AUGUST 1986 

COMMISSION DECISIONS 

08-07-86 

08-20-86 

08-27-86 

Cotter Corporation 

Harry Wadding v. Tunnelton Mining Co. 

Amax Chemical Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-01-86 

08-05-86 

08-05-86 

08-05-86 

08-06-86 

08-06-86 

08-06-86 

08-06-86 

08-07-86 

08-07-86 

08-07-86 

08-07-86 

08-08-86 

08-08-86 

08-12-86 

08-13-86 

08-14-86 

08-14-86 

08-19-86 

08-21-86 

08-26-86 

08-25-86 

08-26-86 

08-28-86 

08-28-86 

Rushton Mining Company 

Homestake Mining Company 

D. P. Frost Construction Co. 

Consolidation Coal Company 

Sec. for Charles Ball v. Arch of KY, Inc. 

Tunnelton Mining Company 

Greenwich Collieries 

Quinland Coals, Inc. 

Emery Mining Corporation 

Utah Power & Light, Emery Mining Corp. 

Utah Power & Light, Emery Mining Corp. 

Utah Power & Light, Emery Mining Corp. 

Alabama By-Products Corp. 

Empire Energy Corporation 

Martha Perando v. Mettiki Coal Corp. 

Jim Walter Resources, Inc. 

Dan Thompson v. Gilbert Industrial 

Southern Ohio Coal Company 

Fred O.W. Arntz v. Metric Constructors 

Brown Brothers Sand Company 

Frank McCoart v. Elm Coal Co. 

Jim Walter Resources, Inc. 

M.A. Walker Company, Inc. 

Yates Construction Co., Inc. 

Martin Marietta Aggregates 

WEST 84-26-M 

PENN 84-186-D 

CENT 84-91-M 

PENN 86-217-R 

CENT 85-36-M 

CENT 86-64-M 

WEVA 86-311-R 

KENT 86-93-D 

PENN 86-65-R 

PENN 86-135-R 

WEVA 85-169 

WEST 86-126-R 

WEST 86-131-R 

WEST 86-140-R 

WEST 86-141-R 

SE 86-46 

WEST 86-19 

YORK'85-12-D 

SE 86-67 

WEST 85-77-DM 

WEVA 86-46-R 

SE 86-47-DM 

SE 86-12-M 

KENT 86-63-D 

SE 86-57 

KENT 85-140-M 

SE 86-28-M 

SE 86-31-M 

Pg. 1135 

Pg. 1142 

Pg. 1146 

Pg. 1153 

Pg. 1160 

Pg. 1162 

Pg. 1165 

Pg. 1167 

Pg. 1170 

Pg. 1172 

Pg. 1175 

Pg. 1182 

Pg. 1210 

Pg. 1212 

Pg. 1214 

Pg. 1216 

Pg. 1218 

Pg. 1220 

Pg. 1226 

Pg. 1229 

Pg. 1231 

Pg. 1242 

Pg. 1243 

Pg. 1251 

Pg. 1253 

Pg. 1256 

Pg. 1261 

Pg. 1263 

AUGUST 1986 

Review was granted in the following cases during the month of August: 

White County Coal Corporation v. Secretary of Labor, MSHA, Docket No. 

LAKE 86-58-R, 86-59-R. (Judge Melick, June 30, 1986). 

Secretary of Labor on behalf of John Gilbert v. Sandy Fork Mining Co., 

and, John Gilbert v. Sandy Fork Mining Co., Docket No. KENT 86-76-D, and 

KENT 86-49-D. (Judge Melick, July 3, 1986). 

Greenwich Collieries, Div. of Pennsyl~ania Mines Corporation v. Secretary 

of Labor, MSHA, Docket No. PENN 85-188-R, etc. (Judge Maurer, June 14, 1986 

partial decision - Petition for Interlocutory Review). 

Review was denied in the the month of 

Harry L. Wadding v. Tunnelton Mining Co., Docket No. PENN 84-186-D. 

(Judge Melick, June 18, 1985). 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

COTTER CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 7, 1986 

Docket No. WEST 84-26-M 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission 

Administrative Law Judge John A. Carlson concluded that Cotter Corporation 

("Cotter") violated 30 C.F.R. § 57.18-25 (1984), a mandatory metal-nonmetal 

underground safety standard providing: 

No employee shall be assigned, or allowed, or be 

required to perform work alone in any area where hazardous 

conditions exist that would endanger his safety unless 

his cries for help can be heard or he can be seen. 

7 FMSHRC 360 (March 1985)(ALJ). };/ For the following reasons, we reverse. 

Cotter's Schwartzwalder Mine is an underground uranium mining 

operation located in Jefferson County, Colorado. On October 6, 1984, 

Pete Redmond, a Cotter shift boss, assigned three miners to work in 

stopes 17-3 and 17-4 of the mine. (Stopes are excavated areas from 

which ore is mined in a series of steps.) The work crew consisted of 

Romolo Lopez, Paul Herrera and Bobby Varela. Because Lopez's partner 

had not reported for work that day, Redmond instructed Herrera to "bounce 

back and forth" between Lopez and Varela. Lopez was assigned to stope 

17-3 and Varela was assigned to stope 17-4. The distance between stopes 

17-3 and 17-4 was approximately 50-60 feet. In order to move from one 

stope to another, it was necessary to climb down a ladderway, walk 50-60 

feet and then climb up another ladderway. 

1/ Following the Secretary of Labor's revision of the metal-nonmetal 

standards in January 1985, this standard now is found unchanged at 30 

C.F.R. § 57.18025 (1985). 

1135 
Lopez was assigned to drill three boreholes with a jackleg drill. 

(A jackleg drill, sometimes referred to as a "jackdrill, 11 is an airoperated rock drill that has a single support leg or "jackleg".) The 

shift had begun at 8:00 a.m. and Lopez reached his work area at around 

8:30 a.m. After completing some preparatory work not involving drilling, 

Lopez was ready to drill at about 8:40 a.m. Herrera checked on Lopez at 

around 9:00 a.m. and stayed with him for approximately 15 minutes. As 

Herrera left stope 17-3 to go back to stope 17-4, he met Redmond, the 

shift boss, at the manway leading into stope 17-3. Redmond also was on 

his way to check on Lopez. Redmond stayed with Lopez for approximately 

15 minutes, during which time Lopez was operating the drill. As Redmond 

left the work area, he met an inspector of the Department of Labor's 

Mine Safety and Health Administration ("MSHAn), Richard Coon, and one of 

Cotter's safety and training specialists at the bottom of the manway 

leading into stope 17-3. 

Inspector Coon entered stope 17-3 at approximately 10:00 a.m. and 

observed Lopez operating the jackleg drill by himself. Coon asked Lopez 

where his partner was and Lopez informed him that there was no one 

working with him directly, but that the other two members of the crew, 

who were in stope 17-4, checked on him periodically. Inspector Coon 

asked to speak to the other two crew members and sent Lopez to find 

them. On his way down the ladderway, Lopez met Herrera, who was coming 

up to stope 17-3 to check on him. Inspector Coon thereafter issued an 

imminent danger withdrawal order and citation alleging a violation of 30 

C.F.R. § 57.18-25. 2/ 

In his decision, Judge Carlson concluded that Cotter had violated 

section 57.18-25. Relying on statistical reports concerning accidents 

involving rock drilling and on testimony from Inspector Coon, he found 

that an area in which jackleg drilling takes place is one where "hazardous 

conditions" exist within the meaning of section 57.18-25. 7 FMSHRC at 

361-62. The judge applied the reasoning in Old Ben Coal Co., 4 FMSHRC 

1800 (October 1982), in which, analyzing a comparable "working alone" 

standard (30 C.F.R. § 77.1700), the Commission held: 

[T]he standard requires [that where miners are 

working alone where hazardous conditions exist, 

there must be] communication or contact of a 

regular and dependable nature commensurate with 

the risk present in a particular situation. 

4 FMSHRC at 1803. The judge found that the contact that Lopez had with 

other Cotter employees was insufficient to meet the Old Ben test. 

7 FMSHRC at 365-68. He ultimately held that Lopez was allowed to work 

alone in an area where hazardous conditions existed without sufficient 

contact with other miners. 7 FMSHRC at 368. 

2/ The withdrawal order was not at issue in the proceedings before 

Judge Carlson. 

1136 
We granted Cotter's petition for review. The American Mining 

Congress ("AMC") filed an amicus brief and we heard oral argument in 

this matter. Cotter and the AMC contend that jackleg drilling is not a 

per se hazardous mining activity. Cotter also asserts that there is no 

evidence to support the conclusion that Lopez was working in an area 

where specific hazardous conditions existed. Cotter argues that, even 

assuming hazardous conditions were present, the contact that Lopez had 

with other Cotter personnel was sufficient to meet the Commission's 

Old Ben test. 

We conclude that the evidence presented by the Secretary on the 

present record fails to demonstrate that jackleg drilling is per se 

hazardous within the meaning of section 57.18-25. We further conclude 

that even had hazardous conditions existed in connection with Lopez's 

drilling, the level of contact that he had with others satisfied the 

requirements of the cited standard as a matter of law. 

At the outset, we must dispel misconceptions as to the general 

meaning of this "working alone" standard. Section 57.18-25 does not 

prohibit employees from working alone. 3/ Contrary to some of the--

testimony in this case (Tr. 14-15), this standard also does not contemplate that, merely because an employee is working alone, "hazardous 

conditions" automatically exist. If that were the intended meaning of 

the regulation, its reference to "hazardous conditions" would be surplusage. Rather, under section 57.18-25, an employee assigned a task 

alone must have sufficient contact with others (i.e., must be able to be 

heard or seen) if, and only if, hazardous conditions within the meaning 

of the regulation are associated with that task. It is equally clear 

that the standard does not require constant contact in such circumstances. 

Cf. Old Ben, supra, 4 FMSHRC at 1803-04. Thus, the real question in 

cases arising under section 57.18-25 where hazardous conditions are 

shown to exist is whether the employee's contact with others, which need 

not be continual, was sufficient to satisfy the protective purposes of 

the standard. 

The judge found that an area in which jackleg drilling occurs is 

one where "hazardous conditions" exist within the meaning of section 

57.18-25. 7 FMSHRC at 261-62. The Secretary's position concerning this 

point is not clear. In his reply brief counsel for the Secretary disclaimed the view that jackleg drilling is per se hazardous, yet during 

oral argument seemed to agree with the judge 1 s-Yinding in that regard. 

Tr. Oral Arg. 35-38, 42. In any event, we conclude that the judge's 

finding is not supported by substantial evidence. 

3/ If the Secretary wishes to prohibit certain tasks from being performed alone, he may promulgate standards that expressly accomplish that 

end. Such a standard is not involved here. 

1137 
The judge relied primarily on MSHA computer-generated summaries of 

drilling accidents in underground metal-nonmetal mines during the years 

1981-1984. Exhs. P-2 through P-5. These summaries cover a wide range 

of different drilling operations and it is impossible to determine from 

the brief descriptions in many of the summaries whether jackleg drilling 

was specifically involved in a given accident. Moreover, some of the 

accidents appear to have stemmed from incidents that may not have involved 

drilling at all. See, e.g., Exh. P-4, Items 1, 3, 4, 5, 6 & 7. On the 

basis of evidence SO'"""lacking in substantive explanation, we cannot 

endorse the judge's virtual legislative determination that jackleg 

drilling is per se hazardous within the intendment of section 

57 .18-25. 4/--

Returning to our examination of the standard in light of the facts 

surrounding Lopez's drilling, we agree in result with the judge that 

Lopez was working "alone" as that term is used in section 5 7 .18-25. 

7 FMSHRC at 364-65. As discussed above, the three-man crew that included 

Lopez was divided between two worksites, stopes 17-3 and 17-4. Lopez 

was working in stope 17-3 while the other two members of the crew, 

Herrera and Varela, were assigned to stope 17-4. The distance between 

the stopes was approximately 50-60 feet, and travel between the stopes 

required climbing up one ladderway and down another. Under these circumstances, we conclude that "for practical purposes" Lopez was working 

alone in the particular work area to which he was assigned. See Old Ben, 

4 FMSHRC at 1802. (As previously noted, such an assignment not 

forbidden by the standard and does not, by itself, imply any violation 

of the standard.) 

For purposes of this decision only, we will assume that specific 

hazardous conditions existed in connection with Lopez's work and turn to 

the crucial issue of whether Lopez had sufficient contact with other 

miners. In establishing in Old Ben a test under which such contact 

issues could be resolved, the Commission rejected approaches either 

4/ The judge also relied upon the testimony of the inspector who issued 

the citation. Without detracting from the inspector's qualifications as 

a general expert in mine health and safety, we note his statement that 

he had never operated a jackleg drill (Tr. 60), his candid admission 

that he was not an expert on drilling (Tr. 61), and his apparent misconceptions as to the general meaning of the cited regulation. Tr. 14-16. 

We further note that because of its age, the judge expressed some doubt 

as to the weight to be accorded Exh. P-1, a 1975 report on jackleg 

drilling prepared by MSHA's predecessor agency, MESA, based on data for 

the years 1973-74. 7 FMSHRC at 362. The judge assigned weight to the 

report largely on the basis of the subsequently prepared MSHA computer 

summaries but, for the reasons discussed above, we cannot conclude that 

these summaries lend weight to the older MESA report, Finally, some 

evidence was presented that the practice of Cotter and the industry is 

to have miners operate jackleg drills in pairs. However, the evidence 

in this record falls short of establishing that any such industry norm 

exists or whether any such practice is founded primarily on safety or 

production considerations. 

1138 
requiring constant contact under all conditions or allowing any minimum 

level of contact to satisfy the standard. The standard involved in 

Old Ben, 30 C.F.R. § 77.1700, provides that no employee shall be required 

to "work alone in any area where hazardous conditions exist that would 

endanger his safety unless he can communicate with others, can be heard, 

or can be seen." The Commission held that this standard requires: 

communication or contact of a regular and dependable nature commensurate with the risk present in 

a particular situation. As the hazard increases, 

the required level of communication or contact 

increases. 

4 FMSHRC at 1803. 5/ 

Thus, the precise issue presented is whether the contact Lopez had 

with the other Cotter employees was (1) of a regular and dependable 

nature, and (2) commensurate with the hazard presented. The judge 

answered the first question in the affirmative and we agree. 7 FMSHRC 

at 367. Herrera, who had been assigned by the shift boss, Redmond, to 

assist Lopez, was aware that he was to check on Lopez on a periodic 

basis. He did check on Lopez around 9:00 a.m., staying with him 

approximat 15 minutes. He also attempted to check on Lopez a second 

time shortly after 10:00 a.m.; however, the citation had already been 

issued. In between these two visits, Redmond also checked on Lopez, 

staying with him for approximately 15 minutes. Under these circumstances, 

we affirm the judge's finding that the presence of Herrera and Redmond 

"was in general accord with a plan to provide periodic contact with 

Lopez on a regularized basis." 7 FMSHRC at 367. 

The actual amount of time that other miners spent with Lopez is 

particularly compelling. The judge found, and the evidence shows, that 

Lopez was in contact with other miners for a total of approximately 30 

of the 80 minutes before being observed by the inspector. 7 FMSHRC at 

366-67. This is nearly 40% of the time during which he was engaged in 

drilling-related activities in stope 17-3. Moreover, the actual drilling 

consumed only about 30 minutes of the 8:40-10:00 a.m. time period 

involved. Also during this period Varela twice walked down towards 

the entrance to stope 17-3 to check on Lopez. From the sound of 

the drill, Varela could hear that the drilling was proceeding normally. 

We conclude that, as a matter of law, such a substantial level of 

contact is sufficient to satisfy the requirements of the standard 

during the operation at issue. was an experienced 

2./ Section 57.18-25 refers to being heard or seen but, unlike section 

77.1700, does not refer to "communication" with others. Like the judge 

(7 FMSHRC at 365-66), we do not view this difference in wording as 

important in this specific case, although we recognize that different 

issues may arise under each standard. We use the term "contact" here as 

a convenient summary term for being heard or seen apart from any notions 

of interactive "communication." 

1139 
miner (Tr. 108), his drilling assignment appears to have been routine, 

and the record does not reflect that any unusual mining conditions were 

present. We emphasize that the facts here differ significantly from the 

nearly total lack of contact involved in Old Ben. See 4 FMSHRC at 

1801-02. Therefore, on the facts involved in the present case, the 

judge erred in concluding that a violation of the standard occurred. 

For the foregoing reasons, the decision of the administrative law 

judge is reversed and the civil penalty assessed by the judge is vacated. 

'RicllardV:BaCk, Commissioner 

VJoyce ~. Doyle, Commission 

L. Clair Nelson, Commissioner 

1140 
Distribution 

Barry F. Wisor, Esquire 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Barry D. Lindgren, Esquire 

Mountain States Employers Council 

P.O. Box 539 

Denver, Colorado 80201 

for Cotter Corporation 

Michael Duffy, Esquire 

American Mining Congress 

Suite 300 

1920 N Street, N.W. 

Washington, D.C. 20036 

Administrative Law Judge John A. Carlson 

Federal Mine Safety and Health Review Commission 

Office of Administrative Law Judges 

333 W. Colfax Avenue, Suite 400 

Denver, Colorado 80204 

1141 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Harry L. Wadding 

v. 

Tunnelton Mining Co. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 20, 1986 

Docket No. PENN 84-186-D 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

On June 16, 1986, Harry L. Wadding filed with the Commission a 

Motion to Have the Judgment Set Aside in the above matter. The decision 

of Commission Administrative Law Judge Gary Melick in this proceeding, 

dismissing Mr. Wadding's discrimination complaint, was issued on June 

18, 1985. 7 FMSHRC 896 (June 1985)(ALJ). Wadding failed to file a 

timely petition for discretionary review of Judge Melick's decision 

within the 30-day period prescribed by the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). 30 U.S.C. 

§ 823(d)(2)(A)(i). See also 29 C.F.R:-§~00.70(a), The Commission did 

not direct review on its own motion, and by operation of the statute the 

judge's decision became a final decision of the Commission 40 days after 

its issuance. 30 U.S.C. § 823(d)(l). Under these circumstances, we 

construe Wadding's motion as a request for relief from a final Commission 

order. 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply in 

absence of applicable Commission rule); Fed. R. Civ. P. 60 (Relief from 

Judgment or Order). See William A. Haro v. Magma Copper Co., 5 FMSHRC 

9-10 (January 1983); Gerald D, Boone v. Rebel Coal Co., 4 FMSHRC 1232, 

1233 (July 1982). 

1142 
Wadding, who prepared his motion and supporting materials without 

the assistance of counsel, alleges that Tunnelton Mining Company engaged 

in fraud, through perjured testimony and other deception, during the 

hearing below. See Fed. R. Civ. P. 60(b)(3). We have reviewed Wadding's 

motion and related papers, the voluminous materials that Wadding has 

submitted in support of his motion, the operator's response, and the 

judge's decision. The motion is denied for two reasons. 

First, the motion is seriously untimely. A Rule 60 motion based on 

allegations of fraud "shall be made within a reasonable time, and ••• 

not more than one year after the judgment, order, or proceeding was 

entered or taken." Fed. R. Civ. P. 60(b) (emphasis added). Although 

Wadding's motion falls within the one-year period, we do not find the 

lapse of time between the issuance of the judge's decision and the 

submission of his motion to be reasonable under the circumstances. 

Wadding's motion is not based on newly discovered material evidence, but. 

rather on evidence and allegations pertaining to the merits of his 

discrimination complaint and contested at the hearing below. There is 

no apparent reason why Wadding could not have filed a timely petition 

for discretionary review challenging the judge's findings and credibility 

resolutions with respect to the matters that he now seeks to raise. 

Rule 60 is not a substitute for appeal, and under settled principles of 

finality and repose the present motion is untimely. See, e.g., Central 

Operating Co. v. Utility Wk.rs. of America, 491 F.2d 245, 252-53 (4th 

Cir. 1974); 11 Wright & Miller, Federal Practice and Procedure § 2866 

(p. 232) (1973). 

Second, even were the motion to be entertained as timely, it is 

insufficient on the merits to justify relief. A movant under Rule 

60(b) (3) must establish by clear and convincing evidence that the 

adverse party engaged in fraud or other misconduct, and that the 

wrongdoing prevented the moving party from fully and fairly presenting 

his case. E.g., Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 

1978). Wadding has made no such showing but rather, as noted, merely 

attempts to relitigate evidentiary matters and assertions ruled upon by 

the judge. We also observe that Wadding was represented by counsel at 

the hearing below. We find no clear and convincing evidence of fraud, 

misconduct or illegality on this record. 

1143 
For the foregoing reasons, the motion is denied. 

~an 

~,(t J/)u H-t. 

Richard V. Backley, Commissioner 

Joyce 

v~a.. A. Doyle, CommiSSiO!l ~ 

~~fs;; Last(~;; Co~issioner 

cL'Lt~v f Llf.-"LCI'-., .. L. Clair Nelson, Commissioner 

1144 
Distribution 

Harry L. Wadding 

Box 348 

Blacklick, Pennsylvania 15716 

R. Henry Moore, Esq. 

Rose, Schmidt, Chapman, Duff & Hasley 

~00 Oliver Bldg. 

Pittsburgh, Pennsylvania 15222 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1145 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

AMAX CHEMICAL COMP&'iY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

August 27, 1986 

Docket No. CENT 84-91-M 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission 

Administrative Law Judge Gary Melick concluded that Amax Chemical Company 

("Amax") violated 30 C.F.R. § 57.3-22 (1984) by failing to provide 

adequate support for loose ground (roof). 1/ 7 FMSHRC 447 (March 1985) 

(ALJ). We granted Amax's petition for discretionary review and heard 

oral argument. On the bases that follow, we affirm. 

1/ This mandatory ground control safety standard, which applies to 

metal-nonmetal underground mines, provides: 

Miners shall examine and test the back, face, and rib 

of their working places at the beginning of each shift and 

frequently thereafter. Supervisors shall examine the ground 

conditions during daily visits to insure that proper testing 

and ground control practices are being followed. Loose ground 

shall be taken down or adequately supported before any other 

work is done. Ground conditions along haulageways and 

travelways shall be examined periodically and scaled or 

supported as necessary. 

30 C.F.R.§ 57.3-22 (1984) (emphasis added). In 1985, this provision 

was renumbered as 30 C.F.R. § 57.3022 but its wording was not changed. 

1146 
Amax operates an underground potash mine and surface preparation 

mill located in Eddy County, New Mexico. The mine's ore is composed of 

potash and sodium chloride (salt) and contains seams of clay, mud, and 

carnallite. 2/ On June 19, 1984, Clyde E. Bays, an inspector of the 

Department of Labor's Mine Safety and Health Administration ( 11MSHA11 ), 

conducted an inspection of Amax's mine. In the shuttle car unloading 

area Inspector Bays observed an area of roof 15-feet by 8-feet in which 

a crack or separation was visible. Eight to ten roof bolts had been 

installed around the visible crack. Inspector Bays proceeded to sound 

the roof with his hammer. The inspector testified that when a solid 

roof is sounded a clear ringing sound is generally produced but that if 

there is "some separation in the strata" of the immediate roof a dull, 

"drummy" sound is heard. Tr. 27-28. When Inspector Bays sounded the 

area in question, he encountered a drummy, "dull thud" sound. Because 

of the presence of the visible crack and the restilts of his sounding 

test, the inspector believed that the roof was loose and inadequately 

supported and issued the subject citation alleging a violation of 

section 57.3-22. The inspector designated the alleged roof control 

violation as "significant and substantial." 30 U. S .C. § 814 (d) (1). 

The citation was terminated after Amax installed six additional 

roof bolts in the cited area. After installation of those bolts, 

Inspector Bays again tested the roof and found that it no longer sounded 

drummy. 

At the hearing before Judge Melick, Amax's general mine superintendent, 

Robert Kirby, acknowledged that a drummy sound suggests that there is a 

separation at some point above the ceiling. He state<l, however, that 

this does not necessarily mean that the material is loose and will fall. 

Kirby testified that the practice at Amax was to install roof bolts in 

drummy-sounding areas as insurance against roof falls. Kirby conceded 

on cross-examination that, despite his past experience in the mine, he is 

unable to determine with absolute certainty whether a drummy area will 

fall. S.K. Desai, Amax's production superintendent, testified that 

drummy-sounding roof is evidence of either a physical separation in the 

roof strata or loosened adhesion between the strata because of the 

presence of carnallite or mud seams. Desai testified that when carnallite 

comes in contact with salt it will produce a drummy sound when tapped. 

He further stated that the presence of carnallite poses the same hazard 

as separation in the seams and the material could fall. 

2/ Carnallite is a massive, granular, greasy, milk-white, soluble, 

hydrous magnesium-potassium chloride. Bureau of Mines, U.S. Department 

of Interior, A Dictionary of Mining, Mineral and Related Terms 177 

(1968) ("DMMRT"). 

3/ Drummy is defined as, 11 [l]oose coal or rock that produces a hollow, 

loose, open, weak, or dangerous sound when tapped with any hard substance 

to test condition of strata; said especially of a mine roof." DNMRT 356. 

1147 
In affirming the citation, the judge seemed to indicate that the 

critical issue was whether drummy-sounding roof alone is sufficient to 

support a finding that ground is loose and inadequately supported within 

the meaning of section 57.3-22. 7 FMSHRC at 448-49. The judge relied 

in part on the testimony of Desai that "drummy sounding roof is evidence 

of either a physical separation in the roof strata or loosened adhesion 

between the strata resulting from the presence of carnallite or mud 

seams." 7 FMSHRC at 449. The judge determined that even using Amax's 

"definition of 'loose' as 'not rigidly fastened, or securely attached' 

or as 'loosely cemented •.• material, rn the cited drummy roof was loose 

and required additional support. 7 FMSHRC at 449. Accordingly, the 

judge found a violation. He further concluded that the evidence was 

insufficient to establish a "significant and substantial" violation 

within the meaning of section 104(d)(l) of the Act, as no effort had 

been made by the MSHA inspector to bar down the area around the fracture. 

7 FMSHRC at 450. !!_/ The judge assessed a $50.00 civil penalty. 

We conclude that substantial evidence supports the judge's finding 

of a violation in this particular instance but, on the present record, 

we disavow any implication in the judge's decision that the presence of 

drummy-sounding roof (back) in a metal-nonmetal mine always signifies 

"loose" ground within the meaning of the standard. 

Section 5 7. 3-22 requires in pertinent part: "Loose ground shall be 

taken down or adequately supported before any other work is done." 

(Emphasis added). In light of the arguments advanced in this case, we 

emphasize at the outset that this standard does not provide that "drummy" 

ground be taken down or adequately supported but rather requires that 

"loose ground" be taken down or supported. "Loose ground" is not defined 

in the standard, and we therefore turn to the commonly accepted meanings 

of the term. 

