APRIL 1984 

Connnission Decisions 

4-06-84 

4-20-84 

4-24-84 

Green Hill Mining Company 

Jack Gravely v. Ranger Fuel Corp. 

Turner Brothers, Inc. 

Administrative Law Judge Decisions 

4-04-84 

4-06-84 

4-06-84 

4-10-84 

4-10-84 

4-11-84 

4-12-84 

4-12-84 

4-13-84 

4-17-84 

4-19-84 

4-19-84 

. 4-20-84 

4-20-84 

4-23-84 

4-23-84 

4-24-84 

4-26-84 

4-26-84 

4-26-84 

4-27-84 

4-30-84 

Mineral Coal Sales, Inc. 

Claude C. Wood Company 

Westmoreland Coal Company 

Rockline, Incorporated 

Magma Copper Company 

Badger Coal Company 

MSHA/Milton Bailey v. Arkansas-Carbona Co. 

MSHA/James Mc. Taylor v. Buck Garden Coal Co. 

Monterey Coal Company 

Todilto Exploration & Development Corp. 

Monterey Coal Company 

Westmoreland Coal Company 

Peabody Coal Company 

Forrie Everett v. Industrial Garnet Extractives 

United States Fuel Company 

Bethlehem Mines Corporation 

Superior Rock Products 

Metric Constructors, Inc. 

Belcher Mine, Inc. 

George Jack v. Mid-Continent Resources, Inc. 

FMC Corporation 

U.S. Steel Mining Company 

KENT 83-251 

WEVA 83-101-D 

CENT 83-12 

VA 83-26 

WEST 81-172-M 

WEVA 83-244 

WEST 81-339-M 

WEST 81-399-M 

WEVA 81-36-R 

CENT 81-13-D 

WEVA 83-241-D 

LAKE 84-19-R 

CENT 79-91-RM 

LAKE 84-30 

WEVA 83-266-R 

KENT 83-86 

YORK 83-7-DM 

WEST 84-40-R 

PENN 83-198 

WEST 81-261-M 

SE 80-31-DM 

SE 84-4-M 

WEST 83-72-D 

WEST 81-264-RM 

WEVA 82-390-R 

Pg. 796 

Pg. 799 

Pg. 805 

Pg. 809 

Pg. 852 

Pg. 864 

Pg. 865 

Pg. 870 

Pg. 874 

Pg. 917 

Pg. 919 

Pg. 921 

Pg. 929 

Pg. 936 

Pg. 939 

Pg. 942 

Pg. 998 

Pg. 1004 

Pg. 1011 

Pg. 1045 

Pg. 1050 

Pg. 1052 

Pg. 1059 

Pg. 1068 

Pg. 1071 

APRIL 

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

Secretary of Labor, MSHA v. Monterey Coal Company, Docket No. LAKE 83-61; 

(Judge Koutras, February 23, 1984) 

Secretary of Labor, MSHA v. Green Hill Mining Company, Docket No. 

KENT 83-251; (Judge Merlin, Default Order, February 27, 1984) 

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

Elias Moses v. Whitley Development Corporation, Docket No. KENT 79-366-D; 

(Judge Steffey, March 13, 19.84) 

Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. WEST 83-73; 

(Judge Morris, March 6, 1984; PDR dismissed as premature) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 6, 1984 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 

v. 

GREEN HILL MINING CO., INC. 

Docket No. KENT 83-251 

DIRECTION FOR REVIEW AND ORDER 

The document titled "Notice" filed by the respondent operator on March 7, 

1984, is deemed to be a petition for discretionary review and is granted. 

30 U.S.C. 823(d)(l976 & Supp. V 1981). 

The controversy arises under the Federal Mine Safety and Health Act of 

1977. 30 U.S.C. 801 et~· Following an inspection of the operator's 

mine, the Mine Safety and Health Administration (MSHA) of the Department 

of Labor issued four citations alleging violations of 30 C.F.R. sections 

77.410, 77.1000, 77.1102 and 77.1109. Subsequently, MSHA issued a notification of the penalties it proposed for those citations, totalling $134.00. 

Respondent contested and the matter came before this independent Commission 

for adjudication. Thereafter, the Secretary of Labor filed a proposal of 

penalty in the total amount of $134.00 with the Commission. 

The Rules of Procedure of this Comμdssion require respondent to file an 

answer to the Secretary's proposal of penalty within 30 days. 29 C.F.R. 

§ 2700.28. When no answer was received within 30 days, the Commission's 

Chief Administrative Law Judge issued an Order to Show Cause to respondent 

on September 28, 1983, explaining the requirement for an answer and allowing 

30 additional days to file the answer or show good reason for failure to do 

so. The Chief Judge gave notice that failure to respond to the Order to Show 

Cause would result in a default judgment. Receiving no response to the Order 

to Show Cause, the Chief Judge entered an Order of Default on February 27, 1984, 

requiring respondent to pay the sum of $134.00 immediately. 

The operator seeks review of the default order and requests that it 

be amended to reflect a settlement. The operator represents that it paid to 

MSHA the penalty of $134.00 on or about August 10, 1983, since it did not care 

to pursue the matter further. In response to the operator's petition for discretionary review, the Secretary objects to the operator's request for relief, 

noting that the Secretary did not discuss or agree to settlement at any time. 

He notes that the respondent's "unsolicited check" was forwarded by the Regional 

Solicitor's office in Tennessee to MSHA for deposit pending resolution of the 

case in keeping with the policy of the Department of Labor. The respondent's 

submission includes a cop~ of the negotiated check. 

79G 
As noted above, this Commission is independent of the Department of Labor 

and MSHA. When he issued his Order to Show Cause, the Chief Judge of the 

Commission was not aware of the payment by the operator to MSHA of the full 

amount of the penalties. Because the operator did not respond to the Order 

to Show Cause, the Chief Judge was unaware also of that payment when he issued 

his Order of Default. Under these circumstances we find the Order of Default 

entered by the judge and his assessment of a total penalty of $134.00 to be 

appropriate. We note, however, that the operator already has complied with 

the Chief Judge's order to pay the amount of $134.00, which is the precise 

amount that the Department of Labor proposed for the cited violations. 

Accordingly, the Order of Default issued by the Chief Judge on February 27, 

1984, is affirmed. 

L. Clair Nelson, Commissioner 
-Distribution 

DaviJ 0. Smith, Esq. 

Green Hill Mining Company 

P.O. Box 699 

Corbin, Kentucky 40701 

Thomas A. Grooms, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

280 U.S. Courthouse 

801 BroaJway 

Nashville, Tennessee 37203 

Michael McCorJ, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson BlvJ. 

Arlington, Virginia 22203 

Chief AJministrative Law JuJge Paul Merlin 

FeJeral Mine Safety & Health Review Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 

79& 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JACK E. GRAVELY 

v. 

RANGER FUEL CORP. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 20, 1984 

Docket No. WEVA 83-101-D 

DECISION 

This case is before us on Jack Gravely's petition for discretionary review of an administrative law judge's decision which dismissed his discrimination complaint against Ranger Fuel Corporation. 6 FMSHRC 38 (1984). Gravely contends that Ranger illegally 

discharged him from his position as foreman at the Beckley No. 2 

mine, in violation of Section 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 115(c) (Supp. V, 1981), because it 

blamed him for a roof fall which occurred on his shift. According 

to Gravely, Ranger discharged him in retaliation for his failure to 

take a crew inby a dangerboard to support the area of weak roof 

which later fell. Ranger argued that it had not discharged Gravely 

because of the roof fall. It claimed that Gravely's performance 

over the prior several months had been consistently unsatisfactory, 

and that it had discharged him following two incidents within one 

week in which his inadequate supervision had resulted in the destruction of suction pumps. Ranger's position was that it had no 

objections to Gravely's actions on the night of the roof fall, when 

he had his crew begin roof support work at the dangerboard, and 

that its officials blamed him for the roof fall only because of 

his failure to properly support the weak roof on a prior shift. 

We granted review because we perceived certain deficiencies in 

the judge's analysis of this case. ~/ Review of the record 

discloses substantial evidence to support the judge's crucial 

factual findings. Applying the analytical framework we have established for discrimination cases to the facts at issue here, we 

affirm the judge's dismissal of Gravely's complaint, 

1 I Ranger filed in opposition to Gravely's petition for discretionary review, alleging in part that the petition was not timely 

filed. Section 113(d){2)(A)(i) of the Mine Act requires that petitions for discretionary review be filed within 30 days after issuance of a judge's decision. 30 U.S.C. § 823(d)(2)(A)(i). The 30th 

day following issuance of the judge's decision in this case fell on 

(footnote continued on next page) 

799 
At the time of his discharge, Gravely had been employed by 

Ranger for almost 18 months. During this time he held a number of 

different supervisory assignments. The mine manager testified that 

these changes occurred because of problems with Gravely's performance 

in each job, and Ranger's continuing efforts to find a position for 

which he was suited. 

Ranger provided several examples of Gravely's poor performance 

and disciplinary record, including instances of excessive or unexcused absenteeism and inadequate supervision of his crew, resulting 

in off center cuts and destruction of equipment. Gravely disputed 

the occurrence of some of these examples, denied that he had been 

disciplined for others, and claimed that some were not his fault. 

During the last week of July 1982, while Gravely was working 

as a construction foreman on the night (hoot owl) shift, an area of 

"bad top" was encountered in the last open crosscut between the No. 

1 and No. 2 entries of the No. 1 face. Harrison Blankenship, the 

assistant mine foreman (who worked on the day shift), testified 

that on July 26 he left instructions and a sketch with the evening 

shift foreman, Larry Burgess, telling Burgess to instruct Gravely 

to set "turn cribs" in the No. 1 entry intersection. "Turn cribs" 

are roof support cribs placed in an arc configuration to narrow the 

intersection and prevent a roof fall. Burgess testified that when 

he attempted to pass these instructions on to Gravely, Gravely told 

him that he already knew what to do. 

Footnote No. 1 Cont'd. 

a Sunday. The petition was received, and therefore filed (29 

C.F.R. §2700.70(a)), on the 31st day following the issuance of the 

judge's decision. We have previously held that, in appropriate 

circumstances, petitions received after the 30th day (but before 

the 40th day when decisions become final orders of the Commission 

by operation of law) can nevertheless be accepted and considered by 

the Commission. Valley Rock & Sand Corp., 2 BNA HSHC 1673 (Docket 

No. WEST 80-3-M, e.tc., March 29, 1982); Victor McCoy v. Crescent 

Coal Co., 2 FMSHRC 1202 (1980). See Duval Corp. v. Donovan, 650 

F.2d 1051 (9th Cir. 1981). We hereby hold that where the 30th day 

following the issuance of a judge's decision falls on a Saturday, 

Sunday, or Federal Holiday, good cause exists for accepting a petition for review received by the Commission on the first business 

day thereafter. This policy does not significantly lessen the time 

available to the Commission for considering petitions for review 

and also avoids unnecessarily shortening the time available to parties for determining whether to file or for preparing a petition 

for review. Accordingly, the operator's request that the petition 

be dismissed because it was received 31 days after the issuance of 

the judge's decision is denied. 

800 
Gravely denied receiving any specific instructions from Burgess or Blankenship before his July 27 shift. ·He testified that 

when he reached the section and his crew independently discovered 

the bad top, he notified shift foreman Dennis Myers of the condition, and he and his crew spent the rest of the shift attempting to 

support the roof. They did not set "turn cribs" as Blankenship 

said he had ordered, but "breaker cribs" extending across the No. 1 

entry, immediately outby the crosscut. During the shift, one of 

the miners on Gravely's crew ran over and destroyed a submersible 

suction pump valued at $2500 to $3000. 

The next morning Blankenship discovered that the cribs had not 

been set the way he wanted. He testified that the use of the breaker 

cribs would cause a roof fall in the intersection and crosscut, and 

turn cribs could prevent one. He did not believe the roof was in 

immediate danger of falling, so he again left instructions for the 

setting of turn cribs. Although the No. 1 entry was now blocked 

off by the breaker cribs that had been put up the night before, the 

intersection was still accessible through the crosscut from the No. 

2 entry. Sometime that day, however, the roof in the crosscut 

began to work, and somebody (none of the witnesses knew who) placed 

a dangerboard in the No. 2 entry outby the crosscut. When Gravely 

and his crew began work on July 28, they began shoring up the roof 

at the dangerboard, and moving toward the crosscut. Before they 

reached it, however, the roof fell in the crosscut. 

On July 29 and 30, Gravely's crew worked on cleaning up the 

roof fall. On July 30, another miner on the crew ran over a second 

suction pump in the same mud hole as the one that had been destroyed earlier in the week. Although at first it appeared that the 

second pump had also been destroyed, it later was repaired at a 

cost of $854. The next morning Blankenship discussed the pump 

incidents with mine manager Walter Crickmer, and he and Crickmer 

agreed that Gravely should be fired. Both men testified that the 

discharge was motivated primarily by the fact that Gravely had 

allowed the destruction of two pumps within a week, but that Gravely' s prior unsatisfactory work history also played a part in their 

decision. Although they denied that the roof fall alone was the 

motivating factor, Blankenship maintained that the fall had been 

caused by Gravely's failure to set turn cribs on July 27, and said 

that it was part of the chain of events "that led to the discharge." 

In his decision, the judge found that Gravely had a history of 

disciplinary problems throughout his tenure at Ranger. Although he 

acknowledged that Ranger's poor recordkeeping practices caused it 

problems in documenting its assertions, he stated that he found the 

testimony of the three Ranger management employees who testified 

about Gravely's poor disciplinary record to be believable. He 

stated that he was unable to conclude that Ranger had fabricated 

the specific examples of Gravely's disciplinary problems as an 

801 
"after the fact" justification for his discharge. The judge concluded that the record showed that Ranger discharged Gravely "aftei. 

a series of incidents which finally convinced mine management that 

Mr. Gravely should not continue on as a foreman." 6 FMSHRC at 89. 

The judge additionally found that Gra~ely' s failure to take 

his crew inby a dangerboard on July 28, two days before his discharge, was not a motive for the discharge. Relying on testimony 

of both management employees and the miners on Gravely's crew, the 

judge found that there was no expectation by Ranger that Gravely 

take the crew ~nby the dangerboard, and that Gravely's belief that 

he had been expected to do so stennned entirely from the fact that 

Gravely believed that assistant mine foreman Harrison Blankenship 

blamed him for the roof fall. However, the judge concluded that 

Blankenship's opinion that Gravely was responsible for the roof 

fall was not based on Gravely' s failure to support the roof on 

the night of July 28, as Gravely claimed, but on what Blankenship 

perceived as Gravely's failure to follow his instructions for 

supporting the roof on July 27. 

Although there was conflicting testimony about the specific 

instructions that Gravely had received on July 27, there is clearly 

substantial evidence in the record to support the judge's finding, 

based in part on specific credibility determinations, that Blankenship believed that Gravely had failed to follow his instructions on 

that shift. Therefore, it is apparent that to the extent that 

Gravely's contribution to the roof fall was one of the bases for 

his discharge, that contribution was not the alleged protected 

activity of refusing to work inby the dangerboard, but rather was 

the failure to properly support the roof on July 27. 

Under the analytical guidelines we established in Secretary on 

behalf of Pasula v. Consolidation Coal Corp., 2 FMSHRC 2786 

(1980), rev'd on other grounds sub nom. Consolidation Coal Corp, 

v. Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary on behalf 

of Robinette v. United Castle Coal Company, 3 FMSHRC 803 (1981), a 

prima facie case of discrimination is established if a miner proves 

by a preponderance of the evidence (1) that he engaged in protected 

activity and (2) that some adverse action against him was motivated 

in any part by that protected activity. If a prima facie case is 

established, the operator may defend affirmatively by proving that 

the miner would have been subject to the adverse action in any 

event because of his unprotected conduct alone, The Supreme Court 

recently approved the National Labor Relations Board's virtually 

identical analysis for discrimination cases arising under the 

National Labor Relations Act. NLRB v. Transportation Management 

Corp., _U.S._, 76 L.Ed. 2d 667 (1983). See also Boich Vo 

FMSHRC, 719 F.2d. 194 (6th Cir. 1983) (specifically approving the 

Commission's Pasula-Robinette test). 

The judge in this case did not expressly determine whether 

Gravely's refusal to take his crew inby the dangerboard on July 28 

was protected activity under the Mine Act. However, he clearly 

found that the refusal was not a motivating factor in Gravely's 

802 
subsequent discharge, Ranger having rebutted Gravely's arguments to 

the contrary. Substantial evidence supports the judge's finding. 

Given these facts, Gravely failed to establish a prima facie case 

under our Fasula analysis. Because no prima facie case was established, it was not necessarily required that the judge reach the 

second stage of our discrimination analysis and determine whether 

Ranger proved an affirmative defense. 

In this case, the judge did not separately discuss Ranger's 

assertion that it fired Gravely because of the destruction of 

two suction pumps within a week by miners under his supervision. 

It is not clear from the decision whether the judge's failure to 

address this issue separately was based on his belief that the 

evidence had been introduced to establish Ranger's affirmative 

defense or on his determination that the destruction of the pumps 

was part of the "series of incidents" which he held led to Gravely' s discharge. However, we believe that the decision can be sustained in either event. The burden was on Gravely, as the complainant, to establish that his discharge was motivated, at least 

in part, by protected activity. Because he failed to meet that 

burden, a separate determination of the validity of any other 

asserted reason for the discharge was not necessary to the judge's 

holding. Furthermore, even if Gravely had established a prima 

facie case, we believe that Ranger's evidence demonstrated that it 

would have discharged him in any event because of the destruction 

of the pumps. 

Therefore, we affirm the judge's order dismissing Gravely's 

complaint, on the basis that there is substantial evidence in the 

record to support the judge's factual findings which do not establish 

a prima facie case of discrimination. 

~odtr~r:: 

'---/ _/ __ ~- . 

r:: Clair Nelson, Commissioner 

803 
Distribution 

Belinda Morton, Esq. 

Box 636 

Fayetteville, West Virginia 25840 

W. H. File, Jr., Esq. 

File, Payne, S~herer & Brown 

P.O. Drawer L 

Beckley, West Virginia 25801 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

520.3 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

804 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TURNER BROTHERS INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 24, 1984 . . 

DECISION 

Docket No. CENT 83-12 

The operator's petition for discretionary review of the administrative 

law judge's decision in this matter was granted on December 29, 1983. 

30 U.S.C. § 823(d)(2)(Supp. V 1981). The operator's petition raised two 

issues: whether a Commission administrative law judge has the authority to 

assess a penalty greater than that proposed by the Secretary of Labor, 1/ 

and whether a Commission administrative law judge has the authority to -

assess additional penalties based on a perceived "cavalier attitude" and 

"contempt" that the operator and its counsel displayed in the litigation 

of the matter before the administrative law judge. These latter conclusions 

by the judge were based on the respondent's failure to appear at the 

scheduled hearing or otherwise notify the judge of its intention not to 

appear. ];./ 

Pursuant to the Commission's Rules of Procedure, the failure to file a 

brief in support of a petition for review that has been granted can result 

in dismissal of the proceeding. 29 C.F.R. § 2700.8(b) and .72(a). Because 

the operator failed to file a timely brief, the Commission issued an order 

advising the operator of the possible effect of its failure to comply with 

the Commission's rules, and specifically ordering the operator to submit 

its brief and a motion for leave to file the brief out of time with an 

explanation for the delay. The operator's response to the Commission's 

order was to submit a "brief." 3/ Contrary to the Commission's order, a 

motion to accept the late-filed-brief was not filed. 

1_/ It is well established that, in a case contested before the Commission, 

the Commission and its judges are not bound by the penalty assessment 

regulations adopted by the Secretary. "The determination of the amount 

of the penalty that should be assessed for a particular violation is an 

exercise of discretion by the trier of fact." Sellersburg Stone Co., 

5 FMSHRC 287 (March 1983), ~· for review filed, No. 83-1630 (7th Cir. 

April 8, 1983). 

2/ The judge noted that the operator's counsel had also failed to appear 

at another hearing before a different Commission judge one week prior to 

the hearing set in this case. 

1_/ The operator's submission was a four paragraph, one and one-half page 

restatement of its petition for review. 

805 
Due to the operator's failure to comply with the Commission's rules 

and orders, and consequent failure to prosecute this matter, the operator's 

petition for discretionary review is dismissed in part. Because the 

second issue.raised in the petition relates to a matter which is "contrary 

to law or Commission policy," 30 U.S.C. § 823(d)(2)(B)(Supp. V 1981), and 

for which we have an independent concern, we have retained jurisdiction 

in part. 

The judge's decision contains an assessment of a total of $600 in 

additional penalties based on the "cavalier attitude" and "contempt" that 

the operator and its counsel displayed towards the Mine Act, the Department 

of Labor's Mine Safety and Health Administration inspectors, and the 

Commission. While we may well empathize with the judge's reaction, the 

proper recourse available to the judge in this situation would be that 

set forth in Commission Rule 80, governing the standards of conduct for 

individuals practicing before the Commission, and providing for the 

institution of disciplinary proceedings in appropriate circumstances. 

29 C.F.R. § 2700.80. The need to scrupulously follow the Commission's 

rules on disciplinary procedures previously has been stressed by the 

Commission. Secretary of Labor ex rel. Roy A. Jones v. James Oliver & 

Wayne Seal, FMSHRC Docket No. NORT 78-415, March 27, 1979; Canterbury 

Coal Co., 1 FMSHRC 335 (May 1979). Due to the limitations set forth in 

the Act as to the criteria to be applied in assessing penalties, as well 

as the need for faithful adherence to the Commission's Rules, we vacate 

that portion of the judge's decision assessing six additional penalties 

of $100 per violation due to the attitude of the operator and its counsel. 

Our decision today does not foreclose the institution of proceedings by 

the judge below under section 2700.80 if he is of the view that this is 

appropriate. 

Accordingly, we dismiss for lack of prosecution the operator's appeal 

challenging the judge's assessment of penalties totalling $5,100 based on 

the statutory criteria specified in section llO(i). The judge's decision 

stands as the final order of the Commission in this regard. The portion 

of the judge's decision assessing a total of $600 in penalties for the 

"cavalier attitude" displayed by the operator and its counsel is vacated. 

';··· fl! ,- l, .. {_.-1..__, - '/ .•-r'. 

L. Clair Nelson, Commissioner 

80 .~ 

. ti 
Distribution 

Robert J. Petrick, Esq. 

Turner Brothers, Inc. 

P.O. Box 447 

Muskogee, Oklahoma 74401 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charles C. Moore 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

807 
ADMINISTRATIVE LAW JUDGE DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

APR 4 1984 FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MINERAL COAL SALES, INC., 

Respondent 

DECISIONS 

CIVIL PENALTY PROCEEDINGS 

Docket No. VA 83-26 

A.C. No. 44-05226-03501 

Docket No. VA 83-36 

A.C. No. 44-05226-03503 

Docket No. VA 83-39 

A.C. No. 44-05226-03502 

Docket No. VA 83-44 

A.C. No. 44-05226-03504 

Mineral Siding 

Appearances: James B. Crawford, Esq., Office of the Solicitor, 

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

for Petitioner; 

Bobbie S. Slusher, President, Mineral Coal Sales, 

Inc., Norton, Virginia, pro~, for Respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. 820(a), seeking civil penalty assessments for four 

alleged violations of certain mandatory standards promulgated 

pursuant to the Act. Respondent contested the proposed 

assessments, and the cases were heard in Wise, Virginia, on 

November 22, 1983. The parties were afforded an opportunity 

to file post-hearing proposed findings and conclusions, and 

the arguments presented therein have been carefully considered 

by me in the course of these decisions. 

Issues 

A critical issue raised by the respondent in these 

proceedings is one of jurisdiction. In its answer to the 

809 
proposals for assessment of civil penalties, the respondent 

asserted that its Mineral Siding facility is not a "mine" 

within the meaning of the Act. In a motion filed by the 

respondent seeking dismissal of these cases for lack of 

jurisdiction, the respondent again asserts that its facility 

is not a "mine" within the meaning of the Act. Relying 

on the Commission's decision in Secretary of Labor v. Oliver M. Elam, 

Jr., Company, Inc., 2 MSHC 1572 (1981), the respondent contends 

as follows: 

(1) Respondent is the owner and operator of a 

commercial loading facility on the N&W-Southern 

Railway which loads coal onto rail cars. 

(2) Respondent's customers are coal brokers 

who pay it to load coal onto the rail cars. 

(3) The brokers arrange for delivery o~ the 

coal by truck to the facility, and then 

for delivery by rail car to their customers. 

(4) The facilities for loading coal consist 

of a hopper, a crusher, conveyor belts, and 

a front-end loader. 

(5) Respondent does not purchase and market 

the coal that it loads, but rather acts as a 

third-party which merely loads coal for 

transportation to customers from disinterested 

brokers. 

(6) Respondent crushes the coal to facilitate 

its loading business. 

Assuming that the respondent is subject to the Act, the 

next question presented is (1) whether respondent has violated 

the provisions of the Act and implementing regulations as 

alleged in the proposals for assessment of civil penalties 

filed, and, if so, (2) the appropriate civil penalties that 

should be assessed against the respondent for the alleged 

violations based upon· the criteria set forth in section llO(i) 

of the Act. 

In determining the amount of any civil penalty assessments, 

section llO(i) of the Act requires consideration of the following 

criteria: (1) the operator's history of previous violations, 

(2) th.e appropriateness of such penal ties to the size of the 

business of the operator, (3) whether the operator was negligent, 

(4) the effect on tne operator's ability to continue in business, 

810 
(5) the gravity of the violations, and (6) the demonstrated 

good faith of the operator in attempting to achieve rapid 

compliance after notification of the violations. 

Discussion 

The citations which are in issue in these proceedings 

are as follows: 

Docket No. VA 83-26 

Section 104(a) Citation No. 2039607, issued on December 28, 

1982, cites an alleged violation of 30 CFR 50.30, and the condition 

or practice is stated as follows: 

The operator of this active mine has not 

submitted a quarterly employment report 

for the 3rd quarter of 1982 (July-Sept.). 

This mine re-opened 07-01-82 . 

• 

Docket No. VA 83-36 

Section 104(a) Citation No. 2153470, issued on March 1, 1983, 

cites an alleged violation of mandatory health standard 30 CFR 

71.803, and the condition or practice is stated as follows: 

A periodic noise exposure survey for the 

last 6 months has not been submitted to MSHA 

at Norton, Virginia. There are 2 employees 

to be surveyed at this active mine. 

Docket No. VA 83-39 

Section 104(a) Citation No. 2039612, issued on January 17, 

1983, cites an alleged violation of 30 CFR 50.30. The described 

condition or practice is as follows: 

The employment reports filed for the 3rd and 

4th quarters of 1982 were inaccurate in that 

each report showed "none" for the average 

number of workers and "none" for the total 

number of employee-hours worked. The onshift record book showed the mine operated 

during each month of each quarter reported for. 

Docket No. VA 83-44 

Section 104(a) Citation No. 2153469, issued on March 1, 1983, 

cites an -alleged violation of 30 CFR 77.1705, and the condition 

or practice is as follows: 

Bll 
The superintendent Donald P. Slusher has 

not attended a first aid refresher class in 

the last calender year. The last training was 

on 05-23-1981. 

Petitioner's Testimony and Evidence 

Donald R. Saylers, Supervisory Inspector, ~SHA Norton, 

Virginia, Subdistrict Office, testified as to his background 

and experience, and he confirmed that he supervises nine 

inspectors in the performance of their inspection duties. 

He identified Hobert Bentley as the inspector who issued 

the citations at issue in this case, and he confirmed that 

Mr. Bentley is deceased. 

Mr. Saylers confirmed that he was familiar with the 

citations issued by Mr. Bentley, and that he reviewed and 

discussed them with him prior to his death. He also confirmed 

that he was familiar with Mrs. Slusher's loading facility, 

and he stated that she operated the Clifton ~ining surface 

mine sometime during 1974 to 1976, and changed its name to 

Mineral Developers sometime during the period 1976 to 1979. 

At the time she started the facility, Mineral Developers 

was stripping coal, and after mining ceased at the facility, 

the surface facility continued on and was known as Mineral 

Siding (Tr. 30-34). 

Mr. Saylers identified Exhibits P-1, P-2, and P-3 as 

MSHA Legal Identity reports on file in his office for the 

facility in question. With regard to Exhibit P-3, showing 

a transfer of the site on July 1, 1982, from Summit Resources 

back to Mineral Coal Sales, Mr. Saylers explained that 

Summit Resources was under a Federal court order to permit 

MSHA entry to the property for inspections, but that he was 

informed that Summit Resources no longer was there and that 

Mrs. Slusher had again resumed responsibility of the loading 

facility (Tr. 35). 

Mr. Saylers confirmed that he has visited Mrs. Slusher's 

loading facility on numerous occasions, the last time being 

three months prior to this hearing. He stated that at that 

time the facility was not in operation because the stationary 

crusher on the loading facility which is used to size coal 

was broken down. Mr. Saylers identified a photograph of 

Mrs. Slusher's residence, which is also used as the mine offices 

of Mineral Coal Sales and Hubbard Enterprises, and he confirmed 

that the structure is on the mine site (Exhibit P-4). 

Mr. Saylers stated that the coal is transported to the 

facility by truck, and it is then weighed and dumped at 

812 
several stockpile locations. He identified exhibits P-5 

and P-6 as photographs of some of the stockpiles. He 

confirmed that the coal which is brought in by trucks is 

dumped in separate stockpiles, and he "assumed" that this is 

because it is from different coal seam sources (Tr. 39). 

Mr. Saylers identified exhibit P-8 as a trailer adjacent 

to the scale where the coal is weighed before it isdumped, 

and exhibit P-7 as a sulphur machine and ash oven used to 

determine the sulphur and ash content of the coal. He 

observed this testing equipment in the trailer where the 

scaleman weighs the coal. He also identified exhibit P-9 

as a photograph of the front-end loader which is used to load 

the coal from each of the stockpiles into the hopper of the 

portable loading unit. He described the loading process as 

"unique" in that the railroad cars which are being loaded 

remain stationary as the mobile loading unit loads each car. 

The front-end loader is used to load the coal from the 

particular stockpiles which are nearby, but each railroad car 

is not loaded with coal from the same pile. The front-end 

loader may load coal taken from different piles into the 

hopper before it is loaded on any particular railroad car, 

and Mr. Saylers "assumed" that this loading procedure involved 

the mixing of coal which has been taken from different coal 

seams and stockpiled by seam. He confirmed that he observed 

the front-end loader taking coal from two different stockpiles 

and dumping into the loading hopper (Tr. 39-42). 

Mr. Saylers explained further that exhibit P-9 is a 

photograph of the front-end loader dumping coal into the 

hopper as shown in exhibit P-11. After it is dumped into 

the hopper, the coal goes through a crusher, comes out onto 

the belt line of the mobile loading unit as shown in exhibit 

P-11, and is then dumped directly into the railroad car. 

The mobile loading unit is on a track so that it can adjust 

the two directional belt lines into the particular car which 

is being loaded (Tr. 43-44). 

Mr. Saylers stated that on the basis of his observations 

of the loading process at Mrs. Slusher's facility, as well 

as his experience and knowledge of the coal mining industry 

it is "a fair assumption" that a coal "blending process" 

takes place at the facility. He based his conclusion on 

the fact that after the coal is stockpiled in separate piles, 

and after it is tested for sulphur and ash content, the mixing 

or blending takes place when coal is taken from different 

piles and loaded into a common hopper for loading onto the 

railroad cars in its "mixed or blended" state. His experience 

indicates that the mixing of coal from different piles where 

the sulphur or ash content may vary, results in a mix or 

blend of the desired final ash or sulphur content. Further, 

813 
Mr. Saylers .indicated that in his 23 years of experience in 

the coal industry, he has never known a railroad car of coal 

being sold without some kind of predetermined ash or sulphur 

content specifications being placed on it by the purchaser 

(Tr . 4 5-4 8 ) . 

Mr. Saylers identified exhibit P-10 as a photograph of 

a separate stationary "grading tipple" used to make stoker 

coal, lump coal, or "egg coal" for domestic use. He described 

the term "making coal" as the grading process which takes 

place after the coal is dumped into the hopper by a loader. 

The coal moves along the belt shown in exhibit P-10 where it 

is sized by means of a screen. Different sized screens are 

used to produce different coal products (Tr. 43). He confirmed 

that this particular operation is separate from the operation 

used to load the railroad cars (Tr. 44). 

In further explanation of the separate grading tipple, 

Mr. Saylers stated that its primary use is for retail "house 

coal" where customers may buy a truck load or so, but he 

confirmed that he had no knowledge as to whether or not that 

coal was from the piles loading onto the railroad cars. 

Altt.~mgh he stated that the coal came "out of the yard--out 

of their stocking area," he personally never observed such 

coal being processed through the separate grading tipple 

used for domestic sales(Tr. 49). 

On cross-examination, Mr. Saylers confirmed that when 

he visited the respondent's facility in July 1982, he was 

there to inspect the facility in accordance with a court order 

issued against Summit Resources (Tr. 51). He also confirmed 

that at no time has MSHA ever been refused entry onto the 

facility by anyone connected with the respondent Mineral 

Coal Sales Inc. (Tr. 52). 

Mr. Saylers testified that he again visited the facility 

in December 1982 when the citation for failure to file certain 

reports were issued, and that since Mrs. Slusher was in Florida, 

he dealt with a foreman who was on duty (Tr. 58). He testified 

as to certain observations which he made while he was there. 

He confirmed that the setting on the crusher in question was 

already set, and at no time has he ever observed anyone 

adjusting the crusher for different sizes (Tr. 60). He also 

confirmed that he observed coal being dumped and weighed, and 

he did not inquire as to the names of any of the persons doing 

this work because it is MSHA's view that anyone working at 

the facility is "an employee of that mine site" (Tr. 62). 

He did confirm that the person who was operating the test 

equipment in the trailer advised him that he "worked for 

Jim.111y Hubbard" (Tr. 66) • 

814 
Mr. Saylers stated that he has personally never observed 

the separate stationary tipple in operation, but has observed 

a loader putting coal into it from the highway while driving 

by, and he assumed that it was running (Tr. 68-69). 

Mr. Saylers testified that when he was at the facility 

he observed Donald Price Slusher, Mrs. Slusher's brother-in-law, 

and Michael Slusher, her nehpew, performing work in connection 

with the mobile loading unit. Price was operating the unit, 

and Michael was doing some maintenance work (Tr. 70). He 

confirmed that he was not with the inspector in March 1983, 

when he issued the citations for failure to take a noise survey 

and failure by Mr. Slusher to take first aid training, but 

that he did discuss the citations with the inspector who 

issued them (Tr. 75). 

Mr. Saylers stated that except for the mobile loading 

unit which runs on rails, the respondent's loading facility 

is no different from other loading facilities which he has 

observed. The only thing that sets them apart, is that other 

facilities he has observed utilize stationary loading equipment. 

When asked to characterize the respondent's facility, Mr. Saylers 

responded as follows (Tr. 79-81): 

A. I said it was a unique situation, but 

it is no different from any other loading 

facility except this one is mobile, runs on 

a rail, and the others are stationary. 

Q. What would you classify it? Is it a 

prep plant or is it a cleaning plant? 

A. It's a loading facility. 

Q. It's not a prep plant? It's not a 

cleaning facility? 

A. I couldn't say that it's a cleaning facility. 

MR. CRAWFORD: Just talk about the machinery 

that loads the coal. 

JUDGE KOUTRAS: Hold it. I've got a rubbertired front-end loader; that's P-9. P-11 is 

a mobile loading unit with a hopper, bridge 

crusher and conveyor belt -- that's what 

somebody said on the back. What are you 

asking him? 

815 
MS. SLUSHER: I'm asking him what he classifies 

this a$. 

JUDGE KOUTRAS: He doesn't have to classify this 

as anything. What he has to do is identify it. 

What is it? What MSHA has done is classify 

your whole loading operation, including all these 

pictures, in one big bag and they say it's a 

custom preparation plant isn't that so, ~r. Crawford? 

MR. CRAWFORD: That's basically it. 

JUDGE KOUTRAS: At this time you're asking him 

how you classify the machinery as shown in P-11. 

THE WITNESS: It's a loading facility. 

BY MS. SLUSHER: 

Q. Does it have a picking table? 

A. We have several loading facilities that don't 

have a picking table. 

Q. But does this particular one have a picking table? 

A. If it does I'm not aware of it. 

Q. Does it have any method for extracting 

impurities out of the coal? 

A. It's not a cleaning plant. I said it's a 

loading facility. 

Q. It has no method of separation them? 

A. No, ma'am. That's only done in a cleaning 

plant. 

Q. So when you talk about processing -- when 

you say coal is processed, what are you talking about? 

A. Processed can be anything; anything that you 

do to the coal. 

Q. If I dump it, it's processed? 

A. Blending, mixing, sizing, testing; anything 

that you do to it is processing. 

JUDGE KOUTRAS: This particular mobile unit, all 

it does is load? It doesn't do these other things? 

816 

.. ····-· .... ···-··--·--·-~·-···------------ ···-----------·- ... 
THE WITNESS: No. 

MR. CRAWFORD: It was stated previously there 

was a crusher on there. 

THE WITNESS: There is a crusher; that's right. 

MS. SLUSHER: We don't dispute the crusher. 

BY MS. SLUSHER: 

Q. But you have not observed anything whatsoever 

that makes it look like anything other than just 

crush the coal and put it on the car? 

A. I have observed a particular size being put 

on the railroad car, yes. 

Q. But not custom adjustments or anything like that? 

A. I have not observed 

JUDGE KOUTRAS: When it comes your turn, if you 

can convince me that the only thing P-11 does is 

crush the coal to one consistency from time 

immemorial to load then that's all it does. 

What that means -- we'll see what it means. 

MS. SLUSHER: I guess I've belabored the point 

more than I should. 

JUDGE KOUTRAS: I guess that's the point you're 

trying to make. It just sizes coal to one size. 

It processes coal to one size? 

MS. SLUSHER: Right. 

In r~sponse to further questions as to what he may have 

observed when he visited the facility, Mr. Saylers testified 

as follows (Tr. 83). 

BY MS. SLUSHER: 

Q. Was there any conversation with anybody about 

as far as the dumping concerning individual 

piles of coal being from individual operators? 

A. I talked with -- I guess he was a scale man 

where the coal come from first of all because I 

was concerned and interested. A lot of times I 

find out new mines and so forth from asking 

questions. He told me that most of the coal 
was corning out of the State of Kentucky; 

that's where it was being trucked from. He 

said there was different seams, different 

qualities of coal. That's why it was being 

separated. I didn't pursue why you dump it 

here and why you dump it there, because like 

I said, again, it's none of my business. The 

thing that concerns me was the way -- method 

they were dumping it -- the way they were ramping 

it, some of the trucks backing up on the ramps. 

I'm more safety oriented than I am blended 

coal, you know. 

MS. SLUSHER: That's what I'm getting at -- he 

was saying it was dumped in individual piles. 

That implication is that they tested it first and 

then put in in the piles. Now what our position 

is that it was brought in and dumped and then 

tested to pay the operator, the people we got 

the coal from; not for any other purpose. That's 

the reason it was kept in separate piles. 

MR. CRAWFORD: What was your observation? You 

observed the latter. Is that correct? 

THE WITNESS: Yes. I observed it after the coal 

was being dumped in the particular piles. I 

observed the guy taking samples and I asked him 

what are you doing. He said we're checking to 

see what the ash is and we're checking to see 

what the BTU is because, you know, the different 

seams of coal 

MR. CRAWFORD: The government would have no 

objection to stipulate as to that observation 

that the testing occurs after the stockpiling. 

MS. SLUSHER: I have no further questions. 

REDIRECT EXAMINATION 

BY_MR. CRAWFORD: 

Q. You did say in your previous testimony that 

you were at the site of Mineral Siding facility 

on December 28th, 1982 in relationship to 

this one citation regarding employment? Do you 

recall that situation? 

A. Yes. 

816 
Q. When you were there did you observe the 

facility being operated? 

A. Yes. 

Q. And there were employees there performing 

certain tasks in loading coal. Is that correct? 

A. Yes, sir, there was. 

Q. And about how many? 

A. There was two men at the loading facility 

and there was one man at the -- weighing coal 

and there was another man there that was directing 

the trucks where to dump and so forth. 

Q. At the loading facility what were these two 

employees doing? 

A. Well, we observed them in preparation for 

starting and then also observed one man running 

the front-end loader and one man was running 

the loading facility itself. 

Q. The mobile 

A. Yes. 

Q. So you did observe employees at the site at 

that time? 

A. Yes. 

Q. Concerning the mobile loading facility we 

discussed previously, there was a crusher located 

on there. Is that accurate? 

~- Yes, sir. 

Q. Can that be adjusted to certain sizes of coal? 

A. All of the stationary crushers that I have 

been acquainted with are adjustable. 

Q. We're talking about the crusher on the mobile 

loading facility. Is that correct? 

A. Yes. Of course, they just installed a new one 

and I don't know what type they put on. I'm assuming 

~hat it is adjustable, but I can't say that it is. 

819 
Q. In reference to the laboratory, the trailer 

type facility that was located at the Mineral 

Siding facility, you observed it being utilized 

and in operation in conjunction with what was 

happening at the facility? 

A. Yes, sir. 

MR. CRAWFORD: I have no further questions. 

JUDGE. KOUTRAS: Do you have anything else? 

MS. SLUSHER: Again, he did not observe anything 

being adjusted on the crusher. 

THE WITNESS: At the time I observed it, no. 

Respondent's Testimony and Evidence 

Price Slusher, confirmed that he is the brother-in-law 

of Bobbie S. Slusher, and he testified that he is presently 

employed by Mineral Coal Sales, Inc. He stated that duri~g 

the period July 1, 1982 to March 1, 1983, he was employed by 

Interwise and was not under the control of Mineral Coal Sales, 

and was not paid by Mineral Coal Sales. He stated that in his 

employment with Mineral C~al Sales, he acts as the facility 

foreman or superintendent, and his duties include mechanical 

work and the operation of the tipple. He had the same duties 

when he was employed by Interwise (Tr. 131). 

Mr. Slusher stated that his involvement with the coal 

loading as an employee of Mineral Coal Sales begins when he 

receives instructions from Kim Reed with regard to the loading 

of coal. He identified Mr. Reed as an employee of Jim Hubbard, 

and Mr. Slusher stated that the crusher has no picking table, 

and that there is no available method for separating the coal 

or making any coal sizing adjustments to the crusher, and 

that "they're all run through the same thing -- the same 

sizes" (Tr. 132). He further described his duties as follows 

(Tr. 132-133) : 

Q. Kim Reed is an employee of Hubbard who 

instructs you what cars to load? 

A. That's right. 

Q. Where is the coal? Is the coal all together 

in one pile or many piles? 

A. No, it's in many piles. It's in separate 

piles and he instructs us most of the time by 

a little note telling us what bucketful to 

pick up here and what bucketful to pick up in 

another pile and another pile, however his 

mixture is that he wants. 

820 
Q. ·Do you have any idea why the coal is put 

in separate piles? 

A. It's because of a different grade coal. 

Q. Different grades. Does that mean from 

different operators or 

A. Different operators. 

Q. Do you have any knowledge of who owns that 

coq.l? 

A. No. Not at the point till it comes to my 

dock. Then Hubbard Enterprises, I suppose owns 

it from there on. 

Q. You're not familiar where the coal is coming 

from as far as an individual mine? 

A. No. 

Q. Are you familiar with what custom preparation 

of coal is? Do you understand custom preparation 

of coal? 

A. I don't know what you mean by that. 

Q. Well, do we do anything that makes that coal 

specifically -- as Mineral Coal Sales, does Mineral 

Coal Sales do any process that prepares that coal 

for a special person or a special customer? 

A. No, not in our process we don't. As I say, 

all we do is load what they say to load. 

Q. And we don't get involved with picking out 

or taking out any kind of impurities or washing? 

A. No. 

Q. Does Hubbard Enterprises exercise any 

jurisdiction over Price Slusher? Does he instruct 

you as to your duties? 

A. No, other than just what coal to load. 

Q. And he doesn't pay you? 

A. No. 

82J 
Q. He doesn't furnish any side benefits to you? 

A. No. 

Q. Are you aware of who owns Hubbard Enterprises? 

A. Jim Hubbard, I suppose. 

Q. To your knowledge has Mineral Coal ever had 

any interest in Hubbard Enterprises? 

A. No. 

Mr. Slusher testified that mining first began at the 

respondent's facility sometime in 1979, and that Mineral 

Developers constructed the loading dock and operated the 

facility. Mineral Developers and Mineral Coal .Sales are 

owned by the same individual (Tr. 134). Mr. Slusher stated 

that he was employed by Mineral Developers as a foreman, and 

after mining ceased, coal loading continued under the same 

procedures followed at the present time (Tr. 135). Coal 

was simply loaded for a fixed fee, and no testing or coal 

quality services were provided by the respondent (Tr. 135). 

On cross-examination, Mr. Slusher testified that when 

he worked for the Interwise Corporation from July 1, 1982 

to March 1, 1983, the company was owned by a Mr. Sheley Mullins. 

Mr. Mullins is not related to him, and Mr. Mullins usually 

came to the site to check the work and instruct him on what 

he wanted done. Mr. Slusher stated further that he performed 

maintenance work and operated the loader, and was paid by 

checks issued by Interwise (Tr. 136). 

With regard to the present coal loading procedures, and 

the instructions from Hubbard Enterprises employee Kim Reed, 

Mr. Slusher stated as follows (Tr. 137-139): 

A. Kim will usually bring a whole pad out 

a little piece of paper out and he'll 

have wrote down on it how many buckets of 

this coal or how many buckets of that coal 

out of each pile, you know, how many buckets full 

he wants to put in the cars. And that's what 

we do. And he'll usually have on there four 

cars or five cars or whatever he wants loaded 

of that mixture, you know. 

Q. And then he may come along and give you 

different instructions for a different set 

of cars? 

822 
A. That's right. He'll make any other 

instructions wrote on the same piece 

of paper. 

Q. To your knowledge, what happens to 

the coal after you load it? 

A. Other than the railroad pulls it out, 

that's as far as I know. 

Q. Did Mr. Hubbard ever mention to you 

where it goes or who he sells it to? 

A. No, he sure doesn't. 

Q. Do you have any idea? 

A. I haven't any idea where it goes to. 

It's not many operators that will tell you 

that. 

Q. You also stated that the coal is stockpiled in many piles as it comes in from 

independent operators or other different types 

of miners? 

A. That's right. 

Q. Do you know where they come from or 

where the coal comes from at all? 

A. No, sir, I sure don't. 

Q. In this area of the country? 

A. They1 ll say Kentucky or they'll say --

they won't go into no specific details of where 

the coal come from. 

Q. Do you do any of the testing? 

A. No. 

Q. You're aware that there is some type of testing 

going on at that facility? 

A. Well, yeah -- they don't tell us anything 

about the testing. 

Q. Who does know about the testing? 

823 
A. Kim Reed does. 

Q. But they come in with different grades 

according to wherever the particular truckloads came from, whether it be Kentucky or 

wherever? 

A. That's right. 

Q. And then you load them per instruction 

from Mr. Hubbard? 

A. That's right. 

Q. A different number of railroad cars per 

instruction? 

A. Right. 

Q. Different mixes, different shovelfuls 

or according to what is instructed and they 

may vary from day to day? 

A. That's right. 

Q. So then there are different mixtures or blends 

that occur that are loaded on these railroad 

cars? 

A. That's right. 

With regard to any exposure to potential hazards by 

employees on the facility, Mr. Slusher testified as follows 

(Tr. 13 9-141) : 

Q. What if someone was injured on the premises? 

Who would have any type of training or control 

-- you are a foreman that's part of the loading 

process here. What if an injury would occur or 

dangerous situation might occur in your operation? 

What control do you have over that? 

A. Yes, I've had first aid training and also as 

far as I know everybody on the dock has had 

first aid training. 

Q. What about -- you don't perform the test_ing 

but you mentioned that Hubbard Enterprises is 

involved in that. Is that accurate? 

A. That's right. 

824 
Q. Some of them do the testing that occurs 

in the facility at the testing trailer 

or whatever -- laboratory there? 

A. That's right. 

Q. Do employees of Hubbard do any other 

things besides just the testing? Do they 

help in the loading? 

A. No, they don't help in the loading. 

Q. But they are involved in the testing of 

stockpiles or the coal as it comes in to 

determine what grade it is. Is that correct? 

A. Yes. 

Q. So as a truck pulls up and unloads a load 

of coal they may be out there adjacent to it 

somewhere taking a sample to test. Is that 

correct? 

A. That's correct. 

Q. So they could be affected by what's 

happening in the yard as far as the movement of 

those large trucks and dumping of those piles 

and possibly a dangerous circumstance could 

develop. Is that correct? 

A. Most of the time when they're taking a 

sample they pick between trucks. They're not 

right there when a truck dumps as a general 

thing. They're not there when a truck actually 

is in the process of dumping. 

Q. Do they ever come into your work area as 

you're loading the coal -- after the coal is 

brought in and stockpiled and they maybe perform 

tests and then -- of course, how you load 

it. You go with a front-end loader and take a 

shovelful here and a shovelful there. Are they 

out there when you're doing that process at 

all? 

A. They might pass through. 

Q. How about when you're actually loading it 

into the mobile loader which is loading the railroad cars out there? Are they at any time out 

there testing coal to make sure that it's going 

in at the correct grade or anything like that? 

825 
A. No, they're not there. 

Q. They do that before? 

A. Yes. 

Q. So they are out in the work area when you 

are taking different buckets? 

A. They're more or less passing through. 

They don't stay out there or anything like that. 

Q. But they would be proximate to the front-end 

loader that's working out in that area or could 

be? 

A. Could possibly. 

In response to further questions, Mr. Slusher indicated 

that he personally had no way of knowing whether different 

blends of coal were being mixed on any given day. He also 

indicated that when he was employed by Interwise, all of 

the equipment he used and worked on belonged to Interwise, and 

any citations issued by MSHA should have been served on that 

company (Tr. 144). He confirmed that the policy of Mineral 

Sales Company is to conduct morning safety inspections of 

the facility (Tr. 145). 

Mr. Slusher testified further that Mineral Coal Sales 

has operated the present loading facility since March 1983, 

and that he and Michael Slusher are the only employees. At 

the time Interwise operated the facility, they had two employees, 

and Hubbard Enterprises also has two employees. He confirmed 

that at any given time, a total of four employees work at 

the facility. The trucks which haul the coal in are owned 

by independent truckers (Tr. 153-154). The loader shown 

in the photographic exhibit is owned by Mineral Sales, but 

it is not the same loader which was operated by Interwise in 

March 1983, and he described the differences in the two loaders 

(Tr. 155). 

Kim Reed, testified that he is employed by Hubbard 

Enterprises, and has been so employed since June 1982. He 

is a state certified dock foreman, and has been certified by 

the State of Virginia as "an approved competent" miner since 

1981. Mr. Reed confirmed that he was present and working on 

the facility during the time·Interwise and Mineral Coal.Sales 

were involved in the loading operations (Tr. 161). 

Mr. Reed testified that Hubbard Enterprises is owned 

and operated by Mr. James Hubbard and his wife. They work 

together in their office on the facility, and Mrs. Hubbard 

serves as the secretary. Mr. Reed examined a copy of a letter 

dated June 8, 1983, from Mr. Hubbard to MSHA official James Belcher, 

and he expressed agreement with the statement made there by 

Mr. Hubbard (Tr. 162-163). 

826 
Mr •. Reed explained the procedures he follows when 

coal is delivered to the premises as follows (Tr. 164-166): 

A. When the coal comes in I have another 

employee that helps me and I'm the foreman over 

him. When the coal comes in we weigh it. 

People that regularly haul we have certain 

places set for them to dump. We tell them 

where to dump. If they bring in a different 

quality or a different seam that I don't know 

of, I call Jim and tell him where to have me 

dump the coal. Then we sample the coal -- the 

guy that helps me goes down and samples the 

coal, gets the samples off of it. He prepares 

the samples and I run the samples and then I 

get the analysis. Then if Jim wants to -- if 

he needs to know in a hurry the analysis I 

pick up the phone and I call him. I tell him 

what the coal line is -- whether he wants them 

to continue to hauling or discontinue. Then 

I have a pad that I keep down and I write all 

the samples down and at the end of the day or 

the next morning I take the samples down to 

the office, lay them on the secretary's desk 

so she can copy the samples down -:- analysis. 

Q. So actually you don't -- you take it off 

the pile, the individual piles. You don't take 

it off of a thing that's been stacked together 

or blended together on the site, do you? 

A. No, ma'am, we do not. We take it off of 

the truck. 

Q. They say in this letter that they run ash 

and sulfur and BUT and FSI. Is that correct? 

A. Yes. 

Q. Is there any other test that's done? 

A. No, there's not. 

JUDGE KOUTRAS: What's FSI? 

THE WITNESS: It's free swelling index. 

BY MS. SLUSHER: 

Q. Do you do any fluidity tests? 

A. No, ma'am, we do not. 

827 
Q. Do we have the capacity in the lab to do 

the fluidity test? 

A. No, ma'am, we did not. 

JUDGE KOUTRAS: Was that a slip of the tongue 

when you said we? 

MS. SLUSHER: Well, that's my equipment. 

BY MS. SLUSHER: 

Q. Do you make any reportts to any companies 

concerning what's in the pile? When you take 

a sample off the pile here do you make a report 

to any end users of the coal what's in that 

pile? 

A. To the people we ship the coal to? 

Q. Yes. 

A. No. The only thing we do -- the only 

report taken is the car -- after the car is 

loaded we sample the cars. That is the only 

we take the car samples and I give them to --

take them to the office. And then Jim relays 

the message and reports to them. I don't give 

analyses to none of the companies that we ship 

to. As a matter of fact, he has ordered me not 

to give them. If he's out of town or anything 

when they call I don't give them to them. 

Mr. Reed confirmed that the laboratory personnel are 

employees of Hubbard Enterprises, and that Mr. Hubbard buys 

all supplies and pays for all required maintenance on his 

equipment. Mr. Reed also confirmed that each morning he 

instructs the loader operator as to how many cars of coal to 

load, and he also instructs him as to which piles the' coal 

should be taken from (Tr. 166-167). 

Mr. Reed stated that extraction of dirty coal or 

impurities does not take place, and the tipple is not 

adjusted on a daily basis to size the coal. All coal orders 

are shipped "on a certain size," and adjustments for sizing 

are not done. With regard to the stationary tipple, Mr. Reed 

stated that it is used to "grade out coal for domestic use" 

(Tr. 167). He explained that that this coal is "house coal" 

which is made available "as a more or less convenience to 

the people" (Tr. 168): Mr. Reed confirmed that Mr. and Mrs. Slusher 

have no interest in Hubbard Enterprises, and that the respondent 

is paid on the basis of the coal tonnage that is loaded and does 

not own the coal (Tr. 168). 

828 
On cross-examination, Mr. Reed stated that his duties 

as a State certified foreman for Hubbard Enterprises consist 

of direct supervision over one other employee of Hubbard 

who is involved in testing. He also indicated that he has no 

authority over the "loader man and tipple man" employed by 

the respondent. 

Mr. Reed confirmed that when Interwise Corporation was 

operating on the property it did its own testing and loading 

of its own coal and Hubbard Enterprises tested and loaded 

the coal which it owned (Tr. 169). In further explanation 

of his duties while in the employ of Hubbard Enterprises, 

Mr. Reed stated as follows (Tr. 171-172): 

Q. Part of your job is to tell Mr. Slusher 

at Mineral Sales, Incorporated how to load the 

coal -- what mixture of each pile. Is that 

correct? 

A. Yes, sir. 

Q. Each stockpile, you said, comes from a 

different type of mine? 

A. Different seam. 

Q. Do you test that coal to see just what 

quality it is? 

A. That's right, we do. 

Q. And you said that Jim Hubbard makes that 

determination and tells you what king of mix 

he wants for any particular load? 

A. That's true. 

Q. Why does he request that? Do you have any 

idea? Who tells him, in other words? 

A. The people he ships to; the people that buy 

the coal off of him each month. They send him 

a letter stating how much -- the quantity 

of coal and the quality of coal that they need. 

Q. Do you know anybody that he ships to? 

A. Yes, sir, I do. 

Q. Could you name a few? 

829 
JUSGE KOUTRAS: You can't take the Fifth 

Amendment in this proceeding if that's what 

you're thinking about. I don't want you to 

get in trouble. Is there any proprietary 

confidence? 

MS. SLUSHER: Confidentiality that's one 

reason -- I'm not trying to play ignorant when 

I say .I don't know, but I really don't want to 

know because of the brokers and operators. 

JUDGE KOUTRAS: If he knows -- answer the question. 

THE WITNESS: We shipped to Shelton Coal Company, 

A.T. Massey, United Coal and Coke, John McCall, 

Jefferson Coal, that's about it. 

JUDGE KOUTRAS: He rattled off four or five people 

that coal is shipped to. 

BY MR. CRAWFORD: 

Q. They request by letter to Mr. Hubbard? 

A. Yes, sir. 

Q. What type of coal they want sent? 

A. That's right. 

Q. And he tells Mr. Slusher with Mineral Coal 

Sales how to mix it? 

JUDGE KOUTRAS: No, he tells Mr. Reed. 

THE WITNESS: I go down there every morning. 

BY MR. CRAWFORD: 

Q. You tell Mr. Slusher? 

A. Yes. Jim tells me how many cars he needs 

loaded that day and as far as the mixture for the 

quality of coal. I write it down and I take it 

out and give it to Mr. Slusher. 

Mr. Reed confirmed that after the railroad cars are loaded 

he again samples the coal in each car to determine whether 

or not the customer who ordered it from Mr. Hubbard is actually 

getting "the type or grade of coal" that he contracted for 

830 
(Tr. 173). With regard to the. stationary "tipple," he 

identified it as a "separator" and indicated that the 

respondent does not use it. He explained that the separator 

is used to separate stoker, egg, and lump house coal by means 

of screens which "shakes down" the coal through holes in the 

screen. Separate screens are used for fines and lump coal 

up to four inches depending on the customers preference (Tr. 175). 

Mr. Reed stated that the house coal processed by the 

separator is sometimes sampled, and he identified the testing 

and sampling equipment as machines used for testing for ash, 

sulfur, and BTU content, and a bunsen burner, a pulverizer, 

and a sample crusher (Tr. 175). Mr. Reed indicated that 

this test equipment is owned by Mrs. Slusher, but had no knowledge 

as how she is compensated for the use of the equipment by 

Hubbard Enterprises (Tr. 176). He also confirmed that 

Mrs. Slusher owns the stationary domestic coal screening 

equipment, and Mrs. Slusher confirmed that she is paid one 

dollar a ton for the domestic coal processed and sold by 

Hubbard (Tr. 178). Mr. Reed also confirmed that Hubbard 

Enterprises has an off ice in the same residence where Mineral 

Coal Sales maintains its office, and he assumed that Hubbard 

pays rent to Mrs. Slusher for this office space (Tr. 185). 

Posthearing Submissions 

Respondent filed an affidavit from James w. Hubbard, 

owner of Hubbard Enterprises. Mr. Hubbard states that he 

is in the business of buying and selling coal. He confirmed 

that Hubbard Enterprises and Mineral Coal Sales operate as 

independent business units, and are not connected by any 

common stock ownership. 

Mr. Hubbard states that his coal is purchased from 

many independent operators or truckers for sale to his 

customers. He states further that Mrs. Slusher's Mineral 

Siding loading facility is used to load the coal, and 

that he pays Mrs. Slusher $2 per ton of loaded coal. 

This payment is based on the truck weights as they cross 

the scale, and is not dependent on the type or quality of 

coal purchased or sold by Hubbard Enterprises. He outlined 

the procedure used in the buying and selling of the coal, 

in pertinent part as follows: 

I. I arrange with small operators or truckers 

who purchase coal and then resell it to buy 

their coal. We agree on a price range provided 

it is a certain grade of coal. When the trucks 

deliver the coal, it is dumped on the ground 

in individual piles, according to the operator 

or seller of the coal. To see if the coal is 

831 
the same as represented to me and to 

protect myself to keep from losing money and 

buying bad coal, I will sample the coal after 

it is dumped. If it is obviously not what I 

agreed to buy, then I will contact the owner 

of the coal and tell them I will pay a lesser 

amount or they can pick up the coal. This 

separation into piles permits me to do this. 

After the coal is loaded onto the cars, I 

have car top samples taken from time to time. 

This is to protect Hubbard Enterprises in 

case there is some question as to what is in the 

cars. Over the years it has been a problem 

in the industry of operators and coal people 

doing what is called layering, that is putting 

the good coal on top of the trucks or cars, 

covering up inferior coal in the bottom of the 

trucks or cars. A preliminary sampling of the 

truck loads dumped might not reveal this problem 

but sampling of a loaded car would show this 

up. In other words when it is stirred up by 

loading, what you thought was good coal might 

be poor quality. 

II. I do not furnish any analysis to my customers. 

They will give me an order for so many tons of 

coal and I will load the cars. I know what they 

need from having done business with them the 

last six years. In the event a customer ask 

for analysis, Standard Lab is hired to sample 

toe coal and give a copy of the analysis to the 

customer only. We get orders from many different 

customers for so many cars of coal per week. 

The only people who see these orders are myself, 

my wife, and our daughter. No one else has access 

to any of this information. I am filing with 

this affidavit samples of confirmation of orders 

from Shelton Coal Company dated September 19, 

1983 and September 29, 1983. The size of 1 1/4" 

is the standard sizing and no adjustment is made 

on the crusher for any of my loading. 

III. The stationery unit on the premises is used 

for domestic coal sales. It is primarily an 

accommodation of the public and the same service 

provided at any domestic coal yard in the country. 

It does not constitute any large amount of our 

business. We pay Mineral $1.00 per ton for each 

ton of coal run thru [sic] this unit. The coal 

832 
coming in is marked for domestic use. I 

do not sample it. It is a completely 

separate operation from the loading onto the 

railroad cars. The reason that I decided 

to make house coal was because people were 

telling me they were having a hard time finding 

coal to heat their homes. 

In response to the information provided by Mr. Hubbard's 

affidavit, MSHA asserts that in Part II of his affidavit, 

Mr. Hubbard's statement that "I know what they need from having 

done business with them the last six years," is a suggestion 

by Mr. Hubbard himself that his company mixes or provides coal 

to meet customer specifications. 

Responding to the samples of confirmation orders dated 

September 19 and 29, 1983, submitted by Mr. Hubbard from 

the Shelton Coal Company, MSHA asserts that these are only 

modifications of orders and do not represent the contents 

of the original purchase orders. In support of this, MSHA 

submitted as Exhibit No. 12, a copy of an original purchase 

order, dated September 20, 1983, from Shelton Coal Company 

to Hubbard Enterprises. MSHA states that this order clearly 

shows that Shelton requested more than just tonnage in that 

the coal purchased was to be of (1) 13,000 BTU; (2) 10 Ash; 

(3) 1 Sulfur; (4) 2700 Fusion and (5) 60 Grind and a size of 

1 1/4 x O" Nutslack. 

MSHA argues that the mineral siding facility is more 

than just a loading facility as was the situation in Secretary 

v. Oliver Elam, Jr. Co., 4 FMSHRC 5 (January 7, 1982). 

MSHA asserts that it is a facility where weighing, testing, 

storing, mixing or blending of coal occurs, not for the purpose 

of facilitating the loading process but for the purpose of 

preparing or milling the coal to meet customer specifications. 

MSHA concludes that this is coal preparation, in that a process 

occurs, usually performed by the mine operator engaged in 

the extraction of the coal or by custom preparation facilities, 

which is undertaken to make coal suitable for a particular use 

or to meet market specifications. 

Findings and Conclusions 

Jurisdiction 

In Secretary of Labor v. Oliver Elam, Jr., Company, Inc., 

2 FMSHRC 1572 (1981), the Commission affirmed a Judge's decision 

that Elam was not a "mine" subject to the 1977 Mine Act. The 

833 
facts in Elam are surprinsingly similar to those presented 

in the instant case. Elam owned and operated a commercial 

dock, and 40 to 60 percent of its loading tonnage was 

attributable to coal. Four or five coal brokers paid Elam 

to load coal onto barges at the dock, and the brokers, who 

were not mine operators, arranged for delivery of the coal 

by truck to the dock, and then for delivery by barge to their 

customers. Elam's facilities for loading coal consisted of 

a hopper, a crusher, and conveyor belts. The coal was 

delivered to and stockpiled on Elam's property, where it was 

weighed by the broker's employees and placed in the hopper. 

A conveyor carried the coal from the hopper to the crusher 

where it was broken into essentially one size. The crusher 

could not be adjusted for variable sizing and has no grates 

to sort the crushed coal. The crushing was done because the 

conveyor belts were covered and could always accommodate 

large pieces of coal. From the crusher another conveyor 

carried the coal to the barges, but occasionally the crusher 

was by-passed and coal was loaded directly into th~ barges. 

All coal whether crushed or not was loaded on the barges. 

Elam did not prepare coal to market specifications or for 

particular uses, nor did it separate waste from coal or add 

any material to it. Thus, all of Elam's activities with 

respect to coal related solely to loading it for shipment. 

In rejecting MSHA's assertion that Elam was a "mine," the 

Commission stated as follows at 2 FMSHRC 1573, 1574: 

*** we find it significant that the types 

of activities comprising 'the work of preparing the coal' have consistently been 

categorized as 'work • • • usually done 

by the operator.' Thus, inherent in the 

determination of whether an operation 

properly is classified as 'mining' is an 

inquiry not only into whether the operation 

performs one or more of the listed work 

activities, but also into the nature of 

the operation performing such activities. 

In Elam's operations, simply because it in 

some manner handles coal does not mean 

that it automatically is a 'mine' subject 

to the Act. 

Rather, as used in section 3(h) and as 

defined in section 3(i), 'work of preparing 

coal' connotes a process, usually performed 

by the mine operator engaged in the extraction 

of the coal or by custom preparation facilities, 

834 
undertaken to make coal suitable for a 

particular use or to meet market specif ications. In the present case, although Elam 

performs several of the functions included 

in the 1977 Act's definition of coal 

preparation (i.e., storing, breaking, 

crushing, and loading}, it does so solely to 

facilitate its loading business and not to 

meet customers' specifications nor to render 

the coal fit for any particular use. We 

therefore conclude that Elam's facility is 

not a 'mine' subject to the coverage of the 

1977 Mine Act. 

In addition to the Elam decision, respondent relies on 

several past opinions rendered by the Secretary's Solicitor's 

Office, to support its argument that the Mineral Siding 

facility is not a "mine" within the meaning of the Act. 

Exhibit R-1 is a copy of a March 31, 1972, advisory opinion 

by the Office of the Solicitor, U.S. Department of the Interior, 

pursuant to the 1969 Coal Act, with regard to whether or not 

a coal processing operation in Pennington Gap, Virginia 

(Geisler Coal Sales, Inc.} was a "coal mine" within the meaning 

of section 3(h} of the Act. Based on the facts presented 

to the Solicitor's Office at that time, it.was concluded that 

Geisler was not a coal mine or a mine operator subject to 

the Act. Subsequently, by letter dated October 10, 1980, 

the U.S. Department of Labor's Solicitor's Office advised 

the United States Attorney's Office in Roanoke, Virginia, 

that since it was determined that MSHA had no enforcement 

jurisdiction over Geisler, any efforts to collect civil 

penalties against Geisler should be stopped and the matter 

closed (Exhibit R-1). 

The Geisler opinion was based on the following facts 

which appear at pages 1 and 2: 

1. Mr. Geisler does not mine coal, nor 

does he own a 'coal mine' per se. He 

purchases coal from one mine-located in 

Virginia and 'sizes' the coal by the use 

of a vibrating screen. One part of 

the 'sized' coal is loaded into railroad 

cars and shipped to his purchaser. The 

remaining lump coal is retained in a 

storage yard for domestic sales. 

Approximately 150 tons of coal per day 

are processed or 'sized.' 

835 
.2. Geisler has one employee and considers 

his business to be a rcoal grading plant. 1 

The Virginia Department of Taxation classifies 

Geisler as a 'coal merchant.' 

3. He has no state or Federal mine identification number. 

The opinion goes on to recite the statutory definitions 

of the terms "coal mine" and "work of preparing the coal." 

The Solicitor concluded that Mr. Geisler's business did not 

fall within these definitional categories because he had 

nothing directly to do with the extraction of coal from its 

natural deposits in the earth, and that such extraction 

is a prerequisite to coming within those categories of a 

"coal mine." Citing the dictionary definitions of the terms 

"custom" and "coal preparation," the Solicitor made the 

following conclusions: 

Thus, by the use of the phrase 'custom 

coal preparation facilities,' it appears 

that Congress intended to extend the 

coverage of the Act to processors 

of coal who prepare the coal to the order 

or specifications of the mine operator who 

extracted such coal, whether the processor 

is independent of, or owned by, the coal 

mine operator. We reach this conclusion 

after a careful examination of the 

legislative history and evaluation of the 

overall purpose of the Act. The Act was 

primarily intended to promote health and 

safety in coal mines and thus assure a 

steady and reliable supply of coal in 

interstate commerce. Congress was well 

aware of the nature of the coal mining 

industry and the fact that most large mining 

operations include surface facilities for 

processing coal, either on or off the 'area 

of land' where the coal is extracted. 

In other cases, however, such facilities 

are owned by a subsidiary of the mining 

company, or by an independent processor 

whose function is to process the coal for 

the mining company, or a group of mines or 

mining companies, but such processors never 

actually 'own' the coal. It would have been 

anomalous and inconsistent with the purpose 

of the Act to extend coverage to preparation 

836 
facilities on the mine property but not 

to.cover those off the mine property but 

which are owned by or under contract to the 

mining company, because such facilities 

must operate to ensure that the mined coal 

is 'custom prepared' to the specifications 

of the mine operator or of the purchaser 

of the coal from the mine operator. 

On the other hand, it is our view that 

Congress did not intend to extend the coverage 

of the Act to independent processors who 

merely purchase mine run coal from one mine, 

or several mines, and on its own initiative, 

subject to no 'personal order or specification' 

of the mine operator who extracts the coal 

has been processed according to the processors 

own plans or specifications. Such a processor 

is much more in the nature of a wholesaler 

than that of a producer. It. is clear that 

Congress intended to bring within the Act the 

primary producers and 'custom' processors of 

coal to ensure a reliable supply of coal in 

interstate commerce. 

The Solicitor summarized his advisory opinion as follows: 

A. Processors of coal who prepare the coal 

to the order or specifications of the mine 

operator who extracted the coal, whether the 

processor is independent of, or owned by 

the coal mine operator, are covered by the 

Act. 

B. 'Custom coal preparation facilities' owned 

by a subsidiary of the mining company, or 

by an independent processor whose function 

is to process the coal for the mining company, 

or a group of mines or mining companies, 

but such processor never actually 'owns' the 

coal (or expressed in a different manner, is 

performing a service for the mining company), 

are covered by the Act, whether on or off of 

the mine property. 

c. Processors who purchase mine run coal 

from one mine, or several mines, and on its own 

initiative, subject to no 'personal order or 

specification' of the mine operator who 

extracts the coal, and who process the coal for 

sale on the open market, or to occasional 

837 
p~rchasers, or to its own customers or 

purchasers, after the coal has been 

processed according to the processors own plans 

or specifications, are not subject to the 

Act. Such processors fall more within the 

classification of a wholesaler or retailer 

than that of a mine operator who extracts the 

coal and has it processed to meet the order 

or specifications of the mine operator or the 

customers or purchasers from the mine operator 

who extracts the coal. 

Also included as part of Exhibit R-1 is a copy of an 

April 6, 1972, memorandum to all MSHA District Managers 

advising them that the above mentioned paragraphs A through C 

should be followed in determining the application of the 1969 

Coal Act to custom cleaning plants. 

Exhibit R-2 is a copy of a March 26, 1982, advisory 

opinion by MSHA's Associate Solicitor for Mine Safety and 

Health, Arlington, Virginia, concerning the application of 

the Act to Chance and Montgomery Coal Co., Inc., No. 1 Tipple, 

Jonesville, Virginia, and the pertinent portion of that opinion 

states as follows: 

It is our understanding that the facility 

consists of a tipple and a crusher. Clean 

coal is initially delivered to the facility 

by commercial carrier and then stockpiled 

before loading onto railroad cars for shipment to consumers. The tipple carries the 

coal to a crusher where it is broken into 

one size. The coal is not sized according 

to any operator's or consumer's specification, 

but crushed merely to better facilitate 

loading of the larger pieces of coal. We 

further understand that the facility is not 

located on or adjacent to any mine property 

and is not an integral part of any mining 

operation. 

Generally, MSHA has jurisdiction over a loading 

facility where coal preparation activity takes 

place. However, as a result of Secretary of 

Labor v. Oliver M. Elam, Jr., Company, 4 FMSHRC 

5 (Jan. 7, 1982), MSHA is currently reexaming 

loading facilities over which it is asserting 

jurisdiction to determine the nature and 

purpose of the work that takes place at these 

facilities. MSHA makes jurisdictional determinations based upon the factual circumstances 

of each situation. 

833 
In light of the Elam decision and based on 

the information currently available, it 

is our view that MSHA should no longer exercise 

jurisdiction over the facility. If at any 

future time the nature of the activity at the 

facility changes, we reserve the right to 

reevaluate this determination. A copy of 

this determination will be sent to the 

Occupational Safety and Health Administration 

for their consideration. 

Relying on the Elam decision, as well as well as the 

decisions in Marshall'""V:'" Stoudt's Ferry Preparation Company, 

602 F.2d 589 (3rd Cir. 1979) cert. denied 444 U.S. 1015 

(1980); and Secretary v. Alexander Brothers, Inc., 4 FMSHRC 

541 (1982) , MSHA argues that the testing and blending of coal 

at the respondent's facility constitutes "mining" under the 

Act. Further, MSHA asserts that whether brokers or direct 

customers purchase the coal is not relevant. MSHA maintains 

that it is the processing of coal by mixing or blending and 

sizing to meet certain specifications for the market that 

constitutes mining activity whether it be for the brokers or 

their customers or whether such mining activity is performed 

by respondent Mineral Coal Sales, Inc., or its contractor. 

MSHA's position is that the respondent is a "mine operator" 

within the meaning of .the Act, and that its facility is a 

type of custom preparation facility or a facility where coal 

is processed, mixed, or blended in order to meet certain 

customer specifications (Tr. 7). 

