowing 

this, respondent should have taken extra precautions to insure that all 

barrels were purged. Since the consequences of an employee putting a torch 

to a barrel containing oil residue could predictably result in an explosion 

resulting in serious or fatal injuries to one or more people, the duty of the 

operator is much greater. While Respondent did attempt to instruct the 

employees as to the t)roper procedur.e for purgJng barrels~ management could 

have been more diligent in its attempts to insure that all barrels were 

prop~rly ventilated and cleaned. It could have ·required that ev-ery barrel be 

ventilated and cleaned as soon as they were empty and before they were stored 

behind the trailer. By not doing so~ the operator took the risk that someone 

might torch a barrel before taking all the necessary steps to clean it. 

Mr. Morton's conduct was "not aberrational or unforeseeable, but ordinary 

human error that stemmed from a lack of safety consciousness." See 

Secretary of Labor v. Warner Company, 2 FMSHRC 972, 973 (1980)0 Accordingly~ 

I conclude and find that the respondent was negligent for not foreseeing 

Mr. Morton's conduct and taking action to prevent a possible accident. 

This situation is not analogous to the facts of Secretary of Labor v. 

Nacco Mining Company, 3 FMSHRC 848. There the Commission found the operator 

not negligent for the acts of the foreman where the foreman proceeded alone 

past the last row of permanent supports under loose, unsupported roof where 

a large rock fell on him causing the injuries from which he later died. The 

Commission ruled that "where an operator has taken reasonable steps to avoid 

a particular class of accident and the erring supervisor unf oreseeably exposes 

only himself to risk, it makes little enforcement sense to penalize the aper,, 

ator for 'negligence."' 3 FMSHRC at 850. But here the employee's conduct 

and subsequent accident were foreseeable and I have found that the operator 

did not take all reasonable steps to insure that the barrels were properly 

drained and cleaned. Therefore~ the operator was negligent. 

2933 
In considering the degree of negligence to be imposed for this violaion, 

I have taken into account the fact that the operator had instructed the 

employees in the proper cleaning procedures. While these efforts were inadequate to fulfill the operator's duty of care for avoiding an accident, I 

cannot conclude that the record in this case supports a finding that the 

operator was grossly negligent. I find that the operator did not exercise 

reckless disregard of mandatory health and safety standards or recklessly or 

deliberately fail to correct an unsafe condition or practice which was known 

to exist. 

Good Faith Compliance 

On the facts of this case it is clear that abatement took place by means 

of the post-accident instructions to all employees concerning the proper 

procedures and safeguards when cutting or welding containers that have 

contained flammable or combustible materials. Inspector Liddeke found that 

the violation was abated within a reasonable time and the respondent complied 

with the instructional requirements of the abatement. Thus, it is clear that 

the respondent exhibited good faith in the abatement requirements imposed by 

the inspector. However, some comment is in order with regard to the language 

of section 56.4-35, and these follow below. 

In my view, the inspector should have considered requiring the respondent 

to purge all empty oil drums which remained in storage on respondent's prop·-

erty after the accident in question so as to preclude another unfortunate 

accident. Hopefully, as a result of· this incident~ the respondent will insure 

that steps are taken to purge all such oil drums so as to render them safe 

while in storage or awaiting shipment to the supplier. Further, I suggest 

that MSHA consider the possibility of amending the standard to specifically 

require that all such flammable containers be purged and rendered safe. The 

regulatory language "[B]efore any heat is applied" leaves much to the imagination and whim of any employee who may put a torch to an oil drum which may 

or may not have been purged of flammable or combustible residue. By requiring this to be done as soon as the drum is empty and stored on company 

property where it is readily available to anyone would eliminate any 

uncertainty. 

History of Prior Violations 

The parties stipulated that prior to the issuance of the subject citation, the operator had a history of eight violations. This indicates that 

respondent has a good record with respect to safety and I have considered 

this in assessing a civil penaltyo 

Size of Business and Effect of Penalty on the Respondent's Ability to Remain 

in Business 

The parties stipulated that A. Ho Smith Stone produces 167,966 annual 

tons and 17,462 tons is produced at the Culpepper Plant. I find that this 

is a small operation and that fact is reflected in the penalty assessed. 

The penalty will not adversely affect its ability to remain in business. 

2934 
Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, _and taking into 

account the requirements of section llO(i) of the Act, I conclude and find 

that a penalty assessment in the amount of $1,000 is reasonable and appro~ 

priate for the citation which I have affirmed, and the respondent IS ORD~RED 

to pay the assessed penalty within thirty (30) days of the date of this 

decision and order. 

Administrative 

Geo A. Koutras 

~~ Law Judge 

Distribution: 

David Bush, Attorney, Office of the Solicitor, U.S. Department of Labor, 

Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Wheeler Green, Safety Director, A. H. Smith, Stone Office, Branchville 9 

MD 20740 (Certified Mail) 

2935 
~EDER.AL MIN~ SAFETV AND HEALTH R'EYIEW COMMtSSHlN 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCli, VIRGINIA 22041 

DEC 3 o 1981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (HSI-IA) , 

Petitioner 

Docket No. VA 81-61 

Assessment Control 

No. 44-01519-03025 V 

v. 

No. 3 Mine 

HARMAN MINING COMPANY, 

Respondent 

Appearances: 

Before; 

DECISION 

Covette Rooney, Attorney, Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Robert H. Richardson, Esq., Richardson, Kemper, 

Hancock & Davis, Bluefield, West Virginia, for 

Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued August 10, 1981, a hearing in 

the above-entitled proceeding was held on September 16, 1981, in Richlands, 

Virginia, under section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 815(d). 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced below (Tr. 106-127): 

This proceeding involves a petition for assessment of civil penalty 

filed in Docket No. VA 81-61 on June 23, 1981, by the Secretary of Labor, 

seeking to have a civil penalty assessed for a violation of 30 C.F.R. 

§ 75.316 by Harman Mining Company. 

The issues in civil penalty cases are whether a violation occurred 

and, if so, what civil penalty should be assessed based on the six 

criteria which are set forth in section llO(i) of the Federal Mine 

Safety and Health Act of 1977. 

In order to determine whether a violation has occurred, I must 

first make some findings of fact, which will be set forth in enur.1erated paragraphs. 

1. On January 26, 1931, Inspector Larry Clevinger made an examination of the No. 3 Mine of Harman Mining Company, Incorporated. At 

that time he wrote Citation No. 939522 under section 104(d)(l) of the 

Act citing a violation of section 75.316, and stating that the ventilation system, methan~ and dust control plan was not being complied 

with and that the line brattice was not being maintained from the 

last open crosscut to within 10 feet of the face of the Nos. 1, 2, 3, 

and 4 entries; and that the check curtains were not installed in the 

Nos •. 1, 2, 3, and 4 entries. 

2936 
2. The inspector introduced as Exhibit 4A a diagram which 

showed the distances which various entries had been driven without 

there having been erected line brattices. Those distances range 

from 115 feet maximum to 80 feet minimum in the Nos. 2 and 1 entries, 

respectively. There were also some crosscuts to the left of the 

Nos. 4, 3, and 2 entries~ which'were .20, 45, and 30 .feet in depth, 

respectively. The inspector introdueed as Exhibit 4B a diagram of 

that same area and those same distances, on which he had drawn the 

brattice curtairts which should have been erected, if the ventilation 

plan had been followed. 

