OCTOBER 1989 

COMMISSION DECISIONS AND ORDER 

10-10-89 

10-27-89 

10-27-89 

10-27-89 

10-31-89 

10-31-89 

Pennsylvania Electric Company 

Otis Elevator Company 

Otis Elevator Company 

Utah Power & Light Company 

Consolidation Coal Company 

Ronald Tolbert v. Chaney Creek Coal (Order) 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-03-89 

10-03-89 

10-04-89 

10-06-89 

10-10-89 

10-16-89 

10-17-89 

10-17-89 

10-17-89 

10-17-89 

10-18-89 

10-18-89 

10-18-89 

10-20-89 

10-20-89 

10-23-89 

10-24-89 

10-24-89 

10-24-89 

10-27-89 

10-30-89 

Florida Mining & Materials 

Connie Mullins v. Clinchfield Coal Co. 

Rochester & Pittsburgh Coal Company 

Kenneth Howard v. B & M Trucking 

Sec. Labor on behalf of Harry Ramsey v. 

Industrial Constructors Corporation 

Southern Ohio Coal Company 

Beth Energy Mines Inc. 

Rochester & Pittsburgh Coal Company 

Southern Ohio Coal Company 

Southern Ohio Coal Company 

Gallup Sand & Gravel Company 

Winston Madden v. Ronald Summers & Sumco 

Sec. Labor on behalf of Fred Bartley v. 

Adams Stone Corporation 

Green River Coal Company, Inc. 

FMC Wyoming Corporation 

Consolidation Coal Company 

Buford Smith v. R.J.F. Coal Company, Inc. 

Consolidation Coal Company 

Tunnelton Mining Company 

Peabody Coal Company 

Mid-Continent Resources, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

10-03-89 

10-27-89 

10-30-89 

Moberly Stone Company 

Eastern Associated Coal Corp. 

Haskell County Gravel Co., Inc. 

PENN 88-227 Pg. 1875 

PENN 86-262 Pg. 1896 

PENN 87-25-R Pg. 1918 

WEST 87-211-R Pg. 1926 

WEVA 88-176 Pg. 1935 

KENT 86-123-D Pg. 1942 

SE 89-58-M Pg. 1945 

VA 89-18-D Pg. 1948 

PENN 88-284-R Pg. 1978 

KENT 89-2-D Pg. 1984 

WEST 88-246-DM Pg. 1988 

WEVA 88-144-R Pg. 1992 

PENN 88-304 Pg. 1999 

PENN 88-309-R Pg. 2007 

WEVA 89-44 Pg. 2013 

WEVA 89-124-R Pg. 2018 

CENT 89-64-M Pg. 2024 

KENT 89-62-D Pg. 2027 

KENT 89-102-DM Pg. 2030 

KENT 89-126 Pg. 2036 

WEST 89-170-Rl1 Pg. 2D41 

WEVA 89-20 Pg. 2044 

KENT 88-201-D Pg. 2050 

PENN 88-252-R Pg. 2057 

PENN 88-258-R Pg. 2062 

WEVA 88-239-R Pg. 2068 

WEST 88-123 Pg. 2108 

CENT 89-81-M 

WEVA 89-198 

CENT 89-69-M 

Pg. 2U.l 

Pg. 2113 

Pg. 2115 

OCTOBER 1989 

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

Clinchfield Coal Company v. Secretary of Labor and UMWA, Docket No. 

VA 89-67-R. (Judge Broderick, August 30, 1989) 

United Mine Workers of America, District 22 v. Utah Power & Light 

Company, Docket No. WEST 87-86-C. (Judge Morris, September 1, 1989) 

Secretary of Labor, MSHA v. Ideal Cement Company, Docket No. WEST 88-202-M. 

(Judge Morris, September 21, 1989) 

Review was denied in the following cases during the month of October: 

Secretary of Labor, MSHA v. Eastern Associated Coal Corp., Docket No. 

WEVA 89-192. (Judge Weisberger, Interlocutory Review of September 12, 

1989 Order) 

Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No. WEVA 89-87. 

(Judge Broderick, September 21, 1989) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMDHSTRATION (~,fSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 10, 1989 

Docket No. PENN 88-227 

PENNSYLVANIA ELECTRIC COMPANY 

BEFORE: Ford, Chairman, Backley, Doyle, and Lastowka, Commissioners 

DECISION 

RY: Ford, Chairman; Backley and Lastowka, Commissioners 

This civil penalty proceeding arises under the Federal Mine Safety 

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

"Act"), and involves two violations of a mandatory safety standard at 

Pennsylvania Electric Company's ("Penelec") Homer City Steam Electric 

Generating Station ("Generating Station" or "Station"). The question 

before us is whether the Secretary of Labor ("Secretary") properly issued 

Penelec citations under the Mine Act charging violations of mandatory 

mine safety standards. A Commission administrative law judge upheld the 

Secretary's action in proceeding against Penelec under the Mine Act. 

10 FMSHRC 1780 (December 1980)(ALJ). Penelec petitioned for review 

asserting that the cited working conditions are subject to the Occupational 

Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (1982), rather 

than the Mine Act. We granted Penelec's petition and heard oral argument. 

For the reasons that follow, we vacate the judge's decision and remand the 

matter for the taking of additional evidence on the important question 

presented and for the entry of a new decision. 

The r.enerating Station is located at Homer City~ Indiana County, 

Pennsylvania. The Station is operated by Penelec and owned by Penelec 

and the New York State Electric & Gas Corporation ("NYSEG"). At the 

Station electricity is generated by coal combustion. The Station burns 

approximately 4.5 million tons of coal each year. The coal purchased hy 

Penelec enters the Station from three sources: from a conveyor running 

from an adjacent Helen Mining Company mine; from a conveyor running from 

an adjacent Helvetia Mining Company mine; and from a truck-dump facility 

receiving coal brought from various other mines in Pennsylvania. 

1875 
The conveyors from the Helen and Helvetia mines deliver the coal to 

scales where it is weighed and sampled, and where title passes to Penelec 

and NYSEG. -The coal from these mines is then transported by conveyor to 

a bin where it is combined and again sampled. The coal is then placed on 

conveyors SA and SB, which transport the coal to a second bin. 

Because the Helen-Helvetia coal, when burned, generally yields sulfur 

dioxide emissions that do not comply with state and federal environmental 

standards, most of the coal travels from the second bin to an on-site 

coal cleaning plant. Some of the coal from the truck receiving facility 

also travels from the first to the second bin via conveyors SA and SB, 

and from the second bin to the coal cleaning plant. At the coal cleaning 

plant the coal is broken, crushed, sized, washed, cleaned, dried and blended. 

The plant, which is entirely located at the Station, is owned by Penelec 

and NYSEG, but is operated under contract by the Iselin Preparation Company 

("Iselin"), a subsidiary of Rochester and Pittsburgh Coal Company. The 

coal cleaning plant has been inspected regularly by MSHA since becoming 

operational in 1977. 

On January 7, 1988, John Kopsic, an inspector of the Department of 

Labor's Mine Safety and Health Administration (MSHA), issued two citations 

to Penelec for violations of 30 C.F.R. § 77.400(c), a mandatory mine safety 

standard requiring guards at conveyor-drive, conveyor-head, and conveyortail pulleys. 1/ The citations alleged that the head drives of conveyors 

SA and SB were-not adequately guarded to protect persons who might come in 

contact with the head rollers. 2/ 

It is this assertion by the Secretary of the applicability of Mine 

Act safety standards to the SA and SB conveyor head drives that is the 

subject of the dispute in this case. (The Secretary does not assert 

jurisdiction under the Mine Act with respect to working conditions inside 

the generating facilities at the Station. The Secretary instead asserts 

that working conditions inside the generating facilities are regulated by 

her under the Occupational Safety and Health Act of 1970, supra, ("OSHAct")). 

The parties agree that in August 1977, Penelec reached an oral understanding with the Mining Enforcement and Safety Administration ("MESA") 

regarding MESA's and OSHA's jurisdiction over the coal cleaning and coal 

1/ 30 C.F.R. § 77.400(c) states: 

Guards at conveyor-drive, conveyor-head, and conveyortail pulleys shall extend a distance sufficient to 

prevent a person from reaching behind the guard and 

becoming caught between the belt and the pulley. 

2/ The "head" end of a belt conveyor is the ultimate delivery or discharge 

end. The "head drive" is the means by which mechanical power is transmitted to the head pulley of a belt conveyor, See U.S. Department of the 

Interior, A Dictionary of Mining, Mineral, and Related Terms, 5S4, SS5 

(1968) . 

1876 
handling facilities at the Generating Station. Stip. 2. (MESA was an 

agency in the Department of Interior charged with enforcing the Federal 

Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) 

(amended 1977). MESA's enforcement function was transferred~ the 

Department of Labor and MSHA by the 1977 Mine Act). Penelec's understanding of the agreement is represented by an inter-office memorandum, 

dated September 6, 1977, memorializing a meeting of representatives of 

MESA, Iselin and Penelec called "to establish definite lines of 

jurisdiction at the coal cleaning plant." Tr. 4-6; Jt. Exh. 1. The 

memorandum states in pertinent part: 

At ..• ·[the second bin] MESA will have jurisdiction on 

everything above the top of the bin except for the 

portions of #SA and #SB conveyors within the structure 

including the drive units and head pulleys. [2_/] 

Notwithstanding this agreement, MSHA, without Penelec's knowledge, 

inspected the head drives of the SA and SB conveyors on January 7, 

1988. Stip. 4. Penelec's counsel stated that OSHA has inspected the 

area prior to that time and that no MSHA inspections had been made of 

the cited area. Tr. 9. Counsel for the Secretary stated that he did 

not know whether OSHA had inspected the area and that the Pittsburgh 

area OSHA office had no record of OSHA inspections. Tr. 10. Penelec's 

counsel further stated that Penelec was unaware that there had been any 

change from the 1977 agreement concerning whether MSHA or OSHA would 

inspect the head drives. Tr. 17. 

In his decision, the judge held that the question of whether Penelec 

was properly cited for violations of the Mine Act was "to be determined by 

whether the head drives for the SA and SB conveyors ••. are part of a 

facility that is a 'coal or other mine."' 10 FMSHRC at 1781. The judge 

noted that the statutory definition of "coal mine" includes "all structures, 

facilities, machinery, tools, equipment .•. and other property, .•. used 

in, or to be used in ••• the work of preparing the coal," and that the 

statutory definition of "work of preparing the coal" includes the "breaking, 

crushing, sizing, cleaning, washing, drying, mixing, storing and loading 

of ... coal." 30 U.S.C. §§ 802(h)(2), 802(i); 10 FMSHRC at 1781. The 

judge stated that the definitions are to be given broad interpretations 

and doubts are to be resolved in favor of coverage. 10 FMSHRC at 1781. 

Summarizing the general process of the transport of coal at the 

Generating Station (10 FMSHRC at 1781-82), the judge found: 

[A]t least some raw coal is transported on the SA and 

SB conveyor belts which run over the SA and SB head 

drives on its way to the Iselin Preparation Plant. 

3/ Counsel for the Secretary stated to the judge that the person who had 

represented MESA at the meeting "has no recollection of what transpired 

at the meeting, other than that the meeting took place and that .•• they 

thought they had some kind of informal agreement regarding .•• MSHA-OSHA 

jurisdiction." Tr. 7. 

1877 
At the preparation plant the coal is broken, 

crushed, sized, washed, cleaned, dried and blended 

in preparation for consumption in the Penelec 

generating station. These activities are all within 

the scope of "work of preparing coal" within the 

meaning of section 3(i) of the Act. It is also 

clear that the head drives over which the raw coal 

passes on its way to such preparation are "structures", 

"equipment", and "machinery" that is "used in or to 

be used in" the "work of preparing the coal." 

10 FMSHRC at 1782. The judge further found that this broad range of coal 

preparation activities was performed for "the particular purpose of consumption in the Penelec generating station." 10 FMSHRC at 1782. Therefore, 

the judge concluded that the head drives of the cited conveyor belts were 

subject to Mine Act jurisdiction. 10 FMSHRC at 1782-83. 4/ 

On review, the question before us is whether the cited working condition is governed by regulations enforced by the Secretary under the Mine 

Act, as argued by the Secretary, or by regulations enforced by the Secretary under the OSHAct, as argued by Penelec. As explained below, we conclude 

that the present record is unclear on this controlling question, preventing 

us from properly exercising our review function and making an informed 

decision on an important jurisdictional issue. Therefore, we exercise our 

statutory authority to remand the matter to the judge for the taking of 

additional evidence and argument concerning which safety and health agency 

within the Department of Labor exercises regulatory authority over the 

working condition in question. 30 U.S.C. § 823(d)(2)(C). 

At the outset of our discussion, a brief overview of the statutory 

interplay between the Mine Act and the OSHAct is necessary to a proper 

analysis of the issue and an understanding of our disposition. (We note 

that the judge's analysis in his decision omits any discussion of this 

interplay). The OSHAct is the most broadly applicable statute regulating 

the safety and health aspects of the working conditions of American workers. 

Section 4(b)(l) of the OSHAct, however, provides: 

Nothing in this Act shall apply to working conditions 

of employees with respect to which other Federal 

agencies ••• exercise statutory authority to prescribe or enforce standards or regulations affecting 

occupational safety or health. 

29 U.S.C. § 653(b)(l). Thus, OSHA standards apply to a workplace unless 

another Federal agency exercises statutory authority to regulate the 

safety and health of the workplace. See, e.g., Southern Pacific Transportation Co. v. Usery, 539 F.2d 386,-"389 (5th Cir. 1976), cert. denied, 

4/ Penelec agreed that if the Secretary had jurisdiction over the head 

drives under the Act, that it had violated the cited mandatory standard 

by failing to adequately guard the head drives. The judge assessed civil 

penalties of $54 for each of the cited violations. 10 FMSHRC at 1783. 

1878 
434 U.S. 874, 98 S.Ct. 221, S4 L.Ed. 2d 1S4 (1977); Southern Ry. Co. v. 

OSHRC, S39 F.2d 33S, 336 (4th Cir. 1976), cert. denied, 429 U.S. 999, 

97 s.ct. s2s, so L.Ed. 2d 609 (1976). -- ---

Therefore, OSHA standards pertaining to the guarding of the cited 

head drives would be applicable unless another Federal agency, with a 

proper grant of jurisdiction over such working condition, exercised its 

authority in a manner displacing OSHA coverage. The Secretary claims that 

MSHA has indeed properly exercised its statutory authority to regulate the 

cited working conditions and that MSHA's citation of Penelec for the 

violation of the mine safety standard at issue must he upheld. 

Our analysis of the Secretary's claim must next consider the language 

of the Mine Act. Section 4 of the Mine Act provides that each "coal or 

other mine" that affects commerce is subject to the Act. 30 U.S.C. § 803. 

Section 3(h) of the Mine Act broadly defines the term "coal or other mine" 

as including the area of land from which minerals are extracted, roads 

appurtenant to such area, lands, facilities, equipment and machines used 

in the work of extraction, milling, or preparing coal, and custom coal 

preparation facilities. S/ The Secretary argues that the SA & SH head 

drives are machinery or equipment used in the preparation of coal. 

Therefore, according to the Secretary, the violations at issue occurred 

in a "coal mine" and Penelec was properly cited for the violation pursuant 

to the Mine Act. 

l_/ Section 3(h), 30 u.s.c. § 802(h), states: 

(1) "Coal or other mine" means (A) an area of land 

from which minerals are extracted in nonliquid form or, if 

in liquid form, are extracted with workers underground, (B) 

private ways and roads appurtenant to such area, and (C) 

lands, excavations, underground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, equipment, 

machines, tools, or other property including impoundments, 

retention dams, and tailings ponds, on the surface or 

underground, used in, or to be used in, or resulting from, 

the work of extracting such minerals from their natural 

deposits in nonliquid form, or if in liquid form, with 

workers underground, or used in, or to be used in, the 

milling of such minerals, or the work of preparing coal 

or other minerals, and includes custom coal preparation 

facilities •••• 

(2) For purposes of titles II, III, and IV, "coal 

mine" means an area of land and all structures, facilities, 

machinery, tools, equipment, shafts, slopes, tunnels, 

excavations, and other property, real or personal, placed 

upon, under, or above the surface of such land by any 

person, used in, or to be used in, or resulting from, the 

work of extracting in such area bituminous coal, lignite, 

or anthracite from its natural deposits in the earth by 

any means or method, and the work of preparing the coal 

so extracted, and includes custom coal preparation 

facilities. 

1879 
The term "work of preparing the coal" is defined in section 3(i) of 

the Mine Act: 

[l] "Work of preparing the coal" means the breaking, 

crushing, sizing, cleaning, washing, drying, mixing, 

storing and loading of bituminous coal lignite, or 

anthracite, and [2] such other work of preparing such 

coal as is usually done by the operator of the 

coal mine. 

30 U.S.C. § 802(i) (bracketed numbers added). 

The stipulations establish, and the judge found, that raw, run-ofmine coal is transported on the 5A and 5B conveyor belts, over the cited 

head drives, to the second bin, and then to the coal cleaning plant where 

the coal is broken, crushed, sized, cleaned, washed, dried and blended 

in preparation for consumption in the Generating Station. Thus, measured 

against the Mine Act's definition of "work of preparing the coal," it is 

clear that the work activities associated with Penelec's processing of 

coal prior to its consumption squarely fall within the literal definition 

of coal preparation set forth in clause [l] of section 3(i). Thus, the 

head drives of the 5A and 5B conveyors, which drive the belts that 

transport the coal towards its destination in the the coal cleaning 

plant, are equipment or machinery "used in" the preparation of coal 

within the meaning of the Mine Act. 

Penelec argues, however, that under clause [2] of the definition of 

"work of preparing the coal" considerations additional to mere performance 

of the listed work activities come into play in determining whether coal 

preparation is taking place. Indeed, in Oliver W. Elam, Jr. Co., 4 FMSHRC 

5 (January 1982), the Commission recognized that the determination of 

whether a company engages in coal preparation under the Mine Act requires 

an inquiry "not only into whether the operation performs one or more 

of the listed work activities [in section 3(i)J, but also into the nature 

of the operation performing such activities." 4 FMSHRC 6 at 7 (emphasis 

in original). Accord, Donovan v. Inland Terminals, 3 BNA MSHC 1893 (D. 

Ind. March 28, 1985). The Commission further recognized that "simply 

because [a company] in some manner handles coal does not mean that it 

automatically is a 'mine' subject to the Act." 4 FMSHRC at 7. 

The Elam operation was a commercial dock facility at which coal was 

stored, broken, and crushed simply to facilitate the loading of the coal 

onto barges for shipment. Id. At the Elam facility, coal was not prepared 

to meet customer specifications or to render it fit for any particular use. 

4 FMSHRC at 8. Unlike the processes performed on the coal at the Elam 

loading dock, the processes at Penelec's Generating Station are performed 

to prepare the coal to meet particular specifications and emissions 

requirements with which Penelec must comply in the burning of its coal. 

Thus, the activities performed on the coal at the Station are those 

usually performed "by custom preparation facilities, undertaken to make 

coal suitable for a particular use or to meet market specifications." 

Id. Therefore, the work performed at the Station not only falls within 

clause [l] of section 3(i)'s listing of the types of work activities 

1880 
comprising coal preparation, but also meets the criterion in clause [2] 

that it be the type of work "usually done by the operator of the coal 

mine." 

Penelec further argues that it is exempt from Mine Act jurisdiction 

because it does not prepare the coal for resale but rather is the ultimate 

consumer of the coal. In Elam, the Commission noted that under the 1952 

Coal Act businesses that engaged in processing coal to produce another 

product were specifically exempted from that statute's coverage. 30 U.S.C. 

§ 47l(a)(7)(1952)(repealed 1969); 4 FMSHRC at 7. 6/ This exemption for 

consumers, however, was not carried over into the-1969 Coal Act, nor was 

it reinstated in the 1977 Mine Act. Id. No explanation of the reasons 

behind the change in definitional language appears in the legislative 

histories. See 4 FMSHRC at 7 n.4. The question before us must therefore 

be answered by the governing terms of the 1977 Mine Act, not by a 

determination of whether utilities such as Penelec were exempted from 

the reach of the 1952 Act by virtue of that statute's "consumer exception." 

Under the Mine Act, coal consumers are not provided any per se exclusion 

from jurisdiction. Instead, Mine Act coverage turns on the two part 

definitional analysis set forth above, under which analysis the cited 

working condi.tion meets the literal criteria permitting Mine Act 

coverage. I._/ See Donovan v. Inland Terminals, supra; Elam, supra. 

6/ The 1952 Coal Act in part provided: 

The term 'work of processing the coal' as used in 

this paragraph means the sizing, cleaning, drying, 

mixing and crushing of ••• coal ••• , and such other 

work of processing such coal as is usually done by 

the operator, and does not mean crushing, coking, 

or distillation of such coal or such other work of 

processing such coal as is usually done by a consumer or others in connection with the utilization 

of such coal. 

30 U.S.C. § 47l(a)(7)(repealed 1969)(emphasis added). 

7/ In pressing its argument for Commission recognition of a consumer 

exemption to Mine Act jurisdiction, Penelec further refers us to cases 

decided under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (1983). 

The Black Lung Benefits Act provides benefits for disabled coal miners and 

defines a miner as "any individual who worked or has worked in or around a 

coal mine or coal preparation facility in the extraction or preparation of 

coal." 30 U.S.C. § 902(d). Compare, 30 U.S.C. § 802(g)(Mine Act definition of "miner" as "any individual working in a coal or other mine"). The 

Mine Act definitions of "coal mine" and "work of preparing the coal," apply 

to the Black Lung Benefits Act. 30 u.s.c. § 802(h)(2). In interpreting 

the phrase "work of preparing the coal" for Black Lung Benefits Act 

purposes, courts have generally held that once coal has been extracted 

and prepared for use and has left the preparation facility, the "work 

(Footnote continued) 

1881 
We _also note that MSHA's regulation of the working conditions inside 

Penelec's on-site coal cleaning plant is not challenged and it is not 

disputed that MSHA properly regulates the mines adjacent to the Generating 

Station that deliver coal directly to the Station by means of conveyor 

systems. See Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D~C. Cir. 

1984). 

Thus, we conclude that MSHA possesses statutory authorization to 

regulate working conditions associated with Penelec's preparation of coal, 

and therefore that the Secretary of Labor properly could decide to make 

mine safety standards applicable to the disputed area. Whether she has 

done so, however, is another matter and one which we are unable to deter-

.. mirie with any degree of assurance from the murky record presently before us. 

As previously noted, the parties stipulated that Penelec and MESA met 

on August 25, 1977 and "reached a verbal understanding ••• regarding MESA's 

and ••• OSHA's ••• jurisdiction over the coal cleaning and coal handling 

facilities at the Homer City Station." Stip. 2. Penelec claims that MESA 

agreed that OSHA would have jurisdiction over the cited conveyors. See Pen. 

Br. in Support of Motion to Dismiss 18; Pen. Br. 5. The government,-s~ 

representative at this meeting did not testify but it was represented that 

he thought "some kind of informal agreement" regarding MSHA/OSHA jurisdiction 

had been reached. See n.3, supra. Thus, relevant details of the genesis 

of the jurisdictional controversy before us are lacking. 

footnote ]_/ end 

of preparing coal" ceases. See e.g., Epilon v. Director, O.W.C.P., 794 

F.2d 935, 937 (4th Cir. 1986). If further procedures associated with 

the work of preparing coal are performed by a consumer, they do not bring 

the consumer under the jurisdiction of the Act. See e.g., Foreman v. 

Director, O.W.C.P. 794 F.2d 569, 571 (11th Cir. 1986)~. ~ 

These cases, however; lack precedential value in resolving the Mine 

Act jurisdictional dispute before us. Black lung benefits are financed 

by a trust, funded by a tax on "coal sold by the producers, " 26 U.S.C. 

§ 4121(a), and the courts have reasoned t4at miners entitled to such 

benefits in some fashion must be connected with the producers of coal. 

See Wisor v. Director, O.W.C.P., 748 F.2d 176, 179 (3rd Cir. 1984). 

Individuals "who wor[k] in or around a ••• coal preparation facility .•• 

or [in] preparation of coal" are most closely connected with the producers of coal when coal preparation is considered as taking place prior 

to its entry into the stream of commerce. As one court has stated, the 

functions that the miners perform should be "integral to the ••• 

preparation of coal, not ancillary to the delivery and commercial use 

of processed coal." Stroh v. Director, Office Of Workers' Compensation 

Programs, 810 F.2d 61, 64 (3rd Cir. 1987). 

The Mine Act has the entirely different purpose of assuring safe and 

healthful working conditions for the nation's miners. Under the Mine Act 

"coal mine" is defined in broad terms to better effectuate the salutary 

effects of this particular goal. There is no statutory financial scheme 

in the Mine Act requiring coal preparation to be closely tied with the 

coal producer, and hence no basis from which to extrapolate the 

exemption from coverage of the Mine Act argued for by Penelec. 

1882 
The question of which safety and health agency actually asserted 

jurisdiction subsequent to the agreement and prior to issuance of the 

subject citations is similarly unclear. Before the judge, counsel for 

Penelec claimed that OSHA inspected the area in question. Tr. 9. The 

Secretary's counsel responded that he did not know whether or not OSHA 

inspected the area and that the Pittsburgh area OSHA office had no record 

of OSHA inspections. Tr. 10. The record contains no evidence of enforcement activity relating to the disputed area by either OSHA, MESA, or MSHA 

prior to issuance of the subject citations on January 7, 1988, when MSHA 

inspected the area unbeknownst to Penelec. 

Likewise, the reasons for MSHA's decision to begin to assert inspection 

authority in the disputed area also are not explained. Rather, the first 

clear assertion of MSHA jurisdiction in the record is contained in an 

April 12, 1988 letter from former MSHA District Manager Donald W. Huntley 

to Penelec in which Huntley stated that MSHA was expanding its inspection 

authority at the (',enerating Station to include "all areas which are 

directly involved in the coal preparing process." Ex. 3. The letter 

reflected Huntley's concern over "gaps" in MSHA's coverage at the Station 

and that henceforth MSHA would include the "SA and SB conveyors ••• [and] 

the drive units and head pulleys" in its inspections. Id. Although the 

letter indicates that the OSHA Area Director was sent a-Copy, the record 

contains no response on the director's part acceding to or disputing 

MSHA's claim of authority. Importantly, the record contains no indication that the procedures specified in the formally published MSHA-OSHA 

Interagency Agreement for the resolution of jurisdictional conflicts 

between the two agencies were consulted or followed. 44 Fed. Reg. 22827 

(1979). 

The MSHA-OSHA Interagency Agreement provides a procedure for determining general jurisdictional questions between the two agencies. The 

Agreement states in pertinent part: 

When any question of jurisdiction between MSHA and 

OSHA arises, the appropriate MSHA District Manager 

and OSHA Regional Administrator or OSHA State 

Designee in those states With approved plans shall 

attempt to resolve it at the local level in 

accordance with this Memorandum and existing law 

and policy. Jurisdictional questions that can 

not be decided at the local level shall be 

promptly transmitted to the respective National 

Offices which will attempt to resolve the matter. 

If unresolved, the matter shall be referred to 

the Secretary of Labor for decision. 

42 Fed. Reg. at 22828. The Agreement itself does not expressly address the 

question of MSHA-OSHA jurisdiction at coal handling power plants, nor has 

any supplement to the agreement been published addressing this not uncommon 

situation. Compare, Inter agency Agreement; Revision Concerning Su'rface 

Retorting of Oil Shale, 48 Fed. Reg. 7S21 (1983). 

1883 
At oral argument before us, counsel for the Secretary asserted that 

the MSHA district manager's letter reflects MSHA's policy of inspecting 

those areas· of a power plant that involve the handling and processing of 

run-of-mine coal and of leaving to OSHA the inspection of those areas that 

involve the handling of previously processed coal. O.A. Tr. 28, 29-30, 33. 

We note, however, that in a prior case involving a coal handling power plant, 

the Commission was advised, by different secretarial counsel, that: 

MSHA traditionally has not inspected power plants. 

Although the Secretary is not able to cite to a 

particular memorandum incorporating this policy, MSHA 

and its predecessors have consistently found the production of power to be outside the jurisdiction of the 

agency. MSHA has taken into account that a portion of 

the process utilized to produce electric power from coal 

requires handling and processing coal but has determined 

that those activities are subsumed in the specialized 

process utilized to produce electric power, and that the 

overall power plant process is more feasibly regulated by 

OSHA. 

Utility Fuels, Inc., Docket No. CENT 85-59 (Sec. Motion to Dismiss 

(November 29, 1985)). 

The importance of, and confusion concerning, the jurisdictional 

question presented in this case is further heightened by the fact that 

subsequent to the issuance of the citations in question, the Secretary 

through OSHA, proposed new, comprehensive safety standards applicable 

to the operation and maintenance of electrical power generation 

facilities. 54 Fed. Reg. 4974-5024 (1989). On their face and as 

explained in the accompanying explanatory materials, these regulations 

would appear to directly apply to operations such as Penelec's including 

the coal handling aspects of such operations. Proposed standard 29 C.F.R. 

§ 1910.269(a)(l)(i) reads· in part, "This section covers work practices, 

installations, and equipment associated with the operation and maintenance 

of electric power generation These provisions apply to ••• (A) 

Power generation, transmission, and distribution installations ••• and 

(B) ••• (1) ••• Fuel and ash handling and processing installations, such 

as coal conveyors and crushers." 54 Fed. Reg. at 5009. Of specific 

interest, the proposed standards for power generating plants contain 

detailed regulations pertaining to the protection of employees working 

in the area of coal carrying conveyor belts. See proposed 29 C.F.R. 

§ 1910.269(v)(ll), 54 Fed. Reg. at 5021-22. 

On review, the Secretary argues that the proposed rules would apply 

only to those electric generating facilities using already processed coal, 

but that facilities and equipment at generating stations handling and 

transporting run-of-the-mine coal would be subject to Mine Act jurisdiction. 

Sec. Br. 21-22. We find no such distinction in the proposed standards. 

Far from recognizing a division of jurisdiction between OSHA and MSHA, 

the proposed regulations appear to be all-encompassing. As noted, section 

1910.269 states that it is applicable to "fuel and ash handling and 

processing installations, such as coal conveyors and crushers." 29 C.F~R. 

1884 
§ 1910.269(a)(l)(i)(B)(l)(emphasis added). In summarizing the proposed 

rules, the Assistant Secretary of Labor for Occupational Safety and Health 

explained that fuel handling operations within an electric power installation station would be covered by the proposed regulations. S4 Fed. Reg. 

at 4980. The OSHA Assistant Secretary's view of the effect of the proposed regulations compliments and coincides with the view of OSHA/MSHA 

jurisdiction propounded to the Commission in Utility Fuels, supra. Thus, 

the proposed rules suggest that the Secretary of Labor may still view 

Penelec's operation as subject to OSHA jurisdiction or, at least, that 

coverage by OSHA, rather than MSHA, may be more appropriate and effective. 

These conflicting indications of Secretarial intent raise serious 

questions as to which agency in the Department of Labor exercises safety 

and health authority over power generating stations such as Penelec's. 

The answer is of great consequence to Penelec and its employees. It is 

also of importance to similarly situated operators of coal burning electric 

utilities who, along with Penelec, must know which safety and health 

standards must be complied with and which statute prescribes the rights 

and duties to which they and their employees must conform their conduct. 

The fact that after 20 years of enforcement under the 1969 Coal Act 

and the 1977 Mine Act, this case of first impression arises could indicate 

that perhaps MSHA has embarked here upon a course at odds with consistent 

prior policy, and perhaps present and future policy, of regulating coal 

handling power plants under OSHA, rather than MSHA. Indeeq, at oral 

argument counsel for the Secretary stated that the record reflected no 

specific reason why MSHA chose in 1988 to assert jurisdiction over the 

SA and SB conveyor head drives at the Penelec Generating Station. O.A. 

Tr. 26-27. 

Section 113 of the Mine Act provides that "[i]f the Commission 

determines that further evidence is necessary on an issue of fact it 

shall remand the case for further proceedings before the administrative 

law judge." 30 U.S.C. § 823(d)(2)(C). Because of the pervasive 

ambiguity in the record on the question of whether the Secretary of Labor, 

through MSHA, has properly exercised her authority to regulate the cited 

working conditions at Penelec's Generating Station, and the importance 

of this question, we find it appropriate to order further proceedings. 

We encourage the Secretary to give serious consideration to the questions 

raised by this case and to follow the procedures in the OSHA-MSHA Interagency Agreement to resolve the conflicting positions taken on her behalf. 

To do otherwise would be to ignore the potential whipsaw effects to which 

an employer can be subjected when important jurisdictional issues appear 

to be resolved with no assurance that potentially competing agencies have 

reached a mutual and definitive determination as to their respective 

roles. §_/ 

8/ In this regard, we note that in the Mine Act Coagress directed the 

Secretary that: 

(Footnote continued) 

1885 
Accordingly, the judge's decision is vacated and the matter is 

remanded to the judge for further proceedings consistent with this 

opinion including the taking of further evidence on the jurisdictional 

question presented and the entry of a new decision. 2_/ 

~ / ,4 . ,/ ( / 

:-:.-c .---< -- c _(' -r ,-</t?//dtuvt--

Richard V. Backley, Commissioner 

footnote 8/ end 

[iJn making a determination of what constitutes 

mineral milling ••• , the Secretary shall give due 

consideration to the convenience of administration 

resulting from the delegation to one Assistant 

Secretary of all authority with respect to the 

health and safety of miners employed at one 

physical establishment. 

30 u.s.c. § 803(h)(i). 

9/ Commissioner Nelson did not participate in the consideration or 

disposition of this matter. 

1886 
Commissioner Doyle, dissenting: 

The respondent, Pennsylvania Electric Company ("Penelec"), is the 

operator of an electric power generating station and has for some years 

been doing on-site processing of some of the coal used at of its generating station, in order to insure compliance with EPA emission standards, 

issued in 1977. The coal conveyor cited in this case transports coal 

received from the Helen and Helvetia Mines between bins on the generating 

station grounds, most of the coal eventually going to the cleaning plant. 

Trucked coal is transported on different conveyors with only the run-ofmine portion being diverted to the cleaning plant. 

In January 1988, MSHA for the first time inspected the head drives 

of the SA and SB conveyors and sometime thereafter an MSHA district 

manager advised Penelec that MSHA was also asserting jurisdiction over 

additional areas of the power plant. 

The case before us deals only with alleged violations with respect 

to the head drives and was submitted on stipulated facts. The administrative law judge found in favor of MSHA and Penelec petitioned for 

review, asserting that it was not subject to the Mine Act based on: 

1. The plain language of the statute and its 

legislative history; 

2. Its work not being that usually performed 

by an operator of a coal mine; 

3. Its being the ultimate consumer of the coal. 

The majority of the Commission finds that the processes performed 

at Penelec's plant "are performed to prepare the coal to meet particular 

specifications and emission requirements" and are thus "activities •.. 

usually performed 'by custom preparation facilities, undertaken to make 

coal suitable for a particular use or to meet market specifications."' 

Slip op. at 6. The majority also finds Penelec's work to he "the type 

of work 'usually done by the operator of [a] 'coal mine."' Slip op. at 

7. They discount any exemption for the ultimate consumer of coal and, 

based on the language of the statute, conclude that the Secretary "properly could decide to make mine safety standards applicable to the 

disputed area." They are, however, unable to determine from the record 

whether the Secretary has made such a determination. Slip op. at 8. 

The majority cites numerous factors both within and outside of the 

record that show conflicting indications as to which agency in the 

Department of Labor exercises safety and health authority over operations such as Penelec's. Because of this ambiguity, they remand the 

matter to the administrative law judge for the taking of further 

evidence on the jurisdictional question and the entry of a new 

decision. 

1887 
I disagree that the head drives of the SA and SB conveyors fall within the definition of a "coal mine" as set forth in the Mine Act or that 

they are subject to that jurisdiction simply because, in some instances, 

they convey run-of-mine coal to the preparation plant, as opposed to conveying processed coal. I further believe that the case should be decided 

on the record before us rather than being remanded for the taking of additional evidence. 

Section 3(h), 30 U.S.C. §802(h), states: 

(1) "coal or other mine" means (A) an area of land from which 

minerals are extracted in nonliquid form or, if in liquid form, 

are extracted with workers underground, (B) private ways and 

roads appurtenant to such area, and (C) lands, excavations, 

underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, 

or other property including impoundments, retention dams, 

and tailings ponds, on the surface or underground, used 

in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in 

nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such 

minerals, or the work of preparing coal or other minerals, 

and includes custom coal preparation facilities. In making 

a determination of what constitutes mineral milling for purposes of this Act, the Secretary shall give due consideration 

to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect 

to the health and safety of miners employed at one physical 

establishment; 

(2) For purposes of titles II, III, and IV, "coal mine" 

means an area of land and all structures, facilities, 

machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, 

under, or above the surface of such land by any person, used 

in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from 

its natural deposits in the earth by any means or method, and 

the work of preparing the coal so extracted, and includes 

custom coal preparation facilities. 

The "work of preparing coal" is defined in section 3(i), 30 U.S.C. 

§802(i), as follows: 

1888 
[i] "work of preparing the coal" means the breaking, crushing, 

sizing, cleaning, washing, drying, mixing, storing and loading 

of bituminous coal, lignite, or anthracite, and such other 

work of preparing such coal as is usually done by the operator 

of the coal mine. 