Respondent's position is that it operates a commercial 

loading dock, and from time-to-time loads coal for individual 

coal brokers for a fee of $2 a ton. Respondent denies that 

it is in any way involved in the purchase and sale of any 

coal, or that it is any way connected with the hauling or 

railroad transportation of the coal. Respondent maintains 

that its sole function is to insure that the coal is placed 

on the rail cars, and for that service it is paid $2 a ton, 

and denies that it is in any way connected with any coal 

preparation. 

Respondent maintains that it has two employees on its 

payroll, and that Hubbard Enterprises is the actual coal 

broker for whom respondent loads the coal onto railroad 

cars for transportation to customers. Respondent asserts 

that Hubbard Enterprises has employees who weigh the coal 

and direct its dumping as it comes on to respondent's property. 

Respondent states that Hubbard Enterprises also conducts 

the coal analysis, and respondent denies any contacts with 

any of the customers who purchase the coal from Hubbard 

Enterprises (Tr. 8). 

839 
Exhibit P-1 is an MSHA Legal Identity Report, dated 

May 22, 1979, and it reflects Mineral Coal Sales, Inc., was 

operating a facility known as Mineral Siding, and the commodity 

is shown as "coal," and Mrs. Bobbie S. Slusher is showri 

as President of Mineral Coal Sales, Inc., and the Mine ID No. 

is shown as 44-05226. 

Exhibit P-2 is an "updated" MSHA Mine Status and 

Inspection Data form dated January 11, 1982, and it reflects 

a change in the mine name from Norton Tipples to Mineral Siding, 

and the company name is shown as Summit Resources, Inc. 

The form also shows that the mine is a producing bituminous 

surface mine, with a surface loading dock. The Mine ID No. 

is again shown as 44-05226. 

Exhibit P-3 is an "updated" MSHA Mine Status and Inspection 

Data form dated July 1, 1982, and it reflects a change in 

the mine name back to Mineral Siding, and the company name is 

shown as Mineral Coal Sales, Inc. The form reflects that 

the mine is a bituminous mine, with a loading dock. The 

Mine ID No. is again shown as 44-05226. A notation on the 

form states "change of ownership, Mineral Siding is presently 

being operated by Mineral Coal Sales, Inc., Summitt Resources, 

Inc., terminated their lease of Mineral Siding." 

After careful consideration of all of the testimony 

and evidence adduced in these proceedings, I conclude and 

find that the respondent is in fact a "mine operator" 

within the meaning of the Act. I also conclude and find 

that it is an "operator" within the definitional parameters 

set out by the Commission in its Elam decision. On the facts 

here presented, the record establishes that the coal loading 

process carried out by the respondent in this case includes 

a procedure and practice whereby the coal that is ultimately 

loaded and shipped to the customers of Hubbard Enterprises 

is coal that is mixed to their particular specifications 

and standards. While I consider the respondent's "mining 

operation" to be a rather low key family operation, it does 

in fact qualify as a "mine" under the Act. My view here 

is that the operations carried out by Hubbard Enterprises 

and Mineral Coal Sales, Inc., consist of small family oriented 

business ventures which ma~ not compare in size and scope with 

other mining operations inspected by MSHA's enforcement staff. 

ever, I take these cases as I find them, and here, I am 

constrained to find that the respondent is a "mine operator" 

within the meaning of the Act, and is subject to MSHA's 

enforcement jurisdiction. 

I reject the respondent's assertion that it falls within 

the exceptions noted by the Commission in its Elam decision. 

840 

some 

How-
Contrary to the respondent's arguments, and contrary to the 

posthearing affidavit filed by Mr. Hubbard, it seems clear 

to me that Hubbard sells its coal according to certain predetermined quality specifications, and that the respondent 

here processes and loads that coal for shipment to Hubbard's 

customer's in accordance with the customers customized 

orders. In short, I conclude that the mining operation 

carried out by the respondent includes the custom blending 

and loading of coal to meet the specific specifications and 

needs of Hubbard's customers. The credible testimony of 

Mr. Reed, as well as the candid admission by Mr. Hubbard 

in his affidavit that he knows the needs of his customers, 

are sufficient to establish that the coal which is loaded 

for shipment by the respondent in this case is custom-blended 

and loaded by the respondent to meet the specific needs of 

the market. Given these circumstances, I conclude and find 

that the facts presented in Elam are different from those 

presented here, and the respondent may not look to Elam for 

refuge. While I recognize that one may logically argue that the 

respondent's "mining operation" is de minimis, and that MSHA 

should devote its enforcement efforts to more important matters, 

respon<lent is within MSHA's enforcement jurisdiction. 

Fact of Violations 

Dockets VA 83-26 and VA 83-39 

Respondent is charged with two violations of the reporting 

requirements of 30 CFR 50.30, which provides in pertinent 

part as follows: 

(a) Each operator of a mine in which 

an individual worked during any day 

of a calendar quarter shall complete a 

MSHA Form 7000-2 in accordance with 

the instructions and criteria in 

§ 50.30-1 and submit the original 

to the MSHA Health and Safety Analysis 

Center, P.O. Box 25367, Denver Federal 

Center, Denver, Colo. 80225, within 15 

days after the end of each calendar 

quarter. 

Citation No. 2039607, issued in December 28, 1982, charges 

the respondent with a failure to submit a report showing the 

number of miners employed at the mine for the third quarter 

of 1982, namely the months of July, August, and September. 

The inspector noted that the mine was reopened on July 1, 

1982, and it seems clear to me that this information was 

obtained from the information shown on exhibit P-3, the updated 

MSHA form showing that the respondent assumed operation of the 

facility after Summit Resources, Inc.'s lease was terminated. 

841 
Citation No. 2039612, issued on January 17, 1983, 

charges the respondent with filing inaccurate employment 

reports for the third and fourth quarters of 1982, namely 

July through September, and October through December, 

because the reports which were submitted indicated that 

no employees were working at the facility, when in fact the 

mine records showed that the mine was in operation during all 

of these months. 

In defense of Citation No. 2039607, Mrs. Slusher does 

not dispute the fact that the facility was operating during 

the months of July through August 1982. Her claim is that 

the employees were on the payroll of Interwise, Inc., and 

that the inspector who issued the citation assumed that they 

were employees of Mineral Coal Sales, Inc. (Tr. 103). 

Inspector Sayler testified that it made no difference who 

the employees were employed by, and he suggested that since 

the only information available to MSHA indicated that the 

mine identification number was recorded in the name of the 

respondent Mineral Coal Sales, Inc., any violation would be 

charged to that mine operator. Since Mrs. Slusher was shown 

as the mine operator on MSHA's records, the violation was 

properly issued to her company (Tr. 104). When asked whether 

Mrs. Slusher's company, Mineral Coal Sales, Inc., would 

still be issued and charged with the violation even if the 

inspector knew as a matter of fact that another corporate 

entity was operating the facility, Mr. Saylers answered in 

the affirmative, and he indicated that the mine operator of 

record would be held accountable by MSHA for any violations 

(Tr. 104) . 

In further defense of the reporting citations, Mrs. Slusher 

stated that she filed the forms "under protest," in order to 

achieve abatement and to avoid a possible $1,000 a day fine 

for each day she failed to comply. She confirmed that she 

wrote the words "none" on the forms to indicate that during 

the reporting quarters in question she was not the mine 

operator and in fact had no employees working for her company. 

She furnished copies of these reporting forms, and they are 

part of the record. She also furnished copies of reports 

she filed with the State of Virginia Employment Commission 

indicating that she had "no employees after June 28, 1982," 

or for the quarters ending June 30, 1982, September 30, 1982, 

or December 31, 1982 (exhibit R-5). 

When asked whether the cited standard required a mine 

operator to file accurate reports, MSHA's counsel conceded 

that filing an inaccurate report does not, in and of itself, 

constitute a violation (Tr. 108). Further, Inspector Saylers 

842 
conceded that while section 50.30 says nothing about the 

accuracy of the reports filed, it was obvious that the 

inspector who issued Citation No. 2039607 did so because he 

believed that the mine was operational during the cited 

quarters, and that the information that no employees worked 

during this time period was simply not true (Tr. llQ). 

And, at Tr. 192: 

JUDGE KOUTRAS: Correct me if I'm wrong. 

Your position seems to be in this case 

as long as these activities are taking 

place at the facility, meaning at the 

physical place where they're taking place, 

you're going to hold Mineral Sales responsible 

for it? 

MR. CRAWFORD: The known operator. 

JUDGE KOUTRAS: You keep using the word 

known operator. Let's assume, again going 

back to my hypothetical, that Hubbard was 

the known operator and had an ID number. 

Who would you hold accountable then on a 

jurisdictional basis? 

MR. CRAWFORD: Well, both. 

JUDGE KOUTRAS: You think Mr. Hubbard would 

be in here complaining he doesn't do custom 

preparation and all that business. He's 

going to wake up one morning and be surprised 

that he's a mine operator subject to this 

Act. Isn't that possible? 

MR. CRAWFORD: That's very possible. 

MSHA's Part 45 regulations, particularly section 45.3(a) 

does not mandate that an independent contractor obtain a mine 

identification number. It simply states that such contractors 

may obtain a number from MSHA by filing certain information. 

It would seem to me that in cases such as the ones at hand 

where a contractor has a continuing presence on the mine site, 

and has employees working around trucks and loaders weighing, 

dumping, and stockpiling coal, MSHA would take the initiative 

and require that contractor to stand up and be counted so 

that any violations attributable to its operation will be 

served directly on the contractor. On the facts of this case, 

it could very well be that Hubbard is as much a "mine operator" 

843 
as the named respondent in these proceedings. However, 

by continuing to ignore Hubbard's presence on the property 

for "administrative convenience," and because its easier 

to cite Mrs. Slusher, any safety infractions attributable 

to Hubbard are simply ignored. 

Inspector Saylers stated that under MSHA's Part 45 

Independent Contractor regulations, if an independent contractor does not file the required report, the mine owner 

is subject to a violation. In short, the inspector's position 

is that an operator such as Mrs. Slusher would be held 

accountable for not reporting the number of employees that 

an independent contractor has working on the mine site, and 

the reason for this is that MSHA would have no information 

as to the identification of any independent contractors who 

may be present on the property (Tr. 116). 

On the facts of this case, MSHA knows full well that 

Hubbard Enterprises, Inc., is a separate corporate entity 

engaged in coal sales on Mrs. Slusher's property. Simply 

because Hubbard has failed to request a mine identification 

number to facilitate MSHA's computer tracking of its operation, 

MSHA acts as if Hubbard does not exist. For the lack of a 

number, Hubbard may continue to operate with impunity, while 

the respondent in this case is held accountable for failure 

to file forms which have absolutely no rational relationship 

to the safety or health of anyone on the property, including 

Hubbard's employees, and the independent trucking concerns 

which deliver coal to the property everyday. I would venture 

a guess that if a trucker is found to have defective brakes, 

MSHA would cite the respondent because the trucker has no 

mine identification number. If Hubbard's employees are run 

over by the trucks while the coal is being weighed, MSHA 

would cite the respondent because Hubbard has no mine identification 

number. It occurs to me that MSHA has a positive responsibility 

and a duty to insure that all corporate entities who are 

present and working at any mine site are subjected to the 

same enforcement standards as the owner of the property. 

The practice of looking to the property owner as a matter of 

administrative convenience is simply wrong, and MSHA should 

address itself to this. Although MSHA's counsel did a fine 

job as an advocate for MSHA's position, the following excerpt 

from the trial transcript is an example of what I believe 

to be MSHA's institutional attitude in cases of this kind 

(Tr. 117) : 

JUDGE KOUTRAS: Is Hubbard Enterprises a 

figment of Ms. Slusher's imagination? I 

mean does the independent contractor have 

844 
to.put a sign up there to alert the 

district off ice that an independent contractor is working at the facility? 

MR. CRAWFORD: I don't think so, but I 

don't think it's the burden of the MSHA 

inspector that has the responsibility for 

health and safety to try to make that 

determination when it's not always easy 

to make that determination. 

Price Slusher, Mrs. Slusher's brother-in-law, testified 

that from July 1, 1982 to March 1, 1983, he was employed by 

Interwise Corporation. He identified the owner of Interwise 

as Mr. Sheley Mullins, and confirmed that Interwise had 

two employees on its payroll. He also confirmed that Mr. Mullins 

usually came to the property to instruct him as to his duties, 

and his paychecks came from Interwise (Tr. 136). Mr. Slusher 

also confirmed that Mineral Coal Sales has operated the 

present loading facility since March 1983. 

Mr. Slusher clarified the ownership of Interwise, and 

she indicated that the company was operated by Kathy Crawford 

and not by Sheley Mullins. She stated that at the time the 

citati~ns were served, Interwise was operating the mine 

(Tr. 151). When asked to explain why Interwise was never 

previously mentioned in any of her prior protests, and why 

the citations were issued with Mineral Sales' mine identification 

number, Mrs. Slusher answered "you tell me" and "I don't know" 

(Tr. 151). Mrs. Slusher explained further that Interwise 

intended to purchase the facility but could not consummate 

the final purchase because of certain financial problems. 

Interwise operated the facility on a "trial basis" for a 

period of six months, and she received a dollar a ton for 

all coal processed by Interwise (Tr. 156), and took the 

operation back on March 1, 1983, when the financing fell 

through (Tr. 152). Mrs. Slusher also indicated that she 

explained this to MSHA when she went to an assessment conference 

at the Norton Office, but that MSHA took the position that 

Mineral Coal Sales was responsible for the citations (Tr. 151). 

She further explained that since Interwise was operating 

the facility, she had no employment or payroll records, and 

that is why she stated "none" on the reports in question 

(Tr. 153) . 

Mrs. Slusher confirmed that from March 1, 1983, to date, 

she has operated the facility as Mineral Sales, Inc., and 

has only had two employees, her nephew and brother-in-law 

(Tr. 154). She also confirmed that Interwise had two employees 

when it operated the facility, and Hubbard Enterprises 

has two employees currently working on the property (Tr. 154). 

845 
Mrs. Slusher stated that at the time she was receiving 

a fee of a dollar a ton from Interwise, the facility was 

hers, and she candidly conceded that "Interwise in a sense 

was substituted in the place of Mineral Coal at the point 

as far as the loading was concerned." She confirmed that 

from July 1, 1982, to March 3, 1983, Interwise "had the payroll 

and exercised jurisdiction over the employees on the loading, 

saw that the loading got done and that the loading unit or 

the mobile was serviced and maintained. They kept fuel 

on the premises and did whatever was necessary to get the 

car loaded." Hubbard Enterprises was also operating during 

this period of time, and Mrs. Slusher stated that as the 

owner of the property and facility, including the rail siding, 

mobile tipple, and scales, she collected the rents from 

her leases to Interwise and Hubbard. In short, Mineral Sales, 

Inc., owned the facility, and leased it to Interwise, who 

did the loading of the coal, and to Hubbard, who tested it 

(Tr. 157-158). She confirmed that she had no written contract 

with Interwise, but would not have entered into such an 

arrangement had she not thought Interwise would' not go ahead 

and consummate the sale of the facility (Tr. 160). 

Section llO(a) of the Act provides that a civil penalty 

shall be assessed against any mine operator for violations 

which occur in the mine. Since I have concluded that the 

named respondent in these proceedings is a mine operator within 

the meaning of the Act, the respondent is legally responsible 

for the citations issued. As correctly argued by the petitioner 

in this case, the test in Elam is not based on whose employees 

do what activities at a facility or what business entity 

does what at the facility but what activities are performed 

at the facility and for what purpose. Here, respondent 

argues that the facility was operated by Interwise Corporation 

at the time the citations were issued. However, the record 

establishes that the respondent Mineral Sales Inc., was the 

owner of the facility and simply permitted Interwise to 

operate it on a "trial basis" pending the obtaining of 

financing to purchase the facility .. Further, Mineral Sales, 

Inc. was the record owner and operator of the facility, and 

it seems clear to me that it may be held accountable and 

responsible for any violations and citations which may be 

issued by MSHA inspectors after inspection of the mining 

activities taking place on the premises. 

The reporting requirements of section 50.30, mandate 

that each mine operator complete and submit a form to MSHA 

in accordance with the instructions and criteria found in 

section 50.30-1. If an individual worked during any day of 

a calendar quarter, the operator is required to file the 

form. In support of the violations, MSHA's counsel cites 

846 
part of the language found in section 50.30-l(a) (iii), in 

support of his argument that whether the employees directly 

work for the respondent Mineral Sales, Inc.; or another cooperator of the facility is irrelevant since it is only 

necessary that employees work at the facility. 

While I agree with counsel's argument, the criteria in 

50.30-1, are not without ambiguity. For example, the last 

sentence of the cited subsection left out by counsel does 

not require the reporting of personnel in shops and yards 

associated with other sub-units, and subsection (2) speaks 

in terms of average number of persons working during the 

quarter, and then speaks about employees on the payroll. 

Taken in this context, and particularly where the terms 

"persons," "individuals," and "employees" are used in 

different subsections of the criteria, I can understand 

the respondent writing in "none" when she believed that 

Interwise was the corporate entity actually required to 

file the forms in question. However, I consider this as 

mitigating the violations, rather than an absolute defense. 

Accordingly, both citations ARE AFFIRMED. 

Docket No. VA 83-26 

In this case, the respondent is charged with failing 

to submit a noise survey for two employees who were working 

at the mine. The citation was issued on March 1, 1983, 

the day on which Mrs. Slusher claims she took the operation 

back from Interwise. Her defense is that the two employees 

in question were not employed by her company, but by Interwise. 

Mrs. Slusher argues that since she had no employees on her 

payroll for the previous six months in question, she obviously 

was not responsible to survey them (Tr. 120). Inspector Saylers 

explained that since MSHA's records indicated that the mine 

was reopened on July 1, 1982, and that it was operated by 

Mrs. Slusher, a ~itation would be issued on that information 

alone (Tr. 120). Mr. Saylers confirmed that when Inspector Bentley 

issued this citation, he obviously assumed that the two 

employees on the premises worked for Mrs. Slusher's company, 

and that they needed to be surveyed for noise exposure (Tr. 120). 

Mrs. Slusher's rebuttal is that since the two employees did 

not work for her, she was not responsible for the noise survey 

(Tr. 120). Mrs. Slusher explained further that in order 

to avoid any section 104(b) withdrawal orders, she surveyed 

the two employees, Price Slusher, her brother-in-law, 

and Mike Slusher, her nephew, and she conceded that as of 

the date of the issuance of the citation, they were her 

employees, but prior to this date, they were not (Tr. 121). 

847 
Inspector Saylers testified that notwithstanding the 

fact that the people working at the facility were not employed 

by Mineral Coal Sales, Inc., they were stiil employed at a mine 

where a loading facility was being operated, and since they 

were employees of that mine, this activity was required to be 

reported to MSHA (Tr. 77). Inspector Saylers confirmed 

that when he visited the facility on December 28, 1982, 

he observed two men weighing coal, directing the trucks where 

to dump the coal, operating front-end loaders, etc. (86). 

From all of this. activity, he concluded that employees were 

in fact employed at the facility in question. 

Respondent's defense to the noise citation is rejected. 

As indicated earlier in this decision, the respondent was 

the record owner and operator of the facility and is liable 

for the violation. Further, the language of section 71.803, 

is that "each operator shall conduct periodic surveys of 

the noise levels to which each miner in each surf ace installation 

and at each surface worksite is exposed." Thus, any miners 

who are present on the property and are exposed to potential 

noise are required to be surveyed by the mine operator. In 

this case, that operator was the named respondent. Accordingly, 

the citation IS AFFIR~ED. ' 

Docket No. VA 83-44 

In this case, the respondent is charged with a violation 

of section 77.1705 because superintendent Donald Slusher did 

not receive first aid training. The citation was issued on 

the day that Mrs. Slusher took the operation back from 

Interwise, and her defense is that Interwise should have 

provided the necessary training. Mrs. Slusher points out 

that the citation was issued on the very day that she took 

the operation back from Interwise. She concedes that 

Price Slusher was in fact her employee on that date (Tr. 122). 

Inspector Sayler testified that Price Slusher's last training 

date was May 23, 1981, and that he had until December 30, 1982, 

to finish the refresher course. Had the work "calendar year" 

not been part of the cited standard language, he would have 

had until May 23, 1982, to obtain the required training 

(Tr. 122) • 

Mr. Slusher testified as to his many years of experience 

in the mining induatry, including the fact that he had taken 

first aid training courses in the past. I have no reason to 

doubt this fact, and I have considered this as part of the 

mitigation of the violation. However, the fact remains 

that under MSHA's regulations, Mr. Slusher had not availed 

himself of the required retraining for first aid. Accordingly, 

the respondent's defense here is rejected. I conclude that 

as the operator of the facility the respondent is liable 

for the violation, and the citation IS AFFIRMED. 

848 
Size of Business and Effect of Civil Penalties on the Respondent's 

Ability to Continue in Business. 

The parties have stipulated that the respondent carries 

on a small operation and that the proposed penalties will 

not adversely affect its ability to continue in business. 

Apart from that, I conclude that the record here supports 

a conclusion that the respondent operates a small, f~mily 

oriented facility, and that the penalties imposed will not 

adversely affect its ability to remain in business. 

Gravity 

None of the citations in these proceedings were found 

by the Inspector to be "significant and substantial." I 

conclude that they were all nonserious violations, and 

petitioner has not established otherwise. 

Negligence 

While I have considered Mrs. Slusher's assertions that 

she in good faith did not believe that she was a "mine operator" 

at the time the violative conditions occurred, and that she 

relied on the Commission's Elam decision as well as other 

opinions from the Solicitor"i""'$C5ffice for that belief, 

the violations have nonetheless been attributed to her as 

the mine operator of record. I have considered her defense 

as mitigating the violations here, and I conclude that they 

all resulted from a low degree of negligence. 

Good Faith Compliance 

MSHA's counsel candidly conceded that the respondent's 

actions with respect to all of the citations issued in these 

cases stem from the fact that she relied in the Elam decision 

and believed that she was not subject to MSHA's enforcement 

jurisdiction. Under the circumstances, counsel agreed 

that this could be considered in mitigating the respondent's 

good faith in complying with the law (Tr. 124-125). MSHA's 

counsel stated his position as follows (Tr. 126): 

MR. CRAWFORD: We're not trying to be 

unreasonable. I think we're trying to go 

after the operator who controls the 

operation, supervises and controls it. And 

the point is through renting or through leasing, 

whatever, she does control the operation there 

on that facility. She can deny Hubbard tomorrow, 

as she said in her interrogatories. They have 

first right but not exclusive right and she does 

control what happens there. And so in the name 

of paperwork sometimes it's ridiculous to file 

849 
another paper on an independent contractor 

in that type of circumstance. But I think 

our main concern is obviously health and safety 

and going to the party which we feel has control 

over the operations. Now she could tell him 

to get out tomorrow and bring someone else in 

and we would have no control or no -- it wouldn't 

be clear as to who controls that equipment and 

that machinery. 

I conclude that the respondent exercised good faith in 

abating all of the violations in question once the citations 

were issued. Petitioner's arguments that the respondent did 

not show good faith in connection with citation 2039612, 

because it resulted in the issuance of a section 104(b) 

order after the inspector found that the respondent "made no 

effort to abate" the reporting citation is rejected. Faced 

with the threat of a $1,000 a day penalty for not capitulating 

and admitting that she had employees on her payroll, 

Mrs. Slusher finally submitted the reports under "protest." 

Again, I find that these actions stemmed from her belief 

that she was not subject to the Act. Taken in this light, 

I cannot conclude that the citation is any different from 

the others, nor can I conclude that the respondent should be 

penalized additionally for exercising her rights. 

History of Prior Violations 

Respondent's history of prior violations is shown in 

Exhibit P-A, an MSHA computer print-out listing seven 

prior violations issued to the respondent for the period 

April 20, 1981 through April 19, 1983. Four of the listed 

violations are those in issue in these proceedings. The 

remaining three are all section 104(a) "non-S&S" citations, 

for which the respondent has made no payments. Under the 

circumstances, I cannot conclude that respondent's history of 

prior violations is such as to warrant any additional increases 

in the penalties assessed by me in these proceedings. 

Penalty Assessments 

In Docket No. VA 83-39, I take note of the fact that 

MSHA's proposal for assessment of civil penalty seeks a 

civil penalty assessment for $90 for Citation No. 2039612, 

issued on January 17, 1983, and this citation is listed as 

"Exhibit A" to MSHA's proposal. However, that same exhibit 

lists the citation as a section 104(b) Order, when in fact 

the citation for which a penalty assessment is sought is 

a section 104(a) "non-S&S" citation. A copy of this citation 

is included as part of the pleadings, as well as a copy of 

a section 104(b) Order, No. 2039617, dated January 24, 1983. 

Under the circumstances, since this apparent discrepancy is 

not further explained, for purposes of any civil penalty 

assessment, I have considered only the section 104(a) citation, 

No. 2039612, issued on January--r?;" 1983. 

850 
On the basis of the foregoing findings and conclusions, 

and taking· into account the requirements of section llO(i) 

of the Act, I conclude and find that the following civil 

penalty assessments are appropriate for the citations which 

have been affirmed: 

Citation No. Date 30 CFR Section Assessment 

2039607 12/28/82 50.30 $20 

2153470 3/1/83 71.803 20 

2039612 1/17/83 50.30 20 

2153469 3/1/83 77.1705 20 

$80 

ORDER 

Respondent IS ORDERED to pay the civil penalties assessed 

by me for the violations in questions, in the amounts shown 

above, and payment is to be made within thirty (30) days of 

the date of these decisions and Order. Upon receipt of payment 

by MSHA, these proceedings are dismissed. 

A.~ Distribution: 

James B. Crawford, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Rm. 1237-A, Arlington, VA 

22203 (Certified Mail) 

Bobbie S. Slusher, President, Mineral Coal·Sales, Inc., P.O. 

Box 729, Norton, VA 24273 (Certified Mail) 

/slk 

851 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

APR 6 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CLAUDE C. WOOD COMPANY, 

Respondent 

DECISION 

Docket No. WEST 81-172-M 

A.C. No. 04-04401-05002 

Camp Connell Rock Quarry Mine 

Appearances: Theresa Fay Bustillos, Esq., Office of the Solicitor 

U. S. Department of Labor, San Francisco, California 

for Petitioner; 

Before: 

Erv Rifenburg, Claude C. Wood Company, 

Lodi, California, pro se. 

Judge Morris 

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

Administration, (MSHA), charges respondent with violating various 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 U.S.C. § 801 et seq., (the "Act"). 

After notice to the parties, a hearing on the merits was held 

on April 13, 1983 in Stockton, California. 

Petitioner filed a post trial brief and respondent stated its 

contentions in its closing argument. 

ISSUES 

The issues are whether respondent violated the regulations and, 

if so, what penalties are appropriate. 

STIPULATION 

At the commencement of the case the parties stipulated as 

follows: 

1. The Claude C. Wood Company is, and at all relevant times 

hereinafter, was the owner and operator of the Camp Connell Rock 

Quarry Mine. 

2. The Claude C. Wood Company and the Camp Connell Rock 

Quarry Mine are subject to the jurisdiction of the Mine Safety and 

Health Administration (hereinafter referred to as MSHA). 

852 
3. The Camp Connell Rock Quarry Mine is a rock quarry mine 

which produces crushed stone. 

4. The Administrative Law Judge has jurisdiction of this case. 

5. Copies of the subject citations, terminations and alleged 

violations in issue are authentic and may be admitted into evidence 

for the purpose of establishing their issuance by MSHA but are not 

admitted into evidence for the purpose of establishing the truthfulness or relevancy of any statement asserted therein. 

6. True and correct copies of the citations and terminations 

were served upon the representatives of the operator. 

7. All alleged violations were abated in good faith. 

8. Imposition of the penalty will not affect the operator's 

ability to continue in business. 

9. During the two year period prior to June 25, 1980 (the date 

of the issuance of the citations) the Claude C. Wood Company had been 

assessed one violation. 

10. The Claude C. Wood Company is a medium $ize operator. The 

Claude C. Wood Company operates at approximately 16,002 manhours per 

year. At the time of the issuance of the citation, the Camp Connell 

Rock Quarry operated at approximately 6,000 manhours per year. 

11. At the time of the issuance of the citation, the Camp Connell 

Rock Quarry Mine had approximately 6 employees. 

Citation 380433 

This citation alleges a violation of 30 C.F.R. 56.14-1, which 

provides: 

Guards 

56.14-1 Mandatory. Gears; sprockets; 

chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; 

sawblades; fan inlets; and similar exposed moving machine parts which may be 

contacted by persons, and which may cause 

injury to persons, shall be guarded. 

The pivotal issues presented here are whether the pinch points 

of the head pulley were unguarded. If so, could those pinch points 

be contacted by workers who might be injured by that condition. 

853 
The evidence of both parties as it relates to this citation 

is unclear. Accordingly, it is necessary to extensively review 

the record. 

MSHA's evidence: . During the inspection MSHA Inspector 

McGarrah was accompanied by John Rosen, an MSHA lab technician, 

and Richard Ashby, the plant manager (Tr. 13, 16-19). 

The plant has three rock crushers. They are known as the 

primary, the secondary and the final. The final crusher, known by 

the brand name of Kue-Ken, reduces the rock to certain dimensions. 

From the Kue-Ken the rock goes onto a short conveyor belt which 

then spills it onto a stacker conveyor belt (Tr. 21). The plant 

manager identified the place where the citation was issued as being 

"the first conveyor belt coming from the Kue-Ken crusher" (Tr. 38-

4 0) • 

The day after the citation was issued Rosen made a sketch 

of the Kue-Ken crusher. He and the inspector "stood there" and 

discussed it (Tr. 21-22). The sketch was made primarily to consider 

dust problems at the site. 

The stacker conveyor belt was setting on a short stand near 

the ground and the head pulley was close by (Tr. 24). The first 

conveyor belt came from just above ground level up to almost 

chest high, a distance of about four feet (Tr. 25). The head 

pulley was a few inches larger than the two-foot wide belt 

(Tr. 2 6) • 

In his direct examination, the inspector testified the head 

pulley was unguarded and within easy reach of anyone passing by 

or working in the area (Tr. 27). But when called as a rebuttal 

witness he amplified his testimony by stating that a frame on 

the conveyor would partially obstruct a person from contacting 

the pinch points (Tr. 211). The rebuttal also developed that 

there was a guarded V-belt drive between the motor and the gear 

reducer (Tr. 214). In addition, a worker in a crouched position 

would have to go around the guarded V-belt behind the speed 

reducer to get his hand into the head pulley (Tr. 215). 

At one time the MSHA inspector observed a laborer shoveling 

rock on the bottom ·side of the stacker. But at that point the 

laborer was on the opposite side of the head pulley and in no 

danger. In addition to the laborer, the inspector also observed 

the plant operator near the area of the unguarded head pulley 

(Tr . 2 7 , 2 8 ) . 

These particular head pulleys do not need to be cleaned. 

Possibly it is necessary to shovel the areas around them whenever 

rocks spill (Tr. 28). 

854 
If an employee was shoveling rock from underneath the head 

pulley he would be close enough, due to the lack of a guard, 

to catch a shovel or piece of clothing. He could be between 

several inches to several feet away (Tr. 29-30). The inspector 

observed some spill but it was not an excessive amount (Tr 29). 

It was obvious that the head pulley lacked a guard (Tr. 30). 

Respondent's witness, Wayne Renaud, indicated this portable 

plant had been used in six or seven different locations. It has 

been inspected by MSHA and OSHA each time it has been set up 

(Tr. 122, 123). The citation issued here identified this as 

the No. 1 conveyor from the Kue-Ken crusher. 

You cannot get into this area unless you crawl on your hands 

and knees (Tr. 126, 151). A 48 inch by 48 inch stand prevents 

access to the head pulley (Tr. 150). The company has never been 

cited for an unguarded head pulley at the location circled on 

exhibit P3 (Tr. 126). 

Respondent's witness Rifenburg indicated it would be 

"extremely difficult'' to reach the head pulley circled in red 

on exhibit P3 (Tr. 184). According to Rifenburg the moving 

machine parts are protected by the guard that covers the drive 

belt to the speed reducer (Tr. 191). 

Discussion 

I credit respondent's evidence concerning this citation. 

Respondent's personnel have assembled this equipment on numerous 

occasions. Further, they are constantly working with these 

conveyors. 

On the other hand, after carefully reviewing the Secretary's 

evidence, I conclude that it is not persuasive. In his direct 

testimony the inspector indicated that a worker could readily 

come into contact with the unguarded pinch points. But in his 

rebuttal testimony he indicated the access would be, at least 

partially, blocked by a frame on the conveyor (Tr. 211). The 

witness drew an arrow to what he calls the unguarded pinch points 

as shown on exhibit P3. But the drawing itself fails to show 

the lack of a guard. In addition, the oral evidence does not 

develop the nature, the dimension, and scope of the unguarded 

area. Conversely, the evidence does not develop how a worker 

could contact the pinch points . 

. Respondent's witnesses Renaud and Rifenburg both establish 

that this pinch point was not accessible. Their evidence is confirmed when the inspector, in rebuttal, appears to indicate that 

to reach the pinch points it is necessary to reach underneath the 

gear drive and the bottom of the conveyor (Tr. 215). 

855 
In sum, I conclude that the pinch points of the head pulley 

were guarded by location. Since a worker could not contact them, 

it follows that such a worker could not be injured. 

The Secretary's post trial brief cites John Peterson, 

2 FMSHRC 3404, (1980), and Schneider's Ready Mix, Inc., 2 FMSHRC 

1092, (1980), to the effect that it is not a defense to establish 

that the likelihood of an accident is remote. I agree. But in 

this case a decision upholding the citation would, in my view, 

rest in speculation. 

It is true that the inspector observed a worker in close 

proximity, but he also indicated the worker was "in no danger 

where he was working" (Tr. 28). 

The Secretary further cites his evidence that if an employee 

was shoveling rock from this location he would be close enough 

to catch a shovel or piece of clothing (Tr. 29). True, the 

witness develops that point but I find from the evidence that 

the worker did not have access even at that location. In short, 

I cannot ignore the inspector's testimony establishing a lack of 

access. 

Exhibit P3, drawn by MSHA technician Rosen, the day after 

this citation was issued, fails to depict that the head pulley 

was unguarded. Further, the exhibit fails to show the obstruction 

which prevented partial or full access to the pinch points. 

The exhibit, in combination with the oral testimony, fails 

to prove a violation. 

In sum, I conclude that no violation has been established 

and the citation should be vacated. 

Citations 380436 and 380437 

These citations allege violations of 30 C.F.R. 56.6-20(e) 

at two locations. The cited standard provides: 

56.6-20 Mandatory. Magazines shall be: 

(e) Electrically bonded and grounded 

if constructed of metal. 

MSHA's evidence indicates Inspector McGarrah inspected 

respondent's 8 by 8 by 10 (foot) powder magazine. The metal 

magazine was constructed with a double hinge door (Tr. 58, 59). 

856 
On the day of the inspection blasting agents, dynamite and prill 

were stored inside the magazine (Tr. 59). It was one-third full 

(Tr. 61). The inspector and the plant manager looked around and 

raked the grass but they could not find any bond or ground rod 

for the powder magazine (Tr. 69, 70). 

The detonator magazine at the site was likewise constructed of metal, setting on the ground, and about 80 percent 

full (Tr. 113, 114). Although the inspector did not measure it, 

the magazine measured approximately 3 feet in all dimensions 

(Tr. 114). The inspector and the plant manager checked but they 

could not find an electric ground rod leading from the detonator 

magazine (Tr. 117). 

A magazine is electrically grounded when an 8 foot copper 

rod is driven into the ground. And the rod is connected to the 

metal magazine with a heavy copper wire (Tr. 69). Copper is used 

because it furnishes a path of least resistance to channel any 

electricity into the ground (Tr. 69-71). 

In the absence of a ground, lightning or a stray electrical 

current could ignite the powder in the magazine (Tr. 72). 

Respondent's witness Rifenburg indicated that the powder 

magazine was in compliance because it was grounded by skid contact 

when resting on the decompressed granite mineral soil (Tr. 180-

182). In contrast, a non-mineral soil does not act as a conduit 

(Tr. 182) . 

Discussion 

Respondent contends that its metal powder magazines were 

sufficiently and legally grounded when they rested on the organic 

soil. 

As the Secretary notes in his brief, this contention was 

addressed by Judge John A. Carlson in Gallagher and Burke, Inc., 

2 FMSHRC 3399, (1980). In the cited case Judge Carlson ruled 

that "a metal magazine merely resting on the earth is not 

'grounded'. The term 'grounded' has a commonly accepted meaning 

when applied to electrical safety." 2 FMSHRC at 3401. Further, 

the standard for explosives magazines ..• 

expressly mandates grounding; and we must 

assume that that means adherence to common 

grounding practice. Had the drafters of 

the standard believed that metal magazines 

needed no grounding beyond simply resting 

on the earth, they would not have mentioned 

grounding at all. 2 FMSHRC at 3401. 

857 
I concur in Judge Carlson's views. Citations 380436 and 

380437 should be affirmed. 

Citations 380438 and 380439 

These citations allege violations of 30 C.F.R. 56.6-5 at 

the two magazines. The cited standard provides: 

56.6-5 Mandatory. Areas surrounding 

magazines and facilities for the storage 

of blasting agents shall be kept clear 

of rubbish, brush,' dry grass or trees 

(other than live trees 10 or more feet 

tall), for a distance not less than 

25 feet in all directions, and other 

unnecessary combustible materials for 

a distance of not less than 50 'feet. 

MSHA's evidence proves that this wooded area' had dry brush 

and grass on all sides and within 25 feet of the powder magazine 

(Tr. 62, 63, 65). The grass varied in height up to 2 feet. 

In addition, dry brush had blown around the magazine (Tr. 63, 

104). A fire in this immediate vicinity could cause the 

blasting agents in the magazine to explode and cause death or 

serious injuries (Tr. 66, 67). 

The operator should have known of this condition (Tr. 68). 

During the hearing the parties stipulated that all of the 

evidence relating to the powder magazine also applied to the 

detonator magazine (Tr. 112). 

Respondent's witness Rifenburg does not deny the presence 

of brush and dry grass in the area. But he stated that the new 

locations of the magazines, 25 feet away, are equally subject ~o 

the hazards of a fire in this forest (Tr. 176, 177, 181, 182). 

Discussion 

The uncontroverted evidence establishes violations of the 

regulation. These violations were abated by moving the magazines. 

There is no grass or dried brush in their new locations as shown 

in exhibits R6, Ra,· RlO and Rl4. 

I agree with respondent's position that these magazines 

are subject to a fire hazard from sources other than those in 

the immediate vicinity (Tr. 218). However, I decline to rule 

that, as a matter of law, MSHA's regulation has no relation 

to safety. Respondent's arguments relate to the imposition of 

a penalty rather than to whether the regulation was violated. 

858 
Citations 380438 and 380439 should be affirmed. 

Citation 380440 

This citation alleges a violation of 30 C.F.R. 56.6-20(f), 

which provides: 

56.6-20 Mandatory. Magazines shall be: 

(f) Made of nonsparking materials on 

the inside, including floors. 

The MSHA inspector observed that boxes of powder were 

stacked on a heavy steel wire on the floor of the powder magazine 

(Tr. 73). The bolts and steel heads all appeared to be of a 

sparking material. They had not been covered to make them 

non-sparking (Tr. 74). Nails had been driven into the walls 

(Tr. 74). A spark could ignite the powder (Tr. 74-76). 

The inspector had not seen steel nails and bolt heads in 

powder magazines (Tr. 75). 

Respondent's witness Rifenburg states that.the sparking 

regulation is "left over from black powder days." Further, 

that due to a change in technology, the regulation no longer 

applies (Tr. 178). 

Witness Rifenburg further filed a copy of Title 27, Code 

of Federal Regulations, Part 181, containing regulations dealing 

with commerce in explosives and published by the United States 

Department of the Treasury. I take official notice of such 

federal regulations. 

Discussion 

Under the regulations promulgated by the United States 

Department of the Treasury, it is true that blasting agents, 

such as ammonium nitrate fuel oil, may be stored in Type 5 

storage facilities, 30 C.F.R. § 183(e). It is further true 

that while non-sparking materials are required in Type 1 through 

Type 4 storage, such materials are not required in Type 5 storage 

facilities, 30 C.F.R. 181, 187, et seq. However, the MSHA 

regulations take precedent over the Treasury Department regulations. 

I note the Treasury regulations yield when they state, in part, 

that "[T]he storage standards prescribed by this subpart confer 

no rights or privileges to store explosive materials in a manner 

contrary to state or other law," 30 C.F.R. 181; 181. 

859 
Respondent's contentions basically address the wisdom of 

the standard, an issue discussed, infra. Further, respondent's 

contentions concern gravity and negligence. These are issues 

to be considered in assessing a penalty. 

MSHA may, under its rulemaking power, wish to reconsider 

its regulation. But since the facts establish a violation, I 

am obliged to affirm the citation. 

Citations 380442 and 380443 

These citations allege violations of 30 C.F.R. § 56.6-20(i) 

which provides that: 

56.6-20 Mandatory. Magazines shall be: 

(i) Posted with suitable danger signs 

so located that a bullet passing 

through the face of the sign will 

not strike the magazine. 

MSHA's inspector testified the powder magazine was not 

posted with any danger signs. The plant manager indicated that 

he did not know of any such signs and, although they searched 

in each direction, they did not find any signs (Tr. 76, 77). 

One purpose of such signs is to warn hunters they are in 

a danger area (Tr. 77, 78). 

Respondent's witness Rifenburg indicated the company posts 

danger signs in public access areas during any blasting. All 

radio transmissions are prohibited within a certain area. This 

is a United States Forest Service regulation (Tr. 179, 204). 

Respondent asserts that its mine is within the confines 

of Stanislaus National Forest. Respondent's Exhibit 12, a 

map of the forest, supports respondent's assertion that it may 

be difficult to keep the public off of its property. Therefore, 

being unable to prevent public access they try to camouflage 

the magazines to keep them out of the public's eye (Tr. 219-220). 

Conversely, the posting signs MSHA requires can only serve to 

alert the public to such storage facilities. Witness Rifenburg 

states that a principal concern of his company and its industry 

is the theft of explosives (Tr. 218). 

Respondent basically asserts that in view of its unique 

location in the national forest, it would be wiser not to 

enforce this regulation. 

860 
Respondent's contentions are rejected. The Commission views 

the regulatory scheme of the Act as being premised upon the 

proposition that compliance with the safety standards adopted 

by the Secretary protects the nation's miners, Penn Allegh 

Coal Company, Inc., 3 FMSHRC 1392, 1399, footnote 10 (1981). 

To overturn this regulation would in effect question the 

wisdom of the Secretary's standard. I find no decisions by 

this Commission directly discussing the doctrine,,but a long 

line of OSHA Review Commission cases reiterate that principle. 

In short, they do not consider it to be a portion of their 

adjudicatory function to question the wisdom of a standard. 

Cornish Dress Mfg. Co., BNA 3 OSHC 1850, CCH 1975-76 OSHD 

para. 20, 246 (No. 6765, December 23, 1975); The Budd Company, 

7 OSAHRC 160, 165, BNA 1 OSHC 1548, 1551, CCH 1973-1974 OSHD 

para. 17,387 (Nos. 199 and 215, March 8, 1974, aff'd. 513 F 2d 

201 (3d Cir. 1975). I adhere to that doctrine. 

Citations 380442 and 380443 should be affirmed. 

Civil Penalties 

The six criteria for assessing a civil penalty are set 

forth in 30 U.S.C. § 820(i). 

The stipulation indicates respondent was assessed a single 

violation during the two years prior to these citations. The 

stipulated facts confirm that respondent is a medium-sized 

operator. The imposition of a penalty will not affect the 

operator's ability to continue in business. In those citations 

that are affirmed, I conclude the operator was negligent 

because the violative conditions could have been known to the 

company. Respondent demonstrated good faith in rapidly abating 

after notification of the violations. In relating to gravity, 

I conclude that the penalties proposed for Citations 380436, 

380437 (electrical bonding), 380438 and 380439 (dry brush) are 

proper. On the other hand there appears to be no hazard and 

hence no gravity involved in connection with Citation 380440 

(sparking material). That citation should be assessed at $1.00. 

There is a certain ambivalence relating to the gravity of 

posting the magazines. I believe the proposal for such violation should be reduced by one half. 

861 
The final computation is summarized as follows: 

Citation 

380433 

380436 

380437 

380438 

380439 

380440 

380442 

380443 

Original 

Assessment 

$ 26 

18 

18 

28 

28 

44 

18 

18 

Brief 

Disposition 

Vacated 

$ 18 

18 

28 

28 

1 

9 

9 

The Solicitor has filed a detailed brief which has been 

most helpful in analyzing the record and defining the issues 

in the case. However, to the extent that such brief is 

inconsistent with this decision, it is rejected. 

ORDER 

Based on· the facts found to be true in the narrative 

portions of this decision and based on the conclusions of law 

as stated herein, I enter the following order: 

1. Citation 380433 for the alleged violation of 30 C.F.R. 

§ 56.14-1 and all proposed penalties therefor are vacated. 

2. The following 

are assessed as stated 

Citation 

380436 

380437 

380438 

380439 

380440 

380442 

380443 

3. Respondent is 

40 days of the date of 

citations are affirmed and penalties 

after each such citation: 

30 C.F.R. 

Section 

Violated Penalty 

56.6-20 E $ 18 

56.6-20 E 18 

56.6-5 28 

56.6-5 28 

56.6-20 F 1 

56.6-20 I 9 

56.6-20 I 9 

ordered to pay the sum of $111 within 

this order. 

Administ~;; hn~.M,/~ Law Judge 

862 
Distribution: 

Theresa Fay Bustillos, Esq., Office of the Solicitor, United States 

Department of Labor, 11071 Federal Building, 450 Golden Gate Avenue, 

San Francisco, California 94102 (Certified Mail) 

Mr. Erv Rifenburg, Construction Manager, Claude C. Wood Company, 

P. o. Box 599, Lodi, California 95251 (Certified Mail) 

/ot 

863 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR APR 6 1984 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 · 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-244 

A. C. No. 46-01283-03521 

Hampton No. 3 Mine 

O;RDER OF DISMISSAL 

Before: Judge Steffey 

Counsel for the Secretary of Labor filed on March 26, 1984, 

in the above-entitled proceeding a motion to withdraw the petition for assessment of civil penalty filed in Docket No. WEVA 

83-244 on the ground that the violation of 30 C.F.R. § 75.305, 

for which a penalty was being sought, was alleged in Citation 

No. 2037679 which has been vacated as having been issued in 

error. 

The motion for permission to withdraw explains that a prior 

violation of section 75.305 had previously been written and respondent had been allowed to abate that alleged violation in a 

manner which was still being followed at the time the instant 

violation of section 75.305 was written citing respondent for 

the identical violation which had previously been abated in a 

manner which was satisfactory to MSHA at that time. It is believed that the instant violation was written in error since respondent was still adhering to the procedures which had been 

previously approved. In such circumstances, I find that good· 

cause has been shown to warrant granting of the motion to withdraw. 

WHEREFORE, it is ordered: 

The motion to withdraw is granted, the petition for assessment of civil pen~lty is deemed to have been withdrawn, and all 

further proceedings in Docket No. WEVA 83-244 are dismissed. 

Richard ~e.Jz.~ c. Steff*~ Administrative Law Judge 

Distribution: 

William M. Connor, Esq., Office of the Solicitor, u. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

F. Thomas Rubenstein, Esq., Westmoreland Coal Company, P. o. 

Drawer A & B, Big Stone Gap, VA 24219 (Certified Mail) 

yh 864 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 APR 10 1984 

SECRETARY OP LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

ROCKLINE, INCORPORATED, 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. WEST 81-339-M 

: A.C. No. 35-03057-05001 R 

. . Rockline Inc., Pit & Plant 

DECISION 

Appearances: William w. Kates, Esq., Office of the Solicitor, 

U.S. Department of Labor, Seattle, Washington, 

for Petitioner~ 

Mr. Carl Linebarger, President, Rockline, Inc., 

The Dalles, Oregon, 

Pro Se. 

Before: Judge Vail 

STATEMENT OF THE CASE 

This civil penalty case is brought under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (Supp. III 

1979)("the Act"). Petitioner seeks an order assessing a civil 

monetary penalty against the respondent for allegedly refusing to 

allow an authorized inspector of the Mine Safety and Health 

Administration C"MSHA") onto the property where respondent was 

operating its portable crusher. In its answer, respondent 

alleges, in effect 1 that there was no violation of the Act. 

A hearing in this case was initially set for July 13, 1982, 

but was continued at the request of respondent's counsel due to 

his illness. The case was reset for September 20, 1983, in 

Portland, Oregon, where respondent's President, Carl Linebarger, 

appeared, without counsel, and stated that he would represent the 

respondent in this matter as he did not wish to incur the 

additional expense of legal fees. Both parties waived the right 

to file briefs. 

FINDINGS OF FACT 

1. Rockline, Incorporated C"Rockline"), is a corporation 

for which Carl Linebarger is the president and majority stockholder. 

865 
2. Rockline is a small portable crushing operation 

employing four employees and Linebarger. On April 22, 1981, the 

crusher and 6ther equipment used in mining rock was located on 

land leased from the Port of the Dalles, Oregon. The operation 

had been located at this site for approximately two years. In 

addition to the crusher located there, respondent had constructed 

a large building and moved in a trailer to be used as an off ice. 

3. Respondent has no history of a prior MSHA inspection or 

violations at the site involved in this case. However, 

respondent had experienced a prior MSHA inspection and received 

violations at a different location in 1979. 

4. At approximately 9:30 in the morning, on April 22, 1981, 

MSHA inspector Robert Funk arrived.at respondent's mine site for 

the purpose of conducting a safety and health inspection. He 

drove through an entrance, past the trailer (office), and a blue 

building located near the entrance. He continued down to where 

the rock crusher was located. A truck was being loaded at the 

crusher when Funk drove up. A conversation was had between Funk 

and Linebarger at the crusher site and then they drove in their 

separate vehicles back to an area near the trailer. Linebarger 

got out of his truck and told Funk he would not allow him to 

inspect the operation at this location. 

5. Funk returned to his office and issued citation No. 

587744 to respondent on April 22, 1981, alleging a violation of 

103(a) of the Act. ~/ 

DISCUSSION 

At the hearing, MSHA inspector Funk described the events 

that led up to the issuance of the citation in this case. He 

testified that after arriving at respondent's mine at about 9:30 

a.m. on April 22, 1981, he drove his government vehicle through 

the entrance past a large blue building on the right and a 

trailer located on the left of the road. He continued on this 

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

Authorized representatives of the Secretary ••• shall make 

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

In carrying out the requirements of this subsection, no advance 

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

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

any ••• mine. 

866 
road approximately 300 yards to where the crusher was located. 

The vehicle he was driving had United States government license 

plates and markings on the door. When he arrived at the crusher, 

a truck was being loaded. Linebarger motioned Funk to park his 

car near his pickup which he did. Funk got out of his car and 

walked over to Linebarger and attempted to introduce himself and 

present his card. Funk testified that Linebarger started yelling 

at him and asking Funk if he "could read the signs" and that he 

was "yellingi• and "cussing" MSHA and the government in general 

<Transcript at 19). 

Linebarger told Funk to follow him up to the off ice. After 

arriving at the trailer, again Linebarger raised his voice and 

said, "The only reason I don't shoot you right where you stand 

is, I want to take four or five of you government S.O.B.'s with 

me." Funk stated he thought there was a rifle in a rack on the 

back window of Linebarger's pickup (Tr. at 22). Then Linebarger 

stated that the only way he would allow an inspection would be if 

he (Funk) was accompanied by a U.S. Marshall (Tr. at 23). Funk 

got back in his car and left the premises. 

Linebarger denies that he made the above statements except 

as to the need for Funk to bring a U.S. Marshall to inspect (Tr. 

at 39, 55). Linebarger testified that there was a 4 x 8 foot 

sign posted near the office which read "Salesmen, Visitors, 

Please Apply at Office. Do not Enter Shop or Work Area Without 

Permission." (Exhibit R-1). 

Linebarger testified that when Funk arrived at the crusher, 

he parked his vehicle in front of the crusher blocking the access 

of trucks to be loaded and requiring the crusher to be shut down 

(Tr. at 54, 55). Linebarger told Funk to move his car and to 

follow him up to the office. He stated that he explained to Funk 

that Linebarger had rules and regulations to go by for the health 

and safety of his employees and the public and if Funk wouldn't 

follow them, he (Linebarger) would refuse to allow Funk to 

conduct an inspection unless he was accompanied by a U.S. 

Marshall (Tr. 38, 39). 

Respondent submitted evidence of prior inspections at 

different plants in 1974 by Mining Enforcement and Safety 

Administration ("MESA"). He had received several citations in 

which reference was made that, "The cooperation of all persons 

contacted during the inspection.was greatly appreciated" (Exh. 

R-8). It is Linebarger's position that he had been inspected in 

the past and always cooperated with the enforcement agency. 

867 
The evidence further revealed that the respondent had been 

inspected by MSHA in 1979 at a different location and received 

six citations which were all abated (Exh. P-2>. 

Although there is conflicting testimony in this case as to 

what was said by the parties on the date of the attempted 

inspection, I find there is no dispute that the inspector was 

refused the opportunity to inspect respondent's operation. This 

is an obvious violation of section 103(a} of the Act which 

specifically provides that frequent inspections shall be made 

without a requirement of advance notice and that the inspectors 

have a right to entry to, upon, or through any mine. On June 17, 

1981, the United States Supreme Court held that the Mine Act 

provides for nonconsensal warrantless inspections and that such 

inspections do not violate the Fourth Amendment. Donovan v. 

Dewey, 49 U.S.L.W. 4748 (U.S. June 17, 1981), No. 80-9011, ~~ 

U.S. (1981). In Secretary v. Waukesha Lime and Stone 

Company, Inc., 3 FMSHRC 1702 (July 6, 1981), the Commission 

decided that a refusal to permit an inspection is a violation of 

the Act for which a penalty must be imposed. 

In light of the foregoing, I find a penalty is warranted in 

this case. The respondent does not deny that he refused the 

inspector access to conduct an inspection on his premises but 

instead argues that the inspector should have read the posted 

signs and stopped at the off ice prior to driving down to the 

crusher. I am not persuaded that the respondent's position is 

supported by the facts in this case. The inspector denies seeing 

the sign alleged to have been erected at the entrance and as 

evidenced by photos submitted at the hearing (Exhs. R-1, R-2, R-3 

and R-4). It is difficult to believe these signs were not 

noticed by the inspector, if they were actually at their alleged 

location near the entrance to the property. However, I have 

carefully considered the conflicting testimony of inspector Funk 

and Linebarger regarding the signs and conversations on April 22, 

1981. Based upon my observation of the witnesses at the hearing 

and the evidence submitted, I find that the testimony of the 

inspector to be more credible than that of Linebarger. Even 

assuming, however, that the signs were located as alleged by 

respondent, entry onto the premises by the inspector is not to be 

predicated upon acquiring prior approval. This is a very small 

operation and the crusher was located near the entrance. It is 

reasonable for the inspector to drive to that location to observe 

the operation. It does not appear reasonable and rational for 

the respondent to refuse an MSHA inspection, if the only basis is 

that the inspector may have parked in the wrong area, as alleged 

by Linebarger, or driven by signs directed to "Visitors and 

Salesmen". 

PENALTY 

The petitioner seeks a penalty against respondent of 

$1,000.00 based upon a special assessment. For some unexplained 

reason, the petitioner's records indicated that the respondent 

868 
had no history of prior inspections or citations.' However, at 

the hearing, evidence was submitted that there were six prior 

citations issued and abated as a result of an inspection by MSHA 

of the respondent at a different location (Exh. P-2). This fact 

does not indicate a pattern of past behavior on respondent's part 

to prevent MSHA inspections. Also, there is evidence of 

respondent's cooperation with MESA, the prior mine safety and 

health enforcement agency. These facts would persuade me that 

the circumstances in this case, although unjustified, are not 

evidence of a pattern of behavior or attitude suggesting the 

imposition of a penalty in the amount suggested by the petitioner. 

I find that a penalty of $500.00 is reasonable in this case. 

CONCLUSIONS OF LAW 

1. The respondent is subject to the jurisdiction of the Act. 

The undersigned Judge has jurisdiction over the parties and 

subject matter of these proceedings. 

2. Respondent violated section 103(a) of the Act as alleged 

in Citation No. 587744. 

4. A reasonable penalty in this case is $500.00. 

Citation No. 587744 is AFFIRMED and respondent is ordered to 

pay a civil penalty of $500.00 within 40 days of the date of this 

decision. 

Distribution: 

~c~ VirgtJ/E. Vail 

Administrative Law Judge 

William W. Kates, Esq., Office of the Solicitor 

U.S. Department of Labor, 8003 Federal Building, Seattle, 

Washington 98174 (Certified Mail) 

Mr. Carl Linebarger, President, Rockline, Inc., P.O. Box 758 

The Dalles, Oregon 97058 (Certified Mail) 

/blc 

869 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 APR 10 1984 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MAGMA COPPER COMPANY -

SAN MANUEL DIVISION, 

Respondent 

: CIVIL PENALTY PROCEEDINGS 

. . Docket No. WEST 81-399-M 

A.C. No. 02-00842-05014 

: Docket No. WEST 83-123-M 

: A.C. No. 02-00151-05504 

: San Manuel Mine . . 

DECISION 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner; 

N. Douglas Grimwood, Esq., Twitty, Sievwright & 

Mills, Phoenix, Arizona, 

for Respondent. 

Before: Judge Vail 

STATEMENT OF THE CASE 

The above cases were consolidated for hearing and decision 

since they involve the same parties and mining division. One 

citation is included in Docket No. WEST 83-123-M, and one is 

involved in WEST 81-399-M. Pursuant to notice, the case was 

heard in Phoenix, Arizona, on March 7, 1984. Both parties waived 

filing posthearing briefs. Based on the entire record, and 

considering the contentions of the parties, I make the following 

decision. 

FINDINGS AND CONCLUSIONS COMMON TO BOTH 

DOCKET NUMBERS 

1. At all times pertinent to these proceedings, respondent 

was the owner and operator of an underground copper mine and mill 

in Pinal County, Arizona, known as the San Manuel Division, Magma 

Copper Company. 

2. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in its operation of the 

subject mine and mill, and I have jurisdiction over the parties 

81'0 
3. Respondent is considered a large mining company with a 

moderate history of past violations. It was stipulated by the 

parties that any penalty imposed as a resu.lt of these two 

citations should neither be increased or decreased because of 

this history. 

4. Payment of the proposed penalties in these two cases 

would not affect the respondent's ability to remain in business. 

5. The two citations involved in this matter were issued on 

the dates indicated on said citations. 

6. In the case of each citation involved herein, the 

violation was abated promptly and in good faith. 

7. Whether a cited violation is properly designated as a 

significant and substantial violation is per ~ irrelevant to a 

determination of the appropriate penalty to be assessed. The 

penalties hereinafter assessed are based on the criteria in 

section llOCi) of the Act. 

Docket No. WEST 83-123-M 

Citation No. 2086656, issued May 17, 1983, charges a 

violation of 30 C.F.R. § 57.11-1 1/ because walkways between No. 

1 and 5 manways in panel 2 had holes in their surfaces that 

created a hazard of falling to miners traveling to their work 

place. 

MSHA inspector Arthur Swanson testified that undercut miners 

going to their working areas and supply trammers carrying 

material to the working areas would use these travelways 

(Transcript at 10). Some logging (planks) had been installed 

over several holes to provide places for miners to walk but where 

there was only one plank 12 inches wide, the inspector was of the 

opinion that a miner carrying material to the working areas could 

trip and fall possibly breaking a leg. The holes were described 

as being an average of two feet deep (Tr. at 14). 

Respondent contends that undercuts, as involved in this 

case, create an extremely difficult place to work as this is a 

transitory condition. Usually there are rough rocks, timbers, 

hoses and other items running through the area. Respondent did 

not deny the conditions as described by the inspector, or the 

photographs submitted as exhibits, but argued that it does not 

constitute an access problem as contemplated by the statute. 

1/ Mandatory. Safe means of access shall be provided and 

maintained to all working places. 

871 
I find that there was a dange~ous situation created by the 

placing of one 12 inch logging for walkway over the hole that is 

two feet deep. The miners carrying material would have a 

difficult time balancing their loads and walking across this 

board. Placing additional boards in these areas makes sense and 

is certain to provide much safer access. I conclude that a 

violation was shown which was not significant and substantial. 

The condition was corrected and additional planking placed over 

the holes shortly after they were brought to respondent's 

attention. I conclude that an appropriate penalty for this 

violation is $50.00. 

Docket No. WEST 81-399-M 

Citation No. 599945, issued March 25, 1981, charges a 

violation of 30 C.F.R. § 57.9-3 2/, because the brakes were not 

working on an Atlas locomotive, Serial No. 3596, in the ball mill 

section of the respondent's rod mill. 

The evidence shows that the cited piece of equipment is a 

battery powered locomotive traveling back and forth on level 

tracks for a distance of approximately 1600 feet. The locomotive 

pulls cars carrying balls used in the grinding process of the 

mill. One locomotive pulls four to five cars on approximately 

six to eight trips during a 16 hour period. The train would not 

travel in excess of 5 miles per hour. 

Inspector Swanson testified that he observed a sign on the 

battery motor of the locomotive reading "caution, no brakes." 

When asked the question of how long the locomotive had been 

without brakes, a member of the mine's managment stated, "approximately two weeks" (Tr. at 22). 

Jerrold Semmens, respondent's assistant general mill 

foreman, testified that he was aware of the fact that the 

locomotive was being operated without brakes. However, he 

stated, "The individual that was operating the train -- was told 

to operate at a slow speed, and if it was needed to stop the 

train immediately, to plug it; in other words, throw it in 

reverse." (Tr. at 37). A repair order had been written to repair 

the brakes but because of the parts being unavailable, it was 

necessary to fabricate the parts in the respondent's shop. 

Respondent argues that because of the restricted area in which 

this locomotive operated and its slow speed, there was not a 

hazard created and that it was not a significant and substantial violation. 

ll Mandatory. Powered mobile equipment shall be provided with 

adequate brakes. 

872 
I agree. that the violation should not be considered 

significant and substantial. I do find that the operation of 

this locomotive without the brakes working is a violation of 

§ 57.9-3. "Plugging" the engine is not adequate brakes under the 

standard as the locomotive had been originally equipped with a 

shoe type brake and these should be repaired. The responden~ 

knew this condition had existed for over two weeks as testified 

to by Mr. Semmons. I conclude that an appropriate penalty for 

this violation is $75.00. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation Nos. 2086656 and 599945 are affirmed, but the 

significant and substantial designations are REMOVED. 

2. Respondent shall pay within 40 days of the date of this 

decision civil penalties for the following violations found 

herein to have occurred: Citation No. 2086656 in the amount of 

$50.00, and Citation No. 599945 in the amount of $75.00 for a 

total amount of $125.00. 

Distribution: 

~Jc!~ Vi~. Vail 

A~~I~~~rative Law Judge 

Marshall P. Salzman, Esq., Office of the Solicitor 

U.S. Department of Labor, 11071 Federal Building, Box 36017 

450 Golden Gate Avenue, San Francisco, California 94102 

(Certified Mail) 

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills 

2702 North Third Street, Suite 4007, Phoenix, Arizona 85004 

(Certified Mail) 

/blc 

873 
FEDERAL M1'4E SAFETY AND HEAL TH REVIEW COMMISSION . 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 111984 

BADGER 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. 

BADGER COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. WEVA 81-36-R 

Order No. 631937; 9/22/80 

DECISION 

Docket No. WEVA 81-37-R 

Citation No. 631938; 9/22/80 

Grand Badger No. 1 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 81-277 

A. C. No. 46-04819-03010 

Docket No. WEVA 81-285 

A. C. No. 46-04819-03009 F 

Grand Badger No. 1 Mine 

Appearances: David J. Romano, Esq., Young, Morgan, Cann & 

Romano, Clarksburg, West Virginia, for Contestant/Respondent; 

Covette Rooney, Esq., Office of the Solicitor, 

U. S. Department of Labor, Philadelphia, 

Pennsylvania, for Respondent/Petitioner. 

Before: Judge Steffey 

An order was issued in this proceeding on December 19, 

1980, consolidating for hearing and decision the issues raised 

by the filing of Badger Coal Company's application for review 

in Docket No. WEVA 81-36-R and its notice of contest filed in 

Docket No. WEVA 81-37-R. The order also consolidated for hearing and decision any civil penalty issues which would be raised 

when and if the Secretary of Labor should thereafter file one 

or more petitions for assessment of civil penalty with respect 

to the violations alleged in Order No. 631937 and Citation No. 

631938. 

A hearing was held in Elkins, west Virginia, on January 27, 

1981, through January 29, 1981, at which time the parties introduced evidence with respect to the issues raised in both the 

notice of contest and civil penalty proceedings. Two petitions 

874 
for assessment of civil penalty were subsequently filed in April 

1981 in Docket Nos. WEVA 81-277 and WEVA·&l-285. When counsel 

for Badger Coal Company filed his answer to the petitions for 

assessment of civil penalty, he appropriately requested that the 

civil penalty cases be forwarded to me so that the issues raised 

in those cases could be decided on the basis of the evidence 

which had already been submitted in this consolidated proceeding. 

Therefore, this decision will dispose of all issues raised in 

all of the cases listed in the caption of this decision. 

Because of illness, the reporter was unable to prepare a 

transcript of the hearing. Therefore, on January 13, 1982, I 

submitted to the parties 31 proposed findings of fact and asked 

them to determine whether they could agree upon those findings 

for the purpose of deciding the issues in this proceeding. Although a considerable period of time was used by me and the parties in reviewing our respective notes and revising language so 

as to arrive at findings on which both parties could agree, I 

believe that the time utilized was justified because a second 

evidentiary hearing, involving expenditure of additional time 

and money and use of witnesses with eroded memories, was avoided. 

Counsel for Badger Coal Company filed his brief on October 31, 1983, and counsel for the Secretary of Labor filed her 

reply brief on November 25, 1983. The issues discussed by both 

counsel are those normally raised in such proceedings: (1) Was 

Order No. 631937 validly issued under imminent-danger section 

107(a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 817(a)? (2) Did the violations alleged in Order No. 

631937 and Citation No. 631938 occur? (3) If violations did 

occur, what civil penalties should be assessed under section 110 

(i) of the Act? 

STIPULATED FINDINGS OF FACT 

The 31 findings of fact agreed upon by the parties are 

given below: 

1. Badger Coal Company operates the Badger No. 1 Mine 

which is located in Upshur County, West Virginia. Badger's No. 

1 Mine produces approximately 1,200 tons of coal daily. Badger 

is an affiliate of the Pittston Company Coal Group. Badger 

also owns and operates three other mines which produce about 

3,500 tons of coal daily. Badger employs about 45 underground 

miners and 13 surface employees at the Badger No. 1 Mine and 

employs a total of 348 miners at all of its mines. It has been 

stipulated that Badger is subject to the provisions of the Federal Mine Safety and Health Act of 1977 and that the administrative law judge has jurisdiction to hear and to decide the issues 

raised by the filing on September 22, 1980, of Badger's application for review and notice of contest in Docket Nos. WEVA 81-36-R 

and WEVA 81-37-R, respectively. 

875 
2. On Friday, September 19, 1980, Richard L. Lambert, a 

shift maintenance foreman, working on the 4-p.m.-to-11 p.m. 

shift, reported to Guy Steerman, the chief electrician, that 

the ground monitoring circuit for the 1 Left Panel Section would 

not trip the Line Power VCB-1 vacuum breaker switchhouse. It 

was agreed that Lambert would report to work on the day shift on 

Saturday for the purpose of repairing the defective vacuum 

breaker switchhouse. Lambert was certified by MSHA as a qualified underground electrician and, by September 20, 1980, he had 

10 years and 8 months of mining experience, and had been a shift 

maintenance foreman for 3 years and 9 months. 

3. Lambert came to the mine on Saturday, September 20, 

1980. Before entering the mine,· Lambert went into the fenced 

enclosure around the surf ace substation and shut off all power 

to underground equipment. He locked the gate on the fenced enclosure and placed the key behind a high-voltage .warning sign. 

At about 8 a.m. Lambert entered the mine accompanied by two 

mechanics. They traveled to the A Panel vacuum switchhouse 

which was located about 4,800 feet from the surface substation. 

4. Lambert found a loose connection on the shunt trip 

coil and believed that was the cause of the malfunction. In 

order to test the performance of the coil, Lambert called 

Steerman on the surface at about 9 a.m. and asked Steerman to 

go to the surface substation and unlock the gate with the key 

behind the high-voltage sign so as to energize the main power 

circuit which is a high-voltage system transporting 12,470 

volts. Steerman complied with Lambert's request and Lambert 

called Steerman again and reported that the vacuum breaker was 

still malfunctioning and that Lambert was returning to the surface to attend a foremen's meeting which had previously been 

scheduled. The two mechanics were sent to the West Mains Section to work on a continuous-mining machine. Lambert met Roger 

Davis, a section foreman, at the entrance to A Panel and they · 

traveled to the surface together. 

5. After the foremen's meeting, Lambert and Steerman discussed the vacuum switchhouse and concluded that the shunt trip 

circuit was causing the malfunction. Lambert asked Steerman to 

remain on the surf ace after Lambert went back underground so 

that Steerman could turn the power on and off as needed while 

Lambert sought to determine the cause of the malfunction of the 

vacuum breaker. 

6. Lambert and Davis returned to the A Panel vacuum 

switchhouse. Davis stayed with Lambert to assist him and because he did not want to leave him alone while Lambert was 

working on the vacuum circuit breaker. Lambert and Davis removed the cover from the breaker compartment. Removal of the 

876 
cover caused the tripping of interlock switches which turned 

off all power to the compartment. Lambert visually examined 

the interior of the compartment and Davis left the scene for 

about 10 minutes in order to check on the progress of Davis' 

crew members who were plastering stoppings and working on the 

track rails in A Panel. When Davis returned to the switchhouse, 

Lambert told Davis that Steerman had asked Lambert to check the 

terminal board located on the inside of the open compartment. 

Lambert taped the interlock switches in closed position so that 

they could not prevent power from entering the compartment while 

the cover was removed. Lambert called Steerman to reenergize 

the switchhouse. Lambert thereafter instructed Davis to hold in 

the capacitor trip switch button while Lambert measured the low 

voltage on the terminal board. 

7. About 1 p.m. Lambert and Davis heard someone being 

paged on the mine telephone located about one block outby the 

switchhouse. Davis left to answer the phone and had just picked 

up the receiver when Davis heard a loud buzzing noise and a moan 

from Lambert. Davis dropped the phone and ran to the switchhouse 

where he found Lambert slumped over the switchhouse with his 

upper body and both arms inside the compartment. 

8. Although the power had been cut off, -Davis opened an 

emergency disconnect on the back of the switchhouse. As Davis 

was pulling Lambert from the compartment, Davis noticed that 

Lambert's left hand was grasping an unshielded insulated wire 

in the open compartment. Davis left Lambert on the mine floor 

and telephoned outside for help and thereafter administered 

first aid with assistance of other miners while Lambert was 

transported to the surface. An ambulance took Lambert to the 

hospital where he was pronounced dead at about 2:15 p.m. 

9. Badger notified MSHA of Lambert's death and at about 

8:30 p.m. five MSHA employees came to the Grand Badger No. 1 

Mine to initiate an investigation of the fatality. The five 

persons were: Richard Vasicek, chief of special enforcement 

program; Jim McCray, supervisory coal mine inspector; Jim Cross, 

coal mine electrical inspector; Paul Moore, mining engineer; and 

Robert Wilmoth, coal mine inspector. The investigators used 

their time Saturday night to interview Badger's employees. Most 

of the questions were asked by Vasicek and a West Virginia state 

inspector whose name was Grant King. 

10. The investigation was not completed on Saturday. On 

Monday, September 22, 1980, three employees--Paul Moore, mining 

engineer; John PhilLips, coal mine electrical inspector; and 

Paul Hall, chief of MSHA's electrical section--from MSHA's 

Morgantown, West Virginia, office went to the mine to continue 

the investigation. Moore was the only MSHA employee at the mine 

on Monday who had also been to the mine on Saturday night. Hall, 

877 
Phillips, and Moore, along with some Badger employees, went 

underground and determined, after about 3 hours of trouble 

shooting, with the vacuum circuit breaker deenergized, that the 

malfunction reported by Lambert was caused by open circuits in 

the auxiliary breaker switch. The open circuits prevented the 

tripping circuit from deenergizing the circuit breaker. The 

malfunction was traced to the auxiliary breaker switch after 

various checks and deductions had been made to eliminate four 

other possible causes of the problem, namely, a circuit breaker, 

a capqcitor trip device, some relays, and the shunt trip coil, 

all of which are shown in a diagram on Exhibit 2. 

11. After Hall, Phillips, and Moore had participated in 

isolating the defective components in the vacuum circuit breaker 

on 1 Left A Panel, the three MSHA employees discussed and evaluated all of the information which they had gathered on September 22, 1980, as well as the summaries of the interviews which 

had been obtained through the interviews of Badger's employees 

on Saturday night. Hall, Phillips, and Moore decided to cite 

Badger for three different violations of the mandatory safety 

standards. 

12. Two of the alleged violations were cited in irnrninentdanger Withdrawal Order No. 631937 dated September 22, 1980, 

issued under sections 107(a) and 104(a) of the Act. The condition or practice stated in the order is as follows: 

Work was being performed on energized electrical 

equipment, the 1 Left Panel vacuum circuit breaker, 

when it was not necessary for the circuit to be energized during testing and trouble shooting (75.509). 

A lock installed by Richard Lambert shift maintenance foreman to lock out a set of disconnects, was 

removed by Guy Steerman, Chief Electrician, after 

Lambert had completed some minor repairs to the 1 

Left A Panel vacuum circuit breaker. Lambert was 

available underground and had asked Steerman by 

telephone to remove the lock and reenergize the main 

circuit breaker supplying power underground (75.511). 

These conditions were determined during an investigation of an accident resulting in the electrocution 

of Richard La~bert, shift maintenance foreman. Mine 

management shall insure that all qualified electricians will be prevented from working on energized 

electrical equipment except when it is absolutely 

necessary to have the power on to trouble-shoot or 

test. Otherwise trouble shooting and testing shall 

be done with the electrical circuits deenergized. 