Both the Secretary and Amax note that "loose" is defined as "not 

rigidly fastened or securely attached." Webster's Third World New 

International Dictionary (Unabridged) 1335 (1966). The term "loose 

ground" has a specific meaning within the mining industry and is defined 

as "[b]roken, fragmented, or loosely cemented bedrock material that 

tends to slough from sidewalls into a borehole ...• As used by miners, 

rock that must be barred down to make an underground workplace safe •••• " 

D~T 658. Accordingly, the term loose ground, as used in this standard, 

refers generally to material in the roof (back), face, or ribs that is 

not rigidly fastened or securely attached and thus presents some danger 

of falling. 

While this definition is generally useful, the crux of the matter 

is how it is determined that ground is, in fact, loose within the meaning 

of section 57.3-22. As discussed in recognized texts, practical roof 

testing is not yet a precise science served by a sophisticated technology. 

4/ The Secretary did not seek review of the judge's finding that the 

Violation WaS not "significant and SUbStantial. II 

1148 
See, e.g., S.M. Cassidy (ed.), Elements of Practical Coal Mining 76-77 

(1973). Certainly, a major means of detecting loose roof is the one 

employed by the inspector in this matter: the sound-and-vibration 

method, which is a simple test involving tapping the roof with a hammer. 

Generally, loose roof will give off a dull, hollow, drummy sound as 

compared with the solid ring of firm roof. While a drummy sound is 

generally an indication of loose roof, circumstances may be present in 

which the sound-and-vibration test is not reliable. See, e.g., Cassidy, 

id., at 77. We note the concession of Inspector Bays that there are 

instances when a drummy sound is produced during testing but the roof is 

not, in fact, loose. Tr. 64-65. 

In this regard, it bears emphasis that Amax's mine is a potash 

mine. Unlike the regulatory scheme that obtains with respect to underground coal mines, approved roof control plans are not required in 

underground metal-nonmetal mining operations. Rather, "[g]round support 

shall be used if the operating experience of the mine, or any particular 

area of the mine, indicates that it is required." (30 C.F.R. §57.3020 

· (1985) (formerly numbered as 30 C.F.R. § 57.3-20 (1984)). See generally, 

White Pine Copper Div., Copper Range Co., 5 FMSHRC 825, 835-37 (May 

1983). (Of course, the standard involved in the present case also 

imposes the continuing duty to examine ground conditions in such mines 

and to take down or adequately support any loose ground.) 

In view of the distinctive nature of ground control in metalnonmetal mines and the uncertainties that may be involved in any 

particular sound-and-vibration test, and on the basis of the present 

record, a per se rule equating drumminess with loose ground in underground metal-nonmetal mines cannot be endorsed. Rather, we hold that in 

evaluating ground conditions and the adequacy of support under this 

standard, all relevant factors and circumstances must be taken into 

account. The result of a sounding test is an important factor, but is 

not necessarily dispositive. The size of the drummy area and other 

possible explanations for the drumminess must also be considered. 

Visible fractures, sloughed material, "popping" and ''snapping" sounds in 

the ground, the presence, if any, of roof support, and the operating 

experience of the mine or any of its particular areas, are also relevant 

factors to be considered. Cf. White Pine, supra, 5 FMSHRC at 833-37. 

In the present case, we conclude that substantial evidence, which 

includes but is not limited to the inspector's sounding test, supports 

the judge 1 s finding that the cited ground was loose. Here, the inspector 

carefully examined the area of roof in question. His attention was 

engaged first by the presence of a clearly visible crack surrounded by 

8 to 10 previously installed roof bolts. A fracture often signifies loose 

roof, and Amax's previous bolting efforts indicated some level of concern 

by the operator itself. As noted, the inspector's sound test produced a 

drummy sound despite the existing bolting. The testimony of production 

superintendent Desai regarding ground conditions in Amax's mine lends 

1149 
corroborative support to the inspector's belief that the cited area was 

loose. As noted, Desai testified that drummy-sounding roof is evidence 

of either a physical separation in the roof strata or loosened adhesion 

between the strata because of the presence of carnallite or mud seams. 

Desai also testified that carnallite poses the same hazard as does 

separation in the seams. Although Amax correctly contends that its 

operating experience must also be considered, we discern no persuasive 

reason on this record to challenge the inspector's informed judgment or 

to overturn the judge's finding that the roof was loose. !}_/ 

5/ We reject any suggestion that the ground control measures required 

by the standard apply only when ground is in immediate danger of falling. 

The standard contains no such qualification. If an operator disagrees 

with an inspector's determination that the ground is loose, it can 

attempt to demonstrate the soundness of the ground by barring the area 

in question. Tr. 68. The operator also can point to the operating 

history of the mine and any other relevant factors tending to show that 

the ground is not loose, Here, rather than barring the area in question 

Amax installed additional roof bolts. However, as the facts of this 

case show the fact that roof bolts have previously been installed does 

not guarantee compliance with the standard. The standard requires not 

just support but adequate support. 

1150 
On the foregoing bases, the judge's decision is affirmed. 

·'/ /~· / ~tL.-Lz~ {.(,. c·· ·L.e:_ 

Joyce A; Doyle, Commissione 

££g Lasto'Jwkalc, :"} f r./~ 

~ .-LLc v . ·'-.-~-1-t.../ 

L. Clair Nelson, Commissioner 

1151 
Distribution 

Charles C. High, Jr., Esq. 

Kemp, Smith, Duncan & Hammond 

P.O. Drawer 2800 

El Paso, Texas 79999 

James L. Dow, Esq. 

Dow, Feezer & Williams, P.A. 

P.O. Box 128 

Carlsbad, New Mexico 88221 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1152 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 1 1986 

RUSHTON MINING COMPANY, CONTEST PROCEEDING 

contestant 

Docket No. PENN 86-217-R 

v. Citation No. 26 9 2281; 6/23/86 

SECRETARY OF LABOR, Rushton Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Appearances: 

Before: 

Respondent 

DECISION 

Timothy M. Biddle, Esq., and Susan E. Chetlin, 

Esq., Crowell & Moring, Washington, D.C., for 

Contestant; 

Robert A. Cohen, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Respondent. 

Judge Maurer 

This case is before me upon the notice of contest and 

motion to expedite filed by the Rushton Mining Company 

(Rushton) under section 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act" 

and Commission Rule 52, 29 C.F.R. § 2700:52-;-challenging the 

validity of Citation No. 2692281 issued pursuant to section 

104(a) of the Act. A hearing was held in Pittsburgh, Pennsylvania, on July 3, 1986. 

The issue in this case is whether a violation of the 

mandatory standard at 30 C.F.R. § 75.1400(c) exis as 

alleged in Citation No. 2692281. The citation, as modified, 

reads as follows: 

The devices used to transport persons in the 

slope [do] not provide assurance they will act 

quickly and effectively in the event of an 

emergency in that the Sanford-Day Brakecar is 

the trailing car when entering the slope and 

the lead car when exiting the slope. [S]hould 

uncoupling take place the Sanford-Day Brakecar 

could not control or stop the other mantrip 

car used· in conjunction with the brakecar. 

1153 
cited standard provides as follows: 

(c) Cages, platforms, or other devices used 

to transport p~rsons in shafts and slopes shall 

be equipped with safety catches or other no less 

effective devices approved by the Secretary that 

act quickly and effectively in an emergency. 

Such catches or devices shall be tested at least 

once two months. 

Rushton has f il a post-hearing motion to supplement 

the record to of into evidence the affidavit of Raymond G. 

Roeder, Mine Manager of. the Rushton Mine (marked as Exhibit 

C-7) and the affidavit of Gerald P. Scanlon, Resident Mining 

Engineer-of the Rushton Mine (marked as Exhibit C-8). The 

stated purpose of these two exhibits is to supplement 

Rushton's evidence concerning the likelihood of a faiiure 

in the coupling between the brakecar and mancar, which 

question is at issue i.n this case. These exhibits contain 

technical analyses of the coupling strength between the 

brakecar and the mancar, as well as the loads the various 

components are subjected to, which are clearly relevant, at 

least inso as they concern the equipment as it existed 

on the day the citation was written, June 23, 1986. The 

Secretary·objects to these submissions on the grounds that 

they go beyond the·· scope of the testimony adduced at the 

hearing and obviously do not provide an opportunity for 

cross-examination. Considering the proffered exhibits in 

"their entirety, I agree. However, I am going to admit 

Exhibits C-7 and C-8 into evidence for the very limited 

purpose of clarifying certain estimates that were made on 

the record at hearing and which are applicable to the 

equipment as it existed on June 23, 1986. These estimates 

were subj to cross-examination at the hearing and I see 

no reason not to admit the more correct data into evidence 

if the party sponsoring it has taken the trouble to ine 

it. In each case the estimate which is the hearing 

record a_nd the computation are relatively close and 

the raw data is available for anyone to verify or differ 

with the mathematical computations. 

Findings of Fact 

1. Access and out of the Rushton Mine is via a 

16 degree slope approximately 700 feet in length beginning 

at the surface. 

2. In its existing configuration, is a hoist 

with a one-inch diameter steel cable rated to hold approximately fifty tons dead weight attached to a brakecar which 

is in turn coupled to a mancar or a supply car to take men 

and supplies, respectively, into and out of the mine. 

·1154 
3. A "man-trip" is composed of two cars, the brakecar 

and a mancar, which can take a maximum of 52 people, 32 in 

the mancar and 20 in the brakecar, into or out of the mine. 

It is used at the beginning and end of each shift, of which 

there are· three, to take the full complement of miners into 

and out of the mine. 

4. Normal procedure is for the mancar to be disconnected from the brakecar during the shift and left on a side 

track on the surface. The brakecar remains attached to the 

hoist rope and a supply car is coupled to the brakecar to 

make up a "supply-trip." 

5. The brakecar is only detached from the hoist rope 

when the cable is changed, which is approximately every 4 

to 6 months and on those occasions when heavy equipment is 

moved into or out of the mine. 

6. Attaching the hoist rope to either the brakecar 

as is presently done or the mancar as is proposed by MSHA, 

requires a relatively complex (compared to the brakecarmancar attachment) multi-step connection process which takes 

two men to accomplish because the coupling assembly weighs 

177 pounds. 

7. The brakecar contains a braking system which can 

be activated either manually by a person seated in the 

front seat of the car or automatically if either of two 

centrifugal switches senses an overspeed condition which 

would occur when the brakecar reaches a speed of approximately 

300 feet per minute. The hoist normally runs at 100 feet 

per minute when hoisting people in the mantrip. In the 

event 0f an overspeed condition, such as would be caused 

by a hoist rope break, the brakes would automatically stop 

the brakecar and the coupled mancar. 

8. These brakes are tested in the slope at least 

monthly and when tested together with the mancar, the 

brakes have performed properly, holding both the brakecar 

and the rnancar. 

9. The mancar is connected to the down-slope end of 

the brakecar by means of a steel drawbar that is 23 inches 

long, from 6 to 5-1/4 inches wide and 1-1/4 inches thick. 

There are two three-inch holes in either end of this bar 

through which a 2-1/2 inch steel pin connects the drawbar 

to the mancar. A 2-1/4 inch steel pin connects the drawbar 

to the brakecar by a coupling lever which obviates the 

need for anyone to go between the cars to connect them. 

1155 
In addition to the drawbar assembly, two separate one-inch 

link safety chains independently connect the brakecar and 

mancar. 

10. The steel drawbar assembly existent at the time 

the citation was written is estimated to be capable of 

withstanding a load of fifty tons. 1/ The safety chains, 

whose purpose is to keep the two cars connected in the event 

the drawbar or one of the pins should fail, can withstand 

eighteen tons of stress on each chain. 

11. ·The brakecar weighs approximately 13,500 pounds 

and the mancar weighs 11,280 pounds. Thus, the total 

weight of the empty mantrip is 24,780 pounds. When fully 

load.ed with 52 men (assuming 200 pounds per man), the mantrip will weigh an additional 10,400 pounds or approximately 

35,180 pounds total. When the fully loaded mantrip is on 

the 16-degree slope track, however, resolution of the force 

of gravity into two components determines that 72.5% of the 

total weight acts perpendicular to the surf ace of the slope 

and is absorbed by the slope track leaving only 27.5% or approximately 5 tons of dead weight acting parallel to the 

slope and.pulling on the hoist rope that is capable of 

supporting fifty tons. 

12. When fully loaded (at 200 pounds per man) the 

mancar weighs 17,680 pounds. On the 16 degree slope track, 

the perpendicular component of gravity again absorbs 72.5% 

of the total weight. Thus the actual weight drawing on the 

pin and drawbar coupling assembly between the cars is approximate 5,000 pounds or 2.5 tons of dead weight pulling on 

a drawbar capable of supporting fifty tons. 

13. The mantrip, in its existing configuration, was 

placed in service in late 1972. Since that time, the instant 

citation is the only one written by MSHA the alleged 

failure of this equipment to meet the cited mandatory 

standard. In that time there has never 'been an accident 

involving the cable attachment or the coupling assembly 

between the cars. Nor have the brakes ever f led. 

1/ Because the manufacturer could not define with certainty 

the steel characteristics of the existing drawbar and pins, 

Rushton has purchased a new drawbar and new pins. The load 

capacity of the new drawbar is 405,000 pounds or 202~5 tons. 

The new 2-1/4 inch pin has a load capacity of 248,125 pounds 

or 124.06 tons and the new 2-1/2 inch pin a load capacity of 

306,875 pounds or 153.43 tons. 

1156 
DISCUSSION, FURTHER FINDINGS OF FACT, AND CONCLUSIONS OF LAW 

MSHA's interest in the Rushton mantrip dates back to 

sometime in 1984 when at least one inspector became concerned 

with whether it met the regulations in its present configuration.. The matter begari to come to a head in April of 1986 

when an MSHA inspection party visited the mine to observe 

hoist operations. At that time they requested that Rushton 

relocate the brakecar to place it inby the mancar, i.e., 

switch the cars around. When Rushton balked at doing this, 

his "superiors" directed Inspector Reichenbach to issue 

the instant citation, which he did on June 23, 1986. 

MSHA's concern over this configuration of the cars in 

the mantrip sterns from the fact that the rnancar has no 

independent braking system or anything else for that matter 

to stop it from running away down the slope should it become detached from the brakecar. While MSHA agrees that 

the coupling assembly, together with the two one-inch link 

safety chaitis appears to be a secure method of attaching 

the two cars, MSHA argues that in order to satisfy the 

cited regulation, the attachment must be permanent, or the 

rnancar must be up-slope from the brakecar. Mr. Gossard, 

the chief witness for the Secretary at the hearing testified on direct examination at Tr. 59: 

Q. Now, the mantrip car and the braking car 

are attached by means of a link aligner? 

A. It's a pin and link arrangement, yes, sir. 

Q. Okay. And, safety chains? 

A. That's correct, bridle chains. 

Q. And, in order for the mantrip car to come 

unattached from the braking car, would both of those 

devices have to fail? 

A. Both devices, if they were both hooked up, 

initially, both devices would have to fail to cause 

a situation. 

Q. And, in your opinion could that situation 

occur? 

A. It may. I wouldn't want to bet thirty men's 

lives on that it wouldn't occur. 

The key phrase in the above-quoted testimony is that "[i]t 

may", and that is the crux of the Secretary's case. 

1157 
Since the mancar has no independent means of stopping, 

it is axiomatic that it cannot comply with the regulation 

unless is attached to the brakecar. The issue herein, 

however, is does the regulatory standard require a downslope mancar to be a permanent fixture on the brakecar in 

order to have the brakes on the brakecar satisfy the regulatory requirement for the mancar. It is not disputed 

herein that the brakes on the brakecar would stop both 

cars loaded should there be a hoist rope break or 

other overspeed condition, as long as the two cars remained 

attached. In fact, the preferred method of abatement of 

this citation is to simply reverse the order of the cars, 

putting the brakecar on the down-slope end. In that configuration per MSHA, the mancar would not require an independent braking system, but rather the brakes on the 

brakecar would suffice to handle the braking for both cars. 

I conclude that the regulation does not require a 

permanent brakecar-mancar attachment. On the contrary, I 

conclude that if these two cars are Sufficiently tied 

together, they are in fact operating as a single device used 

to persons in a slope and that device (i.e., the 

mantrip) is equipped with an adequate automatic braking 

system of stopping both cars in an emergency (such 

as a hoist rope break) • 

the ultimate issue is the adequacy of the 

attachment between the mancar and the brakecar since everyone appears to agree that so long as the mancar remains 

coupled to the brakecar there is no hazard under any conce emergency situation. The ssibility of brakecaring is the hazard the Secretary is concerned 

cerning 

only empirical data or scientific evidence constrength of the coupling assembly between the 

two cars, luding the safety chains, came from the contestant and 

of that 

I find such evidence to credible. The gist 

was that the coup assembly can withstand the maximum ful weight of the 

, the safety in the event that 

coupling did break would be sufficient, by 

r of at least 8 (eight) , to keep the mancar 

to the brakecar. This evidence was unrebutted. 

Also unrebutted was the fact that Rushton has 13 years 

experience operating this mantrip in that configuration 

without iencing any separation of the cars or any other 

problem associated with the coupling or safety chains. 

In brief, the Secretary states that "[T]here is 

still a possibility that the connection between the [mancar] 

1158 
and brakecar could fail due to either excess wear or human 

error." That may be, but the Secretary has the burden of 

proving that allegation and he· introduced no evidence of 

either. 

The clear preponderance of the relevant evidence in 

this record does not support the alleged violation. Accordingly, I find that there has been no violation of the cited 

standard. 

ORDER 

Citation No. 2692281 is VACATED and the contest is 

GRANTED. 

a rer 

strative Law Judge 

Distribution: 

Timothy M. Biddle, Esq., and Susan E. Chetlin, Esq., Crowell 

& Moring, 1100 Connecticut Avenue, Washington, o.c. 20036 

(Certified Mail) 

Robert A. Cohen, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

yh 1159 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 AUG 5 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 85-36-M 

A.C. No. 39-00055-05539 

v. 

HOMESTAKE MINING COMPANY, 

Respondent 

Homestake Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached a settlement of the four violations 

involved in the total sum of $8,290.00. MSHA's initial assessment therefor totaled $11,040.00. 

The terms of the settlement are as follows: 

Citation Assessment Settlement 

2097234 $10,000.00 $8,000.00 (fatality) 

2097564 1,000.00 250.00 

2097965 20.00 20.00 

2097966 20.00 20.00 

This settlement is approved for the following reasons: 

With respect to Citation No. 2097234, it appears that the 

workman who had fallen to his death would have not have fallen 

had he used a safety belt. While his foreman was aware he was 

not utilizing the safety belt, nevertheless it appears he had 

been issued a s ety belt by Respondent, and instructed as to the 

need and use of such. In view thereof, the 20% reduction from 

the statutory maximum penalty ($10,000) appears justified and 

this compromise is approved. For the same reasons the reduced 

penalty for Citation No. 2097564 (failure to install a handrail) 

is also approved. 

I take notice from prior matters involving this Respondent 

that, in terms of size, Respondent is a large gold mine operator. 

It also appears from the settlement motion that Respondent abated 

the violative conditions and demonstrated 11 a good faith desire to 

comply with the health and safety standards in the future. 

Citation Nos. 2097965 and 2097966 were not the subject of 

reduced penalties. 

1160 
The settlement, viewed in its totality, involves a 

substantial penalty sum, and the reduction of the penalties for 

the major violations appear warranted in the circumstances. 

ORDER 

Respondent, if it has not previously done so, is ordered to 

pay $8,290.00 to the Secretary of Labor within 30 days from the 

date of this decision. 

Distribution: 

iffe;.~1-e tf· fiG~~A _ Michael A. Lasher, Jr. 

Administrative Law Judge 

Eliehue C. Brunson, Esq., Office of the Solicitor, U.S. Department of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 

64106 (Certified Mail) 

Robert A. Amundson, Esq., Amundson, Fuller & Delaney, 203 w. Main 

P.O. Box 898, Lead, SD 57754 (Certified Mail) 

Mr. Dallas Tinnell, United Steelworkers of America, 315 1/2 Main 

Street, Lead, SD 57754 (Certified Mail) 

/blc 

1161 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 5 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

D. P. FROST CONSTRUCTION CO.,: 

Respondent 

: 

. . 

. . 

. . 

: 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 86-64-M 

A.C. No. 41-03281-05503 

Carter Pit 

Docket No. CENT 86-65-M 

A.C. No. 41-02422-05519 

Docket No. CENT 86-66-M 

: A.C. No. 41-02422-05520 . . Yelverton Pit 

ORDER APPROVING IN PART AND DENYING IN PART 

THE PROPOSED SETTLEMENT AGREEMENT 

Before: Judge Broderick 

On July 22 and August 4, 1986, the Secretary filed motions 

to approve settlement agreements in the above cases presently 

scheduled for hearing {with Docket No. CENT 86-29-M) on 

September 16, 1986. 

Docket No. CENT 86-64-M contains three alleged violations 

originally assessed at $689. The parties propose to settle for 

$297. Citation 2661194 charged a violation of 30 C.F.R. § 

56.11027 because of a sagging work platform with two of eight 

welds separated. It was assessed at $168, and the parties 

propose to settle for $126 because the area in question is a 

metal walkway and if it sagged it would contact a flywheel 

located below it and the resulting sound would have warned of the 

deteriorated condition of the platform/walkway. In my judgment, 

the reduction in the penalty is not supported by the motion. 

Citation 2261195 charged a violation of 30 C.F.R. § 56.15005 

because an employee was standing on a conveyor belt shovelling 

material and was not wearing a safety belt. No handrails were on 

the belt. It was originally assessed at $227 and the parties 

proposed to settle for $151 because "Defendant states this was an 

isolated incident ••• there was little or no negligence 

involved since the violation could not have been reasonably 

predicted." I conclude again that the proposed reduction is not 

justified by the motion. Citation 2661196 charged a violation of 

1162 
30 c.F.R. § 56.14003 because the guard on the head pulley was not 

of sufficient length to protect against a pinch point. The 

violation was assessed at $294, and the parties propose to settle 

·for $20 because "Defendant states that this head pulley is 8' 

above the ground. 11 Does the government accept this statement? 

If it is impossible to reach the pinch point, why was the 

citation issued? The motion does not provide justification for 

the settlement. Therefore the motion is DENIED. 

Docket No. CENT 86-65-M contains 20 alleged violations 

originally assessed at $1141. The parties propose to settle for 

$804. Eleven of the violations were treated as 11 single penalty 

assessments" and assessed at $20 each. The motion states that 

the parties agree that the proposed penalties for these 

violations are appropriate. I concur. Citation 2662166 charged 

a violation of 30 C.F.R. § 56.14008B because of a bench grinder 

without a tool rest. It was assessed at $79 and the motion 

states that the parties agree that the violation occurred and the 

proposed penalty was appropriate. I concur. Citation 2662178 

charged a violation of 30 C.F.R. § 56.12025 because of a loose 

ground wire and improper fittings in the coarse conveyor box. It 

was assessed at $63, and the parties agree that the violation 

occurred and the proposed penalty was appropriate. I concur. 

Citation 2661182 charging a violation of 30 C.F.R. § 56.14001 

because .of an unguarded tail pulley was assessed at $147. The 

parties propose to settle for $110 because the violation "was 

over-evaluated by the inspector." This statement does not 

justify the proposed reduction. With respect to citations 

2661183 (the violation was originally assessed at $105, the 

proposed settlement is for $78), 2661187 {originally assessed at 

$112; proposed settlement $20), 2662171 (originally assessed at 

$79~ proposed settlement $60), 2662175 {originally assessed at 

$79; proposed settlement $20), the motion provides justification 

for the proposed settlement, and I will approve it. With respect 

to citations 2662169 (charging a violation of 30 C.F.R. § 

56.12030 because of exposed electrical conductors and a leaking 

fuel valve, originally assessed at $178; proposed settlement 

$134) and citation 2662176 (charging a violation of 30 C.F.R. §. 

56.11012 because of an open hole in the floor of the generator 

trailer, originally assessed at $79; proposed settlement $20), 

the motion does not justify the proposed settlement and I will 

DENY it. 

Docket No. CENT 86-66-M contains three citations, two of 

which charged violations assessed as "single penalty 

assessmentsn at $20 each. The parties propose to settle these 

violations for the assessed amounts, and I will approve the 

settlement. Citation 2661186 charges a violation of 30 C.F.R. § 

56.11001 because of an opening in a berm at the dump of the 

crusher feeder and hopper. It was originally assessed at $112 

1163 
and the parties propose to settle for $84. The motion states 

that the violation was the result of ordinary negligence and "was 

over-evaluated by the inspector." This statement does not 

justify the settlement proposal and I will deny it. 

The case will be called for hearing in Dallas, Texas 

commencing September 16, 1986 for all the alleged violations with 

respect to which I have indicated that I will not approve the 

proposed settlement agreement. 