A portion of the legislative history pertaining to these sections 

has been widely quoted in determining Mine Act coverage. That language 

states that the definition of a mine is to be given the broadest possible interpretation and that doubts should be resolved in favor of 

inclusion. However, examination of that entire passage of the 

legislative history indicates a context in which Congress was contemplating regulation of mines in a more traditional sense. The complete passage reads as follows: 

Thus, for example, the definition of 'mine' is clarified 

to include the areas, both underground and on the surface, 

from which minerals are extracted (except minerals extracted 

in liquid form underground), and also, all private roads and 

areas appurtenant thereto. Also included in the definition 

of 'mine' are lands, excavations, shafts, slopes, and other 

property including impoundments, retention dams, and tailings 

ponds. These latter were not specifically enumerated in the 

definition of mine under the Coal Act. It has always been the 

Committee's express intention that these facilities be included 

in the definition of mine and subject to regulation under the 

Act, and the Committee here expressly enumerates these facilities within the definition of mine in order to clarify its intent. The collapse of an unstable dam at Buffalo Creek, West 

Virginia, in February of 1972 resulted in a large number of 

deaths, and untold hardship to downstream residents, and the 

Committee is greatly concerned that at that time, the scope 

of the authority of the Bureau of Mines to regulate such 

structures under the Coal Act was questioned. Finally, the 

structures on the surface or underground, which are used or 

are to be used in or resulting from the preparation of the 

extracted minerals are included in the definition of 'mine'. 

The Committee notes that there may be a need to resolve jurisdictional conflicts, but it is the Committee's intention that 

what is considered to be a mine and to be regulated under this 

Act be given the broadest possibly [sic] interpretation, and it 

is the intent of this Committee that doubts be resolved in favor 

of inclusion of a facility within the coverage of the Act." S. 

Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in 

U.S. Code Cong. & Admin. News 1977, 3401, 3414. 

While that language is expansive, it is mine oriented, and it cannot be 

forgotten that the Act was intended to establish a "single mine safety 

1889 
and health law, applicable to all mining activity." S. Rep. No. 461, 

95th Cong., 1st Sess. 37 (1977) (emphasis added). "The statute is 

aimed at an industry with an acknowledged history of serious accidents." 

Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 594 (3d Cir. 

1979). There is no indication of any intention to follow the coal 

wherever it might go and certainly no indication that Congress intended 

to regulate other industries such as electric utilities or steel mills 

as only recently asserted by the Secretary. 1/ Indeed, the courts have 

recognized that it is "clear that every company whose business brings it 

into contact with minerals is not to be classified as a mine within the 

meaning of section 3(h)." Donovan v. Carolina Stalite Co., 734 F.2d 

1547, 1551 (D.C~ Cir. 1984). 

I recognize that, in addition to considering Congress' concerns 

as set forth in the legislative history, deference is generally to be 

accorded interpretations by the agency charged with enforcing the law. 

Here, however, the record contains no evidence that, since the Mine Act 

became effective in 1978, the Secretary has made any previous attempt, 

either by the issuance of regulations or otherwise, to include electric 

power plants within the Act's coverage or to put the operators of such 

facilities on notice of liability under the Mine Act. Nor does the 

record indicate that the efforts of a district manager to bring Penelec 's facility within its coverage represents anything more than 

the district manager's own personal interpretation of the Mine Act. 

It should be noted that the Secretary's counsel stated at oral argument that resolution of this case rests solely on the language of the 

Mine Act itself, which he asserted mandates coverage, and has nothing to 

do with deference to the Secretary's interpretation of the Mine Act. Tr. 

32, Oral Argument, June 28, 1989. It is not surprising that the Secretary eschews ·deference to her interpretation of this portion of the Mine 

Act since the Secretary's policy with respect to whether electric 

utilities come within Mine Act coverage has been exhibited in a variety 

of ways as follows: 

1. Her implied interpretation that coal handling at electric 

power generating stations does not come within the Mine Act, based on 

her failure to assert such jurisdiction for approximately ten years 

after passage of the Mine Act. 

1/ This position was advanced by the Secretary during oral argument before the Commission in Westwood Energy Properties v. Secretary of Labor, 

MSHA, PENN 88-42R, Tr. 26, June 28, 1989. 

1890 
2. Her position as set forth in an earlier Commission case that: 

MSHA traditionally has not inspected power plants. Although the Secretary is not able to cite to a particular 

memorandum incorporating this policy, MSHA and its predecessors have consistently found the production of power 

to be outside the jurisdiction of the agency. 

MSHA has taken into account that a portion of the 

process utilized to produce electric power from coal 

requires handling and processing coal hut has determined that those activities are subsumed in the 

specialized process utilized to produce electric power, 

and that the overall power plant process is more feasibly 

regulated by OSHA. 

Utility Fuels Inc., Docket No. CENT 85-59 (Sec. Motion to Dismiss, 

November 29, 1985). 

3. Her position that coal handling at electric utilities comes within coverage of the Mine Act, as asserted in this case. 

4. Her position that coal handling at electric power generating 

facilities is governed by the OSHAct, as set forth in regulations 

recently proposed by OSHA for the operation and maintenance of electrical 

power generation facilities, which regulations include detailed provisions 

governing coal handling and processing at those facilities. 54 Fed. Reg. 

4974-5024 (1989). 

5. Her position that OSHA's proposed rules would apply only to 

electric generating facilities using already processed coal and that 

facilities using run-of-mine coal would be subject to Mine Act jurisdiction, as asserted by her counsel at oral argument before the Commission in this case. Tr. 24, 29, 33, Oral Argument, June 28, 1989. ];_/ 

Because her interpretations have been neither longstanding nor consistent, any deference that would ordinarily be due to the Secretary in 

interpreting the Mine Act is not appropriate to this instance. See, 

e.g., I.N.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987); American MWng 

Congress v. EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987); Sec. v. BethEnergy Mines, 11 FMSHRC 1445, 1451 (August 1989); Sec. v. Florence 

Mining Co., 5 FMSHRC 189, 196 (February 1983). 

2/ Since some conveyors in Penelec's operation transport coal that meets 

the emission standards without further processing, those conveyors would, 

under this theory, presumably remain subject to OSHA jurisdiction rather 

than MSHA jurisdiction, a position that seems to belie that any consideration was given "to the convenience of administration resulting 

from the delegation to one Assistant Secretary of all authority with 

respect to the health and safety of miners employed at one physical 

establishment," as required by Section 3(h) of the Mine Act, 30 U.S.C. 

§802(h)(l). 

1891 
I also view the Commission's holding today as inconsistent.with 

our precedent. The Commission previously found that a commercial dock 

in which coal was stored, broken and crushed did not fall within the 

coverage of the Mine Act because the coal preparation was not done to 

"meet customers' specifications nor to render the coal fit for any particular use." MSHA v. Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 8 (January 

7, 1982). After noting that the Commission had concluded in Elam that 

the Mine Act requires an inquiry "not only into whether the operation 

performs one or more of the listed work activities [in section 3(i)], 

but also into the nature of the operation performing such activities," 

the Commission today avoids an examination of the nature of Penelec's 

operation and finds that, because the station's coal must meet "particular specifications and emissions requirements," an electric power 

generating plant is really a coal mine. Slip op. at 6. 

(emphasis in original). 

I am unable to find any basis in either the statute or the legislative history for the distinctions made by either the Secretary (if the 

conveyor belt moves processed coal, OSHAct governs; if it moves run-ofmine coal, Mine Act governs) or the Commission majority (if coal 

processing is done other than to meet customer specifications, no Mine 

Act coverage; if coal is processed to meet "particular specifications," 

Mine Act coverage) nor do I see that these distinctions have anything 

to do with the Mine Act's overall aim, which is to regulate the safety 

and health of miners. Rather, I think these artificial distinctions 

have arisen as a result of various words and phrases of Mine Act 

definitions having been examined in isolation, with no consideration 

being given to Congress' overall aim, and with no consideration being 

given to the Commission's language in Elam, supra, that requires inquiry 

into "the nature of the operation" as well as examination of the particular operations being performed. 3/ Had Congress wanted to regulate not 

only mines but electric power generating stations, steel mills and other 

coal consumers, I think it would surely have given some indication of 

that intent. 

3/ As noted by the United States Court of Appeals for the District of 

Columbia Circuit, statutes "must be interpreted in light of the spirit 

in which they were written and the reasons for their enactment." General 

Serv. Emp. U. Local No. 73 v. N.L.R.B., 578 F.2d 361, 366 (D.C. Cir. 

1978). In the same vein, Judge Learned Hand observed that "the duty 

of ascertaining [the] meaning [of a statute] is difficult at best and 

one certain way of missing it is by reading it literally .•• " See 

Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 326 F.2d 

841, 845 (2d Cir. 1963). 

1892 
In determining what constitutes a "coal mine" as defined by the 

Mine Act, the majority also dismisses out of hand the precedential value 

of any cases decided under the Rlack Lung Benefits Act. 30 U.S.C.§901 

et seq. (1982). I do not believe those cases can be so lightly dismissed. The majority has determined that these cases lack precedential 

value because "black lung benefits are financed by a trust, funded by a 

tax on 'coal sold by producers,'" whereas "the Mine Act's goal is to 

assure safe and healthful working conditions for the nation's miners." 

Slip op. at 8, n. 7. "Under the Mine Act 'coal mine' is defined in 

broad terms to better effectuate the salutary effects of that goal." 

Slip op. at 8, n. 7. In fact, the definition of "coal mine" set forth 

in section 3(i) of the Mine Act specifically applies not only to the 

Mine Act but also to the Black Lung Benefits Act. I find nothing in 

the Mine Act, the Black Lung Benefits Act or the legislative history 

that suggests the term is to be construed differently for purposes of 

determining Mine Act coverage than in determining Black Lung benefits 

coverage. And while the majority quotes the court in Stroh v. Director, 

Office of Workers' Compensation Programs, 810 F.2d 61 (3d Cir. 1987) to 

the effect that the function of a miner seeking black lung benefits 

should be "integral to the ••• preparation of coal, not ancillary to the 

delivery and commercial use of processed coal" (slip op. at 8, n. 7) as 

additional evidence of the irrelevance of the Black Lung ca~es, I view 

the test developed by the Stroh court and other courts for eligibility 

for Black Lung benefits as quite relevant in determining when an operation falls within the definition of a "coal mine" as set forth in the 

Mine Act. 4/ In fact, the United States Court of Appeals for the Third 

Circuit, in deciding a black lung case, made specific reference to its 

earlier holding in Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 

589 (3d Cir. 1979), a Mine Act case, as authority for its construction of 

the terms "coal mine" and the "work of preparing coal." Dowd v. Director, 

OWCP, 846 F.2d 193, 195 (3d Cir. 1988). 

4/ The test set forth is Stroh and earlier cases for determining 

eligibility for black lung benefits involves a two-prong test, the 

first being a "situs" test, which requires work in or around a coal 

mine or coal preparation facility and has required the courts to 

construe the terms "coal mine," and "work of preparing coal" as defined in section 3 of the Mine Act. The second prong is the "function" 

test referred to by the majority, which requires that the claimant's 

job be "integral to the extraction or preparation of coal, not ancillary 

to the delivery and commercial use of processed coal." It should be 

noted that, if one agrees with the Secretary and the majority that 

Penelec's operations include "coal preparation," those of Penelec's 

employees who work in such preparation would fall within the definition of "miner" set forth in the Black Lung Benefits Act, i.e., " 

any individual who works or has worked in or around a coal 

preparation facility in the ••• preparation of coal." 30 U.S.C. §902(d). 

1893 
The Secretary also asserts that the Black Lung cases are of no 

avail to Penelec because they involve "the handling of coal that 

already had been prepared." Sec. br. at 14. I believe the Secretary 

misreads those cases. In the cases to which she refers, the courts have 

made the determination, as part of their construction of the terms "coal 

mine" and "the work of preparing coal," that once coal has entered the 

stream of commerce or reached the ultimate consumer, coal preparation 

has been completed and that, thus, the facilities at which those 

claimants worked did not fall within the definitions of "coal mine" or 

"work of preparing coal" set forth in sections 3(h) and 3(i) of the Mine 

Act. Based on their determination that the term "coal preparation" 

was much narrower in scope, the claimants were found ineligible for 

benefits. In Eplion v. Dir., OWCP, 794 F.2d 935 (4th Cir. 1986), cited 

by the Secretary, the mine operator washed coal for a second time because of dust complaints. Because the washing was "not necessary for 

processing of the coal into its marketable form," the court declined to 

extend the definition of a "coal mine" to include that facility. Eplion 

v. Director, OWCP, supra, at 937. (emphasis added). Likewise, the court 

in Southard found that the "preparation of coal occurs precedent to its 

retail distribution and consumption." Southard v. Director, OWCP, 732 

F.2d 66, 69 (6th Cir. 1984). Accord Director, OWCP v. Ziegler Coal 

Co., 853 F. 2d 529, 536 (7th Cir. 1988); Johnson v. Weinberger, 389 

-W:-supp. 1296 (S.D. W.VA. 1974). 

Also, as noted by the Secretary, the Third Circuit in Dowd, found 

the claimant to be a miner, but in so doing stressed that "the claimant's employer ••• does not consume the coal, and does not utilize coal 

to produce a product other than coal." Dowd, supra, at 195. As further 

noted by the Secretary, the court in Str"'O'ilf"ound the claimant to be a 

miner but also emphasized that the "processing plant to which Stroh delivered was not an ultimate consumer ••• " Stroh, supra, at 64. Similarly, 

the Fourth Circuit in Roberts v. Weinberger found the claimant to be a 

miner, stating that coal is extracted and prepared when it is "in condition for delivery to distributors and consumers." Roberts v. Weinberger, 527 F.2d 600, 602 (4th Cir. 1975). These cases, while not 

affirmatively holding that coal consumers do not fall within the 

definition of "coal mine," expressly limit their holdings to facilities 

that are not coal consumers. 

As noted above, I believe that, while the definition of "coal 

mine" as set forth in the Mine Act is to be broadly interpreted, the 

interpretation is not without limitations. I am of the opinion that 

the plain language of the statute does not bring Penelec's operation 

within coverage of the Mine Act, that the legislative history does not 

suggest the breadth of coverage asserted by the Secretary and that the 

1894 
Secretary's interpretation, as set forth in this case, is not entitled 

to deference. In addition, I am not convinced that ultimate consumers, 

engaged in the production of a product other than coal, are subject to 

Mine Act jurisdiction. 

For the foregoing reasons, I would reverse the judge and 

dismiss the case against Penelec. 

Distribution 

John P. Proctor, Esq. 

Bishop, Cook, Purcell & Reynolds 

1400 L Street, N.W. 

Hashineton, D.C. 20005 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Gary Helick 

Commissioner 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1895 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 27, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. PENN 86-262 

OTIS ELEVATOR COMPANY 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Backley, Doyle and Nelson, Commissioners 

In this civil penalty proceeding arising under the Federal Mine 

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

or "Act"), we are asked to decide whether Commission Administrative Law 

Judge Roy J. Maurer erred in concluding that Otis Elevator Company 

("Otis") was the type of independent contractor that falls within the 

definition of "operator" as set forth in the Mine Act, and whether 

substantial evidence of record supports his determination that Otis 

violated 30 C.F.R. § 75.1725(a) by improperly installing a governor rope 

on a mine elevator. 9 FMSHRC 1933 (November 1987)(ALJ). 1/ We granted 

Otis' petition for discretionary review and its motion t~ consolidate 

this proceeding for purposes of briefing and oral argument with Otis 

Elevator Company, Docket Nos. PENN 87-25-R, 87-26-R, and 87-86. For the 

reasons set forth below, we affirm the judge's conclusions in the 

present proceeding as to both issues presented. 

1/ 30 C.F.R. § 75.1725(a) provides: 

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. 

1896 
I. 

Factual and Procedural Background 

Otis is a company engaged in the business, among other things, of 

providing maintenance and repair services to all types of elevators. 

Elevators serviced by Otis are located in various establishments 

including office buildings, hospitals, factories, residential buildings, 

and mines. In the case at hand, Otis serviced two elevators located in 

the Greenwich No. 1 underground coal mine of the Pennsylvania Mines 

Corporation ("PMC"). 

The work relationship between PMC and Otis was governed by the 

terms of an elevator service and maintenance contract, which commenced 

January 1, 1986, and continued in force during all of 1986. The 

contract covered five elevators located in mines owned by PMC, including 

the North Portal elevator and the Main A elevator located in the 

Greenwich No. 1 Mine. Exh. G-1. 

Essentially, the terms of the contract required Otis to provide 

its own qualified personnel to maintain PMC's elevators in proper and 

safe operating condition. Specifically, the contract required Otis to 

"regularly and systematically examine, adjust, lubricate as required, 

and repair or replace if warranted" all electrical and mechanical parts-; 

and accessory equipment of the elevator apparatus; to renew all wire . 

ropes and all travelling cables as necessary; to periodically examine 

all safety devices and governors; and to make a customary annual no-load 

safety test, a sixty-day test, and a five-year full-load safety test. 

The contract also included "emergency shutdown callback service" and 

"trouble between ... regular examinations service." Exh. G-1. 

Ron Riva, chief electrician at PMC's No. 1..-Mine for 13 years, 

testified that Otis employees "worked with [himl" in that they either 

reported to him when coming onto mine propertyor corrected elevator 

problems as indicated by Riva or any other foreman. Riva explained that 

the weekly maintenance by Otis included checking tips, brushes, ropes, 

switches, and "really anything that pertained to elevator maintenance," 

and that, under the 60-day safety test, Otis' also "might" [measure] the 

ropes." Tr. 22-24. According to Riva, Otis also shortened or replaced 

hoist ropes and governor cables and, in general, performed "troubleshooting" duties on an emergency "anytime" basis to restore elevator 

service when PMC employees were unable to do so. Tr. 24. Riva 

estimated that Otis' weekly inspections required about one and a half 

hours, if no special problems were involved. He stated that Otis was 

called for service more frequently during the winter when mine elevators 

experience more problems because of cold temperatures. 

Otis employees were not supervised by PMC employees. They 

normally carried out their duties in the "penthouse" (the surface area 

housing the elevator controller and motor), the shaft (the area within 

which the elevator ascends and descends), and the underground pit area 

(the bottom of the shaft where the switches and controls are located). 

According to Riva, both elevators at the No. 1 Mine were used to 

transport the production crews into and out of the mine, an average of 

1897 
200 people each day at the Main A elevator and 50 at the North Portal. 

Both elevators also served as mine escapeways required by regulations of 

the Department of Labor's Mine Safety and Health Administration 

( "MSHA"). 

On March 3, 1986, Leroy Niehenke, an MSHA electrical inspector 

with ten years experience in inspecting mine elevators, issued the 

section 104(a) citation in question, alleging a violation of 30 C.F.R. 

§ 75.1725(a) in that two Otis employees had installed a new governor 

rope on the North Portal elevator in an unsafe manner, creating a hazard 

to the mine employees. The Secretary filed a petition for assessment of 

civil penalty and this matter proceeded to hearing before Judge Maurer. 

Before the judge, Otis argued that it was not engaged in mine 

construction or extraction work, did not control any area of the mine, 

and did not maintain a continuing presence at the mine. On this basis, 

it contended that it was not an "operator" within the meaning of the 

Mine Act under what it viewed as the controlling legal prec,,i.ents of 

National Indus. Sand Ass'n v. Marshall, 601 F.2d 289 (3rd Cir. 1979), 

and Old Dominion Power Company v. Secretary of Labor & FMSHRC, 772 F.2d 

92 (4th Cir. 1985). Otis further argued that its activities were 

properly subject to regulation under the Occupational Safety and Health 

Act of 1970, 29 U.S.C. § 651 et seg. (1982)(the "OSHAct"), not the Mine 

Act. As to the alleged violation of 30 C.F.R. § 75.1725(a), Otis 

contended that the mandatory standard was so vague as to be 

unenforceable and that, in any event, the inspector used improper 

criteria in determining that a violation occurred. 

In finding Otis to be an operator within the meaning of the Mine 

Act, the judge rejected Otis' interpretations of National Sand and Old 

Dominion, supra. National Sand, the judge stated, held only that an 

independent contractor working on mine property is not an "operator" 

under the Act if its contact with the mine is so infrequent or de 

minimis that it would be difficult to conclude that services were being 

performed. 9 FMSHRC at 1935-36. The judge also distinguished Old 

Dominion, involving an electric utility, in which the utility's only 

contact with the mine was inspection, maintenance and monthly reading of 

an electric meter for billing purposes. After finding that the 

employees of Old Dominion Power Company ("Old Dominion") rarely, if 

ever, went on mine property and hardly, if ever, came into contact with 

mining hazards, the Fourth Circuit found that the utility was not an 

operator. 9 FMSHRC at 1936-37. Contrasting the facts in this case with 

those involved in the court decisions, the judge concluded that Otis' 

contractual obligations and performance thereof constituted a continuing 

and substantial, as opposed to de minimis, presence at Greenwich No. 1 

Mine. 9 FMSHRC at 1937. Although noting that the elevator was not used 

to transport coal and was not, therefore, a part of the coal extraction 

process per se, he nevertheless found that because the North Portal 

elevator transported approximately 20 percent of the work force into and 

out of the mine on a daily basis and was additionally a designated 

escapeway, it was an "essential ingredient involved in the coal 

extraction process." Id. Last, he determined that Otis was the party 

responsible for the cited violation and was also the one best suited to 

both correct it and prevent its recurrence. Id. Accordingly, the judge 

1898 
determined that Otis was properly subjected to Mine Act jurisdiction. 

As to. the violation of the mandatory standard, the judge, citing 

Alabama By-Products Corporation, 4 FMSHRC 2128 (December 1982), 

involving a similar challenge to section 75.1725(a), concluded that the 

standard was not "so overbroad and/or so vague" as to be unenforceable. 

9 FMSHRC at 1937-38. While agreeing that the inspector had relied in 

part on American National Standards Institute ("ANSI") standards not 

incorporated into the MSHA regulations, the judge found that the 

standards did provide some "guidance" as to the proper method for 

configuring the elevator's wire rope terminations. 9 FMSHRC 1940. He 

concluded that the elevator governor assembly and, therefore, the 

elevator, were in unsafe condition within the meaning of section 

75.1725(a), and thus he upheld the inspector's finding as to a violation 

of the standard. 9 FMSHRC at 1940-42. The judge also affirmed the 

inspector's designation of the violation as being of a significant and 

substantial nature and assessed a civil penalty of $750. 

II. 

Coverage of Otis under the Mine Act 

We begin by considering whether Otis was an "operator" subject to 

the coverage of the Mine Act. Before us, Otis argues that it is a 

business entity subject to regulation by the Occupational Safety and 

Health Administration ("OSHA") under the OSHAct, rather than by MSHA, 

that it is not engaged in mine construction or extraction and that it 

does not maintain a "continuing presence" at the PMC mine. Therefore, 

Otis asserts that under the controlling precedent of Old Dominion, it is 

not an "operator" or "independent contractor" within the meaning of 

section 3(d) of the Mine Act. ~/ We disagree. 

~/ The relevant sections of the Mine Act are: 

Sec. 3. For the purposes of this [Act], the term 

* * * 

(d) "operator" means any owner, lessee, or other 

person who operates, controls, or supervises a coal 

or other mine or any independent contractor 

performing services or construction at such mine; 

* * * 

(h)(l) "coal or other mine" means (A) an area of 

land from which minerals are extracted in non liquid 

form or, if in liquid form, are extracted with 

workers underground, (B) private ways and roads 

appurtenant to such area, and (C) lands, 

excavations, underground passageways, shafts, 

slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools or other 

1899 
Section 3(d) of the Mine Act expanded the definition of "operator" 

under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 

§ 801 et seq .• (1976)(amended 1977)("1969 Coal Act"), to include "any 

independent contractor performing services or construction at such 

mine." This Commission has consistently recognized that the inclusion 

of independent contractors within the statutory definition of "operator" 

clearly reflects Congressional desire to subject such contractors to 

direct enforcement by MSHA under the Mine Act. See, ~·· Old Ben Coal 

Co., 1 FMSHRC 1480, 1481, 1486 (October 1979), aff'd, No. 79-2367 (D.C. 

Cir. December 9, 1980)(unpublished opinion); Ca~Black Enterprises, 

8 FMSHRC 1151, 1155 (August 1985). We also recognize that not all 

independent contractors are operators under the Mine Act, and that 

"there may be a point, at least, at which an independent contractor's 

contact with a mine is so infrequent or de minimis that it would be 

property including impoundments, retention dams, and 

tailing ponds, on the surface or underground, used 

in, or to be used in, or resulting from, the work of 

extracting such minerals from their naturai deposits 

in nonliquid form, or if in liquid form, with 

workers underground, or used in,· or to be used in, 

the milling of such minerals, or the work of 

preparing coal or other minerals and includes custom 

coal preparation facilities. In making a 

determination of what constitutes mineral milling 

for purposes of this [Act], the Secretary shall give 

due consideration to the convenience of 

administration resulting from the delegation to one 

Assistant Secretary of all authority with respect to 

the health and safety of miners employed at one 

physical establishment; 

(h)(2) For purposes of [titles] II, III, and IV of 

this [Act], "coal mine" means an area of land and 

all structures, facilities, machinery, tools 

equipment, shafts, slopes, tunnels, excavations, and 

other property, real or personal, placed upon, 

under, or above the surface of such land by any 

person, used in, or to be used in, or resulting 

from, the work of extracting in such area bituminous 

coal, lignite, or anthracite from its natural 

deposits in the earth by any means or method, and 

the work of preparing the coal so extracted, and 

includes custom coal preparation facilities; 

* 

Sec. 4. Each coal or other mine, the products of 

which enter conunerce, or the operations or products 

of which affect conunerce, and each operator of such 

mine, and every miner in such mine shall be subject 

to the provisions of this [Act]. 

30 u.s.c. §§ 802(d) & (h)(l) & (2) & 803. 

1900 
difficult to conclude that services were being performed." National 

Sand, supra, 601 F.2d at 701. See also Old Dominion, supra. 

We have no difficulty in finding that Otis, from a practical and 

economic standpoint, is an independent contractor performing services at 

PMC mines. Plainly, Otis is an independent business entity that, by 

contract with PMC, has the sole responsibility for examining mine 

elevator equipment owned by PMC and maintaining it in safe operating 

condition. There is also no question that the elevators serviced by 

Otis fall within the definition of "coal mine" under section 3(h) of the 

Act (n.2, supra), as "structures, facilities, machinery, or equipment 

used in the work.of extracting coal." 

The legislative history of the Mine Act clearly shows that the 

goal of Congress, in expanding the definition of "operator" in the Mine 

Act to include "independent contractors," was to broaden the enforcement 

power of the Secretary so as to reach not only owners and lessees but a 

wide range of independent contractors as well. In explaining this 

amendment, the key Senate report on the bill enacted into the Mine Act 

referred not only to those independent contractors involved in mine 

construction but also to those "engaged in the extraction process." 

S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate 

Subcommittee on Labor of the Committee on Human Resources, 95th Cong., 

2nd Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977 at 602 (1978)("Legis. Hist.") Similarly, the Conference Report 

referred to independent contractors "performing services or construction" and "who may have continuing presence at the mine." S. Conf. 

Rep. No. 461, 95th Cong. 1st Sess. 37 (1977), reprinted in Legis. Hist. 

1315. 

Two important court decisions have addressed the meaning of and 

relationship between the terms "independent contractor" and "operator" 

in the Mine Act. In National Sand, the Third Circuit, construing the 

definition of "operator" in the Mine Act, concluded that "some, if not 

all, independent contractors are to be regarded as operators," with the 

understanding that there may be a point at which the services provided 

or the degree of involvement in mining activities is so remote or so 

infrequent that they cannot be considered as operators. National Sand, 

601 F.2d at 701. The Fourth Circuit, in Old Dominion, held that 

Congress intended to include as operators, "only those independent 

contractors who are involved in mine construction or extraction and who 

have a continuing presence at the mine." 772 F.2d at 96 (emphasis 

added). Finding that the employees of Old Dominion, an ele~tric 

utility, "rarely go upon mine property," that they "hardly if ever came 

into contact with the hazards of mining," and that their "only presence 

on the mine site was to read an electric meter once a month and to 

provide occasional equipment servicing, the Court concluded that the 

utility's contacts were "so rare and remote from the mine construction 

or extraction process, [it did] not meet this definition of 'operator."' 

772 F.2d at 96, 97 (emphasis added). 

To adopt in this case the restrictive interpretation of Old 

Dominion urged by Otis would, we believe, frustrate Congress' clear 

intent, when it expanded the definition of "operator" in the Mine Act, 

1901 
to broaden and facilitate direct regulation of independent contractors 

on mine property. 

Obviously, "mine construction" and the "extraction process" 

include a myriad of specialized services essential to those activities. 

It would have been difficult, in our view, for Congress to have 

envisioned that myriad and enumerated them under section 3(d) of the 

Act. Rather than being in conflict with National Sand, we read the 

Fourth Circuit's Old Dominion decision as examining the independent 

contractor's proximity to the extraction process and the extent of its 

presence at the mine to determine whether the independent contractor is 

an operator under the Mine Act. Considering the factual basis relied on 

by the Fourth Circuit in Old Dominion, we find that the services 

performed by Otis and the continuity of its presence at the mine site 

are entirely different qualitatively and in magnitude. 

In Old Dominion, as noted, the Court found that the power company 

employees• sole contact with the mine was the inspection, maintenance 

and monthly reading of the power company's meter, for billing purposes, 

and that its employees rarely went upon mine property and hardly, if 

ever, came into contact with mining hazards. The substation in which 

the meter was located was in a remote area of mine property and was 

isolated by a locked chain link fence. 772 F.2d at 93, 96. In 

contrast, Otis employees worked in areas of the PMC mine property that 

were clearly working areas of a mine, totally regulated by MSHA. Otis 

employees worked both on the surf ace and in underground sections of the 

mine elevator system, in areas where miners normally worked and 

travelled, and they were exposed to many of the same hazards as the PMC 

miners. Otis' contacts with the PMC mine were certainly more frequent 

and of a longer duration than the contacts involved in Old Dominion. 

Moreover, the mine elevator was used to transport some 20 percent 

of the mine 1 s work force into and out of the mine on a daily basis and 

was also a designated escapeway -- a work setting far different from the 

isolated, remote electric substation involved in Old Dominion. The 

Fourth Circuit spoke in terms of involvement in or proximity to the 

extraction process. We are satisfied that a mine elevator used for 

daily transport of the work force into and out of the mine has a 

sufficient proximity in nature and purpose to the extraction process to 

be fairly considered, in the judge's words, "an essential ingredient 

involved in [that] process." 9 FMSHRC at 1937. Since Otis' employees 

were working in the center of mining activities while servicing 

equipment essential to the mining process, were exposed to mining 

hazards, and had a direct effect on the safety of others because of 

their exclusive control over the safety of the mine elevators, we 

likewise conclude that their work was sufficiently related to the 

overall extraction process to bring Otis within the Mine Act's ambit. 

Finally, Otis urges that its presence on the PMC mine ought to be 

regulated under the OSHAct rather than under the Mine Act. The 

Secretary of Labor enforces both the OSHAct and the Mine Act, and 

exercises administrative discretion in determining which of her two 

enforcement agencies, OSHA or MSHA, should exercise jurisdiction under 

potentially conflicting circumstances. Court precedent makes clear that 

1902 
the Secretary is entitled to great deference in interpreting and 

enforcing the Mine Act. See ~· Brock v. Cathedral Bluff Shale Oil 

Co., 796 F.2d 533, 537 (D.C. Cir. 1986). As the Court made clear in 

Cathedral Bluffs, that deference is particularly due with respect to the 

Secretary's "view of the effect of [her] own actions taken under the 

Act. ... " Id. See also Donovan v. Carolina Stalite Co., 734 F.2d 1547, 

1552 & n.9--CD.C. Cir. 1984). 

In addition, section 4(b)(l) of the OSHAct, 29 U.S.C. 653(b)(l), 

states in pertinent part: 

Nothing in this chapter shall apply to working 

conditions of employees with respect to which other 

Federal agencies ... exercise statutory authority to 

prescribe or enforce standards or regulations 

affecting occupational safety or health. 

Addressing the question of overlapping jurisdiction under the OSHAct, 

the Fourth Circuit, in Southern Railway Company v. Occupational Health 

Review Commission, 539 F.2d 335 (1976), concluded that exemption from 

the OSHAct applies whenever another federal agency has actually 

exercised its statutory authority to regulate employee safety. 539 F.2d 

at 339. The Court stated that when the facts show that a federal agency 

has not exercised its statutory authority to regulate employee safety, 

the OSHAct applies, but where another federal agency has exercised its 

statutory authority over standards affecting safety or health in the 

area in which the employee goes about his daily tasks, the authority of 

OSHA is foreclosed. Id. See also Taylor v. Moore McCormack Lines, 

Inc., 621 F.2d 88, 91 (4th Cir. 1980). There is no indication in this 

record that OSHA had ever attempted to regulate Otis activities on mine 

property. See Exh. G-1, G-9. 

As we have already noted, the record in this case demonstrates 

that the areas in which Otis employees worked were areas of the mine 

completely regulated by MSHA. Otis employees worked both on the surface 

and underground in areas where miners normally worked and travelled and 

were exposed to many of the same hazards. We also note that Otis had 

earlier registered with MSHA as an independent contractor pursuant to 30 

C.F.R. Part 45 and paid civil penalties for previous violations under 

the Mine Act. 

Accordingly, we affirm the finding of the judge that Otis, by 

virtue of the services provided and its continuing presence at the mine 

site, as required by the contract between it and PMC falls within the 

definition of "operator" set forth in the Mine Act and is, therefore, 

subject to its jurisdiction. 

III. 

The violation of 30 C.F.R. § 75.1725(a) 

We address the question of the violation of section 75.1725(a). 

The citation issued by Inspector Niehenke with respect to the elevator's 

governor stated: 

1903 
The smelter socket termination and Crosby Clamp 

termination were not properly made because the 

basket was not poured with smelter to the top of the 

small end of this basket and holes in the smelter 

existed on the wide end of this basket. The Crosby 

Clamp termination was made with the (2) 11 saddles 

on the dead end of this wire rope and there should 

be (3) three Crosby Clamps used on this !" wire rope 

termination. 

In general, a governor is a device for regulating or controlling 

the speed of the engine or motor. See Bureau of Mines, U.S. Dep't of 

Interior, Dictionary of Mining, Mineral, and Related Terms 501 (1968) 

("DMMRT"). The governor rope, a one-half-inch diameter steel rope, is 

attached at the top of the elevator car to a lever and to the bottom of 

the car by bolt clamps. At the top of the shaft, the rope passes 

through a sheave wheel (a grooved wheel that guides or supports a cable 

or rope between the load and the hoisting engine (DMMRT 997)), which is 

located directly underneath the governor mechanism. At the bottom of 

the shaft, the rope runs over a second sheave wheel. These wheels turn 

as the rope moves, causing the flyballs on the governor mechanism to 

rise as the speed of the rope increases. The governor mechanism senses 

the speed of the elevator through the governor rope, and if the elevator 

speed exceeds 125 percent of its rated speed, centrifugal force applied 

to the flyballs raises them to the point where two metal jaws in the 

governor mechanism clamp down on the governor rope. In turn, the 

governor pulls up the lever at the top of the car, activating the 

safeties and stopping the descent of the elevator car. (The actual 

raising and lowering of the elevator during normal operation is 

controlled by other ropes attached to the top of the elevator car.) 

The alleged violation involved the manner in which the governor 

rope had been attached at both the top and bottom of the elevator car. 

At the top of the car the rope is attached to the safety lever by means 

of a socket, a tapered metal basket about 2~ inches in length. The rope 

is passed through an opening in the smaller end, about five inches of 

the rope's end is unraveled, and the separated strands are then twisted 

into a "rosette" shape so as to make the end of the rope larger than the 

opening through which it had passed. The rosette is then pulled back 

into the socket, and "babbitt" (a molten alloy of tin, copper and 

antimony (see DMMRT 69; Tr. 105)) is poured over the rosette, filling up 

the socket. When the babbitt hardens, it produces a secure connection 

between the rope and the socket. 

Inspector Niehenke testified that the babbitt had not adhered to 

and covered the wire rope, an indication that insufficient babbitt had 

been poured into the socket to provide a secure connection of sufficient 

strength. Niehenke believed that in an emergency, this problem would 

have caused the governor rope, in a free fall, to come out of the 

socket, thus failing to activate the lever and the safeties and allowing 

the elevator to continue in an uncontrolled fall. 

Niehenke also testified that the governor rope should be attached 

to the bottom of the car by three "U" bolts, called Crosby clamps, but 

1904 
that in the cited instance only two bolts had been used. Further, he 

stated that they had been installed with the "U" end of the bolt placed 

over the "live" end of the rope (the end of the rope attached to the 

equipment) rather than over the "dead" end (the end of the rope that is 

looped around and cut off). In the inspector's opinion, the "U" bolts 

should have been placed over the "dead" end of the rope because, as 

installed, the rope wires could be crushed, resulting in the failure of 

the connection. 

Niehenke's criteria for inspecting elevator ropes and the methods 

for properly attaching a governor rope were essentially based on the 

directions and specifications set out in the ANSI publication "Wire 

Ropes for Mines," and on the MSHA "Inspector's Manual" for elevators. 

Tr. 58, 60, 63-68, 70, Exh. G-5, G-7. MSHA regulations themselves do 

not set requirements for proper elevator wire rope terminations, nor are 

the ANSI standards incorporated by reference into the MSHA regulations. 

Tr. 103-06. 