Also, locks and tags shall only be removed by persons 

who installed them when they are available at the 

mine. 

878 
A subsequent action sheet was issued on September 24, 1980, 

stating: 

Order No. 631937 is hereby modified so that 

the following statement is added. Richard Lambert 

was not wearing protective apparel while he was 

troubleshooting and testing the low voltage control 

circuit of the Line Power 12,470 VAC vacuum breaker 

S.N. 4986. Lambert was exposed to and contacted 

internal high voltage components which were energized. 

Phillips signed Order No. 631937 but its issuance was with the 

full concurrence of Hall and Moore. 

13. Order No. 631937 is comprised of Exhibits 4 and 4A in 

this proceeding. Exhibit 4 has two lines after the words "Area 

or Equipment" for entry of the designated area covered by the 

withdrawal order. Exhibit 4 shows that something was described 

on the first of those two lines, but those words have been 

scratched out. Exhibit O in this proceeding is a copy of Withdrawal Order No. 631937 which was attached to Badger's application for review filed in Docket No. WEVA 81-36-R. On Exhibit O, 

after the words "Area or Equipment", there appears an entry 

reading "The 1 Left vacuum circuit breaker serial No. 4986". 

14. The pink and yellow copies of Order No. 631937 were 

handed to Badger's safety director, Larry Fortney, by Phillips. 

Fortney testified that the yellow copy was placed on Badger's 

bulletin board and is no longer available as no effort is made 

by Badger to preserve the copy placed on the bulletin board. 

The pink copy of Order No. 631937 was introduced in evidence as 

Exhibit B and the pink copy also has after the words "Area or 

Equipment" the same entry that appears on Exhi,bit O, namely, 

"The 1 Left vacuum circuit breaker serial No. 4986". Although 

the entry on the pink copy contains the same words as those 

which appear on the Xerox copy, which was attached to Badger's 

application for review, the Xerox copy, or Exhibit O, is not a 

true Xerox copy of the original order because a secretary who 

works for Badger rewrote Exhibit o to obtain a clear copy for 

use as an exhibit to accompany the application for review. 

15. When Phillips was cross-examined during his first 

appearance as a witness, he stated that he might have scratched 

out the entry on Order No. 631937 after the words "Area or 

Equipment" but that he could not specifically recall having 

done so. 

16. Phillips testified, when called as an adverse witness 

by Badger's counsel, that his handwriting appears on drder No. 

631937 and that he simply wrote on the official form the language which he, Hall, and Moore had drafted. Phillips also 

stated that after he wrote the order, he tore the white, pink, 

and yellow copies out of his book of forms and placed them in 

879 
front of him. Then Phillips, Hall, and Moore decided that the 

order dealt with a "practice" instead of a "condition" and it 

was concluded that the language appearing after the words "Area 

or Equipment" should be obliterated from the order. Phillips 

stated that the original white copy which is now in MSHA's file 

in the Morgantown office shows obliteration of the entry after 

"Area or Equipment". The only explanation Phillips could give 

for the fact that the pink copy presented in evidence as Exhibit 

B by Badger's counsel showed that the entry after the words 

"Area or Equipment" had not been obliterated was that he placed 

the copies back in his book to scratch out the entry after "Area 

or Equipment" and he thinks that he may have placed the pink 

copy under his green copy which does not contain on its back the 

substance which acts like carbon paper. 

17. Phillips' green copy of Order No. 631937 was introduced in evidence as Exhibit C. A careful comparison of the 

pink copy of Order No. 631937, or Exhibit B, with the green copy 

shows that the handwriting on the green and pink copies is identical and that the only difference between them, besides their 

color, is the fact that the green copy has had the entry after 

the words "Area or Equipment" scratched out, whereas the pink 

copy still shows an entry after the words "Area or Equipment". 

18. Order No. 631937 was terminated by James Cross on 

October 2, 1980, as shown in Exhibit 4B. Cross testified that 

Badger did not request that the order be vacated. Cros~6ad 

gone to the mine for other purposes and, while there, asked to 

see a list of miners who had signed a sheet indicating that 

they would not trouble shoot while equipment is energized unless 

absolutely necessary and would have the same person who locks 

and tags power out of the mine to remove the lock and tag and 

restore the power. All miners had signed sheets, which comprise 

Exhibit 6 in this proceeding, to show that they would comply 

with the aforementioned procedures. Although all electricians 

or miners had signed the sheets by September 24, 1980, the order 

was not terminated until October 2, 1980. 

19. The third violation, referred to in Finding No. 11 

above, for which Phillips, Moore, and Hall determined to cite 

Badger was a violation of section 75.803 which was alleged in 

Citation No. 631938 issued September 22, 1980. That citation 

is Exhibit 5 in this proceeding and the condition described in 

the citation is: 

The ground check circuit provided to monitor 

the continuity of the grounding circuit from the A 

Panel vacuum breaker to the A panel power center 

was inoperative in that the auxiliary breaker 

switch would not properly operate to allow the 

tripping circuit to energize the shunt trip coil 

880 
which deenergizes the circuit breaker. This condition was determined during an investigation of a 

fatal electrical accident. Mine management was aware of this condition and was in the process of 

repairing the ground wire monitoring system when 

the accident occurred. 

Citation No. 631938 was terminated on September 23, 1980, by a 

subsequent action sheet which is Exhibit SA in this proceeding 

and which states: 

The ground check circuit provided to continuously monitor the continuity of the grounding 

circuit from the A Panel Vacuum Breaker to the A 

Panel power center was made operative by providing another vacuum breaker and transporting the 

defective breaker to the surface. 

20. Hall, Phillips, and Moore testified in support of the 

issuance of Order No. 631937. They claimed that an imminent 

danger was involved in the death of Lambert because there was a 

practice at Badger's No. 1 Mine which was a continuing imminent 

danger in that the electrician who turned off high voltage was 

allowing another electrician to reenergize the equipment for 

purposes of trouble shooting and testing. Hall said that the 

imminent danger existed while Lambert was trouble shooting with 

the power on, but that the imminent danger did not exist when 

he checked the equipment on Monday, September 22, 1980, because 

the vacuum breaker had been deenergized. Hall said that MSHA 

can issue an imminent danger order when an inspector finds that 

a practice is causing an imminent danger even though it may 

take days, as it did in this instance, to determine whether the 

imminent danger has been abated. Hall also said that the imminent danger in this instance continued to exist while the list 

(Exh. 6) was circulated in order for the miners to sign their 

names to the list to show that they would not have another per3on to reenergize high voltage equipment if a different person 

had shut off the power and tagged or locked out the disconnects 

involved. 

21. In support of MSHA's citing of a violation of section 

75.509, MSHA's witnesses stated that section 75.509 permits a 

person to trouble shoot or test electrical equipment while it 

is energized only when such trouble shooting is necessary and 

they claimed that trouble shooting and testing with the power 

on was not necessary for Lambert to determine why the vacuum 

breaker would not cut off the power in the 1 Left A Panel. 

MSHA's witnesses primarily supported their contention that it 

was unnecessary for Lambert to trouble shoot with the power on 

by stating that the team of men who examined the vacuum breaker 

on September 22, 1980, determined the cause of the malfunction 

881 
while the power was off. The names of the people who participated in the examination were: Wayne Myers, Badger's chief 

electrical engineer; Blaine Yeager, Badger's maintenance superintendent; Guy Steerman, Badger's chief electrician at the No. 1 

Mine; Mike Hall, chief of MSHA's Electrical Section; Jim Cross, 

an MSHA electrical inspector; John Paul Phillips, an MSHA inspector and certified electrician; and Benny Comer, a West Virginia 

electrical inspector. Those seven men studied a printout of the 

vacuum breaker before going underground and determined the manner 

in which they would check all of the various circuits and components to determine the problem. They worked 3-1/2 hours and 

finally decided that the auxiliary switch was at fault because 

of excessive mechanical wear. Although the trip counter showed 

only 230 operations, the switch should have worked thousands of 

times without becoming defective as a result of mechanical wear. 

MSHA's witnesses stressed the fact that voltage potential can 

be checked with an ohmmeter which is equipped with a battery to 

provide its own power. MSHA's witnesses said that checking with 

a voltmeter, which requires energization of equipment, is unnecessary· for locating defective components. 

22. MSHA's witnesses supported their citing of a violation 

of section 75.511 by stating that Lambert had violated that section when he asked Steerman to reenergize the equipment which 

Lambert had deenergized at the substation and locked out. Moore 

testified that only the electrician who deenergizes equipment 

before working on it may remove the locks or tags and reenergize 

the equipment. Hall testified that Steerman's reenergizing the 

vacuum breaker was a contributing factor to Lambert's electrocution even though Lambert knew that the vacuum breaker was energized at the time he came into contact with the high-voltage 

circuits. Hall interpreted the last sentence of section 75.511 

to mean that the person who deenergizes equipment must be the 

person who reenergizes it so long as that person is anywhere at. 

the mine site. MSHA's witnesses took the position that Lambert 

was "available" to reenergize the equipment even though the 

vacuum breaker was located 4,800 feet from the surface substation where Lambert had turned off the power. 

23. MSHA's witnesses supported their citing respondent 

for a violation of section 75.803 by testifying that Badger's 

management knew that the vacuum circuit breaker was inoperable 

but continued to operate equipment in the mine after Badger's 

management became aware of the fact that the ground monitoring 

system was not working. Citation No. 631938 specifically acknowledges the fact that mine management was aware of the fact 

that the ground monitoring system was not working and states 

that management was ~n the process of repairing the ground wire 

monitoring system when the fatal accident occurred. 

882 
24. Guy J. Steerman, in September 1980, was chief electrician at the Badger No. 1 Mine. Steerman was certified by MSHA 

as a qualified electrician for both underground and surf ace 

mining operations and Steerman had 10 years mining experience 

by September 20, 1980. Steerman testified that Lambert had already checked the vacuum breaker with an ohmmeter and had been 

unable to determine the cause of the malfunction in the shunt 

trip coil. Lambert had also advised Steerman that there was 

continuity in the ground monitoring system. In such circumstances, Steerman asked Lambert to check terminal Nos. 15 and 16 

with a voltmeter to determine if there was power on the shunt 

trip coil. Steerman did not think it was hazardous to check the 

low-voltage terminal board of the vacuum circuit breaker with 

the power on. The low-voltage terminal board was sufficiently 

segregated from the high-voltage components of the vacuum circuit 

breaker that Steerman did not consider Lambert to be working on 

high-voltage components when he was checking the low-voltage terminal board. Steerman did not know that Lambert had removed the 

p~otective insulated shield covering the high-voltage compartment in which the high-voltage vacuum circuit breaker was located. 

If Steerman had known that Lambert had removed the insulated 

shield over the high-voltage components, he would have instructed 

Lambert to replace the insulated shield before conducting further 

testing or trouble shooting. Therefore, Steerman did not think 

Badger had violated section 75.509 or section 75.803. Steerman 

stated that Lambert knew by talking to Steerman on the phone 

when the power was on and when it was off. Steerman thought 

that there was no essential difference between Lambert's telling 

Steerman to turn the power on and off and Lambert's coming out 

of the mine for the purpose of turning the power on and off. 

Therefore, Steerman did not think Badger had violated section 

75.511. 

25. Lowell ~unior Tinney, general superintendent of Badger's 

No. 1 Mine, testified that he also suggested that Lambert check 

terminal Nos. 15 and 16 with the power on and that he had no 

reason to doubt Lambert's ability or his care in avoiding exposure to the high-voltage circuits. Tinney thinks that an electrician should be able to ask another person to turn the power 

on and off because he thinks that when an electrician is 4,800 

feet from the place where the power is turned on and off, that 

person is "unavailable" for personally turning the power on or 

off within the meaning of section 75.511. Tinney also believed 

that Badger was following the provisions of section 75.509 because he believed that it was necessary for Lambert to check 

the low-voltage circuits with the power on in his effort to 

determine what was wrong with the shunt trip coil. 

26. Larry Fortney, Badger's safety director, testified 

that the inspectors gave him both the yellow and pink copies 

of Order No. 631937 and that neither of those copies had any 

883 
words scratched out on the line beginning with the words "Area 

or Equipment". On the contrary, both copies specified that the 

"Area or Equipment" involved was "The 1 Left vacuum circuit 

breaker serial No. 4986". It was Fortney's understanding that 

abatement of the order was dependent upon Badger's replacing the 

existing vacuum breaker with a new one. That is what was done 

to abate the order. Fortney additionally said that the inspector 

who abated the order also asked for the list of men who had 

signed Exhibit 6 stating that they would personally reenergize 

any equipment which they had personally deenergized. 

27. Wayne Myers, Jr., is head of Pittston's Electrical Department. He has had 32 years of experience in designing and 

working on complex electrical equipment. He wrote the specifications for the vacuum breaker involved in this proceeding and 

had the breaker constructed by Line Power Company of Bristol, 

Virginia. Myers first thought that the defect in the vacuum 

breaker was in the auxiliary switch. The switch was replaced 

on Tuesday, September 23, 1980, the day after MSHA's three employees (Phillips, Hall, and Moore) had written the order and 

citation involved in this proceeding. The vacuum breaker worked 

perfectly and West Virginia and MSHA personnel were called to 

Badger's repair shop on Wednesday, September 24, 1980, for a 

demonstration, but the vacuum breaker again malfunctioned. 

Myers and his assistants replaced the vacuum bottle and all 

parts which were suspect and again the vacuum breaker seemed 

to be working satisfactorily, but it again malfunctioned when 

West Virginia and MSHA personnel were called for a second demonstration on Thursday, September 25, 1980. Myers then found 

that a ratchet in the operating handle was failing to create 

enough force to close the vacuum bottle which was supposed to 

activate the rod which, in turn, operated the auxiliary switch. 

The cam was not making a full rotation. The ratchet was redesigned on Friday and Saturday. On Monday, September 29, 1980, 

the redesigned parts were installed and the vacuum breaker 

thereafter worked perfectly. 

28. Myers said that Badger's personnel had not violated 

any of the mandatory safety standards. He said that the ground 

monitoring system was working at all times and that Lambert was 

aware of the fact that the monitoring system was working. While 

the vacuum breaker was failing to cut off power, the fault was 

not in the ground monitoring system; consequently, Myers did 

not think a violation of section 75.803 had occurred. 

29. Myers said that he believed section 75.511 should be 

interpreted to give some meaning to the word "unavailable" in 

the last sentence of that section. Myers pointed out that it 

could take an electrician from 2 to 2-1/2 hours to travel from 

the equipment on which he was working to the place where the 

power had been cut off and locked out or tagged. Myers believed 

884 
that the person who cuts off the power is 11 unavailable" to reenergize the equipment when he is so far away from the power cutoff point that it takes him 2-1/2 hours to go to the power point 

and reenergize equipment. Myers said that requiring an electrician to spend 2-1/2 hours to turn power on and off would tend to 

make the electrician impatient and tempt him to check equipment 

with the power on rather than take the time and effort required 

to go back to the power point and reenergize or deenergize 

equipment. Therefore, in Myers' opinion, Lambert was in compliance with section 75.511 when he asked Steerman to turn the 

power on. So long as Lambert gave the instructions about energizing and deenergizing equipment, Lambert was at all times aware of when the power was on and when it was off. Myers said 

that Lambert knew that the power was on at the time Lambert was 

electrocuted and that Lambert's act of asking Steerman to turn 

the power on for him had nothing whatsoever to do with the occurrence of the fatal accident. 

30. Myers also believed that Lambert had engaged in trouble 

shooting and testing with the power on in full compliance with 

section 75.509 because, in Myers' opinion, Lambert had determined 

that a problem existed in the vicinity of the shunt trip coil, 

which is a low-voltage section of the vacuum circuit breaker, 

and that Lambert having previously done testing and trouble 

shooting for sometime with the power off, was not acting unreasonably in doing further testing and trouble shooting on the lowvol tage terminal board with the power on. As a matter of fact, 

all three of MSHA's experts and the other experienced personnel 

(including several electrical engineers) who examined the vacuum 

circuit breaker for 3-1/2 hours on Monday, September 22, 1980, 

had failed to find the cause of the malfunction. The fact that 

a large number of experts could not find the problem with the 

power off was, in Myers' opinion, rather positive proof of the 

fact that Lambert was trouble shooting and testing with the 

power on at a time when it was "necessary" within the meaning 

of section 75.509. As noted in Finding No. 27, supra, the 

malfunction was not fully determined until several days later 

when it turned out to be a mechanical problem in the design of 

the ratchet lever by Line Power Manufacturing Company and not an 

electrical problem. 

31. It was stipulated at the hearing that during the 24 

months preceding the citing of the alleged violations in this 

proceeding, respondent had paid penalties with respect to 52 

alleged violations. There is no history showing that respondent 

has previously violated sections 75.509, 75.511, or 75.803. 

885 
DOCKET NO. WEVA 81-36-R 

The Question of the Validity of Order No. 631937 

Badger's Arguments 

Badger's brief (pp. 2-7) argues that Order No. 631937, 

whose provisions are quoted in Finding No. 12, supra, is invalid 

because its issuance is unsupported by the law and the facts. 

Section 107(a) provides as follows: 

(a) If, upon any inspection or investigation 

of a coal or other mine which is subject to this 

Act, an authorized representative of the Secretary 

finds that an imminent danger exists, such representative shall determine the extent of the area 

of such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine 

to cause all persons, except those referred to in 

section 104(c), to be withdrawn from, and to be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such 

imminent danger and the conditions or practices which 

caused such imminent danger no longer exist. The 

issuance of an order under this subsection shall not 

preclude the issuance of a citation under section 104 

or the proposing of a penalty under section 110. 

Badger's arguments also refer to section 107(c) which provides 

as follows: 

{c) Orders issued pursuant to subsection (a) 

shall contain a detailed description of the conditions 

or practices which cause and constitute an imminent 

danger and a description of the area of the coal or 

other mine from which persons must be withdrawn and 

prohibited from entering. 

Order No. 631937 was issued on September 22, 1980, by three 

MSHA employees, namely, John Phillips, a coal-mine electrical 

inspector, Paul Moore, a mining engineer, and Paul Hall, chief 

of the electrical section in MSHA's Morgantown, West Virginia, 

office (Finding Nos. 10 and 11, supra). The order alleged violations of 30 C.F.R. §§ 75.509 and 75.511. Section 75.509 pro-

·vides as follows: 

All power circuits and electric equipment shall 

be deenergized before work is done on such circuits 

and equipment, except when necessary for trouble 

shooting or testing. 

886 
Section 75.511 provides: 

No electrical work shall be performed on low-, 

medium-, or high-voltage distribution circuits or 

equipment, except by a qualified person or by a 

person trained to perform electrical work and to 

maintain electrical equipment under the direct 

supervision of a qualified person. Disconnecting 

devices shall be locked out and suitably tagged by 

the persons who perform such work, except that in 

cases where locking out is not possible, such devices shall be opened and suitably tagged by such 

persons. Locks or tags shall be removed only by 

the persons who installed them or, if such persons 

are unavailable, by persons authorized by the operator or his agent. 

Badger's brief (p. 4) correctly notes that the language 

given under the words "Condition or Practice" in Order No. 

631937 alleges only that Badger had violated section 75.509 by 

performing testing and trouble shooting on electrical equipment 

when it was not necessary to do so. The order also alleges 

that Badger had violated section 75.511 in that the certified 

electrician, Richard Lambert, who locked out the disconnecting 

device in a surf ace substation providing power to an underground 

vacuum circuit breaker, asked the chief electrician to unlock 

the device and restore power for purposes of trouble shooting. 

The inspectors issued a modification of Order No. 631937 on 

September 24, 1980, but that modification simply added words 

to the effect that Lambert was not wearing protective apparel 

while he was trouble shooting the low-voltage control circuit 

on a vacuum circuit breaker (Finding No. 12, supra). 

Badger's brief concludes that the language in Order No. 

631937 does not comply with section 107(c) of the Act because 

it does not, in the words of that section, "* * * contain a 

detailed description of the conditions or practices which cause 

and constitute an imminent danger." Badger contends, therefore, that anyone reading the order would believe that it does 

no more than cite Badger for violations of sections 75.509 and 

75.511. At the hearing, MSHA's witnesses explained that an 

imminent danger was associated with Lambert's death "* * * because there was a practice at Badger's No. 1 Mine which was a 

continuing imminent danger in that the electrician who turned 

off high voltage was allowing another electrician to reenergize 

the equipment for purposes of trouble shooting and testing" 

(Finding No. 20, supra). 

Although Order No. 631937 when first written by Phillips 

on September 22, 1980, specified under the words "Area or 

Equipment" that "[t]he 1 Left vacuum circuit breaker serial 

887 
No. 4986" was the area from which miners should be withdrawn, 

or the hazardous equipment which should be withdrawn, the inspectors decided that, since the order dealt with a "practice" 

instead of a "condition", that the language referring to the 1 

left vacuum circuit breaker should be obliterated from the 

order. 

Phillips, at first, stated that while he might have 

scratched out the words "l left vacuum circuit breaker serial 

No. 4986" from the order, he did not specifically recall having 

done so (Finding No. 15, supra). When Phillips was subsequently recalled as an adverse witness by Badger's attorney, he' recalled specifically having put the copies of the order back into 

his book of forms to scratch out the words under "Area or Equipment". The only explanation which Phillips could give for the 

fact that the pink copy given to Badger did not show any scratching out of the words "l Left vacuum circuit breaker serial No. 

4986" under "Area or Equipment" was that he may have placed the 

pink copy under his green copy which does not contain on its 

back the substance which acts like carbon paper (Finding No. 16, 

supra) . 

Larry Fortney, Badger's safety director, testified that the 

inspectors gave him both the yellow and pink copies of Order No. 

631937 and·that neither of those copies had any words scratched 

out on the line beginning with the words "Area or Equipment". 

On the contrary, both copies specified that the "Area or Equipment" involved was "[t]he Left vacuum circuit breaker serial No. 

4986". Fortney understood that abatement of the order required 

Badger to remove the defective vacuum circuit breaker and replace it with another vacuum circuit breaker which functioned 

properly and Fortney said that was the action Badger took to 

abate the order (Finding No. 26, supra). 

Badger's brief (p. 5) argues that the lack of specificity 

and detail in Order No. 631937 renders it defective as a matter 

of law because it does not specify what constituted an imminent 

danger at the time the order was issued. Badger further contends that the inspectors, after hearing that the order had been 

contested, contrived the argument that the imminent danger consisted of a "practice" at the mine of having someone energize 

equipment other than the individual who had deenergized it. 

Badger also argues that the inspectors did not really obliterate 

the words "l Left vacuum circuit breaker serial No. 4986" on 

the same day they wrote the order, but decided to obliterate 

those words from the order after they realized that the 1 left 

vacuum circuit breaker did not constitute an imminent danger 

at the time the order was written. Badger's brief (p. 6) points 

out that the inspectors have always taken great precautions to 

notify Badger when changing or altering any previous citation or 

888 
order and that MSHA's failure to notify Badger of the obliteration of "l Left vacuum circuit breaker serial No. 4986" supports 

Badger's contention that the obliteration occurred after the 

inspectors learned that the order was going to be contested. 

Badger's brief (p. 6), in support of its argument, cites a 

decision by Judge Boltz in CF&I Steel Corp., 3 FMSHRC 99 

(1981), 1/ in which Judge Boltz found that no imminent danger 

existed rn circumstances where the operator had detected a 

hazardous concentration of methane, had turned off all ?Ower to 

the area, and had withdrawn all miners except those working to 

correct ventilation before the inspector arrived at the scene 

of an all~ged imminent danger. Badger argues that since it was 

removing the defective circuit breaker at the time the order 

was written, that the conclusions of Judge Boltz in the CF&I 

case should be applied in this case, that I should find that no 

imminent danger existed in Badger's mine, and that the order 

should be vacated as having been issued in error. 

The Secretary's Arguments 

The Secretary's brief (p. 4) argues that imminent-danger 

Order No. 631937 was properly issued because "* * * there was in 

existence at the Grand Badger No. 1 Mine a practice considered 

normal procedure, wherein a person performing electrical work 

locked out the equipment and once the work was completed, then 

instructed someone over the station phone, to remove the lock 

and reenergize the power." The Secretary also cites a decision 

1/ Badger's brief (p. 7) cites other cases to the same effect, 

at least to the extent that I was able to locate them and read 

them. Badger's citations are to the Mine Safety and Health publication by the Bureau of National Affairs. I prefer to read 

the cases in the Commission's books of decisions. Therefore, 

when lawyers cite cases only by reference to the Mine Safety and 

Health publication, it is necessary for me to go to the library 

to determine the docket numbers and exact dates of the decisions 

so that I can locate them in the Commission's books of decisions 

which are issued each ·month. Badger's failure to give the names 

of the cases cited on page 7 of its brief and its incorrect use 

of page citations for some of the cases made it impossible for 

me to find the citations in the Mine Safety and Health publication 

or elsewhere. I recognize that a judge's decision becomes a final 

decision of the Commission after 40 days if the Commission fails 

to grant a petition for discretionary review, but I still think a 

lawyer ought to make it clear in his citations that he is referring to a judge's decision which has become final, as opposed to 

decisions which have been issued by the Commission after determining that discretionary review should be made. 

8.89 
by Judge Koutras in Consolidation Coal Co., 2 FMSHRC 49 (1980), 

in which he held that the coal company seeking revi~w of an 

imminent-danger order has the burden of proving that an imminent 

danger did not exist. Judge Koutras stated in the Consolidation 

case that "* * * the order is properly vacated whe~e the applicant proves by a preponderance of the evidence that an imminent 

danger was not present when the order was issued" (2 FMSHRC at 

64) . 

The Secretary's brief (p. 5) contends that the practice of 

having a different person reenergize equipment from the person 

who deenergized the equipment comes within the definition of 

imminent danger in section 3(j) of the Act which provides, "[t]he 

existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated." 

The Secretary's brief (p. 6) also quotes from the Legislative 

History of the Federal Coal Mine Health and Safety Act of 1969, 

page 215, or from page 89 of Senate Report No. 91-411, which 

provides as follows: 

The concept of an imminent danger as it has 

evolved in this industry is that the situation is so 

serious that the miners must be removed from the danger forthwith when the danger is discovered without 

waiting for any formal proceedings or notice. The 

seriousness of the situation demands such immediate 

action. The first concern is the danger to the miner. 

Delays, even of a few minutes, may be critical or 

disastrous. After the miners are free of danger, 

then the operator can expeditiously appeal the action 

of the inspector. 

The Secretary's brief (p. 7) also quotes from the court's 

decision in Freeman Coal Mining Co. v. Interior Bd. of Mine Op. 

App., 504 F.2d 741 (7th Cir. 1974), in which the court agreed 

with the Board's statement that imminent dan~er relates to the 

"proximity of the peril to life and limb" (504 F.2d at 743). 

The court also approved of the Board's discussion of imminent 

danger in the following language (504 F.2d at 743): 

"[w]ould a reasonable man, given a qualified inspector's educ·ation and experience, conclude that 

the facts indicate an impending accident or disaster, threatening to kill or to cause serious 

physical harm, likely to occur at any moment, but 

not necessarily immediately? The uncertainty must 

be of a nature that would induce a reasonable man 

to estimate that, if normal operations designed to 

extract coal in the disputed area proceeded, it is 

at least just as probable as not that the feared 

accident or disaster would occur before elimination 

of the danger." 

890 
The Secretary's brief (p. 8) concedes that the inspectors 

who wrote imminent-danger Order No. 631937 did not see the 

"practice" which constituted the imminent danger which was cited 

in the order, but the Secretary argues that the employees who 

issued the order were experienced electricians and one of them 

was a mining engineer. It is contended, therefore, that they 

had the "education and experience" referred to in the quotation 

from the Freeman case to recognize that Badger's practice of 

having another person reenergize equipment from the person who 

deenergized the equipment indicated the existence of an impending accident or disaster, threatening to kill or cause serious 

injury at any moment, if that practice were allowed to continue 

in existence. 

The Secretary, therefore, asks me to apply Judge Laurenson's 

reasoning in Itmann Coal Co., 2 FMSHRC 1643 (1980), in which he 

upheld the validity of an imminent-danger order issued in circumstances where an inspector saw a miner walk under unsupported 

roof. The Secretary argues that even though the miner was not 

under the hazardous roof when the order was issued, Judge 

Laurenson upheld the order because there was a practice at Itmann' s mine for miners to walk under the unsupported roof. The 

Secretary also cites Peabody Coal Co., 1 FMSHRC 1785 (1979), in 

which the Commission upheld issuance of an imminent-danger 

order several days after data were collected showing existence 

of a dangerous concentration of carbon monoxide after a fire 

had occurred at Peabody's mine. 

The Infirmities in Order No. 631937 Require Its Vacation 

There are at least several reasons for vacating Order No. 

631937. First, the order, as modified by the inspectors, fails 

to comply with section 107(a) by determining "* * * the extent 

of the area of such mine throughout which the danger exists" so 

as to withdraw miners from the area of danger. As the order 

was originally issued, it made limited sense by declaring that 

the area of danger was the "l Left vacuum circuit breaker serial No. 4986". It is a fact that the circuit breaker in question malfunctioned on Friday, September 19, 1980, and caused 

the death of an electrician when he was trouble shooting the 

low-voltage circuits on the circuit breaker on Saturday, September 20, 1980. All power to the circuit breaker was cut off 

at the moment of the electrician's death and the circuit breaker 

was not energized again until after it was removed from the mine 

on Monday, September 22, 1980. 

The inspector who wrote the order, which was issued with 

the concurrence of two other MSHA employees, testified that no 

imminent danger existed on Monday, September 22, 1980, when the 

inspectors examined the circuit breaker, because the circuit 

breaker had been deenergized. The inspectors apparently 

891 
recognized that they could not sustain the citing of an imminent 

danger on a deenergized piece of equipment, so they thereafter 

removed from the order any reference to "the area of such mine 

throughout which the danger exists" and contended that the order 

was withdrawing the "practice" at the mine of having a person 

reenergize equipment other than the person who deenergized the 

equipment. 

Once the inspectors had changed their minds about the concept underlying the issuance of the order, it was incumbent upon 

them to notify Badger's personnel of the fact that they were not 

withdrawing a piece of hazardous equipment from the mine, but 

were, instead, withdrawing the "practice" of having a person reenergize equipment other than the person who deenergized the 

equipment. The Secretary's brief (p. 13) argues that the inspectors' failure to inform Badger of the obliteration of any 

area from which miners were to be withdrawn was not prejudicial 

to Badger. The theory behind the claim of no prejudice is that 

the inspectors required Badger to have all electricians sign a 

statement that they would not have someone else reenergize equipment which they had deenergized before working on it. The Secretary; therefore, argues that Badger knew that the real imminent 

danger cited in the order was the practice with respect to reen~rgization of equipment and that the order was not officially 

terminated until all of the electricians had signed a statement 

(Exh. 6) showing that they would not ask another electrician to 

reenergize equipment which they had deenergized. 

The Secretary's contention that Badger was not prejudiced 

is hard to sustain within the concept of an imminent danger. 

The Secretary has defended his action in issuing the order by 

citing legislative history to the effect that the primary reason 

for issuing imminent-danger orders is to remove miners from the 

area of danger. When Badger removed the circuit breaker from 

the mine, it thought it had removed all miners from the area of 

danger because Badger's copy of the order continued to specify 

that the "area throughout which the danger exists" was the "l 

Left vacuum circuit breaker serial No. 4986". The order was 

written on September 22, 1980, but Badger did not succeed in 

getting all the electricians to sign the statement about deenergization of electric equipment until September 24, 1980, but 

throughout that time, miners were allowed to work in the mine 

because the inspectors had not advised Badger that the entire 

mine was hazardous until the "practice" which caused the imminent 

danger ceased to exist. 

The confusion pertaining to the area from which miners were 

required to be withdrawn was augmented by the fact that another 

inspector had issued a withdrawal order pu~suant to section 103 

(k} of the Act on September 20, 1980, after the electrician, 

Richard Lambert, had been electrocuted. That order had initially 

892 
been issued by specifying that the "entire mine" was the area 

from which miners should be withdrawn, but the order was modified 3 hours after it was issued to specify that the area from 

which miners were to be withdrawn was the section where circuit 

breaker with serial No. 4986 was located. Therefore, two withdrawal orders had been issued and both of them required Badger 

to withdraw miners only from the area where the defective circuit 

breaker was situated, but, according to the Secretary, the miners 

throughout the entire mine were under the peril of an imminent 

danger while Badger, over a 2-day period, was obtaining signatures of the electricians who worked at the mine. 

Since the primary purpose for issuing Order No. 631937, or 

any other imminent-danger order, is to withdraw miners from the 

area of danger, the inspectors completely failed to carry out 

their obligation under the Act by failing to specify the "entire 

mine" as the area from which the miners should be withdrawn until such time as all electricians were made aware of the requirement that they never have another person reenergize equipment which they had deenergized for the purpose of working on 

it. In other words, the miners were continuing to work at the 

mine throughout the period during which the imminent-danger 

order was in effect. Many of the electricians did not sign the 

statement saying that they would not have another person deenergize equipment until September 24, 1980. Therefore, if the 

"practice" was as widespread and as hazardous as it would have 

had to be to justify the issuance of an imminent-danger order, 

the inspectors cannot justify allowing the miners to continue 

working for 2 days while the electricians were being made aware 

of the imminent danger which existed throughout that period. 

There are other aspects about Order No. 631937 which support a finding that it should be vacated. Badger did not request 

that the order be terminated because Badger thought it had eliminated the dangerous condition causing the imminent danger when 

it withdrew the defective circuit breaker from the mine. Therefore, the imminent-danger order was technically in effect until 

it was officially terminated on October 2, 1980. At that time, 

the justification for terminating the order was that "[m]anagement has given specific instructions to each qualified electrician at the mine to comply with the instructions mentioned in 

the order." Since the order was not terminated until October 2, 

1980, the inspectors had allowed the miners to continue working 

in the mine from September 22, 1980, the day the order was 

issued, to October 2, 1980, without Badger's having any idea 

that its mine or personnel were under some sort of binding withdrawal order. 

The cases cited by the Secretary in support of his action 

of having issued Order No. 631937 are not persuasive. In the 

Itmann case, supra, the are·a from which miners were withdrawn 

893 
was unsupported roof at a point where a roof fall had occurred. 

There is no doubt as to what constituted the imminent danger in 

that case. The danger was the falling of unsupported roof. The 

"practice" which the miners were barred from doing was the act 

of walking under the unsupported roof. Itmann was required to 

erect timbers and planks to prevent miners from going under the 

unsupported roof before the order was terminated (2 FMSHRC at 

1648). Therefore, the "practice" of walking under the hazardous 

roof was necessarily terminated at the same time the bulwark was 

constructed to stop the miners' "practice" of walking under unsupported roof. 

Judge Laurenson distinguished his finding of an imminent 

danger in the Itmann case from his finding of no imminent danger 

in Sharp Mountain Coal Co., 3 FMSHRC 115 (1981), by pointing out 

that the imminent danger order in the Itmann case was written 

moments after the inspector saw a miner walk under unsupported 

roof, as compared with the imminent-danger order in the Sharp 

Mountain case in which the order was written 11 days after the 

inspectors had observed nonpermissible caps and fuses in Sharp 

Mountain's coal mine. Judge Laurenson held that the mere existence of nonperrnissible caps and fuses did not create an imminent 

danger and that the inspectors had failed to find that Sharp 

Mountain's owners were actually using the nonpermissible caps 

and fuses at. all, much less using them in a hazardous manner. 

The inspectors in this proceeding acted like those in the 

Sharp Mountain case in issuing an imminent-danger withdrawal 

order without having seen any electrician have another person 

reenergize equipment which he had just deenergized for the purpose of working on it. The inspectors had simply interviewed 

the chief electrician after Richard Lambert's death and had 

learned that the chief electrician had turned the power off and 

on after having received, by telephone, Lambert's instructions 

to do so. At no point in Order No. 631937 did the inspectors 

state that the imminent danger cited in their order was Badger's 

"practice" of having equipment reenergized by a person other 

than the one who deenergized it. The conditions and practices 

described in the order simply allege that Badger had violated 

sections 75.511 and 75.509. Those violations, by themselves, do 

not normally result in an imminent danger and the inspector who 

wrote the order agreed at the hearing that an imminent danger 

did not exist at the time they were examining the defective cir~ 

cuit breaker because the power was off. Nevertheless, at the 

time the order was written, the alleged practice of having 

equipment reenergized by a person other than the person who deenergized it did exist and continued to exist until September 24, 

1980, when all electricians had signed the statement saying that 

they would not test equipment with power on unless it was necessary to do so and would not ask someone else to reenergize 

equipment which they had personally deenergized. 

894 
In the Peabody case, supra, cited by the Secretary, in support of his arguments that Order No. 631937 was properly issued 

under section 107{a) of the Act, the imminent-danger order was 

issued 3 days after a fire had occurred, but instrument tests 

were being made at the time the order was issued and those tests 

showed that carbon monoxide and inadequate oxygen continued to 

exist in the mine at the time the order was issued. The order 

was not terminated until such time as instrument readings showed 

that the levels of carbon monoxide and oxygen were within acceptable limits. 

In Old Ben Coal Corp. v. Interior Board of Mine Operations 

Appeals, 523 F.2d 25 {7th Cir. 1975), the court stated that an 

inspector has a difficult job because he has to be concerned about safety while coal companies are concerned about production 

and profit. Therefore, the court stated that an inspector's 

imminent-danger order should be sustained unless the evidence 

shows that he has clearly abused his discretion. I agree with 

the court's statement and I have never held that an imminentdanger order was invalid unless I believed that the inspector 

had clearly abused his discretion in issuing it. The evidence 

in this proceeding shows that the inspectors clearly abused 

their discretion by stretching the concept of an imminent danger 

beyond its reasonable limits. 

The inspectors clearly abused their discretion in this case 

(1) by failing to describe circumstances which~actually created 

an imminent danger, (2) by failing to advise Badger that the "l 

Left vacuum circuit breaker serial No. 4986" was not the equipment which had to be withdrawn and was not the area-from which 

miners had to be withdrawn, (3) by failing to advise Badger that 

they were withdrawing a "practice" of having another person reenergize equipment who had not deenergized it in the first instance, and (4) by failing to withdraw any miners from the mine 

while the alleged imminent danger was being eliminated by having 

the electricians, over a 2-day period, sign a statement that 

they would not trouble shoot or test equipment with the power 

on unless absolutely necessary, and would not have another person reenergize equipment which they had deenergized {Exh. 6). 

For the foregoing reasons, I find that Order No. 631937 was 

improperly issued and should be vacated as hereinafter ordered. 

The Question of Whether Section 75.509 was Violated 

Badger's Arguments 

Although I have found above that Order No. 631937 should 

be vacated, the Commission has held that violations cited in 

withdrawal orders survive vacation of the orders {Island Creek 

Coal Co., 2 FMSHRC 279 (1980), and Van Mulvehill Coal Co., 2 

895 
FMSHRC 283 (1980)). Therefore, it is necessary to determine 

whether Order No. 631937 validly cited a violation of section 

75.509 (Finding No. 12, supra}. 

Badger's brief (p. 7) emphasizes the word "work" in section 75.509 which provides that "[a]ll power circuits and electric equipment shall be deenergized before work is, done on such 

circuits and equipment, except when necessary for trouble shooting or testing." Badger states that the language of section 

75.509 is quite clear and easily interpreted because it obviously prohibits the performance of work on energized equipment 

and allows trouble shooting or testrng-of energized equipment 

when necessary. Badger avers that the Secretary has made the 

decision that doing work on energized equipment is so hazardous 

that it should be absolutely prohibited, but the Secretary has 

also recognized that an electrician may use his discretion to 

trouble shoot or test energized equipment when he deems it 

necessary to do so. 

Badger claims that the foregoing interpretation is reasonable because the Secretary has other regulations which restrict 

the performance of work on electrical equipment by anyone other 

than a properly qualified and properly trained electrician. 

Badger correctly notes that a qualified electrician will try to 

determine what is wrong with electrical equipment while the 

equipment is deenergized, if possible, just as Lambert attempted 

to do so in this proceeding (Finding Nos. 2, 3, and 4, supra). 

Badger's brief (p. 9) stresses the fact that each qualified 

electrician is allowed, under the provisions of section 75.509, 

to use his own discretion in determining when it is necessary to 

trouble shoot or test electrical circuits with the power on. 

Badger recognizes that MSHA's Underground Manual does not have 

the force of regulations (King Knob Coal Co., Inc., 3 FMSHRC 

1417 (1981)), but notes that the policy for application of section 75.509, as stated in the manual, is as follows (Exhibit P): 

Section 75.509 applies when electrical work 

is to be performed on a machine or a machine trailing cable. * * * 

"Trouble shooting or testing" for the purpose 

of Section 75.509 would include the work of locating 

a problem in the electric circuits of an energized 

machine, but would never include the actual repair 

of such circuits with the machine energized. 

MSHA's Electrical Manual makes similar policy statements about 

the application of section 75.509 and states that examples of 

trouble shooting or testing which may be performed with equipment energized includes "[v]oltage and current testing" (Exhibit 8, page 48). 

896 
Badger's brief (p. 10} argues that Lanlbert, the electrician who is charged with having violated section 75.509, was 

doing precisely the kind of trouble shooting or testing which 

MSHA's manuals define as permissible activities under section 

75.509. Badger's brief (p. 11} concludes, therefore, that Lambert did not violate section 75.509 and that the citation should 

be vacated. 

The Secretary's Arguments 

The Secretary's brief (p. 10} contends that Lambert, as a 

trained and certified electrician, should have been able to determine the cause of the circuit breaker's malfunction without having the circuit breaker energized. As proof that it was not 

necessary to have the circuit breaker energized to determine the 

cause of the malfunction, the Secretary notes that the investigating team of seven persons was able to determine the cause of 

the malfunction with the power off by using an ohmmeter. The 

Secretary concedes that it took the team 3-1/2 hours to find the 

malfunction, but argues that time is not a factor to be considered where safety is involved. 

The Secretary cites Judge Kennedy's decision in Consolidation 

Coal Co., 2 FMSHRC 866 (1980}, and argues that Judge Kennedy's 

holding in that case to the effect that a restricted application 

of section 75.509 "* * * is contrary to the exception which permits troubleshooting with the power on where the evidence shows, 

as it does here, that without the power on the trouble found was 

not reasonably susceptible of correction" (2 FMSHRC at 867). 

The Secretary supports his argument by stating that section 75.509 

"* * * prohibits trouble shooting with the power on only where it 

can be shown that the trouble encountered is reasonably susceptible of repair without power on" (Secretary's brief, p. 11}. The 

Secretary says that the foregoing assertion was proven to be correct in this proceeding because (Br., p. 11}: 

* * * The testimony offered on behalf of MSHA at 

trial establishes the fact that the problem was 

reasonably susceptible of being located and repaired 

without power. Thus, the more limit~d meaning of 

the regulation--trouble shooting without power on--

rather than the exception, was applicable in this 

case. 

The Secretary also notes that Lambert was not wearing any 

type of protective clothing and that if he had worn protective 

clothing, the accident might not have resulted in his death. 

897 
The Preponderance of the Evidence Does Not Support a Finding of 

a Violation of Section 75.509 

MSHA did not challenge at the hearing the fact established 

by Badger to the effect that Lambert was a well-qualified electrician who had had nearly 11 years of experience as an underground electrician and who had been a shift maintenance foreman 

for 3 years and 9 months (Finding No. 2, supra). He had discovered the malfunction in the circuit breaker on Friday and had 

advised the chief electrician of that fact. Lambert also volunteered to come in on the following Saturday for the purpose of 

repairing the malfunction. He cut off all power to the circuit 

breaker and locked the gate which had to be opened before anyone 

could reenergize the circuit breaker (Finding Nos. 2 and 3, 

supra). After examining the circuit breaker with the power off, 

he found a loose· connection on the shunt trip coil and believed 

that was the cause of the malfunction. At that time, he had the 

chief electrician, Guy Steerman, to reenergize the circuit 

breaker so that he could trouble shoot or test the performance 

of the coil. Lambert's testing failed to show that the malfunction had anything to do with the loose wire which he had previously discovered (Finding No. 4, supra). 

Lambert's checking of the circuit breaker was interrupted 

by his attendance of a foremen's meeting on the surface of the 

mine. After the meeting, Lambert discussed the malfunction of 

the circuit breaker with the chief electrician and another 

management employee. During the discussion, Lambert was asked 

to check two terminals in the low-voltage portion of the circuit 

breaker with a voltmeter (Finding Nos. 5 and 6, supra). 

Lambert returned underground and examined the circuit 

breaker for an additional period without having the equipment 

energized. Lambert then removed the cover from the circuit 

breaker to facilitate his examination of the low-voltage terminal board, but, in doing so, he also removed the insulated 

protective shield over the high-voltage portion of the circuit 

breaker (Finding No. 24, supra; Exhs. H and 10). Lainbert then 

had Steerman reenergize the circuit breaker so that he could 

check the low-voltage terminal board. Steerman did not know, 

when he reenergized the circuit breaker, that Lambert had removed the protective shield over the high voltage portion of 

the circuit breaker (Finding No. 24, supra). 

The preponderance of the evidence, therefore, shows that a 

well trained and qualified electrician had tried to determine 

the cause of the malfunction after considerable examination of 

the deenergized circuit breaker. He had then discussed the 

problem with his supervisor, the chief electrician, and with 

another supervisory employee who had requested that the lowvol tage terminal board be checked (Finding No. 25, supra). 

898 
Lambert's having the circuit breaker reenergized was done only 

after he had exhausted his ability to locate the malfunction 

without energizing the equipment to test some components suspected of being defective. In such circumstances, the evidence 

shows that Lambert was following the provisions of section 

75.509. 

The Secretary's argument to the effect that the investigating team found the cause of the malfunction by trouble shooting 

and testing with the power off is not supported by the preponderance of the evidence. It is true that an investigating team 

composed of an electrical engineer and six other persons having 

a great deal of electrical training and experience examined the 

circuit breaker for 3-1/2 hours with the power off and thought 

that they had traced the malfunction to excessive wear in the 

auxiliary switch. They formed that erroneous conclusion despite 

the fact that the trip counter on the circuit breaker showed 

only 230 operations when, in fact, the switch should have worked 

for thousands of times before wearing sufficiently to malfunction because of excessive wear (Finding No. 21, supra). 

The Secretary's claim that the investigating team had discovered the cause of the malfunction by deenergized trouble 

shooting is refuted by the fact that when the malfunctioning 

circuit breaker was removed from the mine so that a new auxiliary 

switch could be installed, the circuit breaker continued to malfunction. Thereafter, Badger's personnel replaced a vacuum 

bottle and other parts but the circuit breaker continued to malfunction. After 3 days of testing with the power on and off, 

it was finaLly determined that there was a design flaw in the 

operating handle on the circuit breaker. It was necessary for 

the manufacturer of the circuit breaker to redesign and reconstruct the parts in the operating handle before the circuit 

breaker ever performed properly (Finding No. 27, supra; Exhs. J 

and N). 

The preponderance of the evidence shows that the investigating team of seven electricians could not and did not find 

the cause of the malfunction with the power off the circuit 

breaker. Moreover, modified Order No. 634063, which was issued 

on September 20, 1980, under section 103(k) of the Act, withdrew miners from the area of the defective circuit breaker until the malfunction was corrected, but that order was terminated 

5 days before the circuit breaker was actually repaired with the 

statement that "[t]he auxiliary switch for the breaker control 

circuit of the Line Power 12,470 vacuum circuit breaker S.N. 

4986 has been repaired by a factory service representative'' 

{Exh. A, p. 4). The termination of Order No. 634063 was written 

by the same inspector who wrote the order citing Badger for a 

violation of section 75.509. The inspector's entry on the term~ 

ination sheet shows that he did not actually know what was wrong 

with the circuit breaker having Serial No. 4986. 

899 
In the circumstances discussed above, the Secretary is also 

incorrect in contending that the statement by Judge Kennedy in 

his Consolidation decision, supra, is inapplicable to the facts 

in this proceeding. The circuit breaker which malfunctioned in 

this instance was a very complex piece of equipment which had 

been designed by Badger's chief electrical engineer and constructed by Line Power Manufacturing Company in accordance with 

his specifications. Consequently, the belief expressed by Judge 

Kennedy in the Consolidation case may appropriately be used in 

this proceeding, namely, that a restricted application of the 

provisions of section 75.509 is irreconciliable with the ex~eption in that section "* * * which permits troubleshooting with 

the power on where the evidence shows, as it does here, that 

without the power on the trouble found was not reasonably susceptible of correction" (2 FMSHRC at 867). 

Inasmuch as Badger's electrical maintenance foreman tried 

to determine the cause of the malfunction with the power off, 

and performed trouble shooting and testing with the power on, 

only after such testing with the power on became essential for 

locating the malfunction, I find that Badger did not violate 

section 75.509 as alleged in Order No. 631937. 

The Question of Whether Section 75.511 Was Violated 

Badger's Arguments 

Badger's brief (p. 11) begins its discussion of the alleged 

violation of section 75.511 by first quoting the pertinent portion of section 75.511 with emphasis on the word "persons", as 

used throughout the section, as follows: 

No electrical work shall be performed * * * 

except by a qualified person or by a person trained 

to perform electrical work * * *· Disconnecting 

devices shall be locked out and suitably tagged by 

the persons who perform such work * * * such devices 

shall be opened and suitably tagged by such persons. 

Locks or tags shall be removed only by the persons, 

or if such persons are unavailable, by persons 

authorized by the operator or his agent. [Emphasis 

supplied by Badger.] 

Badger argues that the Secretary's interpretation of section 75.511 is unreasonable because he argues that only the person who locks out power to equipment is permitted to remove the 

lock if that person· is anywhere at the mine site. Badger's 

brief contends that the use of the word "persons" in the plural 

shows that the Secretary understands that in many instances 

several persons will be performing electrical work or testing 

on equipment. In such circumstances, Badger's brief (p. 12) 

claims that when more than one person is working on the equipment, 

900 
the regulation clearly permits any of the persons who are working 

on the equipment to reenergize the equipment for testing because 

each of them would be a person who would be aware of the dangers 

involved and of the precautions to be taken. 

Badger further notes that the disconnecting device here involved was located 4,800 feet from the circuit breaker so that 

Lambert would have had to make a round trip of almost 2 miles 

just to cut the power on and off to the circuit breaker. Badger 

argues that the purpose of the regulation is to insure that reenergizing does not occur accidentally when individuals are performing electrical testing or work on machinery. 

Badger claims that if the Secretary intended that the person 

who deenergizes equipment must be the person who reenergizes that 

equipment, if that person is anywhere at the mine site, he should 

have written section 75.511 to so provide. Badger's brief (p. 13) 

contends that the Secretary did not so provide because he recognized that it is necessary in an industrial society for workers 

to rely upon each other in the performance of difficult and dangerous tasks--such as crane operators who move heavy loads while 

being directed by fellow workers. 

Finally, Badger argues that the last sentence of section 

75.511 should be interpreted to mean that the ·person who deenergized equipment is unavailable at the mine site for the purpose 

of reenergizing the equipment, if the person who originally deenergized the equipment is 1.8 miles, or a greater distance than 

that, from the place where the disconnects were opened and locked 

out. 

The Secretary's Arguments 

The Secretary's brief (p. 9) maintains that section 75.511 

should be interpreted exactly as written, that is, that the person who locks out or tags equipment is required to be the person 

who removes the lock and restores power to the equipment. The 

Secretary contends that no exception should be granted just because the disconnecting device is a considerable distance from 

the equipment being worked on because the safety considerations 

are more important than the factors of time or distance. 

The Preponderance of the Evidence Shows that a Violation of 

Section 75.511 Occurred 

I do not believe that Badger's argument to the effect that 

the use of the word "persons" in the plural in section 75.511 

means that if several persons are working on electrical equipment, any single person may be permitted to reenergize equipment 

regardless of whether he is the individual who deenergized the 

equipment in the first instance. The initial sentence in section 

75.511 provides that no "person" shall perform work on electrical 

901 
equipment unless he is qualified to do so or is directly supervised by a qualified person. The next two sentences of section 

75.511 switch to the use of the word "persons" in the plural, 

but the next two sentences also refer to "disconnecting devices" 

in the plural and to "locks" and "tags" in the plu~al. Therefore, I believe that the use of the word "persons" in the plural 

has no significance other than an intent by the Secretary to be 

all inclusive so that no one is likely to conclude that any particular type of disconnecting device or tag is exempt from the 

provision that the person who deenergizes is also required to be 

the person who reenergizes. 

The interpretation advocated by Badger would promote lack 

of safety because any one of "several" persons working on equipment could decide that it was time to test or trouble shoot with 

the power on and proceed to turn on the power before it was entirely clear to all persons that power was going to be restored. 

Badger's other argument, however, has considerable appeal, 

that is, that Lambert was still, in effect, in charge of turning 

the power on and off because Steerman was standing by the telephone for the sole purpose of receiving specific instructions 

from Lambert as to when Lambert wanted the circuit breaker energized and when he wanted it deenergized. Badger is correct in 

contending that the purpose of section 75.511 is to assure that 

reenergizing does not occur accidentally when individuals are 

performing electrical testing or work on equipment. Section 

75.511 is a statutory provision which appeared as part of section 305(f) of the Federal Coal Mine Health and Safety Act of 

1969. House Report No. 91-563, reprinted in the Legislative 

History of the Federal Coal Mine Health and Safety Act of 1969 

explained the intent of section 75.511 as follows (Leg. Hist., 

p. 1078 or Report, p. 48): 

* * * Switches must be locked in an open position 

where the power is disconnected to prevent accidental 

reclosing. The persons performing the work must retain possession to the key to guard against such 

reclosing. 

Although the legislative history supports Badger's claim 

that the purpose of section 75.511 is to assure that equipment 

on which a person is working will not be accidentally reenergized, the remaining portion of Badger's argument fails to provide that assurance. When all of the facts are considered, it 

is clear that Lambert and Steerman violated both the spirit and 

the letter of section 75.511. 

The first point which is important is that when Lambert 

deenergized the circuit breaker on the morning of September 20, 

1980, he opened the switch on the su~face to stop power from 

902 
flowing to the underground circuit breaker which was located 

4,800 feet from the disconnecting switch. Lambert then locked 

the gate through which a person had to pass to close the disconnecting switch, but Lambert violated the letter and spirit of 

section 75.511 by placing the key to the lock behind a highvoltage sign instead of retaining possession of the ~ey to assure 

that someone else did not know the hiding place of the key so as 

to remove it from behind the high voltage sign for the purpose of 

entering the area where the disconnecting switch was located. 

If Lambert had kept the key in his possession, as was intended by Congress when it drafted section 75.511, Lambert would 

have been unable to call Steerman later in the morning for the 

purpose of asking Steerman to reenergize the circuit breaker. 

Since Steerman did not participate in the locking out of power 

to the circuit breaker, Badger's argument is flawed in contending 

that Lambert and Steerman complied with the spirit, if not the 

letter, of section 75.511, because both of them were among the 

"persons" who locked out the power for the purpose of working on 

the circuit breaker. 

The second point which is important is that, after lunch, 

when Lambert returned underground to work on the circuit breaker, 

he asked Steerman to stay near the telephone which was close to 

the disconnecting switch in the substation so that Lambert could 

give Steerman instructions as to when Lambert wanted the circuit 

breaker energized and when he wanted it deenergized. At that 

point in Lambert's work on the circuit breaker, no person (in 

the singular or plural) actually locked out the power because 

Steerman did not consider it necessary to lock out the power 

since he was within sight of the substation at all times (Finding Nos. 5 and 6, supra). The only exception in section 75.511 

to the requirement that the power be "locked out" is "* * * 

where locking out is not possible". Since Lambert had locked 

out the power in the first instance before going underground on 

the mqrning of September 20, there is no doubt but that the disconnecting switch was capable of being locked out. Therefore, 

Lambert and Steerman clearly violated section 75.511 when 

neither one of them locked out the power in the afternoon when 

Lambert returned underground to work on the circuit breaker. 

As a matter of fact, section 75.511 does not specifically refer 

to the reclosing of the switch or the reenergizing of equipment. 

The last sentence of section 75.511 refers only to the fact that 

the persons who install the locks or tags shall be the persons 

who remove the locks or tags. 

For the reasons given above, I find that the preponderance 

of the evidence supports a finding that Badger violated section 

75.511. Since I have found that Badger violated section 75.511 

by failing to lock out the power to the circuit breaker, it is 

actually unnecessary for me to decide the arguments about 

903 
Lambert's unavailability and whether a person other than the one 

who deenergizes may reenergize if the disconnecting switch is 

4,800 feet from the equipment being tested, but I shall give my 

views on those points so that Badger may argue them before the 

Commission if a petition for discretionary review should be 

granted by the Commission. 

I agree with the Secretary that the matter of reenergizing 

high-voltage equipment which is being worked on or tested is a 

matter of vital importance to the safety of the miners. The 

question of the distance between the equipment and the disconnecting switch should not be allowed to take precedence over the 

importance of assuring that equipment does not accidentally become reenergized while it is being worked on or tested. I also 

agree with the Secretary that so long as the person who locks 

out equipment is available at the mine, he is available for the 

purpose of removing the locks and reenergizing the equipment. 

As indicated above, Congress intended that the person who locks 

out the equipment be the person who is going to perform the work 

and Congress also intended that the person who locks out the 

equipment be the person who retains possession of the key. The 

aforesaid considerations assure that the person who has the key 

will also be the person who removes the lock. If Lambert had 

retained possession of the key, as intended by Congress, it 

could hardly have been argued that he was "unavailable" for the 

purpose of removing the lock. 

DOCKET NO. WEVA 81-37-R 

The Question of Whether Section 75.803 Was Violated 

Badger's Arguments 

The violation of section 75.803 was alleged in Citation No. 

631938 issued September 22, 1980, pursuant to section 104(a) of 

the Act. The condition or practice described· in the citation 

is given in full in Finding No. 19, supra. Briefly, the violation cited was the failure of Badger to have an operative failsafe ground check system which would remove power from the'mine 

in case a grounding circuit was broken. Section 75.803 provides 

as follows: 

On and after September 30, 1970, high-voltage, 

resistance grounded systems shall include a fail 

safe ground check circuit to monitor continuously 

the grounding circuit to assure continuity and the 

fail safe ground check circuit shall cause the circuit breaker to open when either the ground or pilot 

check wire is broken, or other no less effective 

device approved by the Secretary or his authorized 

representative to assure such continuity, except 

that an extension of time, not in excess of 12 

months, may be permitted by the Secretary on a mineby-mine basis if he determines that such equipment 

is not available. 

904 
Badger's brief (p. 15) states that MSHA cited it for a 

violation of section 75.803 because Badger continued to mine 

coal after it was determined that the circuit breaker had malfunctioned. Badger claims that it learned of the problem during 

the 4 p.m. to midnight shift on Friday, September 19, 1980, and 

that the next shift was a maintenance shift which began at 8 a.m. 

and ended at 4 p.m. on Saturday, September 20, 1980. Badger 

states that the only persons in the mine on Saturday were two 

men who were working on a continuous-mining machine and some 

other men who were doing track work (Finding nos. 4 and 6, supra}. 

Badger's brief (p. 15) concedes "* * *that the vacuum circuit 

breaker was not doing what it should have been capable of doing, 

but this was due to a design defect and not a failure on the part 

of Badger, or a failure to continuously monitor the grounding 

circuit." Badger also notes that the miners who were working in 

the mine on Saturday were aware of the fact that Lambert was working on the circuit breaker during their shift. 

Badger also contends that any finding of a violation of ·section 75.803 must rest on the basis that the circuit breaker was 

being tested in the mine as opposed to removing it to the surface 

for testing. Badger asserts that finding a violation on the 

failure to remove the circuit breaker to the surface would be a 

strained construction of the section and would be unwarranted in 

the circumstances which existed in this instance. 

The Secretary's Arguments 

The Secretary's brief (pp. 13-14) argues that Citation No. 

631938 correctly alleges a violation of section 75.803. The 

Secretary claims that the fail-safe ground check circuit would 

not cause the circuit breaker to open or shut off power because 

the auxiliary switch was inoperative. It is further asserted 

that if the auxiliary switch does not work, then the ground monitor system cannot cause the circuit breaker to trip when either 

the ground check wire or ground wire is broken. The Secretary 

maintains that since the fail-safe ground check system could not 

do the job it was intended to do, there was a violation of section 75.803. 

The Preponderance of the Evidence Supports a Finding of a 

Violation of Section 75.803 

There is some confusion by the parties as to what is being 

charged by the Secretary with respect to the violation of section 

75.803. As I have hereinbefore explained in the portion of this 

decision devoted to the discussion of the imminent-danger issues, 

the MSHA employees who participated in citing Badger for a violation of section 75.803 did not actually know at the time they 

cited Badger for a violation of section 75.803 what was causing 

the circuit breaker to malfunction. The Secretary's brief (pp. 

13-14) continues to allege that the circuit breaker did not work 

905 
because the auxiliary switch was defective. As explained in 

Finding Nos. 27 through 30, the actual cause of the circuit 

breaker's malfunction was a mechanical problem in the design of 

the ratchet lever constructed by Line Power Manufacturing Company. Therefore, Citation No. 931938 contains some factual 

statements which are not supported by the preponderance of the 

evidence. 

The fact remains, however, as conceded by Badger in its 

brief (p. 15), that the circuit breaker would not turn off the 

power as it was supposed to do. Badger's electrical engineer, 

who designed the circuit breaker, also conceded that the circuit 

breaker would not cut off the power, but he argued that Badger 

had not violated section 75.803 because the ground monitoring 

system was working in a technical fashion because it was monitoring the continuity of the grounding circuit.. Consequently, 

the difficulty with the parties' arguments is that neither one 

specifically addresses the defects in the other's .arguments. 

All that is required to violate section 75.803 is for the failsafe ground system not to "* * * cause the circuit breaker to 

open when either the ground or pilot check wire is broken." 

It is technically correct, as Badger claims, that the failure of the circuit breaker to cut off power was not specifically 

related to the ground or pilot check wire because the actual · 

trouble was confined to the design flaw in the ratchet lever as 

stated in Finding Nos. 27 through 30, supra. Nevertheless, it 

is also correct, as the Secretary argues, and as Badger concedes, 

that the circuit breaker was not doing what it was constructed 

to do. Section 75.803, like section 75.511, is a statutory 

provision which was a part of the 1969 Act, as indicated above. 

The legislative history or House Report No. 91-563 states with 

respect to section 75.803 or section 308(d} of the Act (History, 

p. 1081 or Report, p. 51) that "[s]ubsection (d) requires that 

fail-safe ground check system be installed with each underground 

high-voltage circuit to remove the power in case the grounding 

circuit is broken." 

It is obvious, therefore, that Congress intended for the 

fail-safe ground check system to cut off the power in case a 

grounding fault occurs. The use of the term "fail safe" is 

meaningless if it can be argued that the fail-safe ground check 

system was working and yet could not cut off the power because 

of a mechanical problem, instead of an electrical problem. 

Although MSHA failed to terminate Order No. 631937 for the 

right reason, it did terminate Citation No. 631938 for the correct reason, namely,· that the fail-safe ground check system was 

restored to proper operation by the removal of the defective 

circuit breaker from the mine and replacement by a circuit 

breaker which worked properly. In other words, regardless of 

906 
the technicality of what was actually inoperative about circuit 

breaker Serial No. 4986, it is a fact that the fail-safe ground 

check system was restored to an operative condition when the defective circuit breaker was removed from the mine and replaced 

with an operative circuit breaker. Therefore, I find that a 

violation of section 75.803 occurred as alleged and that Citation 

No. 631938 should be sustained because it is a fact that the circuit breaker was an integral part of the fail-safe ground check 

system in that i.t prevented the system from doing the job it was 

placed in the mine to do, namely, cut off power when an electrical fault occurred. 

Since Badger's notice of contest filed in Docket No. WEVA 

81-37-R was filed to challenge the question of whether a violation of section 75.803 had been properly alleged in Citation No. 

631938, Badger's notice of contest will hereinafter be denied 

and Citation No. 631938 will be affirmed as having properly alleged a violation of section 75.803. 

CIVIL PENALTY ISSUES 

DOCKET NO. WEVA 81-285 

The Secretary's petition for assessment of civil penalty 

filed in Docket No. WEVA 81-285 seeks assessment of civil penalties for the violations of sections 75.509 and 75.511 alleged in 

imminent-danger Order No. 631937 hereinbefore considered. I 

have previously found that no violation of section 75.509 occurred. Therefore, the Secretary's petition for assessment of 

civil penalty will hereinafter be dismissed to the extent that 

it seeks assessment of a penalty for the violation of section 

75.509. 

In assessing a penalty for the violation of section 75.511, 

which I have found·did occur, I shall use the six criteria 

listed in section llO(i) of the Act, rather than the penalty 

formula explained in 30 C.F.R. § 100.3 and used by the Secretary 

for the purpose of proposing civil penalties (Rushton Mining Co., 

1 FMSHRC 794 (1979); Shamrock Coal Co., 1 FMSHRC 799 (1979); 

Kaiser Steel Corp., 1 FMSHRC 984 (1979); U.S. Steel Corp., 1 

FMSHRC 1306 (1979); Pittsburgh Coal Co., 1 FMSHRC 1468 (1979); 

Peabody Coal Co., 1 FMSHRC 1494 (1979); Co-Op Mining Co., 2 

FMSHRC 784 (1980); and Sellersburg Stone Co., 5 FMSHRC 287 

(1983)). 

Assessment of a Penalty for the Violation of Section 75.511 

Size of Badger's Business 

The parties stipulated to the facts given in Finding No. 1, 

supra. The production tonnage and other facts given in Finding 

907 
No. 1 support a conclusion that Badger is a large operator and 

that any civil penalties assessed in this proceeding should be 

in an upper range of magnitude insofar as they are determined 

under the criterion of the size of Badger's business. 

The Question of Whether the Payment of Penalties Will Cause 

Badger To Discontinue in Business 

Badger did not present any evidence at the hearing pertaining to its financial condition and none of the stipulated findings of fact address the question of whether the payment of penal ties would cause Badger to discontinue in business. The 

Commission held in the Sellersburg case, supra, that a judge may 

conclude that payment of penalties would not cause a company to 

discontinue in business if it fails to present any evidence in 

support of that contention. Therefore, I find that any penalties 

which may be assessed in this proceeding need not be lowered 

under the criterion that Badger is in a difficult financial condition. 

History of Previous Violations 

It was stipulated in Finding No. 31, supra, that during the 

24 months preceding the occurrence of the violations alleged in 

this proceeding that Badger had paid penalties with respect to 

52 alleged violations. It has been my experience that the occurrence of 52 violations over a period of 2 years is not unusu'al 

for a large operator. Also it has always been my practice to 

consider the question of whether an operator has previously violated the same section of the regulations for which I am required 

to assess a civil penalty in a given case. Badger has not previously violated sections 75.511 or 75.803. If Badger had had no 

history of ·previous violations, I would have reduced any penalty 

otherwise assessable; if Badger had had a history or previously 

violating sections 75.511 or 75.803, I would have increased the 

penalty somewhat. Therefore, Badger's rather favorable history 

of previous violations justifies a finding that the penalties 

otherwise assessable be neither increased nor decreased under 

the criterion of history of previous violations. 

Good-Faith Effort To Achieve Rapid Compliance 

MSHA required Badger to obtain the signatures of all its 

electricians on a piece of paper to show that all of them would 

trouble shoot or test equipment with the power on only when absolutely necessary and would personally unlock and reenergize 

any equipment which they had deenergized in the first instance. 

That list contains 65 names or signatures and they were all obtained within a 2-day period (Exh. 6). Since the electricians 

worked on three different shifts, it appears that Badger obtained their signatures in an unusually short period of time, 

908 
especially when it is considered that Badger thought that abatement of the violation was based entirely upon its having promptly removed from the mine the defective circuit breaker which had 

originally been cited as the source of the imminent danger alleged in Order No. 631937 (Finding No. 26, supra). 

In the circumstances described above, I believe that any 

penalty hereinafter assessed for the violation of section 75.511 

should be reduced by $100 for Badger's outstanding effort to 

achieve rapid compliance. 

Negligence 

Badger's brief (p. 16) refers to some inspectors' statements 

evaluating gravity and negligence which were submitted as a part 

of Badger's brief. MSHA failed to introduce the inspectors' 

statements as a part of the record and they were not submitted 

as a part of the Secretary's petition for assessment of civil 

penalty in Docket No. WEVA 81-285. The inspectors testified at 

the hearing, however, that they believed the violation of section 

75.511 contributed to Lambert's electrocution (Finding No. 22, 

supra). Therefore, I do not believe that the inspectors' statements submitted as a part of Badger's brief make any allegations 

which were not made at the hearing. 

I have already held that the complexity of the circuit 

breaker and the unusual design flaw which caused the circuit 

breaker to malfunction justified Lambert's having performed 

trouble shooting with the power on. In trying to evaluate the 

question of Badger's negligence with respect to the violation of 

section 75.511 here under consideration, it is necessary to consider whether Lambert would have acted any differently from 

the way he did act if he had personally gone back to the surf ace 

substation for the purpose of removing the lock and reenergizing 

the circuit breaker. The evidence certainly shows that Lambert 

knew the power was on at the time he was trouble shooting and 

fell into the high-voltage portion of the circuit breaker (Finding Nos. 6 and 24, supra). 

It is undisputed that Lambert, upon his own initiative, removed the insulated protective board which covered the highvoltage portion of the circuit breaker. Lambert did not discuss 

with Steerman on the telephone that he had removed the insulated 

board and Steerman stated that he would have instructed him to 

replace the board before trouble shooting with the power on if 

he had known that Lambert had removed the board (Finding No. 24, 

supra). Exhibits E, H, and 10 in tbis proceeding show that the 

insulation board covered nearly all of the interior of the highvol tage portion of the circuit breaker and support to some extent Badger's claims that Lambert had sufficient room to trouble 

shoot on the low-voltage portion of the circuit breaker without 

coming into contact with the high-voltage components. 

909 
The facts in this proceeding are somewhat like those in 

Nacco Mining Co., 3 FMSHRC 848 (1981), in which the Commission 

held that the operator was not negligent when a foreman with 

proper training, who had previously shown good judgment in discharging his responsibilities, acted aberrently by exposing 

himself to unsupported roof, in a wholly unforeseeable manner, 

which resulted in his death. I do not believe, however, that 

the Commission's finding of no negligence in the Nacco case 

should be applied in this proceeding because, in this proceeding, 

other supervisors also contributed to Lambert's trouble shooting 

and testing with the power on by asking Lambert to check the lowvoltage terminal board. The other supervisors were fully aware 

of the proximity of the low-voltage terminal board to the highvoltage portion of the circuit breaker. Therefore, they should 

have made certain that Lambert did his own locking and unlocking 

of the disconnecting switch in the substation. Steerman's failure to lock out the switch while he was awaiting for instructions from Lambert on the telephone could have resulted in an 

inadvertent reenergizing of the circuit breaker at a time when 

Lambert was not prepared to trouble shoot with the power on. If 

Steerman had been distracted by some other event at the mine, 

there is a possibility that the disconnecting switch could have 

become thrown accidentally so as to catch Lambert with the power 

on in the circuit breaker at a time when he was not prepared to 

trouble shoot or test with the power on. 

Additionally, if Lambert had come to the surface to reenergize the circuit breaker because of Steerman's refusal to reenergize the circuit breaker for Lambert, Steerman's adherence 

to strict safety rules might well have caused Lambert to work 

around the circuit breaker with an increased amount of care 

which might have prevented his coming into contact with the 

high-voltage components which caused his death. It is also 

possible that if Lambert had come to the surf ace to reenergize 

the circuit breaker, he would have mentioned that he had remov~d the protective shield over the high-voltage components 

and that would have given Steerman the opportunity to learn of 

his lack of prudence so that he could have instructed Lambert 

to replace the protective shield before he did any trouble 

shooting or testing with the power on. 

It is true that the discussion above is based on speculation, rather than facts, but there have been many deaths by 

electrocution in coal mines and it is difficult to show that 

management was not in any way negligent in the way power was 

turned off and on to the circuit breaker while Lambert was 

trouble shooting and testing. Therefore, I find that the violation of section 75.511 was associated with ordinary negligence. 

The Secretary's brief (p. 15) argues that Badger was grossly negligent in allowing the violations of section 75.509 and 

910 
75.511 to occur. The Secretary's discussion of gross negligence 

includes an argument that Lambert had no reason to feel that he 

had to trouble shoot or test the circuit breaker with the power 

on. I have hereinbefore shown that the evidence fails to support 

that contention. 

I am agreeing with the Secretary's argument to the extent 

of finding that Badger showed ordinary negligence in connection 

with the violation of section 75.511, but I do not think that 

Steerman's participation in the turning of power on and off to 

the circuit breaker rises to the level of gross negligence because it is a fact that Steerman did remain by the telephone 

near the substation so as to be able to act immediately to any 

instructions which Lambert might give him. If Steerman had gone 

back to his office and waited for calls from Lambert or had been 

indifferent about the hazards associated with taking directions 

from Lambert as to the deenergization and reenergization of the 

circuit breaker, I would agree that the violation was associated 

with gross negligence. 

Based on the discussion of negligence above, I find that 

the portion of the penalty to be assessed for the violation of 

section 75.511 under the criterion of negligence should be $1,000. 

Gravity 

When it is considered that Lambert was working on a circuit 

breaker whose high-voltage components carried 12,470 volts and 

that the low-voltage portion of the circuit breaker was located 

about 12 inches from the insulated high-voltage components (Exhs. 

E and H), a finding must necessarily be made that it was very 

serious for Badger's management to fail in any way to follow explicitly all safety precautions associated with trouble shooting 

or testing such equipment. Badger's arguments to the effect 

that Lambert's death was not in any way caused by Badger's failure to follow the lock-out procedures required by section 75.511 

is based entirely on conjecture because there were no eye witnesses to Lambert's electrocution (Finding Nos. 7 and 8, supra). 