Distribution: 

~~~ James A. Broderick 

Administrative Law Judge 

Jack Ostrander, Esq., U.S. Department of Labor, Office of the 

Solicitor, 525 s. Griffin Street, Suite.501, Dallas, TX 75202 

(Certified Mail) 

John Hawkins, Esq., Naman, Howell, Smith & Lee, Box 1470, Waco, 

TX 76703 (Certified Mail) 

slk 

1164 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 5 

CONSOLIDA~ION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

1986 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-311-R 

Order No. 2711294; 4/16/86 

Docket No. WEVA 86-312-R 

Order No. 2711295; 4/16/86 

Docket No. WEVA 86-313-R 

Order No. 2711298; 4/16/86 

Blacksville No. 1 Mine 

ORDER DISMISSING CONTESTS 

Before: Judge Koutras 

The captioned cases were scheduled for hearing with 

several other dockets heard in Morgantown, West Virginia, 

during the term July 29 - 31, 1986. When the cases were 

called, counsel for the parties advised me on the record that 

they have reached an agreement which will enable me to dispose 

of the cases without the necessity of hearings. 

With regard to Docket No. WEVA 86-311-R, counsel advised 

me that the contested section 104(d) (2) order should be 

affirmed as issued and that the contestant no longer desired 

to contest the order and would file a motion to withdraw its 

contest. 

With regard to Docket Nos. WEVA 86-312-R and WEVA 86-313-R, 

counsel advised me that MSHA has agreed to modify the contested 

section 104(d) (2) orders to section 104(a) citations, with 

"significant and substantial" (S&S) findings. Under the circumstances, contestant moved to withdraw the contests, and the 

request was granted. 

1165 
In view of the foregoing agreements by the parties, I 

see no reason why these contests should not be dismissed. 

·Accordingly, they are dismissed . 

stribufion: 

. / & / L1f)1,~~ ~ ({:~:;7 v· ~orger,. :k£u ras 

.Administrative Law Judge 

w. Henry Lawrence, Esq., Steptoe and Johnson, P.O. Box 2190, 

Clarksburg, WV 26301 (Certified Mail} 

Mark Swirsky, and William T. Salzer, E s., Office of the 

Solicitor, U.S. Department of Labor, Room 14480 Gateway 

Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

/fb 

1166 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 6 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

CHARLES BALL, 

Complainant 

v. 

ARCH OF KENTUCKY, INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-93-D 

MSHA Case No. BARB CD 85-52 

No. 37 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

statement of the Case 

This proceeding concerns a complaint of alleged discrimination filed by the Secretary of Labor on behalf of Charles 

Ball against the respondent pursuant to section 105(c) (2) of 

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

§ 801 et The complaint alleges that on or about June 6, 

1985, the complainant was discriminated against and suspended 

by the respondent because he had complained to the respondent 

about ety violations and ref used to continue to work under 

certain alleged existing hazardous conditions. The matter was 

scheduled for hearing in Duffield, Virginia, on August 26, 

1986. 

On August 4, 1986, the parties filed a motion for my 

approval of a proposed settlement of the case. Counsel for 

both part s, including the complainant Charles Ball, have 

executed the proposed settlement, the terms of which are in 

pertinent part as follows: 

1. Respondent agrees to pay to Mr. Charles 

Ball wages in the amount of $534.20 representing 

wages he would have earned had he not been placed 

on suspension for 3 days without pay. In addition 

to this, respondent agrees to make appropriate 

1167 
adjustment in payment of any benefits which may 

have accrued to Mr. Ba during the period of 

3 days during which he was subject to suspension 

without pay on or about June 6, 1985, including 

but not exclusively pension and welfare benefits. 

2. Respondent agrees to remove any references to any derogatory comments about the suspension of Mr. Ball on or about June 6, 1985, 

from Mr. Ball's personnel and company records. 

3. In light of the difficulties and contingencies necessarily attendant to litigation 

of the subject case together with the complex 

factual disputes requiring many witnesses and the 

minimal nature of the economic loss to the complainant which will be entirely recompensed as a 

result of this settlement, the parties agree that 

the proposed settlement in this case is appropriate in consideration of all the circumstances. 

4. The Secretary recognizes that satisfaction of the miner's interests is paramount to the 

imposition a discrimination civil money penalty. The miner's interests in this case are 

well served by the settlement in which he 

recovers lost wages and has all adverse references to the circumstances involved in his suspension removed from his employment record. The 

Secretary agrees to waive the proposed discrimination c 1 penalty because such a waiver is 

necessary to achieve a prompt and favorable 

disposition of the miner's claim. The Secretary 

asserts that the respondent has no known history 

of previous violations of section 105(c) of the 

Act. 

5. In consideration of the willingness of 

the respondent to resolve the claim quickly by 

payment of restitution to the complainant and 

the willingness of the respondent to take what 

other action is necessary to make the complainant 

whole, the Secretary agrees to waive imposition 

of any civil penalty. The sum being advanced by 

the respondent to the benefit of the miner is 

such that all purposes which would be served by 

a civil penalty assessment in this case are 

sati ied. Since section 105(c) of the Act is 

uniquely designed to benefit individual miners 

1168 
as well as the public interests by restitution to 

those affected by violations of section 105(c) of 

the Act, the Secretary believes that such purposes 

are fulfilled in this case by the settlement terms. 

6. It is the parties' bel that approval of 

this settlement is in the public interest and will 

further the intent and purpose of the Federal Mine 

Safety and Health Act 1977. 

7. Each party agrees to bear its own fees and 

other expenses incurred by such party in connection 

with any stage of this proceeding. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions executed by the parties in this proceeding, including Mr. Ball, I conclude and find that it reflects 

a reasonable resolution of the complaint :filed by MSHA on 

Mr. Ball's behalf. Since it seems clear to me that all parties 

are in accord with the agreed upon disposition of the complaint, 

I see no reason why it should not be approved. 

ORDER 

The proposed settlement IS APPROVED. Respondent IS 

ORDERED AND DIRECTED to fully comply forthwith with the terms 

of the agreement. Upon full and complete compliance with the 

terms of agreement, this matter is dismissed. The 

scheduled hearing is cancelled. 

~-i~d[~ Administrative Law Judge 

Distribution: 

Theresa Ball, Esq., Off of the Solicitor, U.S. Department of 

Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certif Mail) 

H. Juanita M. Littl ohn, Esq., Arch of Kentucky, Inc., 

200 North Broadway, St. Louis, MO 63102 (Certified Mail) 

/fb 

1169 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 6 

TUNNELTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

1986 

CONTEST PROCEEDINGS 

Docket No. PENN 86-65-R 

Citation No. 2696550; 12/11/85 

Docket No. PENN 86-66-R 

Citation No. 2696551; 12/11/85 

Docket No. PENN 86-67-R 

Citation No. 2696552; 12/11/85 

Docket No. PENN 86-68-R 

Citation No. 2696554; 12/12/85 

Docket No. PENN 86-69-R 

Citation No. 2696555t 12/13/85 

Docket No. PENN 86-70-R 

Citation No. 2696556; 12/13/85 

Docket No. PENN 86-71-R 

Citation No. 2696557; 12/13/85 

Docket No. PENN 86-108-R 

Citation No. 2696464; 2/10/86 

Docket No. PENN 86-111-R 

Citation No. 2696473; 2/27/86 

Marion Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

These proceedings concern notices of contests filed by 

the Contestant Tunnelton Mining Company pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

challenging the validity of nine section 104(a) non-uS&S" 

1170 
citations issued by an MSHA inspector at its Marion Mine on 

December 11, 12, and 13, 1985. The citations charge Tunnelton 

with nine alleged violations of mandatory safety standard 

30 C.F.R. § 75.1101-5(a), because of its purported failure to 

provide foam generator fire supression devices capable of 

discharging foam to certain electrical components used in conjunction with certain belt conveyor drives at different locations in the mine. 

Tunnelton filed a motion for summary decision and requested 

expedited consideration in light of the abatement deadlines 

imposed by MSHA. The abatement times were extended by MSHA, and 

extensions were also granted for the purpose of permitting MSHA 

to file its responses to the request for summary decision. 

Subsequently, the parties resolved the dispute and MSHA agreed 

to accept Tunnelton's alternative means of compliance with the 

mandatory safety standard in issue. At the same time, MSHA 

vacated the contested citations, and the parties are now in 

agreement that these contests may be dismissed. 

ORDER 

In view of th~ fact that the disputed citations have now 

been vacated, and with the agreement of the parties, these 

contests ARE DISMISSED. 

~,~/Ltl(~~ .~fgeft. t~utras Administrative Law Judge 

Distribution: 

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

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

Joseph T. Kosek, Esq., Pennsylvania Mines Corporation, P.O. 

Box 367, Ebensburg, PA 15931 (Certified Mail) 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

/fb 

1171 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 6 

GREENWICH COLLIERIES, 

DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

1172 

1986 

CONTEST PROCEEDINGS 

Docket No. PENN 86-135-R 

Order No. 2689830-02; 3/31/86 

Docket No. PENN 86-136-R 

Order No. 2689831-02; 3/31/86 

Docket No. PENN 86-137-R 

Order No. 2689832-02; 3/31/86 

Docket No. PENN 86-138-R 

Order No. 2689833-02; 3/31/86 

Docket No. PENN 86-139-R 

Order No. 2689834-02; 3/31/86 

Docket No. PENN 86-140-R 

Order No. 2689835-02; 3/31/86 

Docket No. PENN 86-141-R 

Order No. 2689837-01; 3/31/86 

Docket No. PENN 86-142-R 

Order No. 2689838-01; 3/31/86 

Docket No. PENN 86-143-R 

Order No. 2689839-01; 3/31/86 

Docket No. PENN 86-144-R 

Order No. 2689840-02; 3/31/86 

Docket No. PENN 86-145-R 

Order No. 2689884-01; 3/31/86 

Docket No. PENN 86-146-R 

Order No. 2689885-02; 3/31/86 

Docket No. PENN 86-147-R 

Order No. 2689886-02; 3/31/86 
Before: 

Docket No. PENN 86-148-R 

Order No. 2689887-02; 3/31/86 

Docket No. PENN 86-149-R 

Order No. 2689888-02; 3/31/86 

Docket No. PENN 86-150-R 

Order No. 2689891-01; 3/31/86 

Docket No. PENN 86-151-R 

Order No. 2689892-01; 3/31/86 

Docket No. PENN 86- 2-R 

Order No. 2689893-01; 3/31/86 

Docket No. PENN 86-153-R 

Order No. 2689894-01; 3/31/86 

Docket No. PENN 86-154-R 

Order No. 2689895-02; 3/31/86 

Docket No. PENN 86-155-R 

Order No. 2690021-02; 3/31/86 

Greenwich No. 2 Mine 

ORDER OF DISMISSAL 

Judge Koutras 

These proceedings concern Notices of Contests filed by the 

contestant pursuant to section lOS(d) of the Federal Mine Safety 

and Health Act of 1977, challenging the legality of 21 section 

104(d) (2) orders issued by MSHA inspectors for alleged violations 

of the training requirements found in 30 C.F.R. § 48.6. The 

orders were issued because of the alleged failure by the contestant to train newly employed experienced miners. The alleged 

violations were originally issued as section 104(a) tations, 

but were subsequently modified by MSHA to section 104(d) (2) 

orders after an MSHA "manager's conference." 

The contestant raised several defenses to the issuance of 

the orders, including claims that they were not issued promptly 

as required by section 104(d) (2), and that they were not issued 

as a result of any inspection as required by that section. The 

cases were scheduled for hearing in Indiana, Pennsylvania, during the term August 5-7, 1986, but the hearings were continued 

after the parties informed me of a possible settlement of the 

dispute. As a result of further conferences by the parties, 

1173 
they informed me that MSHA has agreed to modify each of the 

orders to a non-S&S section 104(a) citation, with a reduction 

of the gravity findings to "No Lost Workdays." This agreement 

was confirmed by letter dated August 1, 1986. In view of the 

modification of the contested orders, the parties agree that 

these contests may now be dismissed. 

ORDER 

In view of the foregoing, the Notices of Contest filed by 

the contestant in these dockets ARE DISMISSED. 

,~*'-tL~-r Administrative Law Judge 

Distribution: 

Joseph T. Kosek, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 (Certif Mail) 

Deborah A. Persico, Esq., ice of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

/fb 

1174 
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. 

QUINLAND COALS, INC., 

Respondent 

AUG 6 

DECISION 

\986 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 85-169 

A.C. No. 46-02493-03536 

Quinland No. 1 Mine 

Appearances: Sheila K. Cronan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, VA, for 

Petitioner; 

William D. Stover, Esq., Quinland Coals, Inc., 

Beckley, WV, for Respondent 

Before: Judge Fauver 

The Secretary of Labor brought thi~ action for civil 

penalties under section lOS(d) of the Federal Mine Safety 

and Health Act 1977, 30 u.s.c. § 801, et seq. Having 

considered the hearing evidence and the record as a whole, };) 

I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

FINDINGS OF FACTS 

1. Respondent's Quinland No. 1 Mine was formerly owned and 

operated by Westmoreland Coal Company under the name of 

Ferrell Mine. 

1/ Respondent's Objection to Acceptance of Posthearing Evidence 

Is rejected. The preshift reports of Dayton Lane are the best 

evidence of reports filed by Lane. They are received as 

evidence in this proceeding. Respondent's Motion for a 

Protective Order is moot, because no other preshif t reports 

Lane were submitted by the Secretary after such motion 

and before entry of this Decision. 

1175 
2. In November, 1980, at Westmoreland's mine there was 

a methane explosion that killed five people. After the 

explosion and recovery the bodies, seven seals were 

installed in the Main East area of the mine to seal off the 

explosion area from the active workings. The atmosphere in 

the area behind the seals consists of a high level of methane 

and a low level of oxygen. This is desirable because an 

explosive concentration of methane is between five and 

fifteen percent. That is, if methane is above 15 percent, 

or below five percent, it is scientifically considered to be 

nonexplosive. If the oxygen level is kept below sixteen 

percent, it is also scientifically considered that there 

. will not be enough oxygen for combustion. It is important 

for the seals to operate effectively to prevent the atmosphere 

behind them from leaking out into the active workings, since 

th.e high methane and low oxygen content would present a 

serious hazard to persons in the active workings. 

3. As a result of the 1980 accident, the mine was 

designated by MSHA to receive a spot inspection every five 

days pursuant to§ 103(i) of the Act. In a spot inspection, 

an inspector takes samples of the atmosphere behind the 

seals, checks the seals to make sure that they are not 

leaking or being crushed and that the roof conditions are 

adequate, and tests to be sure the methane is staying behind 

the seals. 

4. On October 11, 1984, Inspector Ernest Thompson made 

a spot inspection of Respondent's mine under§ 103(i). In 

the Main East area he took samples of the atmosphere from 

behind the seals. At the No. 7 seal he observed a large 

roof fall in the entry, which he described as follows in 

his testimony at the hearing: 

There was cribs at the end of the falls. They had 

all the weight they could stand. They were crushing. 

There was eight or ten posts broke in the center of 

the entry. The top was broke all to pieces, and I 

could hear the gas hissing out of the top coming 

through the cracks the top (Tr. 24). 

1176 
* * * * 

Their top had dropped down. Part of the top dropped 

down approximately an inch from the remainder. The 

roof, in my opinion, had already fallen. It wasn't 

on the mine floor. It was leaning on what supports 

they had in there and the seal. It was crushing out 

the seal (Tr. 26). 

Inspector Thompson also observed that the broken posts had 

not been replaced. In his opinion, the condition had been 

in existence some time because the broken posts had 

a lot of dust on them, leading him to believe that they had 

been broken for at least a month to two months. The roof 

site was an active working place where preshift examiners. 

and other workers were required to go on a regular basis. 

Inspector Thompson found an inadequate roof condition, 

and issued § 104 (d) (1) order (No. 2144040) charging a 

violation of 30 C.F.R. § 75.200, alleging that this was a 

significant and substanti violation, that negligence was 

high, and that the violation was reasonably likely to result 

in a fatal injury. 

5. On the same day Inspector Thompson issued§ 104(d) (1) 

Order No. 2144047, leging a violation of 30 C.F.R. § 

75.303, as follows: 

The preshift examination made by Dayton Lane on 

10/10 and 10/11/84 for No. 7 in Main East 

area was inadequate in that No. 7 seal was leaking 

excessively (more than 5% methane was detected) and 

the mine roof was inadequately supported and Mr. 

Lane certifi this area to be clear. 

Inspector Thompson testified that tes the air for methane 

about s feet from No. 7 seal and detected methane in the 

area. He took a bottle sample which, when analyzed, showed a 

methane level of 5.64 and oxygen level of 19.21 (Ex. G-9). 

This was an explosive level of methane and a low level of 

oxygen. 

6. The preshift examiner, Dayton Lane, had certified 

the area to be clear during the examination he conducted 

between 5:00 and 7:50 a.m. on October 11, 1984 (Ex. G-15). 

1177 
DISCUSSION WITH FURTHER FINDINGS 

in Order No. 

The cited standard, 30 CFR § 75.200, requires, in part, 

that "the roof and ribs of all active underground roadways, 

travelways, and working places be supported or otherwise 

controlled adequately to protect persons from falls of the 

roof or ." I credit Inspector Thompson's testimony as 

to the conditions and find that the roof support in the 

No. 7 s entry was inadequate to protect persons from roof 

falls. There were broken timbers that had not been replaced, 

contrary to Respondent's roof control plan. The roof was 

breaking or damaging the , and methane was leaking into 

the active working area. This was a dangerous condition. 

Respondent was negligent in allowing this violation to 

exist. Dust on the broken posts indicated that the condition 

had been in existence for a long time. In addition, Respondent's 

witness McClure tes fied that the condition of broken 

timbers was longstanding, having been in existence when he 

started work there in August of 1984. Although McClure was 

of the opinion that the unbroken timbers and cribs provided 

adequate roof support, he was aware that the roof control 

plan required that broken timbers be replaced and that there 

were some broken timbers that had not been replaced as of 

October 11, 1984. 

The Preshift Examination Cited 

in Order No. 2144047 

The standard, 30 CFR § 75.303, requires that 

within three hours immediately preceding the beginning 

any shift a certified person examine all active workings of 

the mine, examine seals to determine whether they are functioning 

proper , and examine active roadways, travelways and approaches 

to abandoned areas. Dayton Lane tes fied that he was the 

cer fied person responsible for conducting the preshift 

examination of the Main East seals on October 11, 1984. He 

conducted a pre ft examination between 5:00 and 5:45 a.m. 

Although he was aware of the broken timbers, roof fall, and 

cracks in the roof in the area of the No. 7 seal, he did not 

report these conditions in his preshift report. Instead, he 

noted "clear 11 in the preshift mine examiner's book for that 

day (Ex. G-15, p. 4). It was his opinion that the roof was 

adequate supported. 

1178 
I credit the inspector's testimony on this point~ and I 

find that the roof was inadequately supported and that this 

condition should have been reported in Lane's preshift 

report. It was a violation of § 75.303 to fail to report 

this condition. 

However, the methane hazard found by Inspector Thompson 

does not establish a violation the preshift examination 

requirements cited in Order No. 2144047. As noted above, 

the preshif t examiner is required to examine seals to 

determine whether they are functioning properly. This would 

include examining them to make sure they are not leaking 

methane. Inspector Thompson heard a hissing sound from the 

cracks in the roof above the seal. This fact, when combined 

with the high methane reading obtained from the methane 

detector and bottle sample, establishes that methane was 

leaking at the time Inspector Thompson was there. However, 

methane leakage was not a constant condition, and there is 

no proof that there was methane leakage at time of Lane's 

preshift examination. 

Lane testified that he tested for methane at the No. 7 

seal and found none, and he did not hear hissing in that 

area. There is no evidence that conditions were otherwise 

when he made his inspection. 

The Test of a Significant 

and Substantial Violation 

In Secretary of Labor v. Consolidation Coal Company, 6 

FMSHRC 189 (1984), the Commission held that the Secretary 

must prove the following elements to establish that a violation 

of a safety standard is significant and substantial: (1) 

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

hazard, that is, a measure of danger contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in injury; and (4) a reasonable 

likelihood that the injury will be of a reasonably serious 

nature. 

1179 
The roof conditions cited in Order No. 2144040 created 

the danger of a roof fall. Since a number of people (about 

seven) regularly went into this area, there was a reasonable 

likelihood that one of them would be injured if a roof fall 

occurred. The type of injury which could result, of course, 

could be a fatality. Also, the roof conditions were allowing 

methane to escape. This could result in an explosion or, if 

a person were present when a large quantity of gas was 

escaping, he or she could be kil as a result of low 

oxygen. 

The practice cited in one part of Order No. 2144047, 

i.e., failing to conduct an adequate preshift inspection of 

roof, created a serious hazard.· The purpose of the 

shift examination is to detect and report hazardous 

conditions, so that corrective measures can be taken. The 

failure to report the dangerous roof condition could have 

signi cantly and substantially contributed to a serious 

mine accident. 

However, the second part of Order No. 2144047, the 

failure to report leaking methane, was not proved by a 

preponderance the evidence. 

Respondent is a large operator. At the time of the 

inspection, Quinland Mine No. 1 was produing about 800,000 

tons of coal a year and employed about 150 employees. 

Considering all of the criteria of section llO(i) 

the Act a c 1 penalty of $850 is ASSESSED the roof 

violation (30 C.F.R. § 75.200). 

Considering all of the criteria of section llO(i) of 

the Act, a civil penalty of $450 is ASSESSED for the preshift 

examination violation (30 C.F.R. § 75.303). This penalty is 

reduced from the Secretary's proposal of $900 because of the 

failure to prove the part of the charge concerning failure 

to report a methane hazard in the preshift t. 

CONCLUSIONS OF LAW 

1. The Commission's administrat 

jurisdiction in this proceeding. 

1180 

law judge has 
2. Respondent violated 30 C.F.R. § 75.200 on October 

11, 1984, as charged in Order No. 2144040. 

3. Respondent violated 30 C.F.R. § 75.303 on October 

11, 1984, as charged in that part of Order No. 2144047 pertaining 

to a roof hazard, but the Secretary did not meet his burden 

of proving a violation as to the part alleging a failure to 

report a methane hazard. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

above-assessed civil penalties in the total amount of $1,300 

within 30 days of this Decision. 

Distribution: 

~~­

. '1 

liam Fduver 

Administrative Law Judge 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wison Boulevard, Arlington, VA 22203 (Certified 

Mail) 

William D. Stover, Esq., Quinland Coals, Inc., 41 Eagles 

Road, Beckley, WV 25801 (Cert1fied Mail) 

kg 

1181 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 AUG 7 1986 

EMERY MINING CORPORATION, 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF AMERICA,: 

(UMWA), 

Intervenor 

DECISION 

Docket No. WEST 86-126-R 

Citation No. 2834575; 4/15/86 

Deer Creek Mine 

Appearances: John A. Macleod, Esq., and Ellen Moran, Esq., 

Crowell & Moring, Washington, D.C., 

Before: 

for Contestant; 

Edward Fitch, Esq., Office the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, 

for Respondent; 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C., 

for Intervenor. 

Judge Morris 

This is a contest proceedings initiated by contestant Emery 

ning Corporation pursuant to § 105(d) of t Federal Mine 

ety and Health Act of 1977v 30 U.S.C. § 801 et~., (the Act). 

Emery has contested a citation issued under § 104(a) of the Act 

by the Mine Safety and Health Administration, (MSHA), on April 

15, 1986. 

The citation alleged Emery violated § 103(f) of the Act in 

refusing to permit an international representative of the United 

Mine Workers of America (Intervenor UMWA) to accompany an MSHA 

inspector on a regular inspection of Emery's Deer Creek mine. 

Emery, in its notice of contest, asserts that it did not 

violate § 103(f) of the Act because it permitted a representative 

authorized by his miners to accompany the inspector. Further, 

Emery permitted the UMWA representative (Mr. Rabbitt) to 

accompany the inspector subject to his compliance with Emery's 

policy at the mine. Emery's policy requires that a written 

notice be given at least 24 hours before the UMWA representative 

visits the mine. Further, the policy requires that the UMWA representative sign a release and waiver form before entering the 

mine. 

1182 
(The form itself is entitled "release and waiver." A hazard 

training check list also appears on the form. The witnesses in 

this case at various times referred to the form as a "waiver," a 

"release" and as a "hazard checklist." For the convenience of 

the reader all such references are to the document received in 

evidence as Contestant Exhibits 3 and 6). The portion of the instrument particularly relied on by Emery provides as follows: 

Waiver of Liability 

The undersigned, in consideration of being allowed to come 

upon the Deer Creek mine property (insert name of mine), 

hereby forever releases, discharges and waives as to Emery 

Mining Corporation ("Emery"), any and all claims rights of 

causes of action that the undersigned now has or may hereafter acquire against Emery on account of any damages sustained or injuries suffered, presently or hereafter, while 

present upon or within the mine property. The undersigned 

further agrees to hold Emery harmless on account of any and 

all liability which may attach to Emery on account of 

damages sustained or injuries suffered by the undersigned 

while upon or within the mine property. All references to 

Emery shall include its officers, directors, shareholders, 

employees and agents. 

Emery, in its notice of contest, asserts that Mr. Rabbitt 

failed to comply with Emery's notice and waiver requirements. 

When MSHA supported Mr. Rabbitt and issued a citation Emery 

permitted Mr. Rabbitt to enter the mine without signing the required release form. 

In its contest seeking to vacate this citation Emery insists 

that its requirements are reasonable and prudent; further, Emery 

asserts it did not violate§ 103(f), the statutory grant of walkaround rights. 

Section 103(f) of the Act, 30 U.S.C. § 813(£), the statutory 

provision in issue here, provides as follows: 

Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative 

during the physical inspection of any coal or other mine 

made pursuant to the provisions of subsection (a), for 

the purpose of aiding such inspection and to participate 

in pre- or post-inspection conferences held at the mine. 

Where there is no authorized miner representative, the 

Secretary or his authorized representative shall consult 

with a reasonable number of miners concerning matters of 

health and safety in such mine. Such representative of 

1183 
miners who is also an employee of the operator shall 

suffer no loss of pay during the period of his participation in the inspection made under this subsection. To 

the extent that the Secretary or authorized representative of the Secretary determines that more than one representative from each party would further aid the inspection, he can permit each party to have an equal 

number of such additional representatives. However, only 

one such representative of miners who is an employee of 

the operator shall be entitled to suffer no loss of pay 

during the period of such participation under the provisions of this subsection. Compliance with this subsection shall not be a jurisdictional prerequisite to 

the enforcement of any provision of this Act. 

The Hearing 

A hearing on the merits commenced in Denver, Colorado on May 

14, 1986. The evidence was essentially credible and uncontroverted. 

The Secretary's Evidence 

Vern Boston, an MSHA inspector for eight years, was the sole 

witness called by the Secretary. 

Inspector Boston, a person experienced in mining, has been 

stationed in the Orangeville, Utah MSHA off ice for the last two 

years (Tr. 30, 31). 

On April 15, 1986 the inspector met Mr. Rabbitt at the mine 

gate. Boston knew Rabbitt by reputation, but he didn't know if 

Rabbitt had ever previously been in the Deer Creek mine. Rabbitt 

introduced himself as the International Representative of the 

UMWA. The inspector knew Rabbitt had been in Utah for sometime. 

The two men agreed that Rabbitt would travel with the inspector 

during the inspection (Tr. 32-35, 52). Dixon Peacock, a representative of Emery's safety department who frequently accompanied the inspector, concurred. 

After changing clothes the inspector entered the company 

safety department. Mr. White, the Deer Creek mine manager~/, 

stated he had a problem with Rabbitt accompanying the inspector. 