3. The inspector stated specifically that the portion of the 

ventilation plan which was not complied with was paragraph r2 on page 

four of the plan, which is Exhibit 3 in this proceeding. The first 

sentence in that paragraph states: "Properly installed and adequately 

maintained line brattice or other approved devices shall be continuously used from the last open crosscut in each working place of the working section." The inspector stated that was the provision that he 

specifically had in mind when he alleged the violation in Citation 

No. 939522. 

4. The inspector defended his citing or issuing the citation 

under section 104(d)(l) of the Act by pointing out that prior to the 

time the Commission's decision was issued in MSHA v. Cement Division, 

National Gypsum Company, 3 FMSHRC 822 (1981),~used criteria under 

which he wrote unwarrantable failure orders and citations, based on a 

decision issued by the former Board of Mine Operations Appeals after 

the Board had been reversed by a circuit court. After reversal, the 

Board held that the term, "significant and substantial," which has 

to be found as to a given violation before a citation can be issued 

under section 104(d), needs to involve no more than a remote or speculative possibility that an injury might occur. The inspector indicated 

that a violation did not have to be very serious at all in order to be 

considered a "significant and substantial" violation under the criteria 

he was then following. 

In the Commission's decision in the National Gypsum case that I 

just cited, the Commission stated that it believed that the previous 

criteria for finding a violation to be significant and substantial 

had been so broadly defined that the words had lost their basic meaning. 

The Commission stated on page 828 of its decision that " * * * [o]ur interpretation of the significant and substantial language as applying to violations where there exists a reasonable likelihood of an injury or illness 

of a reasonably serious nature occurring, falls between these two extremes 

-- mere existence of a violation, and existence of imminent danger, the 

latter of which contains elements of both likelihood and gravity." 

5. The inspector in this case at first said that the holding of 

the Commission in National Gypsum Company caused him to have some doubt 

as to whether his citation would have been issued, if he had been following 

the Commission's new criteria for establishing whether a violation is 

significant and substantial, but after considerable reflection on the 

2937 
matter, he. concluded that he believed that failure to have the curtains 

continuously maintained in the four entries was sufficient to be a 

reasonable likelihood of injury or illness and that if it occurred, it 

would have been of a reasonably serious nature. Consequently, he 

reaffirmed his belief that his unwarrantable failure citation should 

have been issued. He also explained that he had made the other findings 

required, namely, that a violation: had occurred, that it was n:ot an 

imminent danger, that it was significant and substantial, and finally 

that an unwarrantable failure had occurred. 

6. The respondent in this proceeding has presented three witnesses who have testified that the reason that the company was having· 

difficulty with keeping line curtains in the entries described in the 

inspector's citation was that they had been mining in a coal seam with 

heights of 9 to 10 fe~t, including a rock seam in the middle. They then 

encountered a rock seam that was so thick they couldn't mine it with the 

coal and did not want to cut it down. Consequently, they went under 

the rock portion which had the effect of reducing the mine height from 

a 9 or 10-foot height down to 50 or 54 inches. Also, in order to improve 

the stability of the roof, the company narrowed the entries from about 

20 feet to 14 to 18 feet. This particular block of coal was approximately 120 feet long, and it only took the company about 5 days to mine 

completely through it, at which time they resumed mining at the normal 

height and returned to the normal 20-foot width for entries. 

7. The witnesses for respondent stated that during the period 

when their entries were narrow, the inspector had inspected the mine 

and had issued his citation about 2 days after they had started into the 

above-described low area with the narrow width in the entries and that 

their equipment measured 10 feet 6 inches in width, and it was almost 

impossible to keep a brattice curtain up at the same time the equipment 

was operating in the entries. That accounted for the fact that the 

curtains had not been hung on January 26 when they were cited by the 

inspector. 

8. There were some stipulations entered into by the parties. It 

was stipulated that the No. 3 Hine is owned and operated by Harman 

Mining Company and that Harman Mining Company is subject to the Act; 

that I have jurisdiction to hold this hearing and decide the case; 

that the citation was duly issued by an authorized representative of 

the Secretary; that the assessment of a civil penalty would not cause 

respondent to discontinue in business; and that insofar as the size of 

the company is concerned, the annual production for the total company 

is 265,134 tons and for the No. 3 Mine, production is 103,716 tons 

annually. 

It was also stipulated that the company showed a good-faith effort 

to achieve compliance after the citation was issued, and that the No. 3 

Mine had 54 previous violations during the 24 months preceding the 

issuance of the citation involved in this case. There was some additional 

testimony by one of respondent's witnesses, Mr. Hurley, to the effect 

that there were a large number of inspection days at the mine and that 

if you took that into consideration, the company had a very low ratio of 

violations to inspection days. 

2938 
9. Mro Hurley also introduced as Exhibit. B a sheet printed by 

MSHA's computer. That exhibit reflects that during January of 1981 

the company was within compliance with the respirable dust standard 

by having an average concentration of 1.3 milligrams per cubic meter 

of air. 

lOo It was stated by Mr. OWens, one -of respondent's witnesses, 

that he was in this mine on Thursday, January 22, 1981, when the company 

first began to mine the narrow entries and go to the lower height than 

was normal. This particular Exhibit B shows that on that day a respirable dust sample for the cutting machine operator's environment showed 

a concentration of 1.4 milligrams per cubic meter. 

The first issue to be considered is whether a violation occurred. 

We don't have any real problem with making a finding as to whether the 

violation occurred, because everybody concedes that the curtains weren't 

up on January 26 when the inspector wrote this citation at 8:15 a.m. 

Everybody concedes that the ventilation plan required them to be maintained continuously; therefore, I find that a violation of section 75.316 

occurred. While in a normal civil penalty case, an issue or issues concerning the validity of the inspector's citation or order is not normally 

a matter to be considered, I held in this case that it was permissible 

for respondent to go into the matters of whether the citation had been 

validly issued under Section 104(d)(l) because I interpreted the Commission's National Gypsum decision as indicating that a respondent may 

raise matters concerning the validity of citations and orders in a civil 

penalty proceeding under the 1977 Act. 

It is true, as Ms. Rooney has pointed out in her argument, that the 

Commission agreed with the former Board that when a civil penalty case 

arising under the 1969 Act had been set for hearing and was in progress, 

that it was not permissible for respondent to raise issues as to the 

validity of the citation or order, because the only issues in a civil 

penalty proceeding are whether a violation occurred and, if so, what 

penalty should be assessed. The reason that the former Board held that 

you could not go into the merits of the issuance of a citation or order 

in a civil penalty case was that the 1969 Act very clearly provided for 

review of citations, which were then called notices of violation, and 

orders as a separate matter; whereas, in the 1977 Act, the provision for 

review of the merits of a citation or order are not really very clearly 

set forth in the Act because it appears that under the language in section 

105(d) of the Act, a respondent might take the position as to civil penalty 

issues that he would not seek review by means of a notice of contest and 

would, instead, await the occurrence of a proceeding under the civil 

penalty aspect of the Act, at which time he would raise issues both as 

to the merits of the citation or order being considered in the civil 

penalty case, as >Jell as the issue of whether a violation occurred and 

what penalty should be assessed. 