While it is true that my discussion above under the heading of 

"Negligence" was also based on speculation, Badger's claim that 

Lambert slipped and fell into the high-voltage components because 

of his carelessness in removing the insulated protective shield 

over the high-voltage components is also based on pure speculation. It is just as possible that Lambert was trying to test 

the low-voltage portion of the circuit breaker and accidentally 

touched a high-voltage component with the result that he was 

severely shocked and fell head first into the circuit breaker 

(Finding No. 7, supra). Inasmuch as the violation was one of 

extreme gravity, I believe that the portion of the penalty 

associated with gravity should be $2,000. 

911 
Summary 

I have hereinbefore found that Badger is a large operator, 

that payment of penalties will not cause it to discontinue in 

business, that it has ~ favorable history of previous violations, 

that it showed an outstanding effort to achieve rapid compliance 

requiring a reduction in the penalty otherwise assessable in the 

amount of $100, that the violation was associated with ordinary 

negligence warranting a penalty of $1,000, and that the violation 

was very serious so as to merit a penalty of $2,000. The penalties under negligence and gravity amount to $3,000 which should 

be reduced by $100 under rapid good-faith abatement to $2,900. 

The total penalty, of course, takes into consideration that·Badger is a large operator. 

DOCKET NO. WEVA 81-277 

The Secretary's petition for assessment of civil penalty 

filed in Docket No. WEVA 81-277 seeks assessment of a penalty 

for the violation of section 75.803 alleged in Citation No. 

631938 issued under section 104(a) on September 22, 1980. I 

have already found that a violation of section 75.803 occurred 

because the fail-safe grounding system could not deenergize power 

on September 19, 1980. 

The findings made above as to the criteria of the size of 

Badger's business, the fact that payment of penalties will not 

cause Badger to discontinue in business, and Badger's favorable 

history of previous violations are also applicable to a determination of the penalty for the violation of section 75.803. 

Good-Faith Effort To Achieve Rapid Compliance 

Citation No. 631938 was written at 5 p.m. on September 22, 

1980, and the citation gave Badger until the next day, September 23, 1980, as the time within which the violation should be 

abated. The inspector wrote a subsequent action sheet on September 23, 1980, terminating the citation on the ground that the 

defective circuit breaker had been removed from the mine and replaced with a circuit breaker which would allow the fail-safe 

grounding system to cut off power if a fault should occur. Inasmuch as Badger abated the violation within the time given by 

the inspector, I find that Badger demonstrated an average goodfaith effort to achieve rapid compliance and that the penalty 

to be assessed for the violation of section 75.803 should neither 

be increased nor decreased under the criterion of good-faith 

abatement. 

Negligence 

Badger's chief electrician had drawn up the specifications 

which were followed by Line Power Manufacturing Company in constructing the defective circuit breaker. The counter on the 

912 
circuit breaker showed that it had successfully worked 230 times 

so that Badger's management had no reason to believe that it had 

a defective design problem in the ratchet lever. Even after the 

circuit breaker malfunctioned, a team of seven electrical experts 

failed to find the actual cause of the malfunction after spending 

3-1/2 hours trying to do so with the power off (Finding No. 21, 

supra). After the circuit breaker was removed from the mine, the 

parts which the seven experts thought were defective were replaced, but the circuit breaker still continued to malfunction. 

Badger's chief electrician and the manufacturer's employees 

worked the remainder of the week of September 21, 1980, before 

finally discovering on Thursday, September 25, 1980, that the 

malfunction was caused by a design flaw in the ratchet in the 

operating handle. The ratchet was redesigned on Friday and Saturday and a new one, which worked successfully, was installed on 

Monday, September 29, 1980. The evidence shows, therefore, that 

Badger's management did not know and could not have foreseen 

that the circuit breaker would malfunction in the way that it 

did. 

The Secretary's brief (p. 16), however, argues that Badger 

was grossly negligent in allowing the power to remain on in the 

mine while miners worked for the remainder of the 4 p.m. to midnight production shift on Friday, September 19, 1980, which was 

the shift during which Lambert found that the circuit breaker 

would not cut off power when he tested it for that purpose (Finding No. 2, supra). Badger's brief (p. 15) is silent about the 

fact that miners were allowed to work for the remainder of the 

4-p.m.~to-midnight production shift after the defective circuit 

breaker was discovered, but argues that the only persons who 

worked in the mine while Lambert was trying to discover the defect in the circuit breaker on the 8 a.m.-to-4 p.m. maintenance 

shift on Saturday, September 20, 1980, were seven miners who 

worked on a continuous-mining machine and some other miners who 

worked on a haulage track. Badger's brief claims that the miners 

working on September 20, 1980, were aware that the circuit 

breaker was being worked on and that the power would be cut on 

and off during their shift. 

Badger's chief electrical engineer conceded that the circuit breaker would not cut off power as it was supposed to at 

the time Lambert discovered that the circuit breaker was malfunctioning (Finding Nos. 2 and 28, supra). Since Lambert had 

reported the malfunction to Badger's chief electrician, there 

is no way for Badger to deny that miners were allowed to work 

on the 4 p.m.-to-midnight production shift on Friday, September 20, 1980, without having proper protection from an electrical fault if one had occurred. It is also true that two mechanics were allowed to work on a continuous-mining machine on 

Saturday, September 20, 1980, at the time Lambert was trying to 

determine what was wrong with the circuit breaker. While power 

was off part of the time, it was also on part of the time. 

Therefore, any miners working on electrically powered equipment 

913 
were subjected to a possible injury if power had come on at a 

time when they were not expecting it. 

Therefore, the preponderance of the evidence supports the 

Secretary's argument that Badger's management knew the circuit 

breaker would not cut off power in case of an electrical fault 

and yet Badger allowed the miners to work on the 4 p.m.-tomidnight shift on Friday and allowed two mechanics to work on a 

continuous-mining machine on Saturday without having the protection to which they were entitled. In such circumstances, I find 

that there was a high degree of negligence associated with the 

violation of section 75.803 and that a penalty of $3,000 should 

be assessed for that violation under the criterion of negligence. 

Gravity 

While the miners working in the mine were undoubtedly exposed to a possible shock hazard because of the malfunctioning 

circuit breaker, no one other than Lambert was actually working 

close to a high-voltage circuit. Some electrical fault would 

have had to occur before any miner working on either the 4 p.m.-

to-midnight shift on Friday or the 8 a.m.-to-4 p.m. shift on 

Saturday could have been injured. Lambert was not working on 

the circuit breaker on Friday and his exposure to electrocution 

on Saturday was not increased by the fact that two mechanics were 

working on a continuous-mining machine. Therefore, the gravity 

of the violation of section 75.803 should be examined primarily 

from the standpoint of the miners who were working in the mine 

on the 4 p.m.-to-midnight shift on Friday. Some electrical fault 

would have had to occur before any of the miners working on Friday would have been exposed to a shock hazard. There is no evidence to show that such a fault occurred or that any other electrical equipment in the mine was defective. Therefore, the 

gravity of the violation of section 75.803, while serious, was 

not as extreme as Lambert's exposure was when he was trouble 

shooting in close proximity to 12,470 volts with the power on. 

For the foregoing reasons, a penalty of $750 will be assessed 

under the criterion of gravity for the violation of section 

75.803. 

Summary 

Bearing in mind that Badger is a large operator, that payment of penalties will not cause it to discontinue in business, 

that it has a favorable history of previous violations, that it 

demonstrated an average effort to achieve rapid compliance, that 

there was a very high degree of negligence associated with the 

violation warranting assessment of a penalty of $3,000, and that 

the violation was sufficiently serious to justify a penalty of 

$750, a total penalty of $3,750 will hereinafter be assessed for 

the violation of section 75.803. 

914 
The Request for Finding No. 34 

When the parties were suggesting changes in the proposed 

findings of fact which had been mailed to them, Badger's counsel 

requested in a draft filed on July 19, 1983, that I include as 

part of the stipulated findings one which he had suggested as 

No. 34 in the draft, that he had submitted for my consideration. 

The Secretary's counsel was opposed to inclusion of that proposed finding, and I was also of the opinion that it was more in 

the nature of a conclusion than a finding of fact. Badger agreed 

to my omitting it as one of the parties' stipulated findings, but 

requested in a letter filed on August 29, 1983, that I reconsider 

the proposed finding at the time I wrote my decision in this 

proceeding. 

I believe that my decision shows that it would be inconsistent with other portions of the decision for me to make Badger's proposed finding No. 34 a part of this decision. Therefore, the request that I make finding No. 34 a part of this 

decision will hereinafter be denied. · 

WHEREFORE, it is ordered: 

(A) Badger Coal Company's application filed in Docket No. 

WEVA 81-36-R for review of imminent-danger Order No. 631937 

issued September 22, 1980, is granted and Order No. 631937 is 

vacated to the extent that it alleged the existence of an imminent danger. 

(B) Badger Coal Company's notice of contest filed in Docket No. WEVA 81-37-R challenging the validity of Citation No. 

631938 issued September 22, 1980, is denied and Citation No. 

631938 is affirmed. 

(C) The Secretary's petition for assessment of civil penalty filed in Docket No. WEVA 81-285 is dismissed insofar as it 

seeks assessment of a penalty for the violation of section 

75.509 alleged in Order No. 631937 issued September 22, 1980, 

and granted to the extent that it seeks assessment of a civil 

penalty for the violation of section 75.511, and Badger Coal 

Company, within 30 days from the date of this decision, shall 

pay a civil penalty of $2,900.00 for the violation of section 

75.511 alleged in Order No. 631937 issued September 22, 1980. 

(D) The Secretary's petition for assessment of civil penalty filed in Docket No. WEVA 81-277 seeking assessment of a 

civil penalty for the violation of section 75.803 alleged in 

Citation No. 631938 issued September 22, 1980, is granted, and 

Badger Coal Company, within 30 days from the date of this decision, shall pay a civil penalty of $3,750.00 for the violation 

of section 75.803 alleged in Citation No. 631938. 

915 
(E) Badger Coal Company's request that a proposed finding 

No. 34 be made a part of this decision is denied. 

Distribution: 

~ C. o3.-fA/}. Richard c. Steffe~~ Administrative Law Judge 

David J. Romano, Esq., Young, Morgan, Cann & Romano, Suite One 

Schroath Building, Clarksburg, WV 26301 (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) 

916 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 12 1984 

DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

Docket No. CENT 81-13-D 

MILTON BAILEY, MSHA Case No. MADI CD 80-11 

Complainant 

v. Bradley-Stephen No. 1 Mine 

ARKANSAS-CARBONA COMPANY, 

and 

MICHAEL WALKER, 

Respondents 

DECISION 

Before: Judge Melick 

This proceeding is before me on remand from the Commission, 

5 FMSHRC at 2056, for a determination in accordance with that 

decision of the date on which Mr. Bailey informed the Secretary 

that he no longer sought reinstatement and of the back wages and 

interest to be awarded Mr. Bailey. 

While the Secretary notes that Mr. Bailey informed the 

Secretary's representative in April 1983, that he no longer 

sought reinstatement, Mr. Bailey claims back wages only until 

April 12, 1982, when the Respondents ceased business operations. 

The Complainant has therefore recomputed a claim, in accordance 

with the Commission's directive, for $21,399.96 in back wages and 

$5,091.93 in interest. The claim is not disputed by the 

Respondents and is therefore accepted as final. 

Wherefore, the Respondents, Arkansas-Carbona Company and 

Michael Walker are hereby ordered jo~ntly and severally to pay 

to Complainant upon receipt of this aecision, the total amount 

of $26,491.89. y\ ., /'; .!'', 

f I . ,~ \ \ j \ .I ; 

./~\-\._..~\\ l . . .\/ \.j I .~.--- ~- .. ~,;· .. Gary Mel-~ck <; ~ . ' 

Assistant Chief Admi°n.istrative Law Judge 

V

.' ··;~·.\ ·~~ 

917 
Distribution: 

Eloise v. Vellucci, Esq., Office of the Solicitor, U.S. 

Department of Labor, 555 Griffin Square Building, Suite 501, 

Griffin and Young Streets, Dallas, TX 75202 (Certified Mail) 

James R. Pate, Esq., Sanford, Pate & Marschewski, P.O. Box 1004, 

Russellville, AR 72801 (Certified Mail) 

Richard Smith, Esq., Pyramid Place, Little Rock AR 72201 

(Certified Mail) 

Mr. Michael Walker, Route 3, Box 147, Merrilton, AR 72110 

(Certified Mail) 

/fb 

918 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 12 1984 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

JAMES McNEIL TAYLOR, 

Complainant 

v. 

BUCK GARDEN COAL COMPANY, 

Respondent 

. . 

. . 

DECISION 

Before: Judge Kennedy 

Docket No. WEVA 83-241-D 

MSHA Case No. HOPE CD-83-25 

No. 4 Mine 

~he parties move for approval of the captioned wrongful 

discharge matter upon a showing that the matter has been 

compromised and settled to the satisfaction of the complainantminer. 

Based on the independent evaluation and de novo review 

of the circumstances, I find the settlement proposed is in 

the best interest of complainant and in accord with the 

purposes and policy of the Act. 

Accordingly, it is ORDERED that the motion to withdraw 

the complaint be, and hereby is GRANTED. It is FURTHER ORDERED 

that in accordance with the terms of the settlement the 

operator FORTHWITH pay the lump sum of $1,000 to complainant, 

James McNeil Taylor, and thereafter pay to complainant the 

sum of $250 on the first day of each succeeding month for a 

period of sixteen (16) months, until the total sum of $5,000 

has been paid to complainant. Finally, it is ORDERED that, 

subject to payment of the sums agreed upon, the captioned 

matter be DISMISSED with prejudic • 

Judge 

919 
Distribution: 

Catherine Oliver-Murphy, Esq., Office of the Solic~tor, 

U.S. Department of Labor, 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

Richard L. Dailey, Esq., Attorney for Buck Garden Coal 

Company, 608 Virginia Street, East, Charleston, WV 25301 

(Certified Mail) 

/ejp 

920 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 13 1984 

MONTEREY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

MONTEREY COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. LAKE 84-19-R 

Citation No. 2319275; 10/20/83 

Docket No. LAKE 84-20-R 

Order No. 2319279; 10/26/83 

Docket No. LAKE 84-42-R 

Order No. 2319279-03; 12/22/83 

No. 1 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 84-31 

A.C. No. 11-00726-03545 

Monterey No. 1 Mine 

DECISION 

Appearances: 

Before: 

Carla K. Ryhal, Esq., Houston, Texas, for 

Contestant/Respondent; 

Deborah A. Persico, Esq. and Robert A. Cohen, Esq., 

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

Arlington, Virginia, for Respondent/Petitioner. 

Judge Broderick 

STATEMENT OF THE CASE 

Contestant, Monterey Coal Company ("Monterey"), filed 

notices contesting Citation No. 2319275 issued October 20, 1983 

and Order No. 2319279 issued October 26, 1983. It also filed 

a motion to consolidate the cases and to expedite proceedings. 

The contested order was subsequently modified and Monterey 

contested the modification. The Secretary of Labor ("Secretary"} 

filed a civil penalty petition see~ing penalties for the violations alleged in the citation and order. 

921 
Pursuant to notice, the cases were heard in St. Louis, 

Missouri, on January 26 and 27, 1984. The cases were ordered 

consolidated for the purposes of hearing and decision. Paris o. 

Webb, Arthur Boeck, and Edward J. Lubrant testified on behalf 

of the Secretary. Jeffrey Thomas Padgett, Jack Lehmann, 

Lennis Isenberg, Richard Mottershaw, Ollie Cox and Charlie Pate 

testified on behalf of Monterey. Both parties have filed 

posthearing briefs. 

Based on the entire record and considering the contentions 

of the parties, I make the following decision. 

FINDINGS OF FACT 

1. Monterey was the operator of Mine No. 1, an underground 

coal mine in Macoupin County, Illinois. 

2. Monterey is a large operator. The subject mine employed 

approximately 650 miners. 

3. The subject mine had a prior history of 378 paid violations within the 24 months prior to the alleged violations contested herein. This history included 23 violations of 30 C.F.R. 

§ 75.200 and one violation of 30 C.F.R. § 75.516. No violations 

of 30 C.F.R. § 75.900-1 were shown on the history. I do not 

consider this history such that penalties otherwise appropriate 

should be increased because of it. 

4. The alleged violations were abated by Monterey promptly 

and in good faith. 

5. The assessment of civil penalties in this case will not 

affect Monterey's ability to continue in business. 

CITATION NO. 2319275 

6. On October 20, 1983, a Federal coal mine inspector 

issued a citation under section 104(d) (1) of the Act, charging 

that the main trolley wire was not supported on well installed 

insulators and was in contact with a metal overcast and two 

roofbolt plates. A violation of 30 C.F.R. § 75.516 was charged. 

7. On October 20, 1983, there were numerous missing and 

broken insulated hangers supposed to insulate and support the 

main trolley wire in the subject mine. The trolley wire sagged 

in some locations because of missing hangers. 

8. The trolley wire referred to above was in contact with 

a metal overcast at the No. 1 West entry of the Main North track. 

It was also in contact with roof bolt plates at about the 

109 crosscut. This caused arcing when the trolley pole passed 

these areas. 

922 
9. The hazard created by the conditions described in 

Findings No. 7 and 8 is that the arcing could cause a fire in 

contacting combustible materials or could cause an explosion 

in the presence of methane or float coal dust in suspension. 

10. There was no evidence of methane or float coal dust 

in the area cited at the time the citation was issued. 

11. The condition of the trolley wire described in Findings 

No. 7 and 8 had existed for some days. Monterey should have .been 

aware of it as a result of its preshift examinations and weekly 

hazard examinations. 

ORDER NO. 2319279 

12. On October 26, 1983, Inspector Webb issued a withdrawal 

order under section 104(d) (1) of the Act for an alleged violation 

of 30 C.F.R. § 75.900-1. The condition cited was a hazardous 

roof condition in the Number 66.crosscut off the 4 East track 

entry which contained the transformer-rectifier including a circuit breaker, making operation, inspection, examination and 

testing of this equipment unsafe. 

13. On December 22, 1983, the order referred to above was 

amended to show that it also charged a violation of 30 C.F.R. 

§ 75.200. 

14. On October 26, 1983, the roof in the Number 66 crosscut 

off the 4 East track entry appeared to be sagging. There were 

cracks in the roof and rashing on both ribs. One roof bolt was 

missing. 

15. The Number 66 crosscut contained the transformerrectifier equipment designed to convert alternating current into 

direct current. This equipment included circuit breakers. 

16. The roof in question coftsisted of limestone 7 to 8 feet 

thick. There were two slip fractures in the roof between the 

limestone roof and the shale. Geologic tests performed subsequent to the order showed no instability in the roof itself. 

17. To abate the order, rock was scaled from the roof and 

from the ribs. Sixteen posts and.six crossbars were installed 

to support the area. 

18. The condition described in Finding No. 14 posed the 

hazard of a roof or rib fall to any miner entering the crosscut. 

923 
19. The condition described in Finding No. 14 was obvious, 

had existed for some time and should have been known to Monterey. 

STATUTORY PROVISION 

Section 104(d) (1) of the Act provides: 

If, upon any inspection of a coal or other mine, 

an authoriz·ed representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds that, 

while the conditions created by such violation do not 

cause imminent danger, such violation if of such 

nature as could significantly and substantially 

contribute to the cause and effect of a coal or other 

mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or 

safety standards, he shall include such finding in any 

citation given to the operator under this Act. If, 

during the same inspection or any subsequent inspection of such mine within 90 days after the issuance 

of such citation, an authorized representative of the 

Secretary finds another violation of any mandatory 

health or safety standard and finds such violation be 

also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order 

requiring the operator to cause all persons in the 

area affected by such violation, except those persons 

referred to in subsection (c) to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary determines that :·such violation has been abated. 

REGULATORY PROVISIONS 

30 C.F.R. § 75.516 provides:• "All power wires (except 

trailing cables on mobile equipment, specially designed cables 

conducting high-voltage power to underground rectifying equipment or transformers, or bare or ins~lated ground and return 

wires) shall be supported on well-insulated insulators and 

shall not contact combustible material, roof, or ribs." 

30 C.F.R. § 75.900-1 provides: "Circuit breakers used to 

protect low-and medium-voltage circuits underground snall be 

located in areas which are accessible for inspection, examination, and testing, have safe roofs, and are clear of any moving 

equipment used in haulageways." 

924 
30 C.F .• R. § 75.200 provides in part: 

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof control 

system of each coal mine and the means and measures to 

accomplish such system. The roof and ribs of all 

active underground roadways, travelways, and working 

places shall be supported or otherwise controlled 

adequately to protect persons from falls of the roof 

or ribs • • • 

ISSUES 

1. Whether the violations charged in the citation and 

order occurred as alleged? 

2. If so, whether the violations were of a nature as 

could significantly and substantially contribute to the cause 

and effect of a mine safety or health hazard? 

3. If the violations occurred, whether they were caused 

by Monterey's unwarrantable failure to comply with the mandatory 

standards? 

4. If the violations occurred, what is the appropriate 

penalty for each of them? 

CONCLUSIONS OF LAW 

1. Monterey is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the 

No. 1 Mine, and I have jurisdiction over the parties and the 

subject matters of these proceedings. 

2. The conditions described in Findings of Fact No. 7 and 

8 constitute a violation of the mandatory safety standard in 

30 C.F.R. § 75.516. 

DISCUSSION 

There is no real dispute concerning the inspector's allegation that the trolley wire was not properly supported on 

well-insulated insulators. The management representative who 

accompanied the inspector admitted as much (Tr. 218-19). I 

also conclude that the fact that the trolley wire was in contact with a metal overcast and roof bolt plates constituted a 

violation of the standard, since these are part of the "roof." 

The fact that the overcast and roof bolt plates are not combustible does not establish that the standard was not violated. 

The term "combustible" in the standard does not modify "roof." 

925 
3. The conditions found in Findings No. 7 and 8 created 

the hazard described in Finding No. 9. The arcing could cause 

a mine fire or explosion. This hazard was reasonably likely 

to result in an injury of a reasonably serious nature. Therefore, it was of such nature as could significantly and substantially contribute to the cause and effect of a mine safety 

hazard. 

4. The violation referred to in Conclusion No. 2 resulted 

from the unwarrantable failure of Monterey to comply with the 

safety standard in question. 

DISCUSSION 

The conditions cited were obvious to observation and had 

clearly existed for a long period of time. Monterey knew or 

should have known that the conditions existed and failed to 

abate them because of lack of reasonable care. See Zeigler 

Coal Company, 7 IBMA 280 (1977). 

5. The violation was serious and resulted from Monterey's 

negligence. Based on the criteria in section llO(i) of the 

Act, I conclude that an appropriate penalty for the violation 

is $900. 

6. The condition found in Findings No. 14, 15 and 16 

constituted violations of 30 C.F.R. § 75.900-1 and of 30 C.F.R. 

§ 75.200. 

DISCUSSION 

There is little doubt but that the roof conditions in the 

crosscut No. 66, in which the transformer-rectifier equipment 

was present, were unsafe. The only genuine issue raised by 

Monterey was the seriousness of the hazard. There were cracks 

in the roof, and a large rock was scaled down in the abatement. 

The ribs were rashing and substantial amounts of material were 

taken from the ribs. 

7. The violations referred to above in Conclusion No. 6 

were serious. The hazard to which they contributed was 

reasonably likely to result in an injury of a reasonably serious 

nature. The fact that the roof was solid limestone, and was 

unlikely to massively fall does not establish that a fall of 

some size would not have occurred. The scaling down of rock 

from the roof and removing substantial material from the ribs 

in the abatement process is strong evidence that a fall resulting in injury was likely. The violation was of such nature as 

could significantly and substantially contribute to the cause 

and effect of a mine safety hazard. 

926 
8. The violations referred to in Conclusion No. 6 above 

resulted from the unwarrantable failure of Monterey to comply 

with the safety standards in question. 

DISCUSSION 

Monterey argues that the failure of mine examiners to 

record the conditions demonstrates that Monterey had no reason 

to know of them. Since the conditions were obvious and longstanding, the failure only demonstrates that Monterey's examination program was seriously deficient. 

9. Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for these two violations 

is $2,000, or $1,000 for each violation. 

ORDER 

Based upon the above Findings of Fact and Conclusions of 

Law, IT IS ORDERED 

1. Citation No. 2319275 issued on October 20, 1983, is 

AFFIRMED and the Notice of Contest is DENIED. 

2. Order No. 2319279 issued October 26, 1~83, is APFIRMED 

and the Notice of Contest is DENIED. 

3. Order No. 2319279-03 issued December 22, 1983, modifying 

Order No. 2319279, is AFFIRMED and the Notice of Contest is 

DENIED. 

4. Monterey shall within 30 days of the date of this 

decision pay the following civil penalties for the violations 

of mandatory standards found herein to have occurred. 

CITATION/ORDER 

2319275 

2319279 

2319279-3 

30 C.F.R,. STANDARD 

75.516 

75.900-1 

75.200 

Total 

PENALTY 

$ 900 

1,000 

1,000 

$2,900 

c~ Af3 ~,cfe/Vte/{__ James A. Broderick 

Administrative Law Judge 

927 
Distribution: 

Carla K. Ryhal, Esq., Monterey Coal Company, P.O. Box 2180, 

Houston, TX 77001 (Certified Mail) 

Deborah A. Persico, Esq., and Robert A. Cohen, Esq., Office of 

the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

/fb 

928 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 APR 17 1984 

DENVER, COLORADO 80204 

TODILTO EXPLORATION AND 

DEVELOPMENT CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION ( MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION ( MSHA), 

Petitioner 

v. 

TODILTO EXPLORATION AND 

DEVELOPMENT CORPORATION, 

Respondent 

. . 

: 

. . 

. . 

. . 

. . 

. . 

. 

. 

. . 

. . 

: 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. CENT 79-91-RM 

Citation/Order No. 151433; 

1/31/79 

Haystack Underground 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 79-310-M 

A.C. No. 29-01650-05003 

Haystack Underground 

DECISION 

Appearances: U. Sidney Cornelius, Esq., Office of the Solicitor, 

U. S. Department of Labor, Dallas, Texas, 

Before: 

for Petitioner; 

Mr. G. Warnock, President, Todilto Exploration & 

Development Corporation, Albuquerque, New Mexico, 

Pro Se. 

Judge Vail 

STATEMENT OF THE CASE 

This is a consolidated civil penalty and contest of citation 

proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et seg. (1976 & Supp. V 1981). The case 

was originally heard by Judge Jon D. Boltz on May 21, 1981. On 

July 21, 1981, Judge Boltz issued a decision in which he found 

that the respondent had not violated 30 C.F.R. § 57.5-50, the 

noise standard applicable to metal-nonmetallic underground 

mines. ~/ The issue decided was whether, in order to be 

l/ The judge's decision is reported at 3 FMSHRC 1824 (1981). 

929 
"feasible" within the meaning of § 57.5-50(b) cited in Citation 

No. 151433, an engineering control must reduce a miner's exposure 

to the permissible levels set forth in subsection (a) of the 

standard. The Judge answered this question in the affirmative. 

The Secretary filed a petition with the Commission seeking 

discretionary review of the Judge's decision. The Secretary's 

petition was granted on August 28, 1981. 

The Commission issued its decision on November 9, 1983, 

wherein they disagreed with Judge Boltz's findings on 

"feasibility" and held that an engineering control may be 

"feasible" even though it fails to reduce a miner's exposure to 

noise to the permissible levels set out in the standard. 2/ 

This decision was consistent with a prior Commission decision in 

Callanan Industries, Inc., 5 FMSHRC 1900 (York 79-99-M, November 

9, 1983). In the Todilto decision, the Commission determined 

that a question remained as to whether the Secretary had proven a 

violation of the standard for failure to implement a feasible 

engineering control consistent with their findings in Callanan 

Industries, Inc., supra. The case was remanded to me on November 

16, 1983, to allow the parties an opportunity to present. 

additional evidence and submit further arguments in light of the 

considerations set forth by the Commission in Callanan. 

On December 1, 1983, I advised the parties that I intended 

to set this matter for a rehearing on January 20, 1984, in 

Albuquerque, New Mexico. Respondent replied by letter received 

on December 12, 1983, stating that they had no additional 

evidence to.offer in this case. The Secretary subsequently 

indicated that he also had no new evidence to offer and was 

willing to submit the matter for decision based on the existing 

record. Both parties waived further briefing of the issues. · This was subsequently confirmed in a stipulation received on 

February 10, 1984. Based on the entire record and considering 

the contentions of the parties, I make the following decision. 

FINDINGS OF FACT 

1. On January 31, 1979, Donald L. Harlen, an authorized 

representative of Mine Safety and Health Administration CMSHA), 

conducted an inspection of the Haysack Underground Uranium Mine 

operated by the respondent. 

11 The Commission decision is reported at 5 FMSHRC 1894 (1983). 

930 
2. Inspector Harlen, using a dosimeter~ conducted a noise 

survey on a jackleg percussion rock bolt drill being operated in 

the 440 South drift of respondent's mine. 

3. As a result of a full shift noise sample, it was 

determined that the drill operator was exposed to an average of 

114 dBA which was determined to be 2634 percent in excess of that 

permitted by standard§ 57.5-50(b). 

4. The inspector also measured instantaneous exposures as 

high as 118 dBA with a sound level meter. 

5. During the time period of this inspection and noise 

sample, the jackleg drill operator was wearing both ear plugs and 

foam muffs. The drill was not equipped with a muffler of any 

kind. 

6. As a result of the noise monitoring tests, the inspector 

issued Citation No. 151433 citing a violation of § 57.5-50(b) and 

alleging the drill operator was exposed to a noise level which 

was 2634 percent of the permissible limit for an eight hour 

period. 

7. Subsequently, MSHA terminated the citation after 

respondent installed a muffler on the jackleg drill. The cost of 

this type of muffler was $110.00. Sound level meter readings 

taken during operation of the.drill with the.muffler installed 

measured 110 and 113 dBA which still exceeded the permissible 

level under the standard. 

ISSUE 

The question before me is whether, the Secretary proved 

respondent violated § 57.5-SOCb> for failure to implement a 

"feasible" engineering control. 

REGULATORY PROVISIONS 

30 C.F.R. § 57.5-50 provides: 

(a) No employee shall be permitted an exposure to 

noise in excess of that specified in the table below. 

Noise level measurements shall be made using a sound 

level meter meeting specifications for type 2 meters 

contained in American National Standards Institute 

(ANSI) Standard Sl.4-1971, "General Purpose Sound Level 

Meters," approved April 27, 1971, which is hereby incorporated by reference and made a party hereof, or by 

931 
a dosimeter with similar accuracy. This publication 

may be obtained from the American National Standards 

Institute, Inc., 1430 Broadway, New York, New York 10018, 

or may be examined in any Metal and Nonmetallic Mine 

PERMISSIBLE NOISE EXPOSURE 

Duration per day, Sound level dBA, 

hours of exposure slow response 

8 -------------------------------- .90 

6 -------------------------------- 92 

4 -------------------------------- 95 

3 -------------------------------- 97 

2 -------------------------------- 100 

1 1/2 ---------------------------- 102 

1 -------------------------------- 105 

1/2 ------------------------------ 110 

1/4 or less ---------------------- 115 

No exposure shall exceed 115 dBA. Impact or impulsive noise 

shall not exceed 140 dB, peak sound pressure level. 

* * * * * Cb) When employees' exposure exceeds that listed in the above 

table, feasible administrative or engineering controls shall be 

utilizeQ. If such controls fail to reduce exposure to within 

permissible levels, personal protection equipment shall be 

provided and used to reduce sound levels to within the levels of 

the table. 

(Emphasis added.) 

DISCUSSION 

The Commission, in its decision in the Callanan, case, 

interpreted the term "feasible" as contained in§ 56.5-50(b). 3; 

They concluded that economic as well as technological factors·-

must be taken into account in determining whether a noise control 

is "feasible" under the standard. Also, they rejected the 

argument that a "cost-benefit analysis", as that term is commonly 

understood and used, is the appropriate analytical method for 

determining whether a noise control is required (5 FMSHRC 1901). 

Further, the Commission concluded that the determination of 

whether use of an engineering control to reduce a miner's 

3/ This standard is identical to the§ 57.5-50)b) being considered in this case as applied to metal-nonmetallic underground 

mines. 

932 
exposure to excessive noise is capable of being done, involves 

consideration of both technological and economic achievability. 

The three suggested components of a feasible engineering control 

to reduce noise levels are: Cl> That it result in a reduction of 

the noise level to which a miner is exposed, (2) That it is 

technologically achievable, and (3) That it be economically 

achievable. The Commission further held that the test of 

economic feasibility of the control is to be determined by 

consideration of whether the economic costs are wholly out of 

proportion to the expected benefits (3 FMSHRC 1907, 1908). 

In addition to the above, the Commission suggests the 

following in order for the Secretary to establish his case in a 

noise level case: 

Our next consideration is the appropriate burden 

of proof to be applied. We hold that in order 

to establish his case' the Secretary must provide: 

Cl> sufficient credible evidence of a miner's exposure to noise levels in excess of the limits specified 

in the standard; (2) sufficient credible evidence 

of a technologically achievable engineering control 

that could be applied to the noise source; (3) sufficient credible evidence of the reduction in the noise 

level that would be obtained through implementation of 

the engineering control; (4) sufficient credible evidence supporting a reasoned estimate of the expected 

economic costs of the implementation of the control; 

and (5) a reasoned demonstration that,' in view of the 

elements 1 and 4 above, the costs of the control are 

not wholly out of proportion to the expected benefits. 

After the Secretary has established each of the above 

elements, the operator in rebuttal may refute any of 

the components of the Secretary's case. The burden 

borne by the operator is one of production; the burden 

of proof remains on the Secretary. 

The facts in the present case are not in dispute. 

Respondent in its reply brief to petitioner's request for discretionary review states as follows: "With only minor variations, 

the Secretary's statement of the technical aspects of this case 

are correct." (Respondent's brief at 3). 

As to the first requirement necessary to be proven by the S~cretary, the record establishes that the operator of the 

jackleg drill was exposed to an excessive noise level amounting 

to a noise dose over an eight hour period which was 2634 percent 

in excess of that permitted by the standard. This was based upon 

an average of 114 decibels C"dBA"}(Tr. 16-18). This establishes 

without any question, an exposure in violation of that provided 

in the standard. 

933 
The next consideration is whether the Secretary presented 

credible evidence as to the availability of a technologically 

achievable engineering control capable of reducing the drill 

operator's exposure to excessive noise. Although Judge Boltz 

made no specific findings in this regard, the facts show that a 

muffler for the jackleg drill was available and in fact was 

installed in order to abate the citation. The evidence also 

shows that after installation of the muffler, the sound level 

meter showed noise exposure range between 110 and 113 dBA. This 

reading compared with the prior noise level readings of 114 dBA 

and higher reflect a reduction in the noise level even though not 

sufficient to bring the level to that required by the standard. 

This clearly shows that the muffler was a technologically achievable engineering control capable of reducing the drill 

operator's noise exposure. 

The third consideration is whether the muffler as a feasible 

engineering control is economically achievable. The muffler 

installed on the drill in this case is stated by the respondent 

to cost $110.00 which is certainly not an unreasonable cost. In 

light of the reduction in noise level from 114 dBA to 110 to 113 

dBA, I find that the cost at $110 is neither prohibitively 

expensive nor wholly out of proportion to the benefit achieved by 

its use. The reduction in noise level, even though not large, is 

significant over an extended period of time. Also, the standard 

distinctly states that when the employees exposure exceeds that 

listed in the table, "feasible administrative or engineering 

controls shall be utilized" (emphasis added). As I have found 

that the muffler meets the requirement of being both technologically achievable and not unreasonable in cost, it was feasible. 

The Commission stated in Callanan, supra, that economic 

feasibility of a control, such as the muffler in this case, is to 

be determined by consideration of whether the economic cost is 

wholly out of proportion to the expected benefit (5 FMSHRC 1909). 

I find, as stated above, that the cost in this instance of $110 

is reasonable for the benefits achieved. 

Therefore, based upon the credible evidence in this case, 

and the Commission's decision in Callanan, I find that the 

Secretary has proven the respondent violated mandatory standard 

§ 57.5-50(b) by failing to implement the feasible engineering 

control (muffler) which was available to it. The fact that the 

muffler did not reduce the noise level to that required by the 

standard is not a proper reason for an operator to avoid the 

control and go directly to personal protection equipment. The 

standard contemplates the use of such personal equipment only 

after all other "feasible" engineering controls are installed to 

achieve the best results possible. 

934 
PENALTY 

The evidence establishes that the respondent's history of 

prior violations is neither substantial oi significant and does 

not warrant either raising or reducing the penalty for the 

violation at issue here. The proposed penalty by the Secretary 

is appropriate for the size of the operator and would not affect 

its ability to continue in busines8. The operator was negligent 

in failing to install the available control Cin this case the 

muffler) to reduce the noise level of the operator of the jackleg 

drill. However, the gravity does not appear great, in that 

personal protection equipment was being utilized. The operator 

demonstrated good faith by achieving rapid compliance by 

installing a muffler on the drill. I find that the proposed 

penalty of $114 is appropriate in this case. 

ORDER 

Respondent is ORDERED to pay a civil penalty of $114 within 

40 days of the date of this decision. 

Distribution: 

--a·£f~ Vi~ E. Vail 

Administrative Law Judge 

U. Sidney Cornelius, Esq., Office of the Solicitor 

U.S. Department of Labor, 555 Griffin Square, Suite 501, Dallas, 

Texas 75202 (Certified Mail) 

Mr. G. Warnock, President, Todilto Exploration & Development 

Corpor~tion, 3810 Academy Parkway South N.E., Albuquerque 

New Mexico 87109 (Certified Mail) 

/blc 

935 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 191984· 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MONTEREY COAL COMPANY, 

Respondent 

: 

Docket No. LAKE 84-30 

A.C. No. 11-00726-03544 

No. 1 Mine 

SUMMARY DECISION 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, seeking a "single penalty" assessment 

of $20 for an alleged violation of mandatory safety standard 

30 CPR 75.1403-5(g), as cited in a section 104(a) citation, 

~o. 2201219, issued on November 3, 1983, by MSHA Inspector 

George J. Cerutti. 

Respondent filed a timely answer to the proposal denying 

that a violation occurred, and asserting that the cited 

standard does not apply to the facts presented ip this case. 

At the same time, the respondent filed a motion to consolidate 

this case with six previously consolidated cases involving 

these same parties. Those cases involved similar facts and 

identical issues as those presented in the instant case. 

Petitioner did not object to the motion to consolidate. 

However, since the hearings in the prior cases had been 

concluded, and the decisions were about to be issued, this 

case was not included among those disposed of by my previous 

decisions. 

In view of the foregoing, I conclude that this case 

should be disposed of by the application of the Commission's 

summary decision rule 64, 29 CFR 2700.64. 

936 
Discussion 

Citation No. 2201219, describes the following "condition 

or practice": 

A clear travelway at least 24 inches wide wasn't 

provided along the Main North Belt Conveyor on 

the east side. Rock and coal was present at the 

following locations 112 to 108 crosscuts, 106 to 

103, 101 and 102; 99 to 94, 86 to 85, 82 to 81, 

75 to 72, 69 to 59, 57 to 51, 44 to 39, 36 to 28, 

24 to 25, 15 to 12. 

A notice to provide a safeguard was issued 9-4-75. 

1 WHW. 

On February 23, 1984, I issued decisions in Monterey 

Coal Company v. MSHA and MSHA v. Monterey Coal Company, 

Dockets LAKE 83-68-R, etc:-;-Tn which I vacated several citations 

under the same factual circumstances which are presented in 

the instant case. In my prior decisions, I co~cluded that the 

statutory and regulatory intent of section 30 CFR 75.1403-5(g), 

is to address hazardous conditions connected with belt conveyors 

which transport men and materials other than coal, and that any 

logical interpretation of this section necessarily excludes 

coal as a "material" within the scope of the cited regulatory 

criteria (decision, pg. 35). 

I take note of the fact that MSHA has not sought. review 

of my decisions pursuant to Commission Rule 29 CFR 2700.70. 

My decisions became final 30 days after their issuance on 

February 23, 1984, and since they were not appealed, they are 

final and controlling in the instant case. 

Conclusion 

The facts and issues in this case are identical to those 

presented in my previous dispositive decisions. I incorprate 

by reference my previous findings and conclusions concerning 

the interpretation and application of mandatory standard 

section 75.1403-5(g), including my reasons for vacating the 

citations in those cases. Under the circumstances, I conclude 

and find that the citation issued in this case must also be 

vacated. 

9-37 
Order 

IT IS ORDERED that Citation No. 2201219, November 3, 

1983, IS VACATED, and this case is dismised. 

~7<.f!ut~ Administrative Law Judge 

Distribution: 

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

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Carla K. Ryhal, Esq., P.O. Box 2180, Houston, TX 77001 (Certified 

Mail) 

/ejp 

938 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

WESTMORELAND 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. 

WESTMORELAND COAL COMPANY, 

Respondent 

DECISIONS 

APR 191984 

CONTEST PROCEEDING 

Docket No. WEVA 83-266-R 

Order No. 2147593; 8/19/83 

Hampton No. 3 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 84-76 

A.C. No. 46-01283-03532 

Hampton No. 3 Mine 

Appearances: Kevin McCormick, Esq., U.S. Department of 

Labor, Office of the Solicitor, Arlington, 

Virginia, for Petitioner/Respondent; 

F. Thomas Rubenstein, Esq., Westmoreland 

Coal Company, Big Stone Gap Virginia, for 

Contestant/Respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern a proposal for 

assessment of a civil penalty filed by MSHA against Westmoreland 

Coal Company pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. 820(a), seeking 

a civil penalty assessment for an alleged violation of mandatory 

939 
safety standard 30 CFR 75.301. The alleged violation 

was stated in a section 104(d) (2) Order served on Westmoreland 

by MSHA Inspector Vaughan Gartin on August 19, 1983. 

Westmoreland Coal Company contested the civil penalty 

proposal, and also filed a separate Notice of Contest 

pursuant to Section 105(d) challenging the legality of the 

order. The cases were consolidated for trial in Madison, 

West Virginia, and were heard at the conclusion of a 

consolidated trial of two other docketed cases concerning 

these same parties. 

Discussion 

Section 104 (d) (2) Order No. 2147593, 1: 50 a.m., 

August 19, 1983, cites a violation of 30 CFR 75.301, and 

the condition or practice is described as follows: 

The required minimum amount of air 

9,000 CFM, could not be obtained with 

an approved anemometer on the return 

side of the last open crosscut between the 

No.'s 4 and 5 entries of the 019-0 

8 Right section in that when measured 

only 5,850 CFM was present. Coal was 

being mined in the No. 5 entry. Said 

section supervised by Russell Welch. 

The inspector found that the violation was "significant 

and substantial," and he ordered the withdrawal from the 

019-0 8 right section. 

The inspector cited a previous order, No. 2140708, ~ 

issued on February 18, 1983, as the "initial action," 

underlying the order which he issued on August 19, 1983. 

Order No. 2147593 was abated at 3:00 p.m., August 19, 

1983, and the abatement action states: 

23,400 CFM was obtained in said last 

open crosscut. 

On September 28, 1983, the inspector modified Order 

No. 2147593, to delete the "significant and substantial" 

finding, and to delete his previous gravity finding of 

"Reasonably Likely," to reflect a finding of "unlikely." 

The modification notice reflects that these corrections 

were the result of a "violation conference held in this 

office on this date." 

940 
Findings and Conclusions 

When these proceedings were called for hearing, the 

parties advised me that they proposed to dispose of these 

cases by mutual consent and agreement of the parties, and 

they presented their arguments on the record for my 

consideration. 

MSHA's counsel asserted that during his interview with 

Inspector Gartin in preparation for trial the inspector 

informed him that he had made a mistake in the method he 

used to determine his allegation that only 5,850 CFM's 

of air was present at the time he took an air reading with 

an anemometer in the cited crosscut as stated in his citation. 

The inspector conceded that had he correctly computed the 

amount of air present in the area, the respondent/contestant 

would have been in compliance with the requirements of section 

75.301. In short, the inspector conceded that the order 

was mistakenly issued, and he produced a copy of a modification 

of the order which indicates that he has vacated it. 

In view of the foregoing, MSHA's counsel moved to withdraw and dismiss its proposal for assessment of civil penalty 

filed in the penalty case. At the same time, Westmoreland's 

counsel moved to withdraw its notice of contest. 

After due consideration of the oral joint motions filed 

by the parties, they were granted from the bench. 

ORDER 

MSHA's motion to withdraw its proposal for assessment 

of civil penalty IS GRANTED, and the case is dismissed. 

Westmoreland's motion to withdraw its notice of contest 

IS GRANTED, and it is dismissed. 

In view of the foregoing, the contested section 104(d) (2) 

order, No. 2147593, issued on August 19, 1983, IS VACATED. 

/ f,!fi: 

~ #~£ . Kout as 

dm1n strative Law Judge 

Distribution: 

F. Thomas Rubenstein, Esq., Westmoreland Coal Co., P.O. 

Drawer A&B, Big Stone Gap, VA 24219 (Certified Mail) 

Kevin McCormick, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Rm. 1237-A, Arlington, VA 

22203 (Certified Mail) 

/slk 

941 
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. 

PEABODY COAL COMPANY, 

Respondent 

DECISIONS 

APR 201984 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 83-86 

A.C. No. 15-03987-03502 

Docket No. KENT 83-66 

A.C. No. 15-03987-03501 

River Queen Strip 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Michael O. McKown, Esq., Peabody Coal Company, 

St. Louis, Missouri, for Respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These cases concern civil penalty proposals filed by 

the petitioner against the respondent pursuant to Section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

820(a), seeking civil penalty assessments for three alleged 

violations of certain mandatory safety standards promulgated 

pursuant to the Act. 

The respondent contested the proposed assessments, and 

the cases were heard in Evansville, Indiana~ The parties 

waived the filing of written post-hearing arguments, but 

their oral·arguments made on the record during the course 

of the hearing hav~ been reviewed and considered by me in 

the course of these decisions. 

Issues 

The principal issue presented in these proceedings is 

(1) whether respondent has violated the provisions of the 

Act and implementing regulations as alleged in the proposals 

942 
for assessment of civil penalties filed, and, if so, (2) the 

appropriate c"ivil penalties that should be assessed against 

the respondent for the alleged violations based upon the 

criteria set forth in section llO(i) of the Act. Additional 

issues raised are identified and disposed of where appropriate 

in the course of these decisions. 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the following 

criteria: (1) the operator's history of previous violations, 

(2) the appropri~teness of such penalty to the size of the 

business of the operator, (3) whether the operator was negligent, 

(4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated 

good faith of the operator in attempting to achieve rapid 

compliance after notification of the violations. 

Discussion 

The citations at issue in these proceedings are as follows: 

Docket No. KENT 83-66 

Following an investigation of a fatal accident which 

occurred at the mine, an MSHA inspector issued Section 104(a) 

Citation No. 1035414, on March 29, 1983, for ·an alleged 

violation of mandatory safety standard 30 CFR 77.404(a). The 

condition or practice described by the inspector on the face 

of the citation states as follows: 

The TD 25 International dozer was not maintained 

in a safe operative condition in that the mechanism 

for~stopping the engine from inside the cab was 

inoperative. 

Docket No. KENT 83.-86 

Following an investigation of a second fatal accident 

which occurred at the mine, an MSHA inspector issued Section 104(a) 

Citation Nos. 2075266 and 2075267, on September 9, 1983. 

Citation No. 2075266 alleges a violation of mandatory safety 

standard 77.1000, and the condition or practice is as follows: 

The operator was not following the Ground Control 

Plan in that: hazardous high wall conditions had 

not been corrected before men were allowed to work 

in the area Pit No. 001-0. This citation was 

issued during a fatal accident investigation. This 

is the responsibility of Ben Rheu day shift, 

943 
Gary Hulsey evening shift, Carol ~cintosh, 

morning shift pit foreman. 

Citation No. 2075267 describes an alleged violation of 

mandatory safety standard 77.1005, and the condition or practice 

is as follows: 

Loose hazardous material had not been removed 

from the face of the highwall in pit no. 001-1 

for a distance of approximately 150 feet. This 

citation was issued during a fatal accident 

investigation. This is the responsibility of 

Ben Rheu (day shift) Gary Hulsey (evening shift) , 

Carol Mcintosh, morning shift pit foreman. 

KENT 83-86 - Petitioner's testimony and evidence 

MSHA Inspector George W. Siria, confirmed that he 

conducted an investigation on September 3, 1982, into the 

circumstances surrounding a fatal accident which had occurred 

at the mine in question the previous day. As a result of 

that investigation, he issued two citations, and he identified 

copies of the citations which he issued, exhibits P-1 and P-2 

(Tr. 10-11). He identified copies of the respondent's 

surface mine ground control plan, exhibit P-3, and he explained 

why he issued citations for violations of sections 77.1000 

and 77.1005 (Tr. 12-15). 

Mr. Siria confirmed that he is not a surface mining 

inspector, and while his experience is in underground mines, 

he stated that "I do know something about highwalls" (Tr. 16). 

Upon inspection of the 150 foot highwall in question, he 

stated that "it looked bad," and while conceding that he never 

worked as a surface mine inspector, he confirmed that MSHA 

Inspector Herald Utley and Subdistrict Manager Hudson Sorrel 

were with him when he conducted his investigation (Tr. 17). 

Mr. Siria reviewed his Citation No. 2075266, for a 

violation of section 77.1000, and when asked why he did not 

make any negligence findings on the face of the citation which 

he issued, he replied "I don't really know why," and that 

"it looks like I made a mistake here" (Tr. 18). He stated 

that he intended t6 mark "high negligence." He confirmed 

that the respondent abated the citation in a timely manner 

(Tr. 2 0) • 

On cross-examination, Mr. Siria testified as to his 

background and training, and he confirmed that in the prior 

two-year period he had not inspected any surface mines, but only 

conducted one prior fatality involving a surface mine highwall 

(Tr. 24) . 

944 
Mr. Siria described the mine highwall in question as 

being 70 to 80 feet high, and he described the methods used 

to strip the overburden. He stated that the length of the 

highwall was some 1000 to 1500 feet, but he had no idea 

how long it had been in place, nor could he recall the 

prevailing weather conditions prior to the accident (Tr. 26). 

He indicated that his main objective in conducting an 

inspection of the highwall would be to look for loose, 

overhanging rock, and to determine whether it had been 

removed (Tr. 27"). He conceded that a rockfall could occur 

without any prior danger signs being noticed (Tr. 28), 

and he conceded that prior to the accident in question he 

had never previously inspected the highwall in question 

(Tr. 28). He also conceded that a rockfall could change 

the condition of a highwall, but that he did observe loose, 

hazardous materials on the highwall in question after the 

accident (Tr. 29). 

Mr. Siria stated that with the exception of the cited 

150 foot highwall area, the remaining portion of the highwall 

looked properly scaled, and when asked "Can you see any 

reason why that 150 area would not be properly scaled?," 

he replied "no" (Tr. 29). Mr. Siria confirmed that the basis 

for his opinion that the highwall was dangerous was that 

someone was killed by a rock which rolled down and struck 

the victim (Tr. 32). However, he indicated that he would 

have issued the citation even if the accident had not occurred, 

and this was because of his observation of the condition of 

the highwall. After the accident, he believed the highwall 

looked safer because the stripping shovel had "brushed the 

highwall out and knocked the loose rocks away" (Tr. 33). 

He confirmed that he had not observed the conditions of the 

highwall prior to the accident, and that he only observed it 

after the accident occurred. He conceded that a rockfall 

can change the appearance of a highwall, but that any such 

changes would only occur in the immediate fall area and not 

along the entire 150 length of the 80 foot highwall in question 

(Tr. 35). Mr. Siria also stated that the condition of the 

highwall was such that he would have issued a violation even 

if there were no fatality (Tr. 35). 

In response to further questions, Mr. Siria stated that 

he had no knowledge that miners Mike Montgomery or Robert Penrod 

were told to work in the accident area knowing that the · 

hazardous highwall condition existed. Mr. siria confirmed 

that his belief that a hazardous highwall condition existed 

prior to the accident was based solely on his observations 

after the accident occurred (Tr. 36). Mr. Siria described 

the rock which struck the victim as four foot wide, and he 

stated that the rock "was rolling as it struck the victim" 

(Tr. 39). 

945 
MSHA Inspector James Utley, testified that he is a 

superviso:rysurface mining inspector. He confirmed that he· was 

summoned to the mine approximately 15 to 20 minutes after 

the accident in question, and that he was at the mine on 

September 2 and 3, 1982. When he arrived at the pit area on 

September 2, he went to the accident scene and he observed 

the rock which struck the victim. The victim was still there, 

and the accident scene had not changed from the time he was 

called until his arrival. He identified the citation issued 

by Inspector Siria (Tr. 56). 

Mr. Utley described the highwall as he observed it when 

he arrived at the scene on September 2nd as follows (Tr. 57-59): 

A. The highwall at the time we looked 

at it had an area near the top where a 

rock had turned loose and fallen into the 

pit. It was a little bit rough for an 

area of, oh, 150 feet long in the area 

where the accident had occurred. 

Above the highwall there was an area 

approximately 150 feet long where the 

dirt or soil had not been drug off by 

the bucket of the stripping shovel the 

way that it usually had been done. 

Q. If I understand you correctly, are 

you stating that the face had not been 

cleaned for 150 feet? 

A. I wouldn't say that it had not been 

cleaned. It was just a little rough. 

Q. Okay, and that on top of the highwall 

it hadn't been 

A. The top of the highwall had not been 

drug off, to use the term that we use, 

with the bucket of the stripping shovel. 

* * * * 

Q. Where you able to determine whether 

the fatal accident in this case, the rock 

falling, caused the rough condition of the 

highwall that you observed? 

A. No, the rock falling didn't cause the 

condition. 

946 
Q. And prior to your making that statement --

A. Well, the rock that turned loose and came 

down, came down the highwall in the area where 

the fatality occurred, but the area of the 

highwall that was a little rough was approximately 

150 feet long. 

Q. Okay. Did it encompass the area where the 

rock had fallen? 

A. Yes. 

Q. Did this rock fall midway that area or to 

one side or the other or do you remember? 

A. I believe it was nearer the west end of 

the area. 

Q. And was that an area further removed from 

the mining operations going--was the mining 

operations moving from west to east or east to 

west? 

A. At that time the shovel was stripping 

from west to east. 

Mr. Utley stated that if the condition of the highwall 

as he observed it after the accident had looked that way 

prior to the accident, he believed it would have been a 

violation as stated by Inspector Siria in the citation. 

Mr. Utley confirmed that he was familiar with the respondent's 

ground control plan, and he confirmed that no mine inspection 

took place prior to the accident on September 2, and his 

inspection and on September 3, included only the accident scene 

(Tr. 61). 

On cross-examination, Mr. Utley stated that his prior 

surface mining experience was in connection with "engineering 

work" with a stripping contractor or as an "engineering 

technician" in underground mines. He confirmed that he has 

never served as a pit boss, operated a stripping shovel, 

or worked in a surface mine (Tr. 62-63). He also confirmed 

that Mr. Siria does not work for him in his normal inspection 

duties (Tr. 63). He went on the describe several conditions 

which change the appearance or condition of a highwall 

(Tr. 64-68) . 

Mr. Utley confirmed that he personally questioned no 

one about the highwall conditions during the fatality investigation, 

and that Mr. Siria did most of the interviewing. Mr. Utley 

947 
also confirmed that he had no personal knowledge of the 

condition of the highwall prior to the accident, and that 

he did not know whether or not loose, hazardous materials 

were in fact present on the highwall for a distance of 150 

feet prior to the accident (Tr. 69). He did state that he 

inspected company records pertaining to the condition of the 

highwall for the dates prior to the accident, but had no 

copy of those records, could recall no particular notations 

for the pit in question, and could recall no statements 

to the effect that the highwall was a "rough area" (Tr. 69-70). 

He also could not recall being contacted by any MSHA 

assessment officer concerning the condition of the highwall 

after the citation was issued (Tr. 71). He then explained 

that he did recall such a contact, and he also recalled that' 

with the exception of the 150 area, the highwall was in 

generally good condition (Tr. 72). 

In response to further questions, Mr. Utley believed 

that assuming no accident occurred, the highwall was in such 

a state that required it to be scaled. He was also of the 

opinion that mine management should have known that it should 

have been scaled (Tr. 73). He further explained his position 

as follows (Tr. 74-82): 

JUDGE KOUTRAS: Now when they take that 

bucket and scrap the highwall, am I to 

assume the purpose of that is to take 

down any loose, unconsolidated material? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Now let's assume that a 

mine operator takes the bucket, and let's 

assume that in this case the bucket had 

acraped the entire 150 feet across this 

highwall, scraped it, and then the rock 

fell. Would they then be susceptible to 

the charge that they hadn't properly scaled 

the highwall? 

THE WITNESS: No, sir. 

JUDGE KOUTRAS: In other words the scraping 

with the bucket, is that an acceptable 

means of scaling down and taking down loose, 

unconsolidated material? 

THE WITNESS: It is at the top of the highwalls. 

JUDGE KOUTRAS: So you just assume that that 

bucket is going to make the swipe and take 

everything? 

948 
THE WITNESS: No, sir, the bucket is also 

used to run up the face of the highwall to 

remove loosened dirt. 

JUDGE KOUTRAS: Was there any indication 

in this case that there was any overhanging 

material? 

THE WITNESS: No, sir. 

JUDGE KOUTRAS: Okay. Now let's assume that 

the bucket had done the required cleaning of 

the area that you described as rough; am I 

to assume that that scraping process also 

would have taken out the rock that subsequently 

fell? 

THE WITNESS: It is a possibility but no 

guarantee. 

JUDGE KOUTRAS: I assume the bucket just scrapes 

rather than digs. 

THE WITNESS: Yes, when it is scaling a highwall. 

JUDGE KOUTRAS: Am I also to assume then when 

we use the term "unconsolidated loose" we 

literally mean that. I mean it doesn't literally 

go in and dig out big rocks, does it, that are 

imbedded into 

THE WITNESS: No, sir. Usually the material has 

been shot and is small, loose, and unconsolidated 

with no large boulders in it. 

* * * * 

MR. STEWART: I guess if the crack appeared suddenly, 

I would agree that management can't know about 

the crack appearing suddenly. 

JUDGE KOUTRAS: Okay. 

MR. STEWART: But management certainly can know 

from working in the area what conditions may lead 

to the cause of these sudden cracks that they 

later claim that they had no way of knowing. 

JUDGE KOUTRAS: And you say the rough condition 

of the highwall as it existed shortly after the 

incident led the inspectors to believe that they 

hadn't scaled it properly. 

949 
MR. STEWART: That is correct. 

JUDGE KOUTRAS: And that had they scaled it 

properly the crack wouldn't have appeared, 

the rock wouldn't have fallen, and the man 

wouldn't have been killed. 

MR. STEWART: That is our basis. 

JUDGE KOUTRAS: That is right. 

MR. STEWART: But we are not necessarily saying 

that had they scaled it properly the crack 

would not have appeared, in fact. 

JUDGE KOUTRAS: That is right. So had they 

scaled it properly there wouldn't have been a 

citation, correct? 

MR. STEWART: That is correct. 

JUDGE KOUTRAS: Okay. Had they scaled it 

properly in the eyes of these two inspectors, in 

the eyes of MSHA, then the crack suddenly appeared, 

and the rock fell, and the man gotten killed, 

then they wouldn't have been cited? 

MR. STEWART: That is my understanding of their 

testimony. 

JUDGE KOUTRAS: Okay. If you look at this 

narrative finding, it says, "The crack in the 

highwall appeared suddenly after the examination 

had been made" --

I don't know what examination they are talking 

about -- "therefore management was not aware of 

it, and allowed the man to work in the area." 

Now that is totally nonsensical. And not only 

that it is nonsense because I don't understand 

it --

HR. MCKOWN: Well, Your Honor --

JUDGE KOUTRAS: I understand it. That is not 

evidence, I am just reading from the narrative 

finding of the special assessment officer number 

code name 21, whoever he is. If you ever find 

out, tell him what I said about his assessment. 

950 
MR. STEWART: I certainly will, Your Honor. 

JUDGE KOUTRAS: The other thing. that he concluded is that if the operator had not allowed 

men to work in the area prior to correcting 

hazardous highwall conditions the accident may 

not have occurred. 

So here in the citation is that hazardous 

highwall conditions had not been corrected, 

meaning the rough area which you claim, MSHA 

claims, should have been scaled and taken down 

and taken care of. 

Robert w. Penrod, testified that he has been employed 

at the mine in question as a "shooter," and that his duties 

entail loading and blasting, but that he is now a welder. 

He confirmed that on September 2, 1982, he was working as 

a shooter at the base of the highwall pit in question. He 

stated that the victim was a good friend of his, and Mr. Penrod 

described the condition of the highwall as follows (Tr. 88-95): 

Q. Mr. Penrod, did you have an occasion 

to look at the highwall prior to the death 

of your fellow employee? 

A. Yes, sir, I did. 

Q. In the area in which you were working in? 

A. Yes, sir. 

Q. Would you describe to the court what it 

looked like. 

A. At the time when we noticed the highwall 

we -- just a little before the accident, we had 

noticed a big crack in the wall, and we was 

watching it because you could tell that there 

was a little bulge there, but it was cracked. 

And at the time we didn't see it working 

and what I mean working is that when you see a 

part of the highwall starting to work it usually 

has dust; it usually looks like a little stream 

of dust flowing from it, and we know then that 

the wall is working; and we kind of avoid the 

area. And at the particular area that we had 

been in, the highwall hadn't been scraped or 

scaled, what we call, you know, kind of clean 

and loose material; it hadn't been. It was 

ahead of us, but at the area that we was at 

at that time it was not. 

951 
Q. How do you know it hadn't been? 

A. Well, from being in the pit many times 

or around the mines as much as we have, you 

can tell from looking at it. In some 

instances you can tell when they've scraped 

the highwalls, the teeth marks, and at the 

top, especially on a highwall like this, 

is rounded off like, you know where 

they drag the bucket back over the highwall 

to break loose all the loose material. You 

could tell by looking at the highwall. 

Q. So how were you able to tell that this 

one hadn't been scaled at the location that 

you worked in? 

A. In the location we had, it was obvious 

you could tell because of the highwall we was 

at there was loose material; and plus right down 

from it you could tell where it was, where they 

had been dragging the highwall and cleaning it. 

But at the area we was at, they hadn't done it. 

Q. .Okay. Were you instructed to work in that 

area? 

A. Yes, sir, at the time. Yes, sir. 

Q. Who instructed you to work there? 

A. Well, our drill foreman at the time was 

Bob Barrett. 

Q. Bob Berry? 

A. Bob Barrett. 

* * * * 

Q. Now you stated that you observed a crack 

in the highwall but didn't see it working. 

A. No, sir, I didn't see it working. 

Q. What--did you observe any other changes 

in the highwall? 

A. No, sir, not at that. time I didn't. 

Q. At any time? 

952 
A. Well, right before the -- I mean, if 

you are talking about right before I seen 

the rock hit him, you know, I had turned 

around and looked; and it all broke loose and 

came down. 

Q. And you saw the rock actually strike the 

victim? 

A. Yes, sir. 

Q. When you saw it coming down, what did you 

do, if anything? 

A. Well, I had just talked to Mike; and 

he walked away from the truck; and I had to walk 

to the back end 

JUDGE KOUTRAS: Who was Mike? 

THE WITNESS: Mike Dulin, the man that was 

killed. 

JUDGE KOUTRAS: Okay. 

THE WITNESS: And I turned back and looked, and 

I looked up, and I seen this rock falling, and 

hollered for Mike to run, and I took one step 

towards him -- I don't know why -- but he never 

did hear me because of the drills that we work 

beside are so loud that he didn't hear me. 

And. he looked up, and he seen them coming, and 

he turned around and took one step, and the rock 

just wiped him out. 

Q. And you say the drills were operating at the 

time? 

A. Yes, sir, at the time. 

Q. Do you know what position Mr. Dulin was 

employed in? 

A. He was a shooter, as I was. 

Q. The same? 

A. Yes, the same. 

Q. How far away from the base of the pit were 

you at the time the rock broke loose? 

953 
THE WITNESS: Are you saying from the base 

of the highwall? 

MR. STEWART: Yes. 

A. (By Mr. Penrod) I was standing about 

twenty five to thirty feet away from 

the highwall. 

Q. Out away from it in the pit area? 

A. Yes, in the pit area. 

Q. Do you recall -- Withdraw that question. 

Do you know that distance the highwall had 

not been scraped, in your opinion? 

A. No, sir. 

Q. Do you have an approximate distance it was? 

THE WITNESS: Oh, you mean the length of it? 

MR. STEWART: Yes. 

A. (By Mr. Penrod) Really no. 

Q. Was it 10 feet, was it a long way, or a short 

way? 

A. Well, if you are talking about the area 

we w.ere in, it could be 150 to 200 feet, you know. 

The area we drilled in, the area we drilled in 

that day was all in that area, so I would. say it 

would be 150 maybe 200 feet, that area we was in. 

Q. And had the highwall been scraped in any of 

that area? 

A. Not in the area we was at, no, sir. 

Q. So that is approximately 200 feet that the 

highwall had not been scraped. 

A. Yes, sir. 

Q. Now within that 200 feet where did this rock 

break loose? Did it break loose in the middle 

or what? 

95-4 
A. .Yeah, I could say it was in that area or 

maybe like closer to the part where it had 

scraping on it. It was close to the middle 

of the area that we was in. I can remember. 

Q. So if I understand you, you observed the 

highwall before the accident. 

A. Yes, sir. 

Q. And you saw it after the accident. 

A. Yes, sir. 

Q. Were there any other changes in the highwall 

after the rock broke loose? 

THE WITNESS: You mean --

MR. STEWART: Throughout the entire length. 

A. (By Mr. Penrod} Not that I know of. 

Q. Did rock break loose any place else along 

that highwall that you observed? 

A. Not that I can remember, no, sir. 

Q. Mr. Penrod, did you report the condition 

of that highwall to anyone? 

A. Not at the time, no, sir, I did not. 

Q. And why not? 

A. Because from the time we noticed the 

crack until the accident there wasn't that 

much time in between it, you know. 

Q. What about the overall condition of the 

highwall in the area you were working in? Why 

didn't you report that? 

A. Well, it was, I ~ean, I'm not saying I 

failed in the reporting it; but it was obvious 

everybody could tell by looking at it. You 

know, it had never been scraped or anything but 

Q. was Peabody Coal Company in a habit of 

failing to scrape the highwall? 

955 
A. Well, they had failed before, yes they 

have. 

Q. But that is not, is that something they 

usually do? 

A. Yeah, they usually scrape the highwall. 

Q. They usually scrape it. 

A. Yes, sir. 

Q. Do they usually clean off the top? 

A. Yes, sir. 

Q. Do you know any reason why that hadn't 

been done on, September 2? 

A. No, sir, I do not. 

Q. Was the shovel there? 

A. Yes, sir. 

Q. Was it operating? 

A. Yes, sir. 

On cross-examination, Mr. Penrod confirmed that he is 

a member of the mine safety committee, and has served as 

chairman. However, he resigned and was not a member at 

the time of the highwall accident. He stated that he was 

aware of his right to refuse to work in an unsafe environment. 

He confirmed that he knew the accident victim for four years 

and considered him to be an experienced miner and safe worker. 

Mr. Penrod also considers himself to be a safe worker (Tr. 98). 

Mr. Penrod confirmed that he was in the pit on the day 

of the accident and that he visually observed it while there. 

He stated that he usually "keeps an eye on it" while working 

in the pit, and even though it is the pit foreman's job to 

inspect the highwall, Mr. Penrod indicated that he personally 

watches it (Tr. 99). Mr. Penrod confirmed that he was aware 

of his safety rights on the day of the accident, and when asked 

why he did not report the highwall conditions to management, 

he responded as follows (Tr. 100-101): 

Q. Now, when you noticed this area that 

you considered not to be properly scaled, 

why didn't you report it to management? 

A. Because at the time I didn't pay 

that much attention to --

956 
JUDGE KOUTRAS: Hold it just a minute. 

All right. Go ahead. 

THE WITNESS: As I went to the pit, I 

noticed the highwall. But as we do a lot 

of things, we -- on our daily routine you 

go ahead and work; and you just kind of 

watch it. 

It's just -- a lot of things like anybody 

else's job, sometimes it's a daily thing 

that happens. You just don't pay much 

attention to it. 

Mr. Penrod confirmed that the shovel operator scales 

the highwall as he "dead-heads" back after exposing the 

highwall, and that this is done to take down loose material 

on a bad wall. He also indicated that "sometimes after 

you strip a wall it will break loose again. It happens 

down there" (Tr. 102). He did not observe the shovel operator 

either scale or not scale the highwall in question, and he 

relied on what he observed after the accident. He confirmed 

that highwall conditions may change and may vary, and that 

this is du.e to sandrock and mud which may be encountered 

during the stripping operation (Tr. 102). 

Mr. Penrod stated that approximately 15 or 20 minutes 

before the accident occurred, he "noticed there was a problem 

with this crack." He confirmed that he and the accident 

victim engaged in some "joking conversation," and he explained 

further as follows (Tr. 104-106): 

A. No. He -- like I say, he was -- he 

was aggravated or something because I 

told him about getting the Red Hots. 

And we was making light. And he turned 

around and walked over to his truck. 

Q. So you didn't feel that this was such 

a dangerous condition that you needed 

to report it to your supervisor? 

A. Not at the time, no. 

Q. And you didn't report it to your 

supervisor or any concern that you had 

about that area that was not properly 

scaled? 

A. We hadn't did it, no, sir. 

957 
Q. How far into the shift was this 

accident, did it occur? 

A. I don't know. It was about 2 o'clock, 

I recon. I'm not sure about that. 

Q. And what time does your shift start? 

A. It starts at 8:00. 

Q. And when does it end? 

A. Four o'clock. 

Q. So it was near the end of your shift? 

A. Pretty close to the end. 

Q. Have you ever known Mr. Dulin to work 

in an unsafe condition? 

A. Times I've been around him, no, he 

wouldn't work in no unsafe conditions that I 

could think of. No, sir. 

Q. How about you? Have you ever worked in 

unsafe conditions? 

A. I've been in them; yes, sir. 

Q. Okay. Have you -- did you feel that 

you were in unsafe conditions that day? 

A. When? 

Q. Prior to the accident occurring. 

A. I say this is the everyday routine. When 

you go into the pit, sometimes you just don't 

pay no attention to it -- because not trying 

to change some -- but if you have to worry about 

it all the time, you can't stay in there. It 

would drive you nuts. So you just go ahead and 

do it and not worry about it. You just • 

Q. But you are aware that you could have refused 

to work? 

A. Yes, sir. 

958 
Q. And you did, in fact, fail to report 

to Mr. Barrett 

A. Yes. From the time that I spotted the 

crack until Dulin was killed, I didn't --

the thought of getting the Red Hots and 

that part of my job that I was doing, I failed 

to report it. 

In response to further questions, Mr. Penrod indicated 

that after a highwall is scaled or stripped, it can still 

break loose, and he could not remember whether the highwall 

in question had recently broken loose. He believed that his 

supervisor should be able to tell if a highwall had been 

scaled or unscaled, but this would depend on how long he 

was present in the pit area (Tr. 107). 

Mr. Penrod stated that at the beginning of his work 

shift on the day of the accident, the highwall looked like 

it was not scaled, but he observed no crack. The crack 

appeared later at the end of the shift, but he detected 

no movement of the rock and said nothing to the accident 

victim about the crack. Mr. Penrod did not know whether or 

not the victim saw the crack (Tr. 109). 

Michael R. Montgomery, confirmed that on September 2, 1982, 

he worked at the mine in question as a shooter, and was working 

in the pit with the accident victim. Mr. Montgomery indicated 

that he had worked as a shooter for about two months prior 

to the accident, and during that time worked with the victim 

(Tr. 112). Mr. Montgomery confirmed that he observed the 

highwall in question during his shift, and he stated as 

follows (Tr. 113). 

Q. Mr. Montgomery, did you have an occasion 

to observe the highwall prior to this fatal 

accident? 

A. That morning I looked at the highwall 

like I normally do. I checked the highwall 

just looking at it. The highwall in that 

particular area wasn't scaled really good; 

but, you know, there was a lot of the pit --

it didn't look any worse than it had been 

looking coming up through the pit. I didn't 

observe anything hanging loose. 

Q. How did the top of the highwall look? 

Did you have any occasion to go to the top 

of the highwall? 

959 
A. I wasn't up on top of the highwall 

that particular day. The only observation 

that I got was from the bottom. You know, 

just looking up I didn't notice anything 

that loose that morning. 

Q. Had it been dragged? 

A. ~h, I guess it had. But in that particular 

section it wasn't it hadn't been done as 

cleanly as it had in some other areas of the 

wall. 

Q. Now, did you observe the fall of the rock 

that struck Mr. Dulin? 

A. Yes. I was watching Mr. Dulin -- well, I 

was looking over towards that drill. It was 

getting on to 4 o'clock in the afternoon. And 

normally we were getting ready to put orf a 

shot then, and so we were trying to keep our 

patter squared up, -- I don't know whether 

you are familiar or not --

Q. No. 

A. -- with the terminology. But, anyway, I 

wa·s looking over towards the drill. And I 

was watching Mr. Dulin. I watched him load 

the hole. And I was just seeing where 

the other drill helper was. And, yeah, I 

saw the rock as it was about two-thirds of the 

way down the wall there. I saw it. And, 

of course, I yelled; but I was inside .the drill 

with the thing running and everyghint, so 

he -- there wasn't any way with all the noise 

and everything. But I saw it. 

Mr. Montgomery stated that at the time he saw the rock 

strike the victim, he was in an enclosed cab some 70 feet 

from the highwall and that the victim was approximately 

50 feet away from him. The stripping shovel "was on up 

the pit a pretty good distance," and he estimated that it 

was 400 yards away. He confirmed that he observed no rocks 

fall from the highwall during the time prior to the one that 

struck the victim (Tr. 116). 

On cross-examination, Mr. Montgomery confirmed that he 

is a UMWA member and that he considers himself to be. an 

experienced surface miner. During the time he worked with 

960 
the victim, he found him to be an experienced miner and 

a safe worker (Tr. 118). He further described the condition 

of the highwall as follows (Tr. 118-120): 

Q. Now, you stated on direct examination 

that the highwall had been dragged but not 

as cleanly as. the other sections of the 

highwalls. What do you mean by dragged 

exactly? 