Mr. White recognized Rabbitt as a member of the International 

Health and Safety Department of the UMWA but he did not believe 

Rabbitt was a representative of the miners because he was not an 

employee of the mine. Also the company had its own miner representative on the property. In addition, he had come on the 

property without giving any advance notice (Tr. 32-38). 

1/ As mine manager he is in charge of all phases of the mining 

operation (Tr. 37}. 

1184 
At this point the inspector issued a § 104(a) citation 

alleging a violation of § 103(f) of the Act. White was given ten 

minutes to abate the citation. White agreed Rabbitt could accompany the inspector. The citation was then terminated (Tr. 33). 

White then indicated Rabbitt should sign a waiver form. Inspector Boston checked with his supervisor. He was directed to 

proceed. White asked for an additional citation but the inspector added the waiver allegation to the prior citation. 2; 

Rabbitt did not sign the waiver and Emery abated the citation by 

permitting Rabbitt to accompany the inspector (Tr. 33-42, 61). 

Boston believed it was clear to White that if he did not permit 

Rabbitt to enter the mine without signing the waiver the inspector would issue a closure order. But it was not clear to the 

inspector at the time whether White knew that the closure order 

would be a "no-area affected order"~/ (Tr. 63). 

This was a AAA inspection. It was not an inspection under 

section 103(g) of the Act. Rabbitt was not abrasive and acted in 

an orderly manner (Tr. 45, 51). Boston had been instructed that 

international representatives are miners' representatives (Tr. 

55) • 

2/ After the inspection the inspector decided he was not 

satisfied with the wording of the original citation, so he voided 

the original and issued a new citation No. 2834575 (Tr. 34-44, 

49, 64-67; Gov't. Ex. 5). 

3/ A "no area affected order" arises from the Secretary's 

interpretative bulletin published in F.R. Vol. 43, No. 80 April 

25, 1978 and contained in Government Exhibit 4. It provides in 

part as follows: 

It should be noted that section 104(b) of the Act provides 

for issuance of withdrawal orders if an inspector finds that 

a violation described in a citation has not been abated. 

Pursuant to the requirements of section 104(b), orders under 

that provision will be issued in cases where there has been 

a failure to abate violations of section 103(f). However, 

actual withdrawal of miners will not ordinarily occur in 

cases arising under section 103(f), because section 104(b) 

also requires the inspector to determine the extent of the 

area of the mine affected by the violation. In most cases, 

the area(s) of the mine affected by an operator's refusal to 

permit participation or to compensate the representative(s) 

under section 103(£) would be a matter of conjecture and 

could not be determined sufficient specificity. However, 

cases may arise where a particular condition or situation, 

in the opinion of the inspector, cannot be adequately evaluated in the absence of a representative of miners. In such 

cases, the area affected by a refusal to permit participation could be determined, and physical withdrawal of 

miners in the affected area would be directed in the order. 

1185 
In previous numerous inspections of the Deer Creek mine 

inspector Boston had frequently been accompanied by representatives of the miners at that mine. This function is usually 

performed by the same individuals who are employees of Emery (Tr. 

53, 54). On this inspection he was accompanied by Mr. Larsen, an 

employee of Emery (Tr. 67). The inspector had not previously 

been accompanied by a non-employee asserting that right as a 

representative of the miners. 

In the inspector's opinion Rabbitt did not have any special 

skills, talent or knowledge of the mine that would cause the 

inspection to be any different from what it would have been 

without him (Tr. 55). Further, management representatives did 

not aid the inspector. But generally speaking, miners representatives and company representatives assist the inspector in 

performing broader, more comprehensive and more complete inspections (Tr. 68). 

Boston agrees that when § 103(f) refers to "his miners" the 

reference is to miners employed at Deer Creek (Tr. 57). · But in 

Boston's view the context of that section of the Act refers to 

representatives of miners on the international level. Boston had 

no knowledge whether Rabb t's presence had been requested by the 

Deer Creek miners. Further, he did not take steps to ascertain 

if Rabbitt had been designated in any Part 40 filing by the Deer 

C miners (Tr. 57, 58). 

UMWA's Evidence 

Thomas J. Rabbitt and Joseph Main testified for the UMWA. 

Thomas J. Rabbitt has been employed by the UMWA for seven 

and one half years as an International Health and ety Representative (Tr. 71). 

He.reports to Joseph Main, administrator of the UMWA Health 

and Safety department (Tr. 117). Rabbitt has held various 

positions involving matters of safety. He also investigates 

accidents, disasters, fires and explosions (Tr. 72). Investigations have included the Homer City mine disaster, Grenwich 

Colleries as well as numerous accidents and fatalities. He has 

held virtually every job in a coal mine. In addition, he served 

as a safety committeeman for three years (Tr. 72, 73). His 

training includes seminars sponsored by MSHA. These are the same 

courses given the MSHA inspectors (Tr. 74). 

On June 12, 1985 his supervisor assigned him to assist in 

the recovery of bodies and to monitor the investigation of the 

Wilberg mine disaster of December 19, 1984 (Tr. 74, 87, 118, 

119). 

1186 
Rabbitt now resides in the vicinity of the Wilberg mine. 

Usually on a daily basis he goes underground and consults with 

the safety committees. He has accom~anied federal inspectors on 

103{i), 103(g), 103(a) inspections. I Rabbitt was not restricted at the Emery mine until three or four months ago (Tr. 

75, 118). He normally would enter the mine at 8 o'clock, contact 

the safety director and then go underground (Tr. 75). His underground work included investigations and search for the Wilberg 

victims (Tr. 75). Three or four months after he arrived in Utah 

the Cottonwood mine was opened. (~he Cottonwood is a part of the 

now sealed Wilberg mine). In the Cottonwood he has gone on inspections in coal producing sections that were unrelated to the 

recovery operations~/ (Tr. 76). 

In January 1986 Rabbitt had written Emery's mining management concerning conditions within the sealed area of the Wilberg 

mine (Tr. 79). A copy of the letter went to various federal and 

state officials as well as the UMWA office (Tr. 80; UMWA Ex. 2). 

The letter, directed to Emery mine manager John Boylen, was sent 

after a meeting with Emery's mine superintendent. The letter 

complained about the seals at #37 crosscut. Approximately three 

weeks later the seals were isolated and regulated (Tr. 81). 

After the January 20th letter Emery began to restrict 

Rabbitt's access to the mine. He was stopped at the gate and 

manager Boylen had to be notified before he could enter. He 

would then have to go to Boylen or Neldon Sitterud's office (Tr. 

79, 107, 108). In the sample room a sign stating "Authorized Persons Only" appeared. Rabbitt accepted Boylen's explanation of the situation and he had no problem with it (Tr .• 

107, 108). 

On March 3, 1986 Rabbitt again wrote to Emery's mine manager 

at the Wilberg and Cottonwood mines. This letter probably caused 

the most concern to management. It addressed certain technical 

matters and its purpose was to verify a conversation so there 

would be no later misunderstanding <Tr. 85, 109; UMWA Ex. 3). 

The process and procedure of entering the mine had worked 

smoothly for a period of time but it became less smooth after 

March 3. 

The totality of the letters in early March dealt with full 

notice and compliance with MSHA's regulations which had not been 

fully complied with in the past (Tr. 109). 

ii These inspections are described in the transcript at page 

146: a 103(i) is a special five day spot inspection required at 

the Wilberg mine; a 103(g) is a special request inspection by the 

representatives of the miners or a miner; a 103{a) is a regular 

quarterly MSHA inspection of the entire mine. 

5/ Related cases filed simultaneously with this decision involve 

Emery's Wilberg mine. 

1187 
On March 4 Rabb t learned of a request by Emery to maintain 

less than a specific width, length and height in an escapeway 6; 

(Tr. 110, 111). No one initially objected to Rabbitt ac- -

companying the team to the area involving the request. A discussion occurred whether this was a right under the UMWA contract 

or§ 103(f). This was the first time§ 103(f) was expressly 

discussed (Tr. 112, 121, 148). 

About 45 minutes later manager Boylen refused to let Rabbitt 

go with the group (Tr. 112, 148). At that point he renewed his 

24-hour prior notice requirement. Before March 5 Rabbitt had 

total access to the mine and no 24-hour prior notice had been 

required (Tr. 113, 130, 149). Rabbitt was concerned that Emery's 

policies might adversely affect his ability to represent the UMWA 

in investigating this disaster in Utah as well as any other 

disasters in the future (Tr. 114). But he didn't know if the 

policy was directed at his activities (Tr. 122, 123). 

Rabbitt also wrote to manager John Boylen on April 12, 1986 

concerning sealed areas of the Wilberg mine (Tr. 105: UMWA Ex. 

6). The letter followed a conversation with Emery officials CTr. 

106). About a week before April 15, 1986 Rabbitt learned from 

Frank Fitzek (chairman of the Deer Creek local union safety committee) that MSHA inspectors were writin~ numerous citations and 

orders alleging unwarrantable failures. I The local union 

wanted Rabbitt's assistance in looking iiito these matters. The 

local union felt the matters were serious. It was not a pointblank request. But Rabbitt indicated he'd be there in the next 

week or two {Tr. 88, 125, 126). 

The day before the MSHA inspection of April 15 Rabbitt 

called Fitzek and advised him he would respond to the request the 

next day. Prior to the MSHA inspector's arrival at the gate 

Fitzek appeared and told Rabbitt that he had notified various 

management personnel including White and Peacock. White was 

reported to have been disturbed at the arrangement (Tr. 89). 

~/ 30 C.F.R. § 75.1704-1 authorizes the MSHA district manager to 

approve an escapeway not in compliance with the specified 

criteria (Tr. 110). · 

7/ The Federal Mine Safety and Health Review Commission has 

~efined the term "unwarrantable failure", as contained in 

§ 104(d)(l) of the Act, to mean that the operator failed to 

abate the condition or practices constituting a violation and 

knew or should have known the condition existed or that it failed 

to abate because of a lack of due diligence or indifference or 

lack of reasonable care, United States Steel Corporation, 6 

FMSHRC 1423, 1436 (1984); Westermoreland Coal Company, 7 FMSHRC 

1338, 1342 (1985) citing Zeigler Coal Co., 7 IBMA 280 (1977). 

1188 
At that point Fitzek joined the day shift and inspector 

Boston arrived. Rabbitt introduced himself and he proceeded onto 

the property to obtain clearance. About five minutes later 

Boston returned with Mark Larsen, a safety committeeman at the 

mine (Tr. 90). In discussing the matter White, the Deer Creek 

mine manager, questioned Rabbitt's authority to enter under the 

contract. B; Rabbitt indicated his authority was under § 103(£) 

of the Act-(Tr. 90). After the men discussed the matter Boston 

issued a citation and he gave White 10 minutes to abate (Tr. 91). 

White then relented but told Rabbitt he would have to sign a 

waiver of liability form. Discussion continued. Boston then 

called his supervisor. White requested another citation. Boston 

complied and issued a citation (Tr. 91, 92). 

Mark Larsen (representative of the miners from the safety 

committee), Terry Jordan and Dixon Peacock (for Emery) and 

Rabbitt accompanied the inspector underground (Tr. 93). While 

underground one citation was written concerning the company's 

roof control plan. The inspection team went to a specific area 

because Emery had requested that MSHA abate certain prior 

citations and orders in that area (Tr. 93). During this inspection Boston asked for and received opinions from those 

present (Tr. 94). Rabbitt also pointed out one roof control violation to Boston (Tr. 94). 

Rabbitt accompanied Boston until 5 p.rn. that day (Tr. 95). 

At about 2:15 p.m. White handed Rabbitt a letter. The original 

had been forwarded to the safety committee of the Union. 

Rabbitt's copy stated that under the wage agreement Emery required 24-hour notice in writing before any international health 

and safety representative could enter the mine. White also 

mentioned the waiver requirement (Tr. 96, 97; UMWA Ex. 4). 

Rabbitt had never previously knowingly 9; signed a waiver at 

the Deer Creek mine or elsewhere. The first-time he heard of the 

waiver was on March 11 or 12. However, he signs a check in/check 

out form which is common at all mines (Tr. 98, 99, 123, 142; UMWA 

Ex. 5). Rabbitt next saw the waiver release form on April 15. 

He declined to sign it because he thought his supervisors should 

approve such action (Tr. 133, 134; Contestant Ex. 3). 

8/ The contract referred to by White was received in evidence 

and the scope of its terms are not an issue in the case. The 

agreement is entitled "Bituminous Coal Wage Agreement of 1984 

between Emery Mining Corp and the International Union United Mine 

Workers of America". Article III, section (d) of the contract 

provides the conditions under which the UMWA may have access to 

the mine (UMWA Ex. 7). · 

9/ In fact, on January 10, 1986, March 7, 1986 and April 15, 

1986 Rabbitt had signed a "Visitor Release" form that was kept in 

a clipboard at the Deer Creek mine (Tr. 100, 101, 137, 138, 139, 

142~ Contestant Ex. 4; UMWA Ex. 5). 

1189 
Before April 15, specifically in January and February (or 

early March) 1986, Rabbitt visited the Deer Creek mine (Tr. 102). 

The company had requested, under§ 10l(c), 10; a modification to 

use a two-entry longwall mining system. Rabbitt was directed by 

his superior in Washington, D.C. to investigate the matter and 

report back to him (Tr. 102, 103, 124>. On the first occasion he 

was underground for five hours. He met with Earl White and 

persons in the safety department. He also met with the 

superintendent and persons in t engineering department (Tr. 

103, 124). On the second occasion he was underground nine hours. 

He entered various areas of the Deer Creek mine as a resu of 

this investigation (Tr. 103, 124). The Union opposed the 

petitions for modification that Emery had filed at the Cottonwood 

as well as the Deer Cr mines (Tr. 103). In October 1985 

Rabbitt had done a similar investigation at the Deer Creek mine. 

On those occasions, before April 15, there was no discussion 

about Rabbitt's ability to conduct such investigations or to 

enter the property {Tr. 104). 

Rabbitt believes his right of entry under § 103(f) can be 

conditioned on reasonable restrictions such as eye protection 

requirements (Tr. 135, 136). He didn't feel the hazard training 

checklist on Emery's release form was necessary (Tr. 136; 

Contestant Ex. 3). 

Joseph Main testified that he is the administrator of the 

Department of Occupational Safety and Health for UMWA (Tr. 152). 

Thirty-five members of his staff of 40 are trained, experienced 

and educated international health and safety representatives who 

basically represent the UMWA members on health and safety matters. 

Their duties include conducting inspections at the mines, 

assisting plan approvals, processing petitions for modifications 

filed by the operator, providing assistance to local unions and 

guidance to the local safety committees (Tr. 154, 155). They 

also investigate mine disasters, injuries and accidents that 

occur (Tr. 154). The local union s ety committee is comprised 

of miners employed full time at the mine site. The local members 

serve in an extra capacity as a representative {Tr. 155). The 

background educational level of the local mine committee is less 

than the 1th and safety representatives on the UMWA staff (Tr. 

155). 

Main estimates that the UMWA staff is in the field on a 

daily basis in some type of § 103(f) activity. There are 

numerous events which trigger a participation with an MSHA inspection. These include investigations of an accident, injury or 

an explosion, a regular inspection, or an inspection made for 

some special problem. In addition, participation may occur where 

the mine operator wishes to modify the law. Many mining plans 

!.QI Section 101(c) of the Act authorizes the Secretary to modify 

the application of any mandatory safety standard upon petition of 

the operator or the representative of miners subject to certain 

conditions. 

1190 
such as ventilation, blasting, roof control, and training require 

continual review (Tr. 154-156). If it is believed that a violation exists it is normal procedure for the local union committee or the international representatives to have the conditions checked out. From time to time the UMWA representatives 

travel with the MSHA inspectors to determine the existence or 

seriousness of the condition (Tr. 156-157). 

The historical application of § 103(f) is to provide an 

ability for the representatives of miners to assist MSHA to carry 

out its function to protect miners' lives. (Tr. 157). Those 

representatives of miners who are also employees of the operator, 

are subject to a certain amount of control by the operator (Tr. 

157). Such controls may inhibit the miners from expressing whatever views they may have. However, confidentiality is provided 

for a complaining witness. In addition, there are extensive 

provisions 11; to protect miners against discrimination. But 

some miners-are reluctant to rely on this protection (Tr. 168, 

169). 

In addition, the local miners are not trained for analyzing 

problems (Tr. 158). The members of UMWA's staff are trained 

experts participating in various functions on a national scale. 

If the staff was strictly restricted to the provisions of the 

contract to gain access it would interfere with UMWA's ability to 

protect the miners (Tr 159). 

At times access to the mine is gained through the labor contract and at times under§ 103(f) (Tr. 159). The witness 

described some circumstances of entries under§ 103(f)(Tr. 160, 

161). In some instances committeemen have been afraid to call in 

the international so the UMWA has bypassed the. contractual provisions and entered under a§ 103(f) inspection (Tr. 161). The 

international uses different types of approaches, such as 

checking abatement dates, etc., to find out when the MSHA 

inspector will arrive at a mine site (Tr. 161). Witness Main was 

not aware that any mine operators required the international representatives to sign waivers to gain access to the mine (Tr. 

162). The only occasion known to the witness where an operator 

questioned a Part 40 filing was evolved in the Consolidation Coal 

Company case (cited, infra}. 

Main assigned Rabbitt and several other representatives to 

the Wilberg mine (Tr. 163). The representatives are charged with 

coordinating the investigation. 

Among other duties the international representatives also 

inspect Emery's mines based on complaints they receive. In 

addition, they have helped recover the victims of the Wilberg 

disaster (Tr. 163). 

11/ Section 105(c), the discrimination section of the Mine Safety 

Act. 

1191 
The designation of who constitutes the representatives of 

the miners is basically a decision making process on the part of 

the miners at the mine in conjunction with the organization 

representation rights (Tr. 166). 

The miners that are employed at the mine have a right to 

designate their representatives. The UMWA has the inherent 

right, based on its organizational structure and the fact that 

they are the bargaining representative of those employees, to 

have access to the mine under§ 103(f). In sum, once the miners 

at the mine designate the UMWA International they designate it 

for all provisions of the Act (Tr. 168). 

The persons designated 

with MSHA and the operator. 

mechanism for the miners at 

sentatives (Tr. 170). 

in the Part 40 regulations are filed 

The filings under Part 40 provide a 

the mine to designate their repreEmery's Evidence 

Earl R. White, James T. Jensen, Dave Lauriski, William 

Ponceroff and John Barton testified for Emery. 

Earl R. White, the mine manager and top management official 

at the Deer Creek mine, is presently employed by Utah Power and 

Light. On April 15, 1986 he served in the same capacity for 

Emery Mining Company (Tr. 171, 172, 196). White is responsible 

for the mine, its production, its surface facilit s and the 

transportation of the coal (Tr. 173). 

On April 15 at 7:45 a.m. Frank Fitzek (chairman of the local 

safety committee) and Joe Crespin, (a member of the pit committee 

12/), entered his office at the mine and stated that Tom Rabbitt 

would be visiting the mine that day. This time the day involved a shift change and White was very busy. White called 

Terry Jordan, ety engineer at Deer Creek, to inquire as to 

what was "going on"; in addition, he asked if they had been 

notified. At that particular time there was a closure order on 

the third south belt, one of the main belt arteries in the mine 

(Tr. 174, 175)0 On inquiry Fitzek denied inviting Rabbitt. 

White asked what provision of the contract was involved. The 

miner replied it was under paragraph 1 of Article III, section 

(d) of the labor contract (Tr. 175, 176). White asked if they 

had invited Rabbitt underground to look at something in 

particular. His reply was nagative. They wanted Rabbitt to talk 

to White. White complained about the short notice. The 24-hour 

notice requirement had been relayed to White, Fitzek and others 

12/ Pit committee is a group of individuals elected by miners. 

The committee handles contract issues (Tr. 175, 195). 

1192 
about two weeks before 13; (Tr. 176). White agreed to meet with 

Rabbitt. Fitzek left (Tr. 176, 177 ,_ 196). 

White then contacted Dixon Peacock, the company's safety 

engineer. Peacock stated Rabbitt was going to accompany Vern 

Boston, the MSHA inspector (Tr. 177). White directed Peacock to 

see if Boston had invited Rabbitt to make the inspection with him 

(Tr. 177). Peacock reported back that Rabbitt had approached the 

MSHA inspector (Tr. 178). White objected because Rabbitt was 

supposed to be talking to him, not going on an inspection with 

the federal inspector (Tr. 178). Since becoming the mine manager 

on ~pril 29, 1985 White had not known of any non-employee being 

admitted as a representative of miners under§ 103(f)(Tr. 215, 

217) . 

White, Rabbitt and Larsen met. Rabbitt inquired if there 

was a problem if he traveled with the inspector. White said he 

had not been notified and he also asked under what provisions of 

the contract was the inspection being made. Rabbitt replied he 

was entering under§ 103(f) (Tr. 178-180). White then read the 

Act while conferring with Jordan, Peacock, Boston, Rabbitt and 

Larsen. White refused to let Rabbitt accompany the inspector. 

White stated that it was clear that th~ walkaround man is the 

employee authorized by the miners at the mine (Tr. 181, 182). 

Boston said he would write a citation and he gave White 10 

minutes to reconsider. If the company continued its refusal he 

would then write an order (Tr. 182). 

White then called his superior, Dave Lauriska, and discussed 

the details with him <Tr. 182, 183). Lauriska agreed with 

White's position. White said they were going to get an order on 

it. Lauriska said they didn't need another order and he 

instructed White to abate the citation if Rabbitt signed the 

waiver (Tr. 183). 

The guard in the shack said Rabbitt hadn't signed the waiver 

form. On rechecking Lauriska said Rabbitt could not go underground without signing the form (Tr. 184). A waiver was brought 

in and discussed. Boston called his supervisor (Ponceroff). 

Boston said he would include the waiver matter on the previous 

citation (Tr. 186; Contestant Ex. 1). White relied on the 

citation in permitting Rabbitt to go underground. Upon White's 

demand, Rabbitt returned the unsigned waiver (Tr. 187). 

At this point Inspector Boston and the walkaround party went 

underground {Tr. 187). 

At about 2:30 p.m., when the group came out of the mine, 

there was a further discussion about the walkaround citation as 

it related to the waiver agreement. White understood another 

citation would be written (Tr. 188-190). 

13/ White had been told by his superior that the 24 hour notice 

requirement was directed to the international safety representatives. He interpreted that his instruction related to notice 

under the collective bargaining agreement {Tr. 196). 

1193 
Witness White identified Emery's notice to Frank Fitzek. It 

indicated that management (in accordance with Article III(d) of 

union contract) would require 24-hour notice to the company 

before the UMWA could enter the mine property (Tr. 190, 191; UMWA 

Ex. 4). White gave a copy of the notice to Rabbitt the afternoon 

of April 15 (Tr. 191). 

Emery maintained two clearly marked sign-in, sign-out books. 

One says "Company Visitor Release", the other says 11 Non-Company 

Visitor Release" (Tr. 192, 193). No portion of the text was 

obscured by the punch holes or the bar (Tr. 193). An hour before 

he testified White had verified the condition of the books with 

his secretary (Tr. 194). 

Prior to April 15, White had never discussed § 103(f) with 

management or members of the local union (Tr. 197). White 

construed § 103(f) to relate exclusively to employees of the mine 

(Tr. 198). 

About mid-March White first became aware of the waiver 

policy. He was advised of it by Dave Lauriski and Stan Rajski 

(Emery's director of security) (Tr. 199, 213). 

Under Emery's policy a visitor is any non-employee or 

federal or state inspector at the mine (Tr. 199). 

On April 15 Rabbitt signed under the old release policy. 

That form shows a check number. The visitor retains the brass 

tag with a number stenciled into it (Tr. 201; Contestant Ex. 4). 

Its purpose is to identify the persons in the mine (Tr. 202). 

The check-in, check-out procedure is mandated by federal law (Tr. 

202) • 

White did not know on April 15 but he agreed that the 

initions in 30 C.F.R. Part 40 [40.l(b)(l)] defines a repre-. 

sentative of miners as any other person or organization which 

represents two or more miners at a coal or other mine (Tr. 206, 

207). 

White outlined, in detailf his previous mining experience 

(Tr. 208-210). 

The contract provision authorizing access for the international safety and health representatives does not contain any 

reference to a 24-hour notice (Tr. 211). The only notice 

provision in the contract provides as follows: "The committee 

shall give su icient advance notice of the intended inspection 

to allow a representative of the employer to accompany the 

committee" (Tr. 211). The safety and health committee makes 

regular monthly inspections under the contract (Tr. 212). 

The contract further provides: the provisions of this 

section are in no way intended to impair or to waive any 

1194 
statutory rights under federal or state laws or regulations which 

union officials and representatives may have to enter upon mine 

property or enter the mines (Tr. 212; UMWA Ex. 7). 

Prior to April 15, 1986 James T. Jensen, an attorney 

practicing in Utah, served as general counsel for Savage 

Industries, the parent of Emery Mining Corporation (Tr. 219). 

Witness Jensen prepared and implemented Emery's release and 

waiver form (Tr. 219>. At the time of the Wilberg accident in 

1984 Emery carried general liability insurance aggregating 

$50,500,000. When these policies expired in June 1985 only 

$30,500,000 in insurance coverage could be procured (Tr. 219-220). 

The base policy was $500,000, then a first level of excess coverage at $10 million, then $5.1 million and then another $15 

million. 

In October or November the first $10 million excess was 

cancelled. Hence, there was a gap in the coverage (Tr. 221). 

The company was able to find a $1 million partial replacement 

policy (Tr. 221). In December 1985 the $15.1 was cancelled. 

Emery's efforts at replacement were unsuccessful (Tr. 221). 

The additional insurance coverage was not available at any 

cost and the $1.5 million coverage was, in Emery's opinion, 

inadequate (Tr. 222). 

After consultation it was determined that Emery would 

continue in business and also attempt to limit its exposure (Tr. 

222-223). 

Emery's employees were covered by workman's compensation and 

the areas of potential exposure involved claims by non-employees 

(Tr. 223). It was decided to use a release and waiver approach 

for those entering the company property. Existing and new forms 

were reviewed (Tr. 223-225; Contestant Ex. 3, 4). There were no 

discussions concerning the status of mine rescue terms from other 

companies, federal inspectors or UMWA representatives in connection with the release and waiver forms (Tr. 224, 225, 230). 

The Wilberg disaster generated claims and caused the company 

to focus on non-employee visitors. But lawsuits against Emery by 

non-employees were not an extensive part of the litigation and 

the total of such claims would be within Emery's $1,500,000 

coverage <Tr. 226-228). 

The final release form was finally approved in the latter 

part of February 1986 (Tr. 231). In part, the policy came about 

after a vendor was killed in a Kaiser mine (Tr. 231). 

Dave Lauriski, Emery·' s director of health and safety, 

testified that he has 16 years ex~erience in the mining industry 

(Tr. 237, 238). His responsibilities include overall safety at 

the company's mines and the coordination of staff activities. 

1195 
Between late December 1985 and February 1986 Lauriski helped 

develop the waiver of liability form. The waiver was created due 

to the inability of Emery to maintain an adequate amount of 

insurance (Tr. 259). Utah Power and Light (UP&L) subsequently 

advised the press that it was taking over the operation of the 

mines because of the insurance question (Tr. 259, 260). The 

waiver policy has been continued by UP&L but the basic reason for 

the policy was negated by UP&L's insurance capability (Tr. 260). 

Lauriski indicated the older form was "very loose" (Tr. 240; 

Contestant Ex. 4). After receiving forms from various companies 

Lauriski began to develop Emery's new form based on the company's 

experience (Tr. 241). At that point he added on the form the 

hazard recognition or training checklist for all non-employee 