Ronald Gossard, an MSHA electrical engineer, testified that the 

conditions described by the inspector indicated unsafe terminations on 

the governor rope. Given these conditions, Gossard believed that the 

elevator would operate safely until the governor mechanism was 

activated, at which time the terminations and the safety mechanisms 

would fail. Gossard added that failure to fill the basket with babbitt 

would also allow moisture, consisting of acidic mine water, to 

accumulate in the basket and quickly corrode the rope in that location. 

James Beattie, District Maintenance Supervisor for Otis, stated 

that even without any babbitt in the socket, the "rosetted" rope end 

could not possibly be pulled through the small end of the basket and the 

connection would not fail. Tr. 185-88. In support of his opinion, 

Beattie showed a videotape of a laboratory test performed by Otis on a 

one-half inch wire rope, with an unbabbited socket at one end, and one 

"U" bolt correctly installed at the other. When a force of 3,200 pounds 

was applied, there was no slippage at either connection. Exh. R-7, Tr. 

189-200. Beattie also stated that three "U" bolts were unnecessary and, 

while he would have changed the rope attachments had he seen them, he 

did not consider them to be unsafe. 

Before the judge, Otis contended that section 75.1725(a) is 

unconstitutionally vague because it fails to specify the standard of 

conduct required in order to comply with its terms, and because MSHA has 

improperly cited ANSI standards as mandatory regulations in alleging a 

violation under the Mine Act. 

On review, Otis contends that section 75.1725(a) is vague as 

applied, to the extent that the judge used the ANSI standards to 

determine what a "reasonably prudent person" would do with respect to 

the equipment in question pursuant to the test set forth in Alabama ByProducts, supra. Otis also relies on Jim Walter Resources, Inc., 

3 FMSHRC 2488, 2490 (November 1981), in which the Commission held that 

the ANSI wire rope criteria imposed no mandatory requirements under MSHA 

regulations. 

1905 
In Jim Walter Resources, the Commission held that the wording of 

former standard 30 C.F.R. § 77.1903(b), which provided that ANSI 

standards "shall be used as a guide," was too ambiguous to impose a 

mandatory duty upon operators since it employed both mandatory and 

advisory language. 3 FMSHRC at 2490. The Commission agreed, however, 

that, in the absence of applicable mandatory standards, "an operator's 

consultation with recognized authorities on safe work practices is 

desirable." 3 FMSHRC at 2490 n. 4. In Alabama By-Products, construing 

the same standard involved here, the Commission held that analysis of an 

alleged violation under the general language used in this regulation "is 

appropriately measured against the standard of whether a reasonably 

prudent person familiar with the factual circumstances surrounding the 

allegedly hazardous condition, including any facts peculiar to the 

mining industry, would recognize a hazard warranting corrective action 

within the purview of the applicable regulation." 4 FMSHRC at 2129. We 

find the judge's decision consistent with these decisions. 

The judge's decision carefully explains that the ANSI standards 

were referred to only as guidelines in determining the condition of the 

rope terminations, not as mandatory safety standards by which the 

violation was established. He expressly stated that the ANSI standards 

"provide some guidance to the inspector and myself" in determining 

whether the rope assembly was unsafe, and that non-compliance with those 

standards was not per se determinative of a violation -- but rather was 

merely "a single piece of the equation." 9 FMSHRC at 1740. The judge, 

with equal clarity, applied the Alabama By-Products reasonably prudent 

person test in finding the existence of a violative condition. 9 FMSHRC 

at 1937-42. We therefore conclude that the judge correctly applied 

Commission precedent set out in Alabama By-Products and Jim Walter 

Resources, supra, and that, to the extent he relied on testimony 

concerning ANSI standards, he correctly considered them only as 

guidelines, not as mandatory standards, for purposes of a proper 

application of the reasonably prudent person test. 

Finally, we consider Otis' argument that the finding of a 

violation is not supported by substantial evidence of record. That 

standard of review requires a weighing of all probative record evidence 

and an examination of the fact finder's rationale in arriving at the 

decision. See,~·· Universal Camera Corp. v. NLRB, 340 U.S. 474 

(1951); Arnold v. Secretary of HEW, 567 F.2d 258, 259 (4th Cir. 1977). 

In order to satisfy that standard, this Commission has consistently held 

that a judge must sufficiently summarize, analyze and weigh the relevant 

testimony of record, and explain his reasons for arriving at his 

decision, thereby affording the Commission a sufficient basis for review 

on substantial evidence grounds. 

In this instance, the judge has carefully summarized the testimony 

of the inspector and the two expert witnesses in detail. We agree, as 

the judge found, that the factual testimony of the inspector concerning 

the condition of the governor rope terminations was essentially 

unrebutted by Otis. The judge's decision weighs the opinion testimony 

of the expert witnesses and, in our view, adequately states the judge's 

rationale in accepting the testimony of MSHA's witness that the 

babbitted termination would likely fail in an emergency situation. Our 

1906 
In Jim Walter Resources, the Commission held that the wording of 

former standard 30 C.F.R. § 77.1903(b), which provided that ANSI 

standards "shall be used as a guide," was too ambiguous to impose a 

mandatory duty upon operators since it employed both mandatory and 

advisory language. 3 FMSHRC at 2490. The Commission agreed, however, 

that, in the absence of applicable mandatory standards, "an operator's 

consultation with recognized authorities on safe work practices is 

desirable." 3 FMSHRC at 2490 n. 4. In Alabama By-Products, construing 

the same standard involved here, the Commission held that analysis of an 

alleged violation under the general language used in this regulation "is 

appropriately measured against the standard of whether a reasonably 

prudent person familiar with the factual circumstances surrounding the 

allegedly hazardous condition, including any facts peculiar to the 

mining industry, would recognize a hazard warranting corrective action 

within the purview of the applicable regulation." 4 FMSHRC at 2129. We 

find the judge's decision consistent with these decisions. 

The judge's decision carefully explains that the ANSI standards 

were referred to only as guidelines in determining the condition of the 

rope terminations, not as mandatory safety standards by which the 

violation was established. He expressly stated that the ANSI standards 

"provide some guidance to the inspector and myself" in determining 

whether the rope assembly was unsafe, and that non-compliance with those 

standards was not per ~ determinative of a violation -- but rather was 

merely "a single piece of the equation." 9 FMSHRC at 1740. The judge, 

with equal clarity, applied the Alabama By-Products reasonably prudent 

person test in finding the existence of a violative condition. 9 FMSHRC 

at 1937-42. We therefore conclude that the judge correctly applied 

Commission precedent set out in Alabama By-Products and Jim Walter 

Resources, supra, and that, to the extent he relied on testimony 

concerning ANSI standards, he correctly considered them only as 

guidelines, not as mandatory standards, for purposes of a proper 

application of the reasonably prudent person test. 

Finally, we consider Otis' argument that the finding of a 

violation is not supported by substantial evidence of record. That 

standard of review requires a weighing of all probative record evidence 

and an examination of the fact finder's rationale in arriving at the 

decision. See,~., Universal Camera Corp. v. NLRB, 340 U.S. 474 

(1951); Arnold v. Secretary of HEW, 567 F.2d 258, 259 (4th Cir. 1977). 

In order to satisfy that standard, this Commission has consistently held 

that a judge must sufficiently summarize, analyze and weigh the relevant 

testimony of record, and explain his reasons for arriving at his 

decision, thereby affording the Commission a sufficient basis for review 

on substantial evidence grounds. 

In this instance, the judge has carefully summarized the testimony 

of the inspector and the two expert witnesses in detail. We agree, as 

the judge found, that the factual testimony of the inspector concerning 

the condition of the governor rope terminations was essentially 

unrebutted by Otis. The judge's decision weighs the opinion testimony 

of the expert witnesses and, in our view, adequately states the judge's 

rationale in accepting the testimony of MSHA's witness that the 

babbitted termination would likely fail in an emergency situation. Our 

1907 
reading of the record also supports the judge's conclusion that this 

testimony was basically unrebutted by Otis. The decision further 

describes the contents of the video taped laboratory experiment 

conducted by Otis and sets forth the judge's reasons for finding the 

test unpersuasive (the absence of those environmental conditions in 

which the equipment must operate and failure to account for the effect 

that an initial shock load would have on the inadequately babbitted 

termination). The Commission has consistently stated that a judge's 

findings of fact and credibility resolutions will not be overturned 

lightly, and we find no basis in the record of this proceeding that 

would justify our taking that extraordinary step. See ~· Hall v. 

Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (November 1986). J/ 

IV. 

Conclusion 

Accordingly, we affirm the judge's decision. 

~~ 

Lf',n,£Cc/' ~f{.f Richard V. Backley, Commission r 

/ 

L. 

!11C7~ Clair Nelson, Commissioner 

J/ In its petition for discretionary review, Otis challenged the 

judge's finding that the violation was of a significant and substantial 

nature but did not discuss the issue in its briefs or at oral argument. 

Notwithstanding this virtual waiver of the issue, we have also examined 

the record with respect to that finding. We are mindful, as was the 

judge, of the consequences of any serious elevator failure. We conclude 

that the judge's findings in this regard are supported by substantial 

evidence and are consistent with applicable Commission precedent. 

1908 
Commissioner Lastowka, dissenting: 

The issue before us appears relatively straightforward: does the periodic 

maintenance and repair work performed by Otis Elevator Company on elevators at 

an underground mine site render Otis a mine "operator" within·the meaning of the 

Mine Act. Because of the Mine Act's expansive definitions of the terms "mine" 

and "operator", the Secretary of Labor's assertion that Otis is an "operator" 

does have a certain surface appeal, I belie~e, however, that a deeper inquiry 

is required and that when the roots of the definitional debate before us are 

traced with exactitude, including a careful analysis of applicable judicial 

precedent, the conclusion that Otis Elevator Company is not a mine operator is 

compelled. 

To be sure, if the definition of "operator" set forth in the Mine Act is 

given a purely literal reading, Otis loses. Otis is an "independent contractor 

performing services ••• at [a] mine." 30 U.S.C. §802(d). The fact is, however, 

that the definition does not come before us as a tabula rasa, and in order to 

undertake a proper analysis the extensive legislative and judicial writings 

directly bearing on its meaning must be considered. 2A Sutherland Statutory 

Construction §48.01 (4th ed. 1984). 

The appropriate starting point for analysis of the meaning of the Mine 

Act's definition of "operator" is the definition that was set forth in the Mine 

Act's predecessor statute, the Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. §801 et seq, (1976}(the "Coal Act"), Section 3(d) of the Coal Act 

defined "operator" as "any owner, lessee, or other person who operates, controls, 

or supervises a coal mine." Thus, the Coal Act made no specific reference as 

to the Act's application to independent contractors performing work at a mine 

site, Consequently, soon after the start of enforcement of the Coal Act 

litigation arose over how· the Act was to be applied to the work activities of 

such independent contractors. 

In Laurel Shaft Construction Co., 1 IBMA 217 (1972), the Department of 

Interior's Board of Mine Operations Appeals held that an independent contractor 

retained to construct a ventilation shaft at a mine was an "operator" of a "mine" 

within the meaning of the Coal Act's definitions and subject to the Act's 

requirements. Subsequently, however, in a suit for declaratory judgment filed 

in federal district court it was held that coal mine construction companies that 

performed construction work at mine sites on behalf of mine operators were not 

"operators." Associated Bituminous Contractors v. Morton, No. 1058-74 (D.D.C., 

May 23, 1975). In accordance with this decision, the Secretary of Interior 

adopted a policy requiring that mine operators be charged for all violations of 

the Coal Act committed by independent contractors. 

Following the Secretary's change in enforcement policy, the Bituminous Coal 

Operators' Association ( "BCOA") in turn filed another action in federal district 

court seeking a declaratory judgment that mine operators are not responsible for 

violations committed by independent construction companies. The district court 

held that although construction contractors were not "operators" under the Coal 

Act, they were "agents" of the mine operator. On this basis, the court 

concluded that mine operators could be held liable for violations of the Coal 

1909 
Act committed by their "agent" contractors. BCOA v. Hathaway, 400 F. Supp. 371 

(W.D. Va. 1975). The appeal of this decision led to the Fourth Circuit's 

landmark decision in BCOA v. Secretary of Interior, 547 F.2d 240 (4th Cir. 1977). 

At the outset of its decision in BCOA v. Secretary, the Fourth Circuit 

summarized the types of work usually performed at mine sites by the contractors 

claiming to be outside the Coal Act's jurisdiction: 

Mining companies frequently employ independent, general 

contractors for both surface and subsurface construction work. These 

construction companies build coal preparation plants, tipples, 

conveyor equipment, storage silos, bath houses, office buildings, 

power lines, roads, drag lines, and shovels. They also construct 

underground facilities, such as shafts, slopes, and tunnels. Their 

work may be done before or after the mine is in operation. The 

construction companies, however, do not process the coal that they 

remove. 

547 F.2d at 243. 

The court rejected the argument that such activities fell outside the Coal 

Act's definition of "mine." The court stated: "When a contractor sinks a mine 

shaft, excavates a tunnel, or builds a coal preparation plant, it is 

constructing a facility "to be used in" the work of extracting or processing 

coal." Id. at 245 (emphasis added). The court observed that workers engaged 

in such activities are frequently exposed to the same hazards as miners, giving 

as an example an instance where a construction contractor hired by a mine 

operator to excavate three shafts failed to comply with mine safety standards 

and caused a methane explosion. Id. The court therefore concluded that 

"construction companies must observe the health and safety standards set forth 

in the Act and the regulations that implement it", and that "the Act authorizes 

the Secretary to ••• [proceed] against a construction company that violates the 

Act while it is exercising supervision and control over a facility that is to 

be used for extracting or processing coal." Id. at 245, 246 (emphasis added). 

The next major event in the development of the issue before us is the 

amendment of the definition of mine "operator" by the Federal Mine Safety and 

Health Act of 1977. 30 u.s.c.§ 801 et seq. (1982)("Mine Act"). The litigation 

summarized above had not gone unnoticed during Congress' consideration of 

extensive amendments to the Coal Act. In direct response to this litigation, 

Congress amended the definition of "operator" to read as follows: 

"[O]perator" means any owner, lessee, or other person who operates, 

controls, or supervises a coal or other mine or any independent 

contractor performing services or construction at such mine. 

30 U.S.C. §802(d)(emphasis added). The Senate Committee Report accompanying 

the proposed definitional amendment explained: 

[T]he def ini ti on of mine "operator" is expanded to include "any 

independent contractor performing services o[r] construction at such 

mine." It is the Committee's intent to thereby include individuals 

1910 
or firms who are engaged in construction at such mine, or who may 

be, under contract or otherwise, engaged in the extraction process 

for the benefit of the owner or lessee of the property and to make 

clear that the employees of such individuals or firms are miners 

within the definition of the Federal Mine Safety and Health Act of 

1977. In enforcing this Act, the Secretary should be able to issue 

citations, notices and orders, and the Commission should be able to 

assess civil penalties against such independent contractors as well 

as against the owner, operator, or lessee of the mine. The Committee 

notes that this concept has been approved by the federal circuit 

court in Bituminous Coal Opera tors, Assn. v. Secretary of the 

Interior, 547 F.2d 240 (C.A.4, 1977). 

S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate 

Subcommittee on Labor of the Committee on Human Resources, 95th Cong., 2nd 

Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 

602 (1978 )( "Legis. Hist.")( emphasis added). 

The Joint Explanatory Statement of the Conference Committee also 

specifically addressed the reason for the change in the definition: 

The Senate Bill modified the definition of "operator" to include 

independent contractors performing services or construction at a 

mine. This was intended to permit enforcement of the Act against 

such independent contractors, and to permit the assessment of 

penalties, the issuance of withdrawal orders, and the imposition of 

civil and criminal sanctions against such contractors who may have 

a continuing presence at the mine. 

S. Rep. No. 95-461, 95th Cong. 1st Sess. 37; Legis. Hist. at 1315 (emphasis 

added). 

After passage of the Mine Act but prior to its effective date, the U.S. 

Court of Appeals for the District of Columbia Circuit issued its decision in the 

appeal of the district court's decision in ABC v. Morton, supra, interpreting 

the Coal Act's definition of "operator". ABC v. Andrus, 581F.2d853 (D.C. Cir. 

1978). Largely guided by the Fourth Circuit's decision in BCOA v. Secretary, 

the D.C. Circuit held that "an independent construction company, which operates, 

controls, or supervises excavation work on shafts, slopes, or tunnels to be used 

in the work of extracting coal from a coal mine is an 'operator of a coal mine' 

within the meaning and purposes of" the Coal Act. 581 F.2d at 862 (emphasis 

added)(footnote omitted). Notable in its decision is the court's discussion of 

the familiar rule of statutory construction, ejusdem generis. 1 Applying this 

1 The maxim ejusdem generis is described as follows: 

Where general words follow specific words in an 

enumeration describing the legal subject, the general 

words are construed to embrace only objects similar in 

nature to those objects enumerated by the preceding 

specific words. (citations and footnote omitted). 

1911 
rule, the court concluded that the general phrase "other person" in the 

definition of "operator" referred to "other persons of the same class as those 

enumerated by the specific words. Thus, the other persons must be similar in 

nature to owners and lessees." 581 F.2d at 862 (footnote omitted). 

Importantly, this same interpretative principle has guided the two courts 

of appeals that have construed the Mine Act's amended definition of "operator." 

In National Industrial Sand Ass'n v. Marshall, 601 F.2d 689 (3d Cir. 1979) 

( "NISA"), the court was faced with a challenge to miner training regulations 

promulgated by the Secretary of Labor. In the course of its decision the court 

addressed the proper interpretation to be given to the definition's inclusion 

of "independent contractor(s] performing services or construction at such mine." 

The court stated: 

The reference made in the statute only to independent contractors who 

"perform(] services or construction" may be understood as indicating ••• 

that not all independent contractors are to be considered operators. 

There may be a point, at least, at which an independent contractor's 

contact with a mine is so infrequent or de minimis that it would be 

difficult to conclude that services were being performed. Such a reading 

of the statute is given color by the fact that other persons deemed 

operators must "operate(], control(], or supervise[]" a mine. Designation 

of such other persons as operators thus requires substantial participation 

in the running of the mine; the statutory text may be taken to suggest 

that a similar degree of involvement in mining activities is required of 

independent contractors before they are designated as operators. 

601 F. 2d at 701 (emphasis added) (footnote omitted). As support for its 

conclusion, the Third Circuit quoted the D. c. Circuit's discussion of the 

doctrine of ejusdem generis, noting that the rationale of ABC v. Andrus "also 

sheds light on the 'independent contractor' phrase in the definition of operator 

under the Mine Act." 601 F.2d at 701-02 n. 42. 

The Fourth Circuit thereafter completed the case law circle concerning the 

interpretation of "operator'' with the issuance of its decision in Old Dominion 

Power Co. v. Donovan, 722 F.2d 92 (4th Cir. 1985). In Old Dominion an employee 

of an electric utility was electrocuted while on a service call to an electrical 

substation owned by the mine operator and located on mine property. The 

Secretary charged Old Dominion with failure to comply with a mandatory mine 

safety standard prohibiting working on energized high-voltage lines. Rejecting 

Old Dominion's argument that it was not a mine "operator", the Commission upheld 

the Secretary's authority to proceed against Old Dominion under the Mine Act on 

the basis that Old Dominion was an independent contractor performing services 

at a mine and therefore fell within the Act's def ini ti on of "operator." On 

appeal, however, the Fourth Circuit reversed the Commission and in doing so 

reviewed the extensive legislative and judicial history summarized above and set 

forth a framework for analysis of the independent contractor issue before us. 

2A Sutherland, supra, at §47.17. 

1912 
The court found that the legislative history, including the reference to 

its previous decision in BCOA v. Secretary: 

make[s] clear Congress' intent to define as "operators" only those 

independent contractors who are engaged in mine construction or the 

extraction process, and who have a "continuing presence at the mine. 

772 F.2d at 97 (emphasis added). The court further noted the Third Circuit's 

holding in NISA v. Marshall, supra, that designation of independent contractors 

as "operators" "requires substantial participation in the running of the mine" 

by the contractors. Id. Importantly, the court rejected the claim that 

deference must be accorded the Secretary's view of whether a contractor is an 

operator because of the inconsistent positions that have been expressed by the 

Secretary on the independent contractor issue. Id. 2 See Natural Resources 

Defense Counsel v. E.P.A., 790 F.2d 289,290 (3d Cir. 1986). 

2 The court traced in detail the Secretary's comments accompanying the 

proposal of criteria to be used in identifying independent contractors as 

"operators". 772 F.2d at 97-98 n.6; 44 Fed Reg. 47,746-53 (1979). The court 

noted the Secretary's stated agreement with the NISA decision that not all 

contractors are appropriately cited as "operators"; rather a contractor's 

"substantial participation in the running of the mine" is required. The court 

referenced the Secretary's reliance on a contractor's performance of "major work" 

at a mine as a basis for deeming the contractor an "operator", which work 

includes "extraction and production, construction of cleaning plants and sinking 

of shafts and slopes." Id., quoting 44 Fed Reg. at 47, 747-48. The court quoted 

the Secretary's statement that "it is improbable that independent contractors 

performing most repair or general maintenance work would have effective control 

over an area of the mine." Id. (emphasis by the court). The court also 

emphasized the Secretary's view that a "continuing presence" at a mine by a 

contractor is important to its status as an "operator": "[A]n independent 

contractor's regular, essentially uninterrupted presence at a mine while 

performing work is related to the contractor's ability to effectively control 

an area of the mine". Id., quoting 44 Fed. Reg. at 47, 748 (emphasis by the 

court). 

Based on its review of the history of the Secretary's interpretation of 

the definition of "operator", the Fourth Circuit concluded: 

Although MSHA retreated from its proposed criteria in the final 

rule, it nowhere stated in the preamble to the final rule that its 

earlier construction of the legislative history and case law had 

been wrong. The unequivocal explication of the history accompanying 

the proposed rule thus remains MSHA's principal pronouncement on the 

history of [section] 3(d), and further confirms our conclusion that 

Congress intended to define as "operators" only those independent 

contractors who are engaged in mine construction or extraction and 

who have a "continuing presence" at the mine. 

772 F.2d at 97-98 n.6 (emphasis added). 

1913 
Applying these principles to the facts before it, the Fourth Circuit 

concluded that Old Dominion is not an "operator" under the Mine Act, but is 

appropriately regulated under the Occupational Safety and Health Act of 1970, 

29 U.S.C. § 651 et seq, (1982). 772 F.2d at 96. The court observed that "Old 

Dominion's only contact with the mine is the inspection, maintenance, and 

monthly reading of a meter , , •. " Id. It pointed out that the utility's 

employees "perform no activities or functions on mine property which they do not 

perform elsewhere." Id. It emphasized that "Old Dominion's employees are 

otherwise totally regulated by OSHA", and that "MSHA seeks to regulate those few 

moments every month when electric utility workers read or maintain meters on 

mine property". Id. The court noted that Old Dominion's employees "hardly, if 

ever, come into co_ntact with the hazards of mining" (id.), and that the 

utility's "contacts are rare and remote from the mine construction or extraction 

process," 772 F.2d at 97. In sum, the court concluded that because Old 

Dominion did not have a "continuing presence" at the mine and did not 

"substantially participate" in the running of the mine, it was not a mine 

"operator" within the meaning of section 3 ( d) of the Mine Act. Id. 

Applying this extensive background and the Fourth Circuit's Old Dominion 

decisional framework to the record before us, the conclusion that Otis Elevator 

Company is not a mine "operator" is likewise compelled. Although the Secretary 

and the majority here attempt to justify their contrary conclusion by 

emphasizing factual distinctions between the nature of the work performed by 

Otis and that performed by Old Dominion, in all controlling legal respects the 

cases are the same. Indeed, the essential basis for the Secretary's arguments 

for finding Otis to be an "operator" might best be understood when viewed in the 

light of her disagreement with and call for Commission rejection of the Fourth 

Circuit's decision in Old Dominion. 3 

It is clear that Otis is not the type of independent construction 

contractor that was involved in the long-running dispute under the 1969 Coal 

Act as to whether such contractors were "operators", Otis is not involved in 

the building of surface facilities such as "preparation plants, tipples, 

conveyor equipment, storage silos, bath houses, office buildings, power lines, 

roads, drag lines, and shovels," BCOA v. Secretary, 547 F.2d at 243. Nor is 

Otis involved in the construction of ''underground facilities, such as shafts, 

3 Among her arguments, the Secretary asserts that liability can ipso facto 

be imposed on Otis simply because Otis provides services at a mine. The 

Secretary asserts: "Section 3(d) provides quite simply that if the contractor 

'performs services***' it is covered. This language is unambiguous." Sec. Br. 

at 24. She further argues: 

To the extent that the Fourth Circuit may have intended the 

interpretation ... as urged by Otis, the Secretary disagrees and 

urges the Commission in performing its role as an adjudicative body 

with particular expertise under the Mine Act to reject that 

interpretation, notwithstanding what may be the position of the 

panel that decided Old Dominion. 

Id. at n.9. 

1914 
slopes, and tunnels." Id. In fact, it has never been argued in this case that 

the inspection and maintenance work performed by Otis at the mine site 

constitutes "construction" work. 9 FMSHRC at 1935. Therefore, the sole 

possible basis for finding Otis to be an "operator" is whether Otis performs 

"services'' at the mine within the meaning of the Mine Act. 

The legislative history set forth above indicates that, apart from 

construction contractors, Congress intended to include as "operators" those 

contractors who are "engaged in the extraction process for the benefit of the 

owner or lessee of the property" and who "have a continuing presence at the 

mine." Legis. Hist. at 602, 1315 (emphasis added). Accord, Old Dominion Power 

Co., 772 F. 2d at 97. The Third Circuit and the Fourth Circuit, in NISA v. 

Marshall and Old Dominion, respectively, further explain that a contractor 

performing services can be-considered an "operator" only if it "substantial[lyJ 

participat(es] in the running of the mine." 601 F.2d at 701; 772 F.2d at 97. 

Thus, whether Otis is an "operator" depends on whether the work that Otis 

performs at the mine is such that Otis can fairly be characterized as: 1) being 

engaged in the extraction process; 2) having a continuing presence at the mine; 

and 3) substantially participating in the mine's operation. On the basis of the 

record before us, it is clear that Otis meets none of these tests. 

Although Otis is an independent contractor, it is not engaged in the 

extraction process. It is not uncommon in the mining industry for a mine owner 

to hire a contractor to run its extraction operations. That, however, is not 

the case here. Pennsylvania Mines Corporation ( "PMC"), the owner of the 

underground coal mine, itself engages in the extraction and processing of its 

coal. If PMC had hired a contractor to mine its coal, then that contractor 

would be engaged in the extraction process and would be an "operator" within the 

meaning of the definition. Otis was not hired by PMC to take part in the 

extraction process. Otis' contract with PMC was for a far more limited and 

specialized role, aptly summarized by the judge as follows: 

As a practical matter, [Otis' responsibilities under the 

contract] amounted to Otis conducting weekly inspections of the 

eleyators, performing bi-monthly safety tests and responding to 

trouble calls and repairing the elevators on an as-required basis. 

9 FMSHRC at 1934. Although it is true, as the Secretary and the majority 

assert, that an elevator used to transport miners underground is an integral 

component of a mine's physical plant, it does not follow that simply because an 

outside contractor is called to service such equipment the contractor therefore 

becomes "engaged in the extraction process." Indeed, if repair of equipment 

important to a mining operation were to be the controlling criterion for 

determining "operator" status, the result in Old Dominion would have been 

different, for not even the elevators that Otis was servicing, nor the rest of 

the mine's electrical equipment for that matter, could operate properly without 

safe and effective transmission of electricity. To conclude that the nature of 

the service that Otis provided here is sufficient to thrust it into the mine's 

"extraction process" is to dilute that requirement for "operator" status beyond 

any recognizable limit. 

A similar dilution occurs if, on the facts before us, Otis is found to 
have a "continuing presence at the mine." Otis' service contract called for it 

to conduct weekly inspections, to perform safety tests every two months, and to 

perform repairs on an as-needed basis. The Secretary's proof as to Otis' 

presence at the mine pursuant to the contract falls far short of establishing 

a "continuing presence." The most that the Secretary can point to in this 

regard is that the performance of the weekly elevator inspections took an Otis 

employee, on average, only one and one-half hours per week. Tr.43-44; Sec. Br. 

at 3; 9 FMSHRC at 1935. The Secretary's witness also alluded to a hoist rope 

replacement operation that would take four or five Otis employees 20 hours to 

complete, but the witness did not know how often Otis performed this task. Tr. 

44-45. Including unspecified repair calls, the witness stated: "I would say 

counting all the call backs and stuff like this, I wouldn't doubt that you can 

say they was there weekly." Tr. at 25. 

This evidence cannot be found to establish that Otis had a "continuing 

presence at the mine" within the meaning of the legislative history and the case 

law. It certainly does not meet the "regular, essentially uninterrupted 

presence at a mine" formulation of "continuing presence" previously expressed 

by the Secretary and referenced by the Fourth Circuit in Old Dominion. 772 F.2d 

at 98-99 n.6 (quoting 44 Fed Reg. at 47,748). 

The third element entering into the determination of whether an 

independent contractor is an "operator" is whether the contractor "substantially 

participates in the running of the mine." NISA, 601 F.2d at 701; Old Dominion, 

772 F.2d at 92. What has been set forth above is generally sufficient to also 

overcome any claim that Otis' work under the elevator service contract 

"substantially" involved Otis in the running of the mine. In this regard, 

however, it is important to also note that even the administrative law judge 

found that Otis did not "control any area of the mine." 9 FMSHRC at 1935. This 

finding by the judge is in accordance with the terms of the governing contract. 

Gov. Ex. 1 at 3. Certainly, where a contractor's only duty is to periodically 

service mine elevators and the contractor does not control any area of the mine, 

it cannot be said that such contractor "substantially participates in the 

running of the mine." 

In sum, the evidence establishes that although Otis performs services at 

a mine site, neither the nature of its work nor the extent of its presence at 

the mine is sufficient to justify its classification as a "mine operator." To 

conclude otherwise, I believe, is to ignore applicable judicial precedent. To 

do so might be appropriate if that precedent was obviously flawed or 

fundamentally misguided. Here, however, the applicable case law is largely the 

product of a court of appeals intimately involved in the historical development 

of the issue before us. As Otis correctly observes, the "Fourth Circuit is no 

bit player in the development of the law concerning who is and who is not an 

operator as the term is used in the [Mine] Act." Otis Reply Br. at 8. Although 

this case arises in the Third Circuit, that court's decision in NISA v. 

Marshall adhering to the rationale of the Fourth Circuit's BCOA decision, and 

the Fourth Circuit's approving cross-reference to the NISA decision in Old 

Dominion, indicate a common judicial interpretation of the issue before us 

warranting adherence by the Commission. 

1916 
Accordingly, I conclude that Otis Elevator Company is not a mine operator 

and I dissent from the majority's affirmance of the judge's decision. 

Distribution 

Vicki Shteir-Dunn, Esq. 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

W. Scott Railton, Esq. 

Gary L. Melampy, Esq. 

Reed, Smith, Shaw & HcClay 

1150 Connecticut Ave., N.W. 

Suite 900 

Washington, D.C. 20036 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1917 

~uL JameSA~astowka Commissioner 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OTIS ELEVATOR COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 27, 1989 

Docket Nos. PENN 87-25-R 

PENN 87-26-R 

PENN 87-69 

PENN 87-86 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Backley, Doyle, and Nelson, Commissioners: 

In this consolidated contest and civil penalty proceeding arising 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seg. (1982)("Mine Act" or "Act"), we cire asked to decide whether Otis 

Elevator Company ("Otis") is the type of "independent contractor" that 

falls within the definition of "operator" as set forth in the Mine Act 

and, if so, whether Otis was properly cited for two violations· of 30 

C.F.R. § 77.501. Commission Administrative Law Judge William Fauver 

found that Otis was an "independent contractor" and, thus, an "operator" 

under the Act and sustained both citations. 9 FMSHRC 2038 (December 

1987). We granted Otis' petition for discretionary review and 

consolidated this case, for purposes of briefing and oral argument, with 

Otis Elevator Company, Docket No. PENN 87-262 ("Otis I"), which also 

presented as its primary issue Otis' independent contractor status under 

the Mine Act. In light of our decision issued separately this date in 

Otis I, we affirm the judge's finding that Otis is an operator under the 

Mine Act, and we also affirm the judge's finding of the two violations 

of section 77.501. 

The Cambria Slope Mine No. 33, an underground coal mine, is owned 

and operated by BethEnergy Mines, a subsidiary of Bethlehem Steel 

Corporation ("Bethlehem"). Bethlehem maintains an elevator service 

contract with Otis to perform maintenance and service on the one 

1918 
elevator located at the mine. The elevator is located in the portal 

building of the mine, in which the miners' changing and shower rooms and 

the company ·off ices are also located. The elevator shaft is 800 feet 

deep, with openings at the two working seams of the mine. 

The primary function of the elevator is to transport the work 

force of approximately 200 miners in and out of the mine both at shift 

changes and during shifts, as needed. The elevator holds 31 miners and 

takes two or three minutes for each round trip. Unavailability of the 

elevator would result in a work delay of about two and one-half hours 

each shift and a decrease of one-third in the mine's coal production of 

three thousand clean tons per shift. The elevator also serves as a 

primary escapeway for some sections, and as an alternate escapeway for 

others. 

The elevator service contract between Bethlehem and Otis became 

effective August 26, 1981, and under it Otis was paid $1,300 per month, 

adjustable annually. Exhibit G-8. The contract provided that Otis 

would maintain the mine elevator, its parts and equipment, in safe 

operating condition and provide weekly inspection, maintenance and "on 

call" emergency repair service. Mine Superintendent Merrits estimated 

that the weekly maintenance calls involved up to two hours of work if no 

special problems were encountered and that, during the prior year, an 

average of two to four additional service calls were made monthly, each 

taking from one and one-half to three hours. The maximum time spent by 

Otis employees at the mine was about 20 hours per month. Additionally, 

every 60 days, Otis performed a required no-load safety test on the 

elevator. 

MSHA penalty assessment reports identify Otis as an operator under 

the Mine Act, and list previous violations for which civil penalties 

were paid by Otis when cited for violations of MSHA mandatory safety 

standards at the Cambria Slope and other mines. Further, Otis had filed 

and obtained an MSHA Identification Number as an independent contractor 

pursuant to 30 C.F.R. Part 45. 

On October 27, 1986, Leroy Niehenke, an inspector of the 

Department of Labor's Mine Safety and Health Administration ("MSHA"), 

observed Otis employee Gordon Sutter disconnecting electrical leads on 

the motor of the elevator door at a surf ace work area of the Cambria 

Slope No. 33 Mine. In response to Niehenke's questions, Sutter stated 

that he was not a "qualified person" for performance of electrical work 

within the meaning of MSHA electrical regulations and was not being 

directly supervised by a person so qualified. Tr. 151. Niehenke 

thereupon issued a citation for a violation of the "qualified person" 

requirements set out in the first sentence of 30 C.F.R.§ 77.501 and 

checked the violation as being of a significant and substantial 

nature. l/ Five minutes later, Niehenke issued a second citation, 

lf Section 77.501 provides: 

No electrical work shall be performed on 

electric distribution circuits or equipment, except 

1919 
citing a violation under the second sentence of section 77.501, alleging 

that, while performing electrical work on the motor of the elevator 

door, Sutter and another Otis employee had locked out the main power 

disconnect located in the surface area of the elevator shaft but had 

failed to tag the device as required by the standard. The switch on the 

power line had been "locked out" by a padlock placed on the switch by 

the Otis elevator serviceman, making it impossible for anyone to turn on 

the electric power until the padlock was removed. Otis contested the 

citations, the S~cretary proposed civil penalties for the alleged 

violations, and the various proceedings were consolidated and proceeded 

to hearing before Judge Fauver. 

Niehenke, MSHA electrical engineer Ron Gossard, and MSHA supervisor Willis Cupp testified that on numerous occasions since 1980 Otis 

representatives had been informed of the qualification requirements for 

performing electrical work under section 77.501. Gossard stated that a 

qualified person would not be required to sup~rvise Otis employees with 

respect to their specialized elevator electrical work, but that a 

qualified person would have to be available to insure that all 

electrical safety precautions were otherwise properly observed for the 

safety of the miners. Gossard further indicated that the qualified 

supervisor would not necessarily need to be physically present but only 

to be available on the property. Gossard also suggested that Otis could 

have filed a petition for modification pursuant to section lOl(c) of the 

Mine Act, 30 U.S.C. § 811(c), to obtain simplification or modification 

of the procedures and of the requirements for becoming "qualified" as an 

electrician under section 77.501 since those procedures, requirements 

and examinations do not specifically apply to an elevator mechanic's 

work. 

Cupp testified that an MSHA policy memorandum of October 29, 1979, 

requires that, in order to assure compliance with MSHA regulations, work 

performed by manufacturers' service representatives who are not 

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. 

The term, "qualified person," is defined in section 77.501-1 as: 

A qualified person within the meaning of 

§ 77.501 is an individual who meets the requirements 

of § 77.103. 

In turn, section 77.103 sets forth an extensive list of requirements 

necessary for obtaining qualified person status. 

1920 
qualified persons must be examined and tested, as necessary, by a 

qualified person before the machine or equipment is placed in service. 

Gordon Sutter, an Otis mechanic's helper, described in detail the 

specialized electrical and safety training courses and experience 

required for all Otis elevator mechanics. James Beattie, Otis District 

Maintenance Supervisor, testified at length as to the particular 

complexities of elevator repair and maintenance that require qualifications beyond those required for mine electricians. He stated that 

supervision by a qualified mine electrician was not only unnecessary but 

could be unsafe if an unqualified person supervised an elevator 

mechanic's specialized work. Tr. 472-499. 