A. Well, as I understand it, they take the 

bucket -- I've watched them -- they take the 

bucket and go up to the top of the wall. 

And they will drag all the loose stuff. 

And in that particular area, it wasn't as 

cleanly -- I mean, there was stuff up 

there, but it wasn't -- I didn't observe it 

to be hanging loose. It wasn't -- some 

places where they clean it off, you know, it 

looks like a dozer has been along there. You 

know, they really have done a good job of it 

in certain area. 

Q. So you were saying that this was dragged 

but just not as well as in certain.other 

areas? 

A. Right. 

Q. And you stated -- did you see any loose 

material on the highwall? 

A. I didn't observe any loose material about 

to fall. You know, there was stuff sitting up 

there. But from where I was at my vantage 

point, you know, --

Q. What would have happened if you would 

have seen loose material? What would you have 

done? 

A. I would have notified my foreman. 

Q. Okay. Would you have gotten out of the 

pit? 

A. Would I have gotten out of the pit? 

Q. Yes. Would you have gotten away from that 

area? 

961 
A. I would have gotten away from the wall, 

yes. I probably wouldn't have gotten out 

of the pit. But I would have gotten 

what I consider a reasonable distance from 

the wall. 

Q. BQt you never had any occasion prior to 

Mr. Dulin's accident to report a hazardous 

condition to mine management? 

A. Ever or --

Q. No, I mean just that day. 

Q. That day. No. Huh-uh. 

Mr. Montgomery indicated that mine management usually 

took care of previous safety conditions he has reported, and 

he stated that he is not afraid to make complaints. He 

confirmed that his supervisor was present in the vicinity 

of his work area at least a half an hour prior to the 

accident, and while he had an opportunity to report any 

unsafe condition to his supervisor at that time, Mr. Montgomery 

stated "I hadn't observed anything to report" because he was 

in the drill {Tr. 121). Mr. Montgomery confirmed that the 

respondent has corrected highwall conditions in the past, 

that the highwall is scaled by the shovel for safety reasons, 

and that highwall conditions do change and he explained those 

changes {Tr. 121-122). He confirmed that he had no indications 

prior to the fatal rock fall that it was going to fall 

{Tr. 122). He also confirmed that the highwall was damp, 

that conditions were wet, and that "the highwall had been 

dragged to some extent." However, he stated that "I didn't 

see anything about to fall" {Tr. 123). 

In response to further questions, Mr. Montgomery stated 

that since he was in a drilling machine in the middle of 

the pit, he would not have observed the highwall as close 

as a chooter, and he described what he observed as follows 

{Tr. 125-126): 

A. Well, that day, you know, when I looked 

at that 'that morning -- you can look at a 

wall and tell if they've done anything to it 

or not, you know. They had done some work 

on it. 

Q. Was that --

962 
A. I'm just saying that it wasn't as clean 

as it was in other areas of the highwall. 

Q. Because the area that you were working 

in, you say, was not as clean as others? 

A. Right. I think right up in front of us 

there was clean area. I don't remember real 

well, but it seems like there was an area that 

was really scaled nice right up past that, 

you know. 

Q. Past that area, towards the direction 

you were going? 

A. Yeah. 

* * * * A. From just what I have observed, normally 

once they have removed the overburden as far 

over as they are going to remove it, they 

usually, as they move the machinery up, 

they will scale it as they go, you know. 

And at Tr. 127-128: 

JUDGE KOUTRAS: Did you at anytime have any 

conversation with Mr. Penrod or Mr. Dulin 

concerning the condition of the highwall? 

THE WITNESS: Not concerning the condition 

of the highwall. 

JUDGE KOUTRAS: Several times in response to 

questions of either Counsel McKown or 

Mr. McKown asked you with regard to whether 

or not you observed any loose, hazardous 

rock, your response was: Nothing that looked 

like it was going to fall. 

THE WITNESS: I guess you want a clarification 

on that? 

JUDGE KOUTRAS: Yes. And my follow-up question 

to that is do you usually wait until the rock 

starts falling before you consider it to put 

you in peril? 

THE WITNESS: No. No. The only thing that I 

can say is that the wall had not been good for 

some time up to there. By that, I meant that 

it didn't look any worse to me that particular 

day that it had been looking. 

963 
JUDGE KOUTRAS: All right. 

THE WITNESS: I felt that it had not been 

scaled as well as it should been. But, 

you know, we'd been living with it. 

JUDGE KOUTRAS: Based on the condition of 

the highwall that you observed that day, what 

if Mr. Barrett had said to you, Mike, -- if 

I can take the liberty of calling you Mike -- Mike, instead of putting you on the drill today, 

we're going to make you a loader and a shooter. 

Would you have insisted that the highwall be 

scraped better than it was, or would you have 

any fears of going and working and doing the 

job of loading and shooting? 

THE WITNESS: If I had been Mr. Dulin, it would 

be me instead of him because I would have 

done the job. I didn't observe anything -- I'll 

put it this way: Once I sat on that drill, I 

didn't look at the top of that wall during the 

day because of where I was at. I didn't have 

any need to. Maybe I should have, to help 

watch for my fellow workers; but I was in the 

middle of the pit; I was a safe distance from 

it; and I didn't feel -- I just didn't observe 

the wall. If I had been a shooter, I know 

that I would have watched that wall closer. 

JUDGE KOUTRAS: Well, okay. But the question 

was: If it wasn't as clean as it usually is, 

would you have insisted that they make it a 

little cleaner before you proceeded to work 

as a driller or loader? 

THE WITNESS: If I had seen that falling off 

a wall, yeah, I would have gotten out of the 

area. 

KENT 83-86 - Petitioner's testimony and evidence 

MSHA Inspector George Siria confirmed that he issued 

Citation No. 2075267 on September 3, 1982, exhibits P-5 

and P-6, citing a violation of section 77.1005 for failure 

by the respondent to remove loose hazardous materials from 

the highwall in question. He confirmed that the citation 

was issued at or about the same time as the previous one 

964 
and that it concerned the same highwall condition connected 

with the fatal accident. Mr. Siria stated that the highwall 

appeared "to be loose" and that "I figured if it was loose 

it was hazardous to anybody working underneath it." He 

described the highwall as being composed of dirt, topsoil, 

and limestone, and he indicated that "it was just loose 

material that had not been scaled off" (Tr. 132). 

Mr. Siria stated that in his opinion, the top of the 

highwall had not been scaled or "cleaned off," and he confirmed 

that he found "high negligence" because "it was very obvious 

to me and I thought it should have been to the company 

also" (Tr. 133). He stated that the 150 foot area which he 

cited did not appear to be scaled at the top or face of the 

highwall, and that he saw loose rocks. He also stated that 

"If I had been working in the pit, I would have been afraid 

of it" (Tr. 135). 

On cross-examination, Mr. Siria conceded that he has 

never observed the stripping shovel at the pit in question, 

and he confirmed that he never observed the shovel scale 

or not scale the highwall in question, and that he relied· 

on what he observed from the top and bottom of the highwall 

after the accident. He indicated that his opinion that 

the highwall had not been scaled was based on his observations 

of loose rock and adjacent area which had not been scaled 

(Tr. 136). Based on his experience, he believed the highwall 

to be "obviously dangerous" (Tr. 137). He stated further 

that he observed overhangs and cracks in the 150 foot highwall 

area in question, and did not believe that the highwall was 

ever scaled and that he simply did not notice it (Tr. 138). 

He confirmed that during abatement "they really did a good 

job" of scaling (Tr. 140). 

MSHA Inspector James H. Utley confirmed the citation 

issued by Inspector Siria, and he also confirmed that on 

September 3, 1982, he walked the top of the highwall in the 

area where the fatal rock fall accident occurred. He described 

an area approximately 150 feet long "where the loose material 

on top of the highwall had been partially dragged off." 

He stated that the stripping shovel had dragged some of the 

loose material off, but that in the im.~ediate face area 

where the rock fell it was "a little rough" (Tr. 150). When 

asked to explain further, he stated that the material he 

observed at the top of the highwall "was there in its normal 

state. It was there when the Earth was formed, I guess; and 

it had not been removed" (Tr. 151). He then stated that no 

one from the company explained tc him why that area looked 

different from other areas which had been dragged or scaled, 

but that he recalled no conversations with any company officials 

about the citation which was issued (Tr. 151). 

965 
On cross-examination, Mr. Utley stated that part of 

the 150 foot highwall was scaled and part was dragged, and 

he was of the opinion that there was a difference in these 

two procedures. He was of the opinion that "maybe somebody 

got a little behind or in a hurry, and they failed to drag 

the top of the highwall the way they had been doing it in 

the past," but he conceded that he did not interview any 

of the stripping shovel operators (Tr. 153). In response to 

further questions, Mr. Utley stated as follows (Tr. 155-156): 

Q. How do you define overhang? 

A. How do I define overhang? 

Q. Yes. 

A. An overhang would be an area of the 

highwall that protrudes out past the 

average face of it. And it would have 

an area beneath it so that it could turn 

loose and fall. 

Q. Did you see overhangs on this 150-foot 

area? 

A. Yes. There were some areas that could 

be defined as overhangs. 

Q. And how do you identify material as 

being loose and unconsolidated? What do you 

rely on to come up with that conclusion? 

A. Well, loose and unconsolidated material 

to me would be material that had been drilled 

and shot that was ready to be stripped by the 

strip shovel. Also there can be geologic 

deposits that are loose and unconsolidated in 

their normal state. 

Q. And, of course, you didn't see the shovel 

make a pass through that area of the highwall? 

A. No, sir. 

Q. And, of course, you didn't see the condition 

of the highwall prior to the accident occurring? 

A. No, sir, I didn't. 

966 
Respondent's testimony and evidence - KENT 83-86 and KENT 83-66 

Kerry Teague testified that he was a drill foreman on 

the day of the accident in question, and that he observed 

the highwall and was looking for loose material. He stated 

that on September 3, 1982, when he observed the highwall, 

he found it to be in good condition and properly scaled. He 

confirmed that when he observed it on September 2, 1982, he 

saw no loose rocks or other material (Tr. 168). He confirmed 

that he has known the accident victim for "all of his life," 

and he considered him to be an experienced and safe worker, 

and did not believe that he would work in an unsafe environment (Tr. 169). 

On cross-examination, Mr. Teague confirmed that the 

entire pit in question was under his supervision, and he 

stated that he traversed the pit area by truck and by walking. 

He confirmed that his shift starts at midnight and that it 

is dark, and that any lighting present would be generated 

by the lights on the particular pieces of equipment operating 

in the pit area. He explained the movement of the stripping 

shovel on the day of the accident, and he stated that 50 or 

60 feet of overburden was stripped that day. He also indicated 

that at the time of the accident, the shovel had moved 

approximately 36 to 45 feet along the highwall. He also 

confirmed that he did not remain in the area after 8:00 a.m. 

on the day of the accident (Tr. 175). He confirmed that 

he next went to work at 12 midnight after the time of the 

accident, and that the area was still cornered off, and 

that he performed no work at the location of the accident 

(Tr. 176) • 

In response to further questions, Mr. Teague stated 

that the area where the,accident occurred had been stripped 

for two days prior to the time of the accident (Tr. 179). 

He confirmed that when loose materials are encountered 

it is "stripped down," and that this is done "if it is 

hazardous," and that "we do take care of it" (Tr. 180). 

When asked to explain when such loose material "is not 

hazardous," he stated "I can't" (Tr. 181). He confirmed 

that he was not present when the accident occurred, and that 

his observations of the conditions of the highwall were based 

on what he saw on the previous shift and on the shift after 

the accident (Tr. 181). 

Robert Barrett, testified that on September 2, 1982, 

he was the drill foreman at the pit in question, and he 

explained his duties (Tr. 184). He confirmed that he had 

six people working for him that day, including the accident 

victim, and he considered him to be a safe and good worker 

96'7 
(Tr. 186) .. He stated that blasting and weather conditions 

can change the condition of a highwall, and he confirmed 

that the presence of a crack would indicate that a rock may 

fall, and he confirmed that he has observed a rockfall 

occurring without any warning (Tr. 187). 

Mr. Barrett confirmed that he inspected the highwall 

on September 2, 1983, and observed no unsafe conditions or 

loose, unconsolidated materials. He also confirmed that he 

observed no conditions which in his opinion would cause him 

or anyone else to fear for their safety. He believed the 

highwall was adequately scaled and stripped, and he explained 

the procedures for doing this (Tr. 188-189). He confirmed 

that no one raised any safety concerns about the highwall 

conditions on the day of the accident, and he did not feel 

that he was in any danger working in the highwall area on 

the day of the accident (Tr. 193). 

On cross-examination, Mr. Barrett stated that the pit 

foreman makes entries in the preshift examination books, 

and that he too has made such entries. He confirmed that 

he made no entries, but that the pit foreman did and that 

he examined the book (Tr. 195). He explained the mining cycle 

and how the coal is stripped with the shovel (Tr. 196-202). 

In response to further bench questions, Mr. Barrett 

stated as follows (Tr. 209-210): 

JUDGE KOUTRAS: Several witnesses have 

testified in this case, and you haven't 

heard their testimonies, but they described 

the highwall on September 2nd as being 

"rough," "not like I would like it to be," 

"not like it usually is," "not like part of 

it was," all kinds of descriptions were 

given. But there seems to be a vast difference 

of opinion as to whether or not there was 

loose, hazardous materials on the highwall. 

And I have some difficulty sometimes comprehending where everybody is testifying 

in this case, whether it be a mine management 

pit foreman or some guy who is rank and file 

down there doing the job, doing the actual 

working at the foot of the highwall. And I 

detect that everybody is not all on the same 

wavelength as to what loose, hazardous 

material is all about. And I hear testimony, 

for example, that: "We' re all aware of it 11 ; 

and "When I see the first rock coming down, 

968 
I. turn tail and run"; and you've 

indicated that you inspected -- you said 

something about driving by in your truck. 

Now, I don't know whether that means you 

drive by and inspect it or you actually 

get up on top. But the point I'm trying 

to make is: Do people just accept the 

highwalls and try to have everybody fend 

for himself? 

It's a team operation. 

and this is encouraged 

an unsafe condition should 

THE WITNESS: No. 

Anytime anybody 

-- a man facing 

report it. 

JUDGE KOUTRAS: Well, what I can't understand is how do you account for the fact 

that two federal inspectors went out there to 

the top of the highwall, and they described 

loose, hazardous materials to me. And you 

went out there and looked at the same 

highwall, and you didn't see any loose, 

hazardous materials. How do you account for 

the people looking at the same highwall at about 

the same time and coming to different conclusions 

as to what they observed? 

THE WITNESS: I can't answer that. The only 

thing that I can answer is my personal feeling 

towards it. It was a safe wall. 

Edward Carlisle, mine superintendent, testified as to 

his background and experience, and he described how the 

highwall is created and mined, how the conditions could 

change, and what steps are taken to identify dangerous 

conditions (Tr. 213-220). He confirmed that he was acquainted 

with the accident victim and that he considered him to be 

an experienced and safe worker (Tr. 220). 

Mr. Carlisle confirmed that he was in the pit in question 

on the morning of the accident, and that he arrived there 

shortly before 7:00 a.m. and drove through the area. He 

stated that he saw nothing that morning which caused him 

any alarm for the safety of the miners working in the pit 

(Tr. 221). He considered the scaling and stripping of the 

highwall that morning to be "satisfactory" (Tr. 221), and 

that "we had done the best that we could with what we had 

to do" (Tr. 222). He also believed that the area where the 

accident occurred was scaled adequately (Tr. 222), and he 

described how the highwall scaling is done (Tr. 223-225). 

969 
Mr. Carlisle confirmed that no MSHA or state inspectors 

were in the pit area on the morning of the accident and that 

he observed no conditions that would lead him to believe 

that there was a violation of the ground control plan. Further, 

he indicated that no one reported any unsafe highwall 

conditions to mine management prior to the accident (Tr. 227), 

and he stated that apart from the accident in question, there 

have been no prior highwall fatalities at the mine in question 

(Tr. 228) • 

On cross-examination, Mr. Carlisle confirmed that the 

pit foreman had noted some problems with the highwall conditions 

in the area where a truck was located at another area (Tr. 235), 

and he testified as to his inspection duties, including the 

area where he would inspect the highwall conditions (Tr. 241-243). 

In response to further questions, he stated as follows 

(Tr. 244-246): 

JUDGE KOUTRAS: I've heard some testimony about 

the highwall location where this M 191 truck 

was working, and apparently someone had made 

some notation in the company -- either preshift 

or on-shift inspection report -- that on that 

very day the highwall condition by the M 191 

was hazardous and that employees were told to 

stay away from it. Okay? 

THE WITNESS: Yeah, it might have been on that 

day. I don't know. 

JUDGE KOUTRAS: Well, let's assume that there 

was a similar notation at the precise location 

Mr. Dulin was working in on September the 2nd. 

What would you then say about the condition 

of the highwall? 

THE WITNESS: Well, we would have got the 

people away from it. 

JUDGE KOUTRAS: Well, what leads an examiner 

to come to a conclusion that the highwall in 

one location is hazardous and that it should 

be dangered off; but yet in another one it is 

not loose or is in good shape, or what? What 

THE WITNESS: If it is solid and you can't see 

any cracks or movement in it, then you can just 

on your own judgment look- and see if it is going 

to fall or not. That's about the only way. 

970 
JUDGE KOUTRAS: Okay. Now, I'm going to 

ask you the same question that I asked one 

of the other witnesses. You inspected the 

highwall that very same morning? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And about 20 minutes after 

the accident one federal inspector appeared 

on the scene, and he looked at it, and he 

inspected it, and he climbed to the top or at 

least within the next day or so, and assuming 

no conditions changed, their testimony is 

that there was loose, hazardous, unconsolidated 

material that hadn't been taken down. 

Now, how can your counsel explain that you, as 

the superintendents saw the same condition and 

said that it was in good shape, it was scaled 

down, and there wasn't any problem? Yet the 

two inspectors looked at the very same condition 

or the same area, and they come to an opposite 

conclusion? 

THE WITNESS: After the rock fell out, on either 

side of it, yes, there was loose material 

then because it made it when it came out. 

JUDGE KOUTRAS: For a hundred and fifty feet? 

THE WITNESS: No, sir. 

KENT 83-66 - Petitioner's testimony and evidence 

MSHA Inspector George Siria confirmed that a fatal 

accident occurred at the mine on March 25, 1982, and that 

upon investigation of that incident he issued a citation on 

March 29, 1982, charging a violation of section 77.404. He 

also confirmed that another inspector terminated the citation 

after abatement of the cited condition (Tr. 6). Mr. Siria 

confirmed that he operated the throttle of the machine in 

question, and that when it was "cold" it would shut off, 

but when "hot," it would not. He stated that he did this 

either the day of the accident, or the next day (Tr. 7). 

He also stated that his inquiry did not establish that the 

cited condition had actually been reported to mine management 

prior to the accident, but that two months earlier the cited 

dozer would not shut off, and that "the practice of shutting 

off was getting out on the track and shutting it off, putting 

it in neutral and shutting it off" (Tr. 8). 

971 
Mr. Siria stated that his investigation indicated that 

the accident victim had previously shut the machine off 

by climbing out on the track, and when he first observed 

the machine, the gear was between second and third, rather 

than the neutral or "lock-out" position. He concluded 

that the victim had pushed the lever from outside opening 

the throttle, and that instead of shutting the machine off, 

the machine went forward throwing the victim off (Tr. 8-9). 

On cross-examination, Mr. Siria stated that he has 

never operated any surface mine heavy equipment, including 

an International TD 25 Dozer, and that he did not examine 

the cited machine in question in any detail. He did examine 

the throttle and linkage, and while he did sit in the cab, 

he did not test the brakes or transmission, nor did he staTt 

the machine up (Tr. 9). He did not use the throttle when 

the machine was running, and he relied on statements given 

to him during his investigation to support his conclusion 

that the throttle did not work. He confirmed that he had 

no personal knowledge as to whether the throttle worked or 

not, nor did he have any idea as to why "hot" and "cold" 

made any difference to shift linkage (Tr. 10). 

Mr. Siria stated that the dozer transmission lock-out 

device was operative, and he stated that he sat in the machine 

cab and he described the operating positions of the transmission 

shift lever (Tr. 11-12). He stated that not all equipment 

defects necessarily render a machine "unsafe" and in violation 

of the cited safety standard, and he defined "safe" as "where 

it would not be likely to harm someone that was operating 

it" (Tr. 13). He believed that the failure or inability to 

throttle down the machine was unsafe because this was the 

o~ly ~ear.s for shutting it off, but he conceded that the 

machine could be stopped from inside the cab by dropping 

the blades to turn it off, and that this alternative method 

would be safe (Tr. 13). 

Mr. Siria conceded that there were no eye witnesses 

to the accident and that MSHA did not know how it occurred. 

He stated that the accident victim was 62 years old, had 

31 years of mining experience, six of which were as a dozer 

operator. He did not investigate the victim's health, and 

he found it surprising that anyone would fail to lock out 

the dozer transmission. He explained further as follows 

(Tr. 16) : 

Q. And you feel that that throttle was 

the cause of his death? 

A. Yes. 

972 
Q. Please explain. 

A. The throttle in addition to him not locking 

it up. If the throttle had worked and he had 

shut the dozer off like it was designed to do, 

then he wouldn't have been out on the -- If 

that was what he was doing, and we presume this 

was what he was doing from the statements of 

other people. And other people have shut it 

off the same way. 

Q. But he also had the alternative of using 

the hydraulic, you admit that? 

A. Yes. 

In response to further questions, Mr. Siria confirmed 

that MSHA's accident investigation indicated that when the 

accident was first discovered the machine motor was still 

running (Tr. 16). He confirmed that during the accident 

investigation it was determined that several other miners 

had operated the dozer in question approximately a month or 

so before the accident and that they had problems shutting 

the engine down from inside the cab of the machine. 

Mr. Siria confirmed that MSHA's accide~t investigation 

report concludes that "the machine was not kept in a safe 

operating condition in that the mechanism for stopping the 

engine from inside the cab was inoperative" (Tr. 23). In 

response to further questions concerning this conclusion, 

he stated as follows (Tr. 23-27): 

JUDGE KOUTRAS: Did anybody ever determine that the mechanism for stopping the 

engine from inside the cab was inoperative? 

THE WITNESS: Yes, your Honor. It --

JUDGE KOUTRAS: I'm asking you a question. 

Did anybody ever determine that the mechanism 

for stopping the engine from inside the cab 

was inoperative? 

THE WITNESS: Who do you mean by anybody? 

JUDGE KOUTRAS: Well, let's say 

course of these investigations. 

that once the machine was found 

did something with the machine. 

during the 

I take it 

that someone 

Right? 

THE WITNESS: The machine was idle and the 

citation was abated about a month and a half 

later. 

973 
JUDGE KOUTRAS: No. During the course of 

the investigation of the fatality did 

someone make a determination that this 

machine that the engine could not be stopped 

from inside the cab? 

THE WITNESS: From the statements. I don't 

know. They were there before I got there. 

I don't know really if anyone checked it out. 

I don't know if another inspector checked 

it out or not to see what the problem was 

there. Personally, I didn't crank it up 

and try to shut it off. 

* * * * 

JUDGE KOUTRAS: Thank you. Here is a bulldozer 

that is found operating with a closed throttle 

and it had just run over somebody and is against 

the embankment. And based on the investigative 

report, two eye witnesses, two persons that 

were sumrr~ned to the scene or went to the scene 

and found the victim got up there and did something to the machine. They shut the engine 

off, or they put it -- I'm talking about during 

the course of the investigation of the fatality, 

did anybody ever tear the machine apart or 

make any determination that the mechanism for 

stopping the engine from inside the cab was, 

in fact, inoperative as of the time of the 

fatality? Did anybody ever make that determination? 

THE WITNESS: Not in my presence. 

JUDGE KOUTRAS: Did anybody ever do it? In 

your presence or out of your presence. 

THE WITNESS: No. 

JUDGE KOUTRAS: Would that be a logical investigative step to take to find out what's wrong with 

the machine. It's for somebody to tear it down 

and find out what was wrong with it. In your 

opinion, would that be a logical thing to do? 

Or would it be illogical? 

THE WITNESS: The logical part of it would be 

to fix it so it would shut the machine off like 

it should be. 

974 
JUDGE KOUTRAS: Befor·e you can fix anything 

you've got to find out what's wrong with it, 

don't you? 

THE WITNESS: Mainly what was wrong with it. 

JUDGE KOUTRAS: Did --

THE WITNESS: When they investigated it the 

linkage was out of adjustment and some dirt and 

stuff would cause it not to let the lever go 

down far enou·:;h, and worn parts in the linkage 

would cause it too. 

JUDGE KOUTRAS: I note from Exhibit P-1 that 

the citation was terminated on May 4th, and 

Inspector Sparks says that the TD 25 International 

dozer appears to be in safe operating condition. 

This is a month or so after the fatality, the 

citation is terminated. Do you know what they 

did to terminate the --

THE WITNESS: I don't 

When this was printed 

duties and I don't go 

I got assigned to it. 

* * * * 

know. But that was my --

I got back to my regular 

back to this anymore unless 

I was on another accident. 

JUDGE KOUTRAS: But no one tore the machine 

down during the time that the accident happened 

and the time that you issued the citation --

THE WITNESS: No. 

JUDGE KOUTRAS: to specifically find out if 

the mechanism did not, in fact, stop it from 

inside. 

THE WITNESS: That's true. 

During a bench colloquy as to why the throttle mechanism 

was not examined, MSHA's counsel stated as follows (Tr. 29-31): 

JUDGE KOUTRAS: Well, I don't how about 

the other particular ones. The TD 25 International, all are designed to be cut off from 

inside the cab? 

975 
MR. STEWART: That's correct. 

JUDGE KOUTRAS: And the reason this one wasn't 

was what? 

MR. STEWART: Our contention is that the throttle 

mechanism did not work properly. That is the 

piece of machine that cuts it off from inside 

the cab. 

JUDGE KOUTRAS: At the time of the investigation 

did someone dismantle that throttle and take a 

look at it and come to the conclusion that you 

just stated? 

MR. STEWART: No. Apparently, Peabody did. 

JUDGE KOUTRAS: He says, no. Nobody ever did. 

THE WITNESS: No. during the investigation, 

no. Not while I was there. 

JUDGE KOUTRAS: Has anybody to this day ever 

come to the conclusion that that's what caused 

this piece of equipment not to be shut off from 

inside the cab? 

MR. STEWART: I don't. I'm not aware of any 

finding that that was what stopped it. 

JUDGE KOUTRAS: Doesn't that seem like a very 

logical step in the investigative process? 

MR. STEWART: Well, your Honor, I believe that 

this situation 

JUDGE KOUTRAS: If someone were to say to you 

that there was an accident caused by defective 

brakes, wouldn't the first step be to pull the 

brakes off and see if they're defective? 

THE WITNESS: This happened. They did. 

JUDGE KOUTRAS: They did what? 

THE WITNESS: They --

JUDGE KOUTRAS: They pulled the throttle off 

and they found that it was defective? 

976 
THE WITNESS: Well, they put a new one 

on and it worked. Evidently that was all 

because the citation was abated by the Service 

Inspector about a month and a half later. That 

was an extra dozer anyhow they didn't use it 

all of the time. 

William Jarvis stated that in 1982 he worked as a tractor 

operator at the mine in question. He testified that approximately 

two months before the accident he operated the TD 25 dozer and 

found that one cutting clutch was inoperative and that one 

of the brakes was bad. At the conclusion of one of his work 

shifts he advised his foreman that he would not operate the 

dozer because of these conditions, and that he had to shut 

the engine off by manipulating the throttle linkage on the 

fuel pump from outside the cab of the machine. At that time, 

he placed the machine in neutral gear but it did not lock 

it out (Tr. 31-33). 

Mr. Jarvis stated that the throttle linkage inside the 

cab of the dozer was designed to shut off the engine, but 

at the time he used it he had to step out on the machine 

crawler in order to press the fuel pump throttle linkage 

down further in order to shut the engine down (Tr. 34). 

He also stated that he had never experienced this problem 

in the past while operating many tractors (Tr. 35). 

On cross-examination, Mr. Jarvis confirmed that he had 

no knowledge as to whether the bulldozer in question was 

in the maintenance shop for repairs after his experience 

with it, and he had no knowledge as to whether any repairs 

were made on the machine. He again confirmed that he shut 

the engine off at the end of his shift by means of the 

throttle linkage from outside the cab of the machine. 

Mr. Jarvis stated that he could not recall reporting 

the throttle linkage problem to his foreman, and he did 

not believe that the machine at that time was unsafe for 

him since he could have used the hydraulic blade to stop 

the engine (Tr. 37). Mr. Jarvis indicated that one had 

to back out of the cab of the machine, and he described the 

locations of the heater and the lock-out lever (Tr. 38). 

He also indicated that it was cool during March, and that 

he would usually stay in the cab of the machine to eat 

lunch because it was warm and that he would have no reason 

to shut down the engine until the end of the shift (Tr. 40). 

In response to further questions, Mr. Jarvis testified 

as follows (Tr. 43-44): 

977 
JUDGE KOUTRAS: Mr. Jarvis, let me ask you 

this. As a bulldozer operator, do you 

consider having to get out of that cab and 

fooling with the linkage on the fuel pump 

an ideal way of shutting off that machine? 

THE WITNESS: No. 

JUDGE KOUTRAS: What is the acceptable way 

of shutting off that machine? 

THE WITNESS: From inside the cab with a 

hand throttle. 

JUDGE KOUTRAS: And have you shut off such 

machines from inside the cab with hand throttles 

in the past? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Ruling out getting out on the 

crawler with the --

THE WITNESS: Yes. 

JUDGE KOUTRAS: How many times have you stopped 

the machine by dropping the front blade and 

raising up the engine and choking it out, 

assuming that's what it does, doesn't it? 

THE WITNESS: Well, if you can get it raised 

up enough you can. 

JUDGE KOUTRAS: How -- What's the proper -- What's the best way? What's the most acceptable 

was as a dozer operator to stop that machine 

by dropping the blade or doing it from the inside? 

THE WITNESS: Shutting it off with the hand 

throttle. 

James Jones testified that he has worked for the respondent 

at the mine in question for approximately 5 1/2 years and 

that for the past 4 years he has operated bulldozers. He 

confirmed that in March 1982, he operated the TD 25 International 

bulldozer which was cited in this case. He stated that he 

operated it during the 4:00 p.m. to midnight shift on March 24, 

1982, just prior to the accident, and that the machine was 

brought to him by a mechanic and that the engine was running. 

918 

' 1 
His regular bulldozer was down for repairs and the TD 25 

in question was a substitute. He operated it for the rest 

of the shift with no problem, but at the end of the shift 

he could not shut the engine off by means of the throttle 

and had to raise the blade, thereby "choking" the engine 

out in order to shut it off. This was done from inside the 

machine and he considered this a safe procedure as long as 

he was in the machine. He confirmed that he had not previously 

operated the dozer in question, and that he always used the 

hand throttle from inside the cab to shut the engine down 

on other bulldozers he had operated (Tr. 44-50). 

On cross-examination, Mr. Jones confirmed that he is 

a UMWA member, and he stated that he did not report the 

fact he could not shut the engine down on the TD 25 dozer 

with the bad throttle to mine management, and he confirmed 

that the victim had operated the same machine several months 

prior to the accident (Tr. 52-54). Mr. Jones confirmed that 

when the machine was brought to him it had recently been out 

of the shop, and except for the throttle, everything was in 

working order. He did not discover the throttle condition 

until the end of the shift, and he did not believe that he was 

in any danger by not being able to shut the engine down by 

means of the throttle (Tr. 55). 

Gary Bowles testified that he has been employed by the 

respondent for 17 1/2 years, and that for the past five years 

he has been a mechanic. He confirmed that he was familiar 

with the TD 25 bulldozer in question, and that he has performed 

maintenance work on it. He stated that the throttle linkage 

from inside the cab of the machine is the primary way to 

shut the engine down and in those instances when the engine 

would not shut down the throttle linkage was the problem 

(Tr • 5 8-6 0 ) • 

Mr. Bowles testified that he was summoned to the scene 

of the accident on March 25, 1982, and was at that time 

serving as a mine safety committeeman. When he arrived at 

the scene of the accident the bulldozer in question had been 

trammed back from the embankment where it had come to rest 

and the engine was idling. He climbed into the cab of the 

machine and tried to shut the engine off with the throttle 

but could not do so. He dropped the blade of the machine 

to the ground and "killed" the engine. He confirmed that 

the throttle linkage on the bulldozer in question was a 

common problem (Tr. 60-63). 

Mr. Bowles confirmed that a complete new throttle 

linkage system was installed on the machine in question 

979 
after the accident, and that while he did not perform the 

work, the day shift mechanic showed him the old linkage 

which had been taken off the machine (Tr. 63). When asked 

whether he believed the machine with a defective throttle 

linkage was a safe piece of equipment, he replied (Tr. 63-64): 

A. It wasn't safe as -- Well, it wasn't 

unsafe as far as operating it, but it was 

a part of that equipment design to, for 

the purpose of shutting it off, it made it 

unsafe in the sense of the word that when 

to sometimes kill that engine you had to 

get out on the tracks to kill it. 

Q. Or lowering the blade. 

A. Or lowering the blade. 

On cross-examination, Mr. Bowles stated that he knew 

the victim, and while he had no personal knowledge that 

he was aware of the throttle linkage problem, he had heard 

that the victim had been told about the problem. Mr. Bowles 

stated that he had no reason to know why the victim may 

have left the machine in gear (Tr. 64-66). 

When asked his opinion as to how the accident may have 

happened, Mr. Bowles stated (Tr. 67-68): 

* * * he was going to get out of his dozer 

and eat dinner. And he got out of the --

When the engine wouldn't shut off with the 

throttle, when he got out of the tractor 

he either locked the engine or transmission 

in gear or didn't take it out. And when 

he pulled on the throttle to throttle the 

engine down and kill it he pulled it the 

wrong way. And being a nan 62 years old 

he couldn't -- he couldn't get out of the 

way fast enough and he couldn't jump back 

fast enough to get off the dozer. 

Respondent's testimony and evidence - KENT 83-66 

Donald Holt, respondent's Eastern Division Safety Director, 

testified that while he was not present during the actual 

accident investigation in this case, he conducted his own 

investigation by interviewing personnel, reviewing MSHA 

and State reports, and listening to tapes of the accident 

investigation interviews (Tr. 72). 

980 
Mr. Holt stated that he examined the TD 25 dozer in 

question, and that he was familiar with mandatory standard 

section 77.404(a}. In his opinion, a machine can have a 

defect and still be considered safe. He indicated that simply 

because a machine mechanical part is out of adjustment, or 

has a "slight defect," this would not render it unsafe 

(Tr. 73). Mr. Holt considered the accident victim t~ be an 

experienced and safe worker, and he had a reputation for being 

conscientious (Tr. 75). 

Mr. Holt stated that the inability to shut down an 

engine by use of a throttle was not a safety hazard or a 

violation of section 77.404(a}, because there was an alternative 

way of checking out the engine and the victim knew this (Tr. 75). 

Mr. Holt offered two "theories" of his own as to how 

the accident could have happened. He indicated that the victim's 

age, lack of agility, and poor eyesight all contributed to 

the accident. Mr. Holt stated that the victim may have been 

caught up in the crawler of the machine when he attempted 

to stop it from creeping after leaving it to go to his pick-up 

truck which was nearby, or he may have accidentally accelerated 

the machine by inadvertently striking the throttle when he 

slipped while getting out of the cab during the lunch break 

(Tr. 76-85). 

Mr. Holt was of the opinion that a defective throttle 

would not render the machine in question unsafe, and he 

conceded that the throttle in question was determined to be 

defective and that it was replaced (Tr. 85). 

On cross-examination, Mr. Holt could not state whether 

or not a properly operating throttle could have prevented 

the accident (Tr. 87). He confirmed that his theories as 

to how the accident occurred were premised on the fact that 

the machine engine was running. When asked whether his 

opinions would have been different if there was a way to shut 

the engine down, Mr. Holt could not answer, but he considered 

that his opinions as to how the accident may have happened 

do not assume that the throttle was bad (Tr. 88). 

Stipulations 

The parties stipulated as to jurisdiction, and they 

agreed that the respondent is a large mine operator, and 

that the proposed civil penalties, if affirmed, will not 

adversely affect the respondent's ability to continue in 

business (Tr. 3). 

981 
Findings and Conclusions 

KENT 83-66 

In this case, the respondent is charged with a violation 

of mandatory safety standard 30 CFR 77.404(a), which 

provides as follows: 

(a) Mobile and stationary machinery 

and equipment shall be maintained in 

safe operating condition and machinery 

or equipment in unsafe condition shall 

be removed from service immediately. 

Petitioner's counsel argued that the testimony and 

evidence adduced here establishes that there was a problem 

with the bulldozer throttle linkage, that two months prior 

to the accident the operators of that equipment noted a 

problem with the throttle linkage, and that a mechanic had 

worked on it several times prior to the accident. Further, 

counsel asserted that the mechanic had been instructed by 

his supervisor to work on the linkage, that the supervisor 

knew there was a problem concerning the failure of the throttle 

linkage to cut off the machine, and that this is established 

by the fact that alternative means were sought to shut the 

machine off. Counsel concludes that the respondent has 

presented no evidence that there was nothing wrong with the 

throttle linkage (Tr. 96-97). 

Respondent's counsel asserted that "this throttle 

linkage is sort of a mysterious piece of equipment because 

sometimes it works and sometimes it doesn't." Counsel suggests 

that there is no indication that the throttle linkage failed 

to work on the day of the accident, and his view of this 

case is that it is one of interpretation of section 77.404(a) 

(Tr. 98) . 

Respondent's counsel argues that for a machine to be in 

violation of section 77.404(a), it must be established that 

it has a defect which is likely to result in an injury. 

Counsel submits that given the fact that the throttle linkage 

in question did not work properly, this condition could not 

reasonably result in an injury. Citing the testimony of 

Mr. Holt and Mr. Siria that not all equipment defects necessarily 

render the equipment unsafe, counsel points to the fact that 

in this case there was an alternative method of shutting off 

the machine from inside the cab by means of the hydraulic 

system, and that the experienced accident victim was more 

than likely aware of this alternative method (Tr. 98). 

Even assuming a violation, counsel asserts that a very low 

penalty should be assessed because of the fact that mine 

management was not advised of any defects, and had no knowledge 

of any defective throttle (Tr. 99). 

982 
As I noted during the course of the hearings, I find it 

rather lamentable that with all of the investigative resources 

available to both the Federal and State agencies and "committees" 

who participated in the post-accident investigation in this 

case, no one actually dismantled the throttle linkage device 

and subjected it to any "shop-tests" to determine whether 

it was in fact defective. The accident report prepared by the 

Kentucky Department of Mines and Minerals, exhibit R-1, 

contains a list of 33 individuals, including five MSHA 

representatives, anda form entitled "Complete Story of 

Accident," contains a narrative by the two state inspectors 

who prepared it, as to how the accident may have occurred. 

The "Conclusion of State Investigating Committee" is stated 

in pertinent part, at page seven of the report as follows: 

It is the conclusion of the investigating team, 

the victim was run over by a TD-25 International 

Dozer that he was operating. 

* * * 

Apparently the victim positioned himself on 

the left crawler and was trying to shut off the 

engine by moving the linkage to the throttle. 

In this attempt, he evidently moved the rod in 

the wrong direction reving up the engine. The 

dozer being in gear started moving, rolling 

the victim from off the track forward between 

the blade and the left crawler. The lower portion 

of his body was crushed by the weight of the 

machine. There had been prior reports of the 

linkage throttle being out of adjustment and the 

engine could not shut off by using the throttle. 

On the day of the accident the engine could not 

be shut off by means of the throttle. The dozer 

was checked the day following the accident and 

it could be shut off but this may have been due 

to the engine being cool. (Emphasis added.) 

The thrust of MSHA's case is that the cause of the accident 

was a defective throttle mechanism, and that by failing to 

take the bulldozer out of service, the violation occurred. 

Yet, no one ever determined that the throttle was in fact 

defective. Since the investigation produced information 

that the throttle may have been out of adjustment, or that 

it reacts differently when the machine is hot or cold, it 

seems to me that someone should have impounded the throttle, 

taken it apart, and determined precisely what the problem was. 

In this case, abatement was achieved by replacing the throttle 
with a new one, and I suppose the old one was either discarded 

or "traded in" on the new one. As an analogy, if someone 

were to tell me that an accident was caused by defective 

brakes, the first question I would ask is whether or not 

the brakes were tested to determine whether they were in 

fact defective. Why the throttle was not subjected to any 

tests by mechanical experts still remains a mystery. 

Notwithstanding my comments above, I conclude and find 

that there is ample evidence in this case to support the 

citation in question. Although there were no eyewitnesses 

to the accident, Mechanic Bowles testified that when he 

arrived at the accident scene, the machine had been trammed 

back from an embankment where it had come to rest after 

running over the victim, and that the engine was still running. 

He stated that he climbed into the cab and was unable to 

shut the engine off by means of the throttle. He then dropped 

th€ blade of the machine, thereby "killing the engine." 

He confirmed that the throttle linkage on such machines was 

a common problem, and that in those instances where the engine 

could not be shut down, the throttle linkage was the problem. 

Although the mechanic who installed the new throttle mechanism 

to achieve abatement showed him the old one which was taken 

off, MSHA did not produce the mechanic to testify at the 

hearing, and no further information was forthcoming as to 

the actual condition of the old one. Mr. Bowles was of the 

opinion that "killing the engine" from outside the machine 

because the throttle linkage would not do the job for which 

it was designed while one was seated inside the cab was unsafe. 

James Jones testified that he operated the bulldozer 

in question on the shift immediately before the accident, 

and he confirmed that the machine had recently been in the 

shop for repairs and was a substitute machine being used 

while the regular one was down for maintenance. He stated 

that the machine was brought to him by a mechanic and that 

the engine was running. He operated it for the rest of the 

shift, and when his work was completed, he could not shut 

the machine down by using the throttle inside the cab and 

had to "kill the engine" by raising the blade, thereby 

"choking the motor." He never experienced similar problems 

with other bulldozers, and was always able to shut the engine 

off by means of the throttle from inside the cab of those 

machines. Mr. Jones confirmed that he did not report the 

throttle condition to anyone at the end of his shift, and 

he did not believe he was in any danger because he could 

not shut the engine down by means of the throttle. 

984 
William Jarvis testified that two months prior to the 

accident, he operated the same bulldozer which was involved 

in the accident, and at the conclusion of one of his work 

shifts he advised his supervisor that he would not operate 

the machine again because of an inoperative cutting clutch, 

and a bad brake. Mr. Jarvis also stated that he could not 

shut the engine off from inside the cab by means of the throttle, 

and that he had to step out of the cab and onto the machine 

crawler to manipulate the fuel pump throttle linkage before 

the engine would shut off. Mr. Jarvis could not recall informing 

his supervisor about the throttle condition, and he too 

confirmed that he had not previously experienced a throttle 

problem with other machines. 

Respondent's sole rebuttal to the violation is the 

testimony of Mr. Holt, and he advanced several "theories" 

as to how the accident may have occurred. However, he candidly 

conceded on cross-examination that his theories "leaves the 

throttle linkage out of it completely" (Tr. 86). The issue 

here is whether or not there was a violation of the cited 

standard, and the cause of the accident is not the critical 

issue. Since there were no eyewitnesses, and since none of 

the witnesses who testified in this proceeding had any first-hand 

knowledge as to the chain of events or circumstances which 

caused the fatality, Mr. Holt's "theories," do not rebut 

the credible testimony by three witnesses which clearly 

establishes that the throttle mechanism on the machine in 

question did not do the job for which it was intended. 

After careful consideration of all of the credible testimony 

and evidence adduced in this case, I conclude and find that 

the petitioner has established the fact of violation by a 

preponderance of the evidence. It seems clear to me that 

the throttle linkage mechanism in question was defective 

and malfunctioning, and that the bulldozer engine could 

not be shut down by. the usual and normal method of activating 

the throttle from inside the operator's cab. As a matter 

of fact, on the very day of the accident, a mechanic could 

not shut the engine down by means of the throttle and had 

to use the "alternative" method of dropping the blade 

to choke the engine. 

While I have taken note of the fact that no one actually 

tested the old throttle mechanism to determine what actually 

caused it to malfunction, on the record here presented 

there is more than ample evidence to support the conclusion 

that the throttle was defective. Aside from the mechanic who 

arrived at the scene shortly after the accident, operator 

James Jones testified that he operated the very same bulldozer 

on the shift immediately preceding the accident and could not 

985 
shut the engine down by means of the throttle. Further, 

since the u~e of the "alternative" method of choking the 

engine appears to be a known and acceptable practice, it 

logically follows that the respondent had prior knowledge 

of a problem with the throttle mechanism in question. 

If this were not the case, there would be no need to use the 

alternative method. 

I further conclude and find that a def ectiave throttle 

which requires an operator to stand on the machine crawler 

to manipulate the throttle linkage by hand places him in 

an unsafe position, particularly when the engine is running 

and he is attempting to shut the engine down from this position. 

Any sudden forward or backward movement of the machine caused 

by over-manipulation of the linkage would probably cause the 

man to lose his balance. On the facts of this case, while 

it may not be absolutely clear as to what may have caused 

the accident, it does seem clear the victim was run over by 

the machine. Had the throttle been fixed when the operators 

were experiencing prior probleLls in shutting down the engine, 

any temptation by the operators to stand on the crawler 

to manipulate the throttle by hand would have been removed. 

Thus, I conclude and find that the throttle in question was 

not maintained in a safe operating condition, and that this 

in fact resulted in the bulldozer in question being operated 

in an unsafe condition. Since it was not taken out of service 

as required by the cited regulation, the violation is established. 

The citation IS AFFIRMED. 

Gravity 

I conclude and find that the violation here was very 

serious. Failure of the throttle mechanism to do the job 

that it was supposed to do, namely, facilitate the shutting 

down of the machine engine from inside the operator's cab 

without resort to outside manipulation or the use of the 

"alternative" blade-dropping procedure, contributed to the 

severity of the violation. As indicated above, while there 

is no direct evidence that the victim was standing on the 

crawler and was thrown off when he attempted to manipulate 

the throttle mechanism, this conclusion is more reasonable 

than any of the theories offered by the respondent. 

Inspector Siria marked the "S&S" block on the face of 

the citation which he issued. While his testimony in support 

of this finding may be rather skimpy, on the facts of this 

case the defective throttle mechanism in question did prevent 

the machine from being shut down from inside the operator's 

compartment. Given this fact, I conclude that it was reasonably 

likely that this condition contributed to, or was the proximate 

cause of the accident in question. Accordingly, the inspector's 

"S&S" finding IS AFFIRi'vlED. 

986 
Negligence 

I conclude and find that the violation here resulted 

from the failure by the respondent to exercise diligence in 

seeing to it that the throttle mechanism was operating 

properly. Since the testimony in this case indicates prior 

problems with the throttle in question, and that other operators 

had to use an alternative means of shutting down the engine 

by either standing on the crawler or dropping the blade of 

the machine, it seems clear to me that the respondent knew 

or should have known about the violative condition. I 

conclude that the violation resulted from a high degree of 

negligence on the respondent's part. 

Good Faith Compliance 

The cited machine was taken out of service and the 

repairs were made. Although the citation was actually 

terminated and abated on May 4, 1982, by another MSHA inspector, 

there is no suggestion that any delay was attributable 

to respondent's lack of good faith in achieving compliance 

once the violation issued, and that is my finding on this issue. 

Findings and Conclusions 

CENT 83-86 - Fact of violations 

Citation No. 2075266, charges the respondent with a 

violation of 30 CFR 77.1000, for failure to follow its ground 

control plan by allegedly failing to correct certain hazardous 

highwall conditions before men were allowed to work in the 

cited area. Section 77.1000 provides as follows: 

Each operator shall establish and 

follow a ground control plan for 

the safe control of all highwalls, 

pits and spoil banks to be developed 

after June 30, 1971, which shall be 

consistent with prudent engineering 

design and will insure safe working 

conditions. The mining methods employed by the operator shall be selected 

to insure highwall and spoil bank 

stability. 

Inspector Siria confirmed that the particular ground 

control plan provision purportedly violated by the respondent 

was the one found on page three, under 77.1004(b), (exhibit 

P-3). I take note of the fact that the ground control plan 

provisions are identical to MSHA's mandatory standards, and 

the particular one relied on by Inspector Siria states as 

follows: 
77.1004(b). Overhanging highwalls 

and banks shall be taken down and other 

unsafe ground conditions shall be 

corrected promptly, or the area shall 

be posted. 

I take note of the fact that the respondent's ground 

control plan provision simply parrots the language of the 

identical mandatory section 77.1004(b). Although the inspector 

stated that he reviewed the plan before deciding which portion 

to cite, he conceded that he could have cited a violation of 

30 CFR 77.1001, but decided to cite section 77.1000 because 

of the failure to follow the plan provision. 

Citation No. 2075267, charges the respondent with a 

violation of 30 CFR 77.1005, for an asserted failure to remove 

loose hazardous material from the face of the highwall 

in question for a distance of approximately 150 feet. Section 

77.1005, provides as follows: 

(a) Hazardous areas shall be scaled 

before any other work is performed in 

the hazardous area. When scaling of 

highwalls is necessary to correct conditions that are hazardous to persons 

in the area, a safe means shall be provided for performing such work. 

(b) Whenever it becomes necessary 

for safety to remove hazardous material 

from highwalls by hand, the hazardous 

material shall be approached from a 

safe direction and the material removed 

from a safe location. 

In support of the citations, petitioner's counsel argued 

that even though Inspector Siria may not have known about 

the condition of the highwall prior to the accident, the 

testimony of the two miners in this case establishes that 

the highwall condition "did not look good." Conceding 

that one of the miners was of the opinion that the highwall 

had not been scaled, while the other one stated that it appeared 

that it had been scaled "but not very good," counsel 

nonetheless asserted that a violation may still be established 

on the basis of the second miner's testimony alone. Counsel 

suggests that, at best, the differences in the testimony 

only goes to the degree of the violation, and may not serve 

to eliminate the presence of the violation (Tr. 249). Counsel 

also maintains that the respondent has presented little rebuttal 

088 
or contradictory testimony concerning the condition of the 

highwall as described by the petitioner's witnesses. Counsel 

asserts that respondent's management witnesses testified as 

to general mine problems, and what the highwall looked like 

on the shift prior to the accident, but had no knowledge as 

to what it looked like at the time the accident occurred, nor 

did they rebut the evidence presented by the petitioner 

as to how the highwall looked before and after the accident 

(Tr. 250). Counsel maintains that MSHA has established 

both violations. 

Respondent's position with respect to the citations is 

that the highwall in question was in fact inspected prior 

to the fatal accident by the drill foreman on the prior shift 

and by the mine superintendent, and that they found the highwall 

to be free of any hazardous conditions, including any readily 

observable or detectable hazards. Further, respondent's 

position is that the highwall was properly scaled and stripped, 

and that prior to the accident in question it was safe and 

comported with all of the requirements found in Part 77 of 

MSHA's safety standards dealing with highwalls (Tr. 163). 

Counsel pointed out that the pit foreman who actually 

supervised the work of the accident victim died of a 

heart attack (Tr. 162). However, based on the testimony 

of its experienced witnesses, respondent is of the view that 

the highwall conditions did not give rise to the issuance of 

any violations in this case. 

In further support of its case, respondent's counsel 

argued that the crux of the matter concerns the condition 

of the cited highwall prior to the accident, and that any 

knowledge of this condition on the part of Inspectors Siria 

and Utley came after the incident during their investigation. 

Further, counsel asserted that, as testified to by the 

witnesses, events such as weather and nearby blasting operations 

would result in changes to the highwall. Counsel also argues 

that the testimony of Inspectors Siria and Utley, and Mr. Penrod, 

that no scaling was done, was contradicted by the testimony 

of Mr. Montgomery, as well as Mr. Carlisle, Mr. Barrett, and 

Mr. Teague. Since Mr. Siria and Mr. Utley had limited or 

no practical surface mining experience, as compared with the 

many years of daily practical surface pit experience by the 

respondent's witnesses, counsel suggests that their testimony 

outweighs that presented by the petitioner in support of 

the violations. Finally, counsel cites a prior decision of 

mine in which I concluded that a violation had not occurred 

in circumstances similar to the instant case, MSHA v. S.A.M. 

Coal Co., Inc., Docket No. SE 31-21, June 3, 1982, 4 FMSHRC 

1051 (June 1982). 

989 
In this case, it is clear that the citations were issued 

after a fatality occurred at the respondent's mine. The 

citations issued after MSHA had completed an investigation 

into what may have caused the rock fall. Typically, fatal 

accident investigations invariably result in the issuance 

of citations and recriminations which all too often are after-thefact attempts by the parties to exonerate each other from 

responsibility. Invariably, MSHA takes the view that since 

someone was killed, the respondent mine operator was obviously 

at fault and should be held accountable. The respondent mine 

operator reacts by taking a defensive posture that "accidents 

happen," and that simply because an accident happens, it 

should not be assumed that the operator has violated the law 

and should pay the price. Once the case comes on for hearing· 

before the Judge, the parties attempt to litigate the matter 

on the basis of speculative theories and hypothesis. 

Citation No. 2075266 was issued after the accident 

occurred. Based on certain information obtained during the 

course of the investigation, Inspector Siria issued the citation 

and charged the respondent with failing to follow its ground 

control plan. The particular plan provision relied on by 

Inspector Siria was a provision that requires the respondent 

to ."take down overhanging highwalls and banks" and to otherwise insure that "unsafe ground conditions are corrected." 

I am convinced that had the rock which killed the miner in 

this case not· fallen, there would have been no citation. 

Once the rock fell and struck the miner, MSHA felt compelled 

to hold someone accountable. 

The cited ground control plan requires that overhanging 

highwalls and banks be taken down. Here, the citation was 

issued by an inspector with little or no experience in the 

inspection of surface mines or highwalls. As a matter of 

fact, when he issued the citation, he made no negligence 

findings, and did not mark the appropriate block on the face 

of the citation. At the hearing, after having an opportunity 

to ponder on it, he conceded that he didn't know why he failed 

to make any negligence findings, and he conceded that he 

made a mistake. Recognizing the fact that an inspector's job 

is difficult enough without a Judge second-guessing him, 

here the citation issued after an investigation. I would 

think that MSHA would assign an inspector who is experienced 

in surf ace mining inspections to conduct the investigation 

and issue any citations which may be warranted. I am not 

particularly impressed by after-the-fact excuses, and it 

places the Judge in the untenable position of making credibility 

findings based on speculative testimony. 

990 
On the facts and circumstances surrounding this particular 

citation, the inspector conceded that he had never inspected 

the highwall prior to the rock fall in question, and he 

admitted that such a fall can change the appearance of the 

highwall. Even though the inspector charged that men were 

allowed to work in the pit area in question before any 

hazardous conditions had been corrected, he admitted that 

he had no evidence or knowledge that any miners were assigned 

any such duties by mine management personnel who knew that 

any hazardous conditions existed. The inspector's sole basis 

for this allegation was the fact that a rock fell and struck 

a miner. 

There is no testimony by the inspector who issued the 

citation that any overhanging highwalls or banks ever existed 

prior to the accident. As a matter of fact, Supervisory 

MSHA Inspector Utley, who accompanied Inspector Siria during 

his post-accident investigation, testified that he saw no 

indication of any overhanging highwall materials. MSHA's 

counsel conceded during the course of the hearing that if 

the crack which appeared suddenly and without warning caused 

the rock fall which resulted in the fatality, mine management 

would have no way of knowing in advance about the crack. 

Counsel also candidly conceded that even if the highwall had 

been properly scaled, there was no way to assure that a sudden 

crack would not unexpectedly appeared. 

The testimony by the miners who were in the pit at the 

time of the accident, including an eyewitness and member of 

the safety committee, establishes that once the crack became 

visible and known, those miners working under it, including 

the victim, were not necessarily concerned because "it was 

not working" and they observed no visible changes in the highwall conditions. In short, the testimony of miners who worked 

in the pit, and d·irectly under the area where the rock fell, 

indicates that they were not particularly concerned with the 

conditions of the highwall and they had no reason to believe 

that they were in any danger. Of course, once the rock fell 

and struck the victim, and once MSHA embarked on an official 

inquiry, it is a natural tendency for the very same people 

who had no concern for the conditions prior to the incident 

in question, and who failed to give any warning to the victim 

in advance or withdrawing from the zone of danger, to now 

inf er or imply that the highwall was not scaled or that the 

conditions which prompted the rock fall were obviously 

ignored. 

After careful consideration of all of the evidence and 

testimony in this case, I conclude and find that MSHA has 

991 
failed to establish by any credible evidence that the 

respondent failed to follow its ground control plan by 

failing to correct any hazardous highwall conditions, 

particularly the taking down of overhanging materials, before 

men were allowed to work in the pit. Accordingly, Citation No. 

2075266 IS VACATED. , 

Citation No. 2075267 was issued approximately five minutes 

after the previous one, and it charges the respondent with 

failing to remove "loose hazardous material" from the face 

of the highwall for a distance of approximately 150 feet. 

The cited standard, section 77.1005, requires in pertinent 

part that "hazardous areas'·shall~be scal~d before any other 

work is performed in the hazardous area." This language is 

similar to the language used by Inspector Siria in the previous 

citation where he charged the respondent with failing to 

correct hazardous highwall conditions before men were allowed 

to work in the area. 

Mr. Siria testified that the highwall "appeared to be 

loose," that the top had not been scaled, and that overhangs 

were present. This testimony is contrary to that given 

by Mr. Siria in support of the previous citation he issued. 

There, he said absolutely nothing about any overhanging 

conditions, and Inspector Utley, who was with him, testified 

that he saw no indications of any overhanging materials. 

Further, MSHA's counsel conceded that there are no allegations 

that overhangs were present on the highwall, or that the 

top of the highwall was not cleaned off or scaled (Tr. 158,159). 

When asked whether he was contending that the face of 

the highwall had not been cleaned for a distance of 150 feet, 

Inspector Utley replied that "I wouldn't say that it had not 

been cleaned. It was just a little rough." Although he 

indicated that he believed that someone had "got a little 

behind or in a hurry" and that "they failed to drag the top 

of the highwall the way they had been doing in the past," 

Inspector Utley admitted that he did not interview any of 

the shovel or stripper shovel operators (Tr. 153). Mr. Siria 

interviewed none of the shovel operators, and the petitioner 

did not summon them for testimony. It occurs to me that if 

there is a question as to whether a highwall had ever been 

scaled or cleaned at some time prior to an accident, one 

critical item of evidence would be some testimony from shovel 

or scraper operators who do that type of work. I find it 

lamentable that the inspectors here did not contact the 

shovel operators to determine whether they did in fact scrape 

or clean the highwalls. A possible answer as to why this was 

not done may lie in Mr. Siria's statement that "it was a proven 

fact that it was bad because it had killed a person, and so 

I thought that would be proof enough really" (Tr. 13). 

992 
When asked whether he had spoken to anyone who may 

have observed the highwall prior to the accident, Mr. Siria 

identified Mr. Penrod and Mr. Montgomery. Both of these 

individuals were "hole loaders," and their testimony 

concerning the highwall consists of their observations 

immediately prior to the rock fall. 

Mr. Penrod testified that the highwall area ahead 

of where he was working had been scaled, dragged, and cleaned, 

but that his immediate work area was not. While he could 

not state the distance that the highwall had not been scraped, 

he did indicate that in his immediate work area, the 

distance was approximately 150 to 200 feet. Although he 

did indicate that the respondent had failed in the past to 

scrape the highwall, he also indicated that the respondent 

usually scraped and cleaned the wall and the top. He also 

confirmed that the shovel operator scales the highwall to 

take down loose material. However, he could not state 

whether he did or did not observe the shovel operator scale 

the wall. His observations of the highwall conditions were 

only what he saw after the accident, and he conceded that 

highwall conditions do change. 

Mr. Montgomery's testimony is that when he observed 

the highwalr during his shift it did not appear that it had 

been scaled "really good," that it looked "no worse" than 

other pit areas, and that he observed no loose hanging material. 

He also indicated that the area where the rock fell "hadn't 

been done as cleanly as it had in some other areas of the 

wall." 

Respondent's defense is based on the testimony of a 

drill foreman who said that he observed the highwall the day after 

the accident and found it to be in good condition and properly 

scaled, a drill foreman who stated that he inspected the 

highwall on the day of the accident and observed no unsafe 

conditions or loose, unconsolidated materials on the highwall, 

and the mine superintendent who testified that he drove through 

the pit area on the morning of the accident and found nothing 

to alarm him because in his opinion the highwall area where 

the accident occurred had been adequately scaled. 

Respondent's witnesses, for the most part, testified as 

to how scaling and stripping of the highwall is normally done. 

MSHA's eye witnesses who were in the vicinity of the rock fall 

and who saw the accident, testified that while they observed 

a crack which apparently appeared unexpectedly after the work 

shift had begun, they did not believe it was hazardous 

because they detected no movement, and opted not to withdraw 

from the area, not to say anything to their foremen, and not to 

caution the victim that he should be alert to any possible 

danger. Of course, once the rock came loose and began rolling 

towards the victim, it was too late, and he could not hear the 

warnings from his fellow miners. 

993 
On the basis of all of the testimony and evidence adduced 

in this case, and after viewing all of the witnesses during 

the course of the hearing, I am convinced that the accident 

resulted from an unforeseeable and unexpected event, namely 

the sudden appearance of a crack in the highwall which 

caused a large rock to roll down and strike the victim. I 

am further convinced that there was nothing anyone could do 

to prevent the accident. Even if it could be established 

without any doubt that scaling and stripping had taken place 

immediately before the crack appeared, the accident would 

probably have still happened. 

I take note of the fact that the respondent's ground 

control provision, 77.1005, only provides for corrective action 

"where hazardous highwall conditions exist that would endanger 

persons in the area. 11 The comparable MSHA mandatory standard 

section 77~1005, requires scaling in "hazardous areas,'' and 

the regulatory language requires that this scaling work be 

done in a safe manner when scaling of highwalls is necessary 

to correct conditions that are hazardous to persons in the 

area. As I have often observed, such regulatory language 

leaves much to the imagination. Rather than simply requiring 

the removal of loose, unconsolidated materials from highwalls, 

the language contains a condition precedent that requires 

that someone make a judgment call that a hazard is initially 

present. Typically, that judgment is made after the highwall 

collapses and someone is hurt. This case is a classic example 

of this. Three miners, including the victim, worked in an 

area where a crack appeared, but no one was concerned until 

a rock began to roll down the highwall towards the victim. 

None of the miners saw fit to alert the pit foreman about 

the crack, and they opted not to withdraw from the work area. 

For its part, mine management was satisfied that a prior 

cursory inspection of the highwall detected no unusual 

conditions. Once the accident occurred, MSHA arrives on the 

scene, and after an investigation by two nonsurface mine 

inspectors who failed to establish first-hand whether any 

scaling work had actually been done, citations were issued 

based on observations which lend themselves to differences 

of opinion and sheer conjecture as to whether or not the 

required scaling had taken place. 

It is not unusual in cases of this kind where there 

had been a fatality, for the parties to speculate as to what 

may have happened. Howeve~, in the context of a specific 

citation charging a violation of a specific mandatory standard, 

I am compelled to decide the case on the basis of credible 

evidence. On the facts of this case, the critical question 

is whether or not the highwall had been scaled and loose 

994 
material taken down for a distance of 150 feet as charged in 

the citation. While I am not convinced that MSHA has established 

through any credible testimony that the immediate highwall area 

where the crack appeared and the rock fell were not properly 

scaled, neither: has the respondent established that it was. 

MSHA's case as to what the highwall looked like after the 

accident occurred supports a finding that loose, unconsolidated 

materials were present along the highwall perimeters adjacent 

to the rock fall area. 

I conclude and find that the testimony of Mr. Penrod, 

Mr. Montgomery, and Inspectors Siria and Utley, establish 

that the highwall areas adjacent to, and in the proximity 

of the actual rock fall area were not scaled so as to remove 

all loose and unconsolidated materials. I am not convinced 

that these adjacent areas were changed in any marked degree 

by the rock which fell, nor am I convinced that the respondent 

has established that it inspected the highwall and that actually 

scaling of the entire cited area had taken place. Accordingly, 

while I conclude and find that MSHA has not established that 

the immediate area above the actual rock fall had not been 

scaled, I do find that it has presented enough credible testimony 

to support a finding that some of the adjacent areas did 

contain loose hazardous materials which had not been scaled 

or stripped. Accordingly, to that extent the citation IS 

AFFIRMED. 

Gravity 

I conclude and find that violation no. 2075267 was 

serious. Failure to adequately scale the loose hazardous 

materials which were present in the areas adjacent to the rock 

fall area presented a hazard to miners who had to travel 

and work under the highwall area in question. 

Inspector Siria marked the "S&S" block on the face 

of the citation which he issued. The failure by the respondent 

to adequately scale the highwall area in question would 

reasonably likely result in injuries in the event that the 

unscaled materials fell. Accordingly, the inspector's finding 

IS AFFIRMED. 

Negligence 

I conclude and find that the violation here resulted 

from the failure by the respondent to exercise reasonable 

care to insure that the cited highwall area was adequately 

scaled. Accordingly, I conclude that the violation resulted 

from ordinary negligence. 

995 
I take note of the fact that in exhibit R-2, MSHA's 

assessment officer notes that in a telephone interview with 

Inspector Utley on November 23, 1982, Mr. Utley stated that 

mine management could not have known about the crack which 

appeared in the highwall, and that management "makes a 

diligent effort to promote a good safety program." 

The issue here is whether or not the areas adjacent 

to the rock fall and crack area were adequately scaled. Under 

the circumstances, the fact that the sudden appearance of 

the crack could not have been predicted, does not absolve 

the respondent from its responsibility to insure that the 

cited areas were otherwise adequately scaled of loose hazardous 

materials. 

Good Faith Compliance 

The record reflects that the loose materials in question 

were timely removed from the highwall area in queqtion a day 

after the citation issued, and three days earlier than the 

time fixed by the inspector. Accordingly, I conclude that the 

respondent exhibited more than adequate good faith abatement 

efforts in achieving compliance. 

Size of Business and Effect of Civil Penalties on the Respondent's 

to Remain in Business. 

The parties have stipulated that the respondent is a 

large mine operator and that any penalty assessments for the 

violations in question will not adversely affect its ability 

to remain in business. I adopt these stipulations as my 

findings and conclusions in both of these docketed cases. 

History of Prior Violations 

Respondent's history of prior violations for the mine 

in question is reflected in MSHA's computer print-out, exhibit 

P-4. This information reflects that for the period March 29, 

1980 through March 28, 1982, the respondent paid civil penalty 

assessments for a total of 45.violations. None of these 

were for prior violations of section 77.1000, but two were 

for prior violations of section 77.404(a). However, no 

further information was forthcoming as to what these two were 

all about. 

For an operation of its size and scope, I cannot conclude 

that respondent's history of prior violations is such as 

to warrant any additional increases in the civil penalties 

assessed by me in th~se cases. 

996 
Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and consideriang the statutory criteria found in section 

llO(i) of the Act, I conclude that the following civil 

penalties are reasonable and appropriate for the two violations 

which have been affirmed: 

KENT 83-66 

Citation No. Date 30 CFR Section Assessment 

1035414 3/29/83 77.404(a) $2,500 

KENT 83-86 

Citation No. Date 30 CFR Section Assessment 

2075267 9/9/83 77.1005 $ 850 

ORDER 

Respondent IS ORDERED to pay civil penalties in the 

amounts shown above within thirty (30) days of the date of 

these decisions, and upon receipt of payment by MSHA, these 

proceedings are dismissed. 

Distribution: 

Darryl A. Stewart, Esq., U.S. Department of Labor, Office of 

the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Michael O. McKown, Esq., Peabody Coal Co., P.O. Box 235, 

St. Louis, MO 62166 (Certified Mail) 

/slk 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 201984 

FORRIE W. EVERETT, DISCRIMINATION PROCEEDING 

Complainant 

v. 

INDUSTRIAL GARNET EXTRACTIVES, 

Respondent 

Docket No. YORK 83-7-DM 

MSHA Case No. MD 83-59 

DECISION 

Appearances: 

Before: 

Forrie W. Everett, South Paris, Maine, pro se; 

Carol A. Guckert, Esq., Portland, Maine-;-I"orRespondent. 

Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discharged on July 1, 1983, 

from the position he had with Respondent because of activity 

protected under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. Respondent denied that Complainant's 

discharge was related to protected activity. Interrogatories 

were served on Complainant by Respondent which Complainant failed 

to answer. Respondent filed a motion to Dismiss on March 12, 

1984, because of this failure. I reserved my ruling on the 

motion. Pursuant to notice the case was heard in Auburn, Maine, 

on March 22, 1984. The case was consolidated for hearing with 

the case of Lawrence Everett v. Industrial Garnet Extractives, 

Docket No. YORK 83-6-DM, but since the cases involve separate 

alleged discriminatory discharges, they will be decided separately. Ferrie Everett testified on his own behalf; Scott 

Andrews, Bruce Sturdevant, Scott Hartness and Richard Kusheba 

testified on behalf of Respondent. The parties1.were given the 

opportunity to file posthearing briefs, but neither party has 

done so. Based on the entire record, and considering the contentions of the parties, I make the following decision. 

FINDINGS OF FACT 

Complainant was hired as a maintenance worker by Respondent 

in April, 1982. Respondent began operating the subject plant in 

1979, taking over an existing facility built in about 1925. Ore 

998 
is delivered from a mine site to the plant where it is crushed 

and separated. It is then dryed and screened into different 

sizes. 

Prior to his employment with Respondent, Complainant had 

been employed in a construction company, operating heavy equipment, driving and working with heavy steel. He did maintenance 

on the machinery, on steel frames and on trucks. His job at 

Respondent required him to do maintenance on various kinds of 

machinery, such as rock dryers, elevators, small motors, 

vehicles and heavy equipment. It also included welding. When 

he was hired he earned about $4.25 per hour and worked from 

40 to 55 hours per week. 

When he was first hired, he was regarded as a good worker 

and received early pay raises. Beginning in about January, 1983, 

the foremen began complaining that he did not complete assigned 

work. Machine operators complained that the repair work he did 

on their machines was not done properly. In March, 1983 and in 

June, 1983, two different foremen recommended that Complainant 

be discharged. 

There was considerable confusion at Respondent's plant as to 

supervisory authority. Complainant was hired by Scott Hartness, 

Respondent's Vice President in charge of production. On many 

occasions, perhaps "most of the time" (Tr. 11), Hartness assigned 

jobs to Complainant and discussed maintenance problems with him. 

Scott Andrews was second shift foreman beginning in January or 

March, 1983, and became "foreman for new construction" in June 

1983. While he was second shift foreman, Complainant, who worked 

days, was not under his supervision "unless his shift overlapped" 

(Tr. 71). When Andrews became foreman for new construction he 

did not have any employees assigned to him directly, but had to 

get employees working under other foremen after clearing it with 

them. Bruce Sturdevant was plant foreman beginning in August, 

1982. He was in charge of the machine operators, bagging operators and, "at times, the maintenance staff" (Tr. 81). In about 

May, 1983, Wally Hinch was maintenance foreman in charge of all 

maintenance personnel. He quit after about 1 month in this 

position. Complainant expressed uncertainty about the identity 

of his immediate supervisors during his employment, and the 

record. before me makes his uncertainty understandable. 

On about June 21, 1983, Complainant's brother Lawrence 

Everett, an electrician working at Respondent's plant, was 

discharged. Lawrence Everett filed a discrimination complaint 

with the Federal Mine Safety and Health Administration and 

Complainant talked to the MSHA investigator about his brother's 

complaint. This interview, however, occurred after Complainant 

himself had been discharged. 

999 
Complainant sustained three work related injuries at 

Respondent's plant. In September, 1982, he sustained an eye 

injury when the band attached to his safety glasses was caught 

on a piece of steel and the glasses cut his eye. He lost 2 or 

3 days from work. In early, 1983, while grinding, a piece of 

steel entered his eye beneath the safety glasses. He did not 

lose time from work. In June 1983, he injured his thumb when 

he was working on a machine on top of an elevator and the 

operator started the machine. Complainant did not lose time 

from work. 

After the second eye injury, Complainant complained to 

Scott Hartness about the inadequate glasses. Hartness replied 

that they were cheap. 

In April or May, 1983, Complainant was directed by Hartness 

and Sturdevant to perform welding on a fuel tank which had fuel 

spilled on the outside of the tank. A fire occurred, and 

Complainant complained to Sturdevant. 

On about June 29, 1983, Complainant was directed by Scott 

Andrews to weld a steel leg while standing in the bucket of a 

front-end loader 12 feet in the air. He refused to do it, 

because he believed it was unsafe. However, he did begin to get 

the equipment ready to weld the legs on using a contractor's 

crane to lift the tank. At about 4:15 p.m., Complainant and 

another employee began to weld the first leg on the tank. The 

proposed legs were different sizes, however, and before they 

completed welding the first leg, it was the end of the shift and 

they went home. On June 30, 1983, Complainant began working about 

7:00 a.m. He was using a rented portable welder. The job proved 

complicated and was not finished when Scott Andrews approached 

Complainant about 4:30 p.m. He told Complainant that the rented 

welder would have to be returned by 5:00 o'clock and suggested 

they use the company's small AC welder. Both Complainant and 

the crane operator told him the job could not be done with the 

small welder. Andrews took the rented welder, the tank was put 

back down, the one leg was cut off, and Complainant went home. 

Andrews told Complainant not to cut off the leg, but Complainant 

did so, because he thought it would be bent otherwise. There 

was a heated discussion between Complainant and Andrews before 

Complainant went home. Andrews was upset and when he returned 

to the office he told Sturdevant what happened, and that he was 

going to discharge Complainant. Hartness was home sick at the 

time. 

When Andrews came to work the following day, he "pulled 

Ferrie Everett's time card" and told Everett that he had fired 

him. He states that he fired Complainant·for loafing on the job 

and not following his supervisor's instructions. 

1000 
On about June 21, 1983, Complainant signed a statement 

prepared by his brother concerning alleged unsafe practices at 

the subject plant. Andrews was not aware of this statement at 

the time Complainant was discharged. 

After his discharge, Complainant was off work about 1 week 

during which he received unemployment compensation. Since then, 

he has worked for the J. P. Cullinan Oil Company and has been 

earning about the same wages as he made while with Respondent. 