personnel. The draft form was approved by various individuals 

who reviewed it (Tr. 242). In early March 1986 a final form 

emerged (Tr. 243; Contestant Ex. 3, 5). An interoff memorandum, dated March 21, 1986, identified those who would have to 

sign the waiver and those exempt from signing it (Tr. 245; 

Contestant Ex. 5). One of the criteria used to determine whether 

a person should be required to sign the waiver was the risk 

involved ter the person entered the mine property (Tr. 246). 

The first exemption involved state and federal agencies on 

mine property for reasons relating to coal production and/or 

inspections or enforcement actions. Even if any of these 

individuals were injured on mine property Emery believed it would 

not be held liable for such injuries (Tr. 246, 270, 282). An 

additional exemption focused on the employees of common carriers 

such as United Parcel and Uintah Freight. These individuals are 

exempt because of existing contracts holding Emery harmless in 

the event of injury to them. Further, Emery didn't think the 

risk was great enough for them to sign a waiver for each entry to 

the mine property (Tr. 247, 270, 283). In addition, the common 

carrier rsonnel do not go underground (Tr. 247, 283). A 

further exemption involved Lowdermilk Construction Company. This 

company does underground and surf ace work at the mine 100 percent 

of the time (Tr. 247). In addition, the Lowdermilk contract 

indemnifies and insures Emery {Tr. 248). 

An additional exempted class consists of employees of Utah 

Power and Light. UP&L owns these particular coal mines and Emery 

serves as the operator CTr. 248). 

With the exception of the four described classes of persons, 

the waiver of liability policy applies to all other non-employees 

visitors to Emery's mines (Tr. 248). 

The Emery people who developed the exemptions (Lauriski, 

Jensen, Cowan and Rajski) did not discuss the status of mine 

rescue teams entering the property. But such teams are exempt 

because a Utah state law holds coal operators harmless for miner 

rescue teams on their property (Tr. 250) 

1196 
When the waiver policy was issued {Rajski's memorandum, 

Contestant's Ex. 5) there was no discussion of the status of the 

international representatives of the UMWA (Tr. 265). But in any 

event such a person would be required to sign under category 4, 

that is, as "all other visitors" (Tr. 266; Contestant Ex~ 5). 

The hazard training checklist incorporated with the release 

form used at Deer Creek mine is identical to the form used at the 

other Emery mines (Tr. 268). Lauriski directed the mine managers 

to implement the program (Tr. 250, 251). 

Emery's mines consist of three separate complexes 

geographically very close but with three different entrances. 

The mines are independent. They are known as the Deer Creek 

mine, the Des-Bee-Dove complex and the Cottonwood Wilberg complex. 

Deer Creek mine overlies the Wilberg mine (Tr. 252, 293). Each 

of the three mines has its own security system (Tr. 252). A 

security guard records the times when visitors enter the property. 

Further, they are responsible for a visitor signing the waiver 

(Tr. 253). 

Tom Rabbitt was the only person known to Lauriski who 

refused to sign the waiver although for the preceding six or 

seven months it had been the practice for Rabbitt to come on 

Emery's property day or night without its knowledge (Tr. 253, 

288-289). 

Witness Lauriski identified an exhibit which consisted of a 

large number of waiver and release forms. The forms received in 

evidence were generated at the Deer Creek mine between March 21, 

1986 and April 27, 1986 (Tr. 254, 290; Contestant Ex. 6). All of 

the forms had been signed by non-employee visitors to the mine •. 

Up until the events of April 15, 1986 Lauriski was not aware 

of any person asserting the right to enter an Emery mine under 

§ 103(f) of the Mine Act {Tr. 255, 273, 287). 

In cross examination Lauriski agreed that during a § 103{g) 

inspection in January 1985 four UMWA health and safety representatives accompanied the federal inspectors during an 

electrical inspection (Tr. 285). 

When a representative of the UMWA, who is also an nonemployee, enters the mine under a contract right Emery requires 

that waiver be signed (Tr. 268). 

On April 15, 1986 Lauriski instructed White to abate the 

citation rather than take a closure order. He did not understand 

at that time whether the closure order would be a "no-area 

affected order" (Tr. 256, 257). In three subsequent similar. 

events Emery accepted the closure order (Tr. 257). The refusal 

to abate came about because Lauriski was advised by his counsel 

that the closure order would not affect any area of the mine CTr. 

257, 279). 

1197 
As director of health and safety for Emery, Lauriski had a 

fairly broad knowledge of the presence of MSHA and the UMWA on 

mine property (Tr. 261). Lauriski has known Tom Rabbitt for 

eight or nine months (Tr. 261). Lauriski understood Rabbitt was 

there to work on the Wilberg investigation (Tr. 261, 286). 

Significant ~elays have occurred during the lengthy investigation 

into the Wilberg fire (Tr. 261). 

On two occasions during the delays of the Wilberg disaster 

investigation, Rabbitt went underground in the Deer Creek mine to 

look at a two entry mining system (Tr. 262). He also entered the 

Cottonwood mine in late 1985 for the same purpose (Tr. 262). He 

has also been underground in the Wilberg mine and participated in 

the recovery operations (Tr. 262). Further, the witness does not 

dispute the claim that Rabbitt accompanied the inspectors on more 

routine inspections (Tr. 286). 

Witness Lauriski was aware of Rabbitt's letter in January 

dealing with the seals (Tr. 263). The company thought Rabbitt 

was reiterating positions already decided on by the company (Tr. 

264). The company was irritated over the second letter (Tr. 

264). 

William Ponceroff, called as an adverse witness, indicated 

that he is the supervisor at the MSHA field off ice in Orangeville 

(Utah) (Tr. 300). 

Witness Ponceroff, a person experienced in mining, holds a 

degree in safety (Tr. 301-303). The field office, with six 

inspectors, has ten mines under its jurisdiction (Tr. 303). 

At the time of this incident MSHA inspector Boston called 

Ponceroff and advised him that mine management refused to permit 

a UMWA representative to travel with him unless he signed a 

waiver (Tr. 305, 306). Ponceroff was not familiar with the 

waiver form nor did he attempt to learn about it. Abatement time 

was not discus 

In a similar incident about March 5, 1986 MSHA inspector 

Baker had not taken any action (Tr. 306, 307). At a staff 

meeting a few days later the issue was discussed. It was decided 

that if any union representative on an international level wanted 

to accompany the inspector the company was to have equal 

representation. If the operator refused then a citation was to 

be issued. If the operator failed to comply then a Cb) order 

would be issued but it would be a no-closure type of order (Tr. 

309, 310). The foregoing policy resulted in the instructions 

given to Boston on April 15, 1986 (Tr. 310). 

When Boston called him, Ponceroff was not aware Rabbitt had 

previously signed any release forms. In any event, that fact 

would not have affected his judgment CTr. 310). 

1198 
Boston later advised his supervisor that he had rewritten 

the citation. In Ponceroff 's opinion, if Emery denied access to 

a representative of the International UMWA claiming the right to 

enter under§ 103(f), then such a denial constituted a violation 

of the Act (Tr. 312). A violation would also occur if the 

company refused access conditioned upon the signing of a release 

and waiver (Tr. 313, 325). However, if a representative of miners 

does not act in an orderly fashion or hinders the inspection in 

any manner, he would be asked to leave and someone else would be 

selected (Tr. 326). 

After April 15 no person employed by Emery indicated that 

Rabbitt should not be considered as a representative of the 

miners at the mines (Tr. 326). On the Part 40 filing form the 

UMWA is one of the organizations named as a representative of the 

miners (Tr. 326, 327; Contestant Ex. 7). 

Witness Ponceroff testified concerning situations where 

disputes might arise over different individuals claiming to be 

representative of the miners (Tr. 327, 328). 

Ponceroff 's duties include enforcement of MSHA's regulations 

under 30 C.F.R. Part 40. The Part 40 regulations require representatives of miners to make certain designations and file 

certain documents with the MSHA District Manager (Tr. 314). 

On July 30, 1984 a Part 40 document was filed with MSHA's 

Orangeville office (Tr. 315, 316; Contestant Ex. 7). The document received in evidence was the most recent on file and it 

identifies for MSHA the representatives at the various mines (Tr. 

316, 317). Boston's call of April 15 did not inquire as to the 

name of the individual who was listed as a representative of the 

miners at the Deer Creek mine (Tr. 318). The form designates who 

will represent the miners under various sections of the Act (Tr. 

322f 323). 

The parties stipulated that UMWA international representative Rabbitt was not listed as a named delegate on any filing 

under Part 40 associated with any of the Emery mines (Tr. 323). 

Poncerof f did not recognize the name of any UMWA international representative on the Part 40 form CTr. 324). Nor did 

he look at the filing made by the Deer Creek miners (Tr. 324). 

John W. Barton, called as an adverse witness, testified as 

to his education and experience in mining. He further identified 

himself as the district manager of District 9 for Coal Mine 

Health and Safety {Tr. 330, 344, 345). He is responsible for the 

total administration of the Act. He has 110 employees and four 

primary divisions including administrative, education and 

training (a consultant service to industry), an engineering 

service to industry, and an enforcement division (Tr. 342-343). 

1199 
Barton's jurisdictional area consists of all states west of 

the Mississippi except for Minnesota, Iowa and half of Missouri 

(Tr. 343). His duties include enforcing the Part 40 regulations 

(Tr. 331). Barton's office has written letters to various mines 

concerning steps that need be taken to comply with Part 40 (Tr. 

331, 332). 

When changes are made in Part 40 filings by individual mines 

MSHA accepts such changes as a matter of course and enters them 

as part of the official MSHA file (Tr. 332). On occasion mines 

have been directed to use MSHA forms (Tr. 333). Barton 

identified the form prepared in his off ice. It was prepared as a 

convenience for miners' representatives (Tr. 333, 334). 

Barton considers Part 40 to be a procedure available to mine 

workers. However, in accordance with the Secretary's directions, 

MSHA is told to take a very broad view of miners participation 

rights (Tr. 343, 344, 356). Portions of the Part 40 regulations 

use the term "shall", (Tr. 356) but the witness believed the 

wording in the preamble instruct him how to interpret the regulation (Tr. 357). In Barton's opinion Inspector Boston acted 

correctly (Tr. 358). 

Section 103Cf) is a general provision of the Act that allows 

a non-employee miners' representative to travel with the 

representative of the Secretary (Tr. 335, 350). Such an 

individual is not an employee of the agency but is present to 

assist the MSHA inspector (Tr. 350). The regulations state that 

participation by a miners' representative cannot interfere with 

the active completion of the inspection. The inspector has 

authority under the law to prevent a representative from further 

traveling with him (Tr. 351). MSHA encourages the representatives to have some input into the inspections (Tr. 351). Barton 

only knew of one instance where an intentional representative of 

the UMWA was denied access to a mine (Tr. 349). 

In Barton's understanding, the Act and its regulations seek 

to encourage miners to participate and to bring forth people who 

would best serve the purpose on any particular inspection (Tr. 

349). This evolves from the fact that miners at an individual 

mine do not have a great amount of experience and therefore 

outside representation and wider experience can be of great benefit to the rank and file members (Tr. 349, 350). The miners representatives are chosen at the descretion of the employees at 

the mine (Tr. 335, 336). Such descretion can be exercised by 

submitting the form or by submitting a miners' representative 

when the inspector arrives at the mine (Tr. 336). The preamble 

in Government Exhibit 3 (the Secretary's bulletin of July 7, 

1978) states, in part, that "it should be noted that miners and 

their representatives do not lose their statutory rights under 

§ 103(£) by their failure to file as a representative of the 

miners under this part" (Tr. 336}. 

1200 
The Part 40 filing form itself was discussed by the witness 

{Tr. 337, 338). 

The policy that any UMWA international representative has an 

automatic entry right under § 103{f) emanated from Barton's 

office when Part 40 was promulgated (Tr. 338, 339). The Part 40 

filings are occasionally consulted by MSHA since the regulations 

govern the identification of representatives of miners for all 

mines under the Act (Tr. 340). Further, the regulations define 

the term "representatives of miners" (Tr. 341). 

Barton analyzed a procedure to be followed if conflicting 

claims arise between different persons claiming to be representatives of miners (Tr. 354, 355). 

In rebuttal Forrest Adison and Mark Larsen testified for the 

UMWA. 

Forest Adison has been employed at the Wilberg mine for 

eight years. His local union offices include safety committeeman 

and mine committeeman (Tr. 360). Adison was present at a meeting 

with mine management representatives Neldon Sitterud, Jorgenson 

(shift foreman), John Boylen, and Baker CMSHA) at the Wilberg 

mine on March 5. At that time Adison requested that international representative Tom Rabbitt accompany him on a regular 

quarterly safety inspection conducted by Bob Baker. There was a 

question of a variance involving an escapeways in the Wilberg 

mine (Tr. 361, 366). Sitterud told Rabbitt he had no right to 

enter the mine. He and Boylen were not aware of the Act. Baker 

took no enforcement action when the company refused to allow 

Rabbitt to walkaround. Adison considered Rabbitt to be his 

representative protecting him and keeping the membership aware of 

activities (Tr. 362-367). Since the mine disaster he has asked 

the international union representatives about matters within 

their expertise (Tr. 364). 

Mark S. Larsen, a safety committeeman for the two years, has 

been employed at the Deer Creek mine for seven years (Tr. 368, 

369, 373). 

On April 15, 1986 Larsen was present to accompany the MSHA 

inspector whom he met at the gate. The two men picked up Rabbitt. 

Later, in his office, White questioned Rabbitt's authority to 

enter the mine under the contract. Rabbitt stated his entry was 

not under the contract but under § 103(£) of the Act (Tr. 369, 

370). When he read the Act, White said Rabbitt was not an 

employee. Rabbitt agreed but stated that he would suffer no lost 

wages by accompanying the inspector (Tr. 370). Larsen indicated 

Rabbitt was being paid in part by the local union dues of $40 per 

month (Tr. 370, 371). 

As the argument continued Larsen told White thqt he felt 

Rabbitt was his representative CTr. 371). The MSHA citation, as 

previously described, was issued (Tr. 371). At this meeting 

Rabbitt did not state he could get into the mine at any time (Tr. 

372). 

1201 
Larsen trusts the advice he receives from the international 

representatives. He further thought such advice was important to 

his safety (Tr. 372, 373). Larsen felt they need the UMWA's 

expertise. This is why the local miners pay their dues. Futher, 

the international helps them (Tr. 373, 374). 

Witness Rabbitt, recalled by the UMWA, described the sign-in 

and sign-out books at the mine (Tr. 375, 376). 

Di 

This case turns on the interpretation of § 103(f) of the 

Federal Mine Safety and Health Act of 1977. 14; 

The walkaround participation right was first enacted in the 

Federal Coal Mine Health and Saf Act of 1969, 83 Stat. 750, 

Public Law 91-173. Section 103(h) thereof provided as follows: 

Ch) At the commencement any inspection of a coal mine 

by an authorized representative of the Secretary, the 

authorized representative of the miners at the mine at 

the time of such inspection shall be given an opportunity 

to accompany the authorized representative of the Secretary on such inspection. 

The 1977 amendment, enacted in§ 103(f), considerably 

broadened the walkaround participation right and addressed the 

issue of pay when a representative of miners accompanied the 

inspection team. 

Specifically, such representative of miners "who is also an 

employee of the operator shall suffer no loss of pay •.. " 

Clearly, then, Congress contemplated that non-employees may be 

r entatives of miners. Commission Judge James A. Broderick 

to this effect in Consolidation Coal Company v. Secretary 

Labor et , 2 FMSHRC 1403 (1980). 

In fulfilling his statutory rulemaking mandate contained in 

the 1977 Act the Secretary issued his interpretative bulletin, 43 

Fed. Reg. 17546, (April 25, 1978) setting for his general 

interpretation of the scope of § 103(f). The bulletin provides, 

in part, as follows: 

14/ This section has been before the Courts of Appeals in UMWA 

V-: Federal Mine Safety and Health Review Commission, 671 F.~ 

615 (DC Cir. 1982), cert. denied 74 L. Ed.2d 189 (1982); Magma 

Copper Company v. Secretary of Labor, 645 F.2d 694 (9th Cir. 

1981) cert. denied 50 U.S.L.W. 3296 (1981); Consolidation Coal 

Co. v.~eral Mine Safety and Health Review Commission, 740 F.2d 

271 (3rd Cir. 1984); Monterey Coal Co. v. Federal Mine Safety and 

Health Review Commission, 743 F.2d 589 (7th Cir. 1984). 

1202 
The Federal Mine Safety and Health Act of 1977 (Pub. L. 

91-173, as amended by Pub. L. 95-164, November 9, 1977) 

(hereinafter referred to as the Act) is a Federal statute 

designed to achieve safer and more healthful conditions in 

the nation's mines. Effective implementation of the Act 

and achievement of its goals depend in large part upon the 

active but orderly participation of miners at every level 

of safety and health activity. Therefore, under the Act, 

miners and representatives of miners are afforded a wide 

range of substantive and procedural rights. 

Section 103(£) provides an opportunity for the miners, 

through their representatives, to accompany inspectors 

during the physical inspection of a mine, for the purpose 

of aiding such inspection, and to participate in pre- or 

post-inspection conferences held at the mine. As the Senate 

Committee on Human Resources stated, "If our national mine 

safety and health program is to be truly effective, miners 

will have to play an active part in the enforcement of the 

Act.' S.Rep. No. 95-181, 95th Cong., 1st Sess., at 35 

(1977). 

Further, in 1978 the Secretary promulgated 30 C.F.R. Part 40 

wherein he defined a representative of miners to mean: "(l) Any 

person or organization which represents two or more miners at a 

coal or other mine for the purposes of the Act" and (2) "Representatives authorized by miners", "Miners or their representatives", "authorized miner representative" and other similar terms 

as they appear in the Act. (§ 40.1). 

I agree with Emery that it seems beyond contradiction that 

there are two principal reasons for the § 103(f) walkaround right. 

They are to increase the safety awareness of miners and to 

produce more thorough inspections through the participation of 

those familiar with the conditions being inspected. However, I 

do not concur with Emery's view that a colloquy 15; between 

Senators Helms and Javits is determinative of the-final scope of 

this section. 

Contrary to Emery's views Senate Report No. 95-181 contained 

in the legislative history is much more persuasive. On the point 

the report states as follows: 

The right of miners and miners' representatives to accompany 

inspectors 

Section 104(e) contains a provision based on that in the 

Coal Act, requiring that representatives of the operator and 

miners be permitted to accompany inspectors in order to 

assist in conducting a full inspection. It is not intended, 

however, that the absence of such participation vitiate any 

citations and penalties issued as a result of an inspection. 

15/ The senators, in discussing§ 103(f), referred to ~employees" and "miners. 11 

1203 
The opportunity to participate in pre- or post-inspection 

conferences has also been provided. Presence of a representative of miners at opening conference helps miners to 

know what the concerns and focus of the inspector will be, 

and attendance at closing conference will enable miners to 

be fully apprised of the results of the inspection. It is 

the Committee's view that such participation will enable 

miners to understand the safety and health requirements of 

the Act and will enhance miner safety and health awareness. 

To encourage such miner participation it is the Committee's 

intention that the miner who participates in such inspection 

and conferences be fully compensated by the operator for 

time thus spent. To provide for other than full compensation would be inconsistent with the purpose of the Act 

and would unfairly penalize the miner for assisting the inspector in performing his duties. The Committee also recognizes that in some circumstances, the miners, the 

operator or the inspector may benefit from the participation 

of more than one representative of miners in such inspection 

or conferences, and this section authorizes the inspector to 

permit additional representatives to participate. 

(Emphasis added) 

Legislative History of the Federal Mine Safety and Health 

Act of 1977, 95th Congress, 2nd Session 616, 617 (July 

1978) • 

In short, the Senate in its formal report had no difficulty 

deciding that the inspector might include additional miners' 

representatives to participate with him in the inspections. 

In support of its position, Emery cites Emery Mining 

Corporation, 783 F.2d 155, 158 (10th Cir. 1986), Council of 

Southern Mountains, Inc., v. Federal Mine Safety and Health 

Review Commission, 751 F.2d 1418 {DC Cir. 1985}, and Stouffer 

Chemical Company v. E.P.A., 647 F.2d 1075 (10th Cir. 1981}, among 

other cases. 

The cited Emery case is not controlling. In Emery the court 

reviewed the scope of a different section of Act, namely § 115. 

Further, the·Court emphasized that none of the Secretary's 

"otherwise extensive regulations" addressed the issue of the 

operator's liability to pay newly hired miners for their costs in 

receiving 32 hours of miner training, 383 F.2d at 159. The 

instant case involves the Secretary's interpretative bulletin but 

more particularly he has defined a representative of miners to be 

a person or organization which represents two or more miners. 

Mr. Rabbitt is such a person and the UMWA, intervenor, is such an 

organization. 

In Council of Southern Mountains the Council, a non-employee 

miner representative, sought access to mine property to monitor 

certain training classes. Specifically, the Court noted that 

"Ci)t was not, in these circumstances, asserting its right under 

1204 
§ 103{f), 30 u.s.c. § 813(f), to accompany a federal mine inspector investigating mines for compliance with safety training 

requirements" (fn 21, 751 F.2d at 1421). 

In fact, in footnote 18 the Court takes a contrary position 

to Emery's view that a distinction exists between employee and 

non-employee representatives. The Court stated that "(t)he 

Council is a non-employee miners' representative. The Mine Act, 

however, merely refers to 'representatives' and does not 

articulate any distinction between the rights of employee and 

non-employee representatives", 751 F.2d at 1421. 

Further, in footnote 31 the Court noted: "Our holding is 

limited to situations were miners' representatives assert an 

independent right to enter mine property for monitoring purposes. 

It has no application to instances where representatives assert a 

statutory right under Section 103(f) to accompany federal mine 

inspectors investigating mines for compliance with statutory or 

regulatory safety training requirements", 751 F.2d at 1418. 

In Stauffer Chemical Company the question before the Court 

involved the right of access by EPA's contractor under the Clean 

Air Act. Stauffer provides no support for Emery's position that 

the miner's representatives must be employees of the operator in 

order to be allowed access to mine property. Under § 103(f) Mr. 

Rabbitt was not an employee of the Secretary. He was an employee 

of the miners at the Deer Creek mine. 

Emery's search warrant cases, commencing with Camara v. 

Municipal Court of the City and County of San Francisco, 387 U.S. 

523 (1967) and its progenity illustrate a principle of law. But 

the Supreme Court has ready ruled that a search warrant is not 

required under the Mine Act, Donovan v. Dewey, 101 s. Ct. 2534 

(1981)0 The right of the international representative under 

§ 103(f) is to inspect mine property at the same time and in the 

presence of the MSHA inspector. 

On this record it is uncontroverted that the UMWA International was bound by its collective bargaining agreement to 

Emery and its miners. Further, Emery knew Rabbitt was a UMWA 

international representative. Rabbitt and UMWA both meet the 

Secretary's definitions of a miners' representative. Further, 

miners Fitzek, Addison and Larsen wanted Rabbitt's expertise and 

assistance. A portion of the local union dues go to Rabbitt's 

wages. 

The foregoing facts cause me to conclude that Rabbitt may 

participate in a walkaround inspection with the MSHA inspector as 

a matter of statutory right. 

The second issue focuses on whether Emery may condition the 

entry of the UMWA international representative upon his signing a 

release and waiver agreement. 

1205 
A credibility issue arises here as to whether the release 

agreement was intended to restrict the activities of Rabbitt at 

the Emery mines. Rabbitt expressed such an opinion but no 

collateral evidence supports such a conclusion. Accordingly, I 

reject such a construction of the evidence. Emery's reasons for 

requiring various parties to sign the release and waiver are 

credible and detailed in the summary of the evidence. However, 

the record indicates that the potential exposure for possible 

claims from this class of persons was within Emery's initial 

coverage of $1,500,000. In addition, the insurance problem was 

resolved when Utah Power and Light took over the operation of its 

mines. 

In any event, § 103(f) does not condition the international 

representative's access upon a waiver of that person's right to 

seek redress for injuries that might be sustained as a result of 

the operator's negligence. The right to apply to the courts for 

relief from the perpetration of a wrong is a substantial right. 

Bracken v. Dahle et al, 68 Utah 486, 251 P. 16 (1926). 

In addition, the State of Utah's Constitution in Article I, 

Section 11 provides as follows: 

All courts shall be open, and every person, for an injury 

done to him in his person, property or reputation, shall 

have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person 

shall be barred from prosecuting or defending before any 

tribunal in this State, by himself or counsel, any civil 

cause to which he is a party. 

The State of Utah has included the above right within the 

protection of its constitution. It would appear that if Emery's 

position were sustained, serious 10th Amendment implications 

could arise. 

Emery may well have the right, in dealing with the members 

of the public, to condition access to its mine. There are 

certain benefits accruing to sales representatives and similar 

persons in entering a mine. The signing a waiver in those cases 

is an appropriate quid pro quo for the expanded business opportunity. But the person seeking access here is acting under a 

statutory provision. The Commission has noted that access under 

this provision plays an important role in the overall enforcement 

scheme of the Act. It is therefore inappropriate for Emery to 

equate the UMWA international representative's access with that 

of a sales representative in determining the appropriateness and 

validity of the operator's release and waiver requirement. 

Providing access to the former was determined by Congress to be 

an important means of achieving the goal of improved health and 

safety in our nation's mines. Providing access to sales representatives and the like does not relate to the achievement of 

goals that are in the public interest and that matter is left to 

the operator·•s discretion. 

1206 
It is also noted that non-employee Union representatives 

have been held to have a right of access to an employer's 

property, in order for the union to properly carry out its duties 

as collective bargaining representative under the National Labor 

Relations Act. NLRB v. Holyoke Water Power Co., 778 F.2d 49 (1st 

Cir. 1985). 

For the foregoing reasons, I conclude that Emery may not 

insist that the UMWA international representative sign a waiver 

prior to exercising § 103(f) rights. 

Emery's policy also requires 24 hour advance notice before 

entry into a mine will be permitted. However, it is not 

necessary to explore this aspect of the case because the notice 

requirement clearly relates to entry under the terms of the wage 

agreement (UMWA Ex. 4). And the parties agree the terms of the 

wage contract are not an issue in the case. 

The final issue centers on whether Emery may refuse entry to 

UMWA international representative Rabbitt merely because he was 

not designated by name in the filings made under 30 C.F.R. Part 

40. 

This issue was squarely addressed by the Commission in 

Consolidation Coal Company, 3 FMSHRC 617 (1981). 

In the Consol case the inspection was requested by the 

safety committee of the UMWA local. The UMWA was the collective 

bargaining representative of the miners. The operator refused 

entry on the grounds that their names had not been submitted 

pursuant to 30 C.F.R. Part 40. 

In considering the issue the Commission stated as follows: 

We have previously recognized the important role section 

103(f) plays in the overall enforcement scheme of the Act, 

both in assisting inspectors in their inspection tasks and 

in improving the safety awareness of miners. (Case cited) 

We are not prepared to restrict the rights afforded by that 

section absent a clear indication in the statutory language 