Consequently, I believe that the Connnission has opened the door to 

allow an operator to raise issues as to the validity of a citation or 

order in a civil penalty case. I believe that is the result of the 

Commission's consideration in the National Gypsum Company of the criteria 

2939 
for making "significant and substantial" findings because that case 

was not a notice of contest cases but arose as an ordinary civil 

penalty case. ~_/ 

Now that I have so ruled it is neces.sary for me to consider 

whether the inspector properly issued an unwarrantable failure citation 

in this instance. We don't have any pr:oblern with t:he first .part of the 

inspector's finding as to a 104(d)(l) citation because we have already 

agreed that a violation occuFred. Nobody has felt that the violation 

approached anything like an imminent danger, so we don't have any problem with finding that the violation_ did not constitute imminent danger. 

We do have a problem when we go to the language of section 104(d)(l) 

which provides that an inspector must also find " -l< -l< * that such violation is of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine safety or 

health hazard." 

As I already pointed out in my findings above, the Commission held 

in the National Gypsum case that the words "significantly and substantially" should be applied so as to determine whether there was a reasonable 

likelihood of an injury or illness which would have been of a reasonably 

serious nature. 

The respondent in this case has argued very strenuously that the 

mere fact that these brattice curtains were not up at the beginning of 

the working shift on Monday, January 26,. cannot possibly be found to be 

significant and substantial within the meaning of the Commission's test, 

because, according to the inspector, there was only a roof-bolting machine 

in the actual working section or in any of these entries where the brattice 

curtains had not been erected, but there were other pieces of energized 

equipment outby such entries. Respondent contends that since there was 

almost no likelihood of any ignition occurring and since the mine generated only from .01 to .02 of 1 per cent of methane, even when analyzed 

in a bottle sample, that the likelihood of any explosive quantity of 

methane occurring was so remote that it would be a misuse of the Commission's test to say that leaving these brattice curtains down at a time 

like that -- that is, when there was no activity in the entries and no 

production going on -- would contribute to a mine safety or health hazard. 

The Government, of course, has argued that even though at the moment 

the inspector issued Citation No. 939522, there was only a minute quantity 

of methane in the mine; that when you have a mine which has the possibility or the potential of liberating methane, that there is also the possibility that an explosive quantity of methane could accumulate in the 

inadequately ventilated entries. Consequently, if any kind of spark 

should have come from any of this equipment while these curtains were not 

up, that an explosion could have occurred. Of course, if it should have 

occurred, it could have had serious consequences. 

1/ A further statement of the reasons for my belief that an operator may 

obtain review of the validity of a citation, as opposed to an order, in a 

civil penalty proceeding is set forth at the end of.my bench decision. 

2940 
As to that part of the argument, I think that I shall have to go 

along with the Government's contentions. In R~liable Coal Corp. v. 

Morton, 478 F.2d 257 (4th Cir. 1973), the court held that Congress has 

done away with the gaseous and nongaseous distinction in coal mines. 

That case shows that we must assume under both the '77 and '69 Acts that 

all coal mines are to be considered gaseous. 

Despite the court's holding in the Reliable case, we still look at 

the actual amount of methane which exists in any given situation and if 

we find that there is no presence of methane, or if a mine above the 

water table is involved and has never liberated methane, we still in a 

case citing a violation of a ventilation provision, we hold that that 

is a less serious violation than one which occurs in a mine which does 

liberate large quantities of methane. But be that as it may, the liberation of methane is unpredictable. Methane has been known to be found 

and accidents have occurred in mines which have no prior history of 

liberating methane. Consequently, I think I shall have to go along with 

the Government and find that the possibility exists that a large accumulation of methane could occur, and the fact that an explosion can occur 

in these situations, requires me to find that the inspector was correct 

when he said that there was a reasonable likelihood of an injury from 

the fact that these curtains were not up and that a reasonably serious 

injury could have occurred as a result of that explosion, if it had 

occurred. 

Now, we have also an argument here by respondent's counsel in which 

he says that the citation was not valid because the inspector failed to 

make the final findings required by section 104(d), which is that there 

was unwarrantable failure of the operator to comply with the standard 

cited. As Ms. Rooney has pointed out and as the inspector said in reply 

to one of my questions, it is a fact that when an operator is given a 

citation or an order, there is a provision on the face of the citation 

or order which states that the operator should see the reverse side of 

the citation or order of withdrawal. If that is done, it will be found 

that the reverse side explains the provisions of section 104(a), section 

104(d)(l), section 104(f), and other provisions. That is why the two 

words "see reverse" are placed on the front of the citation, so that an 

operator will be notified, when section 104(d) is entered on the front of 

the citation or order, if the operator looks on the back, he will find 

what that section involves. In this case, the explanation on the back of 

the citation indicates that an unwarrantable failure has been found to 

exist in order for the citation to be issued under section 104(d)(l) of 

the Act. 

I wrote a decision in Pontiki Coal Corp., 2 FMSHRC 370 (1980), in 

which the primary issue was whether the fact that the citation or order 

stated on its face "see reverse" was sufficient notice to the operator 

that the findings required for issuing an unwarrantable failure citation 

had been made by the inspector. I held in that case that the fact that 

unwarrantable failure was explained on the back of the form was sufficient 

for the purpose of making the necessary findings. The Pontiki case was 

not appealed to the Commission, so I find in this case, consistent with 

2941 
my holdings in that case, that the inspector did make the required findings as to unwarrantable failure and that his Citation No. 939522 should 

be affirmed. 

Now, as to the other contentions by the operator in this case, it 

was stated that he didn't really have the opportunity to make suggestions 

when the ventilation plan was renewed each 6 months and that he pretty 

much is required to agree with whatever sort of new provisions MSHA 

may put in his new plan when it is sent to him for his signature. I am 

in sympathy with the operator on those things, both the roof control plan 

and the ventilation plan, in that I think an operator does pretty much 

find himself trying to get his views into the plan when they are pretty 

much dictated to him by MSHA. 

But in this instance, I think that the Act itself provides a pretty 

specific indication that MSHA may amend these ventilation plans to provide 

for the continuous maintenance of the line brattice, whether work is being 

performed or not. Because of injuries and fatalities that have occurred 

on account of methane accumulation, MSHA personnel feel they must become 

increasingly strict in these plans. In doing -so, however, they are not 

going beyond the original provisions of the safety standards because 

section 303(c)(l) of the 1969 Act provided the language which is now 

section 75.302 of the Regulations. That section provides that: 

Properly installed and adequately maintained line brattice 

or other approved devices shall be continuously used from the 

last open crosscut of an entry or room of each working section 

to provide adequate ventilation to the working faces for the miners 

and to remove flannnable, explosive, and noxious gases, dust and 

explosive fumes, unless the Secretary or his authorized representative permits an exception to this requirement, where such exception 

will not pose a hazard to the miners. 

So, I believe that MSHA was well within the original provisions of the 

Act when it amended the plan as originally issued to require that those 

line brattices be continuously maintained. 

I believe that I have covered most of the arguments that have been 

made by the parties and the only thing that remains to be done is to 

consider the six criteria before assessing a penalty. The stipuJations 

show that two of the criteria have already been stipulated to, namely, 

that the size of respondent's business is small, and that the operator 

did abate this citation of a violation within the time provided for by 

the inspector. In fact, the inspector gave the operator until 9:30 to 

abate the violation, and he wrote a termination by 9:15, which would 

have been only one hour after he issued it. For the men to have put up 

curtains in four entries in an hour's time, when you consider how much 

distance was involved, indicates that respondent abated the violation 

in a rapid manner and should have some consideration for the promptn~ss 

of its action in so doing. It has also been stipulated as to another of 

the criteria that payment of a penalty would not cause respondent to 

discontinue in business. 