Before the judge, Otis argued that it was not engaged in mine 

construction or extraction with a continuing presence at the mine, and 

was not, therefore, an "operator" subject to section 3(d) of the Mine 

Act under the controlling precedent of Old Dominion Power Company v. 

Donovan, 772 F.2d 92 (4th Cir. 1983). Further, as an elevator service 

company, Otis contended it was regulated under the Occupational Safety 

and Health Act of 1970, 29 U.S.C. § 651 et seg. (1982)(the "OSHAct"), 

and was not subject to MSHA regulation. With respect to the alleged 

violations of section 77.501, Otis argued that its compliance with the 

mandatory standard would create a "greater hazard" or a "diminution of 

safety" in that supervision of Otis' specially trained elevator 

mechanics by MSHA qualified mine electricians, untrained in elevator 

repairs, could result in incorrect or dangerous work, thereby putting 

both Otis employees and miners at risk. 

In his decision, the judge rejected Otis' jurisdictional 

arguments, relying on the definition of "independent contractor" adopted 

by the Secretary in 30 C.F.R. Part 45 as including "a business that 

contracts to perform services or construction at a mine." 'J:./ The judge 

noted that the Secretary's preamble to the final rule in Part 45 

included as "independent contractors," those performing "short-term" and 

"intermittent" work of "every type," including "minor repairs." 45 Fed. 

Reg. at 44494 (July 1, 1980). Finding further that the mine elevator 

was a "critical part of the mine," and that Otis employees have a 

"substantial recurring presence at the mine" performing "crucial safety 

repairs on a key facility of the mine," the judge distinguished this 

case from Old Dominion, supra, and held that Otis was an independent 

contractor as defined by the Secretary and, hence, an operator under the 

Act. 9 FMSHRC at 2040-41. 

As to the alleged violation of the "qualified person" requirements 

in section 75.501, the judge rejected Otis' defense that compliance with 

'J:./ 30 C.F.R. § 45.2(c) states in relevant part: 

"Independent contractor" means any person, 

partnership, corporation, subsidiary of a 

corporation, firm, association or other organization 

that contracts to perform services or construction 

at a mine .... 

1921 
the standard would have created a "greater hazard" or a "diminution of 

safety." Relying on the Commission's decisions in Penn Allegh Coal Co., 

3 FMSHRC 1394 (June 1981) and Sewell Coal Co., 5 FMSHRC 2026, 2029 

(December 1983), the judge held that Otis' defense was raised in the 

wrong forum, since the "greater hazard" defense is not permissible in 

enforcement proceedings where the operator has not first filed a 

petition for modification under section lOl(c) of the Mine Act. 

9 FMSHRC at 2042-43. Nor, he found, did the "gravity of circumstances 

and presence of danger" exception carved out in Sewell apply under the 

facts of this case, since Otis had not demonstrated that compliance with 

the standard would result in a safety or health emergency to mine 

personnel. 9 FMSHRC at 2043. J/ Having rejected Otis' affirmative 

defense, the judge concluded that Otis had violated the standard as 

charged. He also affirmed the inspector's significant and substantial 

finding and assessed a civil penalty of $300 for the violation. He 

affirmed the second citation for failure to properly tag the disconnect 

device, found the citation to be technical, and assessed a penalty 

of $20. 

On review, Otis contends that the judge erred in concluding that 

it is an "operator" as defined in the.Mine Act, that he erred in 

rejecting Otis' affirmative defense with respect to the first citation, 

and that substantial evidence does not support his finding that the 

violation was significant and substantial in nature. ~/ 

Concerning the jurisdictional issue, we have concluded in Otis I 

that Otis, by virtue of the services provided and its continuing 

presence at the mine site, falls within the definition of "operator" set 

forth in the Mine Act and is, therefore, subject to its jurisdiction. 

See slip op. at 5-8. The operative facts in the two cases are 

strikingly similar and the conclusion that we reached in Otis I obtains 

with equal validity here. 

As in Otis I, it is evident here that Otis was functioning as an 

independent contractor on property that plainly is a mine within the 

Act's scope. Slip op. at 4-8. In Otis I, we held that Otis' continuing 

maintenance and service work on a mine elevator used to transport miners 

in and out of the mine bore a close proximity to, and relationship with, 

the overall extraction process. See slip op. at 7. We reach the same 

conclusion here. We further conclude as in Otis I, that Otis' contacts 

'}_/ In Sewell, the Commission stated that "emergency situations may 

arise where the gravity of circumstances and presence of danger may 

require an immediate response by the operator or its employees, 

necessitating a departure from the terms of a mandatory standard without 

first resorting to the Act's modification procedures." 5 FMSHRC at 2029 

n. 2. 

~/ As to the second violation, Otis agrees on review that its 

employees had failed to place the tag as required, and argues only that 

MSHA lacked jurisdiction to cite Otis as an operator. In light of our 

holding on that issue, we affirm the judge's finding of violation with 

respect to the second citation. 

1922 
with the Cambria Slope mine were not so rare, infrequent, and attenuated 

as to bring this case within the holding of Old Dominion, supra. See 

slip op. at 7.· We also find that Otis' activities here were not 

properly subject to OSHAct jurisdiction. See slip op. at 7-8. In sum, 

and for the reasons explained in Otis I, we conclude that Otis had a 

continuing presence at the Cambria Slope mine performing a function 

substantially related to the extraction process and, therefore, was an 

operator within the meaning of the Mine Act. Otis is therefore subject 

to the Mine Act. 

With respect to the first alleged violation of section 77.501, 

Otis raises, as it did before the judge, the affirmative defense of 

"diminution of safety," arguing that application of section 77.501 would 

actually increase the risk of danger and result in a diminution of 

safety to both Otis' employees and the miners. Otis further argues that 

requiring its employees to meet the "qualified person" criteria set out 

in section 77.501 is unnecessarily and unduly burdensome in that its 

employees are well qualified by virtue of Otis' own rigorous training 

requirements and that, in other settings, these employees must comply 

with regulations under the OSHAct. 

The record in this case leaves little doubt that, prior to being 

cited for the violations, Otis had long been on notice that MSHA 

regarded it as subject to the provisions of section 77.501 and had been 

advised of the requirements for compliance. Rather than seeking relief 

through the modification procedures of section lOl(c) of the Act or 

achieving compliance through the alternative procedures suggested by 

MSHA, Otis waited until it was cited for non-compliance and then alleged 

for the first time the defense of diminution of safety as an excuse for 

its non-compliance. 

In Penn Allegh, supra, the Commission held that questions of 

diminution of safety are to be first pursued and resolved in 

modification proceedings and cannot be raised in enforcement 

proceedings, as Otis has attempted to do here. 3 FMSHRC at 1398, 1400. 

As noted by the judge in his decision, were we to accept Otis' argument, 

we would be concluding that an operator, not the Secretary, may 

determine when compliance with a mandatory standard is necessary. 

Accordingly, we hold that the diminution of safety defense asserted by 

Otis was improperly raised in this enforcement proceeding. 

Moreover, even if that defense were properly raised, we are not 

convinced that the record of this case establishes that application of 

the standard would result in a diminution of safety. Otis has described 

a number of hypothetical scenarios involving interference with trained 

Otis technicians by supervisors unskilled in elevator work, but has 

failed to demonstrate that application of section 77.501 actually has 

resulted in a diminution of safety to miners or that it will, in fact, 

do so. Conversely, we find no basis to rebut the presumption that Otis' 

mechanics, working with electrical components in both the surface and 

underground areas of the mine, and admittedly untrained in and 

unfamiliar with MSHA regulations, may adversely affect the safety of 

miners. 

1923 
Finally, with respect to Otis' argument that MSHA's regulations 

are unnecessarily burdensome, we observe that compliance with the Mine 

Act is an essential component of doing business in a mine and that 

relief from compliance is only available through a section lOl(c) 

petition for modification. 

Accordingly, and for the foregoing reasons, we affirm the judge's 

decision. 21 

L. Clair Nelson, Commissioner 

21 In its petition for discretionary review, Otis challenged the 

judge's finding that the first violation was of a significant and 

substantial nature but did not discuss the issue in its briefs or at 

oral argument. Notwithstanding this virtual waiver of the issue, we 

have examined the record with respect to that finding, and we conclude 

that the judge's findings in this regard are supported by substantial 

evidence. 

1924 
Commissioner Lastowka, dissenting: 

In all material respects, this case and Otis Elevator Co., FMSHRC Docket 

No. PENN 86-262 ("Otis I"), issued this date, are the same. As in Otis I, the 

record in this case establishes that Otis Elevator Company: 1) is not engaged 

in either mine construction or the coal extraction process; 2) does not have a 

"continuing presence" at the mine; and 3) does not "substantially participate 

in the running of the mine." Rather, as the record in this case illustrates, 

Otis' function and presence at the mine is extremely limited. In fact, the 

elevator inspection and repair service Otis provides at the mine constitutes only 

one stop on a general service route that "includes elevators in a Sears and 

Roebuck store, an off ice building, two banks and a hospital." 9 FMSHRC 2038, at 

2039 (ALJ). 

Therefore, for the reasons more fully set forth in my dissenting op1n1on 

in Otis I, I dissent from the majority's affirmance of the administrative law 

judge's conclusion that Otis Elevator Company is a mine operator. 

1925 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

UTAH POWER & LIGHT COMPANY 

October 27, 1989 

Docket Nos. WEST 87-211-R 

WEST 87-224-R 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding ar1s1ng under the Federal Mine Safety and Health 

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

involves alleged violations of 30 C.F.R. § 75.1704 by Utah Power & Light 

Company ("UP&L") at its Wilberg Mine located in Orangeville, Utah. l/ 

lf Section 75.1704 essentially restates section 317(f)(l) of the Mine 

Act, 30 U.S.C. § 877(f)(l), and provides: 

Escapeways. 

Except as provided in §§ 75.1705 and 75.1706, at 

least two separate and distinct travelable 

passageways which are maintained to insure passage 

at all times of any person, including disabled 

persons, and which are to be designated as 

escapeways, at least one of which is ventilated with 

intake air, shall be provided from each working 

section continuous to the surface escape drift 

opening, or continuous to the escape shaft or slope 

facilities to the surface, as appropriate, and shall 

be maintained in safe condition and properly marked. 

Mine openings shall be adequately protected to 

1926 
The primary issue presented is whether the Secretary of Labor may cite a 

violation of section 75.1704 for failure to comply with the six foot by 

five foot dimension criteria for escapeways contained in 30 C.F.R. 

§ 75.1704-l(a) irrespective of the passability of the escapeways in 

question. 2/ Commission Administrative Law Judge John J. Morris concluded that the criteria set forth in section 75.1704-l(a) were not 

mandatory requirements and that the proper test for the adequacy of 

escapeways is, as provided in section 75.1704, whether they are 

"maintained to insure passage at all times of any person, including 

disabled persons .•.. " 10 FMSHRC 71 (January 1988)(ALJ). Accordingly, 

the judge dismissed a citation issued to UP&L in Docket No. 

WEST 87-224-R, on the basis that the parties had stipulated that, apart 

from a failure to comply with the criteria, the cited portion of the 

escapeway was fully passable by all persons, including disabled persons. 

The judge also found that the cited portion of the escapeway involved in 

Docket No. WEST 87-211-R was in violation of section 75.1704 on other 

grounds, but determined that the violation did not result from UP&L's 

unwarrantable failure to comply with the standard. We granted the 

Secretary's petition for discretionary review, which challenges the 

judge's findings that no violation occurred in Docket No. WEST 87-224-R 

and that there was no unwarrantable failure in Docket No. WEST 87-211-R. 

For the reasons that follow, we affirm. 

On June 17, 1987, Ted E. Farmer, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), and his 

supervisor, William Ponceroff, inspected a designated escapeway in the 

prevent the entrance into the underground area of 

the mine of surface fires, fumes, smoke, and 

floodwater. Escape facilities approved by the 

Secretary or his authorized representative, properly 

maintained and frequently tested, shall be present 

at or in each escape shaft or slope to allow all 

persons, including disabled persons, to escape 

quickly to the surface in the event of an emergency. 

~/ 30 C.F.R. § 75.1704-1 provides in pertinent part: 

Escapeways and escape facilities. 

This section sets out criteria by which District 

Managers will be guided in approving escapeways and 

escape facilities. Escapeways ... that do not meet 

these criteria may be approved providing the 

operator can satisfy the District Manager that such 

escapeways ... will enable miners to escape quickly 

to the surface in the event of an emergency. 

(a) Except in situations where the height of 

the coalbed is less than 5 feet, escapeways should 

be maintained at a height of at least 5 feet 

(excluding necessary roof support) and the travelway 

in such escapeway should be maintained at a width of 

at least 6 feet ..•. 

1927 
3rd Right Section of the Wilberg Mine. Farmer noted that a water pipe, 

six inches in diameter, was angled across the escapeway and restricted 

the travelway at that point to a width of 43 inches. The inspector also 

noted the presence of an off set two feet higher than the level of the 

walkway running along one rib, an accumulation of loose coal and rib 

sloughage on the bottom, and an extension of a rib "toe" into the 

walkway that restricted the width of the walkway to four feet. He also 

observed two miners were in the area at the time, working on removing 

the accumulation. Based on his observations, Inspector Farmer issued to 

UP&L an order of withdrawal pursuant to section 104(d)(l) of the Mine 

Act, 30 U.S.C. § 814(d)(l), alleging a violation of section 75.1704 that 

he found to be of a significant and substantial nature and that resulted 

from UP&L's unwarrantable failure to comply with section 75.1704. This 

withdrawal order is the subject of Docket No. WEST 87-211-R. 

On July 20, 1987, MSHA Inspector Richard Jones inspected another 

portion of the same escapeway. Inspector Jones observed an "overcast" 

in the escapeway and found the escapeway to be from four to four and a 

half feet high. 3/ Although the inspector did not believe that the 

escapeway was impassable, the height of the escapeway near the overcast 

did not meet the criteria of section 75.1704-1. Accordingly, he issued 

to UP&L a citation pursuant to section 104(a) of the Act alleging a 

violation of section 75.1704-l(a). ~/ This citation is the subject of 

Docket No. WEST 87-224-R. 

In his decision, the judge characterized the principal issue as 

"whether the 6 foot by 5 foot criteria in [section] 75.1704-1 may be 

enforced without regard to functional passability in an escapeway." 10 

FMSHRC at 71. ~/ The judge noted that the Secretary's uncontroverted 

evidence showed that UP&L's escapeways, in some instances, were less 

than five feet high or six feet wide. The Secretary's basic contention 

was that the operator was required under section 75.1704-l(a) to seek 

approval from the appropriate MSHA district manager for maintenance of 

escapeways with non-complying dimensions. 10 FMSHRC at 72. 

The judge rejected the Secretary's position and determined: 

When Congress enacted the escapeway regulations 

it established a functional test. The statutory 

}_/ An overcast is "an enclosed airway to permit one air current to 

pass over another one without interruption." Bureau of Mines, U.S. 

Dep't of Interior, Dictionary of Mining, Mineral and Related Terms 780 

(1968). 

~/ The citation was subsequently modified to allege a violation of 

section 75.1704. 

~/ At the hearing, the parties stipulated that the term "passability" 

would be used as an abbreviated expression for the phrase in section 

75.1704, "maintained to insure passage at all times of any person, 

including disabled persons." Tr. 11. We adopt the same shorthand 

expression for purposes of this decision. 

1928 
mandate, now embodied in the regulation, is that 

escapeways must be "maintained to insure passage at 

all times of any person, including disabled 

persons •••• " 

* * * 

In the instant case the Congressional mandate, 

as now embodied in the regulation, directly 

addresses the precise issue in question. Notably, 

Congress did not establish specific size requirements for escapeways as it has done in other 

contexts •••• 

* * * 

••• Congress clearly knew how to mandate specific 

linear foot requirements when it wished to do so. 

Its failure to do so here is a confirmation of its 

intent to require a functional test as expressed in 

the statutory language. 

10 FMSHRC at 73-74. The judge concluded that the language of section 

75.1704 is clear on its face and that MSHA cannot, at least without the 

benefit of further rulemaking, ignore that regulation's passability test 

and substitute in its place the linear foot criteria for height and 

width of escapeways. 10 FMSHRC at 74. The judge then considered UP&L's 

contests as to each of the alleged violations. 

In Docket No. WEST 87-211-R, the judge found that the 

uncontroverted evidence established that the water pipe across the 

escapeway reduced the escapeway to a width of 43 inches and that loose 

coal and rib sloughage also restricted the passability of the escapeway. 

The judge found that these facts established a violation of section 

75.1704 and dismissed UP&L's contest of the withdrawal order. As to the 

inspector's unwarrantable failure finding, however, the judge concluded 

that the operator's conduct constituted ordinary negligence but not the 

type of aggravated conduct constituting unwarrantable failure as set 

forth by the Commission in Emery Mining Corp., 9 FMSHRC 1997 (December 

1987) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2004 (December 1987). 

10 FMSHRC at 85. Finally, in Docket No. WEST 87-224-R, the judge 

sustained UP&L's contest of the section 104(a) citation based upon the 

parties' stipulation that the inspector believed that the escapeway in 

question was "adequate and fully passable for all persons including 

disabled persons." 10 FMSHRC at 85. 

The Secretary appealed the judge's finding no violation in WEST 

87-224-R and his finding an absence of unwarrantable failure in WEST 87-

211-R. 

On review, the Secretary first contends that the judge erred in 

concluding that the criteria of section 75.1704-l(a) are not mandatory 

and are unrelated to the "functional passability" of escapeways as set 

forth in section 75.1704. St~ting that section 75.1704-l(a) is a 

1929 
"reasoned and logical implementation" of the statutory mandate embodied 

in section 75.1704 to insure passage at all times of any miner, 

including disabled persons, the Secretary urges reversal of the judge's 

conclusion to the contrary. PDR 10. UP&L asserts that operators have 

no legal duty under either section 75.1704 or 75.1704-1 to obtain prior 

approval from the Secretary for the escapeways mandated by section 

75.1704. UP&L asserts that, as a matter of law, it cannot be held 

liable under section 75.1704 solely for its failure to obtain prior 

approval for escapeway width and height that do not conform to section 

75.1704-l's criteria. Since section 75.1704-l(a) is advisory and 

imposes no mandatory duty upon an operator, UP&L argues that the 

Secretary's attempt to enforce the provisions of that subsection through 

section 75.1704 is an impermissible circumvention of the legally 

mandated requirements for rulemaking. 

I. 

We first consider whether the judge properly found in Docket No. 

WEST 87-224-R that UP&L had not violated section 75.1704. Where the 

language of a statutory or regulatory provision is clear, the terms of 

that provision must be enforced as they are written unless the 

legislature or regulator clearly intended the words to have a different 

meaning. See Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-43 (1984); 

United States v. Baldridge, 677 F.2d 940, 944 (D.C. Cir. 1982); Phelps 

Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1192-93 (9th Cir. 1982). "In 

statutory interpretation, the ordinary meaning of words must prevail 

where that meaning does not thwart the purpose of the statute or lead to 

an absurd result," Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 

1987), citing In re Trans Alaska Pipeline Rate Case, 436 U.S. 631 

(1978). 

We find the language of section 75.1704, as relevant here, plain 

and unambiguous. Section 75.1704 provides that escapeways be 

"maintained to insure passage at all times of any person, including 

disabled persons." Thus, the standard establishes a general functional 

test of "passability," as argued here by UP&L and as found by the judge. 

Further, section 75.1704 does not by its terms impose upon operators any 

obligation to seek the Secretary's prior approval for their escapeways. 

In contrast, we note that the third sentence of section 75.1704 requires 

that "[e]scape facilities approved by the Secretary ... shall be present 

at or in each escape shaft or slope •.•• " (emphasis added). The 

Secretary does not argue that the term "escape facilities" in the 

standard includes "escapeways." Compare BethEnergy Mines, Inc., 

i.l FMSHRC 1445, 1450 (August 1989) (section 75.1704 requires operator to 

provide two designated escapeways from each working section of a mine 

pursuant to section 75.1704). The Secretary contends, however, that 

what constitutes a "passable" escapeway is open to widely varying 

interpretations and that section 75.1704-l(a) was promulgated to 

"improve" upon the functional passability standard enunciated in section 

75.1704. £/ While development by the Secretary of more specific 

£/ Section lOl(a) of the Mine Act, 30 U.S.C. § 8ll(a), grants the 

Secretary authority to "develop, promulgate, and revise ... improved 

1930 
requirements for passability might be a laudable regulatory goal, 

section 75.1.704-1 presently fails to achieve that purpose in an 

enforceable manner. 

The Mine Act sets forth a scheme by which the Secretary's 

enforcement agency, MSHA, regulates mine operations. MSHA promulgates, 

pursuant to section 101 of the Act, regulations that establish general 

and mandatory standards with which all mine operators must comply. See 

n. 6, supra. MSHA also requires mine operators to adopt comprehensive 

plans addressing specific subjects such as roof control and ventilation. 

30 U.S.C. §§ 862(a) and 863(a). These plans must then be submitted to 

an MSHA District Manager for approval. Once approved, the plans are 

mandatory in the sense that violations of the requirements in the plans 

constitute violations of the Act. United Mine Workers of America v. 

Dole, 870 F.2d 662, 667 (D.C. Cir. 1989). 

The Secretary argues that section 75.1704-1 implements the second 

method of enforcement with regard to escapeways and escape facilities. 

It "sets out criteria by which District Managers will be guided in 

approving escapeways and escape facilities." According to the 

Secretary, the language of the regulation contemplates a process by 

which MSHA District Managers consider certain criteria in deciding 

whether to "approve" escapeways or escape facilities. However, as UP&L 

accurately notes, a critical regulatory step is missing. Neither 

section 75.1704, section 75.1704-1, nor any other regulation requires 

operators to seek the Secretary's approval for escapeways or to 

otherwise conform the dimensions of escapeways to five feet in height 

and six feet in width. Lacking any such statutory or regulatory 

approval requirements, there can be no violation for failure to conform 

to the criteria set forth in section 75.1704-l(a) or for failure to seek 

a District Manager's approval for noncompliance with those criteria. ZI 

The Secretary's argument is undercut also by the use of the term 

"should" in the wording of the criteria, a term that normally signals 

mandatory health or safety standards for the protection of life and 

prevention of injuries in ••• mines." 

ZI The U.S. Court of Appeals for the District of Columbia Circuit has 

explained that similar types of criteria may constitute mandatory safety 

standards when they afford to miners no less protection than the 

statutory standard or the improved mandatory standard from which they 

are derived. United Mine Workers of America v. Dole, supra, 870 F.2d at 

667-672. However, in Dole the court considered the validity of roof 

control plan criteria that implement a statutory and regulatory mandate 

requiring operators to submit and District Managers to approve roof 

control plans. 870 F.2d at 670. "While mine operators were not per~ 

required to comply with each and every criterion so that the criteria 

were not themselves mandatory standards, if the criteria were actually 

incorporated into an approved plan, the operator was bound to comply 

with them." 870 F.2d at 670. (emphasis added). Unlike the roof 

control criteria at issue in Dole, there is no statutory or regulatory 

mandate that individual mine operators submit in advance plans for 

escapeways to appropriate MSHA District Managers for approval. 

1931 
the non-mandatory nature of a regulation. See generally, Jim Walter 

Resources, Inc., 3 FMSHRC 2488 (November 1981). The Commission has 

emphasized that when assessing the nature of a regulation the essential 

question is whether the standard as written imposes a mandatory duty 

upon operators. For instance, the Commission has found that even the 

inadvertent use of the word "should" instead of "shall" could be 

overcome as an indicia of a regulation's non-mandatory nature where the 

regulatory history of the standard made clear that the standard imposes 

a mandatory duty on mine operators. See Kennecott Minerals Co., Utah 

Copper Division, 7 FMSHRC 1328, 1332 (September 1985). The standard at 

issue, however, was neither proposed as mandatory nor promulgated with a 

mandatory designation. Compare Kennecott Minerals Co., supra. Rather, 

as the judge properly observed, the standard simply purports to set 

forth criteria by which MSHA's District Managers will be guided in 

approving escapeways, without imposing a commensurate mandatory duty on 

mine operators to seek such approval. 10 FMSHRC at 23. 

If the Secretary desires to require operators to obtain prior 

approval for escapeways, MSHA can pursue such a requirement through 

formal rulemaking. See~' 30 C.F.R. §§ 75.220 (requiring each mine 

operator to develop and follow a roof control plan approved by the 

District Manager); 75.316 (requiring each operator to adopt and the 

Secretary to approve a ventilation system and methane and dust control 

plan). Indeed, subsequent to the events giving rise to this case, the 

Secretary initiated a revision of the escapeways standards. On 

January 27, 1988, MSHA issued proposed rules governing underground coal 

mine ventilation, including amended regulations for escapeways. 53 Fed. 

Reg. 2382 (1988). In explaining the proposal, MSHA stated that it 

"would establish requirements for escapeways for all miners." Id. at 

2408. (emphasis added). The proposed standards would eliminate the 

approach presently found in section 75.1704-1 and substitute specific 

requirements for escapeways through mandatory standards. Proposed rule 

30 C.F.R. § 75.380(a)(4)-(5) states that "escapeways ••• shall be •.• 

[m]aintained to at least a height of 5 feet ••• [and] •.• [m]aintained 

at least 4 feet wide .... " Id. at 2422. 

Finally, the Secretary introduced into evidence a memorandum dated 

May 7, 1987, from former MSHA District Manager John W. Barton to subdistrict managers and field office supervisors. The memorandum 

instructs MSHA's enforcement personnel then under Barton's supervision 

that escapeways must "meet the height and width requirements" of section 

75.1704-l(a) and that "[f]ailure to meet the requirements should result 

in the issuance of appropriate enforcement action." Gov. Ex. 3. The 

judge declined to find that the policy expressed in the Barton 

memorandum is binding departmental policy, and we agree. 

10 FMSHRC at 74. Although the Commission has previously recognized that 

while Secretarial documents may "reflect a genuine interpretation or 

general statement of policy whose soundness commands deference and 

therefore results in [the Commission] acco~ding it legal effect," it has 

declined to do so where the interpretation or policy statement cannot be 

squared with the plain language of the standard. King Knob Coal Co., 

3 FMSHRC 1417, 1420 (June 1981). See also Western Fuels-Utah, Inc., 

11 FMSHRC 278, 285-86 (March 1989), appeal filed, No. 89-1258 (D.C. Cir. 

April 20, 1989); United States Steel Corp., 5 FMSHRC 36 (January 1983). 

1932 
Here, the memorandum from the former district manager is at odds with 

the express language of sections 75.1704 and 75.1704-l(a). 

Therefore, for all of these reasons, we agree with the judge that 

section 75.1704-l(a) does not impose upon mine operators a mandatory 

duty to either maintain escapeways in accordance with the subject 

criteria or to seek prior approval from a district manager for nonconformance with the criteria. 

II. 

The judge also concluded that the violation of section 75.1704 at 

issue in Docket No. 87-211-R was not the result of UP&L's unwarrantable 

failure to comply with the standard. Noting the Commission's holdings 

in Emery Mining Corp., 9 FMSHRC at 2004, and Youghiogheny & Ohio Coal 

Co., 9 FMSHRC at 2010, that unwarrantable failure means "aggravated 

conduct, constituting more than ordinary negligence, by a mine operator 

in relation to a violation of the Act," the judge found that UP&L's 

conduct in relation to the violation constituted ordinary negligence but 

not aggravated conduct. 11 FMSHRC at 85. The question is whether 

substantial evidence supports the judge's finding. We hold that the 

record supports the judge's finding. 

The judge found that uncontroverted evidence established that the 

six inch water line in the escapeway reduced clearance and that loose 

coal and sloughage restricted the width of the escapeway. 11 FMSHRC at 

84. However, these violative conditions were neither extensive nor 

longstanding. Randy Tatton, the chief safety engineer at the mine, 

testified that he measured the escapeway in the vicinity of the water 

pipe and that while his measurements indicated that the width at the 

base of the pipe was 48 inches, and the width of the escapeway at the 

top was 43 inches, the pipe was located on the edge of & crosscut and 

the crosscut provided added space to pass around the pipe. Tr. 298-300. 

In addition, Ted Farmer, the inspector who cited the violation, stated 

that the reduction in the width of the escapeway extended along the 

escapeway for only six inches, the diameter of the pipe. Tr. 107-08. 

Further, the condition regarding the pipe had been created during the 

shift immediately prior to the shift on which the violation was found by 

the inspector. Tr. 83, 87, 258-60. 

As to the presence of the loose coal and rib sloughage, Tatton's 

unrebutted testimony established that, because sloughage is common in 

the mine, beltmen are routinely assigned to keep passageways clean. 

(Tr. 235-237). Tatton further testified that, at the time of Farmer's 

inspection, two beltmen were shoveling loose coal and sloughage from the 

cited area and had been doing so for an hour before Farmer arrived. Tr. 

297-298. 

Finally, Inspector Farmer's testimony concerning UP&L's 

unwarrantable failure in relation to the violation was equivocal. 

Although he stated that he considered the condition of the escapeway to 

be the result of a lack of due diligence and indifference, when asked if 

there was a serious lack of reasonable care on UP&L 1 s part in relation 

to the viol~tion, he stated, "I really don't know about that •.• I 

1933 
wouldn't speculate on that at all." Tr. 90. 

Given the limited extent of the conditions, the short period 

during which they existed, the fact that clean-up operations had begun 

before the inspector arrived, and the inspector's equivocal testimony 

regarding unwarrantable failure, we conclude that the judge's holding 

that the violation was not the result of UP&L's unwarrantable failure to 

comply is supported by substantial evidence. 

III. 

Accordingly, we aftirm the judge's decision finding no violation 

in Docket No. WEST 87-224-R and finding no unwarrantable failure in 

Docket No. WEST 87-211-R. 

Distribution 

Thomas C. Means, Esq. 

Ann R. Klee, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~~ 

£~1 Richard V. Backley, Commission~ 

JL~er 

L. Clair Nelson, Commissioner 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, Colorado 80204 

1934 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

October 31, 1989 

v. Docket No. WEVA 88-176 

CONSOLIDATION COAL COMPANY 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding, arising under the Federal Mine 

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

Act" or "Act"), involves a citation issued to Consolidation Coal Company 

("Consol") alleging that it violated 30 C.F.R. § 50.10 by failing to 

notify immediately the Department of Labor's Mine Safety and Health 

Administration ("MSHA") of a reportable unplanned roof fall. l/ 

ll 30 C.F.R. § 50.10 provides: 

If an accident occurs, an operator shall 

immediately contact the MSHA District or Subdistrict 

Office having jurisdiction over its mine. If an 

operator cannot contact the appropriate MSHA 

District or Subdistrict Office it shall immediately 

contact the MSHA Headquarters Off ice in Washington, 

D.C., by telephone, toll free at (202) 783-5582. 

30 C.F.R. § 50.2(h)(8) defines "accident," in relevant part, as 

follows: 

"Accident" means, 

* * * 

An unplanned roof fall at or above the anchorage 

zone in active workings where roof bolts are in use; 

1935 
Commission Chief Administrative Law Judge Paul Merlin concluded that 

Consol violated section 50.10 and, finding the violation to be serious 

in nature, assessed a civil penalty of $500. 10 FMSHRC 1633 (November 

1988)(ALJ). For the following reasons, we affirm the judge's finding of 

violation, reverse his determination as to the gravity of the violation 

and reduce the penaity. 

Consol owns and operates the Humphrey No. 7 Mine, an underground 

coal mine in Monongalia County, West Virginia, utilizing longwall 

m1n1ng. On Friday, November 13, 1987, at about 2:00 p.m., an unplanned 

roof fall occurred in the headgate entry of the 2-southwest longwall 

section. The fallen roof covered the crusher and resulted in 2-2~ feet 

of debris between the ribs and the sides of the crusher. 

At the time of the roof fall, Sam McLaughlin, Consol's longwall 

coordinator, was approximately 1,500 feet from the face. He was 

notified immediately and proceeded to the area of the roof fall. Once 

there, he communicated by mine telephone with the longwall section 

foreman, who was at the longwall face inby the fall, and learned that no 

one had been injured and that ventilation was not impaired. McLaughlin 

directed the section foreman to send the miners out through the longwall 

tailgate entry. (The normal route of egress from the longwall face was 

through the headgate entry.) McLaughlin next telephoned Blaine Myers, 

Mine Superintendent, informed him of the roof fall and that the miners 

were leaving through the tailgate entry, and requested assistance in 

timbering the area of the fall. 

While at his surface office, Stanley Brozik, Consol's safety 

supervisor and the person designated by Consol to notify MSHA of 

reportable accidents, was informed of the roof fall in a telephone call 

received a few minutes after 2:00 p.m. Brozik was told that there were 

no injuries and that the miners were retreating through· the tailgate 

entry. Brozik proceeded underground and reached the roof fall site in 

approximately 35 minutes. He spent about 45 minutes determining the 

extent of the fall and examining conditions at the site. Brozik devoted 

his attention primarily to determining whether the fall affected the 

area above the anchorage zone of the roof bolts. He testified that 

because "the men had got off the back end of the storage loader," he 

"never really reported this incident as being impassable." Tr. 46. 

Brozik thereafter left the site and returned to the surface, which 

took him about 20 to 25 minutes, and he then telephoned MSHA to report 

the roof fall. The recorded time of the telephone call to MSHA was 

3:58 p.m., approximately two hours after the roof fall had occurred. 

Brozik testified that he could have made the call to MSHA from an 

underground mine telephone. 

MSHA inspector Lynn Workley inspected the mine on the following 

Monday, November 16, 1987. He issued a citation to Consol, pursuant to 

section 104(a) of the Mine Act, 30 U.S.C. § 814(a), for what he regarded 

as the late reporting of the roof fall. In his citation, the inspector 

or, an unplanned roof or rib fall in active workings 

that impairs ventilation or impedes passage .... 

1936 
mentioned that the unintentional roof fall was a reportable accident 

because it had occurred "above the anchorage zone of roof bolts [and] 

interfered with passage of persons .... " The Secretary subsequently 

proposed a penalty of $250 for the alleged violation, determining that 

the violation was not of a serious nature. The matter proceeded to 

hearing before Chief Judge Merlin. 

The parties stipulated that the roof fall was an unplanned roof 

fall within the meaning of section 50.2(h)(8). In his decision, the 

judge examined the specific grounds upon which the fall constituted an 

"accident" within the purview of that provision. While Consol's witness 

Brozik testified that he had focused his inquiry on whether the fall 

extended above the roof bolt anchorage zone, the judge determined that 

passage was impeded and that the roof fall, therefore, constituted an 

"accident" within the meaning of section 50.2(h)(8). 10 FMSHRC at 

1635-36. 

The judge next focused on whether Consol's notification to MSHA 

was "immediate" within the meaning of section 50.10. He found that 

"[i]f the safety supervisor [Brozik] or others had taken the moment or 

two necessary to ask the obvious questions [about the passage being 

impeded], they would have known immediate notification was required and 

so would have called MSHA before going underground." 10 FMSHRC at 1637. 

The judge determined that the procedures followed by Brozik and other 

management officials failed to satisfy the requirements of the 

regulations. 10 FMSHRC at 1636. In reaching this conclusion, the judge 

considered Consol's argument that an operator must have an opportunity 

to conduct a "reasonable" investigation in order to determine whether 

notification of MSHA is required under section 50.10. He found that 

Consol, with a minimum of effort, could have ascertained the facts 

necessary to determine the requirement of immediate notification. 

10 FMSHRC at 1637. The judge noted that "even after his investigation, 

[Brozik] waited until he was above ground to notify MSHA although he 

could have telephoned MSHA from below ground 20 or 25 minutes earlier." 

Id. He concluded that the operator's position in this case "would mean 

that instead of being 'immediate', notification would be virtually the 

last thing to be done and accorded little, if any, priority." Id. In 

considering the appropriate penalty, the judge rejected the Secretary's 

position that the violation was not serious. 10 FMSHRC at 1637-38. 

Based on his belief that Part 50 violations are intrinsically serious, 

the judge found a high degree of gravity and assessed a civil penalty of 

$500. 10 FMSHRC at 1638. 

The Commission granted Consol's Petition for Discretionary Review 

("PDR") challenging the judge's finding of violation and his 

determination as to the gravity of the violation. 

With respect to the issue of violation, Consol argues on review 

that under the circumstances of this case it satisfied the immediate 

notification requirement of section 50.10. Consol asserts that an 

operator should be allowed a reasonable opportunity to investigate a 

roof fall to determine its duties under the Secretary's regulations, 

viz., whether a particular roof fall is, in fact, reportable. Consol 

contends that it was not instantly obvious that the roof fall was 

1937 
reportable under section 50.10 and that once "the proper management 

persons determined the roof fall was reportable they 'immediately' 

report[ed] the roof fall to MSHA. 11 PDR 8. Consol bases this contention 

on Brozik's. investigation of whether the roof fall affected the area 

above the anchorage zone of the roof bolts -- a task that Brozik 

testified took him some 45 minutes to complete. Consol argues that, 

once it became evident to Brozik that the roof fall was reportable 

because it was above the anchorage zone of the roof bolts, he made the 

call to MSHA within 20 minutes. Consol asserts that this was 

sufficiently "immediate" notification to meet the requirements of the 

regulation. Under the facts presented, we disagree. 