He does not seek reinstatement. 

ISSUES 

1. Was Complainant's discharge motivated in any part by 

activities protected under the Mine Safety Act? 

2. If so, did Respondent establish that it would have 

discharged him in any event for unprotected activities alone? 

3. If Complainant's discharge was in violation of the Act, 

what remedies is he entitled to?. 

CONCLUSIONS OF LAW 

To establish a prima f acie case of discrimination under the 

Act, Complainant must show that he was engaged in activity protected by the Act, and that his discharge was motivated in any 

part by the protected activity. Secretary/Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980), rev'd on other grounds 

sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 

(3rd Cir. 1981); Secretary/Robinette v. United Castle Coal Co., 

3 FMSHRC 803 (1981); Secretary/Bush v. Union Carbide Corporation, 

5 FMSHRC 993 (1983) • 

If the Complainant establishes a prima facie case, the burden 

is on the employer to show that the discharge was also motivated 

by unprotected activity and that he would have discharged 

Complainant for the unprotected activity alone. Pasula, supra. 

PROTECTED ACTIVITY 

Complainant's discussion with the MSHA investigator concerning his brother's discrimination case would have been protected, 

but it took place after Complainant was discharged. His signing 

the ~ff idavit prepared by his brother concerning alleged safety 

violations was protected activity. There is no evidence that 

Scott Andrews who discharged Complainant was aware of it. Therefore, I conclude that his discharge was not motivated in any part 

because of this activity. 

1001 
Complainant's complaint to Scott Hartness about the inadequate safety glasses, his complaint to Sturdevant about being 

required to weld a tank with fuel oil spilled on it, and his 

refusal to perform a welding task while standing in the bucket 

of a raised front-end loader were all protected activities. 

UNPROTECTED ACTIVITY 

Respondent has alleged that Complainant shirked his duties; 

that he did poor quality work, much of which had to be done 

over; that he avoided work and worked slowly; that he refused 

to follow directions. If these acts occurred, none of them can 

be treated as protected activities under the Act. 

COMPLAINANT'S DISCHARGE 

Andrews stated that he discharged Complainant "mostly for 

loafing on the job and not following superviscir's instructions" 

(Tr. 63). He also stated that after his heated discussion with 

Complainant on June 30, he (Andrews) "was pretty ~iled up," and 

that he "didn't think there was any reason for any foreman having 

to put up with the stuff that I'd just went through ... " 

(Tr. 7 5) . 

There is no evidence that Complainant's complaint to 

Hartness about inadequate safety glasses, his complaint to 

Sturdevant about welding on an oily fuel tank, or his signing 

the affidavit on his brother's behalf were motivating factors 

in the discharge. However, Complainant's refusal to weld from 

the bucket of the loader occurred during the task which preceded 

the discharge. I conclude that it was part of the motivation 

for the discharge. There were obviously other motivating factors, 

however. Complainant had a long history of doing work which was 

deemed unsatisfactory by management. He resented authority, and 

refused to follow orders. He berated Andrews when the portable 

welder was taken from him. I conclude on the basis of all the 

evidence that he would have been discharged for unprotected 

activity alone, namely for refusing to follow orders and for 

berating his supervisor. Therefore, no violation of section 105(c) 

of the Act has been established. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, the complaint and this proceeding are DISMISSED for failure 

to establish a violation of section 105(c) of the Act. 

(~ kt/vvkt/' 

James A. Broderick 

. Administrative Law Judge 

1002 
Distribution: 

Mr. Ferrie w. Everett, RFD #2, South Paris, ME 04281 

(Certified Mail) 

Carol A. Guckert, Esq., 477 Congress Street, Portland, ME 04101 

(Certified Mail) 

/fb 

1003 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMIS$10N 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 2 31984 

UNITED STATES FUEL COMPANY, 

Contestant 

CONTEST PROCEEDING 

Docket No. WEST 84-40-R 

Citation No~ 2072262; 1/10/84 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

King No. 4 Mine 

Appearances: 

Before: 

DECISION 

Timothy M. Biddle, Esq., and Rochelle M. 

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

for Contestant; 

Frederick w. Moncrief, Esq., Office of the 

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

Virginia, for Respondent. 

Judge Fauver 

Pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq., U.S. Fuel contests 

a citation issued by the Secretary on--January 10, 1984. The 

citation alleges that U.S. Fuel violated section 105(c) (3) of 

the Act by failing to comply with my December 15, 1983, order 

to reinstate Albert Dicaro. 

The citation required abatement by January 13, 1984. U.S. 

Fuel filed this contest on January 11, and an expedited hearing 

was held on January 12. 

At the hearing, I ordered a stay of enforcement of the 

citation pending further notice in this proceeding. 

The parties have agreed that there are no issues of 

material fact and the case is appropriate for decision on the 

record. 

ISSUE 

The controlling issue is whether my December 15, 1983, 

order requiring reinstatement was enforceable by the Secretary 

(MSHA) on January 10, 1984. 

.1004 
BACKGROUND 

On May 26, 1983, I issued a decision on liability in 

Dicaro v. United States Fuel Company, Docket No. WEST 82-113-D: 

(1) adjudicating that U.S. Fuel violated section 105(c) of the 

Act by discharging Mr. Dicaro and (2) holding the reqord open 

for further proceedings on issues of relief, such as back pay, 

attorney fees, and costs. A hearing was held on the relief 

issues, and on December 15, 1983, I issued a decision granting 

relief. The order part of the decision ordered U.S. Fuel to 

offer Mr. Dicaro reinstatement to his former position, provided 

he presented medical evidence that he was able to work as a 

miner. It also ordered the parties to attempt to stipulate 

certain back pay questions and, if they could not stipulate, to 

submit their respective proposed amounts to me not later than 

20 days from the date of the decision. The order stated that 

I was retaining jurisdiction over the case.for the 20-day period 

and "until a ruling on any counter-proposals filed in such 

period." 

In early January 1984, Mr. Dicaro appeared at U.S. Fuel's 

offices in Utah, presented a medical statement of his fitness 

for duty, and requested reinstatement under my December 1983 

order. U.S. Fuel refused, stating that it would not reinstate 

him unless the Commission in a final decision so ordered and 

that U.S. Fuel had directed counsel to seek review of my 

decisions (of May and December, 1983). 

On January 10, 1984, a federal inspector appeared at 

U.S. Fuel's offices and issued Citation No. 2072262, the 

citation which is contested in this proceeding. The citation 

states: 

By decision of Administrative Law Judge 

William Fauver of the Federal Mine Safety and Health 

Review Commission issued December 15, 1983, United 

States Fuel Company is required to of fer employment 

to Albert Dicaro upon receipt of a medical release. 

The decision of Administrative Law Judge Fauver is 

effective upon issuance unless stayed by the Federal 

Mine Safety and Health Review Commission. The 

decision and order of relief constitute an order 

issued pursuant to section 109(c) of the Federal 

Mine Safety and Health Act of 1977, P.L. 91-173. 

United States Fuel is in violation of this order by 

failing to comply after Albert Dicaro submitted the 

necessary medical release stipulated in the order . 

.1005 
On January 10, 1984, the citation was modified as follows: 

Citation No. 2072262 is hereby modified to 

reflect that a violation of section 105(c) (3). has 

occurred instead of section 109(c) as stated in the 

citation. Attorneys for the Department of Labor 

have also deemed that the citation be extended 

until January 13, 1984. Notice of the extension 

was also given to William Vrettos by phone. 

STATUTORY PROVISIONS 

Pertinent parts of the statute are as follows: 

First, in section 113, which creates the Commission: 

* * * * * * 

( c) The Coffi-mission is authorized to delegate to any group of three 

or more members any or all of the powers of the Commission, except 

that two members shall constitute a quorum of any group designated 

pursuant to this paragraph. 

( d) (1) An administrative law judge appointed by the Commission 

to hear matters under this Act shall hear, and make a determination 

upon, any proceeding instituted before the Commission and any motion 

in connection therewith, assigned to such administrative law judge by 

the chief administrative law judge of the Commission or by the Commission, and shall make a decision which constitutes his filial disposition of the proceedings. The decision of the administrative law judge 

of the Commission shall become the final decision of the Commission 

40 days after its issuance unless within such period the Commission 

has directed that such decision shall be reviewed by the Commission in 

accordance with paragraph (2). An administrative law judge shall 

not be assigned to prepare a recommended decision under this Act. 

(2) The Commission shall prescribe rules of procedure for its 

review of the decisions of administrative law judges m cases under this 

Act which shall meet the following standards for review: 

(A) (i) Any person adversely affected or aggrieved by a decision 

of an administI"ative law judge, may file and serve a petition for 

discretionary review by the Commission of such decision within 30 

days after the issuance of such decision. Review by the Commission 

shall not be a matter of right but of the sound discretion of the 

Commission. 

(ii) Petitions for discretionary review shall be filed only upon one 

or more of the following grounds: 

(I) A finding or conclusion of material £act is not supported 

by substantial evidence. 

(II) A necessary legal conclusion is erroneous. 

(III) The decision is contrary to law or to the duly promulgated rules or decisions of the Commission. 

(IV) A substantial question of law, policy or discretion is 

involved. 

(V) A prejudicial error of procedure was committed. 

(iii) Each issue shall be separately numbered and plainly and 

concisely stated, and shall be supported by detailed citations to the 

record when assignments of error are bas~d on the record, and by 

statutes, regulations, or principal authorities relied upon. Except for 

good cause shown, no assignment of error· by any party shall rely on 

any question of fact or law upon which the administrative law judge 

1006 

* 
b_ad not been afforded an opportunity !<> pass. Review by the Commis- s~on shall be granted only by affirmative vote of two of the Commissioners present and voting. If granted, review shall be limited to the 

questions raised by the petition. 

(B) At any time within 30 days after the issuance of a decision of 

an administrative law jud~e, the Commission may in its discretion· (bv 

affirmative vote. of two o~ the Commissioners present and voting) orde·r 

the case before it for review but only upon the ground that the decision 

may be contrary to law or Commission policy, or that a novel question 

of policy has been presented. The Commission shall state in such order 

!he specific issue of la~, Co~n:iission pol~cy, o: novel que~tion of policy 

mvolved. If a party s petition for discretionary review has been 

granted, the Commission shall not raise or consider additional issues 

in such review proceedings except in compliance with the requirements 

of this paragraph. 

* * * * * * * 

(The provisions of section 557 (b) of title 5, United States Code 

with regard to the review authority of the Commission are hereby expr~s~ly superseded to the extent that they are inconsistent with the 

prov1s1ons of subparagraphs (A), (B), and (C) of this paragraph.) 

* * * * * * * 

Second, in section 106, which provides for judicial review: 

SEc. 106_.. {a) (1) A!IY P.erson adversely. affected or aggr~eved by_ an 

order of the Commission ISsued under this Act may obtam a review 

of such order in any United States court of appeals fo~ the circui~ in 

which the violation is alleged to have occurred or m the Umted 

States Court of Appeals for the District of Columbia Circuit, by 

filing in such court within 30 days followin~ the issue.nee of s~ch 

order a written petition praying that the order be modified or set aside. 

* * * * * * * 

Finally, in section lOS(c), the anti-discrimination section: 

* * * * * * * 

(c) (1) No person shalrdischarge 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 emJ?loyment in any 

coal or other mine subject to this Act because such mmer, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, induding a complaint notifying 

the operator or the operator's agent, or the representative of the miners 

at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine, or because such miner, representative of 

miners or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners or applicant for employment has instituted or caused to be instituted anv pro-

_ceeding 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 l>ehalf 

of himself or others of any statutory right afforded by this Act . 

.1007 

/ 
(2) Any miner or applicant for employment or representative of 

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

otherwise discriminated against by any person in violation of this subsection may, within 60 days after such violation occurs, file a complaint 

with the Secretary alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy of the complaint to the 

respondent and shall cause such investigation to be made as he deems 

appropriate. Such investigation shall commence within 15 days of the 

Secretary's receipt of the complaint. and if the Secretary finds that 

such complaint was not frivolously brought, the Commission, on an 

expedited· basis upon application of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on the complaint. If upon such investigation, the Secretary determines that the 

provisions of this subsection have been violated, he shall immediately 

file a complaint with the Commission, with service upon the alleged 

violator and the miner, ap_plicant for employment, or representative 

of miners alle,Png such discrimination or interference and propose 

an order grantmg appropriate relief. The Commission shall afford an 

opportunity for a hearing (in accordance with section 554 of title 5, 

United States Code, but without regard to subsection (a) (3) of such 

section) and thereafter shalJ issue an order, based upon findings of 

fact, affirming, modifying, or vacating the Secretary's proposed order, 

or directing other appropriate relief. Such order shall become final 

30 days after its issuance. The Commission shalJ have authority in such 

proceedings to require a l?erson committing a violation of this subsection to take such affirmative action to abate the violation as the Commission deems appropriate, including, but not limited to, the rehiring 

or reinstatement of the miner to his former position with back fay and 

interest. The complaining miner, applicant, or representative o miners 

may present additional evidence on his own behalf during any hearing 

held pursuant to his paragraph. 

(3) Within 90 days of the receipt of a complaint filed under paragraph (2), the Secretary shall notify, in wnting, the miner, applicant for employment, or representative of miners of his determination 

whether a violation has occurred. If the Secretary, upon investigation, 

determines that the provisions of this subsection have not been violated, the complainant shall have the right, within 30 days of notice of 

the Secretary's determination, to file an action in his own behalf before 

the Commission, charging discrimination or interference in violation of paragraph (1). The Commission shall afford an O{>portunity 

for a hearing (in accordance with section 554 of title 5, Umted States 

Code, but without regard to subsection (a) ( 3) of such section) , and 

thereafter shall issue an order, based upon findings of fact, dismissing 

or sustaining the complainant's charges and, if the charges are sustained, granting such relief as it deems appropriate, including, but not 

limited to, an order requiring the rehiring or reinstatement of the 

miner to his former position with back pay and interest or such remedy 

as may be appropriate. Such order shall become final 30 days after its 

issuance. Whenever an order is issued sustaining the complainant's 

charges under this subsection, a sum equal to the aggregate amount 

of all costs and expenses (including attorney's fees) as determined by 

the Commission to have been reasonably incurred by the miner, apJ?hcant for employment or representative of miners for, or in connection 

with, the institution and prosecution of such proceedings shall be 

assessed against the person committing such v10lation. Proceedings 

under this section: shall be expedited by the Secretary and the Commission. ··Any order issued by the Commission under this paragraph 

shall be subject to judicial review in accordance with section 106. 

Violations by any person of paraf.aph (1) shall be subject to the 

proYisions of sections 108 and 110 (a . 

* * * * * * * 

1008 
OPINION 

The statutory distinction between temporary and final 

reinstatement orders is significant in considering. the issue 

here. Section 105(c) (2) provides that a temporary reinstatement 

order "shall order immediate reinstatement . • pending final 

order on the complaint." In contrast, section 105(c) (3), which 

authorizes permanent reinstatement orders, states, "such order 

shall become final 30 days after its issuance." In addition, 

the Commission's Rules provide that an administrative law judge's 

temporary reinstatement order "shall be effective upon receipt or 

actual notice" (29 C.F.R § 2700.44(a)), but do not contain such a 

provision for a judge's order granting permanent reinstatement. 

I note, also, that in Gooslin v. Kentucky Carbon Corp., 3 FMSHRC 

1707, 1711 n. 5 (1981), in directing review of a Judge's decision, 

the Commission specified that his temporary reinstatement order 

was to "remain in effect pending our decision" on review. This 

type provision does not appear in the Commission's review orders 

in cases in which the judge did not issue a temporary reinstatement order but, on the merits, did issue a permanent reinstatement 

order. 

Considering the statutory language, and the Commission's 

rules and practices, I conclude that reference to an "order" of 

the Commission in section 105(c) (3) means a final order of the 

Commission and that an order of an administrative law judge does 

not become a final order of the Commission until 40 days have 

passed without the Commission ordering review of the judge's 

order. On the date of the citation, January 10, 1984, my order 

of December 15, 1-983, was not a final order of the Commission 

because 40 days had not elapsed since its issuance. Also, since 

not even 30 days had elapsed since its issuance, even if "order" 

as used in section 105(c) (3) meant a judge's order (rather than a 

final order of the Commission, as I hold), the December, 1983 

order had not become effective under section 105(c) (3). 

CONCLUSIONS OF LAW 

1. My order of December 15, 1983, was not a final order 

of the Commission as of January 10, 1984, and was not effective 

as an e~forceable order as of that date. 

2. The Secretary's citation issued on January 10, 1984, 

is invalid because the December 15, 1983 order was not 

enforceable on January 10, 1984. 

1009 
ORDER 

WHEREFORE IT IS ORDERED that Citation No. 2072262, issued 

and modified on January 10, 1984, is hereby VACATEP. 

Distribution: 

tt!ii/~ 1-~t VULWilliam Fauver 

Administrative Law Judge 

Timothy M. Biddle, Esq., and Rochelle M. Gunner, Esq., Crowell 

& Moring, 1100 Connecticut Avenue, N.W., Washington, DC 20036 

(Certified Mail) 

Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

/fb 

1010 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.APR 231984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

BETHLEHEM MINES CORP., 

Respondent 

DECISION 

Docket No. PENN 83-198 

A.C. No. 36-05065-03507 

Windber Mine 78 

Appearances: Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

R. Henry Moore, Esq., Rose, Schmidt, Dixon 

& Hasley, Pittsburgh, Pennsylvania, for 

Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to Section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. 820(a). The petitioner seeks 

a penalty assessment of $650 for an alleged violation of 

mandatory safety standard 30 CFR 75.1105, as noted in a 

Section 104(a) notice no. 2015155, served on the respondent 

on January 18, 1983, by MSHA Inspector Samuel J. Burnatti. 

The respondent filed a timely answer in this matter 

and a hearing was conducted in Johnstown, Pennsylvania, 

on December 1, 1983. 

Issues 

The principal issue presented in this ·proceeding is (1) 

whether respondent violated the provisions of the Act and 

implementing regulations as alleged in the proposal for 

assessment of civil penalty filed in this proceeding, and, 

1011 
if so, (2) the appropriate civil penalty that should be 

assessed against the respondent for the alleged violation 

based upon the criteria set forth in section llO(i) of the 

Act. Additional issues raised by the parties are identified 

and disposed of in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 U.S.C. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c~ § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 6-10): 

1. Respondent is a coal mine operator subject to 

the jurisdiction of the Federal Mine Safety and 

Health Act of 1977. 

2. The Section 104(a) citation in issue in this 

case, as well as a subsequently issued Section 104(b) 

order, were duly served on the respondent's agents 

at the mine in question by an authorized representative 

of the petitioner. 

3. Respondent's Windber Mine 78 produces coal on an 

intermittent basis and at the time the citation 

issued its annual coal production was 417,145 tons. 

The parent corporation, Bethlehem Mines Corporation 

had an overall 1982 annual coal production of over 

seven million tons, but that its 1983 coal production 

is expected to be significantly reduced. 

4. Assuming the fact of violation is established, 

a reasonable civil penalty assessment will not 

adversely affect the respondent's ability to continue 

in business. 

5. From approximately 1976 to December 1, 1983, 

MSHA has issued no prior Section 104(b) Orders at 

the Winder Mine 78. 

During the two-year period preceding the date of the 

issuance of the citation in issue in this case, 

respondent has been assessed for 84 violations, none 

1012 

: :~ .:- .... _ ... ; 
of which were for violations of mandatory 

standard 30 CFR 75.1105. 

6. During the period 1976 to December 1, 

1983, 37 different MSHA inspectors inspected 

the Windber Mine 78, during 688 inspection" 

days. 

During the period between February 10, 1982, 

and January 18, 1983, the North Main Section 

of the Windber Mine 78 was inspected on 16 

occasions and no citations or orders were 

issued for alleged violations of mandatory 

standard 30 CFR 75.1105, with respect to the 

battery charging station. 

Discussion 

Citation No. 2015155 states the following condition or 

practice: 

When checked with a smoke cloud the 

current of air ventilating the North 

Main charging station was not being 

coursed directly to return in that 

the current of air was entering the 

#3 intake entry and coursing up 

into the working section. 

The inspector fixed the abatement time as 8:00 a.m., 

January 19, 1983. 

On January 19, 1983, at 8:50 a.m. the inspector issued 

a Section 104(b) Order No. 2015156, in which he stated as 

follows: 

Little or no effort was made to direct 

the current of air ventilating the North 

Mains battery charging station to return. 

On January 20, 1983, a second MSHA inspector, David B. Alsop, 

terminated Citation No. 2015155, and the justification for 

this action states as follows: 

The current of air ventilating the North 

Main charging station was being coursed 

into the return air course. A 14 foot 

piece of plastic pipe 3 inches in diameter 

was extended out into the charging station 

and extending back to the 4 inch vent pipe 

in the stopping wall. Also, an 8 foot 

1013 
piece of deflector canvass was installed 

on the outby side of the charging station. 

A hole was left in the 4 inch pipe at the 

stopping to allow air to enter there and 

also at the end of the 3 inch pipe. 

Petitioner's testimony and evidence 

MSHA Inspector Samuel J. Burnatti testified as to his 

background and experience, which includes service as a 

ventilation specialist since May 1983. He confirmed that he 

conducted an inspection at the mine on January 18, 1983, and 

that he issued the citation in issue for a violation of 

section 75.1105, exhibit P-1. He also confirmed that at the 

time of his inspection he was accompanied by respondent's 

representative Tom Korber, and UMWA representative Rex Morgart 

(Tr . 1 7 - 2 0 ) • 

Mr. Burnatti stated that he issued the citation after 

observing a battery charging unit partiallv out in the intake 

entry, and the current of air that was ventilating' the unit 

was not being coursed to the return. He confirmed this by 

making four smoke tube readings. He identified exhibit P-7 

as a sketch of the area and the charging unit in question. 

He stated that he drew the sketch, and he explained the 

notations on the sketch as the locations where he made the 

smoke tube tests. He stated that four of the tests indicated 

that the air used to ventilate the unit was going into the 

intake, but that a test made directly at the wall at the 

back of the charging station and directly in front of a 

pipe protruding from the wall, indicated that the air at that 

location went out through the pipe (Tr. 20-23). 

Mr. Burnatti testified that section 75.1105 requires 

that all ventilation of the battery charging station will 

be coursed directly to the return, and since his smoke tests 

indicated that it was not, he issued the citation. He 

indicated that the intent of the cited section is to insure 

that any hydrogen gas from the batteries, or any smoke which 

may result from any equipment fires would be pulled through 

the pipe in the wall into the return air and out of the mine 

(Tr. 24). 

Mr. Burnatti stated that at the time he observed the 

cited condition the ·charging unit was energized with the power 

on, but that no equipment was in the charging station itself. 

He indicated that the "three inch.vent pipe" notation on 

his sketch was an error, and that the pipe was a four inch 

pipe (Tr. 25). He identified exhibit P-5 as a copy of notes 

which he made, and he explained his notations (Tr. 28-31). 

1014 
Mr. Burnatti confirmed that he made several suggestions 

as to how the violation could be abated, and these included 

the use of a "fly curtain," and extending the pipe further 

out from the wall. He also suggested moving the unit from 

out in the entry to a location along the left side wall of 

the station, but not in the corner, or moving it across the 

station to the right side wall. He indicated that moving 

the unit was not necessary to abate the citation, and he 

denied that he insisted that it be moved. Although he indicated 

that he was not totally familiar with the state law requirements 

for venting the charging unit, he did state that the state 

inspectors do not want the unit inby the batteries being 

charged because it creates a hazard (Tr. 31-33). He indicated 

that the respondent could have moved the unit "into the 

left side" of the charging station "or moved it across to the 

right side," and that this would have abated the citation 

and would have also complied with state law (Tr. 33). He 

marked these locations with an "x" mark on his sketch (Tr. 35). 

Mr. Burnatti stated that he has observed other battery 

charging units in the mine, and that they are placed "basically 

in the same area, but they are not outby, the end of this 

tin or the rib." He stated that the other units he has 

observed "are inby the crosscut inby the tin" (Tr. 36). 

Mr. Burnatti indicated that in the instant case the 

location of the charging unit was a violation of section 

75.1105, because the way it was positioned the intake air 

was going directly over it, and since "it was slightly outby 

the edge of the tin, as long as that air is passing over, 

and going up into the section, I can't see how you could 

achieve compliance" (Tr. 37). Under the circumstances, the 

smoke tests he made were "a formality" (Tr. 36). 

Mr. Burnatti .stated that he initially fixed the abatement 

time at "roughly twenty-two hours" (Tr. 32), but that when 

he returned to the area the next day, he observed that a 

three inch pipe had been inserted into the existing four-inch 

pipe and extended outby from the wall, and he identified 

its location on his sketch. He also described an opening 

or gap between the two pipes, and confirmed that he made 

another smoke tube test at that time (Tr. 38). He stated 

that a Kersey battery powered tractor was in the station, 

and when he took smoke readings directly over the tractor 

battery and the charging unit itself, he determined that the 

air exiting the charging station was going back into the 

intake escapeway (Tr. 39). When he inquired as to why the 

condition had not been corrected, Mine Foreman Andy Salata 

advised him that some work had been done on the pipe and 

that he "assumed it was okay" (Tr. 39). 

1015 
Mr. Burnatti confirmed that he issued the Section 104(b) 

order because he believed that extending the time further 

would pose a possible fire or ignition hazard, and the Kersey 

battery was being charged at this time. · He also believed 

that the respondent was not diligent in attempting to meet 

his initial abatement time because it took little 'time to 

install the three-inch pipe, and a smoke test would have 

indicated where the air was going. He denied that the 

issuance of the order had a disruptive effect on mining 

operations, and he believed that general laborers could have 

been used to achieve timely abatement and work could 

have continuea at the face while the corrections were being 

made (Tr. 41). 

Mr. Burnatti explained his "negligence" and "graviiy" 

findings on the face of his citation as follows (Tr. 41-42): 

Q. With reference to the negligence, you 

have marked low, could you explain to the 

Court, what made you decide that the negligence 

with reference to the 104a, was originally 

low? 

A. Well, I felt in this case, here, that 

due to the fact that you are talking slight 

movement or low volume of air, to detect 

it, you almost need a smoke cloud and that's 

why my -- normally, without the use of a 

smoke cloud, it wouldn't be detected by a 

foreman, or anybody else, and the smoke 

clouds are not normally carried with them. 

Q. So that's why you considered the negligence 

low? 

A. Yes. 

Q. With reference to gravity, would you explain 

to the Court, why you marked the reasonably 

likely box, and the lost work days, or restricted 

duty? · 

A. I felt that it would be reasonably likely, 

was the fact that this condition would continue 

to exist, and the fact that that area was dry, 

and you have electrical ~quipment and cable, 

and the fact that the number three entry is the 

primary intake escape way, for the north mains 

section, was my reasons there, then the lost 

work days, and restricted duty, I felt that 

possibly, it would be the smoke, I don't feel 

that it would be fatal or permanent disabling, 

1016 
due to the fact that the section does 

employ another escapeway, an alternate 

escapeway, and this unit, I think, I 

believe is only four or five cross cuts 

outby the working section. 

Q. And you have the number 7, indicating 

the number of persons affected, are those 

the same seven people you talked about working 

at the face? 

A. Yes. 

Mr. Burnatti explained that the location of the charging 

unit placed it slightly past the tin wall of the charging 

station into the number 3 entry, and that when he returned 

to the area the day after he issued the citation the unit 

had not been moved (Tr. 44). He further explained his 

"negligence" findings as follows (Tr. 45): 

JUDGE KOUTRAS: You have never seen a mine 

operator take a smoke cloud reading to 

determine whether or not the movement of air 

over a battery charger station? 

THE WITNESS: No, I've never seen it. 

JUDGE KOUTRAS: Are you suggesting from that, 

had they taken one, and detected that the air 

was not being forced into the return, that they 

should have alerted them, they should have done 

something to the battery charging station? 

THE WITNESS: Yes, and I feel that the fact, 

the way that the charging unit itself is positioned, 

should alert them. 

On cross-examination Mr. Burnatti conceded that the 

sketch of the location of the charging unit which is in his 

notes, exhibit P-5, seems to place it further within the are.a 

of the tin wall than it appears on his sketch made in August 1983, 

exhibit P-7. The later sketch places the unit further into 

the entry, and he conceded that the two sketches "are slightly 

different" (Tr. 50). He indicated that the later sketch 

represented the location of the unit on both January 18 and 

19 , 19 8 3 (Tr • 4 9 ) • 

Mr. Burnatti stated that he was certain that the pipe he 

observed at the time the citation issued on January 18, 1983, 

was a four inch pipe, rather than a three inch pipe as 

initially noted (Tr. 51-52). He also indicated that the 

1017 
pipe he first observed at the back wall of the charging 

station, while "slightly" protruding from the wall, was 

"flush" to ·the wall. He reiterated that the purpose of 

that pipe was to vent the battery charging station, which 

he described as a "three-sided tin enclosure'' (Tr. 53-54). 

Mr. Burnatti stated that on the day he issued the citation 

there were three or four miners on the section, but that 

mining was not taking place on that shift (Tr. 57). He 

confirmed that he checked the battery charging unit and 

found nothing wrong with it (Tr. 58), and he explained his 

concern over a possible fire and gas hazard as follows 

(Tr • 5 8- 6 0 ) : 

Q. Fire hazard, now did you check 

the battery charging unit, to see if it 

was defective in any way? 

A. I checked in a general way, yes. 

Q. And was it -- it was perfectly okay? 

A. I wouldn't say it was perfectly, but 

it was found to be okay. 

Q. Did you find anything wrong with it? 

A. No. 

Q. Now, if this event occurs, well, are you 

saying that the actual occurrence of a fire, 

is reasonably likely here? 

A. If the condition would stand uncorrected, 

yes. 

Q. Well, the condition that you saw was 

improper ventilation, how does that cause a 

fire? 

A. That would take your smoke, or your hydrogen 

gas, out into your intake entry, which in turn 

travels up into your working section. 

Q. Then you are not saying that the occurrence 

of a fire, or the occurrence of production of 

hydrogen gas is reasonably likely, you are just 

saying if -- in the event that those occur, the 

smoke might go up the intake? 

A. Yeah, or with the hydrogen gas, you could 

have an explosion. 

1018 
Q. But if those events occurred, well, the 

first day that you were there, there wasn't 

anything being charged, was there? 

A. No, no equipment was being charged. 

Q. So without anything being charge~~ the first 

day that you were there, there was no hydrogen 

gas, obviously? 

A. No, sir. 

Q. And you didn't take any samples to test that 

first day? 

A. No, sir. 

Q. The second day that you were there, there 

was a unit on charge, did you take any samples 

that day to see if there was hydrogen gas being 

produced? 

A. No, sir. 

Q. So you don't know the second day whether or 

not, there was any being produced at all? 

A. No. 

Q. In addition to hydrogen -- isn't hydrogen 

sulphite produced by batteries sometimes, when 

they are being charged? 

A. I'm not sure, I just know that they emit 

hydrogen gas. 

Q. And of course, to have an explosion from 

hydrogen gas, you have to have a source of 

ignition, do you not? 

A. Yes, sir. 

Q. And in this case, the source of ignition is 

the battery charging unit, if it is close to 

the hydrogen gas, is that correct? 

A. Well, it doesn't necessarily have to be 

close, if that gas is passing over it, and it 

should short, or the piece of equipment itself, 

short out, that's your ignition. 

1019 
Q~ Okay, the first day, there wasn't a piece 

of equipment according to you, and the charging 

unit seemed to be in good condition, is that 

correct? 

A. Yes. 

Mr. Burnatti confirmed that the respondent made some 

effort to timely abate the citation, but he believed it was 

a "little effort." He also confirmed that company officials 

advised him that they could not move the charging unit "because 

the state said that they couldn't." He indicated that 

company officials asked him to speak with the state inspector 

who was there at the time the order was issued, but that he 

did not do so (Tr. 62). He also indicated that he did not 

check the Kersey machine that day to see if there was anything 

wrong with it (Tr. 63). 

Mr. Burnatti stated that he was on the same section on 

January 14, 1983, prior to the time the citation was' issued, 

but since he was in the face area he "probably" did not 

visit the cited battery charging station and would not have 

walked past it (Tr. 65). Ile confirmed that he did not 

measure the amount of air going by the charging station 

in the intake at the time he issued the citation, but he 

agreed "there was probably a considerable amount of air" 

present (Tr. 65). 

Mr. Burnatti confirmed that after issuing the citation 

he discussed with Mr. Korber ways to correct the conditions, 

and these included installing "a solid check up, and enclosing 

it, a fly check to redirect the air current, or to move 

the charging unit itself, or enlarge the pipe." He also 

suggested that the pipe in the wall be extended or enlarged 

(Tr. 66-67). He explained how the tractors and scoops travel 

to the charging station, and he confirmed that the sizes of 

the vent pipes which he noted were approximate, and while 

he had a ruler in his possession, he did not measure the 

pipes in question (Tr. 67-71). He explained that the four 

inch pipe in the wall was about four and a half feet off the 

floor, and the extended three inch pipe was hung from the 

ceiling with a wire (Tr. 72). 

Mr. Burnatti explained the direction of the air ventilating 

the charging station, and estimated the dimensions of the 

station as 16 feet deep and 20 feet wide (Tr. 74-78). He 

stated that power for the charging unit comes from a trailing 

cable from the section load center power station located 

inby in the working section. No batteries are stored in 

the charging station, a·nd all of the batteries are charged 

1020 
while on the equipment. The charging unit is on skids and 

can be moved by pulling it with a tractor or by hand 

(Tr . 9 6 - 9 7 } • 

David Alsop, MSHA training specialist, testified that 

prior to April 1, 1983, he worked on ventilation and respirable 

dust for eight years. He testified as to his M·~mA training 

and background, and he confirmed that he visited the mine in 

question on January 19, 1983, to conduct a resp~rable dust 

inspection (Tr. 109-111}. 

Mr. Alsop identified exhibits P-2 and P-4 as copies of 

the terminations of the citation and order issued by Inspector 

Burnatti. He explained that since he was at the mine, 

mine management asked him to look at the work done to abate 

the order. After checking with his supervisor at MSHA's 

district office, he did so and abated the citations. He 

stated that he observed that the respondent had installed a 

canvas check curtain and extended a three inch pipe some 14 

feet to force the air ventilating the battery charging station 

into the return. He confirmed this by means of a smoke tube, 

and since compliance was achieved, he terminated the order 

(Tr. 114-116} • 

Mr. Alsop identified the 14 foot long extended pipe 

as a plastic pipe extending from a four inch pipe in the wall. 

The extended plastic pipe extended out over the top of the 

charging unit, and when he checked the air current at several 

locations in the station he found that it was going into 

the pipe (Tr. 117}. He explained the location of the pipe 

and curtain by marking it on the sketch (Exhibit P-7, Tr. 118}. 

On cross-examination, Mr. Alsop stated that when he 

abated the order, a UMWA representative was with him, and 

he expressed satisfaction over the respondent's abatement 

efforts (Tr. 120}. He terminated the citation because that 

is what he believed had to be done in order to process the 

citation through the assessment office (Tr. 124-125}. 

Rex A. Morgart, testified that he is employed by the 

respondent and that he serves as the Chairman of the UMWA 

Mine Safety Committee. He confirmed that he was the walkaround 

representative who accompanied Mr. Burnatti during his 

inspection on January 18, 1983. He stated that he could not 

recall whether a tractor or a scoop was parked in the battery 

charging station at the time the citation was issued. He 

also stated that the charging unit was on, but that Mr. Korber 

tagged it out when Mr. Burnatti advised him that there was a 

problem (Tr. 256-257}. 

1021 
Joseph D. Hadden, Jr., Senior Mining Engineer, 

Ventilation.Division, MSHA Pittsburgh Health and Technology 

Center, testified that he has been employed in the ventilation 

division for eleven years. He stated that he holds a BS degree 

in mining from the University of Pittsburgh, and that he has 

first and second grade mine papers in the State of ,Pennyslvania, 

mine foreman papers from the State of West Virg1nia, and that 

he is a registered professional engineer in the State of 

Pennsylvania (Tr. 261). 

Mr. Hadden. confirmed that he is familiar with the facts 

and testimony in this case, and that based on his interpretation 

of section 75.1105, all of the air (100%), used to ventilate 

the battery charging station is to be directed directly into 

the return air course (Tr. 262). When asked how that was 

possible, he offered the following suggested methods 

(Tr • 2 6 2 - 2 6 3 ) : 

A. One method would be is what was 

discussed here earlier today. Moving 

the stopping wall back so that the 

crosscut is deeper so, that this turbulent 

zone would be further removed from where 

the equipment would be at. 

Another method would be to increase the 

size of the pipe, the vent pipe, so that 

it would increase the air quantity that 

was flowing in the crosscut into the return. 

A third possibility would be to enclose the 

front of the charging station, with a door. 

And, through that door have a small opening. 

It would act as a regulator, to allow a 

measured quantity of air to flow into the 

enclosure and then out the vent pipe and 

into the return. 

Q. And, upon what do you base those ideas 

or that criteria? Has that been tested by 

MSHA, or has that ever been done anywhere else? 

A. The third idea, there were a series of 

tests run. eight or nine years ago, and there is 

publication out on it. Called, "Controlling 

smoke from a fire-proof structure underground." 

And, this was the basis of those tests. 

So, if a fire did develop, say, in the battery 

charging station, the fire or combustion couldn't 

enter the intake air stream where it would be 

transported up to the face. 

1022 
On cross-examination, Mr. Hadden further explained his 

recommendations for achieving compliance with his citation 

(Tr. 263-27 2; 27 5-2 8 0) . 

Respondent's testimony and evidence 

Thomas F. Korber, respondent's shift mine foreman, 

testified as to his background and experience, and he confirmed 

that he accompanied Inspector Burnatti during his inspection 

of January 18, 1983. After examining ~r. Burnatti's sketch, 

exhibit P-7, he .stated that the cited charging unit was 

located "right at the corner" of the charging station tin 

wall and that it did not extend beyond that point. He also 

indicated that a three inch pipe which extended from the 

station wall, over and across the belt, and into the return, 

was a "normal setup" for a battery charging station at the 

mine. The only difference from other mine charging stations 

was the fact that other stations were deeper (Tr. 129-131). 

Mr. Korber stated that when he first went to the charging 

station area on January 18, 1983, a Kersey tractor or scoop 

was being charged, but coal was not being produced that day. 

Two men were on the section, and they were bolting (Tr. 133). 

Mr. Korber stated that when he saw that Inspector Burnatti 

had questioned the charger unit, he pulled the power from 

the section power center and tagged out the charging unit 

plug so that it would not be energized (Tr. 134). However, 

he did not remove the equipment which was being charged. 

Mr. Korber testified that when Inspector Burnatti 

tested the air with his smoke tube, it was not going out of 

the pipe in the wall very well, and there was "very little 

suction." Mr. Korber checked and found that one of the pipe 

joints was loose, and after putting it back together the 

air was "drawing better at that point," but Mr. Burnatti 

was not satisfied since he insisted that all of the air had 

to be vented through the pipe (Tr. 135). 

Mr. Korber stated that in the past most MSHA inspectors 

did not use smoke tubes, and they simply put their hand over 

the pipe to determine if there was any suction. If suction 

was present, they never questioned the ventilation. He 

stated that a three-inch pipe was at the wall, and he told 

Mr. Burnatti he would install a larger one to induce better 

suction (Tr. 136). 

Mr. Korber stated that after the citation issued 

he contacted his supervisors Andy Salata and Bobby Breck, 

and they advis,ed him not to move the charging unit "because 

1023 
we would have .trouble with the state." Prior MSHA inspectors 

who looked at the mine charging stations "out where it was 

located here" never advised him that he was in violation of 

the law (Tr. 138). 

Mr. Korber stated that his boss instructed him to get 

material so that the next shift could remove the three inch pipe from 

the wall and install a four inch pipe. He returned to the 

charger unit location the next day with Mr. Burnatti and the 

power plug was still out, but the tractor or scoop was still 

parked at the charger. Mr, Korber indicated that Mr. Burnatti 

was upset because the charger had not been moved "inside" 

and that he indicated that "we do very little to show good 

faith to abate his violation" (Tr. 139). Mr. Burnatti 

informed him that he wanted the charger moved in because he 

was still going to take his smoke test over the charger, 

the unit, and the batteries. Mr. Korber was of the opinion 

that the air flow on the next day improved with the installation 

of the larger pipe (Tr. 140). 

Mr. Korber stated that it was difficult to see where 

the smoke was going when the tube was broken because of 

air swirling caused by turbulence. The fourteen foot piece 

of pipe was installed after Mr. Burnatti left on the day after 

the citation issued (Tr. 141). However, Mr. Korber was not 

present when Mr. Alsop abated the violation (Tr. 142). He 

explained his actions the day after the citation issued as 

follows (Tr. 142-143): 

Q. Now, you weren't there when the actual, 

when Hr. Alsop came in to abate the violation, 

were you? 

A. No. 

Q. What was done to abate it, as far as you 

know? 

A. After Mr. Burnatti left, myself and 

Mr. Salata discussed what we would do. We 

saw, in order to, so that we could use that piece 

of equipment that was being charged, which 

it wasn't being charged then because, I 

had the power off. But, so that we could 

get it out of there and start using it again, 

and start charging pieces of equipment 

again, we decided, you know, we better put 

that fourteen foot extension on there to 

satisfy the federal. So, that's, and then 

we put a check across, pa~tially across 

the intake there. 

1024 
Q. As it is shown on P-7? 

A. Yes. 

Q. Now, just to clarify things. The second 

day, when you went in there the Kersey, or 

the tractor, or the scoop was still tnere, was 

it charging? 

A. Not the second day, no. 

Q. You said you tagged it out, or put a piece 

of paper, with your name on it? 

A. Yes. 

Q. When you unplugged it, what was your intention 

by doing that? 

A. I saw that we was going to have a problem, 

you know, with the federal, and I didn't want 

to, anything to be disturbed there, so I took 

the power off of it. 

I figured the power better be off of it, and 

stay off of it until we settled this dispute 

here, and you know, I told everybody not to bake 

the tractor, or the scoop out of that charging 

station, just leave everything alone. 

Q. When you say you told everybody, who did 

you tell? 

A. Well, my tag on the plug, nobody could put 

it back in. It had my name on it so I had to 

remove it. But, I told the other shifts, the 

foreman on the other shift, and then there would 

be no question about it. 

On cross-examination, Mr. Korber described the battery 

charging station tin walls as follows (Tr. 143-144): 

Q. Mr. Korber, with reference to the tin wall 

that was in the battery charging station, did 

that tin wall extend out into the crosscut, 

out into the intake entry? 

A. ~. 

Q. was it flush with the rib, I mean, did it 

end exactly where the rib ended? 

1025 
A. It was, it come out, the whole way 

out the crosscut, it just made somewhat of 

a curve. Not clear out into the intake entry, 

no. 

Q. But, it did not stop at the rib line? The 

tin wall? 

A. It come out, more or less, right beside 

the rib line, it just made a curve, it just, 

the last piece of tin, what I'm saying, was just 

bent to make the curve. 

Q. And, where did the charging unit end? Did 

it follow that curve? 

A. It was right at the end of the tin? 

Q. Where the tin ends, when you say the end 

of the tin, do you mean the curve? 

A. Right at the curve piece, right at the curve 

piece. 

Q. Where it started to curve? 

A. Um-hmm. 

Mr. Korber stated that after the four inch pipe was 

installed he did not test the air ventilating the charging 

station, but he believed that the next shift did. However, 

he did not know whether records were made of the tests, and 

he was not aware of the test results. He indicated that 

one of the shift foremen told him that the larger pipe was 

drawing out more of the air (Tr. 145-147). 

Mr. Korber confirmed that no one moved the charger unit 

to ascertain whether moving it would take care of the problem 

(Tr. 154). In response to further questions, Mr. Korber 

testified as follows (Tr. 154-158): 

JUDGE KOUTRAS: So, why didn't, on an experimental 

basis, was it ever suggested to anyone, "Hey, 

let's move it in and see if it works?" Because, 

if you moved it in and it didn't work, no one 

did that did they? 

THE WITNESS: No. 

JUDGE KOUTRAS: No one actually moved this unit 

back to see whether that would take care of the 

problem? 

1026 
THE WITNESS: No, sir. Right. 

JUDGE KOUTRAS: Okay. And, the reason you 

didn't is because you were afraid that you 

were going to run afoul the state people, 

right? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: You indicated earlier that 

on prior inspections, when other MSHA 

inspectors were in there, all they did was 

go up and put their hand on the pipe to see 

if there was suction, that satisfied them? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Mr. Burnatti was the only 

one that went in there and used a smoke tube? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: So, as far as I know, the first 

inspectors that went in there, an~ put their 

hand against suction, didn't know whether that 

air that was ventilating, whatever the heck 

it was ventilating, and it actually went out 

that return, did they? 

THE WITNESS: Not in the sense of looking at 

smoke, no. But, also, I'm not saying that they 

didn't check. They did check both sides of the 

pipe. 

JUDGE KOUTRAS: My point is this, if there's a 

scoop, or a piece of equipment in that area, 

being charged, and an inspector walks in there, 

sees two batteries being charged by this very 

same unit, and he walks up and puts his hand against 

that pipe that's on that wall, and feels that 

there is some suction there, are you suggesting 

to me, that in that situation you won't get a 

citation? That inspector is perfectly content 

that the air is being ventilated in that? 

THE WITNESS: They were. 

JUDGE KOUTRAS: That's what happened? 

THE WITNESS: They were, yes, sir. I went 

with many of them, and yes, they did. That's 

exactly what they did. 
JUDGE KOUTRAS: That's exactly what they do. 

But, this man that came in there to inspect, 

used something else, he used a smoke tube? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And, he found that it wasn't 

going through that pipe, all of it wasn't going 

through? 

THE WITNESS: Not enough to suit him, yes. 

JUDGE KOUTRAS: To suit him. 

whether it suits him or not. 

it suits the 

I could care less 

I'm concerned whether 

THE WITNESS: No, but, what I'm saying is that 

the other inspectors that came into the mine, and 

I accompanied many of them, it suited them the 

way it was. 

JUDGE KOUTRAS: What, in your opinion, is the 

proper way to check to see whether or not air is 

going through the return? Put your hand against 

the pipe, or to break smoke tubes? 

THE WITNESS: We've never broke any smoke tubes, 

no. 

JUDGE KOUTRAS: I didn't ask you that. What do 

you think is the proper way to determine? 

THE WITNESS: Well, I am saying, my proper way, 

if I had a three or four inch pipe there, and it 

wasn't broken anywhere, and it was drawing, yes, 

that would satisfy me. 

JUDGE KOUTRAS: That would satisfy you? 

THE WITNESS: Yes. 

With regard to Mr. Burnatti's smoke tube tests, Mr. Korber 

stated as follows (~r. 162-164): 

JUDGE KOUTRAS: When he tested it, he said 

that he tested it in five different places. You 

heard his testimony? 

THE WITNESS: Yes. 

1028 
JUDGE KOUTRAS: He broke five smoke tubes? 

THE WITNESS: That's what he says, yes. 

JUDGE KOUTRAS: On the 18th? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Do you question that? Did he 

break five? 

THE WITNESS: I wouldn't say five. He broke 

smoke tubes. 

JUDGE KOUTRAS: He broke smoke tubes. Did 

he break some over the batteries that were 

on the scoop? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: And, where did the smoke go? 

THE WITNESS: When he broke the smoke tube 

over the batteries on the scoop, some smoke would 

go out the pipe, some would swirl around and it 

was hard to say where it was going. 

JUDGE KOUTRAS: This was visually? 

THE WITNESS: Yes. It was, you have an amount 

of turbulence in that crosscut where your charger 

is, any charger is, and it's hard to say where 

the smoke goes. 

JUDGE KOUTRAS: Was there turbulence over the 

batteries? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Why was there turbulence over the 

batteries? 

.THE WITNESS: That's about halfway in the crosscut. 

JUDGE KOUTRAS: So, the batteries --

THE WITNESS: Back, way back against the wall you 

won't have turbulence, no. 

1029 
And, at Tr. 166-168: 

THE WITNESS: I'm telling you, the way it 

swirls, some is going to swirl around and 

start going out the pipe, and some is going 

to swirl around and go down the intake. 

JUDGE KOUTRAS: The same thing would apply 

to the battery charging unit, wouldn't it? 

THE WITNESS: Yes. 

JUDGE.KOUTRAS: It will swirl. Some will go 

one way, and some will go the other? 

THE WITNESS: On the charging unit? 

JUDGE KOUTRAS: Right. 

THE WITNESS: Most of it would swirl around and 

go down the intake because, it's further out. 

JUDGE KOUTRAS: None of it would go in the return? 

THE WITNESS: I'd say, very little. 

JUDGE KOUTRAS: Okay. Now, it's stated, it says 

that air currents used to ventilate that the 

assembly requires you to ventilate the batteries 

and the battery charging unit, and it says 

it has to go to the return.· So, would you agree 

that in that situation with the swirling going 

down the entry, none of it goes to the return? 

THE WITNESS: Just over the batteries. 

JUDGE KOUTRAS: Over the charging unit? 

THE WITNESS: Over the charging unit, yes. Very 

little would go to the return. 

JUDGE KOUTRAS: Very little would go to the return, 

right? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: It would be a violation, wouldn't 

it? 

THE WITNESS: According to that day, I would say, 

yes. 

1030 
JUDGE KOUTRAS: Why was he insistent that 

you move that unit, do you know? 

THE WITNESS: Well, because when he was 

breaking his smoke tube over top of it, most 

of the smoke was going down the intak'e. 

JUDGE KOUTRAS: So, he assumed that if you 

moved the unit, and then he broke his tube, 

most of it would go through the return, is 

that a fair assumption? 

THE WITNESS: I would say that's what he assumed. 

JUDGE KOUTRAS: But, nobody did that to see if 

he was right or wrong? 

THE WITNESS: No, we didn't. 

JUDGE KOUTRAS: Wouldn't that be a logical step 

for you to take, and if he was proved right then 

you would have the state people on your hands, 

right? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: So what? Now, you've got the 

federal people on your hands. So, who are you 

going to pacify? 

THE WITNESS: Yeah but, then your just playing 

a game, when the state comes you just pull it 

back out, and when the federal comes you just 

push it back in. 

Andrew Salata, mine foreman, respondent's mine 78, 

testified as to his background and experience, including the 

preparation of mine ventilation plans (Tr. 199-201). Mr. Salata 

stated that he first learned about the citation on the afternoon 

of January 18, 1983, when Mr. Korber informed him that Inspector 

Burnatti wanted the charging unit moved. The state inspector 

was at the mine that day, and Mr. Salata indicated that 

he discussed the matter with him "a little bit" (Tr. 202). 

Mr. Salata informed Mr. Korber that the charger couldn't 

be moved because "I can't violate the state law" (Tr. 201). 

Mr. Salata confirmed that he did not discuss the violation 

with Mr. Burnatti on January 18, but the next day he met 

with him at the charging station and Mr. Burnatti informed 

him that he was not satisfied with the amount of air going 

into the return. 

1031 
Mr. Salata explained his problems with the state mine 

inspector's as follows (Tr. 205-206): 

Q. Now, to your knowledge, had any other 

inspector required Mine 78 to move it's charger 

further into the crosscut? 

A. At first, we kept our chargers right back 

against the stopping. In 1978, the state come 

out and they said they do not want the chargers 

there because, there's a good potential 

for an ignition. 

They say, "you take your charger, move it out 

into the intake air. You charge your batteries 

in your regular charging station." 

We had it sitting out there for, approximately, 

two and a half to three years. This was the way 

that it was always done. 

Then it come around, about three years ago, they 

said you just move them, just inby, move them just 

inby. 

JUDGE KOUTRAS: This was the state? 

THE WITNESS: The state and the federal all 

agreed to this, they agreed. They'd walk by it 

constantly. And, we'ver never had a problem 

with the charging stations. 

Now, again, they want to move it in. This is 

why I talked with Frank Bahopin that day. And, 

he says, "You can't move them in any. The closer 

you put them the closer to the ignition source 

you're going to be." 

Also, I mentioned the pipe, he definitely would 

not buy the pipe because, they have a flier out 

on that since 1978. 

I can't, you suggested in making a choice, if 

I made a chance, if the air would have passed 

over, we'd have kept it going, if I'd had an 

ignition, I'm just as liable with the state as I 

am with the federal. 

Referring to Inspector Burnatti's sketch, exhibit P-7, 

Mr. Salata described·the air flow and ventilation system 

through the charging station, and he stated that since the 

1032 
air is swirling it would be impossible to test to see what 

amount is going in one direction and what amount is going 

in the other (Tr. 209). 

On cross-examination, Mr. Salata indicated that a larger 

sized pipe against the wall of the charging station would 

remove more air into the return, and that where possible, 

charging stations are located directly against the return. 

He conceded that the state now allows him to move the charging 

unit "a little bit more inby," and that this occurred "two 

weeks later." He also indicated that Mr. Burnatti only 

suggested that the charging unit be moved, and he did not say 

that he had to move it in order to abate the citation 

(Tr. 215-216) • 

Steven P. Sanders, respondent's chief mine electrician, 

testified as to his mine experience and training. He confirmed 

that he was familiar with the battery charging station, and 

he explained how the charging unit functions. He confirmed 

that it was an A.C. unit, and he stated that the type of 

charging units used in the mine produce very little gas. 

As compared to a D.C. unit, the A.C. unit produces less heat 

and the units are provided with several short circuit protective 

devices, including fusing devices (Tr. 216-223). He also 

confirmed that the charging units are inspected weekly, and 

that his records indicate that the unit in question was last 

inspected January 3 and 12, 1983, prior to the issuance of 

the citation (Tr. 223). The inspections did not reveal 

any dangerous conditions on the units (Tr. 223). None 

of the units at the mine have ever caught fire, and none 

"never even get hot" (Tr. 224). 

On cross-examination, Mr. Sanders stated that while he 

didn't open the charging unit in question on January 18, 1983, 

he conducted a visual inspection and detected no bare or 

frayed edges, and "everything was restrained properly." 

He did not recali a piece of equipment being charged that 

day (Tr. 224-225). 

Charles F. Ream testified that he was the second shift 

mine foreman on the day the citation was issued, and he stated 

his prior mine experience (Tr. 225-227). Mr. Ream described 

the work that was performed to abate the citation, and it 

included the dropping of electrical trolley wires, the use 

of 120 feet of pipe, the knocking out of a six-inch solid 

block wall with a sledge hammer, and sealing it with cement. 

He indicated that two men worked four hours to do the work, 

and that the entire job took eight man hours to complete 

(Tr. 228-229). After the four inch pipe was installed, he 

1033 
tested the air with smoke tubes, and he did so over the 

batteries of the tractor or scoop which was at the charging 

station, as well as over the charger itself, and he indicated 

a 60% improvement in the air flow over what it was with the 

three inch pipe (Tr. 230). 

On cross-examination, Mr. Ream conceded th~t he did not 

take a smoke test directly over the battery charging unit, 

but took it inside the charging station "up towards the 

wall," about ten feet from the wall. He confirmed that he 

also used a smoke tube to test the air before he took the 

three inch pipe out, and he did so to determine how much 

of an improvement he would have with the four inch pipe 

(Tr. 232). He confirmed that he was not present on January 18 

or 19, 1983, when Mr. Burnatti was at the mine (Tr. 234). 

Robert DuBreucq, mine superintendent, testified as to 

his background and experience, and he confirmed th~t he and 

the mine foreman drafted and approved the mine ventilation 

plan (Tr. 2340-236). 

Mr. DuBreucq ~tated that after he was informed that the 

citation was issued, he instructed Mr. Ream to install a 

larger pipe, and he confirmed that charging stations at the 

mine were set up identically to the one cited by Mr. Burnatti. 

Mr. DuBreucq confirmed that he called state inspector 

Frank Behopin on the evening of January 18, 1983, and he 

came to the mine the next day to speak to Mr. Burnatti, 

but missed him (Tr. 238). 

Mr. DuBreucq identified exhibit R-1 as a State of 

Pennyslvania memorandum dated June 13, 1978, and he explained 

the interpretation concerning the location of charging units 

as follows (Tr. 239-241): 

Q. Do you know who Walter J. Vicinelly is? 

A. Director of Deep Mine Safety. 

Q. That's for the State of Pennsylvania? 

A. Yes. 

Q. This memo is dated June 13, 1978? 

A. Yes. 

Q. Now, I direct your attention to the second 

page of this. Well, prior to going any further, 

I would move for Respondent's Exhibit 1 into 

evidence. I think the relevance has been shown 

that it was handed to him by the state inspector 

as a body, and the interpretation of state law. 

1034 
Q. 6n the second page of this, the paragraph 

that is underlined here, "accordingly, whenever the charging battery in the chargers 

are ventilated by the same split of air, the 

air must pass first over the charger, and 

then over the batteries before entering the 

return air." Now, that document doesn't say 

that they have to be as far apart as possible, 

or that they have to be at the beginning, at 

the entrance to the crosscut. Did Mr. Behopin 

discuss that with you at all, as to--

A. No, his interpretation of this, and the 

prior, according to what I'm told anyway, the 

prior state inspector of '78, their interpretation 

was, you put the charger out on the corner, the 

batteries as far back the wall as possible. The 

more you maximize the distance between the two, 

the less likely you ever have a problem of the 

charger igniting gasses off the battery. 

Q. Did Mr. Behopin, on January 19th, tell you 

what position he would take on the moving of 

the charging unit? 

A. He said he didn't want it moved. And, that 

he would talk to the federal people about it. 

Q. Did Mr. Behopin say that he would take any 

action if you did move? 

A. He said it was the old cop routine again, 

you know, he don't want it moved and that's it. 

But, he will, you know, Frank is a reasonable 

man, and Frank said he would talk to the federal 

and get this resolved, you know. 

Q. Do you know whether he talked to Mr. Burnatti 

that day? 

A. He talked to Burnatti, and other people, what 

they said, they never told me. 

Q. Now, did there come a time, sometime later, 

when Mr. Behopin said that he would permit you 

to move the chargers further into the crosscut? 

A. This issue here went on for at least two 

weeks. And, then again, there was conversation 

between the state and MSHA, at least what I'm told, 

1035 
I don't know directly of them, but, there was 

conversations on this daggone thing that we're 

on, and about three weeks later, the issue 

disappeared. That's how it is. It isn't that 

we radically moved the charger anywhere, or 

radically did anything. The issue simply 

disappeared. 

Mr. DuBreucq stated that prior to Mr.• Burnatti' s 

inspection, other MSHA inspectors would check the vent pipe 

to determine whether the air was going through the pipe. 

This was done by breaking a smoke tube near the pipe, and 

no one expected all of the air in the station to vent through 

that pipe (Tr. 245). 

Inspector Burnatti was recalled by the bench, and he 

stated that on January 18, 1983, his notes reflect that no 

equipment was in the charging station, but that at the time 

the order issued the next day, a Kersey tractor was there 

(Tr. 285). He also stated that he was not present when the 

respondent was abating the condition, and he explained as 

follows (Tr. 287-289): 

JUDGE KOUTRAS: Right. So, as far as you 

were concerned, since they still didn't have 

the-- and the broke some additional smoke tubes, 

and you found that they were still having the same 

problem, as far as you were concerned they 

hadn't achieved compliance? 

THE WITNESS: No. 

JUDGE KOUTRAS: And, based on what you saw, 

you didn't think that they did very much work 

there? 

THE WITNESS: Um-hnun. Little or none. 

JUDGE KOUTRAS: Little or none? Had Mr. Ream 

told you, or had you inquired of Mr. Ream, and he 

told you that they did four hours, that they dropped 

the trolley wire, they did all these things, and 

he testified too, would your position be different? 

THE WITNESS: No. 

JUDGE KOUTRAS: Why? 

THE WITNESS: Because, I don't feel that's an 

honest effort to correct .the condition. 

1036 
JUDGE KOUTRAS: Well, what else can they do, 

as of that point? 

THE WITNESS: Well, for one thing, I made 

suggestions, you know, I don't want to keep 

harping on this charging unit but, as.long 

as you continue to let that unit sit there, 

okay? There is no way in hell, excuse 

the expression, that you're going to gain 

compliance. 

JUDGE KOUTRAS: Well, that's the whole point 

though. So, you did stress the moving of 

the unit? 

THE WITNESS: Oh, yes. 

JUDGE KOUTRAS: And, that's why I asked them 

why they didn't do it to experiment. 

THE WITNESS: I also suggested deflective 

canvas, building a wall, they suggested building 

a wall across the entire intake entry, which 

is ridiculous. But, again, if they want 

to do it that way that's their prerogative. 

JUDGE KOUTRAS: All right. You heard the 

testimony about the swirling. That due to 

the location of this place, some of the air 

is going to go down the entry, and all of it 

is not going to go through the exhaust pipe, 

that's true isn't it? And, that's why you issued 

the citation? 

THE WITNESS: Yes. Like he testified, like 

Mr. Hadden testified, that's standard, that's 

true. 

JUDGE KOUTRAS: And, your interpretation is 

that a hundred percent, that every bit of air 

that goes in is used to ventilate the battery 

charging station, or the batteries, has to go 

out that? 

THE WITNESS: Yes, that's my training, CMI 

training, that's what it was. The air current 

ventilating the charging station must be 

directed to the return, and that's the air current. 

If it's out there in that turbulence, I can't 

help that. That's the air current. 

1037 
JUDGE KOUTRAS: So, your theory was that that 

·was part of the problem stationed where it was, 

and had they moved it further .in it wouldn't 

be sitting there, is that right? 

THE WITNESS: That's true. Possibly.• 

JUDGE KOUTRAS: Would that cause them. a logistical 

problem? 

THE.WITNESS: I don't know what you mean. 

JUDGE KOUTRAS: What I'm saying is, is the 

position of the battery charging unit, why does 

the operator insist on having it there? 

THE WITNESS: Well, their reasoning was due 

to the state. 

JUDGE KOUTRAS: Forget the state. Does it 

make it easier, or more difficult to charge a 

piece of equipment? Does it make any difference? 

THE WITNESS: It doesn't matter. The piece of 

equipment comes with so many lengths of cable, 

to reach the machine, so, it can be positioned 

anywhere. And, does it matter? No, I'd say it's 

no matter of a convenience for anybody. 

Findings and Conclusions 

In this case the issue is whether or not the respondent 

violated the provisions of cited mandatory standard 30 C.F.R. 

§ 75.1105, which states as follows: 

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 fireproof construction. 

The petitioner's proposal for assessment of civil penalty 

seeks a penalty assessmentof $650 for the violation cited in 

the section 104(a) Citation No. 2015155, issued by Inspector 

Burnatti on January 18, 1983. The subsequent section 104(b) 

Order issued by Inspector Burnatti when he found that the cited 

1038 
conditions -were not abated to his satisfaction is not in issue 

in this civil penalty case, and the petitioner does not include 

that Order as part of its proposal for assessment of civil 

penalty. However, while the question of timely abatement 

and whether or not the inspector abused his discretion in not 

extending the abatement time is not directly at issue in this 

case, I have taken respondent's abatement efforts into consideration in considering the element of good faith compliance 

found in section llO(i) of the Act. In short, I have considered 

this question in the assessment levied by me for the violation 

in question. 

Fact of violation 

In defense of the citation, the respondent argues that 

since the three-inch pipe was drawing some air to the return 

on January 18, there was no violation. Respondent asserts that 

MSHA's interpretation of the second sentence of section 75.1105, 

that all air currents used to ventilate areas enclosing a 

battery charging station shall be coursed into the return is a 

"new" interpretation and contrary to its previous policy which 

did not require all air currents to be vented into the return. 

According to the-respondent, this prior policy was consistent 

with the evidence at hearing that it was not possible to course 

all air currents to the return. 

Respondent's defense is rejected. I cannot conclude from 

the record here that the respondent has established that MSHA's 

policy was that all air need not be coursed into the return. 

Simply because other inspectors prior to Mr. Burnatti's inspection saw fit not to utilize smoke tubes to determine where the 

air was being coursed is insufficient to establish any such 

asserted policy. To the contrary, I find the testimony of 

MSHA's witnesses on this issue to be credible, and I accept 

their interpretation Qf the standard in this case. The designated language of section 75.1105, requires air currents used 

to ventilate such battery charging areas to be coursed directly 

into the return. The languages seems clear to me, and 

respondent has not established that the intent of the cited 

standard was to permit less than all of the air to be coursed 

into the return. 

Section 75.1105 requires that air used to ventilate battery 

charging stations be directed into the return. The standard is 

clear on its face. It does not stat~ that only "some of the 

air" or "most of the air" must be coursed into the return. It 

simply states "air." The inspector's interpretation is that 

all such air must be coursed into the return, and I accept this 

1039 
as a logical interpretation and application of the standard. 

Respondent concedes that all of the air was not coursed into 

the return. Further, petitioner has established a prima facie 

case by a preponderance of the credible testimony presented 

to support the citation, and the respondent has not rebutted 

this showing by the petitioner. Accordingly, the citation IS 

AFFIRMED. 

Although I recognize the respondent's plight in attempting 

to pacify certain State mining inspectors who insisted that 

the cited battery charging unit not be moved from the location 

where the inspector found it, this fact does not excuse the 

citation, nor may it serve as an absolute defense to the citation, nor may it serve as an absolute defense to the citation. 

However, I have considered this fact as mitigating the respondent's culpability, and I have taken it into consideration in 

negligence findings. 

Good Faith Compliance 

In their posthearing briefs, the parties include the 

question of the validity of a section 104(c) Order of Withdrawal, 

No. 2015156, issued by Inspector Burnatti on January 19, 1983, 

after he found that "little or no effort" was made to abate the 

conditions which prompted him to issue his section 104(a) 

citation, No. 2015155, on January 18, 1983. 

Although the issue of "good faith" compliance is relevant 

in this civil penalty case, the validity of the order is not 

an issue here. The question presented is whether or not the 

respondent violated section 75.1105, as alleged in the section 

104(a) citation, No. 2015155, issued by Inspector Burnatti on 

January 18, 1983. MSHA's proposal for assessment of civil 

penalty is limited to that citation, and does not include the 

order. In short, I conclude that MSHA is bound by its pleadings, and may not now seek to expand on its civil penalty 

proposal by adding the order. 

In its posthearing brief, MSHA argues that the respondent 

exhibited "bad faith" in abating the citation. MSHA's conclusion in this regard is based on the fact that Inspector Burnatti 

issued a section 104(b) withdrawal order. Further, MSHA asserts 

that the inspector was never informed of respondent's abatement 

efforts, nor was he informed concerning how many hours were 

spent on the abatement work, or whether a work stoppage had to 

occur in order to work on the abatement. 
After observing the witnesses during the hearing, and 

upon close examination of all of the testimony in this case, I 

am convinced that Inspector Burnatti was chagrined because the 

respondent failed to move the cited unit to another location, 

and that the respondent initially resisted other recommendations 

which he purportedly suggested. For its part, the, respondent 

resisted moving the unit because to do so would violate state 

law. MSHA concedes that the state law ''is in conflict" with 

the Federal standards. Viewed in this context, I cannot conclude that on the facts of this case, respondent made "little 

or no effort" to abate the cited conditions. 

While it may be true that the respondent should have 

conducted more extensive smoke tests once its initial abatement 

efforts were completed to insure that all of the air coursing 

over the unit was going out of the return, the record here does 

support a finding that the respondent did in fact perform work 

to achieve compliance. 

The record here indicates that the respondent had never 

previously been issued a section 104(b) order for failure to 

abate any cited conditions in its mine, and this includes a 

period of. some seven years during which the mine was inspected. 

I am convinced that Inspector Burnatti honestly believed that 

simply moving the unit would have achieved compliance. However, 

when this move met with resistance, he obviously believed that 

"little or no effort" was made by the respondent to achieve 

abatement. However, faced with an obvious conflict with the 

state mining inspectors, I cannot conclude that the respondent's 

reluctance to initially move the unit to another location 

constitutes "little or no effort" to abate. 

Shift foreman Korber confirmed that as soon as the battery 

charging unit was cited, he pulled the power and tagged the 

unit power plug to prevent anyone from using it until the cited 

conditions could be corrected. Mr. Korber then immediately his 

supervisors who instructed him to obtain the necessary materials 

to abate the conditions. A new ventilation pipe was installed, 

and a check curtain was installed in an attempt to correct the 

cited ventilation problem. 

Shift foreman Ream described the work which was performed 

in correcting the cited conditions, and this work included the 

use of 120 feet of pipe, the knocking out and re-sealing of a 

cinder block wall, and the re-arrang1ng of certain wiring. He 

testified that it took two men four hours to do this work. 

1041 
MSHA Inspector Alsop abated the citation on January 20, 

1983. Since he did, I assume he was satisfied with the 

respondent's abatement efforts, and he confirmed that the UMWA 

walkaround representative expressed satisfaction oyer the 

respondent's abatement efforts. 

In view of the foregoing, I conclude and find that the 

violation was abated in good faith, and this is reflected in 

the civil penalty assessed by me in this case. 

Size of Business and Effect of Civil Penalty on the Respondent's 

Ability to Continue in Business. 

Based on the stipulations by the parties, I conclude that 

the respondent, as a corporate operator, is a large mine 

operator. However, its Winber Mine 78 operation is a small-tomedium sized operation. 

The parties have stipulated that a reasonable penalty 

assessment for the violation in question will not adversely 

affect the respondent's ability to continue in business. Since 

I believe that the penalty assessed by me for the violation in 

question is reasonable, I conclude and find that it will not 

adversely affect the respondent's ability to continue in 

business. 

History of Prior Violations 

The parties have stipulated to the respondent's prior 

history of violations, and this is recited at pages 2-3 of this 

decision. For an operation of its size, I cannot conclude that 

this compliance history warrants any additional increase in the 

civil penalty assessed by me for the violation in question. 

Negligence 

Inspector Burnatti conceded that he found "low negligence" 

in connection with the section 104(a) citation, and he explains 

his reasons for this finding (Tr. 41). Respondent has established through credible evidence and testimony, which is not 

rebutted by the petitioner, that it located the battery charger 

in question where it did because a State inspector insisted that 

it not be moved from that location. I have considered this fact 

in mitigation of the penalty assessed for the violation. However, I believe that with a little more diligence, including the 

use of smoke tubes as a preventive measure, as well as some 

experimentation concerning the possible relocation of the 

battery charging unit, the respondent may have avoided the MSHA 

1042 
citation. Accordingly, I conclude and find that the violation 

resulted from the respondent's failure to exercise reasonable 

care, and that this supports a finding of ordinary negligence. 

Gravity 

Inspector Burnatti testified that when he first observed 

the battery charging unit, he visually inspected it and found 

nothing defective. He confirmed that since no equipment was 

being charged at that time, no hydrogen gas was present. He 

made no tests for the presence of any such gas, and this was 

true even when he went back the next day and found a piece of 

equipment being charged. His concern was that in the event of 

a fire, the ventilation which caused the air going over the 

charging unit to go down the intake rather than the return 

would carry smoke to the working section. He then indicated 

that even if this were to occur, no "fatal or permanent 

disabling" injuries would result because the section had a 

second alternative escapeway available for the miners working 

in the section. 

Respondent's chief electrician Sanders testified that he 

visually inspected the battery charging unit the day the 

citation issued and found nothing wrong with it. He also 

confirmed that he had last inspected that unit on January 3, 

and 12, 1983, and found it to be in proper operating condition. 

He explained the operation of the unit, and detailed the 

functioning of the protective fusing and short circuit fuses 

and other devices which are engineered to preclude overheating 

and fires. UMWA walkaround representative Morgatt, who also 

serves as the chairman of the mine safety committee, testified 

that he was with the inspector when the citation issued, and 

that shift foreman Korber immediately tagged out the unit when 

informed of the citation. Mr. Morgatt could not recall whether 

any equipment was being charged at that time, and he did not 

indicate that he observed anything wrong with the unit itself. 

After careful consideration of all of the evidence adduced 

in this case, I conclude and find that the violation was serious. 

In the event of any arcing or sparking during the battery 

re-charging procedure, it seems clear to me that any resulting 

fire or short circuiting would present the possibility of contaminated air being coursed into the working faces. 

Significant and Substantial 

I conclude and find that the inspector's finding that the 

violation was significant and substantial should be affirmed. 

Although I have considered the respondent's arguments concerning 

1043 
the positioning of the battery charging unit in question, the 

fact is that any fire or other incident resulting from all of 

the air not being venting into the return would jeopardize the 

health and safety of miners on the section and wou1d reasonably 

likely result in a hazard to the miners. Accordingly, the 

inspector's finding in this regard IS AFFIRMED. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, I conclude and find that a civil penalty assessment 

of $350 is appropriate for the violation in question. 

Order 

The respondent IS ORDERED to pay a civil penalty assessment 

of $350 within thirty (30) days of the date of ~his decision, 

and upon receipt of payment by the petitioner, this case is 

dismissed. 

y~~/??~ ~.e?'A~ Koutr~~ · 

Administrative Law Judge 

Distribution: 

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

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

Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver 

Building, Pittsburgh, PA 15222 (Certified Mail) 

1044 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

APR.24 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SUPERIOR ROCK PRODUCTS, 

Respondent 

DECISION 

Docket No. WEST 81-261-M 

A.C. No. 42-01711-05001 

Mt. Pleasant Pit Mine 

Appearances: Robert J. Lesnick, Esq., Office of the Solicitor, 

U.S. Department OT Labor, Denver, Colorado, 

for Petitioner; 

Respondent did not appear. 

Before: Judge Morris 

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

Administration, (MSHA), charges respondent with violating various 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 801 et seq., (the "Act"). 

After notice to the parties, a hearing on the merits was held 

on September 7, 1983 in Salt Lake City, Utah. Respondent failed to 

appear at the hearing and further failed to respond to the Order 

To Show Cause issued on September 9, 1983. 

Issues 

The issues are whether respondent violated the regulations and, 

if so, what penalties are appropriate. 

Citation 583694 

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

Regulations, Section 56.14-6 which provides: 

56.14-6 Mandatory. Except when testing 

the machinery, guards shall be securely 

in place while machinery is being operated. 

MSHA's Inspector William W. Wilson has been in the agency's 

employ since 1978. His mining experience began with Phelps Dodge 

Corporation in 1968 (Tr. 3-5). 