2942 
As to the history of previous violations, it was stated that there 

have been eight previous violations of section 75.316 in the last 24 

months. While Mr. Hurley indicated he felt I should consider some of the 

matters about the number of inspection days involved, it, of course, is 

not necessary for judges to follow the assessment formula in 30 C.F.-Rr 

§ 100.3 when a case has gone to hearing and the judge is making findings 

of facts on the record conta.inj_ng testimony and exhibits presented by the 

partieso Since it has not been my prclctice to pay any attention to what 

the Assessment Office may have done before a case comes to hearing before 

me 9 I find that it is immaterial that .the Assessment Office may have made 

some calculations as to the number of inspection days and that there may 

be a certain number of violations in the last 24 months, because it has 

been my consistent practice since starting this work in 1972 to make 

assessments under the criterion of history of previous violations entirely 

on whether previous violations of the section before me in a given case 

have occurred. 

Since eight previous violations occurred in a 24-month period, 

I consider that to be more than I usually encounter in these cases. Consequently, I believe that whatever other penalty might be assessed in this 

case, a penalty of $100 should be assessed under the criterion of history 

of previous violations. 

The only two criteria that remain to be considered are negligence 

and gravity. The inspector's finding of a high degree of negligence 

was based al.most entirely on his statement that the weekend entry in the 

preshift book shows that these curtains had been left down from the 

previous Friday by the evening crew, and it was his opinion that the 

curtains should have been rehung during Saturday or Sunday. He felt the 

failure to do so, especially after it was written up by one of the examiners of the mine, indicated a high degree of negligence. There is, of 

course, nothing in the ventilation plan in Exhibit 3 which indicates 

occurrences of changes in the mining height or the width of the entries 

which have been mentioned in this proceeding and which have been noted 

in my findings of fact, supra~ I recognize that the company had a problem 

here in trying to use the curtains at an entry which was barely wide enough 

for the equipment. I'm taking that into consideration as a mitigating 

factor in assessing the penalty; but the fact that the operator failed to 

install curtains on Saturday and Sunday cannot be ignored because that is 

what the plan requires, and the Act too, for that matter. The curtain is 

required to be maintained continuously and should, therefore, have been 

erected whether or not any production was being performed. Consequently 9 

I find that there was a relatively high degree of negligence. 

Now, we come to the final criterion of gravity. I don't think that 

we can say that this constituted more than a moderate amount of gravity 

because it is a fact that no production was going on. At the time the 

citation was actually written, it is a fact that methane was only .01 to 

.02 of 1 per cent. An inspector checked all the entries with his methane 

detector and could not even get a reading, so while there was a potential 

there for a possible injury, the fact is that at the time the inspector 

issued the citation there was, at most, a moderate seriousness in the 

violation. 

2943 
In conclusion, I find that the company abated the violation in less 

than the time given by the inspector, that it is a small company, that 

the gravity of the violation was not great, and that there was a relatively high degree of negligence. In such circumstances, I find that a 

penalty of $300 is appropriate, to which $100 will be added under the 

criterion of history of previous violations, making a total penalty of 

$400c 

After I had rendered the bench decision set forth above, I learned that 

the Commission had issued in Secretary of Labor (MSHA) v. Paramont Mining 

Corporation, Docket No. VA 81-45, on September 21, 1981, an order denying a 

petition for interlocutory review of an order issued on August 19, 1981, by 

Administrative Law Judge George A. Koutras in that proceeding. Judge Koutras' 

order had granted the Secretary's motion for partial summary decision as to 

the question of whether respondent Paramont Mining Corporation could raise the 

issue of the validity of an unwarrantable-failure order in a civil penalty 

proceeding. Inasmuch as the Commission declined to grant Paramonth's petition 

for interlocutory review, it may appear that I erred in considering the merits 

of the unwarrantable-failure citation in this civil penalty proceeding. In 

C.C.C.-Pompey Coal Co., Inc.,2 FMSHRC 1195 (1980), the Commission held that a 

judge should not issue a bench decision in final written form without considering the holdings in Commission decisions which were issued between the time 

the bench decision was rendered at the hearing and the time the bench decision 

is issued in final form. 

The primary basis for my ruling in this case that respondent could obtain 

a review of the validity of the unwarrantable-failure citation in a civil 

penalty proceeding was that the Commission had considered the meaning to be 

assigned to the phrase "significant and substantial" in its decision in 

Cement Divison, National Gypsum Co., 3 FMSHRC 822 (1981), even though the 

proceeding in which the Commission considered that issue was a civil penalty 

proceeding. Upon further examination of the Connnission's decision in the 

National Gypsum case, I have noted that all of the alleged violations in that 

proceeding involved citations on which the inspector had checked a "block" 

showing that he considered all of the alleged violations to be "significant 

and substantial" as that term is used in section 104(d) of the Act. The Commission considered the meaning of that phrase in order to clarify the interpretation which should be given to the words "significant and substantial" in 

light of some decisions issued by the former Board of Hine Operations Appeals 

after its decision in Zeigler Coal Co., 3 IBMA 448 (1974), was reversed in 

UMWA v. Kleppe, 532 F.2d 1403 (D.C. Cir. 1976), because the Board had held 

that findings as to "significant and substantial" had to be made before unwarrantable failure orders could be issued under section 104(c) of the Federal Coal 

Mine Health and Safety Act of 1969. The Commission clarified the definition 

which should be ascribed to "significant and substantial" in a civil penalty 

case because the inspectors were routinely designating ordinary violations 

alleged in citations written under section 104(a) of the 1977 Act as being 

"significant and substantial". The Connnission believed that such routine 

employment of the term "significant and substantial" might eventually be used 

as a basis for finding an operator to have a "pattern of violations" pursuant 

to the provisions of section 104(e) of the Act. 
My conclusion in the bench decision, supra, to the effect that the Commission's consideration of "significant and substantial" in the National 

Gypsum case indicated that the Commission has not prohibited consideration 

of the validity of citations in civil penalty cases failed to comment on 

the difference between the breadth of review which is permitted of citations 

issued under the 1977 Act as opposed to the constraints of review which are 

placed on orders issued under the 1977 Act. The change in the language as 

to review of citations under the 1977 Act, as opposed to review of notices of 

violation under the 1969 Act, '!:_/ was discussed by the Commission in Energy 

Fuels Corp., 1 FMSHRC 299 (1979), in which the Commission stated (at p. 302): 

***On the other hand, section 105(a), when read with section 105(d), 

may be read to permit an operator to await the issuance of the notification of proposed assessment of penalty before deciding whether to 

contest the entire citation, rather than require the operator to so wait. 

[Emphasis in original.] 

At page 309 of the Energy Fuels case, the Commission further stated: 

* * * If the citation lacked special findings, and the operator otherwise lacked a need for an immediate hearing, we would expect him to 

postpone his contest of the entire citation until a penalty is 

proposed. ,·~ * '~ 

In Wolf Creek Collieries Co., Docket No. PIKE 78-70-P, issued March 26, 

1979, the Commission agreed with the former Board's consistent holdings that, 

under the 1969 Act, a respondent could not obtain review of the validity of 

orders in civil penalty proceedings (Eastern Associated Coal Corp., 1 IBMA 233 

(1972); Zeigler Coal Co., 1 IBMA 216 (1973); Plateau Mining Co., 2 IBMA 303 

(1973); Buffalo Mining Co., 2 IBMA 327 (1973); North American Coal Corp., 

3 IBMA 93 (1974); Zeigler Coal Co., 3 IBMA 366 (1974); Jewel Ridge Coal Corp., 

3 IBMA 376 (1974); Peggs Run Coal Co., 5 IBMA 3 (1975); and Ashland Mining 

Development Co., Inc., 5 IBMA 259 (1975)). The Commission made a similar 

holding as to the 1969 Act in Pontiki Coal Corp., 1 FMSHRC 1476 (1979). In 

Van Mulvehill Coal Co., Inc., 2 FMSHRC 283 (1980), the Commission held that 

the validity of orders issued under the 1977 Act is not to be considered in 

civil penalty proceedings. 