Section 50.10 provides that operators "shall immediately contact" 

appropriate MSHA representatives regarding specified "accidents," 

including certain "unplanned roof falls." For present purposes, the key 

regulatory consideration is that such accident notification must be made 

"immediately." 

There is no definition of the term "immediately" in the 

Secretary's regulations. It is, however, a common term. The relevant 

ordinary meaning of the word "immediate" is: "occurring, acting or 

accomplished without loss of time: made or done at once: instant .... " 

Websters Third New International Dictionary (Unabridged) 1129 (1986 ed.) 

See also Random House Dictionary of the English Language (Unabridged) 

956 (2d ed. 1987). "Immediately" is defined as "without interval of 

time: without delay: straightaway .... " Webster's, supra. 

Although the regulation requires operators to report immediately 

certain "accidents" as defined in section 50.2(h), it must contemplate 

that operators first determine whether particular events constitute 

reportable "accidents" within that definition. Section 50.10 therefore 

necessarily accords operators a reasonable opportunity for investigation 

into an event prior to reporting to MSHA. Such internal investigation, 

however, must be carried out by operators in good faith without delay 

and in light of the regulation's command of prompt, vigorous action. 

The immediateness of an operator's notification under section 50.10 must 

be evaluated on a case-by-case basis, taking into account the nature of 

the accident and all relevant variables affecting reaction and 

reporting. 

Applying these considerations to the present case, we agree in 

result with the judge that Consol violated section 50.10. The judge 

concluded that the actions of Brozik, the Consol official responsible 

for making the accident report, violated the regulation in two respects: 

(1) in view of the information conveyed during the initial telephone 

call from the longwall section notifying him of the roof fall, he should 

have determined that passage was "impeded" in the entry; and (2) after 

his investigation at the site, he could have reported the accident to 

MSHA using the underground telephone rather than waiting 20 to 25 

minutes to make the call from the surface. 10 FMSHRC at 1636-37. Even 

were we to agree with Consol's position that Brozik did not violate the 

regulation by not contacting MSHA prior to his onsite investigation, we 

nevertheless conclude that, under the circumstances involved, an 

unreasonable amount of time elapsed between his arrival underground and 

1938 
his call to MSHA. 

As the judge recognized (10 FMSHRC at 1635-36), an unplanned roof 

fall in active workings is a reportable "accident" if it occurs at or 

above the anchorage zone where roof bolts are in use, or if it "impairs 

ventilation" or "impedes passage." Section 50.2(h)(8), n. 1 supra. 

Substantial evidence supports the judge's finding that the roof fall 

impeded passage in the headgate entry: the roof had fallen on the 

crusher and there was debris 2-2! feet high between the ribs and the 

sides of the crusher. · Tr. 40, 44, 48-50, 53. It was obvious that 

passage was "impeded" in the headgate entry. As noted above, miners in 

the area were evacuated through the tailgate entry, not through the 

headgate entry, which was the normal route of travel. Considering his 

testimony, Brozik may have believed that a roof fall had to render a 

passage impassable before the reporting requirement is triggered. See 

Tr. 44, 46, 49-50. The regulation, however, speaks in terms of impeded 

passage, not impassability. In addition, once Brozik arrived at the 

site, he proceeded to spend 45 minutes investigating the fall and then 

another 20-25 minutes traveling to the surface before contacting MSHA. 

We are satisfied that, upon observing the roof fall, Brozik should have 

reported the accident to MSHA at some time prior to his 4:00 p.m. 

notification. Under the circumstances, the 4:00 p.m. notification was 

not "immediate" and a violation of the regulation occurred. 

With respect to the penalty, section llO(i) of the Mine Act grants 

the Commission final authority to assess civil penalties for all 

violations under the Act and sets forth six criteria, including "gravity 

of the violation," that the Commission shall consider in assessing 

penalties. 30 U.S.C. § 820(i). The Secretary proposed an assessment of 

a $250 penalty based, in part, on her determination that the gravity of 

the violation was of a low degree. The judge rejected the Secretary's 

position concerning gravity and assessed a penalty of $500. The judge 

based his gravity finding on a per se determination that all violations 

of section 50.10 are intrinsically serious. 10 FMSHRC at 1637-38. On 

review, Consol asserts that the judge abused his discretion in rejecting 

the Secretary's position on gravity and argues that if there is a 

violation in this case, it is not of a serious nature. 

The Commission has repeatedly made clear that assessment of 

appropriate civil penalties based on the criteria specified in 30 U.S.C. 

§ 820(i) is de novo before the Commission and that Commission judges and 

the Commission are not bound by the Secretary's proposed penalties or 

her views as to any of the specific penalty criteria. See, ~' 

Sellersburg Stone Co., 5 FMSHRC 287, 290-93 (March 1983), aff'd, 736 

F.2d 1147, 1151-52, (7th Cir. 1984). 

With respect to the merits, we perceive no warrant for adopting a 

per se rule that all violations of section 50.10 necessarily reflect a 

high degree of gravity. Here, the accident report was made, and was 

made within two hours of the accident. During a considerable portion of 

that time, the responsible person was engaged in a good faith 

investigation into the particulars of the accident. Also, we note that 

the MSHA representative's initial post-accident visit to the mine the 

following Monday &enerated no indication in the record that any 

1939 
necessary corrective action was frustrated by the delayed accident 

report. The Secretary initially determined that the violation was not 

serious. In considering gravity, the judge relied in part upon prior 

litigation·involving reporting violations by Consol. However, we note 

that in the earlier case, Consol actually failed to file the required 

accident and injury reports. Consolidation Coal Company, 9 FMSHRC 727 

(April 1987)(ALJ). 

Thus, we conclude that substantial evidence of record does not 

support the judge's finding that the violation in this case reflected a 

high degree of gravity and, accordingly, we vacate that finding. "While 

a judge's assessment of a penalty is an exercise of discretion, 

assessments lacking record support, infected by plain error, or 

otherwise constituting an abuse of discretion are not immune from 

reversal by the Commission." United States Steel Corporation, 5 FMSHRC 

1423, 1432 (June 1984). Discounting the judge's finding as to gravity, 

we hold that a civil penalty of $250 is appropriate and consistent with 

the statutory criteria. 

1940 
For the foregoing reasons, we affirm the judge's finding of 

violation, reverse his determination as to the gravity of the violation, 

and asses~ a civil penalty of $250. 

Distribution 

Colleen A. Geraghty, Esq. 

Offic~ of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Michael R. Peelish, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

~-m-a-n--------~ 

eA<(,,C,,CA::/ 6ulu-i . '-Richard V. Backley, CommissionerV 

~~= :cJ:airNelSOn, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

194_1 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

RONALD TOLBERT 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 31, 1989 

Docket No. KENT 86-123-D 

CHANEY CREEK COAL CORPORATION 

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

Commissioners 

ORDER 

--

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine 

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

or "Act"), complainant Ronald Tolbert has filed with the Commission a 

Motion to Reopen and Remand. The 1987 decisions of the administrative 

law judge finding discrimination and awarding complainant relief became 

final decisions of the Commission because the Commission did not grant 

the petition for discretionary review filed by Chaney Creek Coal 

Corporation ("Chaney Creek") and Chaney Creek did not petition for 

review in a United States Court of Appeals. 9 FMSHRC 580 (March 

1987)(ALJ); 9 FMSHRC 929 (May 1987)(ALJ); 30 U.S.C. §§ 816 and 

823(d)(l). Shortly thereafter, complainant filed a motion to reopen the 

proceeding, which motion was denied by the Commission. See Ronald 

Tolbert v. Chaney Creek Coal Corp., 9 FMSHRC 1847 (November 1987). 

Complainant's present motion seeks further proceedings before the 

Commission to determine (1) additional back pay and attorney's fees that 

complainant asserts are due, and (2) whether John Chaney, owner of 

respondent Chaney Creek, is the alter ego of the company and, therefore, 

personally liable for the relief due complainant. Counsel for the 

Secretary of Labor has submitted a Motion for Leave to File a Memorandum 

as Amicus Curiae in support of complainant's motion. No response to 

these motions has been filed by Chaney Creek. 

Upon consideration of the Secretary's motion, it is granted and 

the Secretary's amicus memorandum is accepted this date for filing in 

this proceeding. 

1942 
Concerning complainant's motion to reopen and remand, complainant 

has failed to identify any specific basis or authority upon which the 

Commission can rely to reopen this proceeding to consider the merits of 

his request for relief at this time. Complainant is accordingly 

directed to file with the Commission a supplemental memorandum on or 

before November 27, 1989, setting forth (1) the jurisdictional authority 

,permitting the reopening of this matter before the Commission for the 

purpose of considering the issues raised in complainant's motion and 

(2) his position, as to why, given the May 1988 enforcement of the 

Commission judge's decisions in this proceeding by the United States 

Court of Appeals for the Sixth Circuit, the Court of Appeals is not the 

proper tribunal before which to pursue the alter ego issue (~ 30 

u.s.c. § 816(b)). 

The Secretary of Labor as amicus may also file a memorandum within 

this time identifying the jurisdictional basis for its view that the 

Commission may reopen this case for further proceedings. Respondent 

Chaney Creek may file a response to any submission by Tolbert or the 

Secretary within 15 days of the date of service of such memorandum. No 

memorandum submitted in response to this order shall exceed 15 pages. 

(k-r'--':__ Joy'ce A. boyle, 

1943 
Distribution 

Dennis D. Clark, Esq. 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Tony Oppegard, Esq. 

Appalachian Research & Defense Fund 

of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

John Chaney 

Route 1, Box 286 

East Bernstadt, Kentucky 40729 

Steven D. Cundra, Esq. 

Peter A. Greene, Esq. 

Thompson, Hine & Flory 

1920 N Street, N.W. 

Washington, D.C. 20036 

1944 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFE:TY AND HEALTH 

ADMINISTRATION CMSHA}, 

Petitioner 

v. 

FLORIDA MINING & MATERIALS, 

Respondent 

OCT 3 1989 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-58-M 

A. C. No. 08-01026-05509 

Charlotte County Rock Plant 

DECISION 

Appearances: Stephen Alan Clark, Esq., for the Secretary of 

Labor; 

Archie B. Clark, Director, Human Resources and 

Safety, for Respondent 

Before: Judge Fauver 

The Secretary of Labor brought this case for a civil penalty 

under§ llO{a} of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following Findings of Fact 

and further findings in the Discussion below. 

FINDINGS OF FACT 

1. Respondent operates a limestone mine, known as the 

Charlotte County Rock Plant, in North Fort Myers, Florida, which 

produces limestone for sale or use in or substantially affecting 

interstate commerce. It employs about 25 employees at the mine, 

and its total employment iri ·mining is about 690 employees. 

2. On August 10, 1988, Federal Mine Inspector Harry Verdier 

inspected the mine and issued Order 3250044 charging a violation 

of 30 C.F.R. § 56.9003, for operating a Michigan 125 front end 

loader without operative brakes. 

3. The front end loader did not have operative brakes. 

4. The back-up alarm on the front end loader was also 

inoperative. 

1945 
5. The front end loader was used to haul drill tubes from 

the storage area to the drill area, near a water-filled pit. The 

water in the pit was 40 to 50 feet deep. 

6. The front end loader was also used to transport 

personnel from the drill area to a parking area near a repair 

shop, a distance of about one-half mile. 

7. Three citations for brake defects had been issued at 

this mine before the date of Order 3250044. Two of them were 

issued to an independent contractor, Goodwin Construction 

Company, for its equipment. One of the citations was issued to 

Respondent for inadequate brakes on equipment owned and operated 

by Respondent. 

DISCUSSION WITH FURTHER FINDINGS 

The brakes on the Michigan 125 front end loader were 

inoperative when inspected by Mine Inspector Verdier on August 

10, 1988. The vehicle had been used that morning without 

operative brakes, before the federal inspection, and it was 

reasonably likely that it would have been used again in the same 

defective condition, if the inspector had not ordered it to be 

withdrawn from service. 

The equipment operator knew that the brakes were inoperative. 

The mechanic was also aware that the front end loader had 

defective brakes. The mechanic informed Mine Inspector Verdier 

that there had been problems with the master cylinder of the 

front end loader. 

The front end loader also had an inoperative automatic 

back-up alarm signal. This fact would have been known to at 

least two of Respondent's employees: the equipment operator and 

the drill operator. 

Respondent acknowleges that the violation was substantial 

and significant in terms of gravity. Its defense is that it 

should not be charged with high negligence because the equipment 

operator was required to report safety defects and failed to do 

so. The plant manager testified that "if the [equipment] 

operator gets on a piece of .equ1pment and finds a defect, there 

is a reporting system through the card system that that defect is 

to be reported and cecorded on a card." Tr. 42. He further 

testified that no defect was reported by the equipment operator 

before the inspection, and if the defective brakes had been 

reported to management, Respondent "would have parked that piece 

of equipment, tagged it out and not operated it until the brakes 

had been repaired." Tr. 44. 

There are three prior citations for defective brakes on 

equipment operated at this mine. Two were issued in 1986 to an 

1946 
independent contractor doing work for Respondent1 the third was 

issued later, in 1987, for equipment that was owned and operated 

by Respondent. Respondent had knowledge of the three citations 

when they were issued. If thus had ample prior knowledge of the 

safety standard for adequate brakes involved in the present case. 

The fact that the front and loader was being operated 

without brakes and without a back-up alarm underscores a 

negligent disregard of safety standards respecting this vehicle. 

Considering all the evidence, I find that Respondent's employees 

were highly negligent in operating and permitting the operation 

of the front end loader without operative brakes and that their 

negligence is imputable to Respondent. It was within the 

authority and control of Respondent to supervise and train its 

employees and manage its operations to ensure that its equipment 

would not be operated without defective brakes, but Respondent 

failed to meet this statutory obligation. 

Considering each of the criteria for a civil penalty in 

§ llO(i) of the Act, I find that a penalty of $1,000 is 

appropriate for this violation. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent violated 30 C.F.R. § 56.9003 as charged in 

Order 3250044. 

ORDER 

Respondent shall pay the above civil penalty of $1,000 

within 30 days of this Decision. 

Distribution: 

~J~11 ~ 9-°AMvtA- ~iam Fauver 

Administrative Law Judge. 

Stephen Alan, Bsq., Office of the Solicitor, U.S. Department of 

Labor, Federal Building, Room 407B, 299 Bast Broward Boulevard, 

Fort Lauderdale, FL 33301 (Certified Mail) 

Mr. Archie B. Clark, Jr., Director, P.O. Box 23965, Tampa, FL 

33630 (Certified Mail) 

iz 

1947 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 3 1989 

CONNIE MULLINS, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. VA 89-18-D 

MSHA Case No. NORT CD 88-8 

CLINCHFIELD COAL COMPANY, 

Appearances: 

Before: 

Respondent Splashdam Mine 

DECISION 

Jerry o. Talton, Esq., Front Royal, Virginia, for 

the Complainant; 

W. Challen Walling, Esq., Penn, Stuart, Eskridge & 

Jones, Bristol, Virginia, and Hilary K. Johnson, 

Esq., Clinchfield Coal Company, Lebanon, Virginia, 

for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

the complainant Connie Mullins against the respondent pursuant to 

section 105(c) of the Federal Mine Safety and Health Act of 1977. 

Mr. Mullins filed his initial complaint with the Secretary of 

Labor, Mine Safety and Health Administration (MSHA), and by 

letter dated October 28, 1988, he was advised by MSHA that after 

review of the information gathered during its investigation of 

his complaint, MSHA determined that a violation of section 105(c) 

had not occurred. Subsequently, on November 30, 1988, 

Mr. Mullins filed his complaint with the Commission. 

The complainant contends that the respondent discriminated 

against him when it suspended him from his laborer's job, and 

subsequently discharged hilJl ~:m. May 16, 1988, out of retaliation 

for his engaging in certain safety activities protected by the 

Act, and the respondent denies that it discriminated against the 

complainant. A hearing was held in Kingsport, Tennessee, and the 

parties filed posthearing arguments which I have considered in 

the course of my adjudication of this matter. 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301 et seg. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815(c) (1), (2) and 

( 3) • 

3. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

Issues 

The issues presented in this case are as follows: 

1. Whether the complainant's suspension and 

subsequent discharge was motivated by the respondent's 

intent to harass him, or to retaliate against him, 

because of his insistence that ventilation checks be 

made when machinery was moved from location to location, and because of his reporting of an alleged safety 

violation to an MSHA inspector. 

2. Whether the respondent's suspension and discharge of the complainant for failing to adhere to a 

"last chance agreement," in connection with the respondent's chronic and excessive absenteeism policy, was 

pretextual. 

3. Whether the application of the respondent's 

absenteeism policy and program was discriminatory. 

Additional issues raised by the parties are identified and 

disposed of in the course of this decision. 

Stipulations 

The parties stipulated to the admissibility of all documents 

marked and received in evidence as Joint Exhibits 1 through 21 

(Tr. 7). The parties stipulated that Mr. Mullins was suspended, 

and subsequently discharged on or about May 15, 1988 (Tr. 48-49). 

They agreed that at the time of the suspension and discharge 

Mr. Mullins was earning $15.56 per hour for a normal 40-hour work 

week. ·· · · 

The respondent agreed that the Commission and the presiding 

judge have jurisdiction in this matter, and that the respondent's 

underground Splashdam Mine, where Mr. Mullins was employed, is 

subject to the Act (Tr. 52, 68). 

The respondent stipulated that it does not disagree that in 

March, 1988, MSHA Inspector Charlie Reese issued a citation 

1949 
related to two missing roof bolts which were pointed out to him 

by Mr. Mullins (Tr. 39-41). 

The parties stipulated that exhibits JE-6 through JE-13, 

consisting of certain mine management records concerning 

Mr. Mullins' past absences, accurately reflect what is stated in 

these documents (Tr. 95). 

The parties also stipulated that at the time of the hearing 

in this case, there was no union/management contract, and that a 

strike which began on April 5, 1989, was still in effect. 

Although the mine was in operation, no union personnel were 

working at the mine (Tr. 196-197). 

Discussion 

During opening arguments at the hearing, complainant's 

counsel asserted that Mr. Mullins' discharge was in part, if not 

primarily, due to an intent by the respondent to retaliate 

against him for engaging in protected activities. Counsel 

asserted that Mr. Mullins was part of a union "inside campaign" 

to require the respondent to comply with the mine ventilation 

regulations and that he was one of the principal individuals at 

the mine who insisted that ventilation checks be made on all 

occasions when mining machinery was moved from location to location. Counsel concluded that as a result of this protected 

activity,. Mr. Mullins was discharged (Tr. 8-9). Counsel asserted 

further that shortly before the discharge, Mr. Mullins reported a 

safety violation to an MSHA inspector, which resulted in the 

·issuance of a citation, and that the respondent had knowledge of 

this report by Mr. Mullins, and retaliated against him by discharging him (Tr. 9). 

With regard to the respondent's defense that it discharged 

Mr. Mullins pursuant to its chronic and excessive absenteeism 

program, counsel asserted that the respondent's policy and 

program is discriminatory per se, is not in writing, and allows 

the respondent to discharge employees for excused absenteeism 

related to injuries and accidents, and as applied to Mr. Mullins, 

the policy provides a pretextual means or method for respondent 

to retaliate or terminate "problem" employees because of their 

union or safety activities (Tr. 10). 

With regard to Mr. Mullins' prior contention that his failure to report for work on April 14 and 21, 1988, was based on his 

belief that to report for work on those days would have constituted a safety threat to himself and his fellow workers because 

he was on medication, counsel asserted that he would not pursue 

this issue for "strategic reasons," and would not contend that 

this "work refusal" by Mr. Mullins was protected activity which 

would provide a claim for relief pursuant to section 105(c) of 

1950 
the Act (Tr. 11-12). When asked whether he intended to withdraw 

this issue, counsel responded as follows at (Tr. 18): 

MR. TALTON: Well, I don't want to dilute my case, and 

I'm going to stick with my original position. We're 

not going to contend that the unsafe personal condition 

of Connie Mullins was a -- that that was grounds for a 

protected activity in this case. We're premising our 

.contention of harassment-discrimination upon the 

grounds previously set forth, Your Honor. 

Respondent's counsel asserted that the action taken by the 

respondent against Mr. Mullins was proper and nondiscriminatory, 

and that even assuming that Mr. Mullins engaged in protected 

activity, the respondent would have suspended and discharged him 

anyway for his nonprotected activity. With regard to the withdrawal of Mr. Mullins' "work refusal" claim based on a medical 

condition, counsel pointed out that this was the only issue 

raised by Mr. Mullins when he filed his initial discrimination 

complaint with MSHA on July 13, 1988 (Joint Exhibit-1), and since 

he has withdrawn it, counsel moved for a dismissal of this case 

(Tr. 14). 

In response to the motion to dismiss, I pointed out to 

respondent's counsel that in his pro se complaint filed with the 

Commission, Mr. Mullins raised the issue relative to his safety 

activities concerning ventilation checks, and his reporting of an 

alleged safety violation to an MSHA inspector, and claimed that 

the actions taken by the respondent were based on these protected 

activities. I also pointed out that the complaint also raised 

the issue of an alleged "pretextual" discharge based on a "last 

chance agreement" entered into by Mr. Mullins and the respondent 

with respect to his asserted absenteeism, and that all of these 

claims were sufficiently viable issues for at least a prima facie 

case of discrimin.1tion. Under the circumstances, the motion to 

dismiss was denied from th~ bench (Tr. 13-17). 

Complainant's Testimony and Evidence 

Connie D. Mullins testified that he worked for the respondent for 13-years prior to his discharge, and served as a miner 

helper for approximately a year. He confirmed that he has been a 

member of the UMWA Local 7170 since 1975, but has held no office. 

He also confirmed that upori the expiration of the BCOA LaborManagement contract on January 31, 1988, his union local 

requested him, as well as other miners, to initiate an "inside 

campaign" at the respondent's mine to insure that all work performed was done to the letter of the law. He explained that 

miners were expected to "work to the law" to insure that all mine 

safety laws were enforced. 

1951 
Mr. Mullins stated that as a result of the union "inside 

campaign," he began to insist that air ventilation checks be made 

during his work shift in each area where coal was cut, and that 

his insistence that this be done began in February, 1988. He 

believed that a ventilation air reading was required to be made 

at each new cut of coal. 

Mr. Mullins stated that in April, 1988, approximately 1 to 

2 weeks before his discharge, he asked his foreman Cleebern 

Newberry to take an air reading after he had finished a coal cut. 

Mr. Newberry responded to his request and took an air reading. 

Mr. Mullins stated that another coal cut was taken and he asked 

Mr. Newberry to take another air reading, and he again responded 

and took the reading. Mr. Mullins stated that he continued to 

request that additional ventilation air readings be made after 

each cut of coal for the rest of the evening, and that 

Mr. Newberry responded and made the checks. Mr. Mullins stated 

that he continued to request ventilation checks at least three to 

five times during each of his succeeding work shifts, and that 

there were no coal cuts made when he did not insist on a ventilation check (Tr. 20-33). 

Mr. Mullins stated that sometime in March of 1988, he 

observed that two roof bolts were missing from a roof area and 

that he reported this to his foreman Grady Colley. Mr. Colley 

told him that he would take care of the condition, and 2 or 

3 days later when no corrective action was taken, Mr. Mullins 

reported the condition a second time to Mr. Colley, but nothing 

was done about it. Mr. Mullins stated that he then reported the 

two missing roof bolts to MSHA Inspector Charles Reese who 

happened to be underground conducting an inspection, and that he 

took the inspector to the area and showed him where the bolts 

were missing (Tr. 33-35). 

Mr. Mullins also alluded to a "wide place" which had been 

cut, but he was not certain whether a violation was issued for 

this condition. He confirmed that after the missing roof bolt 

citation was issued, Mr. Colley assigned him to abate the condi~ 

tion and to set timbers and crib blocks to support the roof. 

Mr. Mullins believed that the missing roof bolts presented a 

hazard and danger of draw rock falling, and that the wide cut 

also presented this same danger. He confirmed that eight or nine 

other men were available to abate the condition, but that 

Mr. Colley assigned him to tnis task (Tr. 41-47). 

Mr. Mullins confirmed that he did not discuss the ventilation checks with management prior to his discharge, other than to 

request that they be made (Tr. 48). He confirmed that on one 

occasion when he requested Mr. Newberry to make an air reading, 

Mr. Newberry informed him that since the ventilation curtain was 

moving, there was enough air. However, Mr. Newberry proceeded to 

make the check as he requested (Tr. 28-30). 

1952 
Mr. Mullins stated that he has not been employed since his 

discharge on.May 15, 1988, and he confirmed that he has not 

looked for work in any union or non-union mines. He also confirmed that he has looked for work near his place of residence, 

Clintwood, Virginia, and has made work inquiries at a local 

repair shop, Exxon Service station, a farm store, and the s & J 

Tire Store. He stated that he received 6 months of unemployment 

payments, and that his name is on a job roster maintained by the 

State of Virginia Employment Commission (Tr. 53-55). 

Mr. Mullins. stated that he was "somewhat familiar" with the 

respondent's chronic absenteeism policy, but has never seen it in 

writing, and to his knowledge, the respondent has never posted it 

at the mine. He confirmed that the BCOA contract covers this 

subject, and he believed that absences where doctor's slips are 

produced by an employee are treated as excused absences. He 

identified exhibits JE-15 and JE-16 as a doctor's excuse and 

dental appointment notice covering the 2 days he did not report 

for work on April 14 and 21, 1988. He stated that he gave them 

to his foreman or the mine superintendent upon his return to 

work, but he did not recall specifically who he gave them to (Tr. 

56-61). 

Mr. Mullins confirmed that he filed a grievance and arbitration action in connection with his suspension and discharge but 

did not prevail in these actions (Tr. 63). 

On cross-examination, Mr. Mullins confirmed that his union 

began a strike at the mine on April 5, 1989, and that upon the 

expiration of his unemployment benefits, he received union strike 

benefit payments of $200 a week, and received these benefits 

before the actual start of the strike (Tr. 63-67). 

Mr. Mullins confirmed that prior to his discharge he worked 

the evening shift from 4:00 p.m. to 12:00 p.m. He also confirmed 

that Mr. Colley was his foreman until a week or so prior to his 

discharge, that Mr. Newberry was his foreman immediately prior to 

his discharge, and that he had only worked for Mr. Newberry for 

approximately a week prior to his discharge. He confirmed that 

he got along well with Mr. Colley, and that he had shown no 

animosity towards him (Tr. 69-70). 

Mr. Mullins stated that.prior to the start of the union 

"inside campaign," he did not request ventilation checks at each 

coal cut interval. He confirmed that on each occasion when he 

requested a ventilation check, Mr. Newberry agreed and made the 

check. Mr. Mullins assumed that in each instance, adequate air 

ventilation was available, and he could recall no instances where 

the ventilation checks made by Mr. Newberry indicated less than 

adequate air ventilation in the areas which were tested. 

Mr. Mullins stated that on one occasion where the ventilation air 
curtains "were blowing," Mr. Newberry was of the opinion that a 

ventilation reading was not needed (Tr. 71-73). 

With regard to the reported roof bolt condition which 

resulted in a citation being issued to the respondent, 

Mr. Mullins stated that the bolts had been cut off or "sheared 

off" after they had been installed, but he had no knowledge as to 

how this may have occurred (Tr. 79). Mr. Mullins confirmed that 

Mr. Colley informed him that he would correct the condition, but 

he could not recall precisely when he informed Mr. Colley of the 

condition because he could not recall when he first noticed it. 

Mr. Mullins stated that after 2 or 3 days passed, the bolts were 

not fixed, and he again asked Mr. Colley about it, and he replied 

that he would take care of it. Mr. Mullins could not recall how 

soon after this he informed the inspector of the condition, but 

confirmed that a citation was issued, and the condition was 

corrected and abated (Tr. 81-82). 

With regard to his assignment by Mr. Colley to correct and 

abate the cited roof bolt condition, Mr. Mullins confirmed that 

he was qualified to do this work in a safe manner. He also 

confirmed that the roof bolt and crib work which he performed to 

abate the condition was work which he had normally performed in 

the past (Tr. 82-83). 

Mr. Mullins stated that he could not state for sure that 

Mr. Colley assigned him to do the aforementioned abatement work 

to punish him for reporting the condition. Mr. Mullins confirmed 

that Mr. Colley never told him that he was wrong in reporting the 

condition to the inspector, and that Mr. Colley was not angry 

with him, and did not act, or otherwise indicate, that he held it 

against him for reporting the matter. Mr. Mullins also confirmed 

that he got along well with Mr. Colley and that Mr. Colley never 

expressed any personal animosity towards him (Tr. 84-85). 

Mr. Mullins denied that he has had a problem with absenteeism, but admitted that he had been counseled by mine management about absenteeism on many occasions (Tr. 94). He conceded 

that mine management expressed their concern to him about his 

absences from work during the past 3-years prior to his discharge, and that he had meetings and discussions with his foreman 

Colley and assistant mine superintendent William Seik about these 

absences. 

Mr. Mullins confirmed that at no time during his meetings 

and discussions with Mr. Seik or Mr. Colley concerning his work 

absences was the subject of safety ever discussed. Mr. Mullins 

al·so confirmed that he was aware of the fact that he would be in 

"serious trouble" if he had two consecutive AWOL absences on his 

record, and that he was aware that miners have been discharged 

for such an offense (Tr. 96-97). 

1954 
Mr. Mullins confirmed that he missed 2 consecutive days of 

work in January, 1988, and he confirmed that exhibit JE-5 

reflects that he was charged with being AWOL on January 15 and 

16, 1988, when he failed to produce "doctor slips" for these 

absences (Tr. 97-100). 

Mr. Mullins confirmed that he was summoned to a meeting with 

Mr. Seik and Mine Superintendent Barry Compton on January 18, 

1988, to discuss his absenteeism, and that he attended the meeting with his union committeeman William Powers. Mr. Mullins 

estimated that the meeting lasted 1 hour, and he confirmed that 

he signed the document detailing what transpired during the 

meeting (exhibit JE-14). 

Mr. Mullins confirmed that he discussed no safety matters 

with Mr. Seik or Mr. Compton during their meeting. Mr. Mullins 

acknowledged that as a result of the meeting, he knew that if he 

had any further work absences during the ensuing 180 days which 

exceeded the mine average for absences that he would be "in 

trouble." However, he believed that these absences would have to 

be AWOL absences rather than absences involving sick days (Tr. 

101-120). 

With regard to his absence of April 14, 1988, when he 

visited a dentist, Mr. Mullins stated that his dental visit was 

at 3:30 p.m., and that he was scheduled to be at work at 

4:00 p.m. He confirmed that he did not call in to report that he 

would be absent, and although the dentist's office opened at 

9:00 a.m., he called the dentist earlier in the day, and was told 

that 3:30 p.m. was the only time available to see the dentist. 

Mr. Mullins stated that while other dentists may have been available to him he did not call them because the dentist he went to 

was his family dentist. 

With regard to his doctor's appointment of April 21, 1988, 

Mr. Mullins confirmed that he stayed off work on April 20, and 

21, and does not recall calling in to report that he would be 

absent from work. He confirmed that he has had sinus problems in 

the past and has worked on these occasions. He also confirmed 

that he never informed Mr. Compton that he was too sick to perform his work safely, and that he did not communicate any safety 

concerns concerning his sinus condition to his foremen. 

Mr. Mullins further confirmed that he never informed Mr. Seik or 

Mr. Compton that his foremen.Colley and Newberry were discrimi-. 

nating against him (Tr. 120-133). 

In response to further questions, Mr. Mullins referred to 

his attendance records (exhibit JE-5), and he explained the days 

he was absent and the codes used on these records (Tr. 138-142). 

He stated that no one ever told him that the two days coded as 

"AWOL" on his records, April 14, and 21, 1988, were in fact 

AWOL's, and he indicated that he was granted "sick days" for 

1955 
those absences (Tr. 143). He also stated that no one ever told 

him or warned him that these two particular absences were going 

to be used to terminate him (Tr. 158). 

Upon review of his last chance agreement, (exhibit JE-14), 

Mr. Mullins stated that when he left the meeting with management 

concerning this agreement, he did not believe that he had made 

any promises (Tr. 160-162). However, he conceded that management 

made it clear to him that he must stay within the mine average 

for non-allowed absences for the next 180 days, and that he 

believed non-allowed absences meant AWOL's or nonexcused 

absences. He stated further that under the applicable 1984 

labor-management wage agreement, he was not aware of any nonallowed absenteeism other than AWOL's (Tr. 163). Mr. Mullins 

also stated that as of April, 1988, it was his understanding that 

all that was necessary for allowed sick leave was a doctor's 

slip, and no one ever told him that anything else was necessary, 

or that sick leave was not included as an allowed a.bsence pursuant to his last change agreement (Tr. 166). 

Mr. Mullins confirmed his understanding that the mine 

average of non-allowable absences were those days not allowed 

under the wage agreement, and that under that agreement, vacation 

days, bereavement days, and birthdays, for which he may excused 

or be paid triple time if he works, are different days off, and 

that the mine average only covers days not allowed under the 

agreement (Tr. 168). 

In response to further questions, Mr. Mullins stated that he 

believed that foreman Colley was present when he pointed out the 

sheared roof bolts to the MSHA Inspector. He was not sure 

whether Mr. Colley was present when he met with Mr. Compton and 

Mr. Seik about his absenteeism, and he confirmed that he got 

along with Mr. Colley and that Mr. Colley never said anything to 

him about speaking with the inspector (Tr. 172). 

Mr. Mullins stated that he believed the respondent suspended 

and discharged him because "it costs them so much time" to take 

ventilation readings and "the violations cost the company money" 

(Tr. 172). He confirmed that he said nothing to the inspector 

about ventilation readings, and that any time he insisted on 

taking air readings, the respondent always complied and never 

refused him (Tr. 173). He confirmed that in some instances, the 

air was insufficient, and curtains would have to be put up (Tr. 

174). He confirmed that prior to the expiration of the union 

contract with the respondent, he did not make it a practice to 

insist on ventilation checks, but he always made sure there was 

enough air. He confirmed that he began insisting on ventilation 

checks "because our union leaders told us to make the company 

work to the letter of the law. So that's what I was engaged in." 

He further stated that "we was hoping to get a contract without a 

1956 
strike. And we was hoping to put pressure on through that way" 

(Tr. 175-176) . 

Mr. Mullins confirmed that the only time management ever 

said anything to him about his insistence on making air checks 

was the one occasion when foreman Newberry disagreed with him and 

told him that since there was air movement on the line curtain, 

the ventilation was sufficient. He further confirmed that 

Mr. Newberry never complained or resisted his requests for air 

checks, and that this was never mentioned during any management 

meetings concerning his absences (Tr. 177). 

Mr. Mullins confirmed that the union effort to "work to the 

letter of the law" was a concerted effort by all union miners at 

the mine, and he knew of no one else who was suspended or fired 

for this activity (Tr. 179). Mr. Mullins confirmed that he was 

aware of at least two miners who asked for ventilation checks on 

his working section, but he could not state how often this was 

done (Tr. 182). He stated that based on his observations, the 

only time management made ventilation checks was when an inspector was on the section, but that he did not complain about this 

"unless it was real bad." He confirmed that he began "doing 

something about it" only after January 31, 1988, because he was 

instructed to do so by his union, and he admitted that he engaged 

"in a little chain pulling on management" (Tr. 188). 

Mr. Mullins stated that he saw no preshift examination air 

readings, but conceded that company policy requires such readings 

and that they "could have been made" (Tr. 192). He also confirmed that he would not always be present in the places where 

these readings would have been made (Tr. 192). He confirmed that 

when he complained about inadequate air, it was taken care of 

within a reasonable time soon after it was discovered (Tr. 195). 

Barry N. Compton, general mine superintendent, confirmed 

that he was familiar with the respondent's absenteeism policy, 

and that an AWOL is not an excused absence. He also confirmed 

that any employee missing two consecutive work days on AWOL is 

subject to termination. He stated that an "S" code on an employment record means a suspension, and that an "X" code signifies 

sick leave in cases where an employee has not brought in a 

doctor's excuse verifying his absence from work. In some circumstances, even though an employee has a doctor's excuse, he may 

still be considered AWOL where.the absences are chronic or the 

employee has failed to adhere to a last chance agreement. He 

identified employee Mike Puckett as an individual who was suspended with intent to discharge for being sick when no AWOL was 

involved. He explained that this action was taken pursuant to 

the respondent's chronic and excessive absentee policy, and that 

Mr. Puckett had several AWOL's and absences not allowed under the 

contract (Tr. 198-202). 

1957 
Mr. Compton also identified employee Bobby Brannan as an 

individual who was terminated in 1986 or 1987, after being suspended with intent to discharge under the same policy, and he 

indicated that Mr. Brannan's absences included sick days and 

AWOL's over a period of time (Tr. 203). He confirmed that these 

discharges resulted from a combination of reasons, and that no 

one has been discharged for simply being sick (Tr. 204). 

Mr. Compton conceded that but for Mr. Mullins' absences on 

April 14 and April 20, 1988, he would not have been discharged, 

and he stated that "those two days were involved in the fact that 

he didn't live l,lp to the agreement," i.g., the last chance agreement of January 18, 1988 (Tr. 204-205). Mr. Compton stated that 

the agreement was discussed with Mr. Mullins and that he understood its conditions (Tr. 205). 

Mr. Compton stated that neither he or his foreman grant 

employees time off from work when they are sick, and that "we 

just keep the records" of an employee's contractual and noncontractual absences under the applicable personnel codes 

reflected in their records. He confirmed that he has the authority to suspend an employee with intent to discharge, and to make 

a determination as to whether or not an employee's sickness is 

grounds for discharge (Tr. 206). He confirmed that in 

Mr. Mullins' case, management considered his absences of 

April 14, and 20, to be less than excused, and that this resulted 

in his being over the mine average pursuant to the formula used 

for determining employee absence rates (Tr. 207). 