or legislative history of an intent to do so, or absent an 

appropriate limitation imposed by Secretarial regulation. 

Neither the statute nor the legislative history indicates 

that prior identification of miners' representatives is a 

prerequisite to engaging in the section 103(f) walkaround 

right, and Part 40 on its face is silent as to the intended 

effects of a failure to file. The preamble to Part 40 does 

discussi however, the intended effect of the filing regulations on walkaround participation. It states: 

[I]t should be noted that miners and their representatives do not lose their statutory rights under section 

103(f) by their failure to file as a representative of 

miners under this part. 

1207 
43 Fed. Reg. 29508 (July 7, 1978). This statement provides 

a clearly indication of the Secretary's intent in promulgating the filing regulations and is not inconsistent with 

the language of Part 40. 

In footnote 3 of the decision the Commission further 

observed: 

The Part 40 filing requirements· were not promulgated merely 

to identify miners' representatives for section 103(f) purposes. As the preamble to Part 40 noted, the Act "requires 

the Secretary of Labor to exercise many of his duties under 

the Act in cooperation with miners' representatives." 43 

Fed. Reg. 29508 (July 7, 1978). Filing under Part 40 

serves, among other things, to identify such representatives 

that they will be included in the processes contemplated by 

the Act. See, e.g., sections lOl(e), 103(c), 103(g), 

105(a), 105(b), 105(d), 107(b), 107(e), 109(b), 305(b). 

3 FMSHRC at 618, 619 

In the Consol case the operator was well aware of who the 

UMWA safety representatives were and why they were at the mine. 

Likewise, in the instant case, international representative 

Rabbitt was well known to Emery's management. 

For the foregoing reasons, I conclude that the mere failure 

of representative Rabbitt to file under 30 C.F.R. Part 40 does 

not authorize the operator to deny access under§ 103(£). 

Bri s 

The parties have filed pre-trial and post-trial briefs which 

been most helpful in analyzing the record and defining the 

issues. However, to the extent they are inconsistent with this 

decision, they are rejected. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Contestant failed to meet its burden of proof to establish that Citation 2834575 should be vacated. 

3. The contest of Citation 2834575 should be dismissed. 

1208 
ORDER 

Based on foregoing findings of fact and conclusions of law, 

I enter the following order: 

The contest filed herein is dismissed. 

Law Judge 

Distribution: 

John A. Macleod, Esq., Ellen Moran, Esq., Crowell & Moring, 1100 

Connecticut Avenue, NW, Washington, D.C. 20036 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail} 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

Fifteenth Street, NW, Washington, D.C. 20005 (Certified Mail} 

/blc 

1209 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

UTAH POWER & LIGHT, 

substituted for 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

CONTEST PROCEEDING 

AUG 7 1986 

EMERY MINING CORPORATION, 

Contestant 

Docket No. WEST 86-131-R 

Order No. 2833458; 4/22/86 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

and 

Wilberg Mine 

. 

~· 

UNITED MINE WORKERS OF AMERICA,: 

Intervenor 

DECISION 

Appearances: John Macleod, Esq., Crowell & Moring, Washington, 

D. C., 

for Contestant; 

Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Respondent;· 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C., 

Intervenor. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et~., (the Act) 

arose from an inspection of contestant's Wilberg mine on April 

22, 1986. On that date a federal mine inspector issued Order No. 

2833458 under § 104 of the Act. 

A hearing on the merits commenced in Denver, Colorado on May 

14 I 1986 • 

Stipulation 

The parties agreed that the ruling in WEST 86-126-R would be 

controlling in this case (Tr. 18-20). 

1210 
Conclusions of Law 

Based on the record and the stipulation of the parties, the 

following conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. On this date an order was entered dismissing the contest 

in WEST 85-126-R. 

3. The contest of MSHA Order No. 2833458 herein should be 

dismissed. 

ORDER 

Based on the stipulation of the parties and the conclusions 

of law I enter the following order: 

The contest of Order No. 2833458 is dismissed. 

Distribution: 

John Macleod, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

NW, Washington, D.C. 20036 (Certified Mail) 

Edward Fitch, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Workers of America, 900 Fifteenth 

Street, NW, Washington, D.C. 20005 (Certified Mail) 

/blc 

1211 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

UTAH POWER & LIGHT, 

substituted for 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 

CONTEST PROCEEDING 

AUG 7 1986 

EMERY MINING CORPORATION, 

Contestant 

Docket No. WEST 86-140-R 

Order No. 2833456; 4/17/86 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

Wilberg Mine 

UNITED MINE WORKERS OF AMERICA,: 

Intervenor 

DECISION 

Appearances: John Macleod, Esq., Crowell & Moring, Washington, 

D .c. I 

for Contestant; 

Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Respondent; 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C., 

Intervenor. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., (the Act) 

arose from an inspection of contestant's Wilberg mine on April 

17, 1986. On that date a federal mine inspector issued Order No. 

2833456 under § 104 of the Act. 

A hearing on the merits commenced in Denver, Colorado on May 

14, 1986. 

Stipulation 

The parties agreed that the ruling in WEST 86-126-R would be 

controlling in this case CTr. 18-20). 

1212 
Conclusions of Law 

Based on the record and the stipulation of the parties, the 

following conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. On this date an order was entered dismissing the contest 

in WEST 85-126-R .. 

3. The contest of MSHA Order No. 2833456 herein should be 

dismissed. 

ORDER 

Based on the stipulation of the parties and the conclusions 

of law I enter the following order: 

The contest of Order No. 2833456 is dismissed. 

Distribution: 

tJ'~~n ~~ J. p;;is - -

Administrative Law Judge 

John Macleod, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

NW, Washington, D.C. 20036 (Certified Mail} 

Edward Fitch, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Workers of America, 900 Fifteenth 

Street, NW, Washington, D.C. 20005 (Certified Mail} 

/blc 

1213 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

UTAH POWER & LIGHT, 

substituted for 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

CONTEST PROCEEDING 

AUG 7 1986 

EMERY MINING CORPORATION, 

Contestant 

Docket No. WEST 86-141-R 

Order No. 2835048; 4/23/86 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

Cottonwood Mine 

UNITED MINE WORKERS OF AMERICA,: 

Intervenor 

DECISION 

Appearances: John Macleod, Esq., Crowell & Moring, Washington, 

D. C., 

for Contestant; 

Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Respondent; 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C., 

Intervenor. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et~., (the Act) 

arose from an inspection of contestant's Cottonwood Mine on April 

23, 1986. On that date a federal mine inspector issued Order No. 

2835048 under § 104 of the Act. 

A hearing on the merits commenced in Denver, Colorado on May 

14, 1986. 

Stipulation 

The parties agreed that the ruling in WEST 86-126-R would be 

controlling in this case (Tr. 18-20). 

1214 
Conclusions of Law 

Based on the record and the stipulation of the parties, the 

following conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. On this date an order was entered dismissing the contest 

in WEST 85-126-R. 

3. The contest of MSHA Order No. 2835048 herein should be 

dismissed. 

ORDER 

Based on the stipulation of the parties and the conclusions 

of law I enter the following order: 

The contest of Order No. 2835048 is dismissed. 

Law Judge 

Distribution: 

John Macleod, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

NW, Washington, D.C. 20036 (Certified Mail) 

Edward Fitch, Esq., Office of the Solicitor, U .• s. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Workers of America, 900 Fifteenth 

Street, NW, Washington, D.C. 20005 (Certified Mail) 

/blc 

1215 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 AUG 8 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ALABAMA BY-PRODUCTS CORP., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 86-46 

A. C. No. 01-00515-03632 

Mary Lee No. 1 Mine 

DEC!SION 

Appearances: 

Before: 

William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, 

for Petitioner. 

Judge Merlin 

s case is a petition the assessment of a civil 

penalty filed by the Secretary against Alabama By-Products 

Corporation. By Notice of Hearing dated July 22, 1986, 

hearing was set for August 6, 1986, in Birmingham. 

On August 5, 1986, at the conclusion of hearings on 

cases set for that day, the Solicitor asked to be heard 

with respect to this case. The Solicitor advised on the 

record that the citation which was the subject the penalty assessment had been vacated by MSHA. He moved to dismiss, explaining that the citation had been issued a 

violation of the operator's roof control plan but that upon 

further consideration MSHA had concluded that the plan did 

not cover the situation in question. Upon inquiry from the 

bench, the Solicitor assurances that both the operator 

and MSHA were now reviewing the roof control plan in light 

of this case. 

nally, the Solicitor advised that, if required, 

operator's counsel would appear the following morning as had 

been scheduled. However, in light of the Solicitor's representations, further appearances by counsel were excused and 

additional hearing was deemed unnecessary. 

In light of the foregoing, this case is Dismissed. 

Paul Merlin 

Chief Administrative Law Judge 

1216 
stribution: 

Wil am Lawson, Esq., Office of the Solicitor, u. s. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 {Certified Mail) 

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C., 

12th Floor, Watts Building, Birmingham, AL 35203 (Certi 

Mail) 

1217 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COtFAX AVENUE, SUITE 400 

DENVER, COtORADO 80204 AUG 8 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMPIRE ENERGY CORPORATION, 

Respondent 

Docket No. WEST 86-19 

A.C. No. 05-01370-03550 

Eagle No. 5 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Carlson 

The part s have submitted a joint motion to approve a 

settlement agreement. Specifically, the Secretary asks leave to 

amend the penalty proposed for citation 2072087 from $10,000.00 

to $7,500.00 on grounds that the operator's negligence proved to 

be less than originally believed. The Secretary also asks leave 

to amend the proposed penalty for citation 23333640 from $98.00 

to $78.00 for the same reason. Finally, the Secretary moves that 

citation 2072088 be vacated on grounds that he lacks sufficient 

evidence to establish the violation. 

The respondent, in turn, agrees to withdraw its notices of 

contest to citations 2072087 and 2333640 if the settlement is 

approved. 

Based upon the representations of the parties and the 

contents of the f i , I conclude that the settlement agreement is 

appropriate and should be approved in its entirety. 

Accordingly, the settlement agreement is approved and the 

attendant motions are granted. Citation 2072088 is vacated. 

Respondent shall pay a total civil penalty of $7,578.00 for the 

remaining two citations within forty days of the date of this 

decision. This proceeding is dismissed. 

SO ORDERED. 

hn A. Carlson 

dministrative Law Judge 

1218 
Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

R. Henry Moore, Esq., Rose, Schmiudt, Chapman, Duff & Hasley, 900 

Oliver Building, Pittsburgh, PA 15222-5369 (Certified Mail) 

1219 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 121986 

MARTHA PERANDO, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. YORK 85-12-D 

MSHA case No. MORG CD 85-17 

METTIKI COAL CORPORATION, 

Respondent 

DECISION 

Appearances: Martha Perando, Deer Park, Maryland, pro se: 

Timothy Biddle, Esq., and Lisa B. Rovin, Esq., 

with Susan E. Chetlin, Esq., on the brief, 

Crowell & Moring, Washington, DC, on behalf of 

Respondent. 

Before: Judge Melick 

This case is before me upon the complaint by Martha 

Perando under section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et~, the. 11 Act, 11 

alleging discrimination and discharge by the Mettiki Coal 

Corporation CMettiki) in violation of section 105(c)(l) of 

the Act.~/ 

1/ Section 105(c)(l) of the Act provides as follows: 

- No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

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 representative of miners or applicant for 

employment has instituted or caused to be instituted any 

proceedings 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. 

1220 
In order to establish a prima facie violation of section 

105(c)(l) Ms. Perando must prove by a preponderance of the evidence that she engaged in an activity protected by that section 

and that the discriminatory action taken against her was motivated in any part by that protected activity. Secretary on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(1980), rev'd on other grounds sub nom. Consolidation Coal Co. 

v. Marshall, 663 F.2d 1211 (3d Cir. 1981). See also Boich v. 

FMSHRC, 719 F.2d 194 (6th Cir. 1983) and NLRB v. Transportation 

Management Corporation, 462 U.S. 393 (1983), affirming burden 

of proof allocations similar to those in the Fasula case. A 

miner's "work.refusal" is protected under section 105(c) of the 

Act if the miner has a good faith, reasonable belief in the 

existence of a hazardous condition. Miller v. FMSHRC, 687 F.2d 

194 (7th Cir. 1982); Secretary on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803 {1981). Such a nwork refusal" 

may be based upon a perceived hazard arising from the miner's 

own physical condition or limitations. Bjes v. Consolidation 

Coal Co., 6 FMSHRC 1411, 1417 (1984). 

As noted in the decision denying Mettiki's motion to 

dismiss (8 FMSHRC 364) Ms. Perando first alleges that she 

suffered unlawful discrimination when she was given less pay 

upon her transfer from underground work to surface laboratory 

work after Mettiki officials were informed that she could no 

longer work underground because of a health impairment, 

industrial bronchitis, contracted as a result of her underground work at Mettiki. 

In this case I find that Ms. Perando had indeed contracted industrial bronchitis from her exposure to coal dust 

while working at the Mettiki underground mine beginning 

October 1, 1980. The award to Ms. Perando of Worker's 

Compensation based on this claim is not disputed and the 

medical evidence of record supports this finding. Because of 

this medical impairment, in May 1984 two physicians (Drs. 

James Raver and Karl E. Schwalum> told Mettiki officials and 

Ms. Perando that she could, in effect, no longer work in 

Mettiki's underground coal mine and that she should be placed 

in a job in which she would not be exposed to coal dust. 

More specifically this information was reported in a May 14, 

1984, letter from Dr. Raver to Mettiki personnel manager 

Thomas Gearhart. 

In a subsequent letter dated June 25, 1984, and also 

received by Gearhart, Dr. Raver again concluded that Ms. 

Perando was suffering from industrial bronchitis. He opined 

that it was "moderate to severe and [was] disabling in terms 

of her normal ability to work." Dr. Raver also concluded 

that it "most likely would remain a chronic condition and 

[would] not clear or be 'cured'." 

1221 
As a result of this medical data Mr. Gearhart offered 

Ms. Perando a job transfer to the surface laboratory in 

September 1985. Gearhart then knew that she was unable to 

work underground because of the hazard of coal dust exposure 

to her health. It is not disputed that Ms. Perando accepted 

a transfer to the surface laboratory and began working at 

that job on September 27, 1985, at a reduced rate of pay. 

Whi it is apparent that Ms. Perando never "refused" 

to work underground in the traditional sense, she knew, based 

on the medical evidence, that she should no longer work underground because of the hazard presented to her from coal dust 

exposure and Mettiki knew this too. Thus her medically substantiated inability to work underground was the functional 

equivalent of a work refusal. Since Ms. Perando had been 

apprised by her physicians of her medical condition and of 

the "disabling" consequences of continued underground work, 

her work refusal was also based upon a good faith and reasonable belief in the hazard. 

This refusal was also communicated to the mine operator 

by the doctors' reports to Personnel Manager, Thomas Gearhart. 

Moreover in recognition of the health hazard presented to Ms. 

Perando by underground work and in apparent recognition of 

its obligation to address this danger, Mettiki offered her 

the outside job in the laboratory. See Secretary on behalf 

of Bush v. Union carbide Corp., 5 FMSHRC 993 (1983). 

By reducing Perando's pay in the laboratory however 

(apparently from $520.20 to $383.20 per week), I find that 

Mettiki did in fact unlawfully discriminate against her 

because of her work refusal.2/ Under the circumstances I 

find that Ms. Perando is entTtled to damages amounting to the 

pay differential between her underground job and her laboratory job for the period of her employment in the laboratory. 

Ms. Perando next claims that she was d criminatorily 

charged with unexcused absences because she filed an application for Worker's Compensation. She seeks to have all such 

unexcused absences expunged from her personnel f i The 

·record shows that she had received a copy of the Mettiki 

employee handbook in August 1984 which included a requirement 

for telephoning the mine off ice at least one half hour before 

the employee's work shift when reporting in sick. Perando 

knew that she was therefore required to call the off ice by 

6:30 a.m. on the days that she was reporting sick and 

2/ The fact that Ms. Perando may have failed to formally 

protest this pay reduction to Mettiki officials before filing 

her claim of discrimination under the Act would not constitute 

any consent to, or waiver of, such discrimination. 

1222 
acknowledges that the requirrnent applied equally to all 

employees and not just to her. 

Ms. Perando also admits that there were occasions when 

she failed to call in as required and she does not therefore 

dispute the corresponding unexcused absences. She is not 

however specific in her testimony as to which unexcused 

absences, if any, remain to be challenged. She has no 

independent recollection of, nor adequate corroboration for, 

the dates on which she allegedly tried to call in but was 

unsuccessful and for which she now claims she was charged 

with unexcused absences. Under the circumstances neither the 

allegations nor the evidence is sufficient and her complaint 

in this regard must therefore be dismissed. 

Ms. Perando alleges, lastly, that she was unlawfully 

discharged on March 27, 1985, while off work under a doctor's 

care. As explained at the hearings on Mettiki's Motion to 

Dismiss she is here claiming that she was discharged because 

she had a serious medical condition caused by Mettiki 

(industrial bronchitis) and that she could not and would not 

work because of the hazardous health environment presented in 

the laboratory where she had been transferred from her underground job. This complaint was also construed as a work 

refusal in the face of conditions alleged to be hazardous to 

her health. 

As previously indicated Ms. Perando did indeed contract 

industrial bronchitis from her underground coal mine employment and she was thereafter transferred to the surface performing work in the Mettiki testing laboratory. She claims 

that the laboratory environment, even after the installation 

of a special ventilation hood, was such that her symptoms of 

industrial bronchitis returned with "a lot of pain" and 

"heavy pressure" on her chest accompanied by difficulty in 

breathing. Between January 21, 1985 and the date of her 

termination on March 27, 1985, she admitted being absent from 

2 to 5 days a week. Shortly before her termination Ms. 

Perando told Personnel Manager Gearhart that she did not know 

when she would be able to return to work and that she was not 

then able to work at all. According to Gearhart she was 

thereafter discharged because she had not reported to work 

for a significant period of time. 

The record shows that coal samples are tested in the 

Mettiki laboratory as a quality control measure. According 

to lab supervisor Anne Colaw the moisture, sulfur and ash 

content of the coal is measured in the lab and its "BTU's and 

volatility" are determined. According to Colaw the lab was 

kept clean and, when testing was performed, only about 1 gram 

of coal was tested at any one time and that was tested in an 

enclosed area separated from the area where Ms. Perando was 

assigned before her discharge. 

1223 
The results of dust sampling performed in the laboratory are not disputed. On September 25, 1984, only .4 milligram of respirable dust per cubic meter was found. Subsequent tests performed during regular lab activities on 

October 1, 1984, on samples taken from various parts of the· 

laboratory showed respirable dust ranging from .1 to .3 

milligram per cubic meter. Samples taken from the laboratory 

on March 11, 1985, showed respirable dust ranging from .1 to 

.2 milligram per cubic meter with .4 milligram per cubic 

meter in the area of the hood. It is not disputed that .1 

milligram of respirable dust per cubic meter is equivalent to 

the amount of dust found in the "ambient air" of a normal 

environment. Indeed Ms. Perando concedes that she knew the 

respirable dust levels in the lab were within the "normal 

range." 

Considering that Ms. Perando knew that there were no 

abnormal dust levels in the lab and considering that she had 

the same alleged symptoms of her illness whether or not she 

was working in the lab I cannot conclude that her belief that 

the lab environment was hazardous was either reasonable or 

held in good faith. I note moreover that she continued to 

have the same symptoms even a year after leaving the 

laboratory. 

Her lack of a good faith belief that the lab presented 

a hazardous health environment is also demonstrated by the 

fact that she wore her respirator only part of the time she 

was working. In addition her practices became such that 

co-workers could determine in advance when she would not be 

working a full day by the fact that she would appear on those 

days without her lunch. It may reasonably be inferred from 

this practice that she may have been malingering. Under the 

circumstances I find that Ms. Ferando~s alleged inability to 

work in the lab was not based on either a reasonable or a 

good faith belief in a hazardous condition. Her complaint in 

this regard of discrimination under section 105(c)(l) of the 

Act is accordingly denied. 

The complaint herein is thus granted in part and denied 

in part and further proceedings may be necessary to establish 

corresponding damages, costs and interest. The parties are 

accordingly directed to confer regarding these matters and to 

advise the undersigned on or before August 5, 1986, whether 

further evidentiary hearings will e requir d or whether 

those matters can be stipulated. 

1224 
Distribution: 

Martha Perando, P.O. Box 30~2, Deer Park, MD 21550 (Certified 

Mial) 

Timothy Biddle, Esq., and Lisa B. Rovin, Esq., Crowell & 

Moring, 1100 Connecticut Avenue, N.W., Washington, DC 20036 

(Certified Mail) 

rbg 

1225 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

AUG 131986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 86-67 

A.C. No. 01-01247-03701 

No. 4 Mine 

Appearances: William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, 

for Petitioner; R. Stanley Morrow, Esq., and 

Harold D. Rice, Esq., Birmingham, Alabama, for 

Respondent. 

Before: Judge Merlin 

This case is a petition for the assessment of three civil 

penalties filed by the Secretary of Labor against Jim Walter 

Resources, Inc. 

At the hearing the Solicitor advised that the parties 

proposed to settle the violations for the full assessed amounts 

as follows: Citation 2605565 was issued for a violation of 30 

C.F.R. § 75.517 because the power cable from the scoop charger to 

batteries that were being charged on the 010 section, was not 

insulated adequately and fully protected. The gravity of the 

violation was serious because a miner contacting the bare, 

energized conductors could receive a serious electrical shock. 

In addition, the violation resulted from the operator's 

negligence. The proposed settlement was for the original amount 

of $800. 

Citation No. 2605566 was issued for a violation of 30 C.F.R. 

§ 75.400 because combustible materials were permitted to 

accumulate at a scoop charging station. The gravity of the 

violation was serious, because oil, coal and oil-soaked coal were 

permitted to accumulate on the footwall. Power cables were 

coiled on top of the combustible materials which could have 

provided an ignition source for the accumulation. A fire could 

cause a miner in the area to be exposed to smoke inhalation and 

1226 
other fire hazards. The operator was plainly negligent in 

allowing this condition to occur. The proposed settlement was 

for the original amount of $800. 

Citation No. 2605567 was issued for a violation of 30 

C.F.R. § 75.512 because the scoop charger on the 010 section was 

not maintained in a safe operating condition. The violation was 

serious, because the charger had been hit, causing the control 

panels on each side to be loose, exposing the bare electrical 

components inside the charger. Furthermore, the doors were 

damaged and would not close. A miner contacting the bare 

components could receive a serious electrical shock. The 

operator was negligent because the violation was obvious. The 

proposed settlement was for $800. 

Information was provided regarding the remaining statutory 

criteria set forth in section llO(i). 

As I advised operator's counsel at the hearing, the 

occurrence of three such serious violations on the same day in 

the same mine is a cause for very serious concern. Greater care 

must be taken. If a case such as this involving this operator 

comes before me in the future I will not approve settlements of 

even these substantial amounts because it will then be clear that 

even greater deterrence in the form of higher penalties is 

needed. 

Because the recommended settlements are for substantial 

amounts which appear adequately to effectuate the statutory 

purposes in this instance, said settlements are APPROVED and the 

operator is ORDERED TO PAY $2400 within 30 days from the date of 

this decision. 

Paul Merlin 

Chi Administratiave Law Judge 

1227 
Distribution: 

William Lawson, Esq., U.S. Department of Labor, Office of the 

Solicitor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail} 

Harold D. Rice, Esq., R. Stanley Morrow, Esq., Jim Walter 

Resources, Inc., P.O. Box C-79, Birmingham, AL 35283 

(Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corp., 1500 Dale Mabry Hwy., 

Tampa, FL 33607 (Certified Mail) 

slk 

1228 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 14 1986 

DAN L. THOMPSON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

GILBERT INDUSTRIAL, 

Respondent 

Docket No. WEST 85-77-DM 

MSHA Case No. MD 82-27 

Cyprus Thompson Creek Project 

DECISION DENYING JOINDER 

On July 22, 1986, the Complainant filed with this Commission a request for joinder of the Secretary of Labor as a 

"party-respondent" in this case of discrimination under 

section 105(c) of the Federal Mine Safety and Health Act of 

1977, the "Act," and as grounds therefore stated as follows: 

This matter has been allowed to languish, wrongly, 

for approximately five (5) years. It is only with 

the intervention of the Commission that MSHA has 

even nominally been willing to address their 

statutory responsibility [presumably under section 

105(c)(3) of the Act] to resolve this matter. At 

this juncture, the Complainant simply does not know 

what it is that the Secretary has done to fairly 

investigate and/or assess the underlying Complaint 

hereino Without the inclusion of the Sec~etary, so 

as to be subject to service of process? can the 

Complainant fully present the facts of this matter 

to the Commissiono 

FEDo R. CIV. P. 19{a) applicable hereto by virtue of 

Commission Rule l(b)q 29 C.F.R. § 2700.l(b), provides in 

relevant part as followsg 

A person who is subject to service of process and 

whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall 

be joined as a party in the action if Cl) in his 

absence complete relief can not be accorded among 

those already partiesr or (2) he claims an interest 

relating to the subject of the action and is so 

situated that the disposition if the action in his 

absence may Ci) as a pratical matter impare or 

impede his ability to protect an interest or Cii) 

leave any of the persons already a party subject to 

a substantial risk of incurring double, multiple, 

or otherwise inconsistent obligations by reason of 

1229 
his claimed interest. If he has not been so joined 

the court shall that he be made a party • • • • 

The Secretary opposes joinder arguing that there are no 

circumstances under which the exercise of his discretionary 

function under section 105(c)(3) can constitute discrimination 

under section 105{c).~/ Roland v. Secretary of Labor, 7 FMSHRC 

630 (1985), aff'd Roland v. Federal Mine Safety and Health 

Review Commission et al., No. 85-1828 (10th Cir. July 14, 1986). 

Under the present status of law the Secretary's position must 

prevail. Under these decisions review of the Secretary's 

exercise of this function is not permitted regardless of how 

wrong, negligent or improperly motivated it might be. Accordingly this Commission could not in any event provide the relief 

sought by the Complainant against the Secre ary. There is 

therefore no basis for the joinder of the s retary in this 

proceeding. Under the circumstances the Mot on for Joinder of 

the Secretary as a party-resp nde t is denie • , 

Distribution: 

W. Craig James, Esq., Skinner, Fawcett & Mauk, 515 South 

Sixth Street, P.O. Box 700, Boise, Idaho 83701 (Certified 

Mail) 

Ronald F. Sysakv Esq.v Prince, Yeates & Geldzahler, Third 

Floor Mony Plaza, 424 East Fifth South, Salt Lake City, Utah 

84111. (Certified Mail) 