1045 
On November 21, 1980, witness Wilson inspected respondent's 

single bench sand and gravel operation (Tr. 5, 6). Kenneth Allred, 

who identified himself as the vice-president and general manager, 

stated the mine had been operating since the previous summer (Tr. 6). 

The inspector did not know about the' existence of the mine 

until he saw it while he was travelling over U. S. Highway No. 89 

(Tr. 7). In viewing the plant, the inspector observed a Caterpillar 

generator and a Clarke front-end loader. Generators and loaders of 

this type are manufactured in the State of Illinois (Tr. 7). 

The inspector wrote this citation because the guard for the 

48 inch high shaker pulley and D belt were not in place. This 

condition constituted a hazard to workers on the walkway (Tr. 8-

12, Exhibits 1, 2 3). Personnel could be caught on the moving 

parts. There were two, sometimes three, employees on the site 

(Tr. 12, 13). The inspector considered this citation and all except 

one of the remaining citations to be significant and substantial 

(Tr . 13-15) • 

Citation 583695 

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

Regulations, Section 56.14-1, which provides: 

Guards 

56.14-1 Mandatory. Gears; sprockets; chains; 

drive, head, tail, and takeup pulleys; flywheels; 

couplings; shafts; sawblades; fan inlets; and 

similar exposed moving machine parts which may 

be contacted by persons, and which may cause 

injury to persons, shall be guarded. 

The MSHA inspector took photographs showing that the chain 

drive belt (45 inches from the walkway) feeding the shakers and the 

D-belt assembly was not guarded. Exhibit 1 shows the highly visible 

unguarded condition (Tr. 15, 17). If the two or three employees 

were standing on the walkway, they could be caught in the chain 

drive and pulley assembly (Tr. 16). 

Citation 583697 

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

Regulations, Section 56.14-1, cited above. 

The MSHA inspector testified that the west side of the D belt 

assembly underneath the shaker was not guarded (Tr. 17). In addition, 

the area was accessible to employees (Tr. 17, Exhibit 3). There 

1046 
were footprints within 17 inches and the assembly was six to 

seven inches above ground level (Tr. 19). In this area and in 

the previously cited areas an employee could contact the pinch 

points without tripping or lunging (Tr. 19). 

Citation 583698 

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

Regulations, Section 56.12-13(b). The cited section in full provides 

as follows: 

56.12-13 Mandatory. Permanent splices and 

repairs made in power cables, including the 

ground conductor ~here provided, shall be: 

(a) Mechanically strong with electrical 

conductivity as near as possible to that of 

the original; (b) Insulated to a degree at 

least equal to that of the original, and 

sealed to exclude moisture; and (c) Provided 

with damage protection as near as possible 

to that of the original, including good 

bonding to the outer jacket. 

Inspector Wilson observed and photographed certain uninsulated 

electrical wires at the worksite. Bare metal was showing in more 

than one place (Tr. 20-24, Exhibits 4-9). This condition was 

adjacent to a travelled walkway (Tr. 24). The upper wire on 

Exhibit 8 was 53 inches above the ground (Tr. 24). 

Citation 583699 

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

Regulations, Section 56.4-24(b), which provides: 

56.4-24 Mandatory. Fire extinguishers 

and fire suppression devices shall be: 

(b} Adequate in number and size for the 

particular fire hazard involved. 

Inspector Wilson could not locate any fire extinguishers on 

the property (Tr. 26, 27). Any fire would not be controlled. 

(Tr. 26) . 

Inspector Wilson would not consider this violation as significant 

and substantial if he was writing the citation on the day of the 

hearing (Tr. 27). 
Citation 583700 

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

Regulations, Section 56.26-1, which provides: 

56.26-1 Mandatory. The owner, operator, 

or person in charge of any metal and nonmetal mine shall notify the nearest Mining 

Enforcement in Safety Administration Metal 

and Nonmetal Mine Health and Safety subdistrict office before starting operations, 

of the approximate or actual date mine 

operation will commence. The notification 

shall include the mine name, location, the 

company name, mailing address, person in 

charge,. and whether operations will be 

continuous or intermittent. 

When any mine is closed, the person in 

charge shall notify the nearest subdistrict off ice as provided above and 

indicate whether the closure is temporary 

or permanent. 

According to Inspector Wilson, company representative Allred 

stated the company had been in operation and the inspector observed 

that.himself. Allred did not claim the company had registered 

under another name. In fact, Allred pleaded ignorance of MSHA's 

regulation (Tr. 27, 28). 

Discussion 

The evidence offered in connection with each citation 

establish a violation of the relevant regulation. Accordingly, 

each citation should be affirmed. 

I further rely on the inspector's judgment and affirm the 

significant and substantial assertion as to all of the citations 

except number 583699, (fire extinguishers). In connection with 

this citation, the inspector indicated at the hearing that he 

did not consider that violation to be significant and substantial. 

Accordingly, the allegations of significant and substantial 

as to Citation 583699 are stricken. 

Civil Penalties 

The six criteria for assessing a civil penalty is set forth 

in 3 O U.S. C. § 8 2 0 ( i) • 

1048 
The Secretary's Office of Assessments proposes no penalty 

points for respondent's size or history of previous violation. 

Negligence points are assessed for all citations except number 

583699 (fire extinguishers). The assessment points proposed for 

gravity appear to be in order. 

The Office of Assessment failed to credit respondent with any 

good faith, but each citation shows respondent abated the violative 

condition. By virtue of that fact, the Secretary's proposed assessments appear to be excessive. 

The proposed assessments should be modified as follows: 

Citation No. 

583694 (guards not secured) 

583695 (unguarded belt) 

583697 (unguarded D belt) 

583698 (splices not insulated) 

583699 (fire extinguishers) 

583700 (failure to report) 

. ORDER 

Original 

Proposed Disposition 

$ 44 

44 

44 

34 

8 

8 

$ 25 

25 

25 

20 

6 

6 

Based on the facts and conclusions of law recited herein, I 

affirm the following citations and assess the penalties as noted 

thereafter: 

1. Citation No. Penalt~ 

583694 $ 25 

583695 25 

583697 25 

583698 20 

583699 6 

583700 6 

2. Respondent is ordered to pay the sum of $107 within 

40 days of the date of this order. 

Law Judge 

Distribution: 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Mr. William Curl, President, Superior Rock Products Company, 

440 West 700 South, Mt. Pleasant, Utah 84647 (Certified Mail) 

/ot 

1049 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 261984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Complainant 

v. 

METRIC CONSTRUCTORS, INC., 

Respondent 

. . 

DISCRIMINATION" PROCEEDING 

Docket No. SE 80-31-DM 

Florida Mining & Concrete Co. 

DECISION ON REMAND 

Before: Judge Koutras 

Statement of the Proceeding 

On February 29, 1984, the Commission issued its decision 

in this matter and remanded the case for additional findings 

concerning certain remedial aspects of the case. These 

additional matters are discussed at pages eight and nine of 

the Commission's decision served on the parties, and they 

include the question of payment of overtime as part of the 

back pay award, and the question of payment of appropriate 

expenses incurred by the complainants for their attendance 

at the hearings held before the Commission Judge who decided 

the cas.e. 

In response to my Order of March 7, 1984, the parties 

have stipulated and agreed that the relief due the complainants, 

as encompassed by the Commission's decision and remand, has 

been settled by mutual agreement of the parties without the 

necessity of additional hearings or discovery. In this regard, 

the parties have filed a joint stipulation whereby they 

stipulate that the amounts of back pay, interest and hearing 

expenses that would be owed by the respondent to the 

complainants under the Commission's decision of February 29, 

1984, are as follows: 

Name Back Wa9:es Interest Expenses 

Joe E. Brown $2736.75 $1642.05 $72.00 

James w. Parker -0- -o- -oJohn w. Parker 3823.25 2293.95 72.00 

David Mixon 3823.25 2293.95 -oJohnny Denmark 3823.25 2293.95 -0-

James McGuire 3223.25 1933.95 72.00 

Van T. McGuire 3836.25 2301.75 48.00 

$21,266.00 $12,759.60 $264.00 

l{J50 
In .support of their joint stipulation, the parties 

advise that the back wage figures include amounts representing 

overtime compensation computed at one and one-half times the 

basic hourly wage rate for every hour that would"have been 

worked over forty (40). per week. The expenses represent 

the travel expenses incurred by the complainants in attending 

the three days of hearings in Tallahassee, Florida, away 

from their homes in Perry, Florida, which were the only 

expenses incurred by the complainants in attending the 

hearings. 

ORDER 

Respondent IS ORDERED.to pay the compensation listed 

above, as agreed to by the parties, and payment is to be made 

within thirty (30) days of the date of this decision and order. 

- .,,, 

?.z: L/ -#----· 

_;.;;~~~outras ,/ .,~ ~-/~ 

Administrative Law Judge 

Distribution: 

William H. Berger, Esq., Office of the Solicitor, U.S. Department of Labor, 1371 Peachtree St., NE, Atlanta, GA 30367 

(Certified Mail) 

Barry F. Wisor, Esq., Office of the Solicitor, U.S. Department 

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

Mail) 

J. Dickson Phill'ips III, Esq., Fleming, Robinson, Bradshaw & 

Hinson, P.A., 2500 First Union Plaza, Charlotte, NC 28282 

(Certified Mail) 

/ejp 

1051 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 2 61984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

BELCHER MINE, INC., 

Respondent 

DECISION 

Docket No. SE 84-4-M 

A.C. No. 08-00729-05502 

Belcher Mine 

Appearances: K. S. Welsch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, 

for Petitioner; 

Before: 

Mr. Warren C. Hunt, President, Belcher Mine, 

Inc., Aripeka, Florida, for Respondent. 

Judge Kennedy 

This matter came on for an evidentiary hearing in 

St. Petersburg, Florida on Thursday, February 16, 1984. 

The proposal for penalty was based on a closure order that 

charged the gantry rig supporting the conveyor belt on an 

aggregate crusher was in imminent danger of collapse. {See 

PX-3 attached.) The penalty proposed was $750. 

The Unvarnished Facts 

On the evening of Monday, August 1, 1983, an MSHA 

inspector, Alonzo Weaver, was present at the Belcher Mine 

for the purpose of making an illumination inspection. While 

he was waiting for darkness, he observed a bulldozer being 

used to position and reposition a Pettibone Universal crusher 

that was operating a dragline to extract and crush gravel 

from a pit located on the edge of the Gulf of Mexico. He 

particularly noticed that the dozer had a bad clutch so that 

whenever it acceierated to push against the crusher's draw 

bar it would buck and jerk causing the tall gantry rig on 

the crusher and conveyor belt to sway and vibrate. The 

inspector apparently called these circumstances to the 

attention of Mr. Miles, the operator's foreman. Miles 

asked the inspector to accompany him to the crusher. There 

the inspector observed that the two six-inch steel channels 

that supported the gantry rig were anchored through a pinion 

1052 
but that the "eyes" had rusted through to the point that 

they provided little or no support for the gantry and the 

five to eight ton conveyor belt. (See PX-4 attached.) 

The inspector immediately recognized the hazard this 

condition presented to both the crusher operator who worked 

immediately under and around the gantry and the dozer operator 

who drove the dozer around and under the conveyor belt. The 

inspector asked the foreman what he knew about the condition 

and the foreman told him the broken and fractured anchor had 

been in that condition for a week or more. Miles also said 

he felt the condition was so hazardous he was afraid to go 

near it. When the inspector asked Miles why the operator 

was not using the spare crusher, Miles said it was "down" 

and that he had been told to use the Universal to keep up 

with demand for aggregate production. 

Miles asked the inspector to treat their conversation 

in confidence as he feared for his job if the operator 

found out that he had reported the violation. The inspector 

told him he would be protected and then issued an imminent 

danger closure order. 

At the closeout conference a few days later the superintendent, Bob King, argued the condition was of recent 

origin and that in any event it was not hazardous because 

the dozer operator was protected by roll bars. The inspector 

did not agree but in the administration's "spirit of 

cooperation" reduced the gravity by limiting the finding of 

exposure to one miner, and the seriousness to lost workdays 

or restricted duty instead of death or a disabling injury 

as required by a finding of imminent danger. 1/ 

The Tarnished Hearing 

At the hearing, the inspector changed his mind and 

testified the condition could have resulted in death or 

a disabling injury to either the crusher or dozer operators. 

Pursuant to departmental policy, however, the inspector 

repeatedly evaded my questions about what Miles said about 

the hazardous condition. Weaver finally testified that "all 

l/Inspectors are so torn between their sworn duty to enforce 

the law and the administration's policy of "cooperative 

enforcement" that it is well neigh impossible for them to 

reconcile their findings of violation with their attempts 

to trivialize gravity and culpability. Too often the law's 

policy of deterrence has been undermined by the administration's policy of appeasement. 

1053 
Miles said was that he would shut the crusher down and contact 

Mr. King~ That was all he said. I don't recall whether he 

said anything about how long it had been there." This was 

not true. The solicitor made no attempt to cor~ect the false 

testimony. 

On cross examination, the operator, who was not represented by counsel, succeeded in establishing that the inspector 

had in all probability examined the crusher in question about 

two weeks earlier but had not cited the condition he found 

on August 1. Just before the noon break, the operator also 

announced he would produce two witnesses, Miles, the foreman, 

and Bob King, the superintendent who would testify that the 

inspector was wrong in stating that "in his opinion" the 

condition had existed for several weeks. 

To clarify confusion over how many crushers were at 

the site, the trial judge directed the solicitor to furnish 

the operator and the judge with copies of the inspector's 

contemporaneous notes. The inspector had represented that 

these notes would disclose the serial numbers for three 

crushers, not two, as claimed by the operator.' As it turned 

out, the notes of the earlier inspection on July 14 were 

not available--counsel said they were in Birmingham, Alabama. 

Consequently, the solicitor copied and furnished only the 

notes of the August 1, 1983 inspection together with the 

inspector's "Willful Violation Review" memorandum. 

At the time the solicitor offered to furnish the 

August 1 notes he knew Mr. Miles was to be a witness for 

the operator on the issues of gravity and prior knowledge • 

. He also knew that Mr. Weaver's notes stated that "an employee" 

of the operator told him on August 1 that the condition on 

the anchor had "Been that way for a week or more"; that 

the employee was "Scared to get near it"; and that the only 

employee the inspector had talked to on August 1 about the 

anchor was Mr. Miles. But again the solicitor made no 

attempt to correct the inspector's false testimony. 

When the hearing resumed after the noon break, the 

trial judge asked Mr. Weaver who the employee referred to 

in his notes was. The inspector and the solicitor simultaneously "objected" to the ~uestion one on the ground it 

was "hearsay" and the other invoking the "informer privilege." 

When both the solicitor and the inspector admitted the 

"employee" referred to was in the courtroom and had been 

identified as one of the two individuals who would testify 

on behalf of the operator the objections were overruled. 

1054 
In elaboration of his position, the solicitor indicated 

that it is the Secretary's policy to assert the informer 

privilege even if that results in suppressing evidence 

relevant and material to the gravity of the charge and to 

the credibility of an operator's defense. I fotlnd this the 

most bizarre twist on the policy of "cooperative enforcement" yet encountered. I have many times noted the commonality of interest between the so-called prosecution and 

defense in these cases but never before realized the informer 

privilege was being used to suppress evidence necessary to a 

fair determination of the degree of culpability of an operator. 

I find it hard to accept that the solicitor is so 

legally obtuse and ethically confused as to believe a grant 

of confidentiality to an informer takes precedence over a 

witness's solemn oath to tell the truth. Or that the 

informer privilege justifies palming off perjured testimony 

in an adjudicatory proceeding. 

I make these observations and findings because I am 

disturbed, as I believe the Commission will be disturbed, 

to learn of the extremes to which the solicitor may go in 

turning a deaf ear to false and misleading testimony. It 

may be that in the eyes of the solicitor there is no conflict between "cooperative enforcement" and "vigorous 

enforcement." It may also be that "cooperation pays higher 

dividends than confrontation" but when the "dividend" is 

death or a disabling injury the law demands an honest 

accounting. Cutting corners with the truth through a cynical 

assertion of the informer privilege is sharp practice. If 

countenanced through some misguided plea to "live and let 

live" miners will instead die and public confidence in the 

fair administration of justice will be sharply diminished. 

I urge the solicitor to abandon the view that "truth is a 

lie that hasn't been found out." 

It is hornbook law that the informer privilege may not 

be used to suppress evidence if it appears either from 

evidence in the case or otherwise that an informer may be 

able to give testimony necessary to a fair determination of 

the guilt or innocence of a party. The interest in protection against reprisal never outweighs the public interest in 

a full and true disclosure of the facts in a Commission 

proceeding. Section 105(c) provides specific protection 

against any attempt by an operator to retaliate against an 

informer witness. 

The solicitor knew or should have known of the procedures available under the law to bring his perceived dilemma 

1055 
to the in camera attention of the trial judge. The issue 

.was notli'ovel and the method for its resolution is clearly 

set forth in Supreme Court Standard SlO(c) (2) to the Federal 

Rules of Evidence. The solicitor can hardly claim ignorance 

of the law as a defense to his abusive use of the· informer 

privilege. 

For these reasons I must condemn in the strongest terms 

possible the subornation that occurred and serve warning 

that if it happens again I shall feel compelled to refer the 

matter to the Commission and the criminal division for such 

disciplinary action as they deem appropriate. 

The Operator's Rectitude 

Whatever the ethical astigmatism of the prosecution, 

respondent's president, Mr. Warren C. Hunt, quickly ascertained 

that Mr. Miles was trying to carry water on both shoulders. 

Whereupon he withdrew his defense, declined to present his 

witnesses and agreed to settle the matter for the full 

amount of the penalty proposed. Upon motion duly made, an · order approving settlement was entered from the bench. 

The premises considered, therefore, it is ORDERED that 

the decision to approve settleme t be, and hereby is, CONFIMRED 

and the matter DISMISSED. 

Attachment 

Distribution: 

oseph B. Kennedy 

Administrative Law 

Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1371 Peachtree St., N.W., Room 339, Atlanta, GA 

30367 (Certified Mail) 

Mr. Warren c. Hunt, President, Belcher Mine, Inc., P.O. Box 

86, Aripeka, FL 33502 (Certified Mail) 

/ejp 

1056 
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1058 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 APR 26 1984 

GEORGE A. JACK, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

. . . 

. . Docket No. WEST 83-72-D 

MID-CONTINENT RESOURCES, MSHA Case No. DENV 83-13 

INC. 

Appearances: 

Before: 

Respondent 

. . 

DECISION 

Coal Basin No. 5 Mine 

George A. Jack, Indiana, Pennsylvania, pro se: 

Edward Mulhall, Jr., Esq., Delaney & Balcomb Gle~wood Springs, Colorado, for Respondent 

Judge Carlson 

This case arose upon a complaint of discriminatory discharge filed ·by George A. Jack with the Secretary of Labor under 

section 105(c)(2) of the Federal Mine Safety and Health Act of 

1977, 30 u.s~c. § 801, et seg. Cthe Act). The Secretary, aft·er 

investigation, declined to prosecute the complaint. Mr. Jack 

then brought this proceeding directly before this Commission 

under section 105(c)C3> of the Act. 

Mr. Jack alleges that he was discharged by Mid-Continent 

Resources (Mid-Continent) in violation of section 105Cc)(l) of 

the Act. 1/ Specifically, he complained that he was fired 

1/ Section 105Cc)(l) provides: 

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 miners at the coal or other mine of an 

alleged danger or safety or health violation in a coal or other 

mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 

101 or because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about 

to testify in any 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. 

105B 
from his job as an underground miner because he reported that 

he had been injured in an accident. He seeks reinstatement and 

back pay. 

A hearing on the merits was held in Denver, Colorado on 

February 3, 1984. Complainant appeared pro se; respondent 

appeared through counsel. Both parties waived post-hearing 

briefs. 

ISSUES 

The fundamental questions to be decided are: 

(1) Whether the proceeding must be dismissed 

because the miner's original complaint was filed with 

the Mine Safety and Health Administration after the 

statutory time period for filing had elapsed. 

(2) Whether, if a valid complaint was filed, 

the miner was discharged by the mine operator in violation of section 105(c)(l) of the Act, as alleged. 

(3) What relief the miner is entitled to receive 

if the discharge was unlawful. 

TIMELINESS OF THE COMPLAINT 

Section 105(c)(2) of the Act provides that an aggrieved 

miner has sixty days after a discriminatory event in which he 

"may" file his complaint with the Secretary of Labor. Mr. Jack 

was discharged on June 17, 1982. Mid-Continent urges that the 

present proceeding is not properly before the Commission 

because the miner failed to make his original complaint.to the 

Secretary until March of 1983. The record shows that Mr. Jack 

signed his complaint on March 9, 1983 (respondent's exhibit 5). 

The form was received by the Denver, Colorado office of the 

Secretary's Mine Safety and Health Administration on March 15, 

1983. Since these dates are not in dispute, it is clear that 

the complaint was filed long after the close of the sixty day 

period mentioned in the statute. 

Relying on the Act's legislative history, the Commission 

has held that the sixty day time limit is not jurisdictional. 

The Congressional purpose was to prevent stale claims, but 

late filings by a miner may be excused "under justifiable 

circumstances." Joseph w. Herman v. IMCO Services, 4 FMSHRC 

2135 (1982). Questions of timeliness must thus be decided on a 

1060 
"case by case basis, taking into account the unique circumstances of each situation." David Hollis v. Consolidation Coal 

Company, FMSHRC , Docket No. WEVA 81-480-D (January 

9, 1984). 

In the present case I find the complainant's delinquency 

excusable. 

The evidence shows that Mr. Jack moved from Colorado to 

Pennsylyania within a week after his discharge. His testimony 

revealed a good deal of genuine "confusion between his workman • .. s. 

compensation claim and his mine safety complaint. He was of 

the apparent belief that forms filed with the Colorado 

workman's compensation authority, for example, were somehow 

essential to the filing of complaint under the mine Act; and 

he had some difficulty in securing copies of the compensation 

form. Because of his move, he also had difficulty in determining which MSHA off ice should handle his complaint. The 

complainant's testimony on these matters is generally credible. 

I am convinced that Mr. Jack misunderstood his rights under 

the Act and was confused about the proper manner in which to 

proceed. I also note that no evidence indicates that 

Mid-Continent was prejudiced by the late filing. 

REVIEW OF THE EVIDENCE 

The undisputed evidence shows that complainant was interviewed by Mid-Continent for employment in its underground coal 

mine on June 7, 1982. He came to the mine with a letter of 

recommendation from an official in a Pennsylvania mine where he 

formerly worked. Mid-Continent hired him as an experienced 

miner. He spent two days, June 10 and 11, 1982 in orientation 

and training on the surface. 

The complainant did not report for work on his next 

scheduled days, June 14 and 15, 1982, a Monday and Tuesday. 

He did report on June 16. He worked as part of a five man 

crew removing cable and doing other tasks preparatory to 

closing down a part of the mine. 

According to Mr. Jack's account, which Mid-Continent 

does not dispute, in mid-afternoon he was laying boards under 

the tires of a diesel-powered buggy as it attempted to cross 

a bridge. The crew foreman was driving; the remaining four 

members of the crew were on the bridge. As the buggy moved 

across, a part of the bridge collapsed and Mr. Jack fell 

several feet. He complained of a back injury and was instructed· by the foreman to walk to the surface. He did so. 

1061 
On the following day he did not go to the mine. He 

called the personnel off ice and spoke ultimately to Marvin 

Meyers, the personnel director. Mr. Jack told Meyers that he 

was absent because he had been injured in the accident the 

previous day; Mr. Meyers told Mr. Jack that he was terminated. 

Later that day, Meyers sent a letter informing Jack that he 

was discharged. 

Beyond those few facts, witnesses for the parties agreed 

on virtually nothing. Complainant maintains that he was fired 

because he "reported a mine accident," the bridge collapse. 

He also claims that during the course of the day he also voiced 

complaints about unsafe practices or conduct. According to his 

testimony, he twice complained to the crew foreman when the 

vehicle used by the crew was allowed to "drift back" while 

miners were behind it. He also complained, he said, that a 

cable he and the foreman were taking up was energized at 32,000 

volts. Further, Mr. Jack insisted that both management and his 

fellow miners were biased against him because he was hired 

during a hiring freeze when the operator had made known that 

operations were to be cut back. 

According to Mr. Jack, he was unable to work on June 14th 

and 15th because of altitude sickness. He claimed he had not 

adjusted to the 10,000 foot altitude of the mine. Since he 

had been in Colorado for less than a week, he said he knew no 

physicians. He visited a chiropractor who gave him a "disability certificate" which he in turn gave to Wally Wareham, 

the mine superintendent, on June 16th when he returned to work. 

The chiropractor's statement indicated that Mr. Jack was incapacitated on June 14th and 15th with "stomach upset and back 

pain" (Respondent's exhibit 2). Mr. Jack also maintain_ed that 

he telephoned the mine on both the 14th anbd 15th to report his 

inability to work. He also testified that Grant Brady, safety 

director for Mid-Continent, had informed him that he was 

entitled to miss two days of work in six months with a doctor's 

excuse. 

Mid-Continent provided a markedly different version of 

the circumstances leading to dismissal. Nannette c. Grys, 

the company's personnel clerk at the time in question, 

testified that she helped ~r. Jack fill out all his personnel 

papers on June 9, 1982. She claims that the complainant was 

"definitely intoxicated" at that time, and that she reported 

that impression to Marvin Meyers, the personnel director. 

1062 
During his own testimony, Mr. Meyers stated that he put 

the complainant on the payroll only because he had been 

instructed to do so by Mid-Continent's president. Mr. Meyers 

stated, however, that the information from Ms. Grys "alerted" 

him to watch Mr. Jack's work attendance. 

The implemented labor agreement with Mid-Continent's 

miners, he testified, places newly hired employees in probationary status for their first 60 days of work, (Article 11.2, 

respondent's exhibit 3). Under Article 6.2.9., according to 

Meyers, probationary employees could be discharged for any 

cause deemed sufficient by the company. That article is one of 

a series specifying causes for discharge. The text confirms 

his testimony. It permits discharge for: 

Any cause determined sufficient by 

the company as to an employee on 

probationary status within sixty 

(60) days of work by the employee 

after his employment. 

Mr. Meyers agreed generally with the complainant's 

account of the telephone conversation between the two of them 

on the morning of June 17. Meyers insisted, however, that he 

had decided to discharge Jack before the call was received. 

He made the decision because the miner had missed his first 

two days of actual work in the mine, and had not called in on 

those days as company policy required. Despite the company's 

power to dismiss probationary employees for any cause, Meyers 

indicated that he may not have dismissed Mr. Jack had the miner 

called in to explain his absence. 

Mr. Meyers further declared that he knew nothing of 

the accident on June 16th until Jack mentioned it during the 

telephone call on the following day. Moreover, he knew nothing 

of any safety complaints at the time he made his decision to 

fire the miner. He had heard nothing of the complaint about 

the vehicle backing incident or the electrical cable incident 

until he heard complainant's testimony at the trial, he 

testified. 

Mr. Meyers knew that Mr. Jack had not called on June 14 or 

June 15 because all such telephone reports are tape recorded 

when made, and are then noted in a log by the mine clerk. The 

log, Mr. Meyers testified, contained no entries for calls on 

June 14 or 15. 

As to what happened after Mr. Meyers told Mr. Jack that 

he was fired, there is little dispute. Meyers sent Jack a 

letter formally advising him that he was terminated for "being 

absent from work without good cause" (respondent's exhibit 1). 

Mr. Jack returned his equipment and supplied a company paramedic with information for state workman's compensation claim. 

1063 
On August 26, 1983 a hearing officer for the Workmen's Compensation Division of the Colorado Division of Labor issued an 

order declaring that Mr. Jack was entitled to total temporary 

disability from June 17, 1982 (complainant's exhibit 1). Mr. 

Jack returned to Pennsylvania shortly after his discharge by 

Mid-Continent. 

A miner alleging a discriminatory discharge must prove by 

a preponderance of the evidence Cl) that he engaged in "protected 

activity" and (2) that the discharge was motivated at least in 

part by that protected activity. Secretary on behalf of Pasula 

v. Consolidation Coal Corp., 2 FMSHRC 2786 (1980), rev'd. on 

other grounds sub nom~ Consolidation Coal Co~ v. Marshall, 

663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette 

v. United Castle Coal Company, 3 FMSHRC 803 (1981). It is 

further essential that a miner ·seeking the protection of the Act 

have actually communicated a complaint concerning safety to a 

representative of the operator. Dunmire v. Northern Coal Co., 

4 FMSHRC 126 (1982). 

Complainant in the present case maintains that in his call 

to the personnel office on June 17, 1984 he stated that he was 

unable to report to work because of his injury suffered the 

previous day. There is no evidence that Mr. Jack gave voice to 

any specific or general concern relating to safety or health. 

The chief purposes of his call, rather plainly, were to explain 

why he would not be at work and to protect his rights to compensation for a job-connected injury. Similarly, it is not clear 

that he articulated any express safety complaint to the foreman 

who was present when he fell from the bridge, receiving his 

injury. According to his own account, the only conversation 

appeared to relate to whether he should go to the surface and how 

he should get there. The question thus raised is whether the 

reporting of an accident and resulting injury by the injured 

miner may be construed as a safety-related complaint. The 

general answer must be in the affirmative. Cf. Mooney v. Sohio 

Western Mining Co., FMSHRC (1984), Docket No. 

CENT 81-157-DM, March 7, 1984; Moses v. Whitley Development 

Corp., 4 FMSHRC 1475 (1982). Under most circumstances an injury 

report from a miner hurt in a mine accident is, by its very 

nature, a safety complaint. Mr. Jack's telephone conversation 

with Mr. Meyers on June 17 involved a protected act. 

In the present case we must also consider whether Mr. Jack's 

comments concerning the "backing" incident and the energized 

cable incident constituted protected activity. I must conclude 

that they did. In both instances he made complaints within the 

hearing of his foreman or leadman about safety concerns. The 

problem, of course, is that the miner's formal pro~ complaint 

filed in this proceeding did not raise these specific occurrences. 

I hold, however, that the issues raised by these incidents were 

1064 
tried by the consent of the parties and I therefore amend the 

pleadings to conform to the evidence under Rule 15Cb) of the 

Federal Rules of Civil Procedure. 2/ Mr. Jack's complaints 

about the unsafe backing of the vehicle and the handling of an 

energized cable were manifestly protected activity. 

Upon the entire record I conclude that the complainant 

failed to establish the second essential element of his proofs: 

that his protected activities furnished any part of the motive 

for his discharge. 

The weight of the evidence establishes that despite Mr. 

Jack's having engaged in protected activity, the decision to 

dismiss him was based entirely upon his unprotected activity. 

In this regard, I found Mr. Meyers I testimony' wholly convincing·. 

His explanation of his motives emerg~d in a straightforward way. 

It was plain that he would not have hired Mr. Jack in the first 

place, had he had his way, because the mine was at that time 

reducing, not increasing, its work force. The additional 

information that the new miner was intoxicated when he filled out 

his employment papers did nothing to enhance Mr. Meyers' views on 

the wisdom of the hire. 3/ At that point, understandably, he 

became "alert" to the possibility that Mr. Jack would present a 

problem with absenteeism. Given this background, one can easily 

appreciate Mr. Meyers' reaction when he learned that the miner 

had missed his first two days' work underground.: One can 

believe, in other words, that Meyers had decided to fire Mr. Jack 

before the latter's telephone call on June 17 and that the call 

merely accelerated the pronouncement of that decision. 

Coincidentally, I believe Mr. Meyers assertion that at 

the time he formed his resolve to dismiss the complainant he 

had neither knowledge of the accident of June 16, nor knowledge 

of any other safety complaint. Thus, there was no connection 

between the miner's protected activity and the decision to discharge. Such a nexus .is essential to a showing of a discriminatory discharge. Where a mine official who makes a decision to 

fire a miner has no prior knowledge that the miner made a safety 

or health complaint, it is axiomatic that protected activity 

cannot have furnished any part of the motive for the adverse 

action. 

2/ Mr. Jack's testimony on these matters was brought out under 

cross-examination and was at no time challenged as being beyond 

the scope of the pleadings. 

}/ Mr. Jack denied that he was intoxicated. At the time of her 

testimony, however, Mrs. Grys had long since ceased to work for 

Mid-Continent and had moved to Colorado Springs (Tr. 94-96). I 

believed her testimony because, among other reasons, she had no 

discernible stake in the outcome of the case. Besides, even if 

she had been mistaken in her belief that the miner was intoxicated, I have no doubt that Mr. Meyers took her report at face 

value. It is Mr. Meyers' state of mind that is important here. 

1065 
Some other elements in this case deserve passing mention. 

Mr. Jack's medical excuse from a chiropractor enjoyed some 

evidentiary prominence at the hearing. It did not, however, 

figure significantly in my decision. The evidence shows that 

Mr. Meyers did not see the excuse until after his June 17, 1984 

declaration that Mr. Jack was dismissed. Whether Mr. Jack gave 

it to the mine superintendent on June 16 when he reported back to 

work is of little importance, as is Mid-Continent's emphasis on 

the fact that the document bears a date of June 17, a day after 

the complainant allegedly gave it to the company. This is so 

because the persuasive evidence shows that Mr. Meyers decided to 

fire Mr. Jack on the basis that the miner failed to give telephone notice on June -14 and June -15, as required by company 

rules, that he would not be at work. 

I must also make an obserNation concerning Mid-Continent's 

work rules as set out in respondent's exhibit 3. This "Proposed 

Labor Agreement," was implemented on August 5, 1981. The 

evidence shows the provisions contained in the document were 

originally conceived as a part of the collective bargaining 

process when the company's employees were represented by a labor 

union. They were ultimately put in effect, however, on an 

essentially unilateral basis by management after the work force 

had determined to dispense with union representation. Mr. Meyers 

maintains that Mr. Jack was terminated as a probationary employee 

under Article 6.2.9 which declares that probationary employees 

may be discharged for "any cause determined sufficient by the 

company." He also testified that in the normal course of his 

interviews of a new employee he routinely gives the employee a 

copy of the work rules. Mr. Jack, however, insisted that he had 

never received a copy of the rules booklet, and therefore 

suggests that he could not properly be discharged under its 

provisions. 

First, I think it unlikely that Mr. Meyers did not give the 

miner a copy of the booklet. Second, even if he neglected to do 

so, that omission would not vary the outcome of this proceeding. 

This Commission has no power to determine whether an adverse 

employment action is fair or unfair except to the extent that 

unfairness may in some way relate to a protected activity. Here 

it is plain that Mr. Meyers acted upon a good faith assumption 

that Mr. Jack knew that absentees were to give telephone notice 

of their absences in advance of the beginning of the work shift, 

and knew that probationary employees were subject to dismissal 

in the company's discretion. Thus, even if Mr. Jack did not 

receive the booklet, it cannot be said that that omission 

affected Mr. Meyer's motive in effecting the discharge. It does 

not, in other words, give rise to any credible inference that 

Meyers' real reason for the firing was based in any part on a 

safety complaint. 

106B 
CONCLUSIONS OF LAW 

Upon the entire record and upon the factual determinations 

embodied in the narrative portion of this decision, the following 

conclusions of law are made: 

C 1) That this Commission has jurisdiction to h..ear and 

decide this matter. 

(2) That the complainant engaged in protected activity 

within the meaning of the Act at the times pertinent 

herein. 

(3) That complainant's engagement in such protected 

activity did not furnish any part of the motive 

of respondent Mid-Continent in discharging 

complainant from his 'employment as a miner. 

(4) That the complainant was not discharged for 

engaging in protected activity under Section 

105Cc) of the Act. 

ORDER 

Accordingly, this complaint of discrimination is ORDERED 

dismissed with prejudice. 

Distribution: 

John A. Carlson 

Administrative Law Judge 

Mr. George A. Jack, 150 North Seventh Street, Indiana, 

Pennsylvania 15701 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.C., 818 Colorado 

Avenue,· Drawer 790, Glenwood Springs, Colorado 81602 (Certified 

Mail) 

/ot 
FEDERAL MINE SAFETY AND HEALTH REY·IEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 2 'l ~984 

FMC CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FMC CORPORATION, 

Respondent 

. . 

CONTEST OF ORDER/CITATION 

Docket No. WEST 81-264-RM 

Order No. 577585; 4/7/81 

Docket No. WEST 81-265-RM 

Order No. 577586; 4/7/81 

Docket No. WEST 82-15-RM 

Order No. 578606; 9/9/81 

: Docket No. WEST 82-60-RM 

: Citation No. 578884; 11/16/81 

Docket No. WEST 82-61-RM 

Order No. 578885; 11/16/81 

: Docket No. WEST 82-62-RM 

Citation No. 578907; 11/18/81 

. . 

. . 

Docket No. WEST 82-121-RM 

Order No. 578961; 2/10/82 

Docket No. WEST 82-122-RM 

Order No. 578880; 2/10/82 

Docket No. WEST 82-123-RM 

Order No. 578879; 2/10/82 

FMC Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 82-11-M 

A.C. No. 48-00152-05050 V 

Docket No. WEST 82-64-M 

A.C. No. 48-00152-05054 V 

Docket No. WEST 82-134-M 

: A.C. No. 48-00152-05056 

1068 

Docket No. WEST 82-152-M 

A.C. No. 48-00152-05058 V 

Docket No. WEST 83-10-M(A) 

A.C. No. 48-00152-05504 

FMC Mine 
DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

These matters came on for a prehearing/settlement confer~ 

ence on April 10, 1984. As a result of the scrutiny and 

analysis afforded at this hearing, the Secretary agreed to 

modification of the section 104(d) violations to section 104(a) 

citations and the operator agreed to a substantial increase 

in the penalties proposed for eight of the eleven charges. 

As to the remaining three, the operator requested time to 

submit its justification for a lesser increase in the amount 

of the penalty than that proposed by the trial judge. 

The matter is now before me on the operator's motion to 

approve settlement which includes its justification for 

increasing the penalties on the three excepted violations 

from $500 to $1,000 instead of $2,000. The Secretary recommends 

acceptance of the operator's circumstances in mitigation of the 

trial judge's initial proposal. 

Based on a further independent evaluation of these matters, 

I find the settlement now proposed by both parties is in accord 

with the purposes and policy of the Act. Accordingly, it is 

ORDERED that the motion be, and hereby is, GRANTED. 

It is FURTHER ORDERED that: 

1. The following section 104(d) Citations/Orders be, 

and hereby are, modified to section 104(a) citations: 

Number 

577585 

577586 

578606 

578911 

578885 

578967 

578961 

578880 

578979 

1069 
2. The penalties agreed upon be allocated among the 

violations charged as follows: 

Number 

577585 

577586 

578606 

578911 

578884 

578885 

578967 

578907 

578961 

578880 

578879 

Total 

Amount 

$1,000 

1,000 

1,000 

1,000 

300 

300 

300 

150 

1,000 

1,000 

1,000 

$8,050 

3. The operator pay the total amount. of the settlement 

agreed upon, $8,050, on or before Friday, May 11, 

1984 and that subject to payment the captioned 

matters be DISMISSED. 

Joseph B. Kennedy 

Administrative Law 

Distribution: 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

50 South Main St., Suite 1600, Salt Lake City, UT 84144 

(Certified Mail) 

Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. 

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

(Certified Mail) 

/ejp 

1070 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 30 1984 

U. S. STEEL MINING CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF 

AMERICA, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U. S. STEEL MINING CO., INC., 

Respondent 

; 

DECISION 

CONTEST PROCEEDING 

Docket No. WEVA 82-390-R 

Citation No. 2024280; 8/18/82 

Morton Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-95 

A. C. No. 46-01329-03519 

Morton Mine 

Docket No. WEVA 83-82 

A. C. No. 46-05907-03502 

Shawnee Mine 

Appearances: Louise.Q. Symons, Esq.:· Pittsburgh, Pennsylvania, 

for Contestant/Respondent; 

Matthew J. Rieder, Esq., and David E. Street, 

Esq., Office of the Solicitor, u. s. Department 

of Labor, Philadelphia, Pennsylvania, for 

Respondent/Petitioner; 

Joyce A. Hanula, Legal Assistant, Washington, 

D. C., for Respondent United Mine Workers of 

America. 

Before: Judge Steffey 

A hearing in the above-entitled consolidated proceeding 

was held on May 11, 1983, through May 13, 1983, in Beckley, 

West Virginia, pursuant to section 105(-d), 30 u.s.c. § 815(d), 

of the Federal Mine Safety and Health Act of 1977. 

1071 
The contest proceeding involves a dispute as.to whether 

u. S. Steel Mining Co., Inc. (USSM}, must allow a health. specialist, ·who works full time for the United Mine Workers of 

America, to be the miners' representative to accompany a Federal 

inspector under the provisions of section 103 (f}. t>f the Act. 

The petition for assessment of civil penalty filed in Docket No. 

WEVA 83-95 seeks assessment of a civil penalty for the violation 

of section 103(f} which is being challenged in the contest proceeding and also seeks assessment of a penalty for an alleged 

violation of 30 C.F.R. § 70.101. The petition for assessment of 

civil penalty filed in Docket No. WEVA 83-82 seeks assessment of 

a penalty for an additional alleged violation of section 70.101 

(Tr. 205}, but with respect to USSM's Shawnee Mine instead of 

USSM's Morton Mine, which is the mine involved in both Docket. No. 

WEVA 82-390-R and Docket No. WEVA 83-95. 

UMWA's representative participated at the hearing in only 

that phase of the consolidated proceeding pertaining to the walkaround issues. Therefore, a hearing with respect to the alleged 

violation of section 103(f} of the Act was first held and then a 

hearing was held with respect to the two alleged violations of 

section 70.101. This decision will first dispose of the walkaround issues raised in Docket No. WEVA 82-390-R and the portion 

of the civil penalty case in Docket No. WEVA 83-95 pertaining to 

the alleged violation of section 103(f}. Thereafter the decision 

will dispose of the issues pertaining to the alleged violations 

of section 70.101. 

Docket No. WEVA 82-390-R 

Findings of Fact 

The testimony of the witnesses and the documentary evidence 

support the following findings of fact: 

1. Leo Ingram, an MSHA inspector, went to USSM's Morton 

Mine on August 18, 1982, to perform a respirable-dust inspection 

on the longwall section {Tr. 7). He had made prior inspections 

at the Morton Mine and .knew that the persons who normally accompanied him, as the miners' representative under the provisions 

of section 103{f} of the Act, were Donny Samms, James Carter, 

and Steve Holly {Tr. 12), but on August 18, 1982, Ingram saw 

William Willis at the mine along with Donny Samms. Ingram knew 

that Willis was a UMWA District 17 safety inspector. Shortly 

after Ingram had begun his work of placing respirable-dust pumps 

on some of the miners, he was advised by Samms and Willis that 

Willis would be accompanying him that day as the miners' representative and that Samms would be going underground with him, 

but would be traveling under the provisions of West Virginia 

law, while Willis would be accompanying him under the provisions 

of the Act {Tr. 9; 18). Ingram had no objections to having 

Willis accompany him as the miners' representative (Tr. 9). 

1072 
2. Samms and Willis soon thereafter advised Ingram that 

USSM was not going to allow Willis to go with hini' as the miners' 

representative. Ingram asked Lawrence Burke, the mine superintendent, if he was refusing to allow Willis to accompany him-and 

Burke replied "Yes". Willis expressed a belief that USSM's refusal to allow him to accompany the inspector was a violation of 

section 103(f}. Ingram was not certain as to the course of action he should take and made a telephone call to his supervisor 

to obtain advice. After receiving instructions from his supervisor to the effect that a violation had occurred, Ingram wrote 

Citation No. 2024280 under section 104(a} of the Act at 8:45 

a.m. on August 18, 1982, alleging a violation of section 103(f} 

of the Act, and stating as follows (Exh. 1) : 

The operator refused to allow a representative 

of the miners, William Willis, United Mine Workers 

of America District 17 safety inspector, to travel 

with an authorized representative of the Secretary 

of Labor during a respirable dust technical inspection. 

The citation gave USSM 30 minutes within which to abate the alleged violation. By the time a half hour had passed, the chief 

mine inspector of USSM's Decota District, Carl Peters, had sent 

word to Ingram that Willis would be allowed to accompany him. 

Upon receiving USSM's approval for Willis to travel with him, 

Ingram terminated the citation with the following explanation 

(Exh. 1) : 

The representative of the mine operator, Mike 

Sinozich, has agreed to allow the representative, 

William Willis, to travel with the authorized representative of the Secretary of Labor during a respirable dust technical inspection. 

3. Ingram was accompanied underground by Samms, Willis, 

and Michael Sinozich, USSM's safety inspector. All four of 

them went to the longwall section where coal was being produced, 

but Samms did not remain with the inspection party the whole 

period they were underground. Samms left the section sometime 

before noon, but Ingram does not know exactly what time it was 

(Tr. 13). Ingram did not ask Willis to accompany him and never 

has asked anyone to accompany him, but he knows that he is permitted under the Act to allow more than one miners' representative to travel with him (Tr. 14; 17). Willis. advised Ingram 

that he wanted to look into the dust problem on the longwall 

section and Ingram thinks that Willis did make a suggestion 

about the placement or direction of .water sprays on the longwall 

mining equipment, but he did not recall what it was (Tr. 15). 

Ingram was aware that he is not permitted under the Act to give 

advance notice of inspections and he has never done so (Tr. 16). 

1073 
4. James Carter was unemployed at the time pf the hearing, but on August 18, 1982, he was employed at the Morton Mine 

as a supply man. He was also on the union's safety committee 

and had called Willis on the evening of August 17, 1982, to come 

to the mine on the morning of August 18, 1982, b~cause the union 

wanted him to accompany the inspector on that day if the inspector returned to the mine on that day (Tr. 19-20). Carter knew 

that Ingram had been notified that Willis would accompany him on 

the inspection, but Carter had to go underground to work before 

the issue of his being denied admittance to the mine had been 

resolved (Tr. 21). While Carter agreed that it was the practice 

of his local union to give USSM 24 hours' notice, if possible, 

when an employee of UMWA is asked to come to the mine to participate in an inspection which the local union wants to make at 

the mine, Carter stated that the 24-hour notice did not pertain 

to a request that a UMWA employee come to the mine to accompany 

an inspector under section 103(f) of the Act, but Carter could 

not specify a time prior to August 18, 1982, when a UMWA employee had been requested to come to the mine to be the miners' 

representative for accompanying an inspector (Tr. 26; 28). 

5. William Willis, the UMWA safety inspector, who was 

called by the local union to walk around with Ingram on August 18, 

1982, corroborated Ingram's and Carter's testimony as to the fact 

that he was called by the local union, or safety committee, on 

the evening of August 17, 1982, and that he took a chance that 

Ingram would be at the mine again on August 18, 1982, to obtain 

additional respirable-dust samples because production had been 

below normal on August 17 when Ingram had previously tried to 

obtain samples (Tr. 29-31). Willis has had the same training as 

that given to MSHA's inspectors, in addition to other training, 

and he is a certified mine foreman under West Virginia law (Tr. 

29). Willis testified that he gave someone in the Morton Mine 

office notice that he was there on August 18, 1982, to go on an 

inspection with Ingram, but he could not recall the name of the 

person he notified (Tr. 31). 

6. Willis' testimony does not differ significantly from 

Ingram's as to what occurred after he, Sinozich, and Samms went 

underground with Ingram, except that Willis made it clear that 

Samms was performing his own inspection under West Virginia law 

by examining the respirable-dust pumps so as to make it clear 

that he (Willis) was the.sole representative of miners to accompany Ingram (Tr. 34; 36-37). According to Willis, Samms left 

the longwall face and went to the head entry where he was eating 

lunch by the time he, Sinozich, and Ingram arrived at the head 

entry to eat lunch. Willis also claimed that Sinozich and Samms 

got into a heated argument about what Samms' duties were on 

August 18 and that Samms told Sinozich at lunch time that he had 

called his section foreman for a ride so· that he could leave the 

longwall section and return to his regular working place (Tr. 36). 

1074 
Willis also stated that Samms was still at the head entry about 

1 p.m. when he, Sinozich, and Ingram returned to the longwall 

face, but Willis also claimed that Carter came in a vehicle and 

picked up Samms so as to take Samms to his regular place of 

work (Tr. 36). 

7. Willis claims to have made two suggestions as to the 

dust problem on the longwall section. One suggestion was about 

changing the position of the water sprays which were being welded 

to the longwall mining equipment (Tr. 35) and the other was about 

using a curtain to deflect dust away from the operator of the 

equipment and the jack setters (Tr. 37). At one point in his 

testimony, Willis denied that his visit to the longwall section 

had anything whatsoever to do with the fact that Ingram was there 

because he had come to the mine after receiving from the local 

union a complaint about the dust problem on the longwall section. 

Willis said he had received the complaint prior to June 1982 but 

had delayed filing it with a West Virginia State inspector because he wanted to give USSM time to make some changes which he 

had been advised were going to be made (Tr. 45; 52). Willis subsequently insisted that he had gone into the mine to assist Ingram with his inspection and to make suggestions to both Ingram 

and USSM's management as to what could be done to alleviate the 

respirable-dust problem on the longwall section (Tr. 50). Willis 

eventually justified his accompanying Ingram by saying that he 

wanted personally to observe the conditions on August 18, 1982, 

so that he would have documentation (through the results of the 

analyses of the inspector's samples) to assist him in determining what additional steps would need to be taken to eliminate 

the dust problem (Tr. 56). The three respirable-dust samples 

obtained by Ingram on August 18, 1982, did show that the longwall 

section was in compliance with the respirable-dust standards (Tr. 

78) . 

8. Willis was not aware of the fact that UMWA's office in 

Washington, D.C., had filed with MSHA on April 5, 1978, a certification as to the persons who were considered to be the miners' 

representatives at the Morton Mine when it was owned. by Carbon 

Fuel Company (Tr. 44; 53; UMWA Exh. 1). A copy of the certification was served on Carbon Fuel on March 24, 1978; The mine was 

owned by Carbon Fuel in 1978. That certification specifies certain persons who are considered to be miners' representatives at 

the Morton Mine and one of the persons so designated is "the UMWA 

Safety Division, including District Safety Inspectors". ·Willis 

was aware of the fact that he could have inspected the longwall 

section any time before and after August 18, 1982, under the provisions of the National Bituminous Coal Wage Agreement of 1981 

(Tr. 56-57; UMWA's Exh. 2). Willis is a full-time UMWA employee 

and was not paid by USSM for the time he traveled with the inspector on August 18, 1982, and did not expect to be paid any-. 

thing by USSM (Tr. 57). USSM did, however, pay Samms for the 

entire shift (Tr. 77). 

107G 
9. Michael Sinozich is a mine inspector for USSM at the 

present time and he held that same position when· the Morton Mine 

was owned by Carbon Fuel Company (Tr. 62-63). When Sinozich 

arrived at the mine on the morning of August 18, 1982, he went 

into the lamp room to obtain his light and saw William Willis 

and Donny Samms there (Tr. 63). He knew that Willis was one of 

UMWA's safety inspectors (Tr. 75) and advised Willis that he was 

not supposed to be on mine property without having given previous notification that he was coming (Tr. 64). When Willis told 

Sinozich that he had come to travel with the inspector that day 

as the miners' representative, Sinozich disagreed with that 

assertion and replied that Samms was the miners' representative 

for traveling with the inspector (Tr. 64-65). Sinozich's testimony does not differ substantially from other witnesses as to 

USSM's refusal to allow Willis to travel with the inspector and 

USSM's reversal of that refusal after Ingram issued a citation 

for an alleged violation of section 103(f) of ~he Act (Tr. 65-

66) • 

10. Sinozich's testimony does differ from Willis' testimony in some respects. Sinozich claims that Samms was with the 

inspection party in the face area of the longwall section up to 

11:30 a.m. and that Samms left the longwall section about 12:30 

p.m. after he had eaten lunch at the head entry (Tr. 69-70). 

Sinozich also stated that he was surprised when Samms left the 

longwall section because Samms had not at any time explained to 

him that he {Samms) was there under a provision of West Virginia 

law. Additionally, Sinozich stated that his understanding of 

West Virginia law is that the miners have a right to participate 

in the taking of respirable-dust samples by USSM, but have no 

'right to monitor or check the samples taken by MSHA. Sinozich 

did not think that Samms had any reason to go with the inspector 

to check the pumps placed on three miners in the longwall section on August 18 because USSM was not engaged in taking 

respirable-dust samples in the longwall section on that day (Tr. 

71-72). 

11. Sinozich' s testimony also differs from Willis' and 

Ingram's testimony to the extent that Sinozich testified that 

Willis made no recommendations to him about changes in the ventilation system or changes in engineering for the purpose of 

controlling dust on the longwall section. Sinozich stated that 

Samms checked the pumps placed on three miners by Ingram, but 

that Willis did not.check the pumps (Tr. 78-79). Sinozich also 

testified somewhat inconsistently as to Willis' role underground 

by first stating that it was too noisy to discuss technical aspects of the dust problems on the longwall section (Tr. 70), 

while subsequently conceding that the longwall equipment was not 

running at times while the water sprays were being installed or 

repositioned and by conceding that the members of the inspection 

crew did talk at times (Tr. 74; 76-77). Sinozich denied that he 

1078 
had a heated discussion with Samms as claimed by ~ngram (Tr. 69). 

Sinozich also testified that at no time did he tell Samms that 

he was forbidden to go on the inspection or that he should not 

continue to be with the inspection party for the full shift (Tr. 

69) • 

12. Carl Peters is USSM's chief mine inspector for the 

Decota District .. He has held that position since June 12, 1982, 

and prior to that he was director for health and safety for Carbon Fuel Company (Tr. 80). Peters corroborated Willis' testimony to the extent of agreeing that Willis had discussed with him 

in June of 1982 at the West Virginia mine office the respirabledust conditions on the longwall section and that he had advised 

Willis of the steps USSM was taking to alleviate the problem, but 

he denied that Willis had expressed an intention of coming to the 

mine to accompany an MSHA inspector at any time with respect to 

the respirable-dust problem in the longwall section (Tr. 80-81). 

13. Peters stated that the miners' representatives for 

traveling with inspectors under section 103(f} of the Act are 

chosen by the union and that USSM has no right to participate in 

the union's choice of representatives and that USSM·does not 

have any right to approve the union's choice of its representatives (Tr. 86). On the other hand, Peters stated that he does 

not recall having been served by UMWA with a statement of the 

persons who are considered to be miners' representatives (Tr. 82). 

Peters also stated unequivocally that Willis is not a miners' 

representative to accompany inspectors at the Morton Mine (Tr. 

85). Peters stated that the miners' representatives are selected 

at the mines and that the mine foremen know who they are and that 

it is a routine understanding that when an inspector appears at 

the mine, one of the known representatives will automatically 

accompany the inspector (Tr. 86). Peters stated that the reason 

they initially refused to allow Willis to accompany Ingram was 

based on the "surprise" of being hit with "an International 

safety rep without proper notification. * * * It threw the whole 

system off" (Tr. 87). 

Consideration of the Parties' Arguments 

Introduction 

USSM filed its brief on September 9, 1983, UMWA filed its 

initial brief on September 12, 1983, and the Secretary of Labor 

filed his brief on September 14, 1983. UMWA filed a reply brief 

on September 30, 1983. 

When the parties first replied to a prehearing order issued 

October 15, 1982, they indicated that they would like to submit 

the issues to me for decision on the basis of a stipulation of 

facts. UMWA filed a notice of intervention on November 5, 1982. 

107'( 
After I had granted some extensions of time withip which ~o file 

the proposed stipulations, I was subsequently advised in a letter filed on February 10, 1983, that the parties had been unable 

to reach agreement on a stipulation of facts and that the case 

would have to be scheduled for hearing. 

The issues discussed in the parties' briefs show that they 

are still disputing the basic facts in this proceeding. USSM's 

brief (p. 2) states that the issue raised is: 

If a miner's representative is available to 

accompany a federal MSHA inspector, is an operator 

required to also permit a representative of the 

international union to join the inspection party 

absent a request by the inspector? 

UMWA's brief (p. 4) expresses the issue as follows: 

The underlying issue in this case is whether 

USSM should be permitted to interfere in any way 

with the selection of the miners' representative 

under section 103(f) of the Act. For the reasons 

that will be outlined in this brief, the UMWA urges 

this Court to interpret 103(f) so as to prohibit 

any interference on the part of the operator with 

the selection of the miners' representative. 

[Emphasis added by UMWA.] 

The Secretary's brief (p. 11), on the other hand, expresses 

the issue as follows: 

Thus, the entire case boils down to the question of whether the Union's failure to follow the 

technical requirements of 30 C.F.R. § 40.3 would 

deprive the operator's miners of the right to have 

the Union's safety and health specialist be their 

walkaround representative when they need him to 

act in that capacity, as they did here when the 

local safety committeemen could not resolve a potentially serious health hazard and sought the 

benefit of Mr. Willis' expertise. The Secretary 

submits that the appropriate conclusion, already 

reached by one Review Commission Judge, is that 

the miners' health is the more important concern. 

It is apparent from the parties' arguments that UMWA and 

the Secretary have addressed only very briefly the issue raised 

in USSM's brief. USSM's original notice of contest did not expressly state the issues raised by Citation No. 2024280 and in 

my prehearing order of October 15, 1982, I stated that I did 

not know what issue USSM was raising and noted that if the issue 

1076 
was merely the question of whether an operator ha.s to pay a 

miners' representative who is accompanying an inspector engaged 

in making a spot inspection, that question had already been 

laid to rest by the court's decision in UMWA v. FMSHRC, 671 F.2d 

615 (D. C. Cir. 1982), cert. den.,-74 L.ifcr2d 1~9· (1982). 

USSM clarified the issues being raised in this proceeding 

by filing a letter on October 29, 1982. A copy of the· letter 

was sent to both. the Secretary and UMWA. In that letter USSM 

specified two issues it was raising in this proceeding as follows: 

(a) The facts in this case are that USSM 

allowed the elected representative of the miners 

to accompany the inspector and paid him for the 

time involved. The issue in this case is whether 

the operator must also allow a representative from 

the district off ice of the union to accompany the 

miners. UMWA v. FMSHRC, 671 F.2d 615 (1982), did 

not discuss the issue of whether the operator must 

permit two representatives of the miners on an inspection party, one from the local and one from 

the national office. 

(b)- The facts in this case will establish 

that the local union never listed William Willis 

as a representative of the miners pursuant to 30 

CFR §40, and that the local union failed to notify 

mine management that they requested the assistance 

of Mr. Willis pursuant to Article III, Section (e) 

(1) of the basic labor agreement. 

USSM's brief (p. 5) distinguishes the Commission's holding 

in Consolidation Coal Co., 3 FMSHRC 617 (1981), by pointing out 

that in that case the inspector requested the assistance of 

UMWA's national safety representative and Consol objected to 

the request on the ground that the national representative had 

not been designated on the form filed pursuant to 30 C.F.R. 

§ 40.3. USSM argues that none of the parties in this proceeding based their actions on the notice of representation. 

Therefore, USSM argues that the Commission's holding in the 

Consol case is inapplicable to the facts in this proceeding. 

USSM is ·incorrect in arguing that the Consol case is inapplicable to the issue stated in paragraph (b) above because 

the Commission held in the Consol case "* * * that failure of 

a person to file as a representative of miners under Part 40 

does not per se entitle an operator to deny that person walkaround participation under section 103(f)" (3 FMSHRC at 619). 

As I have noted in Finding No. 8, supra, the union did file 

with MSHA, under the Federal Coal Mine Health and Safety Act of 

1079 
1969, a certification of miners' representative for the Morton 

Mine. While a copy of the certification was served on Carbon 

Fuel Company, the union did not update the certification by serving a copy on USSM after USSM assumed ownership of the Morton 

Mine. The fact that the union's certification is .. somewhat defective in terms of service of process is immaterial in light of 

the Commission's holding in the Consol case to the effect that 

complete failure to file a certification under section 40.3 is 

not a sufficient reason for an operator to deny walkaround rights 

under section 103(f). 

USSM's brief seems to have dropped the issue about UMWA's 

failure to file a certification pursuant to section 40.3 of the 

regulations because the only issue specifically articulated in 

the brief is the one pertaining to the safety committee's alleged 

appointment of two miners' representatives to accompany the inspector under section 103(f) of the Act. To the extent that 

USSM may still be arguing that it had a right to deny Willis the 

right to walkaround with the inspector on August 18, 1982, because he had not been listed in a filing made pursuant to section 

40.3, I believe that that argument must be rejected under the 

Commission's holding in the Consol case, supra. 

Rights of UMWA under the Wage Agreement 

In USSM's letter filed on October 29, 1982, USSM also contends, in paragraph (b), supra, that the union violated the 

notice provisions of Article III, Section (e) (1) of the Wage 

Agreement which provides as follows (UMWA Exh. 2, pp. 12-13): 

(1) Subject to the routine check-in and checkout procedures at the mine, the officers of the International Union, the District President of the 

District involved, and authorized representatives of 

the International Union's Safety Division and Department of Occupational Health shall be afforded the · 

opportunity to visit a mine to consult with management or the Mine Health and Safety Committee and to 

enter the mine at the request of either management 

or the Mine Health and Safety Committee. 

It is obvious that the only "notice" UMWA is required to giv~ 

under Section (e) (1) of the Wage Agreement is that it will follow 

the "routine check-in and check-out procedures" at the Morton 

Mine. Presumably all persons who went into the mine on August 18 

followed the routine check-in and check-out procedures because no 

witness was asked any questions about checking in and out of the 

mine, but USSM's counsel did elicit from UMWA's witness Carter 

the fact that it is the local union's practice to give USSM 24 

hours' notice of an intent to make an inspection of the mine if 

the inspection is going to be made under the Wage Agreement, but 

1080 
Carter also insisted that the local union's practice of giving 

24 hours' notice did not pertain to a request that a safety inspector from the international union be named as the miners' 

representative to accompany an MSHA inspector under section 

103(f) of the Act (Finding No. 4, supra). 

UMWA's brief (p. 5) indicates that the provision USSM 

should have cited in the Wage Agreement with respect to giving 

USSM notice is Article III, Section (d) (4) of the Wage Agreement 

which provides (UMWA Exh. 2, p. 11): 

(4) The Committee shall give sufficient advance notice of an intended inspection to allow a 

representative of the Employer to accompany the 

Committee. If the Employer does not choose to 

participate, the Committee may make its inspection 

alone. 

UMWA's brief (p. 5) argues that USSM is confusing the miners' 

rights under the Wage Agreement with their rights under the Act. 

UMWA's brief (p. 6) contends that the Safety Committee cannot 

give USSM advance notice as to when a miners' representative, 

who doesn't work at the mine, will appear at the mine to accompany an inspector under section 103(f) because the safety committee is not given advance notice of inspections by MSHA and 

that it would be contrary to section 103(a) of the Act for MSHA 

to give the safety committee advance notice. 1/ Therefore, 

UMWA contends that USSM, in arguing that USSM-is entitled to 24 

hours' advance notice when a representative of the international 

union is being asked to accompany an inspector, is asking the 

safety committee to do something which is beyond the safety committee's ability to do. UMWA further argues that it is the 

union's right under section 103(f) to appoint a miners' representative who does not work for the operator if that person has 

more expertise to appraise a safety or health problem than one 

of. the miners who works for the operator. UMWA contends that 

section 103(f) specifically provides that the miners' representative has to be paid for accompanying an inspector only if he 

is an employee of the operator whose mine is being inspected. 

UMWA notes that there is no issue in this case about whether 

USSM has to pay the person who accompanied the inspector because 

Willis is a full-time UMWA employee and did not expect to be 

paid by USSM for accompanying the inspector (Finding Nos. 5 and 

8, supra). 

1/ Section 103(a) of the Act, in pertinent part, provides: 

"* * * In carrying out the requirements of this subsection, no 

advance notice of an inspection shall be provided to any person, 

* * *" 

1081 
While UMWA's arguments are legally correct ip contending 

that UMWA is not given any advance notice as to when inspections 

are going to take place, it is a fact that the safety committee 

thought that Inspector Ingram would return to the mine on 

August 18, 1982, to obtain additional respirabl~-dust samples 

because the longwall section had not been operating at a normal 

production level on August 17 when the inspector had previously 

been at the mine to obtain respirable-dust samples. 

The safety committee called Willis on the evening of 

August 17 and asked him to come to the mine to accompany the 

inspector on August 18 if the inspector returned. The record 

contains nothing to show why the safety committee could not also 

have called USSM's mine inspector, or chief mine inspector, or 

mine foreman, or mine superintendent so as to notify at least 

one of those individuals that the committee wanted to have Willis, 

instead of Samms, be the miners' representative on the morning 

of August 18 if Inspector Ingram should appear for the purpose 

of obtaining respirable-dust samples as anticipat~d by the safety 

committee. 

Moreover, there is some doubt in the record as to whether 

Willis gave USSM any notice at all on August 18 that he had come 

to the mine to accompany the inspector. The only notice which 

UMWA purports to have given USSM prior to Samms' advising Inspector Ingram that Willis was going to be the miners' representative is contained in the following statement by Willis during 

direct examination by his counsel (Tr. 31-32): 

Q Could you tell me what happened when you 

arrived on the mine site on August 18th? 

A I went to the mine office and informed 

management that I was there to go on inspection 

with Mr. Ingram. 

Q Who of mine management did you inform? 

A I don't remember who was in the office. 

Q You can't remember the name of the person? 

A No 

Since Willis was acquainted with USSM's mine superintendent, mine 

inspector (Tr. 30-33), and chief mine inspector (Tr. 39), it is 

strange that he wa·s unable to identify the person in the mine 

office whom he had notified of his being present for the purpose 

of accompanying Inspector Ingram. 

1082 
Sinozich, USSM's mine inspector, is the first person in 

USSM's management who became aware of Willis' presence and he 

did not know that Willis had been asked to be the miners' representative to accompany the inspector when he went to obtain his 

cap light before going underground_and saw Willis .. and Samms in 

the lamp room. Sinozich immediately advised Wil"lis that Willis 

was not supposed to be on mine property without having given 

USSM prior notice (Tr. 64). In view of Sinozich's fast adverse 

reaction to Willis' presence, it is somewhat doubtful that 

Willis actually gave any of USSM's management personnel notice 

on the morning of August 18 that he had come to the mine for the 

purpose of accompanying an inspector until the reason for his 

presence was challenged by Sinozich in the lamp room. The only 

reason which Willis could give for failure to give notification 

prior to the morning of August 18 was that he had been called by 

the safety committee the night before and did not have time to 

give notice. If it was possible for the safety committee to 

call Willis at night to ask him to come to the mine to accompany 

an inspector, it would have been just as possible for Willis or 

the safety committee to call some person in USSM's management to 

advise that person that Willis was planning to come to the mine 

on the morning of August 18 to accompany an inspector who was expected to be there to take respirable-dust samples. 

Despite the safety committee's lack of concern about giving 

USSM any prior notice of the fact that Willis had been asked to 

be the miners' representative on August 18, there is nothing in 

section 103(f) of the Act which requires either the safety committee or anyone to give USSM advance notice as to the identity 

of the miners' representative until the time the inspector is 

ready to go underground. Therefore, despite the union's lack of 

ordinary courtesy and consideration, I find that Willis had a 

right to be the miners' representative for the purpose of accompanying the inspector on August 18, 1982, even if Willis gave no 

prior notification until his presence at the mine was challenged 

by Sinozich. 

USSM's brief (p. 4) argues that if it is required to allow 

anyone chosen by the miners as their representative to go underground, USSM would be required to let anyone so designated to 

accompany the inspector even if that person were a mining engineer from a competitive company or Willis' wife and children. 

USSM's brief notes that a person under 18 years of age is barred 

from entering the mine by West Virginia law. 

It is possible, of course, that the safety committee might 

choose a person who has no expertise at all as the miners' representative, but that is not likely to happen. Moreover, if 

the safety committee should make an absolutely absurd selection 

as the miners' representative, USSM's management would be obligated to object to the selection, just as USSM's management did 

1083 
in this case. Any time that USSM objects to a given miners' representative the inspector necessarily becomes the·person to approve or-disapprove that appointment. In this case, the inspector was sufficiently in doubt as to Willis' legal right to be 

the miners' representative that he_called his sup~~visor to clarify the position he should take. In this case, ·the supervisor 

instructed the inspector to write a citation, but it is highly 

unlikely that the inspector or his supervisor would conclude that 

a citation should be written if a miners' representative should 

decide that he wanted to take his wife and children with him for 

the purpose of accompanying an inspector. It is also highly 

doubtful that an inspector would cite USSM for a violation of 

section 103(f) if USSM should object to the appointment of a 

mining engineer employed by a competitive company as the ·miners' 

representative. 

In short, while I think the safety committee and Willis 

could have been more cooperative in providing USSM's management 

with more advance notice than was given in this case, I do not 

believe that the safety committee is precluded from asking that 

one of its safety inspectors from the international union be 

allowed to accompany an inspector as the miners' representative 

in cases such as this one in which it has been shown that the 

local union's miners' representatives felt inadequate to be 

helpful to the inspector in taking respirable-dust samples on 

the longwall section which had been out of compliance with the 

respirable-dust standards for about 1 year. 

USSM's chief mine inspector was at least aware of the union's 

concern about the longwall section's noncompliance with the 

respirable-dust standards and acknowledged that Willis had discussed the problem with him on one occasion (Finding No. 12, 

supra). Therefore, the choice by the safety committee of Willis 

as the miners' representative on August 18, 1982, was not an action which should have been of any great surprise or distress to 

USSM's management, despite the chief mine inspector's claims to 

the contrary (Tr. 87). 

I agree with the arguments in UMWA's brief, discussed above, 

that the notice provisions in the Wage Agreement pertain only to 

inspections which the safety committee wishes to perform under 

the provisions of the Wage Agreement and that UMWA is not bound 

by those notice requirements when the safety committee is choosing the miners' representative to accompany an inspector pursuant 

to section 103(f) of the Act. 

The Question of Whether There Were Two Miners' Representatives 

on August 18, 1982 

USSM's brief (p. 3) contends that section 103(f) of the Act 

contemplates that each party will have one representative to 

1084 
accompany the inspector unless the inspector feels that he needs 

additional help. USSM concludes, therefore, that-since the inspector did not specifically request Willis' assistance, the 

safety committee improperly insisted on having both Willis and 

Samms accompany the inspector. USSM argues that once the miners 

choose their representative, that person remains their choice 

until they inform management that a new representative has been 

chosen. USSM states that once the selection has been made, no 

additional representative may accompany the inspector unless he 

requests assistance. It is a fact that Inspector Ingram did not 

request either Samms or Willis to accompany him and he testified 

that he felt perfectly competent to obtain respirable-dust samples on the longwall section without the assistance of anyone 

(Tr. 14) • 

The Secretary's brief (p. 10) argues that Samms was not the 

only employee at the Morton Mine who had been designated as the 

miners' representative to accompany the inspector and that no 

one on August 18 was under the impression that Samms was the 

miners' representative to accompany the inspector on that day. 

The Secretary agrees that Samms went underground with the inspector, along with Willis and USSM's mine inspector, Sinozich, but 

contends that Samms was going to the longwall section to check 

the respirable-dust pumps under West Virginia law. Therefore, 

the Secretary claims that USSM's contention that the inspector 

had to request an additional representative before Samms could 

go has no application in the circumstances existing in this 

case. 

UMWA's brief (pp. 8-9) contends that only one miners' representative, Willis, accompanied the inspector on August 18. 

UMWA states that Samms went underground with the inspection team, 

consisting of the inspector, Sinozich, and Willis, but that 

Samms did not remain with the inspection party because he was 

making an independent check of the respirable-dust pumps and 

left the inspection party before the inspection was completed. 

Additionally, UMWA argues that the union never requested that 

two representatives accompany the inspector and that the inspector knew before going underground that only Willis was the 

union's representative for accompanying the inspector. 

At first glance, USSM appears to have a valid argument with 

respect to its "two representatives" claims. It is a fact that 

both Samms, a previously identified miners' representative, and 

Willis, the special miners' representative chosen to accompany 

the inspector on August 18, did go underground with the inspector. It is also true that, while Samms claims to have been going underground under a provision of West Virginia law, USSM's 

witness, Sinozich, claimed that West Virginia law only allows a 

miners' representative to participate in the taking of respirabledust samples by an operator. Sinozich stated that since MSHA · 

1085 
was taking the dust samples, instead of USSM, thqt Samms did not 

have a right under West Virginia law to check the respirabledust pumps which had been placed on three miners by Inspector 

Ingram {Finding No. 10, supra). 

None of the four briefs filed in this proceeding cites the 

provision of West Virginia law which is allegedly involved. 

Therefore, I assume that no party is entirely certain whether 

Samms had a legitimate right under West Virginia law to go underground on August 18 to check the respirable-dust pumps placed on 

three miners in the longwall section. Nevertheless, the inspector was aware of the fact that Samms claimed to be going under 

West Virginia law and he specifically stated that he believed 

Samms' announcement that he was going underground under West 

Virginia law took the matter out of the inspector's hands entirely. The following testimony shows beyond any doubt that the 

inspector thought he was being accompanied by a single miners' 

representative {Tr. 18): 

Q As far as you were concerned, on August 18th 

who was the miners' representative that went with 

you? 

A On August 18th, sir, after I issued the 

citation Mr. Willis was the designated miners' representative. I was instructed that we believed at 

the time of the conference that he had a right to 

travel. 

Q And even though Mr. Willis had been designated as the miners' representative for that day, 

I understood you to say that Mr. Samms also went 

along? 

A Yes, sir. 

Q So you had two people with you who worked 

for the union. Mr. Samms didn't work for the 

union; he worked for United States Steel. Is 

that right? 

A Yes. 

Q Whereas Mr. Willis is employed by UMWA as 

I understand it? 

A Yes, sir. Mr. Samms informed me that he 

was going to monitor my dust sampling inspection 

under provision of the state law which I'm not 

familiar with and that took it out of my hands. 

As far as I was concerned with him, he was going 

under the state law and Mr. Willis was going under 

the Mine Health and Safety Act. 

1086 
Willis' recollection of the discussion about, there being 

two miners' representatives is summarized in the· following 

answer to a question asked by UMWA's legal assistant (Tr. 32-

33) : 

A And discussions went on, and I think Mike 

[Sinozich] -- I'm pretty sure but I think he talked 

to Carl Peters, and Mike said, "He told me that he 

was going to object to you going with Mr. Ingram on 

this inspection." And I told Mike that I was the 

authorized representative of the miners, and he 

said that Mr. Samms was. Mr. Samms said, "No, Mike", 

said, "Bolts [Willis] is the representative of the 

miners." He said, "I'm going to go and look at the 

samples, under state law. The court decision was 

recently handed down by Judge Harvey." He said 

tben he wasn't going to let me go. 