My review of the Commission's holdings with respect to obtaining review 

of the validity of citations in civil penalty proceedings, as opposed to obtaining review of the validity of orders in civil penalty cases, shows that 

I correctly interpreted the Commission's consideration of the term "significant 

and substantial" in the National Gypsum case, supra, to mean that an operator 

may obtain review of the validity of citations in civil penalty proceedings, 

but may not obtain review of the validity of orders in civil penalty proceedings. Inasmuch as the question of the validity of a citation was before 

me in this proceeding, I reaffirm my finding that it is permissible for an 

'!:_/ Under the 1969 Act, review of a notice of violation was restricted to the 

question of whether the time set by the inspector for abatamant was unreasonable 

(UMWA v. Andrus, 581 F.2d 888 (D.C. Cir. 1978)). 

2945 
operator to contest the validity of a citation in a civil penalty proceeding 

even if the operator has failed ta seek review of that citation by filing 

a notice of contest under section 105(d) of the Act within 30 days after the 

citation was issued. Therefore, the fact that the Connnission declined to 

grant an interlocutory review of Judge Koutras' decision in the Paramont 

Mining ca.se in which he had held tha.t an opara:.tor may not obtain a review 

of the validity of an order, as opposed £0 a citation, in a civil penalty 

proceeding, is consistent with my holding in this proceeding that an operator 

may obtain review of the validity of a citation, but not an order, in a civil 

penalty proceeding. In short, I find that Lt was not error for me to grant 

review of the validity of a citation in thi·s proceeding and that portion of 

my decision which so held is confirmed. 

WHEREFORE, it is ordered: 

(A) Citation No. 939522 was correctly issued on January 26, 1931, under 

section 104(d)(l) of the Act and the citation is affirmed. 

(B) Within 30 days from the date of this decision, respondent shall pay 

a civil penalty of $400.00 for the violation of section 75.316 alleged in 

Citation No. 939522. 

Distribution: 

~ff;.rJ~ Administrative Law Judge 

(Phone: 703-756-6225) 

Covette Rooney, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Robert M. Richardson, Esq., Attorney for Harman Mining Company, 

Richardson, Kemper, Hancock & Davis, P.O. Box 411, Bluefield, WV 

24701 (Certified Mail) 

2946 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 311981 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 80-306-M 

Petitioner A/O No. 41-00038-05007 

v. 

KAISER CEMENT CORPORATION, 

Respondent 

Docket No. CENT 80-354-M 

A/O No. 41-00038-05008-I 

Appearances: 

Before: 

Longhorn Cement Plant 

DECISION 

Donald w. Hill, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Secretary of Labor, Mine Safety and Health 

Administration, Petitioner; 

Robert E. Bettac, Esq., Foster & Associates, Inc., 

San Antonio, Texas, for Kaiser Cement Corporation, 

Respondent. 

Judge Stewart 

These are proceedings filed by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA), under section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereafter the Act), 

t9 assess civil penalties against Kaiser Cement Corporation (hereafter Kaiser) 

for violations of mandatory safety standards. 1-_/ 

1/ Sections llO(i) and (k) of the Act provide: 

"(i) The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the Commission 

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

whether the operator was negligent, the effect on the operator's ability to 

continue in business, the gravity of the violation, and the demonstrated good 

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

notification of a violation. In proposing civil penalties under this Act, 

the Secretary may rely upon a SlllllDlary review of the information available to 

him and shall not be required to make findings of fact concerning the above 

factors. 

"(k) No proposed penalty which has been contested before the Commission 

under section 105(a) shall be compromised, mitigated, or settled except with 

the approval of the Commission. No penalty assessment which has become a 

final order of the Commission shall be compromised, mitigated, or settled 

except with the approval of the court." 

2947 
STIPULATIONS 

On November 24, 1980, the parties filed stipulations of fact to constitute 

the entire record in these proceedings. On May 18, 1981, the parties filed 

supplementary stipulations including the following which pertain to the statutory criteria applicable to all citations: 

Size of mining operation - medimn 

History o-f previous violations - moderate 

Neligence on the part of Kaiser - none 

Effect of the proposed penalties on the ability of 

Kaiser to continue in business - none 

Kaiser demonstrated good faith in attempting to 

achieve rapid compliance after notification of each 

violation. 

Docket No. CENT 80-306-M (Three Citations) 

The stipulations applicable to Citation Nos. 172310, 172311, 170580, and 

170681 were as follows: 

1. Jurisdiction over this proceeding is conferred upon 

the Federal Mine Safety and Health Review Commission under 

the Federal Mine Safety and Health Act, 30 u.s.c. § 801, 

et seq. The alleged violations of the Act took place in or 

involve a mine that has products which enter commerce or has 

operations or products which affect commerce. 

2. All statements made by the Secretary's safety inspectors on the face of the Citation forms, as amended, are true. 

All Citation Forms attached to the Complaint Proposing Penalty 

are incorporated by reference-, as if fully set forth herein. 

3. Each of the instant citations was issued during the 

course of a special inspection as described at 30 C.F.R. 

Part 43, which inspection was initiated by a miner or representative of miners upon written notice or complaint. 

4. No copy of such written notice or complaint was provided to the Respondent by the Secretary's safety inspectors 

on or before the date of said special inspection, notwithstanding that Respondent requested such written notice prior 

to the beginning of said special inspection. The Secretary's 

safety inspector did, however, describe the general contents 

of said written complaint to an authorized representative of 

the Respondent prior to beginning said special inspection. 

2948 
5. The violation alleged in each Citation was not due to 

any negligence on the part of the Respondent, and the penalty 

points attributable to the "Negligence" factor should be 

"O". [ 2/] The preceding stipulation is based on the following, further stipulations applicable to each of the alleged 

violations: (1) Respondent did not contribute by act or omission to the occurrence of the alleged violation; (2) the 

Respondent did not contribute by act or omission to the continued existence of the alleged violation; (3) none of 

Respondent's employees was exposed or likely to be exposed 

to the unsafe conditions alleged; and (4) Respondent neither 

knew or should have known of the allegedly unsafe conditions. 

6. The unsafe practices alleged in each Citation were 

committed only by employees of independent contractors perfonning construction work at the Respondent's mine. Each 

such independent contractor exercised an independent employment and contracted to do the work according to its own 

judgment and methods, and without being subject to the control of Respondent except as to the results of the work, 

and each independent contractor had the right to employ 

and direct the actions of their respective employees, 

independently of Respondent and free from any superior 

authority of Respondent to say how the work would be done 

or what the laborers would do as it progressed. 

7. Employees at Respondent's mine collectively worked 

between three-hundred thousand and five-hundred thousand 

hours annually, and penalty points for mine size, if any, 

would be 7. Employees of the company which controls the 

Respondent work between nine-hundred thousand and three 

million hours annually, and the penalty points, if any, 

based on the size of the controlling company would be 3. 