Mr. Compton explained that pursuant to the union contract, 

an employee is allowed 5 days of sick leave or personal business, 

which is coded P on his attendance records. If an employee calls 

in sick five times, the respondent accepts this. If he does not 

call in to report that he is sick, as required by the contract, 

he is given an AWOL. If he continues to take sick leave for more 

than his allotted 5 days, and it becomes a habit or trend, i.g., 

calling in sick on Fridays or Mondays on "long weekends," his 

absences are coded X on the attendance roster and he is counseled. If an employee who has been charged with an AWOL for not 

calling in returns to work and submits a docto~'s excuse for the 

absence, the AWOL is changed to an X code on his records, and he 

confirmed that this is what is reflected quite often in 

Mr. Mullins' leave records (Tr. 211-215). He confirmed that when 

Mr. Mullins visited his dentist on April 14, he was initially 

marked AWOL, but when he brought in his doctor's appointment 

slip, his record was changed from AWOL to X for that day (Tr. 

215) . 

Mr. Compton stated that an employee who has three AWOLS in a 

30-day period, or six AWOL's in a 180-period, is coded as an 

"irregular worker." In his opinion, Mr. Mullins' failure to call 

in before taking a sick day on April 14, was an AWOL, and that 

1958 
his record was coded X to indicate that he had not called in. He 

confirmed that after an employee has used up his 5 days of 

allotted sick leave, and then misses more work time and brings in 

doctor's excuses, he is not paid for these absences, and his 

absence is treated as not allowed, and it is counted against his 

overall absences. The reason it is considered as not allowed is 

because it is separate and apart from the approximately 40 days 

.of contractual leave days which are afforded employees (Tr. 219). 

Mr. Compton stated that Mr. Mullins was discharged for his 

failure to adhere to the last chance agreement. He explained 

that the chronic absenteeism policy was only used as a standard 

to be followed by Mr. Mullins, and that he was under this policy 

plan and had been counseled under this plan (Tr. 233). He 

explained further as follows at (Tr. 234-237): 

[W]e use the standard of the chronic and excessive plan 

because he was in that plan under the counseling 

sessions. He understood what the nonallowable days 

were under the contract, he understood what it meant to 

stay within the mine average. That's why that standard 

was used. 

He wasn't discharged because his failure to --

because of the chronic and excessive plan, but because 

of the fact that the standards that were set up in this 

last chance agreement which it spells out, the agreement, we gave up the right to discharge him under 

Article 22(I). He gave up the fact that -- in turn for 

not being discharged, that he would abide by this 

agreement, he would stay within the nonallowable absenteeism average for 180 days. He knew what it meant to 

be in that, because he was in the C & E policy --

chronic and excessive policy by the fact that he had 

been in the counseling. That's why I referred to the 

chronic and excessive plan, only as a standard for him 

to go by, and which he agreed to do. 

BY MR. TALTON: 

Q. Why don't you excuse people from work who have 

doctor's slips? Are you telling us you don't? 

A. In what instance? · · 

JUDGE KOUTRAS: Why didn't you excuse Mr. Mullins in 

this case? 

THE WITNESS: By the fact that he had already used up 

his five paid days and it was a non allowable day that 

was calculated in --

1959 
JUDGE KOUTRAS: Why did you consider it now allowable? 

THE WITNESS: Because he had certain amount of days 

within the contract -- 40-some days to take for those 

purposes, and anything above and beyond that --

JUDGE KOUTRAS: Is not allowed? 

THE WITNESS: Is not allowed. 

JUDGE KOUTRAS: Not withstanding whether they bring in 

a doctor's excuse or not, is that right? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Doctor's slip or not? 

THE WITNESS: But one thing 

MR. TALTON: He's answered. 

THE WITNESS: I don't know how much you want me to run 

on here or not, but anyhow, you know, we take into 

consideration the amount of days they take above and 

beyond the contract, we take into consideration the 

history, you know, and I take into consideration 

Connie's history, the fact that he had been under the -

- you know, he had had absentee problems for the last 

several years, and he had a trend of missing on Mondays 

and Fridays, and trends of long weekends. Those are 

where those unexcused absences play a big part. I 

don't know of anybody that's just missed two days sick 

and brought in a doctor's excuse that's ever been 

discharged * * *· 

And, at (Tr. 239-240): 

JUDGE KOUTRAS: My understanding of this agreement, 

Counsel, is, he characterizes an agreement for 180 days 

from the date of this agreement, you shall not have any 

nonallowable days of absences, and if you do, you 

violated this agreement. Is that --

THE WITNESS: Above tlie ·mine average. 

JUDGE KOUTRAS: In other words, if he had only had one 

day nonallowable, if it didn't bring him over the 

average, are you telling me you wouldn't have suspended 

and fired him? 

THE WITNESS: No, sir. 

1960 
JUDGE KOUTRAS: But the two days brought him up, right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: And you applied the formula to the 

standard, and you came out with a suspension with 

intent to discharge? Is that what you're telling me? 

THE WITNESS: The counseling sessions, this has all 

been explained to him several times before. 

Mr. Compton explained further that missing work because he 

was under a doctor's care are not allowable absences because 

Mr. Mullins executed a last chance agreement, had undergone 

counseling, and he was subject to discharge if he exceeded the 

mine average for absences (Tr. 243). He confirmed that the 

2 days of AWOL chargeable to Mr. Mullins caused him to breach his 

agreement, and that pursuant to Article 22(I) of the wage agreement, he had the authority to suspend him with intent to discharge (Tr. 251). Mr. Compton stated that he could have fired 

Mr. Mullins on January 18, 1988, and would have had good grounds 

for doing so (Tr. 252). He confirmed that the decision to discharge Mr. Mullins for violating his agreement was a joint 

decision made with mine superintendent Bill Seik (Tr. 254). 

Mr. Compton stated that he also spoke with Mike Cutlip, human 

services department, and advised him that Mr. Mullins was under a 

last chance agreement, and had exceeded the mine average for 

absences (Tr. 255-256). 

Mr. Compton confirmed that while other employees may miss 

more than their allotted days of sick leave, and may not be 

discharged for this, they are not under a last chance agreement 

as was Mr. Mullins (Tr. 257-258). He explained the respondent's 

absenteeism policy as follows at (Tr. 260-262): 

JUDGE KOUTRAS: Please, Mr. Compton, tell me what a 

chronic and excessive absenteeism program is? 

THE WITNESS: Okay. 

JUDGE KOUTRAS: Who's the program administrator? 

THE WITNESS: I guess I administrate the program at our 

operations. 

JUDGE KOUTRAS: And what is it? 

THE WITNESS: Okay. We orally communicated the policy 

to the work force through communication meetings, and 

if an employee doesn't ever get above the mine average 

then they have no other reason to bring them into them 

and counsel them, as in Mr. Mullins' case, which he had 

1961 
been counseled since 1984, ever since the policy came 

into effect. 

Each time someone gets above the mine average, and 

they get chronic and excessive in the fact that -- like 

I said, that for instance, they have a habit of just 

getting sick on Monday and Friday. You know, flu when 

it hits me, it don't just hit me Monday and Friday. 

JUDGE KOUTRAS: All right. 

THE WITNES.S: Before long weekends, or they have a 

history of continually being sick or whatever that may 

be --

JUDGE KOUTRAS: Then they go into this program. 

THE WITNESS: They come into this program, they are 

orally counseled. They are counseled until they get to 

-- in trying to rehabilitate these people. We make 

them aware that they have an absentee program, that 

they are constantly above the mine average --

Q. Is this all documented, the warnings that are 

given --

A. When we orally counsel someone, generally it is put 

down in written form, which I think that has been 

submitted as evidence. 

Mr. Compton reviewed some of Mr. Mullins' absences, and gave 

several examples of his discussions and counseling with him 

concerning his absences (Tr. 262-263). He characterized the last 

chance agreement executed by Mr. Mullins as a "warning," as well 

as an agreement on his part, .and he indicated that such agreements are rare, but nonetheless enforceable among the workforce 

(Tr. 266-267). He stated that Mr. Mullins has been counseled 

about his absences since 1982, and that his situation was handled 

on its merits (Tr. 271-273). 

Mr. Compton confirmed that he became aware of the union's 

"inside campaign" in approximately the middle of 1988, and 

believed that it involved "slow down the work force," "slow down 

production of the mine, sanotage equipment, whatever" (Tr. 281). 

Mr. Compton stated that he did not know whether ventilation 

checks were made at every cut of coal because he is not constantly in the mine. He stated that the law does not require 

such a check at each cut, but that preshift and onshift examinations are made and recorded in the fire boss books as required by 

the law (Tr. 282). He explained the mine production figures (Tr. 

283-285). 

1962 
Mr. Compton confirmed that his foremen are required to 

conduct ventilation checks when they have some doubt that the air 

in any place is insufficient, and that if a ventilation curtain 

is blowing against the rib "you pretty well know you got enough 

ventilation" (Tr. 293). He also indicated that air readings may 

be taken before a miner machine reaches a working place and that 

this does not entail any "lost down time" (Tr. 293). He also 

confirmed that he has advised his foremen that they are expected 

to make ventilation checks to insure the proper volume of air in 

the working place (Tr. 297-298). 

Mr. Compton. stated that in approximately April or May, 1988, 

foreman Cleveland Newberry mentioned that Mr. Mullins had 

requested him to take two or three air readings one evening, and 

that Mr. Newberry confirmed that he had taken the readings and 

had sufficient volume of air. Mr. Compton stated further that he 

instructed Mr. Newberry to comply with Mr. Mullins' requests to 

take air readings, to insure that all ventilation curtains are 

maintained, and that the proper volume of air is maintained at 

the faces. He also advised Mr. Newberry that he could establish 

the proper volume of air before the miner machine arrives at an 

area so that it can begin cutting coal upon its arrival. 

Mr. Compton believed that this discussion with Mr. Newberry took 

place after Mr. Mullins missed work on April 14 and 21, and he 

indicated that this is the only discussion he had with 

Mr. Newberry concerning this matter (Tr. 300). 

Mr. Compton stated that Mr. Mullins was not discharged prior 

to May 16, 1988, because it takes 2 weeks after the end of the 

month for him to receive the computer print-out record concerning 

leave (Tr. 301). He believed that he received the leave information concerning Mr. Mullins during the week of April 9 (Tr. 301). 

Mr. Compton stated that he had no knowledge of any citation 

received by the respondent in March or April, 1988, concerning 

sheared off roof bolts on Mr. Mullins' section, and that he had 

no conversations with anyone concerning any violation reports 

filed by Mr. Mullins with any federal inspectors (Tr. 302). 

Mr. Compton stated that he was not concerned that Mr. Mullins' 

insistence on making ventilation checks may have resulted in a 

15-minute production delay (Tr. 304). He reiterated that he 

advised Mr. Newberry that he could make his ventilation checks as 

the miner machine is travelling from one location to another "so 

when he comes into the place; he's automatically got his air," 

and also to avoid unnecessary production delays (Tr. 307-309). 

Mr. Compton reiterated that in January of 1988, he believed 

he had a right to discharge Mr. Mullins for two consecutive days 

of AWOL, but that he gave up this right when he entered into the 

last chance agreement with Mr. Mullins, and Mr. Mullins gave up 

his right to file a grievance when he signed the agreement (Tr. 

315). Mr. Compton confirmed that he discharged Mr. Mullins for 

1963 
failing to live up to his agreement, and because his past history 

of absenteeism reflected that he had an absenteeism problem (Tr. 

316). He confirmed that he spoke with Mr. Mullins with his union 

representative present, and made it clear to him that if he 

violated the last chance agreement he would be "in deep trouble," 

and he believed that Mr. Mullins understood this (Tr. 318). 

Although Mr. Mullins' absenteeism improved in February and March, 

it exceeded the mine average in April, and he then suspended 

Mr. Mullins with intent to discharge him, and informed him of his 

decision in his office. Mr. Seik and Mr. Mullins' union committeeman Billy Powers were present when he advised Mr. Mullins of 

his action, and neither Mr. Mullins or Mr. Powers said anything 

about mine safety or safety discrimination at that time (Tr. 

319) • 

Mr. Compton stated that Mr. Mullins has never complained to 

him about any hazards in the mine, and never complained that he 

was being treated differently because of the exercise of any of 

his safety rights. He confirmed that Mr. Mullins never said 

anything to him about requesting his foreman to make ventilation 

checks, and that he was unaware that Mr. Mullins may have pointed 

out any safety infractions to an MSHA inspector (Tr. 332). 

Mr. Compton denied that he suspended and discharged Mr. Mullins 

out of retaliation for any of these activities (Tr. 334). 

William R. Seik, mine superintendent, confirmed that he 

"played a role" in the decision to discharge Mr. Mullins. He 

confirmed that he was aware of the fact that a citation was 

issued in March or April, 1988, to the respondent because of two 

sheared roof bolts in the mine, but denied that he was aware of 

the fact that Mr. Mullins had reported this condition to a 

federal inspector, or that Mr. Mullins had been assigned to 

correct the condition. Mr. Seik also denied that he was aware of 

Mr. Mullins' role in requesting ventilation checks every time a 

different cut of coal was made on the section (Tr. 357-358). 

Mr. Seik confirmed that the only conversation he had with 

foreman Brady Colley about the citation concerned Mr. Mullins 

leaving his miner helper's position to show the inspector where 

the roof bolts in question were located. Mr. Seik stated that he 

advised Mr. colley that "he was to keep Connie on his job, and 

that Connie would not leave his job without permission" (Tr. 

358). Mr. Seik stated that it was his understanding that 

Mr. Mullins did not request permission to go with the inspector 

and simply "went on his own." Since Mr. Colley was the foreman 

in charge, Mr. Mullins should have asked for his permission 

before leaving his job. Mr. Seik confirmed that he was aware of 

the fact that a citation was issued because he reviewed a copy of 

it which was left on his desk by a company safety inspector. He 

learned "after the fact" that Mr. Mullins had some involvement in 

the issuance of the citation, and he knew about this at the time 

the decision was made to discharge him on May 16, 1988. However, 

1964 
he had no conversation at any time with Mr. Colley concerning 

Mr. Mullins' requests for ventilation checks (Tr. 359-360). 

Mr. Seik stated that the only discussion he had with 

Mr. Compton concerning Mr. Mullins involved Mr. Mullins' past 

absenteeism record, and that he said nothing to Mr. Compton about 

the roof bolt citation. Mr. Seik confirmed that he had counseled 

Mr. Mullins many times about his absenteeism, and that his record 

in this regard was reviewed on its own merit and it was not a 

"snap decision" (Tr. 365-366). 

On cross-examination, Mr. Seik stated that while he discussed the matter of suspension and discharge with Mr. Compton, 

the final decision was Mr. Compton's (Tr. 366). Mr. Seik stated 

that Mr. Mullins could have been discharged in January, 1988, for 

the two consecutive AWOL's which resulted in the last chance 

agreement, but that Mr. Mullins was "given a break" at that time 

(Tr. 366-367). 

Mr. Seik stated that he had no complaint about Mr. Mullins 

telling the inspector about the roof bolts, and that this did not 

bother him. He acknowledged Mr. Mullins' right to report any 

safety violations, and stated that he held no grudge against 

Mr. Mullins for reporting the condition (Tr. 368). He stated 

that Mr. Mullins should have been aware of the fact that he 

simply cannot leave his job without advising his foreman, and 

that anyone may make a safety complaint, and that other miners 

have done so and not been fired. Miners are free to make safety 

complaints to management and to their safety committee (Tr. 

369-370). 

Mr. Seik confirmed that Mr. Mullins has never made any 

safety complaints to him, and has never advised him that he 

believed he was being treated differently because of the exercise 

of any of his safety rights. He denied that the issuance of the 

citation had anything to do with his involvement in the discharge 

of Mr. Mullins, and he believed that the monetary fine for the 

citation was $20 (Tr. 371). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and "proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Fasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

1965 
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

prima facie case in this manner it may nevertheless affirmatively 

defend by proving that it was also motivated by the miner's 

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

Pasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965) : 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complain"iiig ·miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

1966 
As we emphasized in Fasula, and recently 

re-emphasized in Chacon, the operator must prove that 

it would. have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator 

can attempt to demonstrate this by showing, for 

example, past discipline consistent with that meted to 

the alleged discriminatee, the miner's unsatisfactory 

past work record, prior warnings to the miner, or 

personnel rules or practices forbidding the conduct in 

question. Our function is not to pass on the wisdom or 

fairness of such asserted business justifications, but 

rather only to determine whether they are credible and, 

if so, whether they would have motivated the particular 

operator as claimed. 

As stated earlier, Mr. Mullins has abandoned his earlier 

claim that he was discharged because of his refusal to work 

because he had a good faith belief that certain medication he was 

taking for a sinus condition would have endangered himself and 

his fellow miners. Accordingly, I have made no findings or 

conclusions with respect to this abandoned claim and theory of 

his case, and have confined my findings and conclusions to 

Mr. Mullins' claim that his suspension and subsequent discharge 

were motivated by mine management's intent to harass him, or to 

retaliate against him, because of his insistence that certain 

ventilation checks be made, and because of his alleged reporting 

of a safety violation to an MSHA inspector. 

Mr. Mullins' Protected Activity 

It is clear that Mr. Mullins enjoys a statutory right to 

voice his concern about safety matters or to make safety complaints to mine management or a mine inspector without fear of 

retribution or harassment by management. Management is prohibited from interfering with such activities and may not harass, 

intimidate, or otherwise impede a miner's participation in these 

kinds of activities. Secretary of Labor ex rel. Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 

F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex rel. 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 

Baker v. Interior Board of Mine Operations Appeals, 595 F.2d 746 

(D.C. Cir. 1978); Chacon, supra. 

With regard to the ventilation air checks, Mr. Mullins 

confirmed that prior to the union "work to the letter" campaign, 

he had not requested or insisted that checks be made each time a 

cut of coal was made. He testified that he began insisting on 

ventilation air readings in February, 1988, after being 

instructed to do so by his local union, and he admitted that this 

1967 
was done to put pressure on the respondent in connection with 

labor and management's contract negotiations. 

Mr. Mullins confirmed that on each occasion when he 

requested that ventilation checks be made, his foreman responded 

and made the checks. On one occasion when the foreman disagreed 

that a ventilation check was necessary, he nonetheless complied 

with Mr. Mullins' request and took an air reading. Mr. Mullins 

confirmed that with the exception of this disagreement on the 

need for a check, his foreman never complained or resisted his 

requests for air readings. Mr. Mullins also confirmed that he 

got along well with foreman Colley and that his foreman had no 

animosity towards him. Mr. Mullins conceded that on each 

occasion when he requested a ventilation check, mine management 

always complied with his requests and never refused him. 

Mr. Mullins testified that in each instance when he 

requested a ventilation air reading, he assumed that adequate air 

was available, and he could recall no instance where the air 

reading taken by his foreman indicated less than adequate air in 

the areas tested. Mr. Mullins confirmed that company policy 

required preshift air readings, that he was not always present at 

the place where air readings were made, and that when he complained about inadequate air ventilation, it was always taken 

care of by management within a reasonable time. 

Mr. Mullins confirmed that he was not the only miner who 

insisted that management operate the mine "to the letter of the 

law" as part of the union campaign. He also conceded that no one 

from management said anything to him about this campaign, no one 

was mad at him, and that no other miner was suspended or discharged during this time. 

With regard to his complaint to the MSHA inspector about two 

missing roof bolts, Mr. Mullins confirmed that foreman Colley was 

not angry with him for informing the inspector about the condition, and said nothing, or did anything, that would lead him to 

believe that Mr. Colley held it against him for reporting the 

matter to the inspector. Mr. Mullins also confirmed that the 

subject of safety was never discussed during his meetings with 

Mr. Colley, Mr. Seik, and Mr. Compton concerning his absenteeism, 

and he confirmed that he got along well with Mr. Colley. 

Although Mr. Colley assigned Mr. Mullins to abate the cited roof 

bolt violation, Mr. Mullins could not state for certain that 

Mr. Colley assigned him this task in order to punish him for 

reporting the condition. Mr. Mullins implied that this was the 

case when he testified that other miners were available to abate 

the condition, but Mr. Colley selected him for this job. 

Mr. Mullins conceded that he was qualified to do the abatement 

work in connection with the roof bolt condition in a safe manner, 

that he did so, and that abatement work of this kind was work 

which he had normally done in the past. 

1968 
Mine Superintendent Seik testified that he was aware of the 

fact that a violation was issued in March or April, 1988, because 

of two sheared off roof bolts, but he denied that he was aware of 

the fact that Mr. Mullins had reported the condition to the 

inspector, at the time the violation was issued, or that 

Mr. Mullins had been assigned to abate the condition. Mr. Seik 

conceded that he learned about Mr. Mullins' "involvement in the 

issuance of the citation" after the violation was issued, and 

that he was aware of this when he and Mr. Compton made the 

decision to discharge Mr. Mullins on May 16, 1988. Mr. Seik also 

denied that had ever discussed Mr. Mullins' ventilation check 

requests with Mr~ Colley, or that he discussed the roof bolt 

citation with Mr. Compton. 

Mr. Seik acknowledged Mr. Mullins' right to make safety 

complaints, and he confirmed that other miners have done so and 

have not been discharged. Mr. Seik also acknowledged that when 

he learned that Mr. Mullins had left his job without the foreman's permission to show the inspector the roof bolt condition, 

he informed foreman Colley that Mr. Mullins should not simply 

leave his job without telling him. Mr. Seik stated that the fact 

that Mr. Mullins informed the inspector about the condition did 

not bother him, and that he held no grudge against Mr. Mullins 

for doing so. Mr. Seik also stated that Mr. Mullins had never 

made any safety complaints to him, and never advised him that he 

believed he was being treated differently from other miners 

because of the exercise of his safety rights. 

General Mine Superintendent Compton testified that he was 

aware of the union's "inside campaign," and he confirmed that 

when foreman Newberry informed him in April or May, 1988, that 

Mr. Mullins requested him to make ventilation checks two or three 

times one evening, he instructed Mr. Newberry to comply and to 

insure that adequate ventilation was established. Mr. Compton 

denied any knowledge of the citation concerning the roof bolts, 

and he confirmed that he had no discussion with anyone concerning 

Mr. Mullins' reporting of any safety violations to the inspector. 

Mr. Compton confirmed that Mr. Mullins never said anything to him 

about requesting his foreman to make ventilation checks, that he 

was unaware that Mr. Mullins may have pointed out any safety 

infractions to the inspector, and he denied that he suspended or 

discharged Mr. Mullins out of retaliation for these activities. 

After careful consideration of all of the testimony and 

evidence adduced in this case, I find no probative or credible 

evidence of any harassment, intimidation, or retaliation by mine 

management as a result of Mr. Mullins' insistence on the making 

of ventilation checks or his complaint to the inspector. I 

reject Mr. Mullins' suggestion that he was assigned to abate the 

roof bolt condition out of retribution for his making the complaint, and I find no credible basis for concluding that his 

1969 
foreman assigned him this task to punish him for making the 

complaint. Mr. Mullins conceded that he was qualified and able 

to do this job safely, that such abatement work was something 

that he would normally do as part of his job, that he gotten 

along well with his foreman, and that his foreman who assigned 

him the task displayed no displeasure or animosity towards him 

when he assigned him the abatement work. 

The record establishes that mine management responded in a 

positive way to Mr. Mullins' requests for ventilation checks, and 

Mr. Mullins conceded that management always complied with his 

requests, including the one time that he and his foreman disagreed as to the need for a check. I take note of the fact that 

although other miners were involved in the "work to the law" 

campaign, they were not disciplined or otherwise interfered with 

in any way because of these activities. 

The record establishes that Mr. Mullins' ventilation concerns were never discussed or mentioned during the meetings 

between Mr. Mullins and mine management, concerning his attendance record, and there is no evidence that Mr. Mullins ever made 

any safety complaints to Mr. Seik or to Mr. Compton, the two 

individuals who made the decision to suspend and discharge him. 

There is also no evidence that Mr. Mullins ever informed Mr. Seik 

or Mr. Compton that he believed he was being put upon because of 

his insistence in making daily ventilation checks, and 

Mr. Mullins himself conceded that mine management responded 

promptly to his requests, and that his foremen displayed no 

animosity towards him. He also conceded that his foreman did not 

appear angry with him for complaining to the inspector about the 

roof bolt condition, and I find no evidence of any harassment or 

disparate treatment of Mr. Mullins by his foremen because of his 

complaint to the inspector or his insistence that ventilation 

checks be made. 

The record reflects that Mr. Mullins was suspended and 

discharged on May 16, 1988. Mr. Mullins suggested that his 

requests to foreman Newberry to take air readings 1 or 2 weeks in 

April before his discharge, prompted his suspension and discharge. However, Mr. Mullins' confirmed his insistence on making 

ventilation checks began as early as February, 1988, yet no 

action was ever taken against him, and there is no evidence that 

Mr. Newberry was in any way connected with the decision to discharge him. · 

The record also reflects that Mr. Mullins' complaint to the 

inspector concerning the roof bolt condition was made sometime in 

March, 1988, 2 months before his discharge. Mr. Mullins confirmed that foreman Colley displayed no animosity towards him for 

calling the condition to the attention of the inspector, that he 

got along well with Mr. Colley, and that Mr. Colley never 

harassed him or treated him badly. There is also no evidence 

1970 
that Mr. Colley had nothing to do with the decision to discharge 

Mr. Mullins. 

The evidence establishes that at the time the decision was 

made to suspend and discharge Mr. Mullins, Mr. Seik was aware of 

the fact that Mr. Mullins spoke with the inspector about the roof 

bolt violation, and that Mr. Compton was aware of the fact that 

Mr. Mullins had requested daily ventilation checks. However, 

Mr. Seik denied that he ever discussed the roof bolt violation 

with Mr. Compton, and Mr. Compton denied any knowledge of the 

violation or Mr. Mullins' conversation with the inspector. The 

record reflects .that Mr. Mullins never complained to Mr. Seik or 

Mr. Compton about safety matters, and there is no evidence that 

Mr. Seik or Mr. Compton harbored any ill will towards Mr. Mullins 

because of his safety concerns. Based on the evidence adduced in 

this case, I conclude and find that any concerns that Mr. Seik 

and Mr. Compton may have had with regard to Mr. Mullins focused 

on his work attendance and not on his safety related activities. 

Although Mr. Seik's and Mr. Compton's awareness of 

Mr. Mullins insistence on making ventilation checks, and his 

contact with the MSHA inspector who issued the roof bolt violation raises an inference that their decision to suspend and 

discharge Mr. Mullins may have been tainted or influenced by 

Mr. Mullins' safety related activities, having viewed Mr. Compton 

and Mr. Seik during the course of their testimony, I find them to 

be credible witnesses, and I believe their denials that the 

decision to suspend and discharge Mr. Mullins had anything to do 

with his safety related activities, or that this decision on 

their part was motivated or made to retaliate against Mr. Mullins 

for insisting on ventilation checks or bringing the roof bolt 

condition to the attention of the inspector. In short, I conclude and find that any inference of discriminatory intent by the 

respondent in connection with Mr. Mullins' suspension and discharge has been rebutted by the respondent's credible evidence 

which I believe establishes that Mr. Mullins was suspended and 

discharged because of his poor work attendance record and 

absenteeism. 

The Respondent's Motivation for the Suspension and Discharge of 

Mr. Mullins. 

In his posthearing brief, Mr. Mullins' counsel asserts that 

Mr. Mullins' report of a sarety violation to a Federal mine 

inspector is protected activity under the Act. Counsel also 

asserts that Mr. Mullins' insistence that ventilation checks be 

made every time the continuous miner was moved was reasonably 

calculated to apprise him of information essential to a determination as to whether or not the respondent was in compliance 

with the federal laws mandating adequate ventilation, and was 

part and parcel of his right to a safe work environment and of 

1971 
his right to notify a federal inspector of an unsafe condition 

should the ventilation be deficient. 

The focus of counsel's argument is in on the "last chance 

agreement" executed by Mr. Mullins. Counsel disagrees with the 

respondent's contention that the agreement gave the respondent 

the right to terminate Mr. Mullins, and that he would have been 

terminated even had he not engaged in the activities of reporting 

an unsafe condition to a federal inspector and insisting upon 

repetitive ventilation readings on every occasion that the miner 

was moved. 

In support of his argument concerning the agreement in 

question, counsel takes the position that the document identified 

as the agreement contained no agreement by Mr. Mullins to do 

anything, and in the absence of some express promise by 

Mr. Mullins to do or not do a certain act, there was no contract. 

Counsel notes that the agreement did not state that Mr. Mullins 

would be terminated if his absenteeism rate exceeded the mine 

average, but simply stated that "· .. further disciplinary 

action up to and including discharge will be taken." Counsel 

concludes that this left it up to the respondent to decide what 

action was appropriate given the nature of the absence and the 

surrounding circumstances. 

Counsel asserts that the unfair and harsh nature of the 

respondent's absenteeism policy is apparent in this case, and the 

fact that it is not a written policy indicates that it is particularly susceptible to arbitrary application. Counsel argues 

that it is not probable that the respondent's decision to discharge Mr. Mullins, the most severe action available, was not 

motivated to any significant extent by his protected safety 

activities. Counsel submits that this case is not one of 

happenstance or coincidence, and that it is a case of "enemy 

action" by an employer who determined that Mr. Mullins' exercise 

of protected activities was an annoyance and a nuisance. Counsel 

concludes that the facts in this case supports the contention 

that Mr. Mullins was discharged because of the fact that "he was 

at war" with the respondent over safety issues, and to assume 

otherwise is unreasonable. 

I believe that the thrust of Mr. Mullins' complaint lies in 

his dispute with the respondent's leave and absenteeism policy, 

the legality of the last cnarice agreement, and Mr. Mullins' 

belief that the agreement and absenteeism policy is patently 

unfair and arbitrary, and has been used by the respondent as a 

pretext to support his suspension and discharge for engaging in 

protected activity. The record establishes that Mr. Mullins 

filed a grievance on these issues and proceeded to arbitration. 

In a written decision issued on October 12, 1988, the arbitrator 

denied his claims and ruled against him (Joint Exhibit 20) . As a 

result of this unfavorable decision, Mr. Mullins, by and through 

1972 
his UMWA union, filed an unfair labor practice charge against the 

respondent with the NLRB, and it was likewise denied after the 

NLRB declined to issue a complaint (Joint Exhibit 21). 

Although I am not bound by decisions of arbitrators, I may 

nonetheless give deference to an arbitrator's "specialized 

competence" in interpreting any applicable labor-management 

agreements. Chadrick Casebolt v. Falcon Coal Company, Inc., 

6 FMSHRC 485, 495 (February 1984); David Hollis v. Consolidation 

Coal Company, 6 FMSHRC 21, 26-27 (January 1984); Secretary on 

behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 2786 

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

Coal co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). 

I take note of the fact that the union's position before the 

arbitrator with respect to the last chance agreement was that 

"The company is discriminating against the Grievant for his union 

activities at the mine. The Grievant is being prosecuted to the 

fullest for no other reason." (Pg. 6, arbitrator's decision). 

The arbitrator found that the last chance agreement was valid and 

reasonable on its face, that the respondent treated Mr. Mullins 

fairly and properly, that there was no disparate treatment of 

Mr. Mullins, and he rejected the claim that the respondent's 

action was tainted by unlawful animus. The arbitrator concluded 

that there was no reasonable basis for him to conclude that the 

motivation of the respondent in discharging Mr. Mullins was 

something other than the proven fact that he violated the terms 

of his agreement with respect to absenteeism. 

I also take note of the fact that at the time Mr. Mullins 

initiated his grievance on May 24, 1988, his sole contention was 

that he was unjustly discharged by the company's absentee policy 

(Joint Exhibit 18). The Union's position before the arbitrator 

does not include a claim that Mr. Mullins' safety activities 

prompted his discharge, and although the arbitrator's decision 

makes reference to testimony by Mr. Mullins during the arbitration hearing that he had arguments with his foreman Colley over 

safety issues in connection with adequate air at the face, the 

arbitrator concluded that the evidence "did not establish a 

causal relationship between the safety issues raised by the 

Grievant and his supervisor and action taken by the General Mine 

Superintendent for his failure to come to work often enough," and 

that the superintendent "acted to enforce an attendance settlement agreement which was fairly arrived at and which was not 

ambiguous" (Pgs. 13·, 14, arbitrator's decision). 

I also take note of the NLRB's decision not to initiate an 

unfair labor practice case against the respondent, and the NLRB's 

conclusion that its investigation failed to establish that the 

respondent was unlawfully motivated in discharging Mr. Mullins, 

and that the evidence adduced by the NLRB established that 

1973 
Mr. Mullins discharge "was with cause, i.g., poor attendance" 

(See NLRB letter of November 25, 1988, Joint Exhibit 21). 

The respondent's absentee policy, including the use of last 

chance agreements, has been previously litigated before the 

Commission in a discrimination proceeding heard and decided by 

Judge Weisberger on February 1, 1989. In Lindia Sue Frye v. 

Pittston Coal Group/Clinchfield Coal Company, 11 FMSHRC 187 

(February 1989), the complaining miner asserted that she was 

discharged for making safety complaints and for refusing to work 

under conditions which she believed were unsafe. Judge 

Weisberger's decision reflects that the miner was counseled with 

respect to her absentee rate, and that a proposal was made by the 

respondent in that case to suspend and discharge her due to 

excessive absenteeism. However, she avoided this action by 

executing a last chance agreement that she would not exceed the 

mine absentee rate in any month in the next 12 months. When she 

failed to keep her agreement and exceeded the absentee rate seine 

2 months after the agreement was made, she was suspended and 

discharged. Judge Weisberger dismissed her complaint after 

concluding and finding that the sole reason for the discharge was 

excessive absenteeism, that the discharge was not motivated in 

any part by any protected activities, and that the action taken 

by the respondent was clearly a prerogative of management. 

The evidence in the instant case establishes that 

Mr. Mullins has undergone counseling concerning his absenteeism 

periodically since 1982 (Joint Exhibits 6 through 15). Although 

he stated that he was "somewhat familiar" with the respondent's 

absenteeism policy, and that it is not reduced to writing or 

posted on the mine bulletin board, I am not convinced that he was 

ignorant of the policy or did not understand it. Mr. Mullins 

admitted that he had been counseled by mine management on many 

occasions concerning his absenteeism, that management had 

expressed their concern to him in this regard during the past 

3-year prior to his discharge, and that he had meetings with his 

foreman and mine management concerning his work attendance 

record. 

Mr. Compton testified that he could have fired Mr. Mullins 

in January, 1988, for two consecutive days of AWOL, but did not 

do so because the respondent and Mr. Mullins executed the last 

chance agreement. At the time the agreement was executed on 

January 18, 1988, Mr. Mullfns admitted that he knew he was in 

serious trouble, and that miners have been discharged for two 

consecutive days of AWOL. Immediately prior to the AWOL days of 

January 15 and 16, 1988, he was talked to by foreman Colley and 

superintendent Seik about missing work (Joint Exhibit 13). After 

returning to work on January 18, 1988, Mr. Mullins was summoned 

to Mr. Compton's office for a meeting with Mr. Compton and 

Mr. Seik, and he appeared with his union representative to discuss his absenteeism. 

1974 
Mr. Mullins admitted that he was under the impression at the 

meeting with Mr. Seik and Mr. Compton that the respondent was 

ready to take· some disciplinary action against him, and that he 

was aware of the fact that the respondent could have fired him 

for being AWOL but was going to give him a last chance (Tr. 

103-104). A memorandum of that meeting, which is signed by 

Mr. Mullins, reflects that he was informed that he would not be 

suspended or discharged for his AWOL's, but that due to his 

excessive absenteeism, he was further informed that he must stay 

within the mine average of unallowed absences, and that if he did 

not, he would be subject to further disciplinary action, including a discharge (Joint Exhibit 14). 

Although Mr. Mullins claimed that he did not believe that he 

had made any promises concerning his absenteeism to management 

when he left the meeting with Mr. Seik and Mr. Compton, he 

admitted that "he got the message," and understood that if he 

missed anymore days from work within the ensuing 180 days, he 

would be discharged (Tr. 108). Mr. Mullins' claim that he understood "non-allowed absences" to mean only AWOL's or nonexcused 

absences, and that the mine average absenteeism formula used by 

the respondent only pertained to absences not allowed under the 

labor/management contract, is rejected. I find no credible 

evidence to suggest or support any conclusion that Mr. Mullins 

was confused or unsure about the respondent's method for calculating a mine absentee average for purposes of its counseling 

program. The documentary evidence detailing Mr. Mullins• past 

counseling sessions concerning his absences from work all make 

reference to this policy, including references to absentee averages, and assurances by Mr. Mullins that "he would get his rate 

down," that "he understood the absentee plan .•. and would try 

to improve," and "do better in the future" (Joint Exhibits 9, 11, 

12, 13) . 

Superintendent Compton testified that under the respondent's 

chronic and absentee policy, absences due to illness documented 

by a doctor's excuse may still be considered AWOL absences in the 

case of employees who have chronic absentee records or who have 

failed to adhere to last chance agreements. He cited at least 

two employees who were suspended with intent to discharge for 

violations of the respondent's policy under circumstances similar 

to Mr. Mullins' case, and confirmed that no one has ever been 

discharged simply because of "being sick, but because of a combination of absences. Mr. Compton stated that the last chance 

agreement was discussed with Mr. Mullins and that he understood 

its conditions. 