Q Did he give you a reason? 

A He said Donny Samms was the local union 

safety committeeman, and he usually travels with 

the inspector. * * * 

The testimony of Sinozich as to the question of whether 

Samms went underground under West Virginia law consists of a 

short answer to a single question asked by USSM's counsel (Tr. 

71) : 

Q Did Mr. Samms at any time indicate to you 

that he was acting under state law? 

A No, he did not. 

Sinozich also expresses on transcript page 71 his opinion that 

West Virginia law does not permit the miners to participate in 

the taking of samples by an MSHA inspector (Finding No. 10, 

supra) . 

There is some additional testimony which should be considered 

in determining whether the preponderance of the evidence supports 

a finding that two miners' representatives accompanied Inspector 

Ingram on August 18, 1982. Willis' testimony shows that Samms 

made a very significant effort to disassociate himself with the 

inspector's activities after they went underground. According 

to Willis, Samms went immediately to the face area of the longwall section and checked two respirable-dust pumps and was on 

his way back to check a third pump when the other three persons 

(Inspector Ingram, Willis, and Sinozich) in the inspection party 

made their way to the face area. Moreover, Willis stated that 

Samms remained away from the inspection party all morning and 

1087 
was eating his lunch at the head entry when Ingram, Willis, and 

Sinozich came to the head entry to eat their lunch. Additionally, 

Willis stated that Sinozich and Samms became involved in a heated 

argument at the head entry as to what duties Samms purported to . 

be doing at that time, whereas Sinozich denies that he ever had 

any sort of argument with Samms on August 18 (Finding Nos. 6 and 

11, supra). 

The inspector's testimony indicates that Samms did not remain with the inspection party and that Samms left the longwall 

section about noon (Finding No. 3, supra). 

Based on the preponderance of the evidence discussed above 

and my observations of the witnesses' demeanor, I find that 

Samms did advise Sinozich that he was going underground to check 

the respirable-dust samples under West Virginia law and that the 

inspector was aware of having with him only one miners' representative, namely, Willis. Therefore, the record does not support USSM's argument that the safety committee insisted on having two miners' representatives accompany the inspector on 

August 18, 1982. Since Sinozich had been advised by Samms that 

Samms was going with the inspection party to check respirabledust samples under West Virginia law, he had ample opportunity 

to assert that Samms could not go under West Virginia law and 

would either have to be considered as a second miners' representative to accompany the inspector under section 103{f) or be 

denied the r~ght of going underground except to work on his own 

section. 

There is every indication that if the union had been confronted with a choice of having Willis go as the miners' representative or having Willis denied the right to go because Samms 

was also insisting on going as the miners' representative, the 

union would have elected to send Willis under section 103(f) 

and would have dealt with USSM's claim that Samms couldn't go 

underground to check respirable-dust pumps under West Virginia 

law. Since the union was not given the chance to make that 

decision on August 18, 1982, I do not believe that USSM should 

be permitted to argue on the basis of the record in this proceeding that the safety committee insisted on sending two miners' 

representatives to accompany the inspector on August 18, 1982. 

As noted above., Inspector Ingram was completely unaware of 

any claim by USSM that he was permitting two miners' representatives to accompany him on August 18. He unequivocally testified 

that as far as he was concerned only Willis was the miners' representative to accompany him on August 18 and that Samms took 

the matter of his being one of the inspection party out of the 

inspector's hands by.announcing that he was going underground 

to check respirable-dust samples under West Virginia law (Tr. 

18) • 

108B 
Finally, I do not think that section 103(f) requires that 

the inspector must request an additional represeni:ative before 

two representatives may go with him. Section 103(f) simply 

states that "[t)o the extent that the Secretary or authorizedrepresentative of the Secretary det~rmines that mqre 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." [Emphasis supplied.] That sentence 

means that the inspector may permit more than one representative 

for each party regardless of whether he actively requests that 

more than one person accompany him. In this case, however, the 

inspector was never asked to permit more than one representative 

to accompany him because, so far as he was concerned, the safety 

committee had elected to send only Willis as the miners' representative. Consequently, USSM simply cannot raise the "two 

miners' representatives" argument in this proceeding because the 

preponderance of the evidence fails to support such an argument. 

A Violation of Section 103(f) Occurred 

On the basis of the discussion above, I have found that the 

safety committee had a right to select a safety inspector from 

the international union as its miners' representative under section 103(f) of the Act on August 18, 1982. Therefore, the inspector properly cited USSM for a violation of section 103(f) 

when USSM refused to allow UMWA's safety inspector to accompany 

the inspector. The order accompanying this decision will hereinafter affirm Citation No. 2024280 issued August 18, 1982, which 

alleged that a violation of section 103(f} had occurred. 

DOCKET NO. WEVA 83-95 

The Secretary's petition for assessment of civil penalty 

filed in Docket No. WEVA 83-95 seeks assessment of two civil 

penalties, the first.one being for the violation of section 

103(f) of the Act alleged in Citation No. 2024280 considered 

above in Docket No. WEVA 82-390-R, and the second one being for 

a violation of 30 C.F.R. § 70.101 alleged in Citation No. 9917507 

dated September 1, 1982. Assessment of a penalty for the violation of section 103(f) must be done on the basis of the record 

developed in the contest proceeding in Docket No. WEVA 82-390-R 

because the civil penalty issues were consolidated for hearing 

in the contest proceeding. Evidence was introduced by USSM and 

the Secretary in Docket No. WEVA 83-95 with respect to the violation of section 70.101 alleged in Citation No. 9917507. 

USSM's Argument that a Judge Is Bound by the Provisions of 30 

C.F.R. § 100.4 

Since Inspector Ingram did not check the block on Citation 

No. 2024280 appearing after the words "Significant and Substantial", the Assessment Office proposed a "single penalty assessment" 

1089 
of $20 under 30 C.F.R. § 100.4 which proviqes as ~ollows: 

An assessment of $20 may be imposed as the 

civil penalty where the violation is not reasonably 

likely to result in a reasonably serious injury or 

illness, and is abated within the time set oy the 

inspector. If the violation is not abated within 

the time set by the inspector, the violation will 

not be eligible for the $20 single penalty and will 

be processed through either the regular assessment 

provision (§ 100.3) or special assessment provision 

(§ 100.5). 

USSM attached to its brief, filed in Docket No. WEVA 83-95, a 

copy of its petition for discretionary review of a decision by 

Judge Broderick issued in U. S. Steel Mining Co., Inc., 5 FMSHRC 

934 (1983). In that U.S. Steel decision, Judge Broderick held 

that the "* * * Commission is not bound by the Secretary's regulations setting out how he proposes to assess penalties" (5 

FMSHRC at 936). USSM relies on the arguments made in its petition for discretionary review filed in Judge Broderick's case in 

Docket No. PENN 82-328 in support of its claim that I am bound 

by the provisions of section 100.4 and must, therefore, assess a 

penalty of only $20 for the violation of section 103(f) because 

that is the penalty which the Secretary proposed for that violation in Docket No. WEVA 83-95 when he proposed the penalty under 

section 100.4. 

The first argument which USSM's petition (p. 2) makes is 

that an "* * * operator has no remedy at law" if an inspector 

erroneously checks the "significant and substantial" block on a 

citation. USSM claims that if a manager's conference held under 

section 100.6 of the regulations fails to result in a reversal 

of the inspector's error, the operator may contest the penalty 

under section 100.7 where lawyers will become involved, but USSM 

claims that if the lawyers do find that the inspector made an 

error in checking the "S & S" block, the operator will be unable 

to obtain relief because "* * * the Administrative Law Judges 

are not willing to approve a settlement motion for the single 

penalty assessment because they do not agree with the new penalty 

criteria" (Petition, p. 2). 

There are at least two fallacies in USSM's first argument. 

First, section 100.7 of the regulations and section 105(d) of the 

Act are designed to provide the operator with a forum where he 

can present evidence and arguments in support of his claims that 

the inspector improperly checked "S & S". When USSM sought review of the inspector's citing of USSM for a violation of section 

103(f), USSM's attorney checked a block on a form which states, 

"I wish to contest and have a formal hearing on all the violations 

listed in the Proposed Assessment." USSM was provided with an 

1090 
extensive hearing on the inspector's having cited ... USSM for a 

violation of section 103(f). There is nothing in the Act or in 

Part 100 of the regulations which provides that once a hearing 

has been held, the judge is precluded from using the evidenc~ in 

that hearing to assess a civil penalty under sec~ion llO(i) of 

the Act. 

The second error in USSM's first argument is that USSM incorrectly states that administrative law judges will not approve 

a settlement motion involving a single penalty assessment of $20 

under section 100.4. I have approved several settlements involving $20 assessments proposed by the Secretary pursuant to section 

~00.4. See, e.g., Eureka Mining Corp., Docket No. LAKE 83-5, 

issued January 27, 1983; RB Coal Company, Inc., Docket No. KENT 

83-24, issued July 13, 1983; and D & D Coal Company, Inc., Docket 

No. KENT 83-25, issued October 17, 1983. There are other errors 

in USSM's first argument, but they will hereinafter be noted in 

my discussion of USSM's other allegations. 

USSM's second argument begins with the observation that the 

case law to date has arisen only under section 100.3 "* * * which 

has an elaborate scheme for considering the six penalty criteria" 

(Petition, p. 2). USSM concedes that the Commission and its 

judges are ~ot bound by the provisions of section 100.3 "* *· * 

because both parties may have more information after a full hearing than the assessment office had originally" (Petition, p. 2). 

USSM's petition (p. 3) tries to distinguish section 100.3 from 

section 100.4 by asserting that there is considerable discretion 

in applying the six criteria described in section 100.3 but little 

discretion in applying section 100.4's two criteria which only 

pertain to whether the violation was "S & S", that is, reasonably 

likely to result in a reasonably serious injury, and whether the 

violation was abated within the time given by the inspector. Th~ 

aforesaid difference in the range of discretion between the two 

sections is said by USSM to make the present case law inapplicable to section 100.4. 

USSM refers to the Commission's language in Sellersburg 

Stone Co., 5 FMSHRC 287 (1983), in which the Commission held that 

it is not bound by the Secretary's assessment formula, and USSM 

claims that the preamble to the regulations relied on by the 

Commission in that case specifically refers to section 100.3, 

not to section 100.4. USSM's petition (p. 3) further states 

that the word "may" used in the first sentence of section 100.4 

implies that application of the section may be discretionary, but 

USSM claims that the word "may" is restricted to making the two 

required findings as to nonseriousness and timely abatement. 

USSM claims that the Secretary stated in the final rule that the 

term "single penalty assessment" was being used to clarify that 

$20 is the only penalty an operator could receive under section 

100.4. 

1091 
In addition to the lack of discretion permitted in applying 

section 100.4, as opposed to section 100.3t USSM'~ petition (p. 4) 

argues that section 100.4 enunciated a new agency policy which 

is binding upon the operator and the agency. USSM argues that a 

judge cannot ignore the new test devised by the agency whose 

rules he is supposedly applying and substitute h~s own test. 

USSM continues its argument by saying that a judge cannot create 

law because he does not agree with the existing regulation and 

that a judge "* * * must base his decision on the testimony he 

has heard" (Petition, p. 4). 

If USSM is going to base its arguments on the "case law" 

pertaining to penalty assessments, it ought to start with the 

procedures used by the Secretary of the Interior to carry out 

the provisions of section 109{a) (c) of the Federal Coal Mine 

Health and Safety Act of 1969 which provided, in pertinent part, 

as follows: 

(3) A civil penalty shall be assessed by the 

Secretary only after the person charged with a violation under this Act has been given an opportunity 

for a public hearing and the Secretary has determined, 

by decision incorporating his findings of fact therein, that a violation did occur, and the amount of the 

penalty which is warranted, and incorporating, when 

appropriate, an order therein requiring that the penalty be paid. * * * 

The Secretary devised a formula for applying the six criteria 

listed in section 109(a) (1) of the 1969 Act. Those same criteria 

are also listed in section llO(i) of the 1977 Act. Operators 

challenged the penalties proposed by the Secretary under the 

1969 Act on the ground that he had not made the findings required 

by section 109(a) (3), supra. Several circuit courts considered 

the matter. The District of Columbia Circuit, in National 

Independent Coal Operators' Assn. v. Morton, 494 F.2d 987 (1974), 

affirmed the method employed by the Secretary of the Interior 

under which the Secretary proposed penalties without making 

formal findings as to the six criteria, but the regulations permitted the operator to request a hearing before an administrative 

law judge who would make findings as to the six criteria. The 

court held that the operator was afforded due process under the 

regulations then in effect. The Third Circuit, in Morton v. 

Delta Mining, Inc., 495 F.2d 38 (1974), reversed the method 

being used by the Secretary of the Interior because the court 

believed that section 109(a) (3) required the Secretary to make 

findings as to the six criteria when he proposed civil penalties. 

The Supreme Court affirmed the D. c. Circuit's decision in 

National Independent Coal Operators' Assn. v. Kleppe, 423 U.S. 

388 (1976), and reversed the Third Circuit's decision in Kleppe 

1092 
v. Delta Mining, Inc., 423 U.S. 403 (1976). In each case the 

Court held that the Secretary of the Interior haa proceeded under a v~lid regulatory scheme which permitted an operator to request a hearing and obtain a decision making the findings required by section 109(a) (c) of the 1969 Act. 

The legislative history of the 1977 Act shows that Congress 

was displeased with the enforcement of the 1969 Act with respect 

to assessment and collection of civil penalties. For example, 

Senate Report No. 95-181, at page 41 (or page 629 of the Legislative History of the Federal Mine Safety and Health Act of 1977 

prepared for the Subcommittee on Labor of the Committee on Human 

Resources) stated as follows: · 

In overseeing the enforcement of the Coal Act 

the Committee has found that civil penalty assessments are generally too low, and when combined with 

the difficulties being encountered in collection of 

assessed penalties (to be discussed, infra), the 

effect of the current enforcement is to eliminate 

to a considerable extent, the inducement to comply 

with the Act or the standards, which was the intention of the civil penalty system. 

The Report thereafter reviewed the civil penalty system as 

it was administered by the Secretary of the Interior and found 

that the procedures for assessing penalties needed revision to 

prevent the parties from settling cases in which hearings had 

been requested by agreement of the parties to reduce proposed 

penalties by an excessive amount. The Report also was concerned 

about undue delay in completing civil penalty cases because of 

the procedure in the 1969 Act under which an operator could obtain de novo hearings in the district courts. Report No. 95-181 

outlined the amendments to the 1969 Act which were deemed necessary to eliminate the defects in the civil penalty system. On 

page 45 (or page 633 of the Legislative History), the Report 

states as follows: 

To remedy this situation, Section [llO(k)J 

provides that a penalty once proposed and contested before the Commission may not be compromised except with the approval of the Commission. 

Similarly, under Section lll(k) a penalty assessment which has become the final order of the Commission may not be compromised except with the 

approval of the Court. By imposing these requirements, the Committee intends to assure that the 

abuses involved in the unwarranted lowering of 

penalties as a result of off-the-record negotiations are avoided. It is intended that the Commission and the Courts will assure that the public 

interest is adequately protected before approval 

of any reduction in penalties. 

1093 
The Report further states on page 45 that: 1 

S. 717 provides a number of means by which 

the method of collecting penalties is streamlined. 

Section [llO(i)] provides that the civil p~nalties 

are to be assessed by the Mine Safety and Health 

Review Commission rather than by the Secretary as 

prevails under the Coal Act (Sec. 109(a) (3)). * * * 

The discussion above of the changes which Congress made in 

amending the 1969 Act shows that Congress did not intend for 

the Commission to be bound by any formulas which the Secretary 

of Labor may promulgate for the purpose of proposing 2/ penalties under section 105(a) of the Act. Section llO(i)-specifically provides for the Commission to assess all civil penalties 

under the Act and section llO(i) specifically states that in 

assessing civil penalties, the Commission "shall consider" the 

six criteria. On the other hand, section llO(i) provides that 

"* * * [i]n proposing civil penalties under this Act, the Secretary may rely upon a summary review of the information available 

to him and shall not be required to make findings of fact concerning the above factors." 

It is clear from the provisions of the 1977 Act that the 

Secretary of Labor has authority under the Act only for proposing penalties. If an operator does not agree with the assessment procedures promulgated by the Secretary in either section 

100.3 or section 100.4, he may ask for a hearing before the 

Commission. Once the Commission or one of its judges holds a 

hearing, the operator is bound by the results of .that hearing 

and the Commission and its judges are required to assess civil 

penalties under the provisions of section llO(i) of the Act regardless of what the Secretary may have proposed in the way of 

penalties prior to the time the hearing is held. Moreover, the 

operator must take his chances, as any litigant does, as to 

whether he will be any better off after he seeks a hearing than· 

he would have been if he had paid the Secretary's proposed 

assessments based on any provision of Part 100. 

Congress specifically amended the 1969 Act to require that 

the parties obtain the Commission's approval of any settlement 

reached after an operator has requested a hearing before the 

Commission. Since the Act was specifically amended to prevent 

undue lowering of civil penalties through settlement negotiations 

or otherwise, it is certain that Congress did not intend for the 

2/ See the Commission's discussion of the Secretary's role of 

proposing penalties versus the Commission's role of assessing 

penalties in MSHA on behalf of Milton Bailey, 5 FMSHRC 2042 

(1983). 

1094 
commission's hands to be tied in approving or dis~pproving settlements, or in assessing penalties, simply because the Secretary 

has promulgated a provision for determining a so-called single 

penalty assessment of $20 in section 100.4 which only refers to 

two of the six criteria which the Commission is required to use 

in assessing civil penalties. • 

For the reasons given above, I reject USSM's arguments to 

the effect that I am bound by the provisions of 30 C.F.R. § 100.4. 

I shall hereinafter assess a penalty for the violation of section 

103{f) of the Act alleged in Citation No. 2024280 under the six 

criteria as required by section llO{i) of the Act. 

Consideration of the Six Criteria 

The parties entered into some stipulations at the hearing 

held in Docket No. WEVA 82-390-R. Those stipulations were that 

USSM is subject to the Act, that I have jurisdiction to hear and 

decide the issues, and that USSM is a large operator {Tr. 92). 

Since it has been stipulated that USSM is a large operator, I 

find that any penalties to be assessed in this proceeding should 

be in an upper range of magnitude to the extent that they are 

based on the criterion of the size of USSM's business. 

Ability To Pay Penalties 

USSM did not introduce any evidence pertaining to its financial condition. The Commission held in the Sellersburg case, 

supra, that if an operator fails to present evidence concerning 

its financial condition, a judge may presume that the operator's 

ability to continue in business will not be adversely affected 

by the payment of civil penalties. Therefore, it will be unnecessary to reduce any penalties otherwise assessable under the 

other criteria on the basis of a finding that payment of penalties might cause USSM to discontinue in business because the 

lack of any financial evidence in this proceeding permits me to 

conclude that payment of penalties will not cause USSM to discontinue in business. 

History of Previous Violations 

It has been my practice to consider under the criterion of 

history of previous violations the question of whether the operator in a given proceeding has previously violated the same section of the regulations or Act which is before me for assessment 

of a penalty. The legislative history discussed above shows 

that Congress agrees that such a practice is acceptable {History, 

p. 631). USSM's counsel stated at the hearing that USSM has not 

previously violated section 103{f) of the Act {Tr. 92). Therefore, the penalty to be assessed for the violation of section 

103{f) should reflect consideration of USSM's lack of a history 

of having previously violated section 103{f) of the Act. 

1095 
Good-Faith Effort To Achieve Rapid Compliance 

Citation No. 2024280 was written at 8:45 a.m. on August 18, 

1982, and provided a termination due date of August 18, 1982, at 

9:15 a.m. The inspector terminated the citatio~ at 9:15 a.m. 

and gave as the reason for the termination that USSM had agreed 

to allow Willis to accompany him (Exh. 1). Willis testified 

that Sinozich, on whom the citation had been served, waited for 

about 32 or 33 minutes before calling the main office to find 

out whether Sinozich should allow Willis to enter the mine with 

the inspector (Tr. 34). Sinozich testified that he called his 

supervisor, Carl Peters, after the citation was issued, but 

Sinozich did not state how long he waited after the citation was 

issued before calling Peters (Tr. 66). Sinozich stated, however, 

that Peters told him he would call Sinozich back in a few minutes 

to give him an answer. It is possible that the 32- or 33-minute 

period mentioned by Willis was running while Sinozich waited to 

get an answer from Peters. Since Inspector Ingram terminated 

the citation at 9:15 a.m., which was the time period originally 

given for abatement, I believe that the preponderance of the 

evidence supports a finding that USSM showed a good-faith effort 

to achieve compliance. 

It has been my practice to increase a penalty otherwise 

assessable under the other criteria if there is evidence in a 

given case to show that the operator failed to make a timely 

effort to abate a given violation. On the other hand, if an 

operator demonstrates some outstanding effort to abate an alleged violation, I normally reduce the penalty otherwise assessable under the other criteria. If the operator takes no unusual 

action, but abates the violation within the time given by the 

inspector, I neither raise nor lower the penalty otherwise 

assessable under the other criteria. Since USSM demonstrated a 

normal effort to achieve compliance, the penalty will not be 

raised or lowered under the criterion of good-faith abatement. 

Negligence 

The evidence shows that the inspector was sufficiently in 

doubt about whether USSM's refusal to allow Willis to accompany 

him was a violation of section 103(f), that it was necessary 

for the inspector tq call his supervisor for guidance (Tr. 10). 

Both Sinozich and Peters maintained throughout the hearing that 

Willis was not entitled to be a miners' representative because 

of his failure to give advance notice that he was coming (Tr. 

64; 81; 85). I have found above in my decision in Docket No. 

WEVA 82-390-R that Peters was aware of Willis' interest in the 

elimination of the respirable-dust problem in the longwall section and that Peters should not have been greatly surprised when 

Willis appeared at the mine on August 18, 1982, for the purpose 

of accompanying the inspector. 

109S 
On the other hand, the union is not entirely without fault 

in bringing about the state of confusion which had a great deal 

to do with Sinozich's and Peters' original decision to deny 

Willis permission to enter the mine as the miners' representa~ 

tive. The safety committee had called Willis on the evening of 

August 17 to ask Willis to come to the mine to a€company the inspector if the inspector appeared as they anticipated. Yet, 

neither the safety committee nor Willis bothered to provide any 

of USSM's management personnel with any notice of any kind until the safety committee on the morning of August 18 advised 

the inspector that Willis was the miners' representative to accompany the inspector. The safety committeeman, Carter, could 

not recall any previous time when one of UMWA's safety inspectors 

had been called to the mine to act as the miners' representative 

for purposes of accompanying an inspector (Tr. 28). Therefore, 

the safety committee knew that it was going to follow a procedure 

which was uncommon and a large part, if not all, of the confusion 

which resulted when Willis made his previously unannounced appearance 3/ on the morning of August 18, 1982, could have been 

avoided if the safety committee had at least explained on the 

evening of August 17 that it was going to select Willis as the 

miners' representative to accompany the inspector if the inspector made an appearance on August 18 as the safety committee expected. Moreover, Samms created additional confusion by announcing that he was going in with the inspection party under the provisions of West Virginia law (Tr. 18; 33). That was an unusual 

act on the part of the safety committee and could have affected 

Sinozich's ability to consider the issues in an atmosphere conducive to calm and rational decision-making. 

Based on the considerations discussed above, I find that 

USSM's management was dealing with some new circumstances and 

acted in a way which can hardly be categorized as negligent, 

especially since both Sinozich and Peters believed that they 

were taking actions which were entirely in compliance with section 103(f) of the Act. Therefore, the penalty otherwise assessable under the other criteria will not be increased under the 

criterion of negligence. 

3/ I am not holding that section 103(f) of the Act requires the 

safety committee to give USSM advance notice as to the identity 

of the miners' representative. I am simply pointing out that· 

USSM's management might have acted differently in this case if 

it had had some advance time within which to consider the fact 

that the safety committee intended to select a miners' representative other than the ones who were normally chosen for the purpose of accompanying the inspectors~ Since USSM claims no right 

whatsoever to participate in UMWA's selection of miners' representatives (Tr. 86), I cannot see any advantage in the safety 

committee's failure to give USSM as much notice as possible of 

the fact that it is planning to choose a miners' representative 

other than the one who is normally selected. 

109'7 
Gravity 

It ·has been unnecessary to consider the arguments in the 

parties' briefs in dealing with the five criteria discussed 

above because the Secretary's brief pertaining to the violation 

of section 103(f) does not discuss the penalty lssues at all 

and USSM's brief simply contends that I am bound to assess a 

$20 penalty under section 100.4. USSM's arguments about section 100.4 have already been considered above. UMWA's brief 

(p. 9) does discuss the penalty issues by correctly arguing 

that I am not bound by section 100.4 of the regulations. UMWA's 

brief also argues that a penalty in an amount higher than $20 

ought to be assessed because of USSM's having delayed the commencement of the inspection. 

The record does not specifically show that Inspector Ingram would have gone underground any sooner than he did if he 

had not been confronted with USSM's refusal to allow Willis to 

go underground to accompany him. The record shows that the inspector went about his normal duties of placing respirabledust pumps on three miners on the longwall section (Tr. 9). 

The miners on the production shift went underground at the 

usual time and the longwall section was producing coal at the 

time the inspection crew arrived in the longwall section. Since 

the respirable-dust samples obtained on August 18 were valid and 

showed that the longwall section was in compliance with the 

respirable-dust standards (Tr. 78), the delay, if any, which 

might have occurred in the time when the inspection crew went 

underground, does not seem to have adversely affected the inspector's work or Willis' ability to examine the conditions in 

the longwall section. Willis claims to have seen the engineering changes which were being made in the water sprays and claims 

to have made at least two suggestions pertaining to control of 

respirable dust (Tr. 36-37). In such circumstances, the record 

does not support a finding that anyone was adversely affected by 

the fact that the inspector may not have gone underground as 

soon as he would have if it had not been necessary to issue a 

citation and wait about half an hour for the citation to be 

abated. 

The criterion of gravity, therefore, must be considered 

primarily from the standpoint of whether USSM's initial refusal 

to allow Willis to go underground caused the union to be frustrated prospectively in its efforts to provide a miners' representative to accompany inspectors under section 103(f). 

In Consolidation Coal Co., Docket Nos. PENN 82-221-R and 

PENN 82-259, issued July 28, 1983, I assessed a penalty of $100 

for a violation of section 103(f), but in that case, Consol 

deliberately refused to pay a miners' representative for accompanying an inspector during a spot inspection and did so for the 

1098 
sole purpose of bringing that issue before a cirguit court other 

than the District of Columbia Circuit which had already decided 

the issue adversely to Consol's position. There was some negligence in the Consol case, as compared with no negligence heretofore found in this case, because U.SSM was dealing with a novel 

situation which arose unexpectedly, whereas Consol deliberately 

refused to pay a miners' representative in order to create a 

case for purpose of perfecting an appeal to a circuit court. 

There was also a greater degree of gravity in the Consol case 

than there is in this case because USSM paid Samms for going 

underground at the same time USSM was contesting Willis' right 

to go underground with Samms and the inspector. Finally, Consol 

was seeking a reinterpretation of section 103(f) with respect to 

an issue which had already been decided by the D. C. Circuit and 

as to which the Supreme Court had already denied a petition for 

certiorari, whereas USSM is seeking an interpretation of section 

103(f) with respect to an issue which has not been specifically 

decided by the Commission, that is, whether the safety committee 

has to give USSM any advance notice before selecting a UMWA 

safety inspector (who is a full-time UMWA employee) as the 

miners' representative to accompany an inspector pursuant to 

section 103(f). 

Assessment of Penalty 

The discussion above shows that a large operator is involved, 

that the payment of penalties will not cause the operator to discontinue in business, that the operator demonstrated a good-faith 

effort to achieve compliance, that the operator has no history of 

a previous violation of section 103(f), that the violation was 

associated with no negligence, and that the violation was associated with a very low degree of gravity. Therefore, a civil 

penalty of $25 will hereinafter be assessed for the violation of 

section 103(f) alleged in Citation No. 2024280 dated August 18, 

1982. 

Docket Nos. WEVA 83-82 and WEVA 83-95 

The petition for assessment of civil penalty filed in Docket No. WEVA 83-82 seeks to have a penalty assessed for a single 

alleged violation of 30 C.F.R. § 70.101 (Tr. 205). The petition 

for assessment of civil penalty filed in Docket No. WEVA 83-95 

seeks to have a penalty assessed for the violation of section 

103(f) of the Act which has already been considered in the preceding portion of this decision. The petition for assessment 

of civil penalty filed in Docket No. WEVA 83-95 also seeks 

assessment of a civil penalty for an alleged violation of section 70.101. The primary difference between the two alleged 

violations of section 70.101 is that the violation alleged in 

Docket No. WEVA 83-82 pertains to mechanized mining Unit No. 

002 in USSM's Shawnee Mine, while the violation alleged in Docket No. WEVA 83-95 pertains to mechanized mining Unit No. 024 

in USSM's Morton Mine. 

109g 
Findings of Fact 

The testimony of the witnesses and the documentary evidence 

submitted by the parties support the following findings of fact. 

Since this is a consolidated proceeding, the findings here will 

be numbered in sequence with the 13- findings of fact made in the 

preceding portion of this decision. 

14. On October 20, 1982, an MSHA inspector issued Citation 

No. 9914583, pursuant to section 104(a} of the Act, alleging 

that USSM had violated section 70.101 in its Shawnee Mine because (Tr. 207; Exh. 20}: 

[b]ased on the results of five valid dust samples collected by the operator, the average concentration of 

respirable dust in the working environment of the 

designated occupation in mechanized mining· unit 002-0 

was 1.7 milligrams which exceeded the applicable 

limit of 1.4 milligrams. Management shall take corrective actions to lower the respirable dust and then 

sample each production shift until five valid samples 

are taken and submitted. 

15. On November 22, 1982, an MSHA inspector issued a subsequent action sheet which stated (Tr. 209; Exh. 23}: 

[b]ased on five valid samples, the respirable dust 

concentration on the [d]esignated occupation in mechanized mining unit 002-0 is within the applicable 

limit of 1.4 milligrams. 

16. The respirable-dust standard for the 002 Unit had 

been reduced to 1.4 from the normal standard of 2.0 milligrams 

per cubic meter of air under the provisions of section 70.101 

which provides as follows: 

§ 70.101 Respirable dust standard when quartz is present. 

When the respirable dust in the mine atmosphere 

of the active workings contains more than 5 percent 

quartz, the operator shall continuously maintain the 

average concentration of respirable dust in .the mine 

atmosphere during each shift to which each miner in 

the active workings is exposed at or below a concentration of respirable dust, expressed in milligrams 

per cubic meter of air as measured with an approved 

sampling device and in terms of an equivalent concentration determined in accordance with § 70.206 

(Approved sampling devices; equivalent concentrations} , computed by dividing the percent of quartz 

into the number 10. 

1100 
Example: The respirable dust associated with a 

mechanized mining unit or a designated area ln a 

mine contains quartz in the amount of 20%. Therefore, the average concentration of respirable dust 

in the mine atmosphere associated with that mechanized mining unit or designated area shall be continuously maintained at or below 0.5 milligrams of 

respirable dust per cubic meter of air (10/20 = 

0.5 mg/m3). 

USSM had been notified on April 27, 1982, pursuant to section 

70.101, that the respirable-dust standard for the 002 Unit in 

the Shawnee Mine had been reduced to 1.4 milligrams per cubic 

meter of air on the basis of a quartz analysis showing that the 

mine atmosphere contained 7 percent quartz (10/7 = 1.4 mg/m3)" 

(Tr. 223; Exh. 36). 

17. On September 1, 1982, an MSHA inspector issued Citation No. 9917507, pursuant to section 104(a) of the Act, alleging that USSM had violated section 70.101 in its Morton Mine because (Tr. 108; Exh. 4): 

[b]ased on the results of five valid dust samples 

collected by the operator, the average con~entration 

of respirable dust in the working environment of the 

designated occupation in mechanized mining unit 024-0 

was 1.9 milligrams which exceeded the applicable 

limit of 1.6 milligrams. Management shall take corrective actions to lower the respirable dust and then 

sample each production shift until five valid samples 

are taken and submitted. 

18. On November 29, 1982, an MSHA inspector issued a subsequent action sheet which stated (Tr. 114; Exh. 8): 

[b]ased on five valid samples, the respirable dust 

concentration on the designated occupation in mechanized mining unit 024-0 is within the applicable 

limit of 1.6-milligrams. 

19. On October 26, 1981, USSM had been notified that the 

respirable-dust standard for the 024 Unit in the Morton Mine had 

been reduced to 1.6 milligrams per cubic meter of air on the 

basis of a quartz analysis showing that the mine atmosphere contained 6 percent quartz (10/6 = 1.6 mg/m3) (Tr. 108; 136; Exh. 

11). 

20. MSHA normally places respirable-dust-sampling devices 

on persons in each mechanized mining unit at least once each 

year (Tr. 103). The samples are weighed in MSHA's field offices 

(Tr. 104) and if there is a weight gain of .5 milligrams for 

1101 
samples obtained with an MSA sampler or .8 milligrams for samples obtained with a Bendix sampler, the samples are sent to the 

Pittsburgh Technical Support Center for quartz analysis {Tr. 

106; 244; 249). 

21. USSM is critical of MSHA's quartz-samp:ling program because it argues that mining conditions change on a daily basis 

{Tr. 522) and that the amount of quartz in the mine atmosphere 

changes constantly {Tr. 181). Therefore, USSM declares that it 

is unrealistic for MSHA to fix a respirable-dust standard for 

an entire year based on a quartz analysis of a single respirabledust sample. MSHA defends its once-a-year sampling procedure by 

stating that MSHA has examined data collected over a 6-to-8-year 

period and has found that in 80 to 81 percent of the cases, 

where repeat samples were analyzed for quartz. content, the re~ 

peat samples showed a quartz content equal to or greater than 

the quartz content revealed by the original sample {Tr. 246). 

22. MSHA also claims that it sent all operators a notice 

dated March 10, 1981 {Exh. 39), which advised them that the new 

quartz standard had been put into effect and that notice advised the operators that they could request a repeat survey if 

they believed that there was less quartz in the environment 

than existed at the time the reduced standard was put into 

effect. MSHA also defends the fairness of its sampling program 

by noting that if the reduction in the respirable-dust standard 

applies to quartz analysis for a single work position, the reduced standard will be applied only to that work position {Tr. 

249) • 

23. USSM also objects to MSHA's quartz-sampling program 

because the quartz analyses are based entirely on samples taken 

by MSHA inspectors and complains that MSHA will not perform a 

quartz analysis on any of the samples taken by the operator 

{Tr. 194-195; 225-228). USSM also objects that it is not specifically advised when MSHA plans to take samples for quartz 

analysis and that the inspectors themselves cannot tell USSM 

for certain which of the samples they are taking on a given day 

will be analyzed for quartz {Tr. 314). Moreover, USSM claims 

that the inspectors do not know what the exact mining parameters 

are at the time the samples are being taken and that when USSM 

receives a notice that a quartz analysis of a given sample has 

required the respirable-dust standard to be reduced because of 

the percentage of quartz in the mine atmosphere, USSM cannot 

find out what specific sample was analyzed for that particular 

reduction of the respirable-dust standard (Tr. 315). 

24. MSHA defends its refusal to use the operator's samples 

for quartz analysis primarily by arguing that the operator submits samples on a bimonthly basis and that if the respirabledust standard is adjusted upward or downward with bimonthly 

1102 
frequency, MSHA would not have control over the long-term variation in respirable dust or quartz levels. MSHA contends that 

frequent changes in the standard would work to the detriment of 

miners because the particular respirable-dust control plan 

would never be adjusted to the levels that would insure that 

the miners were protected from quartz exposures ~(Tr. 253; 282). 

One MSHA inspector testified that on one occasion when he was 

obtaining respirable-dust samples, USSM's section foreman controlled the mining sequence so as to avoid extracting from 18 to 

24 inches of rock normally taken in an entry where extra height 

was needed for the purpose of placing longwall mining equipment 

in that entry (Tr. 351). 

25. One of USSM's witnesses testified that USSM requested 

that repeat samples for quartz analysis be taken at its No. 9 

Mine. When the inspector came to the No. 9 Mine to obtain the 

samples, USSM was considerably perturbed because the inspector 

asked the persons wearing the samplers to get into as much dust 

as possible so that the inspector would be able to acquire 

enough weight for a quartz analysis without his having to make 

additional trips to the No. 9 Mine for that purpose. USSM's 

witness stated, however, that the portion of the No. 9 Mine, 

where the repeat sampling was performed, was closed for economic 

reasons and.that the results of the request for resampling were 

never reported to USSM (Tr. 535; 538; 544). USSM does not claim 

to have made any requests for repeat sampling for quartz with 

respect to the 002 Unit in the Shawnee Mine or the 024 Unit in 

the Morton Mine which are involved in this proceeding (Tr. 529; 

538) • 

26. Quartz analyses of samples taken in the Shawnee Mine 

on April 12 and April 13, 1982, showed that the mine atmosphere 

contained 15-percent quartz on one day and 7-percent quartz on 

the next day (Tr. 229-230). Therefore, the quartz concentration 

may vary as much as 8 percent within a 2-day period. As a result of the two aforesaid quartz analyses, USSM received notification on April 27, 1982, that the respirable-dust standard had 

been reduced to .6 milligrams per cubic meter because of the 15-

percent quartz analysis and to 1.4 milligrams per cubic meter 

because of the 7-percent quartz analysis (Exhs. 35 and 36). The 

7-percent quartz analysis was performed on April 22, 1982, while 

the 15-percent quartz analysis was performed on April 20, 1982. 

Therefore, USSM was allowed to utilize the 1.4 milligram standard because that standard was based on the last information 

available to MSHA (Tr. 511). 

27. At least one of USSM's witnesses conceded during crossexamination that USSM has enough knowledge about the conditions 

in its mines to be able to determine the mining parameters which 

are in existence on any given day when MSHA inspectors are 

1103 
obtaining respirable-dust samples (Tr. 526~527). The section 

foremen have eyes in their heads and cannot possibly be unaware 

of the fa.ct that an MSHA inspector has placed respirable-dust 

pumps on the members of their crew on a given day (Tr. 345). 

28. Although USSM's cross-examination of MSHA's inspectors 

raised the generalized objections to MSHA's respirable-dust 

program which have been covered above, the primary contention 

raised by USSM in the respirable-dust aspect of this proceeding 

is that exposure for 2 months to 1.7 milligrams of respirable 

dust per cubic meter of air on a standard of 1.4 milligrams in 

Docket No. WEVA 83-82, or exposure for 2 months to 1.9 milligrams 

of respirable dust per cubic meter of air on a standard of 1.6 

milligrams in Docket No. WEVA 83-95, is not a significant and 

substantial violation as the term "significant and substantial" 

has been defined by the Commission in National Gypsum Co., 3 

FMSHRC 822 (1981) (Tr. 416; 496-498). MSHA presented as witnesses the inspectors who classified the respirable-dust violations described in the preceding sentence as being significant 

and substantial and another witness who considered the violations to be significant and substantial because excessive dust 

causes an injury which is permanently disabling, because each 

exposure is additive, and because the dust ingested remains in 

the lungs, but that testimony was largely based on what the witnesses had read or heard (Tr. 155; 207; 329-331; Exhs. 4, 15, 

and 20). 

29. The most persuasive testimony with respect to whether 

the respirable-dust violations alleged in Citation Nos. 9917507 

and 9914583 are significant and substantial was given by Dr. 

Thomas Richards who is an MD employed by the National Institute 

of Occupational Safety and Health (NIOSH) (Tr. 411). He works 

in NIOSH's Division of Respiratory Diseases and his experience 

has been in examining workers who have been exposed to various 

types of conditions which produce pulmonary problems (Tr. 412-

413). He said that the u. S. Public Health Service has identified silicosis as one of the major diseases which needs to be 

prevented and has set a goal of 1985 as the year after which 

there should be no new cases of silicosis developing in the 

United States because it is a preventable disease (Tr. 414). 

30. Richards testified that quartz and silica are terms 

which may be used interchangably. When silica gets into the 

lungs, it causes scarring or fibrosis. Over a period of time, 

exposure to silica can be predicted to cause a person to develop silicosis. When that condition becomes severe, it is 

called progressive massive fibrosis and can cause premature 

death. Damage caused by the fibrosis, once it occurs, is irreversible and there is no treatment for it. There is a doseand-response relationship. The frequency of the exposure and 

the concentration of the dust increases the risk of developing 

silicosis (Tr. 424-425). As an extreme example of what can 

1104 
happen when a person is exposed to almost pure silica dust, 

Richards referred to a man who had a job requiring him to take 

24 bags of silica-bearing material and pour them into a drum. 

He did that for 1 hour on 60 occasions per year. After 2 years, 

he developed symptoms of silicosis .and in another.2 years he 

died (Tr. 425}. 

31. Richards testified that coal workers' pneumoconiosis 

from pure carbonaceous dust can cause progressive massive fibrosis and result in early death. He said that coal workers are 

also exposed to silica coming from layers of rock above and below a coal seam or between coal seams which are mined simultaneously. Shale, for example, is from 40 to 60 percent silica and 

sandstone can be even higher in silica content than shale. He 

stated that autopsy surveys show that up to 18 percent of 

persons who have developed coal workers' pneumoconiosis show 

nodules in their lungs which are typical of silica exposure 

(Tr • 4 2 6- 4 2 7 } . 

32. Richards frankly admitted that he does not know for 

certain that there is a significant and substantial risk to a 

miner for a single brief exposure to respirable dust in excess 

of the standard given in section 70.101, but he said that the 

available medical evidence and logic supports a conclusion that 

a single exposure has a significant and substantial adverse 

effect on a miner's health. He said that silica in the air is 

breathed in and out to some extent and some of it may be coughed 

up, but some of it will go down to the distal portions of the 

lungs, the alveoli, where the scarring process is initiated. 

He explained that there is a dose response and that he did not 

know the low end of the response, but there is a definite additive effect in each daily dose so that, at some point, a miner 

has to pay the price of the added effect. Richards said there 

was no medical proof to show that a single exposure caused no 

problem any more than there is medical proof to show that a 

single exposure produces a definite measurable, adverse effect 

(Tr. 435-436}. Richards said that "[s]ilicosis is a man-made 

disease, and if men didn't go down in the mines to work, they 

wouldn't have it. So, I think they ought to be very strict on 

the rules on it" (Tr. 500). 

Consideration of Arguments 

USSM's brief (pp. 2-3} states that the issues raised in 

Docket Nos. WEVA 83-82 and WEVA 83-95 are whether the violations 

of section 70 .101 alleged by MSHA we.re significant and substantial and what penalties are appropriate for the conditions described in Citation Nos. 9914583 and 9917507 (Finding Nos. 14 

and 17, supra}. 

It should be noted that Judge Kennedy's decision in u. s. 

Steel Mining Co., Inc., 5 FMSHRC 46 (1983), held that a 

1105 
respirable-dust violation involving a quartz content of 11 percent was a significant and substantial violation. ' USSM did not 

file a petition for discretionary review of Judge Kennedy's 

excellent decision although he decided most of the same issues 

raised in this proceeding. For example, he held, contrary to 

USSM's contentions, that MSHA's use.of a single annual sample 

for determining the quartz content in the mine atmosphere is in 

accordance with the procedure established by the Act. Judge 

Kennedy's U. S. Steel decision also contains a superb explanation of MSHA 1 s respirable-dust program along with a discussion 

of the statutory requirements under which MSHA's program is 

administered. 

Judge Broderick's decision in U. S. Steel Mining Co., Inc., 

5 FMSHRC 1334 (1983) (petition for discretionary review granted 

July 27, 1983), held that a respirable-dust violation involving 

a quartz content of 7 percent was a significant and substantial 

violation. Judge Broderick's decision also appropriately observed (5 FMSHRC at 1336): 

* * * I should note that the precise issue raised by 

Respondent in this case was raised by it in the case 

of Secretary v. U. S. Steel Mining Co., Inc., supra, 

before Judge Kennedy. A decision by a tribunal of 

competent jurisdiction is res judicata in a subsequent proceeding between the same parties involving 

the same issue. 46 Am. Jur. Judgments§ 397 (1969); 

lB Moore·'s Federal Practice § 0.405 (1982). Factual 

differences not essential to the prior judgment do 

not render the doctrine inapplicable. Montana v. 

United States, 440 U.S. 147 (1979); Hicks v. Quaker 

Oats Co., 662 F.2d 1158 (5th Cir. 1981). Respondent 

had a full and fair opportunity to litigate this 

issue before Judge Kennedy and to petition the Commission for review. Based on the doctrine of res 

judicata, it should be precluded from relitigating 

it here. The government, however, did not raise this 

issue, and the case was heard on the merits. My 

conclusion here is based on a consideration of the 

evidence in the case before me. Respondent should 

not be permitted to endlessly raise this issue, however. I accept and adopt the analysis and conclusions 

of Judge Kennedy that exposure to respirable dust 

with quartz content that exceeds 100 micrograms per 

cubic meter of air constitutes a significant risk of 

a serious health hazard. See also Consolidation Coal 

Co. v. Secretary, 5 FMSHRC 378 (1983) {ALJ). 

All of the averments made by Judge Broderick are also true in 

this proceeding. The· Secretary's counsel did not object in this 

proceeding to a third litigation by USSM of the issue of whether 

1106 
a respirable-dust violation based upon a quartz ~ontent of more 

than 5 percent constitutes a significant and substantial violation under the definition of that term set forth by the Commission in its National Gypsum decision (Finding No. 28, supra): 

Like Judge Broderick, I hereinafter find, on the.basis of the 

evidence presented in this proceeding, that the~violations of 

section 70.101 alleged in Citation Nos. 9914583 and 9917507 

were significant and substantial as that term has been defined 

by the Commission in its National Gypsum decision. 

USSM's Claims of Bias or Unfairness 

Although USSM's brief (p. 3) begins its arguments with a 

contention that the Secretary failed to meet his burden of proof 

in this proceeding by establishing that respirable-dust violations are reasonably likely to result in a reasonably serious 

injury, pursuant to the Commission's National Gypsum test of 

significant and substantial violations, USSM continually makes 

allegations about the unfairness of MSHA's respirable-dust 

sampling program. The record, as a whole, shows that USSM's 

claims of unfairness have no merit. 

USSM claims, for example, that MSHA takes samples of 

respirable dust for quartz analysis under conditions which it 

will not disclose to USSM (Br., p. 3). USSM cites transcript 

page 315 in support of that allegation. On that page MSHA's 

witness Nesbit conceded that USSM had no way to know which 

sample an inspector is taking will be analyzed for quartz, but 

the truth of the matter is that the inspector does not know, 

when he is taking a sample, whether it will be analyzed for 

quartz either, because the sample has to be weighed in the 

field office's laboratory to determine if the weight gain is 

as much as .5 or .8 milligrams. If the required weight gain 

is shown to be present, the sample is sent to Pittsburgh for 

quartz analysis. If. the analysis shows that the mine atmosphere contained more than 5 percent quartz, the respirable-dust 

standard is reduced accordingly (Finding Nos. 16, 19, and 20, 

supra). 

USSM's unequivocal statement (Br., p. 3) that MSHA "* * * 

will not disclose to the operator" the conditions under which 

a sample is taken is not supported by the record. The inspec~ 

tors fill out a Form 2000-86 when they are taking respirabledust samples. Those forms show the mining conditions when 

samples are being taken (Exhs. 12 a~d 33). USSM's crossexamination of MSHA's witness Nesbit tried to get him to concede that MSHA would not make those forms available, but he 

repeatedly stated that it was not MSHA '.s policy to deny operators' requests for those forms (Tr. 311; 313-314). Moreover, 

the inspector who took the respirable-dust sample which caused 

the respirable-dust standard to be reduced in the 024 Unit of 
the Morton Mine because of the presence of 6 perc~nt quartz, explained exactly what conditions existed on the section at the 

time he was taking that respirable-dust sample. He even recalled 

that the section foreman declined to cut coal in th~ entry where 

from 18 to 24 inches of rock are taken for purpo~es of obtaining 

increased height for the use of highwall mining equipment (Finding No. 24, supra). His statements, together with those of witness Nesbit, show that USSM's section foremen know when respirabledust samples are being taken by an MSHA inspector (Tr. 345). 

USSM complains that MSHA takes only one sample a year and 

requires USSM to maintain a reduced respirable-dust standard on 

the basis of that single sample for an entire year (USSM's Br., 

p. 3). If MSHA takes only a single sample once a year to obtain 

a quartz analysis, the taking of that sample would have to be 

such an infrequent occurrence that USSM could easily have its 

section foremen write down all of the mining parameters which 

exist when sampling is occurring. Thereafter, if USSM is advised that its respirable-dust standard is being reduced because 

of the presence of ·more than 5 percent quartz, it could obtain 

from the inspector the date on which the sample analyzed for 

quartz was obtained and could determine from its own records 

exactly what conditions existed on the day the sample was taken. 

USSM's brief (p. 5) also contends that MSHA will not honor 

its requests for the taking of additional samples for quartz 

analysis, but the only testimony in the record which supports 

that allegation is contained in a question asked by USSM's 

counsel of MSHA's witness Nesbit (Tr. 310): 

Q Isn't it true that you heard testimony in 

a previous case in which u. S. Steel Mines had requested MSHA to come out and re-do quartz sampling 

on a number of occasions and were turned down? 

A Yes, I did. 

Despite witness Nesbit's affirmative answer to the question 

quoted above, he stated that it was MSHA's policy to take repeat 

samples for quartz analysis when the operator requests that repeat sampling be done (Tr. 310). While USSM did present some 

testimony in this proceeding about MSHA's performing repeat 

sampling at USSM's request, that testimony pertained to a section in USSM's No. 9 Mine. Moreover, the request for resampling 

was granted, but USSM was shocked because the inspector who took 

the samples requested that the miners wearing samplers get into 

as much dust as possible so that the inspector would be able to 

get a weight gain of at least .5 milligrams and thereby avoid 

having to come back for additional samples on successive days 

(Finding Nos. 20 and 25, supra). 

1108 
USSM's witness who made that statement did n,pt know the 

outcome of his complaint to his own supervisory personnel with 

respect to the inspector's instructions about getting into as 

much dust as possible. I doubt seriously that MSHA would condone the inspector's request that miners get in~o· as much dust 

as possible, but if USSM wants me to make a finding that MSHA 

refused to sample on the basis of the aforementioned testimony, 

I need something more certain than the equivocal testimony 

presented by USSM in support of its claim that MSHA has refused 

to take repeat samples for quartz analysis, especially since 

USSM did not claim that it asked for repeat sampling to be done 

in the 024 and 002 Units which are involved in this proceeding 

(Finding No. 25, supra). 

Judge Broderick's decision in u. S. Steel Mining Co., Inc., 

5 FMSHRC 1334, 1335 (1983), contains a finding which shows that 

MSHA took a sample for determining quartz content at USSM's 

Maple Creek No. 1 Mine on October 26, 1981, and took another 

sample for quartz analysis on February 10, 1982, and then, in 

response to USSM's request, conducted resampling for quartz 

analysis from February 22 to March 1, 1982. MSHA's witness 

Nesbit did not agree during cross-examination by USSM that MSHA 

had refused to provide USSM with information as to the conditions which existed when respirable-dust samples are obtained 

and he also refused to agree with USSM that MSHA has a practice 

of denying requests for information or resampling (Tr. 313-314). 

My review of the record shows, therefore, that MSHA has 

granted some of USSM's requests for resampling for quartz 

analysis and the finding in Judge Broderick's decision shows 

that MSHA responded to USSM's request for resampling. As opposed 

to the information showing that MSHA does grant requests for resampling, the record contains a single question, answered in the 

affirmative, to the effect that in some other unidentified proceeding someone seems to have testified that MSHA denied one or 

more of USSM's requests for resampling for quartz. In such circumstances, the preponderance of the evidence fails to support 

USSM's claim that its requests for resampling have been denied 

in a manner to justify a finding on the basis of the record in 

this case that MSHA's quartz-sampling program is so unfair that 

it should be found to be invalid. 

USSM's brief (p. 5) also asserts that MSHA's respirabledust sampling program is erratic and inaccurate because respirable-dust samples taken on successive days showed that the mine 

atmosphere contained 15 percent quartz when sampled on one day 

and 7 percent quartz when sampled on the next day. As was 

pointed out in Finding No. 24, supra, it is necessary for USSM 

to cut from 18 to 24 inches of rock in one entry in order to 

obtain sufficient height for use of longwall mining equipment •. 

1109 
On a day when large quantities of rock are being cut, the quartz 

content can be expected to increase. That is the ... reason that on 

the day the inspector was obtaining a respirable-dust sample in 

the 024 Unit of the Morton Mine, USSM's section foreman declined 

to allow the continuous-mining machine to be operated in the 

entry where 18 to 24 inches of rock are taken (~r. 351). 

USSM also contends (Br., p. 5) that it was expensive for 

USSM to maintain a reduced standard based on a 15-percent quartz 

content, but the testimony of USSM's own witness shows unequivocally that USSM was required to comply with a reduced respirable-dust standard based on a quartz content of 7 percent. USSM 

was not required, even for a single day, to maintain a reduced 

respirable-dust standard based on a 15-percent quartz content in 

the mine atmosphere (Tr. 511). 

At one time in her arguments made at the hearing, counsel 

for USSM referred to what "[w]e have found in our research" (Tr. 

190). That reference serves to remind me of the fact that USSM 

knows exactly what conditions prevail in its mines when it is 

producing coal. If USSM is ever certain that the quartz content 

in a given mine has actually been incorrectly analyzed by MSHA, 

it is quite obvious that USSM has the facilities to prove to 

MSHA that a mistake has been made. In view of the evidence showing that MSHA has responded to USSM's requests for resampling on 

past occasions, I am confident that USSM would be able to get 

repeat sampling done when a really meritorious situation shows 

that a mistake has been made. 

USSM's Argument that MSHA Looks Only at Peaks and Ignores Valleys 

USSM's brief (p. 4) notes that during the period from January 1981 to August 1982, the 002 Unit in its Shawnee Mine had an 

average concentration of 1.3 milligrams per cubic meter of air 

and USSM concludes from that observation that over the year, the 

miners in that section were working in an atmosphere which was 

within the respirable-dust standard set by MSHA. USSM then observes that during that same period, however, on any particular 

set of five samples, one sample may have been above 2 milligrams 

per cubic meter of air, so that, on that day, the miners were 

exposed to more than the allowable standard. USSM then argues 

that the exposure to more than the allowable standard for 1 day 

is not considered a violation by MSHA. USSM concludes from the 

foregoing observations that MSHA's use of a 2-month period to 

determine exposure levels causes one to look only at the peaks 

and ignore the valleys. USSM says that it cannot understand how 

the Secretary can honestly argue that exposure to more than the 

allowable limit on a single day is a significant and substantial 

violation because MSHA is totally disregarding periods of time 

when the average concentration is well below the allowable standard. 

1110 
There are a number of fallacies in the above-mentioned 

arguments. First, the transcript references given by USSM show 

that MSHA·' s witness Nesbit was being asked questions about his 

Exhibits 40 and 41 which are graphs showing how many of USSM's 

own samples were above and below the allowable standard of 1.4 

milligrams for Unit 002 in the Shawnee Mine which had a respirable-dust standard of 1.4 milligrams when the mine atmosphere 

had a 7-percent quartz content. The graph in Exhibit 40 does 

show that USSM's samples indicate the mine had a mean of 1.36 

milligrams, but the samples depicted in Exhibit 40 were not 

taken at a time when USSM's 002 Unit had a reduced standard 

based on a quartz content greater than 5 percent. Nesbit said 

that before the 002 Unit was placed on a reduced standard, USSM's 

samples were above the 2 milligram standard 36 percent of the 

time. Exhibit 41 is a graph showing the results of USSM's 

samples taken after the 002 Unit was required to maintain a reduced standard of 1.4 milligrams because the 002 Unit had a 7-

percent quartz content in the mine atmosphere. Nesbit stated 

that after USSM was placed on the reduced standard, USSM's 

samples were above the 1.4 milligram standard 46 percent of the 

time (Tr. 247; 302-303). 

USSM incorrectly claims that MSHA looks only at the peaks 

and ignores the valleys because the graphs in Exhibits 40 and 

41 very carefully indicate both the peaks and valleys and one 

of the purposes of the graphs is to show that USSM's miners 

were exposed to an excessive amount of respirable dust when from 

36 to 46 percent of the samples were taken. USSM is correct in 

stating that statistics may be used to make all sorts of arguments, depending on which side of a given issue the person is 

who wishes to make the arguments. The important point in this 

proceeding, however, is that the lungs of the miners working in 

the 002 Unit do not know that, on an average day, they have been 

breathing an atmosphere which contains no more respirable dust 

than the standard which is in effect for a given period of time. 

USSM did not succeed in showing that there are any errors in 

Dr. Richards' claims that studies indicate that a miner's 

chances of having progressive massive fibrosis increase when 

he is exposed to high concentrations of respirable dust. Three 

samples shown in Exhibit 40 had a respirable-dust content which 

was between 2.5 and 3 milligrams and three other samples had a 

respirable-dust content of 6 or more milligrams. On those 6 

days, the miners in the 002 Unit were especially likely to 

breathe into the alveoli of their lungs enough silica or quartz 

to initiate the scarring process or fibrosis which may lead to 

progressive massive fibrosis which cannot be arrested (Finding 

Nos. 30-32, supra). 

There is considerable inconsistency in USSM's arguments 

about MSHA's ignoring the valleys because MSHA's respirabledust program uses the respirable dust in five samples submitted 

1111 
by the operator for determining whether the operator is in compliance with the respirable-dust standard. Since .. the samples 

are taken· by the operator, the operator has absolute control 

over the conditions in its mine at the time the samples are 

taken. MSHA does not cite the operator for a violation if one 

of the five samples is greatly out of line with ttte respirabledust standard so long as the remaining four samples do not 

raise the average milligrams of respirable dust above the allowable standard at any given time (Exhs. 16; 22; 29; 32; 37; 38). 

Therefore, it is simply incorrect for USSM to argue that MSHA 

considers only the peaks and ignores the valleys. MSHA's averaging process gives equal weight to both valleys and peaks in 

determining whether the miners have been exposed to more milligrams, on.the average, than is permitted by the applicable 

respirable-dust standard. 

Finally, USSM's argument that its samples ·showed that the 

002 Unit, on the average, was within compliance with the applicable standard for more than a year is based on its own samples 

and those samples were taken for only 5 days during each 2-

month period. The fact that some of USSM's samples had a respirable-dust content of more than 6 milligrams at a time when 

USSM's section foremen knew that they were obtaining samples to 

prove compliance with the allowable standard is a strong indication that the miners may be exposed to much greater concentrations than 6 milligrams on days when USSM is not trying to obtain samples ·to prove compliance with the respirable-dust standard applicable to its mines on those days. 

The Violations Were Properly Designated as Significant and 

Substantial 

The discussion above has shown that MSHA's dust-sampling 

program is being administered in a fair and valid manner and 

that USSM has ample opportunity to take its samples under favorable conditions for bringing its mine into compliance with the 

respirable-dust standard applicable to the various sections in 

its mines. I find that MSHA proved that the two violations of 

section 70.101 alleged in Citation Nos. 9914583 and 9917507 

occurred (Finding Nos. 14 and 17, supra). 

The remaining question to be decided is whether MSHA proved 

that the violations, in the words of section 104(d) (1) of the 

Act, "* * * could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard". The Commission applied its National Gypsum definition 

of the term "significant and substantial" in its recent decisions in Mathies Coal Company, 6 FMSHRC 1 (1984), and in Consolidation Coal Company; 6 FMSHRC 189 (1984). The Commission 

stated in footnote 4 of its Mathies decision and in footnote 8 

of its Consolidation decision that it has pending before it a 

1112 
challenge to the application of National Gypsum ~o a health 

standard, as opposed to a safety standard, and it stated that 

it intimates "* * * no views at this time as to the merits of 

that question" (Footnote 4 in Mathies). 

The Commission held in the Consolidation case, supra, that 

an inspector may properly designate in a citation issued pursuant to section 104(a) of the Act that the alleged violation is 

significant and substantial as that term is used in section 

104(d) (1) of the Act. While the Commission has not determined 

whether a health standard may be designated as "significant and 

substantial" within the meaning of that definition given by the 

Commission in the National Gypsum case, the quotation below 

from section 104(d) (1) of the Act shows that Congress made no 

distinction in providing that an inspector may designate either 

a health or a safety standard as being significant and substantial: 

(d) (1) If, upon any inspection of a coal or 

other mine, an authorized representative of the 

Secretary finds that there has been a violation of 

any mandatory health or safety standard, and if he 

also finds that * * *-Such violation is of such 

nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, * * * he shall 

include such finding in any citation given to the 

operator under this Act. [Emphasis supplied.] 

The language quoted from section 104(d) (1) above shows 

that MSHA had the authority to include in Citation Nos. 9914583 

and 9917507 findings that the violations of section 70.101 were 

significant and substantial. Although the Commission's definition of significant and substantial as given in the National 

Gypsum case has been held by the Commission as being applicable, 

up to now, only to a safety standard, it is my belief that the 

definition is equally applicable to a violation of a health 

standard and that the Commission's National Gypsum definition 

of significant and substantial can be applied to a violation of 

a health standard. The Commission, in both its Mathies and 

Consolidation decisions, supra, considered the National Gypsum 

definition in four steps. 

The first step is a consideration of whether MSHA proved 

that violations occurred. USSM's counsel conceded at the hearing that USSM had violated section 70.101 if the language given 

in that section is applied to the samples which USSM submitted 

from the 002 Unit in its Shawnee Mine and the 024 Unit of its 

Morton Mine (Tr. 144). I have already· considered in the foregoing portions of this decision USSM's claims about the lack of 

fairness in MSHA's respirable-dust program and I have found 

1113 
them to be without merit. Since the preponderan~e of the evidence shows that MSHA is fairly administering the program and 

that USSM has been given ample opportunity to obtain all the 

information MSHA has in connection with the citations issued, I 

find that the violations of section 70.101 alle~ed' in Citation 

Nos. 9914583 and 9917507 occurred. 

The second step to be considered in determining whether a 

health violation is significant and substantial. is whether the 

violation contributed a measure of danger to a discrete health 

hazard. There can be no doubt but that breathing excessive 

quantities of respirable dust exposes the miners to developing 

silicosis or pneumoconiosis which are serious and which can 

cause premature death (Finding Nos. 30-32, supra). 

The third step to be considered in determining whether a 

health violation is significant and substantial is whether there 

is a reasonable likelihood that the hazard contributed to will 

result in injury. Dr. Richards' testimony was based, in part, 

on studies which supported his statements that breathing respirable dust exposes miners' lungs to a scarring process known 

as fibrosis. Richards could not state that an exposure for a 

2-month period to 1.9 milligrams when the standard is 1.7 milligrams or to 1.7 milligrams when the standard is 1.4 milligrams 

would produce a measurable response in a given miner's lungs, 

but the studies show that continual exposure may produce silicosis or pneumoconiosis. When the respirable dust lodges in the 

alveoli of the lungs, it remains there forever and each exposure 

adds to the scarring process so as to produce the lesions associated with progressive massive fibrosis. USSM's cross-examination of Richards failed to disprove any of his claims as to the 

hazards associated with breathing excessive quantities of respirable dust. Therefore, I find that the preponderance of the 

evidence supports a finding that there is a reasonable likelihood that the hazard contributed to will result in injury. 

The fourth step to be considered in determining whether a 

violation is significant and substantial is whether there is a 

reasonable likelihood that the injury in question will be of a 

reasonably serious nature. USSM's brief (pp. 6-7) claims that 

there is simply no definite proof that an exposure to a few 

tenths of a milligr~m of respirable dust in excess of the applicable standard for a 2-month period is reasonably likely to result in an injury of a reasonably serious nature. It is asserted 

that MSHA's quartz-compliance progr~m is a house of cards built 

upon assumptions that cannot withstand scrutiny. The evidence 

in this case contradicts USSM's arguments because MSHA's witnesses successfully defended the validity of the respirable-dust 

program (Finding Nos. 21-22; 24; 26, supra). 

1114 
The very nature of silicosis and pneumoconio~is defies 

specific proof as to the exact extent of injury which will result from a single 2~month exposure to respirable dust in excess 

of the applicable standard. It is the average person's lack of 

familiarity with health hazards that causes him to accept more 

readily a contention that a safety hazard is likely to produce a 

serious injury than an assertion that a health hazard will result in a reasonably serious injury. 

For example; a miner may work under unsupported roof for 

years and never be injured because he was fortunate in not happening to be under any rocks which were loose enough to fall on 

him. Despite that particular miner's good fortune, there are 

overwhelming statistics which show that many miners are killed 

by roof falls each year. Therefore, an inspector's claim that 

working under unsupported roof is reasonably likely to result 

in a reasonably serious injury is not doubted because there are 

many instances every year which demonstrate beyond any doubt 

that noncompliance with a roof-control plan may be designated 

as a significant and substantial violation without there being 

much chance that anyone will challenge such a designation. 

The evidence in this case is just as persuasive as any 

which could ·be offered in support of a designation of working 

under unsupported roof as a significant and substantial violation. Dr. Richards did not equivocate about believing that each 

exposure to more than 5 percent of quartz in the mine atmosphere 

is a serious health hazard. No roof-control specialist could 

have been any more positive as to the likelihood of an injury of 

a reasonably serious nature from a single minute of standing under unsupported roof than Dr. Richards was as to the possibility 

of injury of a reasonably serious nature from a 2-month exposure 

to excessive respirable dust. A single minute under unsupported 

roof is reasonably likely to result in a fatality, but there is 

no certainty that it will. It is just as true that a 2-month 

exposure to more than 1.4 milligrams of respirable dust when 7 

percent quartz is present may start fibrosis, but there is no 

absolute certainty that it will. Yet, exposure to excessive 

dust does cause miners to develop fibrosis. Once that process 

is started, each exposure thereafter contributes to the cumulative effects until progressive massive fibrosis results. Then, 

even if the miner stops working in a coal mine, the disease will 

continue to cause increasing inability for the lungs to perform 

their function of purifying the blood and the miner will die 

prematurely (Finding Nos. 30-32, supra). 

I find that Dr. Richards' testimony was sufficiently positive and sufficiently based on valid scientific studies to support a finding that the violations alleged in Citation Nos. 

9914583 and 9917507 were properly designated as significant and 

1115 
substantial under the Commission's definition set ... forth in the 

National Gypsum case, as amplified in the Mathies and Consolidation case·s, supra. 

Assessment of Penalties 

USSM's brief (p. 7) makes only one contention as to the 

assessment of penalties in the event I should find that violations occurred. That contention is that since the violations 

were not proven to be significant and substantial, I am required 

to reduce the penalty for each violation to the single penalty 

assessment of $20 as provided for in 30 C.F.R. § 100.4. I have 

already considered that argument at some length in connection 

with the violation of section 103(f) alleged in Citation No. 

2024280. Of course, since I have found that the violations of 

section 70.101 were significant and substantial, the provisions 

of section 100.4 are not applicable in assessing penalties, 

even if I had not already found that there is no merit to USSM's 

contentions that judges are bound in evidentiary proceedings to 

assess penalties of only $20 for nonserious violations. 

The Secretary's brief makes only one comment about assessment of penalties for the violations of section 70.101. That 

comment is that "[i]n view of the criteria contained in §llO(i) 

of the Act, a penalty of $100 would be appropriate for each 

Citation" (Br., p. 26). In his u. S. Steel decision, 5 FMSHRC 

at 1336, supra, Judge Broderick assessed a penalty of $200 for 

a violation of section 70.101 in circumstances showing that the 

average concentration was 1.8 milligrams when the standard was 

1.4 milligrams with a 7-percent quartz content in the mine atmosphere. The violation in Judge Broderick's case is almost exactly 

the same as the one in this case for the 002 Unit in the Shawnee 

Mine where the concentration of respirable dust was 1.7 milligrams when the standard was 1.4 milligrams with a 7-percent 

quartz content in the mine atmosphere. In his u. S. Steel decision, supra, 5 FMSHRC at 77, Judge Kennedy assessed two civil 

penalties of $99 each for two violations of section 70.101 at 

a time when the quartz content in USSM's Maple Creek No. 2 Mine 

had been found to be 11 percent. 

I have already shown in previously considering the six 

criteria in this decision, at page 25, supra, that USSM is a 

large operator and that payment of penalties will not cause 

USSM to discontinue in business. The remaining four criteria 

will be examined for purpose of assessing the penalties for violations of section 70.101. 

History of Previous Violations 

The evidence introduced by MSHA shows that USSM had only 

one previous violation of the respirable-dust standards for the 

1116 
024 Unit in the Morton Mine (Exh. 13) and only on~ previous violation of the respirable-dust standard for the 002 Unit in its 

Shawnee Mine (Exh. 28). A single previous violation for each 

unit at a time when the respirable-dust standards were being reduced on the basis of MSHA's finding of a quartz content of more 

than 5 percent shows that USSM was making an efrort to keep its 

miners from being exposed to excessive respirable dust. Therefore, the penalty will not be increased for either violation under the criterion of history of previous violations. 

Good-Faith Effort To Achieve Compliance 

USSM was given 21 days to abate the violation cited for the 

024 Unit in the Morton Mine (Exh. 4) and 30 days to abate the 

violation cited for the 002 Unit in the Shawnee Mine (Exh. 20). 

USSM succeeded in abating each violation when it submitted five 

samples for purposes of abatement. The samples were not collected within the abatement period in the Morton Mine but since 

USSM had acquired the Morton Mine from Carbon Fuel Company only 

a short time before the citation was written, I do not believe 

that the penalty should be increased for USSM's failure to abate 

the violation within the 21-day period given in the citation, 

especially when it is considered that USSM's samples, when submitted, did show that it had succeeded in meeting the reduced 

standard. 

USSM took five samples for abatement of the violation in 

the 002 Unit in its Shawnee Mine about 20 days before expiration 

of the abatement period. An advisory was sent to USSM before 

expiration of the abatement period showing that USSM had succeeded in meeting the reduced standard for the 002 Unit. Therefore, USSM demonstrated a good-faith effort to achieve compliance with respect to the violation alleged in Citation No. 

9914583 and the penalty should not be increased under the criterion of good-faith effort to achieve compliance. 

Negligence 

The inspector who cited the violation in the 024 Unit of 

the Morton Mine classified USSM's negligence as "low" (Exh. 4) 

and the inspector who cited the violation in the Shawnee Mine 

classified USSM's negligence as "none" (Exh. 20). MSHA's witness Nesbit expressed no disagreement with the inspector who 

had classified USSM's violation in the Shawnee Mine as nonnegligent (Tr. 329). As I have previously indicated, USSM did make 

an effort to bring both the 002 Unit and the 024 Unit into compliance with reduced standards within a short period of time and 

the evidence in this proceeding shows only one previous violation for each unit. I find that the preponderance of the evidence supports a finding that USSM was nonnegligent in exceeding 

the reduced standard applicable for both units. Therefore, the 

penalty will not be increased under the criterion of negligence 

with respect to either violation. 

1117 
Gravity 

In each instance, the inspector who cited the respective 

violations of section 70.101 indicated that he considered the 

violation to be serious because he checked blocks on the citation showing that he believed the violations to be permanently .. disabling and to affect from 2 to 4 persons (Exhs. 4 and 20). 

Witness Nesbit stated several times during his direct testimony 

and cross-examination that he considered the violations to be 

serious because, once respirable dust has entered a miner's 

lungs, it will remain there for the remainder of his life so as 

to disable the miner or cause premature death (Tr. 271; 329; 

331; 342). All of Dr. Richards' testimony was devoted to explaining why exposures to respirable dust when a quartz content 

of more than 5 percent is present is a serious violation (Tr. 

411-506). 

All of the discussion above under the heading of the term 

"significant and substantial" shows why exposures'to excessive 

respirable dust is a serious violation. Therefore, I find that 

the preponderance of the evidence supports a finding that both 

violations of section 70.101 were serious. Although I have 

found above that no portion of the civil penalty should be 

assessed under the criteria of history of previous violations, 

good-faith effort to achieve rapid compliance, or negligence, 

it is appropriate that a penalty of $125 be assessed for each 

violation in·view of the fact that a large operator is involved 

and the fact that both violations were serious. 

WHEREFORE, it is ordered: 

(A) The notice of contest filed by u. s. Steel Mining Co., 

Inc., in Docket No. WEVA 82-390-R is denied and Citation No. 

2024280 dated August 18, 1982, is affirmed. 

(B) Within 30 days from the date of this decision, U. s. 

Steel Mining Co., Inc., shall pay civil penalties totaling 

$275.00 which are allocated to the respective violations as 

follows: 

Docket No. WEVA 83-82 

Citation No. 9914583 10/20/82 § 70.101 

(Tr . 2 0 5) . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $12 5 . 0 0 

Total Penalties Assessed in Docket No. 

WEVA 83-82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $125. 00 

1118 
Docket No. WEVA 83-95. 

Citation No. 2024280 8/18/82 § 103(f) ••.••.•• 

Citation No. 9917507 9/1/82 § 70.101 ••••••••• 

Total Penalties Assessed in Docket No. 

$ 25.0(J 

125.00 

WEVA 83-95 .........•........•.............. $150.00 

Total Penalties Assessed in This Proceeding •• $275.00 

(C) The motion filed on May 5, 1983, by the Secretary of 

Labor to amend the petition for assessment of civil penalty in 

Docket No. WEVA 83-82, so as to substitute correct attachments 

for the erroneous attachments which were originally filed with 

the petition for assessment of civil penalty, is granted. 

~ e.23_bj/n Richard C. Steffey lflAdministrative Law Judge 

Distribution: 

Louise Q. Symons, Esq., U. S. Steel Mining Co., Inc., 600 Grant 

Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

David E. Street, Esq., Office of the Solicitor, u. s. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Joyce A. Hanula, Legal Assistant, United Mine Workers of America, 

900 - 15th Street, NW, Washington, DC 20005 (Certified Mail) 

~U.S. GOVERNMENT PRINTING OFFICE1 1984-421"569/13601 

yh 1119