The average number of violations assessed per year in the 

24 months preceding the instant alleged violations was 10.5, 

2/ The penalty points referred to in the stipulation are from Part 100 of 

Title 30 Code of Federal Regulations which sets forth the criteria and procedures for the proposed assessment of civil penalties by the Assessment 

office. The point system is not utilized in the assessment of penal tie.s 

herein. 29 C.F.R. § 2700.29 provides as follows: 

"(a) In assessing a penalty the Judge shall detennine the amount of 

penalty in accordance with the six statutory criteria contained in section 

llO(i) of the Act, 30 U.S.C. § 820(i), and incorporate such detennination in 

a decision containing findings of fact, conclusions of law, and an order 

requiring that the penalty be paid. 

"(b) In determining the amount of penalty neither the Judge nor the 

Commission shall be bound by a penalty recommended by the Secretary or by any 

offer of settlement made by any party." 
and the penalty points, if any, for history of violations 

would be 1. The average nunber of violations assessed per 

inspection day in the 24 months preceding the instant alleged 

violations was .88, and the penalty points, if any, under the 

"Inspection Day" factor would be 6. 

Stipulations Applicable to Citation No. 170580 3/ 

8. The applicable mandatory safety standard, if any, is 

contained at 30 C.F.R. 56.9-40(c) of the Secretary's Rules 

and Regulations. 

9. The unsafe practice alleged herein occurred on mobile 

equiμnent owned by, and was committed by a person employed by, 

Jud Plumbing, Heating and Air Conditioning, an independent 

contractor. 

10. As part of its construction contract with Jud, 

Respondent required Jud to keep itself fully informed and to 

comply with all state and federal laws affecting safety; to 

be responsible for accident prevention and safety in performance of the work; to take all reasonable measures to 

prevent injury to persons or property as a result of the 

performance of the contract work; to comply with all applicable safety laws, including OSHA and MSHA; to make suitable 

arrangements to supply first aid facilities to its employees; 

to guard work performed on the construction site as necessary 

with fences, barriers, lights, signs, etc.; to furnish all 

necessary protective safety equiμnent to its employees; to 

implement a safety program for its employees and to designate 

a coordinator of safety, security, and fire control; and to 

notify the Respondent of any hazardous conditions, property, 

or equiμnent at the work site that are not under Jud's control. 

11. The probability, under normal circumstances, that an 

injury would result from a violation of the cited standard is 

3/ Citation No. 170580 was issued on February 6, 1980, and described the 

pertinent condition or practice as follows: 

"An employee of Jud Plumbing, Heating, and Air Conditioning, a subcontractor working at the long horn cement plant, was observed riding on 

the tongue of a gas welder (tag No.) 5568 that was hooked up to a state 

bed truck (tag No.) CT 7555, that was traveling over a rough road where the 

hazard of the employee falling off and being ran over by the welder causing 

serious injury." 

The inspector asserted that Respondent abated the violation as follows: 

"The truck was shut down at once. The employee was made aware of the hazard." 

The citation alleged a violation of 30 C.F.R. § 56.9-40(c) which provides that men shall not be transported on top of loaded haulage equiμnento 

2950 
"probable," and the penalty points, if any, to be assigned to 

the "Probability of Occurrence" factor is 3. The gravity of 

an injury resulting from violation of the cited standard may 

normally be expected to involve lost work days or restricted 

duty, and the penalty points, if any, to be assessed under 

the "Gravity of Injury Expected" factor should be 3. None of 

the Respondent's employees was exposed to the alleged hazard, 

and the ntunber of penalty points to be assessed under the 

"Number of Persons Affected" factor should be "O". 

12. Respondent demonstrated its good faith by making 

the Jud employees aware of the alleged hazard immediately. 

Accordingly, the penalty points, if any, to be assessed to 

Respondent under the "Demonstrated Good Faith" factor should 

be -5. 

Stipulations Applicable to Citation No. 172310 !!_/ 

13. The applicable mandatory safety standard, if any, is 

contained at 30 C.F.R. § 56.16-7(a) of the Secretary's Rules 

and Regulations. 

14. The unsafe practice alleged in this Citation involved 

the use of a crane owned by Phillips Crane Company, subcontractor to Aaction Building Systems, which in turn was subcontrac·· 

tor to Watson Building Systems, the general construction 

4/ Citation No. 172310 was issued on February 6, 1980, and described the 

pertinent condition or practice as follows: 

"I observed purlines supports being hoisted into place and no taglines 

to prevent the purline supports from swinging around in air, creating a 

hazard of knocking the connector men from the trusses on which they were 

setting to concrete floor 45 feet to 59 feet below." 

On February 7, 1980, the citation was modified as noted on a subsequent 

action form as follows: 

"This is to modify Citation No. 172310 condition or practice section 

to read as follows: I observed purline support being hoisted into place by 

employee of Watson Building Systems, sub-contractor of Aaction Building 

Systems, Inc, with no taglines attached to prevent the purline supports from 

swinging around in air, creating a hazard of knocking the connector men from 

the trusses on which they were setting, and falling to concrete floor approximately 50 feet below." 

In terminating the citation on February 6, 1980, the inspector noted: 

"All employees were instructed, and signatures were required that taglines 

would be used on all material being hoisted." 

The citation alleged a violation of 30 C.F.R. § 56.16-7(a) which provides 

that: "Taglines shall be attached to loads that may require steadying or 

guidance while suspended." 

2951 
contractor on the site. The alleged unsafe practice was committed by employees of one or more of the aforementioned subcontractors or general contractor. 

15. As part of its construction contract with Watson 

Building Systems, Respondent required Watson to keep itself 

fully informed and to comply with all state and federal laws 

affecting safety; to be responsible for accident prevention 

and safety in performance of the work; to take all reasonable 

measures to -prevent injury to persons or property as a result 

of the performance of the contract work; to comply with all 

applicable safety laws, including OSHA and MSHA, to make 

suitable arrangements to supply first aid facilities to its 

employees; to guard work performed on the construction site 

as necessary with fences, barriers, lights, signs, etc.; to 

furnish all necessary protective safety equipment to its 

employees; to implement a safety program for its employees 

and to designate a coordinator of safety, security, and fire 

control; and to notify the Respondent of any hazardous conditions, property, or equipment at the work site that were 

not under Watson's control. At the time of the alleged 

violation, Watson had assigned a Safety Director to the 

construction site. 

16. The probability that an injury would result from a 

violation of the cited standard is "improbable," for there is 

no evidence that the affected employees were not wearing appropriate safety belts and tag lines; the penalty points, if any, 

to be assigned to the "Probability of Occurrence: factor is 

"O". For the same reason, the gravity of an injury resulting 

from violation of the cited standard may normally be expected 

to involve no lost work days, and the penalty points, if any, 

to be assessed under the "Gravity of Injury Expected" factor 

should be "O". None of Respondent's employees was. exposed to 

the alleged hazard, and the nunber of penalty points to be 

assessed under the "Number of Persons Affected" factor should 

be 11 011 • 

17. Respondent demonstrated its good faith by persuading 

the general contractor and the two subcontractors to meet with 

their respective employees immediately, instruct the employees 

in the "tag lines" requirement, and obtain the signatures of 

affected employees on a written statement of the rule. 