Frederick Moncrief, Esq., U.S. Department of Labor, Office of 

the Solicitor, Suite 400, 4015 Wilson Blvd., Arlington, VA 

22203 (Certified Mail) 

!7 Section 105(c}(3) of the Act provides in part as follows: 

"Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in writing, 

the miner, applicant for employment, or representative of 

miners of his determination whether a violation has occurred. 

If the Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, the 

complainant shall have the right, within 30 days of notice of 

the Secretary's determination, to file an action in his own 

behalf before the Commission, charging discrimination or 

interference in.violation of paragraph Cl}. 

rbg 

1230 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE AUG i 4 1986 FALLS CHURCH, VIRGINIA 22041 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-46-R 

Citation No. 2703324; 10-16-85 

Docket No. WEVA 86-98-R 

Citation No. 2703528; 1-13-86 

Docket No. WEVA 86-104-R 

Citation No. 2704403; 1-22-86 

Docket No. WEVA 86-105-R 

Citation No. 2704404; 1-22-86 

Docket No. WEVA 86-106-R 

Citation No. 2704405; 1~22-86 

Docket No. WEVA 86-107-R 

Citation No. 2704406; 1-22-86 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 86-51 

A.C. No. 46-03805-03688 

Docket No. WEVA 86-133 

A.C. No. 46-03805-03707 

Docket No. WEVA 86-134 

A.C. No. 46-03805-03708 

Docket No. WEVA 86-199 

A.C. No. 46-03805-03712 

Martinka No. 1 Mine 

DECISION 

Appearances: Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA, for 

Respondent/Petitioner; 

David A. Laing, Esq., and Marks. Stemm, Esq., 

· Southern Ohio Coal :::orapafiy, Columbus, OH, for 

Contestant/Respondent 

Before: Judge Fauver 

1231 
These consolidated proceedings are contests filed by 

Southern Ohio coal Company, under section 105(d) of the 

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

et seq., to review six citations issued by the Secretary of 

Lab~and tions by the Secretary, under section llO(i) 

the Act, for civil penal s for the violations alleged 

in the six citations. 

The basic issue is whether water pumps specified in the 

citations are "permanent pumps" within the meaning of 30 

C.F.R. § 75.1105. If they are permanent pumps, the s 

standard requires that they be contained in fireproof housing 

and that they be air-vented into a return entry of the mine. 

It is acknowledged that they were not so housed and vented 

at the time the citations were issued. Other issues raised 

are: 

1. Whether the reference to "permanent pumps" 

30 C.F.R. § 75.1105 is unconstitutional 

2. Whether MSHA's actions with respect to 

interpretation and enforcement of 30 C.F.R. 

§ 75.1105 have denied SOCCO due process. 

3. Whether the water pump violations, if any, 

were "significant and substantial" within 

the meaning of§ 104(d) of the Act. 

vague. 

Having considered the evidence and the record as a 

whole, I find that a preponderance of the substantial, 

reliable and probative evidence establishes the following: 

FINDINGS OF FACT 

1. Citation No. 2703324 was issued October 16, 1985, 

when MSHA Inspector John Paul Phillips observed that the air 

current used to late a booster pump was not vented 

directly into the return. The pump was a 20 Horsepower T & 

T fresh water pump located at the No. 9 stopping inby. The 

pump was reasonably expected to be in s location at st 

one year. 

2. Citation No. 2703528 was issued January 13, 1986, 

when Inspector Phillips observed a gathering pump was 

not housed in a fireproof enclosure or area with the air 

current coursed direc into the return. The pump was a 10 

Horsepower T & T 250 volt direct current pump located at No. 

9 stopping in the track heading of the No. 13 ft section. 

The pump had been in this location about a ar and a half. 

1232 
3. Citation No. 2704403 was issued January 22, 1986, 

when he observed that a booster pump was not housed in a 

fireproof structure and the air current used to ventilate 

the pump was not coursed directly into the return. The pump 

was a 20 Horsepower T & T water pump located at No. 6 

stopping. The pump had been in this location at least one 

4. Citation No. 2704404 was issued January 22, 1986, 

when he observed that a gathering pump was not housed in a 

fireproof structure with the air current coursed directly 

into the return. The pump was a 10 Horsepower T & T direct 

current pump located at No. 50 Block, 1 East Track. The 

pump had been in this location for about three to five 

years. 

5. Citation No. 2704405 was issued January 22, 1986, 

when he observed a gathering pump not installed in a fireproof 

area with current vented directly into the return. 

The pump was a 10 Horsepower T & T direct current pump 

located at the No. 9 stopping in the No. 3 Butt Section. 

The pump had been in this location at least one year. 

6. Citation No. 2704406 was issued January 22, 1986, 

when he observed a gathering pump not housed in a fireproof 

structure with the air current vented directly into the 

return. pump was a 10 Horsepower T & T pump located at 

No. 21 stopping in the No. 3 Butt Section. The pump had 

been in this location for at least one year. 

7o None of the pumps cited was in a working section. 

Nor did the pumps advance with any working section. 

8. Given the length of time at each location, and each 

pump's function and expected use, long-term installation and 

use of each pump were clear established by the evidence. 

Booster 

9. The function of a booster pump is to boost 

water pressure at the working faces in the working sections 

inby the pump. There are 10 booster pumps in the mine. At 

time of hearing, all were located in the track haulage 

entry outby the working sections. Booster pumps generally 

stay in the same location until the sections served by them 

are driven up and led back on retreat. They are usually 

in the same place at least one year. 

1233 
Gathering Pumps 

10. The function of a gathering (or "dewatering"} pump 

is to pump water from local swags along the track or in the 

intake entry, and discharge the water into the main reservoir 

or into a main sump area. There are 39 gathering pumps at 

the mine. At the time hearing, each was located in the 

track entry, outby the working sections. A gathering pump 

usually stays in the same place until an inby section is 

driven up and the longwall goes in and retreats to the area 

where the pump is located; then the pump is moved. They 

usua stay in the same place for at least one year. 

DISCUSSION WITH FURTHER FINDINGS 

The essential facts are not in dispute. Inspector John 

Paul Phillips, an electrical inspector out MSHA's Morgantown, 

West Virginia, District , began an electrical inspection 

at Martinka in October, 1985. Inspector Phillips issued six 

§ 104(a} citations for violations of 30 C.F.R. § 1105 between 

October 16, 1985, and January 22, 1986. 

Inspector Phillips issued Citation Nos. 2703324 and 

2704403 when he observed that two 20 Horsepower fresh water 

"booster" pumps were not housed in fireproof structures and 

the currents used to ventilate the pumps were not coursed 

direc into the return. Citation Nos. 270328, 2704404, 

2704405, and 2704406 were issued when he observed that four 

10 Horsepower "gathering" pumps were not housed in fireproof 

structures and air currents ventilating the pumps were not 

coursed directly into the return. None of the pumps involved 

in these citations was located in a working section. Nor 

did the pumps advance with any working section. 

1234 
Regular inspections of the Martinka Mine are performed 

by MSHA inspectors out of the Subdistrict Office in Fairmont, 

West Virginia, which operates under the direction of the 

Morgantown District Office. After several of the citations 

involved here were issued, it became apparent that a difference 

in policy existed between the District and the Subdistrict 

Offices regarding the citation of permanent pumps for a 

violation of § 1105. At least one inspector from the Fairmont 

Office, Charles Thomas, who was the regular inspector at 

Martinka, operated under a "visibility standard" in citing 

permanent pumps for § 1105 violations. Under this approach, 

pumps located in frequently traveled areas or in track 

haulage entries were not cited for violations of § 1105. 

Permanent pumps in more isolated areas were cited. 

Inspector Thomas' approach was at odds with District 

and National Office policy, which subjects all pumps to § 1105 

requirements if they meet the definition of a "permanent" 

electrical installation as contained in the following part 

of MSHA's Underground Inspection Manual p. II-471 (March 9, 

19 7 8) : 

POLICY 

A permanent electrical installation is electric 

equipment that is expected to remain in place 

for a relatively long or indefinite period of 

time. 

Consequently, the following electric equipment 

should be considered permanently installed: 

All rectifiers, transformers, highvoltage switchgear and battery 

chargers which are not located on 

and advanced with the working 

section; rotary converters; motorgenerator sets; belt drivers; compressors; pumps (except those excluded below) and other similar units 

of electric equipment. 

The following electric equipment should not 

be considered permanently installed: 

1235 
Electric equipment which is located on 

and advanced with the working section, 

self-propelled electric equipment, portable pumps and portable rock dusters--

which are regularly moved from one location in the mine to another, and similar 

electric equipment. (Emphasis supplied.) 

All of the cited pumps meet the Manual definition of a 

permanent installation. They were not located in working 

sections and did not advance with working sections. They 

did not regularly move from one location in the mine to 

another. When installed they were expected to remain in 

place for a relatively long or indefinite period. 

The citations allege a violation of 30 C.F.R. § 75.1105, 

which is a verbatim restatement of § 3ll(c) of the Act: 

Underground transformer stations, batterycharging stations, substations, compressor 

stations, shops and permanent pumps shall be 

housed in fireproof structures or areas. Air 

currents used to ventilate structures or areas 

enclosing electrical installations shall be coursed 

directly into the return. Other underground 

structures installed in a coal mine as the 

Secretary may prescribe shall be of fire-proof 

construction. (Emphasis supplied.) 

The term "permanent pump" is not specifically defined 

in the Act or Regulation. Section 3ll(c) of the Act.and§ 

1105 of the Regulations were contained in the earlier Act of 

1969. Permanent pumps were not specifically defined there 

either. Neither legislative history nor case law is helpful 

on the issue of what constitutes a permanent pump. It is 

clear, however, that the purpose of § 1105 is to protect 

miners against fire and smoke inhalation. It is part of a 

larger section dealing with fire protection in coal mines. 

This purpose coupled with the broad language of the standard 

leads to the conclusion that the standard is meant to have a 

broad reach to effectuate the purposes of the standard and 

the Act. 

1236 
MSHA has interpreted the term "permanent pump" to mean 

a pump that is expected to remain in place for a relatively 

long or indefinite period of time. This definition is 

contained in the MSHA Underground Manual quoted above. The 

Manual has been in effect since its publication in March 

1978. 

Respondent contends that use of the term "permanent 

pump" in the standard is unconstitutionally vague and overbroad. 

In order to be constitutional, a standard must not be "so 

incomplete, vague, indefinite or uncertain that men of 

common intelligence must necessarily guess at its meaning 

and differ as to its application." Connolly v. Gerald Constr. Co., 

269 U.S. 385, 391 (1926). Rather, "Laws [must] give the 

person of ordinary intelligence a reasonable opportunity to 

know what is prohibited, so that he may act accordingly." 

Grayned v. City of Rockford, 408 U.S. 109 (1972). 

A standard is not unenforceably vague if a reasonably 

prudent person familiar with the mining industry and protective 

purposes of the standard would recognize the hazardous 

condition which the standard seeks to prevent. Secretary v. 

Ozark-Mahoning Co., 3 FMSHRC 2117, 2118 (1986); Secretary v. 

U.S. Steel, 3 FMSHRC 1550, 1533 (1984). "Broadness is not 

always a fatal defect in a safety and health standard." 

Secretary v. Alabama By-Products Corp., 2 FMSHRC 1918, 1920 

(1982) Many standards must be drafted in general terms "to 

be broadly adaptable to myrad circumstances" in a mine. 

Secretary v. Kerr-McGee Corp., 2 FMSHRC 1492, 1493 (1981). 

In two cases involving a safety belt standard, the 

Commission rejected the operators' arguments that 30 C.F.R. 

§ 55.15-5 was unconstitutionally vague and ambiguous. 

Secretary v. U.S Steel, 3 FMSHARC 1550 (1984); Secretary v. 

Great Western Electric, 2 FMSHRC 2121 (1983). That standard 

requires that safety belts and lines be worn by miners where 

there is a "danger of falling." The operators objected on 

the grounds that the standard's phrase "danger of falling" 

was too vague and ambiguous to enable an operator to define 

all situations where belts and lines must be worn. The 

Commission ruled, however, that application of a. broad 

standard to particular factual situations did not offend due 

process. Sufficient clarity may be provided if an alleged 

violation is judged by a test of what actions would have 

been taken under the same or similar circumstances by a 

1237 
reasonably prudent person famil with the mining industry, 

relevant facts, and protective purpose of the standard. 3 

FMSHRC at 1553; 2 FMSHRC at 2122. The Commission noted that 

the specific purpose of § 57.15-5 is the prevention of 

falls. It ruled that by requiring positive means protection 

whenever any danger of falling sts, the standard reasonably 

achieved its e of protecting all miners. Applying 

this rationale to the instant cases, I conclude that it is 

reasonable to § 75.1105 to a booster or gathering pump 

expected to remain in place for a long or an indefinite 

period outby a working section or sections. 

Respondent further argues that the Manual definition of 

"permanent" the Administrative Procedure Act (5 

u.s.c. § 553). Section lOl(a) the 1977 Mine Act (30 

u.s.c. § 8ll(a)) requires all concerning mandatory 

health or safety standards to be promulgated in accordance 

with§ 553 of the A.P.A. Further, § lOl(a) (2) requires the 

Secretary to publish in the Federal Register any 11 proposed 

promulgating, modifying, or revoking a mandatory health 

or safety standard" and to permit public comment on the 

proposed regulation. Therefore, there would be a violation 

of the A.P.A. if the Manual policy were more than an interpretation 

or general statement of policy. However, I find that the Manual 

inition is a general policy statement of MSHA's interpretation 

of "permanent." It is not subject to the A.P.A. 's notice 

and comment requirements. 

Respondent also contends that the conflicting enforcement 

licies of MSHA 1 s strict (Morgantown) and Subdistrict 

(Fairmont) Offices will result a denial of due process if 

MSHA is permi to charge a vio on in these cases. 

It is c 

policy to follow 

installations 

11 permanent." 

strict Office, 

Electrical 

Fuller, Safety 

testified that 

the record that it is MSHA's official 

the Manual def of permanent electrical 

determining whether a particular pump is 

s approach is llowed by the Morgantown 

as stated by In John Paul llips 

sor Mike In addition, Gene 

alist from MSHA National 

s is a nationwide enforcement 

38 
The fact that the Subdistrict Office in Fairmont may 

have had a less stringent enforcement policy for some period 

does not estop the Secretary from enforcing the Manual 

definition in these cases. Respondent has had a copy of 

the 1978 Manual for many years. It was put on notice by 

Inspector Phillips' discussion and subsequent citations in 

September, 1985, that the Manual definition would be enforced 

at Respondent's mine. The citations at issue in these cases 

were issued a month after such notice by Inspector Phillips. 

The policy previously applied by the Fairmont Subdistrict 

Off ice was unauthorized and was contrary to national policy 

as shown by the Manual, which provides that "The guidelines 

in this chapter supersede all previous instructions as of 

February 1, 1978, relating to the same subject category." 

The tuation was corrected by the District manager upon 

learning of the conflict. All subdistrict supervisors and 

personnel have been brought into line with National Office 

policy. 

In Secretary of Labor v. King Knob Coal Company, Inc., 

3 FMSHRC 1417, 1422 (1981), the Commission stated: 

•.. [An] estoppel defense would be inconsistent 

with the liability without fault structure of 

the 1977 Mine Act. See El Paso Rock Quarries, 

Inc., 3 FMSHRC 35, 38-39 (1981). Such a defense 

really a claim that although a violation 

occurred, the operator was not to blame for it. 

Furthermore, under the 1977 Mine Act, an 

equitable consideration, such as the confusion 

engendered by conflicting MSHA pronouncements, 

can be appropriately weighed in determining 

the penalty ..•• 

Even in those cases where the courts have recognized an 

estoppel defense, it has been held that estoppel does not 

apply "if the government's misconduct [does not] threaten to 

work serious injustice and if the public's interest would ... be 

unduly damaged by the imposition of estoppel." King Knob, 3 

FMSHRC at 1422, quoting United States v. Lazy F.C. Ranch, 

481 F.2d, 985, 989 (9th Cir. 1973). In view of the availability 

of penal mitigation as an avenue of equitable relief, 

finding an operator liable would not work such a "profound 

and unconscionable injury" that estoppel should be invoked. 

King Knob, 3 FMSHRC at 1422. 

In order to be considered a ''significant and substantial" 

violation, it must be found that: 

1239 
••• 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 a reasonably serious nature. 

Secretary v. Cement Division, National Gypsum Co., 

3 FMSHRC 822, 981). 

Under this test, a ''significant and substantial" finding 

turns on whether a reasonable likelihood of harm exists due 

to the violation. The inspector issued the citations when 

he observed that the pumps were not hous in fireproof 

structures with the air currents vented directly into the 

return. All six pumps were in working order and had energized 

circuits at the time the condition was c The inspector 

fied that any the equipment could wear out, motors 

could fail or short circuit. Events of this nature could 

happen with electrical equipment after any length of time. 

He stated that if a pump got hot, it could ignite the coal 

or combustible materials around it. He also stated that 

in s opinion, "even smoke from insulation in the pump, 

when they fail, could ignite or cause fumes that would be 

harmful to employees" (Tr. 30). 

MSHA Electrical Supervisor Hall also testified as to 

similar hazards presented by failing to house and vent the 

pumps. 

The Commission ized in National Gypsum that 

tor's "independent judgment is an important element 

making 'significant and substantial' findings, which should 

not be circumvented." 3 FMSHRC at 82 826. The inspector's 

conclusions in this case were based on his observations of 

unhoused and unvented pumps and the number of employees who 

would have been af by fire or smoke moving into the 

working sections. The inspector made a careful assessment 

of the conditions he observed and concluded that the hazard 

was reasonably e or reasonably likely. I t 

his expert opinion on these matters, and find that the 

violations were ''significant and substantial" within the 

meaning of section 104(d) of the Act. 
In assessing civil penalties, I give substantial weight 

to the confusion created by MSHA's inconsistent enforcement 

policies at its Morgantown District and Fairmont Subdistrict 

Offices. I find this to be a substantial mitigation of the 

violations, and conclude that a civil penalty of $10 for each 

violation is appropriate. 

CONCLUSIONS OF LAW 

1. The Conunission's administrative law judge has 

jurisdiction in this proceeding. 

2. Respondent violated 30 C;F.R. § 75.1105 as alleged 

in Citations Nos. 2703324, 2703528, 2704403, 2704404, 2704405, 

and 2704406. 

3. Respondent is ASSESSED a civil penalty of $10 for 

each of the above six violations. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citations Nos. 2703324, 2703528, 2704403, 2704404, 

2704405, and 2704406 are AFFIRMED. 

2. Respondent shall pay the above civil penalties in 

the total amount of $60 within 30 days of this decision. 

Distribution: 

CJ~ ~V-e/\_. William Fauver 

Administrative Law Judge 

David A. Laing, Esq., Alexander, Ebinger, Fisher McAlister & 

Lawrence, 1 Riverside Plaza, 25th Floor, Columbus, OH 43215-

2388 (Certified Mail) 

Matthew J. Rieder, Esq., and Susan M. Jordon, Esq., Office 

of the Solicitor, U.S. Department of Labor, Room 14480 

Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

kg 

1241 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6220 

AUG 191986 

FRED O. W. ARNTZ, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. SE 86-47-DM 

v. 

METRIC CONSTRUCTORS, INC., 

Respondent 

MD 85-56 

ORDER OF DISMISSAL 

Judge Broderick 

On August 14, 1986, Complainant fil a motion to dismiss 

this proceeding because of a settlement his discrimination 

complaint against Respondent for the payment to Complainant 

of $3500. 

Therefore, it is ORDERED that the motion is GRANTED, this 

proceeding is DISMISSED and the hearing scheduled for August 25, 

1986 is CANCELLED. 

Distribution: 

Ronald S. Webster, Esq., Whittaker, 

P.O. Box 531126, Orlando, FL 32853 ( 

Webster, P.A., 

Mail) 

Dwane E. Vickstrom, Esq., The Jones , One South Executive 

Park, 6060 St. Albans St., Charlotte, NC 28287 (Certified Mail) 

Mr. Fred O. w. Arntz, 4292 Azora Road, Springhill, FL 33526 

( Mail) 

slk 

1242 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 211986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BROWN BROTHERS SAND COMPANY, 

Respondent 

DECISION 

Docket No. SE 86-12-M 

A. C. No. 09-00265-05505 

Junction City Mine 

Appearances: Ken S. Welsch, Esq., Office of the Solicitor, 

U. S. Department of Labor, Atlanta, Georgia, 

for the Petitioner 

Before: 

Messrs Carl Brown, Steve Brown, and Greg 

Brown, Howard, Georgia, for the Respondent 

Judge Kennedy 

This matter came on for a hearing in Columbus, Georgia 

in June 1986. The parties' stipulations as to jurisdiction, 

size, prior violations, ability to pay, and abatement are a 

part of the record. Four of the seven violations charged 

were cited for insignificant and insubstantial conditions. 

At the conclusion of the presentation of evidence as to each 

violation the trial judge entered a tentative bench decision. 

As a result five of the seven violations were dismissed, 

including one S&S violation. Of the two remaining violations 

one was reduced from S&S to non-S&S and the other was 

affirmed. 

After receipt of the transcript the parties were afforded 

an opportunity to file post-hearing briefs challenging the 

tentative bench decisions. 

Based on a review of the evidence in the record considered as a whole, I find each of the tentative decisions 

should be, and hereby is, CONFIRMED for the reasons set forth 

in the transcript and as supplemented below. 

Citation No. 2007655 

On July 19, 1985, the windshield on a John Deere 644-B 

front-end loader was cited for a non-S&S violation of 30 CFR 

1243 
56.9-11 at respondent's sand mine in Junction City, Georgia. 

This mandatory standard requires the safety glass in cab 

windows be in "good condition." Inspector Mattson's 104(a) 

citation alleged the windshield was "broken and spider-webbed 

cracked right through the windshield from top to botton." 

Elaborating in response to questions from the bench, the 

inspector testified that the windshield measured 34 by about 

36 inches; that the "entire windshield," some 1,224 square 

inches, was spider-webbed cracked on both sides starting from 

the upper left corner, which had a hole in it, and spreading 

throughout the windshield down to the "weather seal" at the 

bottom. The inspector said the condition of the windshield 

made 11 vision--visibility bad for the operator, especially 

when he got glare from the sun." 

The inspector testified he understood the requirement 

that the safety glass be in "good condition" to mean that it 

"be free of cracks and broken glass •.• and kept clean." 

As far as the hole was concerned he felt that was not a 

"problem" but that the spider-web cracks were because they 

obstructed the operator's vision. Despite this, the 

inspector did not consider the condition hazardous because it 

was a 11 small operation, and there's very little foot traffic 

around, and what he's doing is doing clean-up work and 

loading trucks." The inspector said that in his judgment, 

the likelihood of injury to an employee was "minor" and 

"remote." 

In response to further questions from the bench, the 

inspector said that he considers a windshield to be in "good 

condition" if "you have little cracks in the corner and so 

forth that doesn't obstruct the vision" and in "excellent" 

condition if it has "no cracks at all and it be kept clean 

and no cracks or no cloudiness from the sun from age." The 

inspector said he felt this windshield was below par for 

"good" because the spider-web cracks throughout the glass 

obstructed vision and created "eyestrain" and "glare" from 

the reflection of light through the cracked glass. 

The inspector's description was at almost totally 

variance with the facts. At the time the inspector testified 

neither he nor his lawyer knew the operator had a picture of 

the windshield in question taken shortly after the citation 

was written and before it was replaced. He was shown this 

picture on cross examination but said he could not identify 

it because it did not show a "hole" in the "upper left 

corner." In its rebuttal case, the operator conclusively 

established that the picture of the windshield in the 644-B 

loader COX-6) had no "hole" in the "upper left corner," in 

fact it had no hole at all. The picture also shows that the 

windshield was not cracked with spider-webs from top to 

bottom. There were only two large cracks that extended from 

the point of impact at about the center line of the glass 
through the operator's line of vision and to the side or 

bottom of the glass. In addition, there were eight to ten 

hairline cracks radiating from the point of impact but no 

broken glass. 

Mr. Gregg Brown, the foreman, who took the photograph 

testified he was very familiar with the 644-B loader; that 

the crack on that glass was "right in the middle of the 

windshield" but that there was no "hole" in the windshield; 

that the windshield was not cracked through and that when 

seated in the vehicle the large crack "in the middle" was 

above the operator's line of vision. He further testified 

that if the crack had obstructed the operator's line of 

vision he would have replaced it. Mr. Lucas, a loader operator, testified the cracks in the glass did not interfere with 

his operation of the machine. 

Despite the fact that all the witnesses agreed that whatever impairment of vision existed did not make operation of 

the loader unsafe, the Solicitor argued and continues to 

argue that the "slightest impairment of vision" means the 

glass is not in "good condition" and constitutes per se a 

non-S&S violation. In his post-hearing brief, the Solicitor 

also asserts that "good condition" clearly implies an 

unbroken window. Since the undisputed evidence from the 

photograph (OX-6) and the testimony of the operator's witnesses conclusively show that the windshield in the 644-B 

loader, while cracked, was not "broken," the Solicitor's 

argument is obviously fatally flawed. 

I find that as properly interpreted the standard was 

intended to promote safety not the sale of safety glass. 

Since the hazard against which the standard was directed, 

likelihood of injury to the loader operator or foot traffic, 

did not exist, I conclude the condition of this windshield 

was "good" and that the violation charged did not, therefore, 

occur. 

Citation No. 2521743 

On the same date as the previous citation a John Deere 

644-C front-end loader was also cited for a non-S&S violation 

of 30 CFR 56.9 1. Inspector Grabner's 104(a) citation 

charged the windshield was "broken 'spider-web crack.'" In 

his testimony he described the windshield as "spider-webbed 

cracked the entire length of the windshield, from side to 

side, and from height to width." He further testified that 

the loader was being used to "push material into the surge 

pile" and to "clean up and load trucks." He said it was his 

observation that the "visibility of the operator to see 

through was obstructed by the number of cracks that ran the 

1245 
length and width of the windshield." He said the citation 

was for a violation considered insignificant and insubstantial because "I didn't feel that ••• the operator's vision 

was impaired as far as being able to see out the windshield 

clearly •.. In other words it was not much exposure to foot 

traffic in the area of people around it." When shown the two 

photos of the windshields (OX-5 and OX-6) on cross examination, the inspector could not identify the windshield he was 

testifying about. 

In response to questions from the bench, the inspector 

contradicted his earlier testimony and said that while the 

condition of the windshield did not make it unsafe to operate 

the loader, "the condition of the windshield made it difficult for the operator to have goodi clear vision out the 

front of the machine." Nevertheless, the inspector affirmed 

that "even with the amount of spider-webbing we had here," he 

did not consider it unsafe to operate the loader. 

Once again it was difficult to credit the inspector's 

description of the condition because the contemporaneous 

photograph of the windshield, made within a month after the 

citation was written, shows the only cracking or spiderwebbing was in the upper left quadrant and that there was no 

cracking or spider-webbing in the lower half of the windshield (OX-5). Mr. Gregg Brown, who took the photo, testified 

the picture showed essentially the same condition that existed 

on July 19 and that "it didn't continue to shoot spider 

cracks every which-a-way, no sir. It reached certain--say 

side to side, and then it stopped." He further testified 

that ter impact the glass did not shatter, that there was 