Mr. Compton conceded that but for Mr. Mullins' absences on 

April 14 and 20, 1988, which placed him over the mine average, he 

would not have been discharged. After careful review of 

Mr. Compton's explanation of the respondent's absentee policy, 

l,9 7 5 
including the method used for calculating an employee's average 

rate of absences, I find it to be plausible and reasonable and I 

cannot conclude that it was applied arbitrarily in Mr. Mullins' 

case. I further conclude and find that Mr. Mullins understood 

the respondent's policy and ground rules concerning absenteeism, 

and his assertions to the contrary are rejected. 

On the basis of the record in this case, I conclude and find 

that Mr. Mullins had been subjected to repeated counselling 

concerning his absences, that the respondent had shown leniency 

towards him by not discharging him earlier, and that he entered 

into the last chance agreement knowing the risks and implications 

if he failed to adhere to the agreement. His failure to do so 

resulted in his suspension and discharge, and I conclude that the 

respondent's action in this regard constituted a reasonable 

exercise of its managerial authority over its workforce. I 

further conclude and find that the reason for Mr. Mullins' discharge was his failure to live up to his last chance agreement 

with the respondent, and that the respondent's motivation in 

discharging him had nothing to do with his insistence on making · 

ventilation checks or informing the inspector about a roof-bolt 

condition. As stated by the Commission in Bradley v. Belva Coal 

Company, 4 FMSHRC 982 (June 1982), citing its Pasula and Chacon 

decisions, supra, "* * * Our function is not to pass on the 

wisdom or fairness of such asserted business justifications, but 

rather only to determine whether they are credible and, if so, 

whether they would have motivated the particular operator as 

claimed." On the facts presented in Mr. Mullins' case, I conclude and find that the respondent's stated reason for discharging Mr. Mullins is both credible and reasonable in the 

circumstances presented. 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of a:l of the credible testimony and 

evidence adduced in this case, I conclude and find that 

Mr. Mullins has failed to establish that the respondent has 

discriminated against him or has otherwise harassed him or retaliated against him because of the exercise of any protected rights 

on his part. Accordingly, his complaint IS DISMISSED, and his 

claims for relief ARE DENIED. 

/~Fl!f ~o"ige/i..- Koutf~~ ti. It~ Administrative Law Judge 

1976 
Distribution: 

Jerry o. Talton, Esq., 222 East Main Street, Front Royal, VA 

22630 (Certified Mail) 

w. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, 

306 Piedmont Avenue, P.O. Box 2009, Bristol, VA 24203 

(Certified Mail) 

/fb 

1977 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HE.ALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

'Respondent 

OCT 4 1989 

. 

. 

. . 

. . 

. . 

: 

DECISION 

CONTEST PROCEEDINGS 

Docket No. PENN 88-284-R 

Order No. 28889021 7/14/88 

Docket No. PENN 88-285-R 

Order No. 28889031 7/14/88 

Greenwich Collieries 

No 2. Mine 

Mine ID 36-02404 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-72 

A.C. No. 36-02404-03740 

Greenwich Collieries 

No. 2 Mine 

Appearances: Joseph A. Yuhas, Esq., Greenwich Collieries, 

Ebensburg, Pennsylvania for Contestant/Respondent. 

Paul D. Inglesby, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Respondent/Petitioner. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

Contestant, Rochester & Pittsburgh Coal Company CR&P), has 

filed notices of contest challenging the issuance of Order 

No. 2888902 (Docket No. PENN 88~284-R) and Order No. 2888903 

(Docket No. PENN 88-285-R) at its Greenwich No. 2 Mine. The 

Secretary of Labor (Secretary> has filed a petition seeking civil 

penalties in the total amount of $2,200 for the violations 

charged in the above two contested orders. 

Pursuant to notice, these cases were heard in Pittsburgh, 

Pennsylvania on April 27, 1989. John L. Daisley testified for 

1978 
the Secretary. He was the only witness. After the Secretary 

rested, R&P moved that the two orders at bar be modified to 

citations issued under§ 104(a) of the Act and affirmed as such 

and that an appropriate civil penalty be assessed. I granted 

that motion on the record at the hearing. Pursuant to the Rules 

of Practice before this Commission, this written decision 

confirms the partial bench decision I rendered at the hearing as 

well as disposes of the remaining issues in the cases. 

Issues 

The issues presented in these proceedings are Cl) whether the 

conditions or practices cited by the inspector constitute 

violations of the cited mandatory safety standards, (2) the 

appropriate civil penalties to be assessed for the violations, 

taking into account the statutory civil penalty criteria found in 

section llO(i) of the Act; and (3) whether the violations were 

"significant and substantial." Additional issues include the 

inspector's "unwarrantable failure" findings with respect to the 

two contested section 104(d)(2) orders. 

Stipulations 

The parties have agreed to the following stipulations, which 

I accepted (Tr. 4-6): 

1. Greenwich Collieries is owned by Pennsylvania 

Mines Corporation and managed by Respondent Rochester 

and Pittsburgh Coal Company. 

2. Greenwich Collieries is subject to the 

jurisdiction of the Federal Mine Safety and Health Act 

of 1977. 

3. The Administrative Law Judge has jurisdiction 

over these proceedings. 

4. The subject Orders were properly served by a 

duly authorized representative of the Secretary of 

Labor upon an agent of the respondent at the dates, 

times and places stated therein, and may be admitted 

into evidence for the purpose of establishing their 

issuance, and not for th~ ~ruthfulness or relevancy of 

any statements asserted therein. 

5. The respondent demonstrated good faith in the 

abatement of the orders. 

1979 
6. The assessment of a civil penalty in this 

proceeding will not affect respondent's ability to 

continue in business. 

7. The appropriateness of the penalty, if any, 

to the size of the coal operator's business should be 

based on the fact that: 

a. The respondent company's annual 

production tonnage is 10,554,743~ 

b. And that the Greenwich Collieries No. 2 

Mine's annual production tonnage is 1,195,419. 

8. Greenwich No. 2 Mine was assessed 879 

violations over ·1,224 inspection days during the 24 

months preceding the issuance of the subject order. 

9. The parties stipulate to the authenticity of 

their exhibits, but not to their relevance, nor to the 

truth of the matters asserted therein. 

10. The respondent admits to at least a recording 

violation of 30 C.F.R. § 75.305 in each of the cited 

instances. 

Discussion 

R&P stipulated to the fact of violation concerning both of 

the orders at bar, at least insofar as a recording violation is 

concerned. Quite candidly, the company is also of the opinion 

that the examinations cited in these two orders were not in fact 

done. However, they were not willing to stipulate to that as a 

fact because they were unable to determine whether the 

examinations were or were not done. 

Section 104(d)(2) Order No. 2888902 was issued to the 

operator on July 14, 1988, cites a violation of 30 C.F.R. 

§ 75.305 and the condition or practice states as follows: 

The required weekly examination for hazardous 

conditions for P9 intake, P-9 right and left returns 

including bleeder rooms,· and the alternate escapeway 

from P-9 to P-20 for July 6, 1988, was recorded as 

being made by Joseph D. Mantini, mine examiner. 

However, an inspection of this area on 7-13-88 did not 

reveal any evidence, dates, times, and initials of the 

physical presence of the examiner in these areas. The 

last date of examination was 6-29-88-JM~ The person 

1980 
making such examinations and tests shall place his 

initials and the date and time at the place examined. 

Section 104Cd)(2) order No. 2888903 was likewise issued on 

July 14, 1988, cites a violation of 30 C.F.R. § 75.305 and 

alleges as follows: 

The required weekly examination for hazardous 

conditions for main S return from regulator to 23 

La Bour pump, alternate escapeway from 23 La Bour pump 

to T4, BE points in T2 and T-4 intake and return 

entries for July 7,1988, was recorded as being made by 

Joseph D. Mantini, mine examiner. However, an 

inspection of this area on 7-14-88 did not reveal any 

evidence of dates, times, and initials of the physical 

presence of the examiner in these areas. The last date 

of examination of these areas was 6-30-88 J.M. The 

person making such examinations and tests shall place 

his initials and the date and time at the places 

examined. 

Inspector Daisley testified that at the time he made his 

inspections of the above two cited areas, he could not find 

any times, dates or initials as evidence that the weekly 

examination for hazardous conditions was conducted for the week 

stated in the orders. This establishes in my mind a rebuttable 

presumption that the required inspections were not in fact done. 

This presumption is not rebutted in the record and therefore I am 

satisfied that the inspections were not accomplished and the 

Secretary has established the cited violations in both instances 

under consideration herein. 

Furthermore, the failure to examine the cited areas for 

almost two weeks when some of these areas were designated as 

alternate excapeways and could very well have been blocked by 

roof falls or accumulations of water is a very serious situation. 

Also, there could have been a dangerous undetected accumulation 

of methane which is a potential hazard for a mine fire or 

explosion. The inspector was of the opinion that this practice 

he cited with regard to the failure to examine significantly and 

substantially compromised the health and safety of the miners. I 

concur and find both of these proven violations to be significant 

and substantial violations of .. the cited mandatory standard and 

serious. See Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984). 

I disagree with the Secretary, however, on the issue of 

unwarrantability. Mr. Mantini, a rank-and-file miner was 

assigned the responsibility to examine the cited portions of the 

mine and as I found above, he did not perform the examinations. 

However, Mr. Mantini did certify that he had performed the 

1981 
examinations in the mine examiner's book and as the inspector 

testified, as far as the operator is concerned that entry would 

indicate tha·t Mantini had actually performed the examinations. 

The mine examiner's book was falsified, apparently by 

Mr. Mantini, and unbeknownst to the operator. 

Inspector Daisley very candidly admitted that in his opinion 

management was not aware of the violation and that they were, in 

effect, entitled to rely on the mine examiner's book. As far as 

management was concerned, the required examinations were done. 

The inspector also testified that in his opinion, excluding the 

intentional misconduct of Mr. Mantini, no other employee of R&P 

was in any manner negligent concerning this violation. 

In several decisions concerning the interpretation and 

application of the term "unwarrantable failure," the Commission 

has further refined and explained this term, and concluded that 

it means "aggravated conduct, constituting more than ordinary 

negligence, by a mine operator in relation to a violation of the 

Act." Emery Mining Corporation, 9 FMSHRC 1997 (December 1987); 

Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987); 

Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249 

(March 1988). 

The Secretary urges that the misconduct of Mantini be 

imputed to the mine operator in this instance because even though 

Mantini is a rank-and-file miner, he was given mine examiner 

status by the operator, at least for the limited period of time 

covering "miners vacation," and essentially became the operator 

while performing the certified mine inspections. 

In this case, Mantini's misconduct was willful and 

intentional. He did not perform the required examinations, he 

knew he did not, and yet he certified in the operator's official 

records that he had performed them. I have a lot of trouble with 

the idea that a rank-and-file employee's intentional misconduct 

is imputable to management as their own "aggravated conduct" 

when there is absolutely no evidence in the record that any 

member of mine management actually knew or even should have known 

that the examinations were not done. The inspector admitted as 

much. Therefore, I reject the notion that a rank-and-file 

miner's intentional misconduct is per se imputable to the 

operator simply because the ··ope.rater has appointed that 

individual to be a mine examiner. 

This case is reminiscent of that line of Commission 

precedent where it has been repeatedly held that an operator is 

liable for violations of the Act and the mandatory standards 

promulgated thereunder that are attributable to the 

"idiosyncratic and unpredictable" acts of its rank-and-file 

1982 
employees. I believe this language includes intentional 

violations committed by its employees, and R&P is responsible 

therefore for the two violations at bar. However, with regard to 

unwarrantability findings, I believe the requisite "aggravated 

conduct" must be the operator's conduct, not the rank-and-file 

miner's. For this reason, I modified the two§ 104(d)(2) orders 

at bar to citations issued under § 104(a) of the Act. 

For penalty assessment purposes, it is settled that 

rank-and-file employee negligence is not imputable to the 

operator. The operator's negligence in these instances must be 

determined by an examination of the operator's own conduct. 

Secretary of Labor v. Southern Ohio Coal Co., 4 FMSHRC 1459, 

1463-65 (August 1982). In this case, I find the evidence of 

operator negligence established in the record to be nil. 

On the basis of the foregoing findings and conclusions, 

including the Stipulations accepted herein, and taking into 

account the requirements of section llOCi> of the Act, I conclude 

and find that a civil penalty assessment of $450 for each of the 

two violations found herein is appropriate and reasonable. 

ORDER 

It is ORDERED that Order Nos. 2888902 and 2888903 be 

MODIFIED to § 104(a) citations. 

It is further ORDERED that the operator pay $900 within 30 

days from the date of this decision. 

urer 

ative Law Judge 

Distribution: 

Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 

Paul D. Inglesby, Esq., Office -of the Solicitor, u.s. Department 

of Labor, 3535 Market St., Room 14480, Philadelphia, PA 19104 

(Certified Mail) 

/ml 

1983 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 6 1989 

KENNETH HOWARD, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

B & M TRUCKING, 

Respondent 

DECISION 

Docket No. KENT 89-2-D 

BARB CD 88-56 

!.\lo. 2 Mine 

Appearances: Phyllis L. Robinson, Esq., Hyden, Kentucky for 

Complainant; 

W. Henry Lawson, Esq., Pineville, Kentucky for 

Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint of 

Kenneth Howard under section 105(c)(3) of the Federal Mine 

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

"Act," alleging unlawful discharge by the B & MTrucking 

Company, Inc., (B&M) in violation of section 105(c)(l) of the 

Act.~/ 

!I Section 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to 

this. Act because such miner, representative of 

miners or applicant for employment, has filed or 

made a complaint under or related to this Act, 

including a complaint notifying the operator or the 

operator's agent, or the representative of the 

miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or 

other mine or because such miner, representative of 

ininers or applicant for employment is the subject 

of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or 

because ·such representative of miners or applicant 

for employment has instituted or caused to be 

instituted any proceedings under or related to this 

Act or has testified or is about to testify in any 

such proceeding, or because of the exercise Dy such 

miner, representative of miners or applicant for 

employment on beh~lf of h~msel~ or others of any 

statutory right atforded oy this Act. 

1984 
Counsel for Mr. Howard preliminarily claimed that 

Mr. Howard was fired on August 10, 1988, because he had 

requested training on a front-end loader he was directed to 

operate as an employee of B&M and because he later complained 

that he had not received such training.2/ However in his 

testimony at hearing Howard denied any iuch claims. Howard 

further admitted at hearing that when he first reported for 

work as a truck driver for B&M, Mitch Sturgill, the President 

of B&M, told him that it would be necessary for him to load 

the coal himself with the front-end loader and that he told 

Sturgill, that he would try. Howard further concedes that he 

never complained to anyone about health or safety concerns 

and admits that he never even "came close to" injuring anyone 

while operating the front-end loader. Howard maintains only 

that he told Sturgill that he was "having trouble" operating 

the loader and, after three weeks 0n the job, told Sturgill 

that he would no longer operate the loader.~/ 

Sturgill testified that when he first telephoned Howard 

about working as a truck driver for E&M he told him "we have 

to load our own coal". This was required under the B&M 

haulage contract and, accoraing to Sturgill, it is not 

unusual in eastern Kentucky for the truck drivers to have to 

load their own coal with a front-end loader. Indeed Howard's 

father-in-law had been working as a truck driver for B&M 

before Howard was hired and had been loading his own coal in 

this manner. It is clear from this evidence then that Howard 

knew when he was hired that his dutied included operating a 

front-end loader. According to Sturgill, Howard told him 

before he was hired that he could "run a loader" and 

commented only that he was "not the best". Indeed Sturgill 

2/ There is evidence that the Complainant did in fact 

proviae information to the Federal Mine Safety and Health 

Administration leading to the issuance by that agency of a 

citation to B&M for failing to provide safety task training 

to Howard. However it is clear that that report was made 

subsequent to the discharge here at issue. It is accordingly 

not relevant to these proceedings. 

3/ While Sturgill thought that Howard may have complained 

about his exposure to coal dust while operating the loader, 

Howard maintains that he only complained about the dust to 

"Skeeter", an employee of Four-Aces Coal Company, who would 

then spray the coal with water to keep the dust down. In any 

event is is clear within the evidentiary framework of this 

case that no retaliatory motive was based upon any such 

complaint. 

1985 
later observed Boward loading his truck and found that he did 

a "good job" and was "normal" but a "little slower". Howard, 

who claimed at hearing that he had never previously operated 

a loader, admitted that he never asked any questions about 

how to operate the loader even though Sturgill was present 

when he began work. 

After three weeks of loading his own coal Howard 

suddenly refused to continue and Sturgill himself then loaded 

the trucks for 4 1/2 days. Around this time Sturgill also 

found that Howard was spilling large amounts of coal from his 

truck onto the public hignway and was not cleaning it up. 

This was in violation of B&M's contract and resulted in a 

loss to B&M of one-half day of work while it was cleaned up. 

According to Sturgill, continued spillage could have resulted 

in the termination of the B&M haulage contract. Sturgill had 

previously warned his drivers, including Howard, that they 

were responsible for cleaning up their own spillage. 

Sturgill testified that he decided to fire Howard at 

this time because of Howard's failure to clean up his coal 

spillage and because of his refusal to load his own truck. 

Sturgill testified that he could not afford at that time to 

hire a separate loader operator. I find Sturgill's testimony 

in this regard to be credible. 

The credible evidence shows that Howard did not refuse 

to operate the loader until three weeks after he began 

working and then, by his own admission, simply refused to 

operate it because he was "having trouble". Howard admits 

that he never asked for training and it did not appear to 

Sturgill that he needed it. Accordingly I cannot find that 

either a safety or a health related complaint was made in 

connection with the operation of the loader. Moreover since 

no health or safety related basis for a "work refusal" was 

ever communicated to any agent of the operator, the 

Complainant could not in any event sustain his burden of 

proving that he engaged in a protected work refusal. 

Conaster v. Red Flame Coal Co., Inc., 11 FMSHRC 12 (1989). 

See also Sim~son v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988) and 

Sammons v. Mine Services Co., 6 FMSHRC 1391 (1984). Indeed 

Mr. Howard has in this case failed to sustain his burden of 

proving that he engaged in any activity protected by the Act 

and his case must accordingly be dismissed. 

1986 
ORDER 

Discrimination Proceeding Docket No. KENT 89-2-D is 

DISMISSED. 

Distribution: 

Phyllis L. Robinson, 

(Certified Mail) 

\./-

ick 

Admini trative Judge 

(703) 7 6-6261 I 

Esq., P.O. Bo~ 952, Hy~~n, KY 41749 _I 

W. Henry Lawson, Esq., P.O. Box 449, Pineville, KY 40977 

(Certified Mail) 

nt 

1987 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OCT 10 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF HARRY RAMSEY, 

Complainant 

v. 

INDUSTRIAL CONSTRUCTORS CORP., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 88-246-DM 

MD 87-51 

Colosseum Mine 

DECISION 

Appearances: Norman J. Reed, Esq. and Nathaniel J. Reed, Esq. 

Las Vegas, Nevada, 

for Complainant1 

William T. Murphy, Esq., Washington Corporations, 

Missoula, Montana, 

for Respondent. 

Before: Judge Morris 

This case involves a discrimination complaint originally 

filed by the Secretary of Labor on behalf of complainant pursuant 

to the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq. 

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

in Las Vegas, Nevada on January 31, 1989. The issue of attorney 

fees was reserved for a later date. 

In an interim order issued August 2, 1989, published at 

11 FMSHRC 1585, the presiding judge found in favor of complainant. 

The interim order provided: 

1. For the reinstatement of complainant. 

2. For back pay with interest from August 13, 1987, 

until complainant was reinstated. 

3. The parties were further directed to stipulate, if 

possible, on the issue of 'the amount of damages and attorney fees. 

If the parties could not agree then a hearing would be held on 

October 24, 1989. 

1988 
On October 4, 1989, the parties filed a document entitled 

"Stipulation On Damages." The document reads as follows: 

·The undersigned parties to Mining Safety and 

Health Administration Docket No. WEST 88-246-DM 

involving Harry Ramsey and Industrial Constructors 

Corporation (hereinafter ICC) stipulate and agree 

to certain facts for purpose of settling the record 

on the amount of Mr. Ramsey's past, present and 

future damage claim. This agreement pertains to 

amount only and is not an agreement as to entitlement thereto. 

Both parties preserve the right to appeal, and 

do not waive their right to contest the issues in 

the case, except that if ICC's liability to pay 

wages for any time period is affirmed in any appeal, 

the damages are set as follows: 

1. Mr. Ramsey has waived reinstatement, and 

the parties agree that Mr. Ramsey declined reinstatement as of August 31, 1989, and that Mr. Ramsey's 

wage loss stopped accruing on that date. 

2. The night shift at the Colosseum Mine 

terminated September 25, 1987, and thus the wages 

stated herein are divided into wages loss accumulated before said date and losses accumulated 

after said date. Wages before said date include 

overtime. 

3. Mr. Ramsey's wage loss from August 13, 

1987, to September 25, 1987, if affirmed, is: 

a. $2,631.01 in regular time wages, 

after payroll deductions. 

b. $943.23 in overtime wages, after 

payroll deductions. 

c. $709.71 in interest to August 31, 

1989, on regular time and overtime 

wages. 

d. $226.00 in 40l(k) payments. 

1989 
4. ICC's liability from September 25, 1987, 

to August 31, 1989, if affirmed, is: 

a. $37,137.00 in regular time wages, 

after payroll deductions. 

b. $3,408.00 in interest to August 31, 

1989, on regular time wages. 

c. $2,994.00 in 40l(k) payments. 

5. Attorney fees are set in the amount of 

$15,375.00 for attorney fees up to September 27, 

1989. Any fees incurred by Mr. Ramsey in an 

appeal or post trial work after September 27, 1989, 

shall be in addition to the above, if the court 

or Review Board allows said fees. 

6. Mr. Ramsey's trials costs are $1,556.00. 

7. Interest accumulated on the above amounts 

after August 31, 1989, will be added to the above 

amounts up to time of collection, if allowed by 

the Court or Review Board. 

Based on the record herein and the stipulation filed 

October 4, 1989, I hereby enter the following: 

ORDER 

1. The order reinstating complainant heretofore entered by 

the presiding judge is vacated. 

2. Respondent is ordered to pay to complainant the following amounts for lost wages and interest: 

a. For the period from August 13, 1987, to 

September 25, 1987, the total sum of $4,509.95. 

b. For the period from September 25, 1987, 

to August 31, 1989, the sum of $43,539.00. 

3. Respondent is further ordered to pay to complainant 

the sum of $15,375.00 as and for attorney fees incurred by 

complainant until and including September 27, 1989. 

1990 
4. Respondent is further ordered to pay to complainant 

the sum of $1,556.00 as and for trial costs. 

5. After August 31, 1989, interest shall accrue on the 

above amounts until paid at such rates as may be published by 

the Executive Director of the Commission. 

6. The hearing scheduled in Las Vegas, Nevada for 

October 24, 1989, is cancelled. 

7. This is a final decision and order pursuant to Fed. 

R. Civ. P. 54(b). 

Law Judge 

Distribution: 

Nathaniel Reed, Esq., Norman Reed, Esq., 1405 South Maryland 

Parkway, Las Vegas, NV 89104 (Certified Mail) 

William T. Murphy, Esq., Washington Corporations, 101 International Way, Missoula, MT 59902 (Certified Mail) 

/ot 

1991 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

OCT 16 1989 

DECISION 

CONTEST PROCEEDING 

Docket No. WEVA 88-144-R 

Order No. 2895540; 1/27/88 

Martinka No. 1 Mine 

Mine ID 46-03805 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-212 

A.C. No. 46-03805-03852 

Martinka No. 1 Mine 

Appearances: Joseph T. Crawford, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Respondent/Petitioner; 

David A. Laing, Esq., Porter, Wright, Morris & 

Arthur, Columbus, Ohio, for Contestant/Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

Contestant, Southern Ohio Coal Company CSOCCO), has filed a 

notice of contest challenging the issuance of Order No. 2895540 

at its Martinka No. 1 Mine. The Secretary of Labor (Secretary) 

has filed a petition seeking civil penalties in the total amount 

·of $1700 for the violations charged in the aforementioned 

contested order as well as the unrelated, uncontested§ 104(d)(2) 

Order No. 2895348 which was also issued on January 27, 1988. 

At the hearing on these cases, which was held on June 28, 

1989, in Morgantown, West Virginia, the parties jointly moved for 

approval of their settlement of that portion of the civil penalty 

case that pertained to Order No. 2895540. I approved a reduction 

from $900 to $500 of that part of the civil penalty assessment 

and granted the motion on the record (Tr. 4-7). That settlement 

proposal, once approved, effectively mooted out the contest 

proceeding docketed at WEVA 88-144-R. 

1992 
The aforementioned partial settlement did not include Order 

No. 2895348, which alleges a violation of 30 C.F.R. § 75.1403-9Ca) 

and proposes a civil penalty of $800. That alleged violation was 

tried before me at the hearing on June 28, 1989. 

The general issues before me concerning this remaining order 

and its accompanying civil penalty proposal are whether the order 

was properly issued, including an examination of the validity of 

the underlying notice to provide safeguards, whether there was a 

violation of the cited standard, and, if so, whether that 

violation was "significant and substantial", and caused by the 

"unwarrantable failure" of the mine operator to comply with that 

standard. Additionally, should a violation be found, an 

appropriate civil penalty must be assessed. 

Order No. 2895348, issued pursuant to§ 104(d)(2) of the 

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

violation of the regulatory standard at 30 C.F.R. § 75.1403-9(a) 

and charges as follow3: 

A shelter hole is not provided along the E4 section 

supply track for a distance of 170 feet when measured. 

The area is between No. 1 block and No. 3 block. 

Overcast walls are in the crosscut3 left and right of 

the track. Notice to provide Safeguard was issued 

No. lJF 5/23/75. 

Notice To Provide Safeguard No. lJF, issued on May 23, 1975, 

states in pertinent part: 

Shelter holea are not provided at 105 foot intervals on 

the 1 Left section supply track for a distance of 400 

feet. 

Shelter holes shall be provided on all track haulage roads 

in this mine. 

Both parties have filed post-hearing proposed findings of 

fact and conclusions of law, which I have considered along with 

the entire record herein. I make the following decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accept: 

1. SOCCO and its Martinka No. 1 Mine are subject 

to the provisions of the Federal Mine Safety and Health 

Act oE 1977. 

1993 
2. This administrative law judge has jurisdiction over 

these proceedings pursuant to Section 105 of the Act. 

3. Order No. 2895348 was properly served by a 

duly-authorized representative of th~ Secretary on the date 

reflected therein. 

4. SOCCO is a large operator, and the assessment of a 

civil penalty in this proceeding will not affect SOCCO's 

ability to remain in business. 

5. The alleged violation set forth in Order 

No. 2895348 was abated in good faith by SOCCO. 

FINDINGS OF FACT 

1. Order No. 2895348 was issued on January 27, 1988, by 

Inspector Charles J. Thomas du:ring a AAA inspection of the 

Martinka No. 1 Mine. 

2. Inspector Thomas observed, representatives of SOCCO 

essentially admitted, and I so find as a fact that shelter holes 

had not been provided every 105 feet along the E-4 Section supply 

track haulage. More particularly, the inspector located an area 

along that track haulage, 170 feet in length, that did not 

contain a shelter hole. 

3. On May 23, 1975, a notice to provide safeguards was 

issued for this mine concerning shelter holes. This safeguard 

essentially stated that shelter holes shall be provided on track 

haulage at intervals of not more than 105 feet. 

4. Inspector Thomas has inspected approximately 30 

underground coal mines during his 20 year tenure as an MSHA 

inspector. Of these 30 underground coal mines, approximately 21 

utilize track haulage. All of these 21 mines have a safeguard 

requiring that shelter holes be located every 105 feet on the 

track haulage. Inspector Thomas could not recall any underground 

coal mine with track haulage that did not have a safeguard 

requiring shelter holes every 105 feet. 

5. A similar safeguard requiring shelter holes every 105 

feet on track haulage has been issued at SOCCO's Meigs No. 1, 

Meigs N.o. 2 and Raccoon No. 3 mines located in Ohio. In 

addition, a similar safeguard has been issued at the Windsor Coal 

Company in Moundsville, West Vir~inia. Windsoc Coal Company, 

like SOCCO, is part of the American Electric Power system. 

1994 
DISCUSSION 

The Secretary bears the burden of proof to demonstrate that 

the violation occurred as alleged in the instant order. 

Since this is a "safeguard" case, SOCCO arg~es that that 

burden includes establishing the validity of the underlying 

safeguard at issue. I agree. Secondly, given that burden, SOCCO 

argues that the Secretary has failed in this instance to 

demonstrate the validity of Safeguard No. lJF in that there is no 

evidence in this record that the safeguard was issued because of 

any peculiar circumstance or configuration existant in the 

Martinka No. 1 Mine. To the contrary, the operator states that 

the record evidence clearly demonstrates that the subject 

safeguard has been issued in a blanket manner at every 

underground coal mine that utilizes track haulage. 

If the safeguard is not valid, then the section (d)(2) order 

which purports to enforce it would likewise be invalid. 

30 C.F.R. §§ 75.1403-2 through 75.1403-11 set out the 

criteria by which an MSHA inspector is guided in imposing 

safeguards on a mine-by-mine basis under section 75.1403, which 

repeats section 314(b) of the Act. These criteria are not 

enforceable as mandatory standards but become enforceable when 

the operator is issued a notice to provide safeguards. 

Section 314(b) of the Act grants the Secretary the 

extraordinary authority to essentially create mandatory safety 

standards on a mine-by-mine basis without resorting to the normal 

rulemaking procedures contemplated by the Act. Normally, 

mandatory safety standards are developed and promulgated in 

accordance with section 101 of the Act and the rule-making 

provisions contained in the Administrative Procedure Act, 

5 u.s.c. § 551, et seq. SOCCO maintains that the requirements 

set forth in the instant safeguard should have properly been the 

subject of such rule-making, rather than a safeguard notice 

issued under section 314(b) of the Act, inasmuch as the safeguard 

was not issued on a mine-by-mine basis and not due to any 

particular circumstances or configuration of the Martinka mine. 

In Southern Ohio Coal Company, 10 FMSHRC 963 (August 1988), 

the Commission discussed the issue of the general application of 

safeguards, but declined to rule on the specific issue of whether 

a safeguard of general applicability could pass muster and be 

enforceable under the Act, due to the inadequacy of the trial 

record before it in that case. 

~he identical issue resurfaces repeatedly at the trial level 

and is the major issue before me in the instant case. 
Subsequent to that Commission decision, Commission Judge 

Weisberger, in Southern Ohio Coal Co., 10 FMSHRC 1564 (November 

1988) vacated a citation alleging a safeguard violation because 

of the Secretary's failure to establish that the underlying 

safeguard was mine-specific to the Martinka No. 1 Mine. 

Similarly, in Beth Energy Mines, Inc., 11 FMSHRC 942 (May 

1989) Commission Judge Melick vacated a citation premised on a 

safeguard violation when he held that safeguards cannot be used 

to impose general requirements on all mines throughout a district 

without regard to the circumstances of the specific mines. 

Conversely, Judge Melick noted that MSHA may legitimately use 

safeguards to "impose requirements on an operator on a 

mine-by-mine basis subject to the specific conditions and 

requirements necessitated by the peculiar circumstances at a 

particular mine". Id. at 948. 

See also, U.S. Steel Mining Co., Inc., 4 FMSHRC 526 (March 

1982) where Commission Chief Juage Merlin vacated a similar 

citation on the basis that the underlying safeguard had nothing 

to do with the conditions peculiar to that mine as opposed to 

all other mines. 

In this case, Inspector Thomas testified that he cannot 

recall a single instance where an underground coal mine that 

utilizes track haulage does not also have a safeguard requiring 

shelter holes every 105 feet along that track haulage. 

Furthermore, all of the approximately 21 underground coal mines 

that he personally has inspected that have track haulage also 

have this same safeguard requiring shelter holes every 105 feet. 

Moreover, similar safeguards requiring shelter holes every 

105 feet along track haulage have also been issued at SOCCO's 

Meigs No. 1, Meigs No. 2 and Raccoon No. 3 mines in southern Ohio. 

Additionally, a similar safeguard has also been issued to the 

windsor Coal Co.mpa.11y, in West Virginia. 

The evidence in this case could hardly be stronger that the 

safeguard at bar as well as those widespread similarly worded 

saf eguardd that apparently are prevalent thoughout the industry 

are issuea without regard to the conditions at any particular 

mine as long as that mine has track haulage. For all intents and 

purposes, these safeguards are an across-the-board mandatory 

safety standard requiring shelter holes every 105 feet along 

track haulage, period. If that is what the Secretary believes is 

necessary in the interest of mine safety, and it may very well be 

an essential rule, then it is incumbent upon her to promulgate 

that standard in accordance with the rule-making procedures 

contained in Section 101 of the Act. 

1996 
The Secretacy clearly has the burden of proving every 

element of her case necessary to establish the violation alleged 

and I believe that includes the validity of the underlying 

safeguard in this type of a case which involves enforcing a 

safeguard. 

I conclude that in this case, the Secretary has failed to 

demonstrate that Safeguard No. lJF was issued on a "mine-by-mine" 

basis and more particularly, has failed to demonstrate that it 

was issued at the Martinka No. 1 Mine because of any peculiar 

circumstances or physical configuration of that mine. The 

safeguard had nothing whatsoever to do with conditions peculiar 

to that mine as opposed to other mines that also have track 

haulage. For these reasons, I find it to be an invalid 

safeguard. 

Therefore, I find that Order No. 2895348, being based on an 

invalid safeguard, was improperly issued and must be vacated. 

ORDER 

Based on the above findings of fact and conclusions of law, 

and on the motion to approve settlement, IT IS ORDERED ·rHAT: 

1. Order No. 2895540 is MODIFIED to a Section 104Ca) 

citation. 

2. Order No. 2895348 is VACA'rED. 

3. Docket No. WEVA 88-144-R is GRANTED in part insofar as 

it contests the finding of unwarrantability in Order No. 2895540. 

4. The Southern Ohio Coal Company pay a civil penalty of 

$500 within 30 days of the date of this decision for the 

violation found in Citation No. 2895540. 

1997 

,:) /~ ,f '1· I ~t..jl V (/ ·. t\;u,1!VV 

Roy J .''.Maurer 

Adminijt~ative Law Judge 
Distribution: 

David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 s. High 

St., Columbus, OH 43215-3406 (Certified Mail) 

Joseph T. Crawford, Esq., U.S. Department of Labor, Office of the 

Solicitor, 14480 Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

/ml 

1998 
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. 

OCT 171989 

BETH ENERGY MINES INCORPORATED, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-304 

A. C. No. 36-00958-03739 

Livingston Portal Eighty 

Four Complex 

Appearances: Anita Eve, Esq., Office of the Solicitor, u. s. 

Department of Labor, Philadelphia, PA, for the 

Secretary; 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this proceeding, the Secretary (Petitioner> seeks a civil 

penalty for an alleged violation by the Operator (Respondent) of 

30 C.F.R. § 75.316. A Petition for Assessment of Civil Penalty 

was filed on September 23, 1988, and Respondent filed its Answer 

on September 30, 1988. On March 28, 1989, the case was set for 

hearing on June 21 - 22, 1989. Pursuant to a telephone conference 

call on April 6, 1989, between the undersigned and attorneys for 

both Parties, a hearing in this matter was rescheduled for 

August 1 - 3, 1989. 

On April 10, 1989, Petitioner filed a Motion to Reopen 

Discovery, and on April 12, 1989, Respondent filed its response 

in opposition. The Motion was granted by Order of April 25, 

1989. 

Subsequently the case was heard on August 1 - 2, 1989, in 

Johnstown, Pennsylvania. James High, Alvin Shade, Lorenzo 

Steele, and- Richard Zilka testified for Petitioner. Steve 

Carson, Bruce Sheets, Thomas Mucho, George Kupar, David Morris, 

Dale ~nders, and Michael Error testified for Respondent. 

1999 
The Parties were granted time to file proposed Findings of 

Fact and Briefs 3 weeks subsequent to the receipt of the Hearing 

Transcript •. The official Transcript was filed on August 17, 1989. 

Respondent filed its Brief on September 11, 1989. Petitioner was 

granted an extension until September· 20, 1989, to file its Brief, 

but none was filed. 

Stipulations 

1. At all times pertinent to these proceedings, Beth Energy 

Mines, Incorporated was the owner and operator of an underground 

coal mine known. as the r ... ivingston Portal, Eighty-Four Complex 

located in Washington County, Pennsylvania. 

2. Beth Engergy's mining operations affect Interstate 

Commerce. 

3. Beth Energy is a large operator and the subject mine is 

also a large mine. 

4. In the 24 months proceeding the issuance of the subject 

citation there were 1,022 violations cited in the subject mine. 

5. The ability of Beth Energy to remain in business will 

not be affected by the assessment of a penalty in this case. 

6. As noted on Government Exhibit Number Two A, the 

Livingston Portal Bighty-Four Complex had been under a 104Cd)C2> 

change since October 7, 1987, and that at the time of .the 

issuance of the order in this case on May 3, 1988, there had not 

been a completed inspection prior thereto. 

Findings of Fact and Discussion 

I. 