Accordingly, the penalty points, if any, to be assessed to 

Respondent under the "Demonstrated Good Faith" factor should 

be -5. 
Stipulations Applicable to Citation No. 172311 'J_/ 

18. The applicable mandatory safety standard, if any, is 

contained at 30 C.F.R. § 56.16-11. 

19. The unsafe practice alleged involved a crane owned 

and operated by Phillips Crane Company, a third-tier contractor. The alleged unsafe practice was committed by employees 

of Watson Building Systems and/or Aaction Building Systems 

and/or Phillips Crane Company. 

20. Stipulation No. 15 above applies equally to this 

citation. 

21. The probability, under normal circumstances, that an 

injury would result from a violation of the cited standard is 

"probable," and the penalty points, if any, to be assigned to 

the "Probability of Occurrence" factor is 3. The gravity of 

an injury resulting from violation of the cited standard may 

normally be expected to involve lost work days or restricted 

duty, and the penalty points, if any, to be assessed under the 

"Gravity of Injury Expected" factor should be 3. None of 

Respondent's employees was exposed to the alleged hazard, and 

the number of penalty points to be assessed under the "Number 

of Persons Affected" factor should be "O". 

5/ Citation No. 172311 was issued on February 6, 1980, and described the 

pertinent condition or practice to be as follows: 

"Pat Patton, operator of a Grove M:>del TMS-160 18-ton crane~ for Phillip 

Crane Co, working for Watson Building Systems, Sub-contractor of Aaction 

Building Systems, Inc., stated on February 5, 1980, he did hoist men on the 

hoisting hook. Man cage was available at the cite for safe means of hoisting 

men." 

This citation was modified on February 22, 1980, as follows: 

"This is to modify the original Citation No. 172311 condition or practice 

section to read as follows: Pat Patton operator of a Grove Model TMS-160 

18-ton crane for Phillip Crane Co., working for Watson Building Systems Subcontractor of Aaction Building Systems Inc, stated on February 5, 1980, he 

did hoist men on the hoisting hook. Man cage was available at the cite [sic] 

for safe means of hoisting men. The hazard of the men slipping off the hook 

and falling to concrete floor and resulting in serious injurieso" 

In terminating the citation on February 6, 1980, the inspector noted: 

''Employees were instructed and * * * understood not to hoist men on the 

hoisting hook; employee signatures were required (to show) that they understood the rules." 

The citation alleged a violation of 30 C.F.R. § 56.16-11 which provides 

as follows: "Mandatory. Men shall not ride on loads being moved by cranes 

or derricks, nor shall they ride the hoisting hooks unless such method 

eliminates a greater hazard." 

2953 
22. Respondent demonstrated its good faith by persuading 

the general contractor and the two subcontractors to meet 

with their respective employees immediately, instruct them of 

the "man cage" requirement, and obtain their signatures to a 

written rule to this effect. .Accordingly, the penalty points, 

if any, to be assessed to Respondent under the "Demonstrated 

Good Faith" factor should be -5. 

SUPPLEMENTARY STIPULATIONS 

Statutory Criteria Applicable to Citation No. 170580 

Gravity of violation - low 

Statutory Criteria Applicable to Citation No. 172310 

Gravity of violation - low 

Statutory Criteria Applicable to Citation No. 172311 

Gravity of violation - moderate (It is understood, however, that Respondent does not hereby stipulate that the 

violation has been proved.) 

Dismissal of Citation No. 172311 

The motion for decision on the record was disapproved because of the 

statement that Respondent did not stipulate that Citation No. 172311 had 

been proved. On July 20, 1981, the parties filed the following additional 

stipulation by Western Union Mailgram: 

Pursuant to an agreement by telephone 7-17-81 the parties 

do hereby propose to withdraw a stipulation and to offer an 

additional stipulation concerning Citation Number 172311 as 

follows: 

The parties hereby move to withdraw the second sentence 

of stipulation Ntmber 19 contained at Page 7 of the stipulated record submitted by the parties on 11-24-80 which read 

as follows: "The alleged unsafe practice was committed by 

employees of Watson Building Systems and/or Aaction Building 

Systems and/or Phillips Crane Company." 

The parties hereby offer the following additional stipulation: On February 6, 1980 Pat Patton opepator [sic] of a 

Grove :t-bdel TMS-160 18 ton crane for Phillips Crane Company, 

subcontractor to Watson Building Systems, subcontractor to 

Aaction Building Systems, stated to the Secretary's inspector that he hoisted men on the hoisting hook on February 5, 

1980. Alan Redeker the Respondent's plant manager was 

2954 
present when the statement was made. There is no evidence 

that any of Respondent's employees engaged in or was exposed 

to the practice described by Mr. Patton. 

The foregoing stipulation is made with the understanding 

that the Respondent preserves its objection to the nonadmissibility of such statement into evidence. 

The Secretary of Labor hereby rests his case as to all 

citations herein and the parties ask the honorable judge to 

enter a decision without the need for further proceedings. 

The stipulation that the alleged unsafe practice was committed by employees of three named independent contractors has been withdrawn by the parties. 

The stipulations as amended are inadequate to prove a violation by either an 

independent contractor or by Respondent. Citation No. 172311 is accordingly 

dismissed. 

Docket No. CENT 80-354-M (One Citation) 

Citation No. 170681 was issued on October 11, 1979, and described the 

pertinent condition or practice as follows: 

On October 11, 1979, about 10:15, a 8 foot 10 inch by 

2 foot beam weighing about 900 pounds was being unloaded from 

the bed of semi-trailer by M. M. Sundt Construction Co. to be 

laid on the ground level storage area. As the beam was being 

swung about 90' degrees by the Grove truck crane, one of the 

shake out hooks slipped out allowing the beam to fall from 

about 6 and 1/2 feet on the ground on top of two supervisors 

checking for lay out of iron on ground level in the area. The 

beam pinned both men to the ground. The extent of the injuries: 

The Foreman received - cracked ribs and bruises, abrasions. 

The General Foreman received - cracked ribs, bruises, abrasions. 

In terminating the citation on October 12, 1979, the inspector noted: 

The M. M. Sundt Construction Co., Michael Zimmer, Project 

Manager, presented a safety meeting to all their employees on 

staying clear of suspended loads and being aware of work 

environment at 07:30 hr., 10-12-79. 

The citation alleged a violation of 30 C.F.R. § 56.16-9 which provides 

that "men shall stay clear of suspended loads." 

STIPULATIONS 

The stipulations relating to Citation No. 170681 were as follows: 

1. Jurisdiction over this proceeding is conferred upon 

the Federal Mine Safety and Health Review Commission under 

2955 
the Federal Mine Safety and Health Act, 30 u.s.c. § 801, 

et seq. The alleged violation of the Act took place in or 

involves a mine that has products which enter commerce or 

has operations or products which affect commerce. 

2. The applicable mandatory safety standard, if any, is 

contained at 30 C.F.R. § 56.15-9 of the Secretary's Rules 

and Regulations. 

3. All statements made by the Secretary's safety inspector on the face of the Citation forms, as amended, are true. 

All Citation forms attached to the Complaint Proposing Penalty 

are incorporated by reference, as if fully set forth herein. 