no broken glass, and that there was no "hole in either one of 

the windshields." 

Mr. Gregg Brown, the operator's foreman and a part owner 

of the business, said it was the operator's policy to replace 

any windshield that had been hit and cracked in the middle so 

as to obstruct the operator's line of vision. Mr. Brown said 

he did not consider the 644-C windshield needed replacing 

because "There's still fifty percent or more of that windshield that is not obstructed, and I did not feel that his 

line of vision was impaired." On cross examination, Mr. Brown 

pointed out that while the vision of an operator who had to 

look through the upper left quadrant to load a truck might 

have some impairment there was a side window through which he 

could also look to align his vehicle. He also said the 

loaders were seldom used to load the trucks as they usually 

loaded off the conveyor belt. 

Counsel for the Secretary argued that the test he applied 

to determine whether there was a violation was whether there 

was "even the slightest impairment" and not whether the condition created a hazard to the operator or miners working on 

1246 
foot around the area. Later he argued that "'good condition• 

means the windshield should not have any cracks in it whatsoever; otherwise ••• you could purchase and install cracked 

windshields in any vehicle." In his post-hearing brief, 

counsel argues that "Visibility should not be considered 

relevant in establishing a violation." Needless to say, this 

extreme contention was contradicted by the testimony of both 

inspectors as well as the operator's witnesses. 

Since I cannot agree that the standard "good, 11 a comparative term, can properly be interpreted as "perfect" or that a 

de minimis likelihood of injury mandates the compulsory 

replacement of windshields with insignificant cracks I must 

once again reject the solicitor's interpretation and find the 

violation charged did not, in fact, occur. 

Citation Nos. 2521413 and 2521414 

On September 4, 1985, two inspectors returned to the 

operator's plant to check on the abatement of the windshield 

violations and to continue the regular inspection begun in 

July. At that time Inspector Manis wrote two 104(a) 

citations, the first being non-S&S and the second S&S. 

The citations charged a violation of the guarding standard, 30 CFR 56.12-23. More specifically, they charged that 

at the No. 2 and 3 pumps there were four unguarded openings 

that exposed uninsulated inter electrical parts carrying 220 

volts to possible contact. (Exhibits lA, B, C, and D; 3A, B, 

C, and D; PX-6 and 8). It was further alleged that these 

openings were not guarded by location and that at the No. 2 

pump the area was wet and an operator was in the area. These 

charges collapsed when the operator produced a vido tape, 

witnesses and expert testimony which showed that there was no 

electrical voltage in the connections cited within six to 

eight seconds after the motors were started. (Tr. 112-113, 

167). 

Since there was no recognizable electrical shock hazard, 

I found the violations did not, in fact, occur. In his posthearing brief, counsel appears to concede this but claims the 

issue now to be decided is "whether the openings were 

protected by location." Since I find there was no hazard to 

be guarded against, I also find the question of whether the 

openings were guarded by location is moot. 

Citation No. 2521467 

During the inspection of September 4, 1985, Inspector 

Grabner observed that a grounding wire for the control panel 

for the pole mounted 220 volt electrical disconnect switch 

for the shaker had been pulled lose from the earth grounding 

rod. In the absence of a ground, the condition created a 

1247 
potential shock hazard to the shaker operator. For this 

condition, the inspector wrote a section 104(a), S&S citation 

charging a violation of 30 CFR 56.12-25. The violation was 

considered S&S because the operator had to turn the switch 

off and on several times a day. 

Respondent did not deny that the condition alleged 

existed but attempted to show there was another power ground 

that went back to the substation through an underground cable. 

The only photograph of the location, however, clearly showed 

only three, not four, wires coming from the substation 

(PX-10). In the absence of a showing that a power ground 

wire was connected to the disconnect switch, I found this 

violation did, in fact, occur and that it was significant and 

substantial. The gravity was, of course, serious but negligence was only modest. After considering the other criteria, 

I found, and affirm, that the amount of the penalty warranted 

is that proposed, namely, $126. 

Citation No. 2521468 

On September 4, 1985, Inspector Grabner also observed a 

single unguarded 110 volt incandescent light bulb in the 

surge tunnel. usually, the tunnel was lit by florescent 

lighting located above the conveyor belt. The light bulb was 

temporary until the florescent lighting in the area. could be 

repaired. The tunnel was about 5 feet, 6 inches high and the 

light bulb was suspended approximately 5 feet, 3 inches above 

the walkway. Miners passing through the tunnel would have to 

bend forward to walk through the tunnel and under or around 

the light bulb. The inspector wrote a 104Ca), S&S citation 

charging a violation of 30 CFR 56.12-34 for failure to guard 

the light bulb. The inspector considered the violation S&S 

because he belived that the bulb could easily be struck by 

miners traveling the area and that such contact could 

possibly have caused "burns, shock or cuts from broken glass." 

A penalty of $126 was proposed. 

There was no dispute about the existence of the condition charged. Respondent offered a video tape of the area 

which lent support to its argument that the bulb was located 

to the side of the walkway, not directly above it. I found a 

preponderance of the evidence showed the bulb was in suff iciently close proximity to the walkway that it could be 

struck by an individual passing through but that the likelihood of a burn, shock or cut from broken glass was so remote, 

speculative, and unlikely that the S&S finding must be 

vacated. This was predicated on the fact that miners passing 

through the area would be wearing hard hats and sufficient 

1248 
clothing including protective clothing such as glasses and 

gloves to protect them from burns or cuts and that it would 

be most unlikely for anyone to grab the exposed filament of a 

broken light bulb, assuming, without deciding, that such a 

contact might result in an electrical shock. 

Accordingly, I affirm my finding that the violation 

charged did, in fact, occur, that it was not serious, that 

the negligence was slight and that, after considering the 

other criteria, the amount of the penalty warranted should be 

reduced from $126 to $10. 

itation No. 25214 9 

While Inspector Manis was writing his citation for the 

alleged failure to guard the electrical connections on the 

No. 3 pump motor, Inspector Grabner wrote his third citation 

of the day. This stemmed from his observation of an alleged 

unguarded keyway on a 10 1/2 inch long shaft that protruded 

from the No. 3 motor some 43 inches off the motor platform. 

It was not claimed that the shaft itself was a hazard but 

that the keyway which was cut into the shaft to some unspecified depth might, because it was rusted and rough, catch or 

entangle someone's clothing and possibly strang them 

(PX-13). Because this was unlikely Inspector Grabner wrote 

only a 104(a}, non-S&S citation for which a $20 penalty was 

proposed. 

The evidence showed that because of its location the 

likelihood of anyone coming into contact with the keyway 

while the motor was running was extremely remote, if not 

entirely speculative. Only a maintenance man regularly went 

near the shaft and then only when the motor was turned off. 

Anyone else wishing to approach the shaft would have to climb 

an 8 to 10 foot high stairway, step over a large discharge 

pipe, and other obstacles and make several sharp turns to 

even get near it. Even so there was no pinch point and the 

likelihood of a piece of clothing from a man's waist or neck 

becoming so entangled in the open keyway in such a way as to 

inflict an injury, let alone strangulation, was so 

inexplicable as to defy description or belief. In fact, the 

inspector admitted he found the violation to be non-S&S 

because it was unlikely to cause injury to anyone (Tr. 239). 

For these reasons, I found the violation charged did not, in 

fact, occur. I see no reason to change that determination. 

The premises considered, therefore, it is ORDERED: 

1. That for the two violations found the operator 

pay a penalty of $136 on or before Friday, 

September 19, 1986. 

1249 
2. That as to the othe five violations the 

petition for asses m nt of civil penalties be, 

and hereby is, DI M SED. 

oseph B. Kennedy 

Administrative Law 

Distribution: 

Ken Welsch, Esq., Office of the Solicitor, u. s. Department 

of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA 

30367 (Certified Mail) 

Mr. Carl Brown, Brown Brothers Sand Company, P. O. Box 32, 

Howard, GA 31039 (Certified Mail) 

dcp 

1250 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 2 61986 

FRANK McCOART, DISCRIMINATION PROCEEDING 

Complainant 

v. 

Docket No. KENT 86-63-D 

CD 86-05 

ELM COAL COMPANY, 

Respondent 

No. 2 UG Mine 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Frank McCoart, Van Lear, Kentucky, pro se: 

Michael J. Schmitt, Esq., Wells, Porter, 

Schmitt & Walker, Paintsville, Kentucky, 

for Respondent. 

Judge Maurer 

Statement the Case 

This is a discrimination proceeding initiated by the 

complainant against the respondent pursuant to section 

105(c) of the Federal Mine Safety and Health Act of 1977, 

charging the respondent with unlawful discrimination 

against Mr. McCoart for exercising certain rights afforded 

him under the Act. A hearing in this matter was convened 

in Prestonsburg, Kentucky, on August 5, 1986. After commencing his case-in-chief, Mr. McCoart moved for a continuance so that he might obtain counsel to assist him in 

preparing and presenting his claim. I granted this motion 

over objection of respondent's counsel and the hea~ing was 

continued at that point. 

Subsequently, the parties have jointly proposed a 

settlement by a written motion to approve settlement filed 

on August 8, 1986. That proposal contemplates a dismissal 

of the complainant's claim against the respondent with 

prejudice upon the following terms and conditions: 

{l) The respondent shall and has purged 

the complainant's personnel file of all reprimands, warnings and disciplinary actions so 

that such records will not reflect adversely 

upon the complainant and inhibit his ability 

to obtain future employment as a coal miner. 

1251 
(2) The respondent has agreed to pay and 

has paid to the complainant the sum of $3,000.00 

in complete and total settlement of all of complainant's claims for monetary relief (backpay), 

for reinstatement and for all claims whatsoever. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions proposed by the parties in this proceeding, I conclude and find that it reflects a reasonable 

resolution of the complaint. Further, since it seems clear 

to me that all the parties, including Mr. McCoart personally, 

are in accord with the agreed upon disposition of the complaint, I see no reason why it should not be approved. 

ORDER 

The proposed settlement is APPROVED. Respondent IS 

ORDERED AND DIRECTED to ful comply with the terms of the 

agreement. Upon full and complete compliance with the 

terms of the agreement, this matter-is DISMISSED . 

.. a rer 

ative Law Judge 

Distribution: 

Frank McCoart, General Delivery, Van Lear, KY 41265 

(Certified Mail) 

Michael J. Schmitt, Esq., Wells, Porter, Schmitt & Walker, 

P. 0. Box 1179, Paintsvi , KY 41240 (Certified Mail) 

1252 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 25 / 19 86 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

Docket No. SE 86-57 

A. C. No. 01-01247-03696 

No. 4 Mine 

DECISION 

Appearances: ~illiam Lawson, Esq., Office of the Solicitor, 

u. s. Department of Labor, Birmingham, Alabama, 

for Petitioner; R. Stanley Morrow, Esq., and 

Harold D. Rice, Esq., Birmingham, Alabama, for 

Respondent. 

Before: J'udge lv'1erlin 

This case is a petition for the assessment of two civil 

penalties filed by the Secretary of Labor against Jim Walter 

Resources, Inc. It was heard as scheduled on August 5, 1986. 

In accordance with their pre-hearing statements and at the 

hearing the parties agreed to the following stipulations: 

1. the operator is the owner and operator of the subject 

mine; 

2. the operator and the mine are subject to the provisions 

and jurisdiction of the Federal Mine Safety and Health Act of 

1977; 

3. I have jurisdiction in this case; 

4. the MSHA inspector who issued the subject citations and 

orders was and is a duly authorized representative of the 

Secretary; 

1253 
5. true and correct copies of the subject citations and 

orders were properly served upon the operator; 

6. imposition penalties will not affect the operator's 

ability to do business; 

7. the operator is medium iu size; 

8. the operator's prior history of violations is average. 

At the outset of the hearing the Solicitor and operator's 

counsel moved for approval ot a settlement in the amount of $150 

for Citation No. 2604923 which had been issued for a violation of 

30 C.F.R. § 75.1707 because an intake escapeway was not separated 

from the belt haulage entry. A two foot by four foot thermax 

ock had been knocked out of the permanent stopping located 

behind the power center. The violation was serious but 

negligence was less than originally thought because the operator 

had had the stopping replaced once but it had llen out again. 

The proposed settlement $150 was approved. 

Citation No. 2604926 was issued for a violation of 

30 C.F.R. § 75.400 because a deposit of coal dust and float dust 

had been allowed to accumulate in the cross-cut where the versatrac charger was located on the No. 2 longwall section. Approximately 23 hours later, Order No. 2604928 was issued pursuant to 

section 104(b) of the Act because an inadequate fort had been 

made to clean up the accumulation. At the conclusion of the 

inspector's testimony a recess was taken after which the parties 

proposed a settlement based upon the following additional stipulations: the operator was negligent; there was not the requisite 

good faith abatement with respect to the original citation but 

there was good faith abatement with respect to the order; the 

violation ~as serious but gravity was substantially less than 

originally thought because there was no ignition source on the 

section due to a breakdown the machinery. The proposed settlement of $450 was approved. In view of the testimony, counsel are 

encouraged to acquaint their witnesses with the applicable 

definition of ''significant and substantial" as set forth in 

Commission decisions. 

ORDER 

It is ORDERED that the operator pay $600 within 30 days from 

date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

1254 
Distribution: 

William Lawson, Esq., Office of the Solicitor, U. S. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., Post Office 

Box C-79, Birmingham, AL 35283 (Certified Mail) 

Harold D. Rice, Esq., Jim Walter Resources, Inc., Post Office Box 

C-79, Birmingham, AL 35283 (Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, P. o. Box 

22601, Tampa, FL 33622 (Certified Mail) 

/gl 

1255 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 2 61986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , ti oner 

v. 

M.A. WALKER COMPANY, INC., 

Respondent 

DECISION 

Docket No. KENT 85-140-M 

A. C. No. 15-00112-05504 

Clover Bottom Underground 

Appearances: Mary Sue Ray, Esq., Off of the Solicitor, 

Before: 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

A. Walker, President, M. A. Walker Company, 

Inc., McKee, Kentucky, Respondent. 

Judge Maurer 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

lOS(d) of the Mine Safety and Act of 1977, 

30 u.s.c. § 801, et seq., the 11 Act, 11 charging the M.A. 

Walker Company, (walker) with violations of regulatory standards. The issues before me are whether Walker 

has committed the lations as alleged and, if so, whether 

those violations were of such a nature as could have significantly and stantially contributed to the cause and 

effect of a mine sa or health haz whether the 

violations were "significant and subs al 11 • If violations are found; it will also be neces to determine the 

appropriate 1 penalty to be assessed accordance with 

the criteria set forth in section llO(i) of the Act. Pursuant to notice, the case was heard in Berea, Kentucky, on 

June 24, 1986. 

Citation No. 2247898 alleges a 11 s ficant and substantial11 viol of the standard at 30 C.F.R. § 57.3022 

and charges as 

Ground conditions along haulageways and travelways was not scaled. This include the three 

entries to the mine. Loose rock frozen 

ice was ob on roof and ribs. The employee 

enter the mine through these Customer 

truck go in and out through these s. 

1256 
The cited standard requires that "[g]round conditions 

along haulageways and travelways shall be examined periodically and scaled or supported as necessary." 

Inspector Kenneth Ruffner of the Federal Mine Safety 

and Health Administration (MSHA) performed an inspection at 

the Clover Bottom limestone mine on January 30, 1985, when 

he discovered the aforementioned condition. This condition 

is more fully described in a technical report authored by 

Mr. Richard R. Pulse, a geologist also employed by MSHA 

(Secretary's Exhibit No. 4). Depicted therein are photographs of areas where loose rock slabs and rock overhangs 

are present above and adjacent to the north, one-way portal 

and the middle, two-way portal. Mr. Pulse reports that 

many of these rocks are loosely keyed into the rock walls 

and separated or detached rock slabs were observed to be 

resting upon steeply inclined weathered shale slopes. In 

his opinion, all of these could potentially slide or fall 

into the mine roadway or into the portal entrances. The 

report and the photographs contained therein document the 

existence of numerous loose slabs of limestone resting upon 

steep slopes above the portals and rocks loosely keyed into 

place, above and adjacent to the access road and mine portals. In the opinion of this geologist, it has taken 

decades for this condition to develop, but these rocks 

constitute a present danger to people entering portals, 

especially during periods of heavy rain or during cycles of 

freezing and thawing. 

Inspector Vernon Denton also testifi concerning the 

loose rock observed at the two aforementioned portals. 

He stated that it appeared to be all different sizes--from 

the size of a bowling ball to something approaching table 

size, including a large slab of rock about six (6) £eet 

long, three (3) feet wide, and a foot thick. 

The respondent's witness, Mr. James Denham, testi ed 

of the extreme difficulty he had removing the rocks that 

MSHA demanded be removed to abate the citation. For examp 

he broke a 3/4 inch cable trying to pull one of the rocks 

down that MSHA claimed was loose. 

On the issue of whether loose rock existed along the 

haulageways and travelways in the area of these two portals, 

I must make a credibility choice. Two mine inspectors are 

of the finite opinion that loose rocks existed in these 

areas and their opinion is buttressed by the report of a 

geologist who likewise concluded that numerous loose slabs 

1257 
of limestone existed resting on steep slopes above the portals. Weighing that formidable testimony against that of 

the mine superintendent who essentially testified that because the rocks were difficult to pull down, in his opinion 

they would not have fallen down, I must make the credibility 

nding in favor of the Secretary, and thus find a violation 

of the c standard. 

Under the circumstances herein, I find that it was 

reasonably likely that the aforementioned loose rock could 

fall down at any time, and if one of these large rocks that 

the Secretary maintains was-Yoose fell, it would be reasonably likely that it could fall on one of the vehicles, 

including customer's trucks, that go, into and out of the 

mine and crush it. I therefore find that the violation was 

serious and "significant and substantial". Secretary v. 

Mathies Coal Company, 6 FMSHRC 1 (1984). Furthermore, is 

undisputed that mine management knew of the condition prior 

to the citation being issued. They just didn't be eve that 

it was a condition that needed correction. I disagree and 

find that their negligence was "high" as cited by the inCitation No. 2247378 was also issued on March 5, 1985, 

by Inspector Ruffner and alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 57.9003 

and s as follows: 

No. 2 Euc haul truck did not have any brakes. 

Ac to Inspector Ruffner, he overheard a conversation between the men working at Clover Bottom Mine 

that there were no brakes on at one of the trucks 

be used in the mine and that there was a danger of colli ng with one of the customer's trucks while they were 

going in and out hauling the stockpi He a the 

safety director to let him test the brakes on the No. 1 

and 2 trucks, which he did. When he tested the No. 2 

truck, by having the driver acce the truck over a 

ned distance and then apply the brakes, he found 

it to have no , caused his opinion by running 

through water under the stockpile bins which was deep 

enough to reach the brake drums. 

record establishes that this truck was being 

in a fairly congested area with brakes that were 

useless for all practical purposes. Therefore, 

I find that the violation was a "significant and substantial" one. Mathies, Furthermore, the lack adequate is the violation that should have 

1258 
been easily discoverabie by the truck driver and apparently 

was noticed by some employees because their talking about 

it called the inspector's attention to the matter. Therefore, I find that the operator is chargeable with at least 

moderate negligence because, at a minimum, it is chargeable 

with negligent training and supervision for the failure of 

its employees to correct this condition. I also note that 

the violation was abated by simply drying out the brakes. 

No other repair was required. Before leaving this subject, 

I specifically reject the operator's argument that the emergency brake or parking brake being in an operable condition 

is sufficient to satisfy the regulatory requirement that 

"[p]owered mobile equipment shall be provided with adequate 

brakes." 

Citation No. 2247379 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 57.9053 

and charges as follows: 

Water was allowed to accumulate which created 

a hazard to moving equipment. 

The cited standard requires that water which creates a 

hazard to moving equipment be removed. 

According to the undisputed testimony of Inspector 

Ruffner, who likewise issued this citation on March 5, 

1985, after he had issued Citation No. 2247378 concerning 

the truck with no brakes, the operator continued to load 

the other haul truck in the water which existed in the 

stockpile bin area. The danger according to the inspector 

being that the brakes would get wet and suffer the same 

consequences as they had on the No. 2 haul truck, which had 

been written up two hours earlier. Under the circumstances, 

as before, if a vehic was operating in a congested area 

with no brakes, an accident was reasonably likely to occur 

resulting in disabling or even fatal injuries. Accordingly, 

I find the violation to be "significant and substantial." 

Mathies, supra. 

On the issue of negligence, the water had been in 

the area under the stockpile bins that morning because of 

a drain being stopped up. Respondent produced testimony 

that this was the first time this drain had ever backed 

up. In order to abate the citation, they pumped the water 

out and then opened the drain. I concur with the inspector 

that the operator is certainly chargeable with the knowledge 

that the water was there at the time it existed, and of the 

consequences of operating the haul trucks in the water. I 

therefore find the operator chargeable with a "high" degree of negligence, as alleged in the citation. 

1259 
In determining the amount of penalties I am assessing in 

this case, I have given great weight to the that Walker 

is a small operator, has a relatively minor history of reported violations and abated the violative conditions in a 

timely manner. Accordingly, the following civil penalties 

are deemed appropriate: 

Citation 

2247898 

2247378 

2247379 

ORDER 

Amount 

$100 

$250 

$250 

The M. A. Walker Company, Inc., IS HEREBY ORDERED to pay 

civil penalties of $600 within 30 days of the of this 

decision. Payment is to be made to MSHA, and upon recei~t of 

same, this proceeding is DISMISSED. 

Law Judge 

stribution: 

Mary Sue Ray, Esq., Office of the Solicitor, u. S. Department 

of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203 ( 

Mail) 

Lyle A. Walker, President, M. A. Walker Company, Inc., P. o. 

Box 143, McKee, KY 40447 (Certified Mail} 

yh 

1260 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 28 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) / 

Petitioner 

v. 

YATES CONSTRUCTION CO., 

INC. I 

Respondent 

Docket No. SE 86-28-M 

A.C. No. 31-00052-05501 J2K 

Pomona Mine & Mill 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On August 22, 1986, the parties filed a Joint Motion to 

Approve Settlement and to Dismiss this proceeding. A similar 

motion was filed in the case of Secretary v. Martin Marietta 

Aggregates, Docket No. SE 86-31-M, with which this proceeding 

was consolidated by order issued April 18, 1986. 

This proceeding involves three alleged violations, one 

originally assessed at $2000 and charging a violation of 

30 C.F.R. § 56.3005, the others each assessed at $98. By 

this settlement agreement, the parties propose to amend citation 

2385988 charging a violation of § 56.3005 to read as follows: 

Respondent's employee operating at a mine 

site on or about April 15, 1985 wrongfully 

worked between equipment and the pit wall 

in violation of 30 C.F.R. § 56.3012. 

The parties represent, and I accept the representation, that 

the amended citation alleges a violation of the standard 

more directly applicable to the circumstances of this case. 

The settlement agreement proposes that Respondent pay the sum 

of $1000 for the violation charged in the amended citation, 

and the assessed amount, $98 for each of the other alleged 

violations. 

The vi9lation charged in citation 2385988 is serious, 

since it caused or contributed to a fatal accident. Respondent 

states that the violation resulted from an employee violating 

a previously communicated work rule, and the Secretary does 

not contest this assertion. Respondent has no prior history 

of inspection under the Act. It is a small operator. 

1261 

/ 
I have considered the Motion in the light of the criteria 

in section llO(i) of the Act, and conclude that it should 

be approved. 

Accordingly, IT IS ORDERED that the settlement agreement 

is APPROVED. Respondent is ORDERED to pay the sum of $1,196 

within 30 days of the date of this decision. Upon payment, 

this proceeding is DISMISSED. The hearing scheduled 

August 27, 1986 in Greensboro, North Carolina is CANCELLED. 

Distribution: 

~A. 4/Jw~~ Broderick 

t/i~~~i~trative Law Judge 

Kenneth R. Keller, Esq., Tuggle, Duggins, Meschan & Elrod, P.A., 

Drawer X, Greensboro, NC 27402 (Certified Mail) 

Ira Michael Shepard, Esq., Schmeltzer, Aptaker & Sheppard, 

1800 Massachusetts Ave., N.W., Washington, D.C. 20036-1879 

{Certified Mail) 

Larry A. Auerbach, Esq., U.S. Department of Labor, Office of 

the Solicitor, 1371 Peachtree St., N.E., Rm. 339, Atlanta, GA 

30367 {Certified Mail) 

slk 

1262 

\\ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 28 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MARTIN MARIETTA AGGREGATES, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 86-31-M 

A.C. No. 31-00052-05504 

Pomona Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On August 18, 1986, the parties filed a Joint Motion to 

Approve Settlement and to Dismiss this proceeding. A similar 

Motion was filed in the case of Secretary v. Yates Construction 

Co., Inc., Docket No. SE 86-28-M, with which this proceeding 

was consolidated by order issued April 18, 1986. 

The proceeding against Martin Marietta involves two 

violations alleged in two citations for which penalties in 

the amount of $4,157 were sought. By the settlement agreement, 

the Secretary proposes to "withdraw" the two citations and 

substitute therefor a new citation charging a violation of 

30 C.F.R. § 56.3012 which shall read as follows: 

An employee (Daniel Preston Moore) of 

Yates Construction Company operating 

at Respondent's mine site on or about 

April 15, 1985 wrongfully worked between 

equipment and the pit wall in violation 

of 30 C.F.R. § 56.3012. 

The Secretary represents, and I accept the representation, 

that the new citation alleges a violation of the standard 

more directly applicable to the circumstances of this case. 

A penalty of $2000 is proposed for the violation which Respondent 

agrees to pay. 

The vi0lation is serious in that it caused or contributed 

to a fatal accident. Respondent states that it made regular 

inspections to ensure the safety of the area involved in the 

1263 
citation, and the Secretary does not contest this assertion. 

Respondent had no history of prior violations from November 

1982 through August 1985. 

I have considered the motion in the light of the criteria 

in section llO(i) of the Act, and conclude that it should be 

approved. 

Accordingly, IT IS ORDERED that the settlement agreement 

is APPROVED; that citations 2385993 and 2385994 are VACATED. 

A new citation, 2385993 is substituted and Respondent is 

ORDERED to pay within 40 days of the date of this decision, 

a civil penalty i'n the amount of $2000 for the violation 

alleged therein. Upon payment of said penalty this proceeding 

is DISMISSED. The hearing scheduled August 27, 1986 in 

Greensboro, North Carolina is CANCELLED. 

f~s~::acf::f Administrative Law Judge 

Distribution: 

Kenneth R. Keller, Esq., Tuggle, Duggins, Meschan & Elrod, P.A. 

Drawer X, Greensboro, NC 27402 (Certified Mail) 

Ira Michael Shepard, Esq., Schmeltzer, Aptaker & Sheppard, 1800 

Massachusetts Ave., N.W., Washington, D.C. 20036-1879 (Certified 

1) 

A. Auerbach, Esq., U.S. Department of Labor, Office of the 

Sol itor, 1371 Peachtree St., N.E., Rm. 339, Atlanta, GA 

30367 (Certified Mail) 

slk 

1264