4. The unloading of said beam by Sundt employees was in 

performance of a construction contract between Respondent and 

Sundt which required Sundt to provide all necessary labor, 

supervision, materials, equiμnent, and tools required to 

erect certain mechanical equipment and structural steel for 

the 2nd Preheater Addition at the Longhorn Plant of Kaiser, 

.at a lump SlUil contract price of $1,492,000.00. Sundt exercised an independent employment and contracted to do the work 

according to its own judment and methods, and without being 

subject to the control of Respondent except as to the results 

of the work, and Sundt had the right to employ and direct the 

actions of the workmen, independently of Respondent and free 

from any superior· authority of Respondent to say how the work 

would be done or what the laborers would do as it progressedo 

At the time of said occurrence, Sundt was employing approximately 104 employees in the performance of said contract. 

5. As part of said construction contract, Respondent 

required Sundt to keep itself fully informed and to comply 

with all state and federal laws affecting safety; to be 

responsible for accident prevention and safety in performance 

of the work; to take all reasonable measures to prevent 

injury to persons or property as a result of the performance 

of the contract work; to comply with all applicable safety 

laws, including OSHA and MSHA; to make suitable arrangements 

to supply first aid facilities to its employees; to guard 

work performed on the construction site as necessary with 

fences, barriers, lights, signs, etc.; to furnish all 

necessary protective safety equiμnent to its employees; to 

implement a safety program for its employees and to designate 

a coordinator of safety; security, and fire control; and to 

notify the Respondent of any hazardous conditions, property, 

or equiμnent at the work site not under Sundt's control. At 

the time of the alleged violation, Sundt had assigned a 

Safety Director to the construction site. 

2956 
6. Respondent knew at all relevant times that Sundt 

distributes written safety rules to each employee at the 

time he or she is hired; and that these rules instruct the 

employee, inter alia, "Never work under a suspended load." 

7. Employees at Respondent's mine collectively work 

between three-hundred thousand and five-hundred thousand 

hours annually, and penalty points for mine size, if any, 

would be 7. Employees of the company which controls 

Respondent work between nine-hundred thousand and three 

million hours annually, and the penalty points, if any, 

based on the size of the controlling company would be 3. 

The average nunber of violatons assessed per year in the 

24 months preceding the instant alleged violation was 10.5, 

and the penalty points, if any, for history of violations 

would be 1. The average number of violations assessed per 

inspection day in the 24 months preceding the instant 

alleged violation was 1.05, and the penalty points, if 

any, under the "Inspection Day'' factor would be 8. 

8. The alleged violation was not due to any negligence 

on the part of the Respondent, and the penalty points attributable to the "Negligence" factor should be "O". The preceding stipulation is based on the following, further 

stipulations: (1) Respondent did not contribute by act or 

omission to the occnrrence of the. allegen violation; (2) the 

Respondent did not contribute by act or omission to the con-· 

tinued existence of the alleged violation; (3) none of 

Respondent's employees was exposed or likely to be exposed to 

the unsafe conditions alleged; and (4) Respondent neither knew 

nor should have known of the allegedly unsafe condition. 

9. The probability, under normal circumstances, that an 

injury would result from a violation of the cited standard is 

"probable," and the penalty points, if any, to be assigned to 

the "Probability of Occurrence" factor is 3. The gravity of 

an injury resulting from violation of the cited standard may 

normally be expected to involve lost work days or restricted 

duty, and the penalty points, if any, to be assessed under 

the "Gravity of Injury Expected" factor should be 3. None of 

Respondent's employees was exposed to the alleged hazard, and 

the nunber of penalty points to be assessed under the "Nunber 

of Persons Affected" factor should be "O". 

10. Respondent demonstrated its good faith by immediately persuading Sundt to meet with its employees and 

reaffirm Sundt's safety rule requiring employees to stand 

clear of suspended lo~ds; such meeting occurred within 

24 hours of the alleged violations. Accordingly, the penalty points, if any, to be assessed to Respondent under the 

"Demonstrated Good Faith" factor should be -5. 

2957 
11. The factors or criteria upon which the Petitioner 

relies in proposing a discretionary penalty of $3,000.00 for 

the instant citation consist solely of those articulated in 

30 C.F.R. § 100.4 and in the Federal Mine Safety and Health 

Act. 

Supplementary Stipulation Docket No. CENT 80-354-M 

Statutory Criteria Applicable to Violation No. 170681 

Gravity of violation - moderate. 

VIOLATIONS 

The parties have stipulated all issues in the case with the exception 

of the liability of Kaiser for violation due to acts committed by the 

independent contractors and the sufficiency of the evidence of record to 

establish the violation of 30 C.F.R. § 56.16-11 alleged in Citation 

No. 172311 which has been dismissed. 

Although the Federal Mine Safety and Health .Amendments Act of 1977 

(Pub. L. 965-164, 30 u.s.c. § 801 et seq.) amended the definitions of "operator" to include an "independent contractor," conditions under which the 

independent contractor rather than the owner-operator should be cited were 

not prescribed. The Act still impo.ses. strict liability on the owner-operator 

for violations and Kaiser has not been relieved of its liability by contracts 

and understandings with the independent contractors. 

The liability of the operator for violations by independent contractors 

has been established by the Federal Mine Safety and Health Review Commission. 

Secretary of Labor, Mine Safety and Health Review Commission v. Old Ben Coal 

Company (MSHRC Docket No. VINC 79-119, 1 MSHC 2177, affirmed by the Court of 

Appeals of the District of Colunbia Circuit, Docket No. 79-2367, December 9, 

1980), and Monterey Coal Company v. Secretary of Labor, Mine Safety and Health 

Administration and United Mine Workers, 1 FMSHRC 1781 (1979), appeal dismissed 

sub nom. Monterey Coal Company v. Federal Mine Safety and Health Review 

Commission, 635 F.2d 291 (4th Cir. 1980) (appeal dismissed as premature). In 

Old Ben, the Commission held that the Secretary of Labor retained the discretion under the Act to cite the mine owner even though the 1977 .Amendments 

amended the definition of "operator" to include "any independent contractor 

performing services or construe tion" at a mine. In Monterey Coal, the 

Commission, citing Old Ben, reversed an administrative law judge's decision 

in which he had held the owner not liable. 

The Federal Mine Safety and Health Review Commission, on August 4, 1980, 

issued its decision in Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Pittsburgh & Midway Coal Mining Company (P&M). 'Th.at case was 

remanded to the judge to allow Petitioner an additional opportunity to elect 

the parties against which it desired to proceed. In view of the Commission's 

decision, an order was issued affording the Secretary of Labor an opportunity 

determine whether to continue to prosecute the citations against Kaiser, or 

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the independent contractor which was claimed to have violated the standards 

cited, or both. On April 16, 1981, the Secretary formally complied with that 

order by filing a response stating that it had elected to continue to proceed 

against Kaiser with respect to each of the citations herein. 

It is found as a matter of law that Kaiser may be held liable for violations committed by its independent contractor. 

Citation No. 

170S80 

172310 

172311 

170681 

ASSESSMENTS 

Amount 

$100 

100 

100 

100 

Total $400 

ORDER 

Respondent is ORDERED to pay Petitioner the .slllll of $400 within 30 days 

of the date of this order. 

Distribution: 

Forrest Eo S~ewart 

Administrative Law Judge 

Donald W. Hill, Esq., Office of the Solicitor, U.S. Department of Labor, 

SSS Griffin Square Building, Suite 501, Dallas, TX 7S202 (Certified 

Mail) 

Robert E. Bettac, Esq., Foster & Associates, Inc., Suite 1313, National 

Bank of Connnerce Building, San Antonio, TX 7820S (Certified Mail) 

* United States Government Printing Office:l982--361-638/4365 

2959