On May 3, 1988, the approved ventilation plan at Respondent's 

Livingston Portal Eighty-Four Complex, as evidenced by Government 

Exhibit 3 and Exhibit 0-3, required that air in the return entry be 

coursed in the proper direction, and air that had been used to 

ventilate old workings not be used to ventilate the active workings 

of the section. At 9:15 a.m. on May 3, 1988, James High, an MSHA 

Inspector, tested the ventilation of a transformer Cload or power 

center) located between the cross cut and the No. 2 Entry. The 

transformer was to be ventilated by a tube, 4 to 6 inches in 

diameter, which was to ventilate the air from the transformer to 

~o. 4 Entry. When High performed a chemical smoke cloud test, he 

observed that the cloud "blowed back out" (August 1, 1989, Vol. I), 

Tr. 29), rather than being drawn in toward the tubing. High's 

testimony has not been contradicted by ~espondent's witnesses, and 

2000 
was corroborated by Alvin Shade, an MSHA Inspector, who was present 

with High and agreed that there was return air going .to the face. 

Further, Lorenzo Steele, a coal mine inspector supervisor, was also 

present and observed a reversal of the air. In addition, Bruce 

Sheets, a longwall foreman employed by Respondent, who testified on 

Respondent's behalf, also observed the reversal of air. Thus, I 

conclude that Respondent herein did violate its ventilation plan, 

and hence did violate 30 C.F.R. § 75.316. 

II. 

Significant and Sμbstantial 

According to High, because of the reversal of the air flow 

from the transformer and battery changer to the longwall section, 

should there be a fire at the former location, it would be "reasonably likely" for smoke to go to the longwall section. He 

indicated that the battery changing station and the transformer 

are ignition sources. He concurred that he was concerned that if 

anything happened to the batteri charger or transformer, smoke 

could be generated which would go to the face. However, he 

agreed that these items were "in good working order" (Vol. I, 

Tr. 81). Further, the uncontradicted testimony of Thomas Mucha, 

the manager of Respondent's operations at the subject mine, indicates that carbon monoxide from a fire at the area in question 

would "probably" pass by sensors at the tail piece of the longwall. (August 2, 1989, (Vol. II), Tr. 52). (The sensors are 

designed to produce a warning or alarm.) 

Alvin Shade, an inspector who was present with High, essentially corroborated High's testimony,_ but did not elaborate oh 

the likelihood of a fire occurring. Lorenzo Steele, an MSHA 

Supervisor who also was present during High's inspection, 

indicated that methane readings as high as 9/10 of 1 percent were 

detected outby the regulator in the No. 4 entry, and there was 

coal dust and respirable dust present. He stated that at any 

time the methane in the area at issue could increase, .as on two 

prior occasions the subject mine had to be closed down due to a 

high level of methane. He indicated that he would have issued a 

withdrawal order based on an imminent danger. I find that at 

most Steele's testimony establishes that an increase in methane 

could have occurred, but it does not establish that it was 

reasonably likely to have done so. Further, based on Mucho's 

testimony, it appears that methane in the area in question, that 

is brought to the face by an air reversal, would be exceedingly 

diluted by the volume of air at the face (Vol. II, Tr. 57). 

Thus, the likelihood of injuries appears to be mitigated. 

2001 
Richard Zilka, a ventilation specialist employed by MSHA, 

indicated that the battery charger produces noxious gasses and 

hydrogen which as a consequence of the air reversal, would go to 

the face. However, there was no evidence presented as to the 

quantities of these elements, and their specific impact if any on 

the air at the face. 

I find that there is insufficient evidence presented by 

Petitioner to conclude that the production of smoke or fire was 

reasonably likely to occur. The record also is lacking with 

regard to a description of the types of injuries which could 

reasonably be expected from the violation herein. Thus, I find 

that it has not been ~stablished that the violation herein was 

significant and substantial (See, Mathies Coal Co., 6 FMSHRC 1 

(1984)). 

III. 

Unwarrantable Failure 

Some time prior to the issuance of the order in question, 

Respondent decided to cut through three entries to connect the 

4 left panel with the 3C longwall panel. This connection 

(cut-through) was made in order to experiment with certain 

10 foot pillars, and to shorten the left split return in the 

4 left section. By May 2, 1988, in the evening shift, two 

entries had already been cut through to the 3C longwall panel. 

At approximately 7 to 8 p.m., on May 2, the last entry was cut 

through and curtains were installed. At that time air and 

methane readings were taken in the left and right splits of the 

4 left return, and according to Steve Carson, the section foreman 

there was nothing unusual. Robert Merasoff, who was the longwall 

foreman, for the 4 p.m. to midnight shift on May 2, in the 

SA longwall panel, indicated in a deposition taken on July 12, 

1988, C~xhibit 0-S), that he was not aware of the cut-through. 

Merasoff indicated that, in a preshift examination, the air 

current was moving in its proper course and was of the usual 

volume. He also indicated that he examined the battery and power 

center and did not recall any problem. Further, examinations of 

the tubing with a crumbled piece of chalk, both on preshift and 

on-shift, indicated that air was traveling in the proper course. 

David Morris, the section foreman on the SA longwall for the 

midnight shift, May 3, 1988, indicated that he did not test the 

air going through the tubes. He indicated that he just walked by 

the battery and power center, and did not recall anything unusual. 

Bruce Sheets, Respondent longwall foreman for the SA panel on the 

morning of May 3, could not recall if he tested the air at the 

power center and battery prior to the time High issued the order 

at issue. 

2002 
In essence, according to High, the violation herein is to be 

considered to be as a result of Respondent's unwarrantable 

failure, inasmuch as after the connection between the 4 left and 

3C areas was made, Respondent should have checked the air at all 

areas to be affected, including the regulator for the 5A longwall 

panel. 1/ In this connection, he indicated that George Kupar, 

Respondent's inspection coordinator, who accompanied him on the 

inspection, on May 3, indicated to him essentially that the 

cut-through had made an imbalance in the air, and had caused air 

to go from the 3C section across the 4 left area to the 

5A longwall panel. ~/ 

Richard Zilka, a Federal Coal Mine Inspector Ventilation 

Specialist employed by Petitioner, opined that the ventilation in 

the 4 left area is "delicate" as it abuts the 5A longwall section. 

(Vol. I, Tr. 181). Hence, according to Zilka, if the regulator 

for the right split of the 4 left panel is "satisfied" (Vol. I, 

Tr. 182) by the amount of air it is adjusted for, then air from 

the No. 4 Entry can not go that way, and instead will go by the 

most available way to the fan which is back through the tube in 

the No. 2 Entry at the battery and power center. He asserted 

that accordingly, if there is a ventilation change in the 4 left, 

such as a cut-through, there should be an examination afterwards 

in the 5A panel to make sure that there are no ventilation 

changes in that area. He indicated that because the 4 left area 

and 5A longwall panel are so close, it was "negligence" CVol. II, 

Tr. 154) not to note that any increase in the ventilation in the 

right split of the 4 left area would affect the regulator for the 

5A longwall panel.) He opined that the reversal of the air in 

the tube in question was caused by some ventilation change in the 

vicinity and possibly, by the cut-through. 

In order to find that the violation herein resulted from 

Respondent's unwarrantable failure, it must be established that 

there was "aggravated conduct" on the part of Respondent, which 

is more than ordinary negligence (Emery Mining Corp., 9 !!'MSHRC 

1997 (1987)). After considering the record as a whole, based on 

the reasons that follow, I conclude that Petitioner has not met 

this burden.~/ 

1/ The preshif t examination normally did not include the 

~egulator for the SA longwall. 

~/ When Kupar was asked whether he had· made the statement, he 

answered "I do not believe so" (Vol. II, Tr. 98). Based on 

observation of the witness' demeanor, I accept High's version. 

~/ In light of this conclusion, it is not necessary to decide 

Respondent's Motion for Swmnary Decision which was made at the 

conclusion of Petitioner's case, and as to which I had reserved 

decision. 

2003 
A material issue to be decided is whether there was any 

aggravated conduct on the part of Respondent in not checking the 

tubing and the SA longwall regulator after ventilation changes, 

occasioned by the completion of the connection on the evening of 

May 2, 1988, and the removal of two stoppings CB and B in 

Exhibit 0-2) on the midnight shift of May 3. Also, according to 

Thomas Mucho, who was the mine manager at the subject 84 Complex, 

the violative condition was abated upon the removal of the two 

old partial block stoppings in the 4 left panel. Hence, it also 

must be decided whether there was any aggravated conduct on the 

part of Respondent in not having removed these stoppings previously upon completion of the connection and removal of stoppings 

labeled E and B on Exhibit 0-2. 

According to Mucha, who has a Bachelor of Science Degree in 

Mining Engineering, he has experience as an engineer in mines in 

the area of ventilation, and oversees the drawing up of the ventilation plans for the subject mine. Mucha indicated that prior to 

the report to him of the air reversal in the tubing in question, 

he did not anticipate that the completion of the connection and 

the removal of the stoppings E and B in the 4 left panel area 

would have caused any affect at the regulator for the 9o. 4 entry 

of the SA longwall section, and thus did not assign anyone to 

check the air there. Specifically, he indicated that he did not 

anticipate that the completion of the connection, and the removal 

of the old stoppings E and B would have caused any air reversal 

at the tubes in question. He indicated that his lack of concern 

was based upon an assumption that, because of the close proximity 

of the SA longwall section to the intake shaft as opposed to the 

distance of the 4 left area to the shaft, there would be more 

pressure in the SA longwall section as compared to the 4 left. 

He was of the opinion that if the pressure would be less at the 

regulator labeled GG on Exhibit 0-2, as a result of the removal 

of the old partial stoppings, air would be expected to go through 

that regulator from the SA longwall panel and not from the 4 left 

panel. In this connection, Mucho indicated that on May 2, he did 

not feel any air change on either side of the partial stoppings, 

and concluded that there was no pressure drop and that these old 

partial stoppings were not affecting the system. On May 2, he 

was of the opinion that the ventilation changes in the 4 left 

area would not have any affect on these stoppings. ~/ 

4/ Mucha indicated, in essence, that he considered them to be 

~needless resistance" (Vol. II, Tr. 75) in that they decreased 

efficiency and hence caused an increase in production costs. He 

said that he would have knocked them down, on May 2, if he had a 

sledge hammer, but that other matters that he was concerned with 

were on his mind. 

2004 
Petitioner did not, upon cross-examination, elicit from 

Mucha any admission which would tend to indicate that the assumptions he made were not proper or reasonable. Nor did Petitioner 

adduce any evidence which_would tend to indicate that the assumptions Mucha made were not prudent mining practices. 

Dale ~. Anders, Respondent's chief longwall foreman, indicated that when he was informed of the reversal, on the date in 

question, he checked the ventilation at the load center and it 

was "fine," (Vol. II, Tr. 120), and also the air in the opposite 

end in the No. 4 Entry was "fine." {Vol. II, Tr. 121). He 

indicated that when he checked 10 minutes later, the air direction had reversed. Petitioner's witnesses essentially agreed 

that the air direction at the tube did fluctuate. Neither High 

nor Shell nor Sheets was able to establish how often the air 

reversed itself. Neither High nor Shell established the duration 

of the air reversal and when it initially commenced. Accordingly, 

had the air at the No. 4 Entry of the SA longwall panel regulator 

or the tubing in question been checked in the midnight shift of 

May 3, or the morning shift of that date, there is no certainty 

that such an examination would have uncovered the reversal, as the 

air direction fluctuated. Also, the evidence does not establish 

either the frequency or duration of the fluctuation. Taking into 

account all the above, I conclude that it has not been established 

that Respondent exhibited any "aggravated conduct" in connection 

with the violation herein. 

IV. 

In essence, Michael Error, Respondent's ventilation foreman 

who planed the connector (cut-through), indicated, in looking at 

the results of the air reversal in the tube in question, that he 

would agree that once the permanent stoppings were removed, the 

old partial stoppings on May 3, were acting as regulators. Also, 

in essence, Mucha indicated that once he became aware of the air 

reversal, he concluded that it was caused by the effect of the 

old partial stoppings once the two permanent stoppings had been 

removed. Accordingly, I find that Respondent was negligent to a 

moderately high degree, as it should have known that the removal 

of the old stoppings would have had an impact on the ventilation 

in the 4 left area, and would have caused the reversal in 

question. 

According to High, methane readings in the area in question 

were between .3 to .9, and Steele observed dust going down No. 4 

Entry. An air reversal could have brought these hazards as well 

as noxious gases produced by the battery to the face. According 

to Mucho's uncontradicted testimony, any methane so drawn to the 

face would be diluted by the 40,000 cubic feet per meter air flow 

2005 
at the face, and thus would be "imperceptible." ·(Vol. II, 

Tr. 57) There is no evidence to support Steele's opinion that at 

any time the methane could go higher. I conclude that the 

violation herein was of a moderately serious nature. Taking into 

account the balance of the statutory factors in section llOCi) of 

the Act as stipulated to by the Parties, I conclude that 

Respondent shall be assessed a penalty herein of $700. 

ORDER 

It is hereby ORDERED that Order No. 3093147 issued on May 3, 

1988, be amended to a section 104(a) Citation, and reflect the 

fact that the violation therein is not significant and substantial. It is further ORDERED that Respondent shall pay a civil 

penalty of $700 within 30 days of this Decision. 

Distribution: 

L .. Avram 

Administrative Wei~ Law Judge 

Anita Eve, 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., Buchanan Ingersoll, 600 Grant Street, 57th 

Floor, Pittsburgh, PA 15219 (Certified Mail) 

dcp 

2006 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 7 1989 

ROCHESTER & PITTSBURGH COAL 

COMPANY . . CONTEST PROCEEDINGS 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

. . 

DECISION 

Docket No. PENN 88-309-R 

Citation No. 2889075; 8/24/88 

Docket No. PENN 88~310-R 

Citation No. 2889167; 9/6/88 

Greenwich Collieries No. 2 Mine 

Mine ID 36-02404 

Appearances: Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal, 

Ebensburg, Pennsylvania, for the Contestant; 

B. Anne Gwynn, Esq., Office of the Solicitor, u. S. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary. 

Before: Judge Weisberger 

Statement of the cases 

In these proceedings, Rochester & Pittsburgh Coal Company 

(Contestant) seeks to contest two section 104Ca) Citations issued 

on August 24, 1988, and September 6, 1988, respectively. Pursuant 

to notice, the cases were heard in Ebensburg, Pennsylvania on 

July 26, 1989. Nevin Davis testified for the Secretary 

(Respondent). Contestant did not adduce any testimony. Contestant 

indicated however, that if the citation was sustained, the 

penalties proposed by the Secretary are "appropriate" CTR. 8). 

Respondent filed a posthearing brief on October 3, 1989, and 

Petitioner filed Proposed Findings and Fact and a Memorandum on 

October 4, 1989. 

Stipulations 

1. Greenwich Collieries is owned by Pennsylvania Mines 

Corporation and managed by Respondent, Rochester and Pittsburgh 

Coal Company. 

2007 
2. Greenwich Collieries is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over these 

proceedings. 

4. Safeguard Number 2885431 was properly served by a duly 

authorized representative of the Secretary of Labor upon agents 

of the Rochester and Pittsburgh Coal Company on the day, time and 

place stated therein. 

5. Safeguard Number 2885431 had not been vacated or withdrawn at the time citation numbers 2889075 and 2889167 were 

issued. 

6. Citation Numbers 2889075 and 2889167 were properly 

served by a duly authorized representative of the Secretary of 

Labor upon agents at the Rochester and Pittsburgh Coal Company on 

the days, times and places stated therein. · 

7. The Respondent demonstrated good faith in the abat~nent 

of the citation. 

8. The assessment of the civil penalty in this proceeding 

will not affect Respondent's ability to continue in business. 

9. The appropriateness of the penalty, if any, to the size 

of the coal operator's business should be based on the facts 

that, (a) the Respondent companies annual production tonnage is 

$10,554,743, and (b) that the Greenwich Collieries Number Two 

Mine's annual production tonnage is $1,195,419. 

10. Greenwich Number Two Mine was assessed 881 violations 

over 1,224 inspection days during the 24 months preceding the 

issuance of Citation Number 2889075~ and 911 violations over 

1,228 inspection days during the 24 months preceding the issuance 

of Citation Number 2889167. 

Findings of Fact and Conclusions of Law 

Nevin Davis, an MSHA Inspector, testified that while at 

Contestant's Greenwich Collieries No. 2 Mine on May 16, 1988, he 

observed two of Contestant's employees unloading metal pipes from 

an elevator in the South Portal. He described the pipes as being 

approximately 2 inches in diameter and between 2 - 4 feet in 

length. He said that there were approximately four or five 

pipes, and that he also observed two "cylindrical" objects on the 

floor of the elevator that were approximately 1 foot to 

1 and 1 1/2 feet high (Tr. 22). He said he testified that 

" ••• these have been known" (Tr. 23) to speed up or slow down, 

2008 
thus, in his opinion, creating a hazard of the pipes moving, 

flying, and striking anyone riding in the elevator. In essence, 

he said that,.considering the size and weight of the pipes, they 

created a serious hazard to persons present in the elevator. He 

opined that if the pipes were to strike an enployee, there could 

be "any type of injury," including broken bones or open wounds. 

He indicated that the elevator in question was not being used as 

a "man trip" which he defined as a regularly scheduled trip transporting miners at a set time at the beginning or end of a shift. 

According to Davis, in essence, he was guided by a memorandum 

dated May 8, 1978, from Donald W. Huntley, District Manager Coal 

Mine Safety and aealth, which stated that "In accordance with the 

procedure for expansion of provisions under section 75.1403 

• • • the following list of provisions should be enforced: No 

persons shall ride on a cage or elevator with equipment, supplies, or other materials. This does not prohibit the carrying 

of small hand tools, surveying instruments, or technical devices." 

(Government Exhibit 1). 

Davis indicated that on May 18, 1988, he issued a safeguard, 

pursuant to the above memorandum, in which he recited what he 

observed on May 16, 1988, and which requires " ••• that no 

person shall be transported on any cages or elevators with equipment, supplies, or other materials. ~his does not prohibit the 

carrying of small hand tools, surveying instruments, or technical 

devices." (Government Exhibit 2). 

On August 24, 1988, Davis returned to the No. 2 Mine for a 

spot inspection and observed a miner exiting the same elevator he 

had observed on May 16. He said that a miner was riding in the 

elevator with a metal type portable dolly made out of pipe 

approximately 2 feet high, and which tapered to the bottom having 

a dimension of approximately 1 foot by 18 inches to 2 feet. He 

said that the dolly is designed to be pushed. Davis said that 

"If the elevator speeds up or slows down suddenly" (~r. 31) the 

dolly could strike an employee. He described this event as being 

likely to occur and said that it could cause injuries to an 

employee such as broken bones or bruises. In view of the 

presence of an employee, he described the condition as serious, 

and presenting the same hazard as the one observed by him on 

May 16. Accordingly, he issued a citation, alleging, in essence, 

a violation of the safeguard previously issued on May 18. 

On September 6, 1988, Davis returned to the ~o. 2 Mine and 

again observed a miner exiting the South Portal elevator with a 

metal type dolly which he described as the same one that he had 

observed on ~ugust 24, 1988. He again issued a section 104(a) 

Citation alleging a violation of the safeguard previously issued 

on May 18, 1988. 

2009 
The Contestant did not dispute the conditions observed by 

Davis on May 16, August 24, or September 6, 1988. Contestant, 

however, challenges the underlying safeguard issued on May 18, 

1988, on the ground that it addresses hazards that exist in all 

mines with elevators. Contestant also argues that the safeguard 

is not valid as it is insufficiently specific. In contrast, 

Respondent argues that the underlying safeguard although not 

being mine-unique was mine-specific. 

The Commission in Secretary v. Southern Ohio Coal Co., 

10 FMSHRC 963 at 967 (August 1988), noted that the Court of 

Appeals of the District of Columbia Circuit in Zeigler Coal Co. 

v. Kleppe, 536 F2d 389 CD.C. Cir. 1976) "· •• has recognized 

proof that ventilation requirements are generally applicable, 

rather than mine-specific, may provide the basis for a defense 

with respect to alleged violations of mandatory ventilation 

plans." The Commission in southern Ohio, supra, at 967 further 

analyzed Zeigler as follows: 

[T]he court considered the relationship of a 

mine's ventilation plan required under section 303(0) 

of the Act, 30 u.s.c. § 863(0), to mandatory health and 

safety standards promulgated by the Secretary. The 

court explained that the provisions of such a plan 

cannot "be used to impose general requirements of a 

variety well-suited to all or nearly all coal mines" 

but that as long as the provisions "are limited to 

conditions and requirements made necessary by peculiar 

circQmstances of individual mines, they will not 

infringe on subject matter which could have been 

readily dealt with in mandatory standards of universal 

application." 536 F.2d at 407; See also, Carbon County 

Coal Co., 6 FMSH~C 1123, 1127 (May 1984) (Carbon County !>; Carbon County Coal Co., 7 FMSHRC 1367, 1370 72 

(September 19.85) (Carbon County II). 

In Southern Ohio, supra, the Commission did not resolve the 

question of whether a defense to a safeguard may be based on its 

being generally applicable, as it found that there was no 

evidence of whether the safeguard was general or mine-specific. 

Specifically, the Commission in Southern Ohio, supra, at 965 

indicated that no evidence was presented as to the circumstances 

under which the safeguard was issued or the "specific reasons" 

why the safeguard was imposed at the subject mine. In the case 

at bar, Davis, who issued the original safeguard, did not indicate that there was any specific reason why the safeguard was 

issued for the elevator at Mine No. 2. ~he terms of the Huntley 

Memorandum (Government Bxhibit 1) which led Oavis to issue the 

safeguard, and the terms of the safeguard itself, relate to conditions that are applicable to all elevators and are not unique to 

2010 
the elevators at Mine No. 2. According to Davis, the riding 

compartment of the elevator at Mine No. 2 is basically the same, 

aside from its dimensions, as the elevators found in other mines 

he inspects. Although the conditions that gave rise to the safeguard, i.e., men riding an elevator that also contained pipes, 

might be considered hazardous, there is no evidence that this 

condition is unique to Mine No. 2, or is occasioned by equipment 

peculiar to Mine No. 2. 

I find that generally, in allocating the burden of proof, 

one factor taken into account is which Party has the best knowledge of the particular disputed facts (Lindahl v. Office of 

Personnel Management, 776 F.2d 276 (Fed. Cir. 1985)). The burden 

is not placed upon a Party to establish facts particularly within 

the knowledge of its adversary. In this connection, it appears 

that Respondent would have particular knowledge as to the circumstances under which the safeguard was issued, and the existence 

or need of similar safeguards at other mines (See, Southern Ohio, 

supra, at 967-968). In addition, it has been held that, generally, MSHA has the burden of putting forth a prima facie case of 

a violation (Miller Mining Co., Inc. v. Federal Mine Safety and 

Bealth Review Commission, 713 F.2d 487 (9th Cir 1983) See also, 

Old Ben Coal Corp. v. IBMA, 523 F.2d 25, 39 (7th Cir. 1975)). ~s 

such, it had the burden of establishing all elements of the 

citation including the validity of the underlying safeguard. 

I thus conclude, based on all the above, that Petitioner has 

failed to establish that the safeguard in issue was mine-specific 

to the subject mine. As such, based on the rationale of Zeigler, 

supra, that applies with equal force to the case at bar, I 

conclude that because it has not been established that the safeguard was mine-specific, it therefore is invalid ~s it was not 

promulgated pursuant to the rule-making procedures of section 

314Cb) of the ~ct. (See Beth Energy Mines, Inc., 11 FMSH~C 942 

(Judge Melick 1989), Southern Ohio Coal Co., 10 FMSHRC 1564 

(Judge Weisberger 1989.)) Accordingly, I find that the Citations 

herein should be dismissed, inasmuch as they were predicated upon 

an invalid safeguard. 

ORDER 

It is ORDERED that the Notices of Contest, Docket Nos. PBNN 

88-309-R and PENN 88-310-R, are SUSTAINED. 

Avram 

L~ Weisberger 

Administrative Law Judge 

2011 
Distribution: 

Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company, P. o. 

Box 367, Ebensburg, PA 15931 (Certified Mail) 

B. Anne Gwynn, Esq., Office of the Solicitor, u. s. Department of 

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

Philadelphia, PA 19104 (Certified Mail) 

dcp 

2012 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th Fl-OOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 171989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

. 

. 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-44 

A.C. No. 46-03805-03880 

Martinka No. Mine 

DECISION 

Appearances: Mark R. Malecki, Esq., Office of the Solicitor, 

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

for the Secretary of Labor {Secretary); 

David M. Cohen, Esq., Lancaster, Ohio, for Southern 

Ohio Coal Company CSOCCO). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In this docket, the Secretary seeks civil penalties for two 

alleged violations of mandatory safety standards. The violations 

were charged in two withdrawal orders issued under section 

104Cd){2) of the Federal Mine Safety and Health Act {Act). With 

respect to the violation charged in Order 3106068, the parties 

have agreed to a settlement, and the Secretary filed a motion for 

its approval subsequent to the hearing. Pursuant to notice, a 

hearing was held on the other alleged violation in Morgantown, 

West Virginia on June 14, 1989. Homer Delvich, Patrick Grimes, 

Warren Bates and Gary Eagle testified on behalf of the Secretary. 

David Stout, Mattio Mugnano and Paul Zanussi testified on behalf 

of SOCCO. No provision was made on the record for posthearing 

briefs. SOCCO filed such a brief; the Secretary did not. I have 

considered the entire record and the contentions of the parties, 

on the bases of which I make the following decision. 

FINDINGS OF FACT 

SOCCO is the owner and operator of an underground coal mine 

in Marion County, West Virginia, known as the Martinka No. 1 Mine. 

The mine has an annual production of two million tons; the 

operator has an annual production of eleven million tons. It is 

a large operator. Martinka has a history of prior violations 

2013 
amounting to approximately one significant and substantial 

violation per inspection day during the two year period prior to 

the violations involved in this proceeding. The two violations 

involved herein were abated in a timely manner. 

ORDER NO. 3106068 

This order charges a violation of 30 C.F.R. § 75.202. It 

was originally assessed at $950, and the motion proposes a 

reduction to $800. The violation involved a hazardous roof 

condition which had been noted in SOCCO's preshift book. For 

that reason, the violation was found to result from SOCCO's 

unwarrantable failure to comply. The motion states that pretrial 

discussion persuaded the Secretary to reduce the negligence 

somewhat because the condition had worsened within a few days of 

the inspection. I have considered the motion in the light of the 

criteria in section llO(e) of the Act, and conclude that it 

should be approved. 

ORDER NO. 3106064 

On August 15, 1988, Federal coal mine inspector 

Homer Delirch was inspecting the subject mine. He entered the 

mine at about 8:30 a.m. and arrived at the belt feeder on North 

Main Section 037 at about 9:45 a.m. He found a large pool of 

hydraulic oil, about 3 inches deep, 6 feet wide and 12 feet long 

under the feeder. Rock dust had been added only to the edges of 

the oil puddle against the rib lines. There was also a coating 

of coal dust about 1/8 of an inch deep caked with oil on the 

frame and motor of the feeder. The oil was hydraulic oil used to 

coal motors and it was combustible. The belt feeder was running 

at the time. The prior shift (cat-eye shift) had produced coal. 

Ignition sources were in the area: the motor (covered with oil 

saturated coal dust) runs hot. There are power cables going to 

the feeder. 

qocco had had problems with this belt feeder for some time 

prior to August 15, 1988. On July 29, 1988, during the midnight 

shift, O-rings and a "busted fitting" were replaced. On 

August 1, 60 g~llons of oil were added to the feeder. On 

August 2, 8 and 11 further work was done on the hoses, O-rings 

and oil tank. One mechanic, Patrick Grimes (also a UMWA 

walkaround), testified that oil had been on the floor "possibly a 

week or longer" (prior to August 15). (R. 39). Grimes never saw 

anyone trying to take up the oil "until the inspector wrote it 

up." (Q. 39). Another mechanic, Warren Bates, testified 

concerning the feeder:· "You poured it (oil) in and it runs out, 

and you pick it up off the ground. I mean, it's just a cycle." 

(R.62). On August 12, the mechanic's work sheet noted that 

the mechanic took oil and rock dust to feeder. In his remarks he 

2014 
noted: "Did not get oil spill covered." (Exhibit 1, SOCCO's 

Response to Secretary's Request for Production of Documents.) 

Matio Mugnano, the day shift section foreman, testified that 

during the weekend (August 13-14), the a-rings and a hose were 

replaced on the feeder. 

The condition was abated by taking up the oil in 5 gallon 

cans, which were placed on the belt and taken out of the mine. 

Between ten and thirty gallons of oil were removed. The feeder 

pump frames were degreased and washed and coal dust was removed 

from the frames and motor. The order was terminated at 

12:30 p.m., August 15, 1988. 

REGULATION 

30 C.F.R. § 75.400 provides as follows: 

Coal dust, including coal dust deposited on rock dusted 

surfaces, loose coal, and other combustible materials, 

shall be cleaned up and not be permitted to accumulate 

in active workings, or on electric equipment therein. 

CONCLUSIONS OF LAW 

I 

SOCCO is subject to the provisions of the Act in the 

operation of the subject mine. I have jurisdiction over the 

parties and subject matter of this proceeding. 

II 

Although SOCCO contends that a violation of 30 C.F.R. 

§ 75.400 has not been shown, because the accwnulations cited were 

minimal and not combustible, the evidence is overwhelming that 

the pool of oil under the belt feeder was (1) hydraulic oil with 

very little water, (2) combustible and (3) a large accumulation. 

The evidence further establishes that there was oil soaked coal 

dust on the frame and motor housing of the feeder. I conclude 

that these conditions establish a violation of 30 C.F.R. 

§ 75.400. 

III 

A violation is properly designated as significant and 

substantial if there is a reasonable likelihood that the hazard 

contributed to will result in a serious injury. Cement Division, 

National Gypsum Co., 3 FMSHRC 822 (1981); Florence Mining 

Company, 11 FMSHRC 747 {1989). Here there is evidence of a 

substantial amount of combustible material on and near electrical 

2015 
equipment. I conclude that a mine fire was reasonably likely. 

This could result in fire entrapment, smoke, and carbon monoxide. 

With miners. working in the area, serious injuries would be 

probable. I conclude that the violation was significant and 

substantial. 

IV 

Unwarrantable failure is established by a showing of 

aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997 (1987). The problem of oil 

leaks from the belt feeder in question go back more than two 

weeks from the date the order was issued. SOCCO was aware of the 

leaks, and made some attempts to take care of the problem. The 

evidence however establishes that substantial accumulations of 

oil under the feeder were common--the rule rather than the 

exception--from at least July 29 to August 15, 1988. SOCCO 

should have effectively repaired the equipment or withdrawn it 

from service. In view of the accumulations and SOCCO's awareness 

of them, its failure to do so constituted aggravated conduct, 

more than ordinary negligence. I conclude that the violation 

resulted from SOCCO's unwarrantable failure to comply with the 

standard. 

v 

The violation was serious and resulted from aggravated 

conduct. SOCCO is a large operator. Its history of prior 

violations is not such that a penalty otherwise appropriate 

should be increased because of it. The violation was abated in a 

timely fashion. In the light of the criteria in section llOCi) 

of the Act, I conclude that $1000 .is an appropriate penalty for 

the violation. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order 3106064 is AFFIRMED, including the special 

findings that the violation was significant and substantial and 

caused by unwarrantable failure; 

2. Order 3106068 is AFFIRMED, including the special 

findings that the violation was significant and substantial and 

caused by unwarrantable failure. 

3. Within 30 days of the date of this decision, SOCCO shall 

pay the following civil penalties: 

2016 
Order 

3106064 

3106068 

Distribution: 

Penalty 

$1000 

800 

$1800 

11u6 ~_,vft4~~Jd ames A. Broderick 

Administrative Law Judge 

Mark M. Malecki, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, Va 22203 (Certified 

Mail) 

David M. Cohen, Esq., American Electric Power Service Corp., 161 

w. Main Street, P.O. Box 700, Lancaster, OH 43130 (Certified 

Mail) 

slk 

2017 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 171989 

SOUTHERN OHIO COAL COMPANY, 

Con.testant 

v. 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

'Respondent 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEVA 89-124-R 

Order No. 3117373; 1/31/89 

Martinka No. 1 Mine 

Mine I.D. 46-03805 

CIVIL PENALTY ?ROCEEDING 

Docket No. WEVA 89-204 

A.C. No. 46-03805-03916 

Martinka No. 1 Mine 

DECISION 

Appearances: Mark R. Malecki, Esq., Office of the Solicitor, 

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

the Secretary of Labor (Secretary); 

David~- Cohen, Esq., Lancaster, Ohio for Southern 

Ohio Coal Co. CSOCCO). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In the contest proceeding, SOCCO contests the validity of an 

order of withdrawal issued under section 104(d)(2) of the Federal 

Mine Safety and Health Act (the Act). In the penalty proceeding, 

the Secretary seeks a civil penalty for the violation charged in 

the contested order. The cases were consolidated for the 

purposes of hearing and decision. Pursuant to notice, the 

consolidated cases were heard in Morgantown, West Virginia, on 

June l~ and 14, 1989. Bretzel Allen, Patrick Grimes, 

Paul Mitchell and Ronald Tulanowski testified on behalf of the 

Secretary; David Stout, Ernest Weaver, Frank Zuleski, 

Wesley Dobbs, Pat Zuchowski, Michael Miano, Wesley Hough and 

Charles Arnold testified on behalf of SOCCO. Both parties have 

filed posthearing briefs. I have considered the entire record 

2018 
and the contentions of the parties, on the basis of which I make 

the following decision. 

FINDINGS OF FACT 

SOCCO is the owner and operator of an underground coal mine 

in Marion County, West Virginia known as the Martinka No. 1 Mine. 

The mine produces approximately 2 million tons of coal annually; 

the operator produces slightly less than 12 million tons annually. 

During the past three years, SOCCO has had approximately one 

significant and substantial violation per inspection date. I 

have no reason to conclude that this is a substantial history of 

prior violations, and therefore will not increase any appropriate 

penalty because of it. Prior to the order contested herein, the 

subject mine has riot had "an intervening inspection free of 

unwarrantable failure violations since September 1, 1989." The 

violation cited in the order contested herein was abated in a 

timely fashion. 

I 

On January 30, 1989, during the day shift Federal coal mine 

Inspector Bretzel Allen was making a triple A inspection of the 

subject mine. He was accompanied by a union representative, a 

company representative and an MSHA supervisory inspector Paul 

Mitchell. Inspector Mitchell was present for the purpose of 

evaluating and rating the quality of Allen's inspection. The 

party travelled to the E-3 longwall section. The longwall face 

was about 700 feet long. There were about 144 roof support 

shields on the longwall, each with two pontoons at the base of 

the shield. The pontoons had coal, rock and emulsion oil packed 

on them and between and behind the pontoon jacks. Some of the 

pontoons contained packed coal, some mixed coal and rock. Most 

were mixed with oil but some were dry. Mitchell states that this 

was about the shoddiest longwall that he had been on in a while: 

there was coal and grease on and in the shields and there were 

cans and boards lying in the area. 

There was an accumulation of loose coal, resulting from 

spillage off the longwall face, in the tailgate entry. This was 

in a "wind-row" about 7 or 8 feet wide, 4 feet high and 60 or 70 

feet long. About 52 feet was toward the gob area from the 

longwall C"inby" see R. 33); about 18 feet extended outby, toward 

the block of coal being cut. No rock dust had been applied to 

the coal accumulation. 

The MSHA inspectors and company officials discussed SOCCO's 

longwall clean-up program. No citations or orders were issued. 

for the accumulations seen on the E-three longwall section. When 

it appeared that socco did not have a written clean-up plan, a 

2019 
section 104(d)(2) withdrawal order was issued for failure to have 

such a plan. Before the order was served, a copy of a clean-up 

plan was found, and the order was withdrawn. 

II 

During the afternoon of January 30, 1989, the longwall 

supervisor, Ernest Weaver, assigned six people to clean the 

shields from number 96 to 48 (the shields were numbered 1 to 

144). The crew completed cleaning shields 96 to 58. A later 

shift apparently cleaned shields 48 to 58. SOCCO officials 

estimated that -0f the 144 shields approximately three quarters 

had been cleaned and one quarter not cleaned prior to the 

inspector's return to the area on January 31. The inspector 

testified that 4 or 5 pontoons had been cleaned, but most of them 

still had a mixture of coal, rock, and emulsion oil packed on the 

faces of the pontoons of the shields. He issued a section 

104Cd)(2) withdrawal order citing the accumulationR on the 

pontoons and an accumulation in the tailgate entry of the 

longwall section which will be discussed hereafter. I find as a 

fact that SOCCO cleaned shields 96 through 48, and few if any 

others. Thus 48 shields were cleaned and 96 were not. On 

January 31, SOCCO too~ samples of the material on the shields, 

beginning with shield one and every fifteenth shield thereafter. 

The combustible matter in the samples ranged from 15.05 percent 

(No. 30 shield) to 45.22 percent Cl\Jo. 1 shield). CSOCCO Ex. 17). 

SOCCO had a chemical auto-ignition point test performed on 

shields 1, 15 (29.12% combustible), 45 (18.34% combustible), 120 

(28.49% combustible) and 144 (34.81% combustible). ~utoignition 

point is defined as the temperature required to initiate or cause 

self-sustained combustion in any substance in the absence of a 

spark or flame. (SOCCO Ex. 19). .Bituminous coal has an 

autoiognition point of 765 degrees Fahrenheit. The test of the 

five samples raised the temperature to 900 degrees Fahrenheit 

without producing any flame. The foregoing establishes that the 

samples tested consisted of noncombustible material. I find that 

the samples were fairly representative of the material on all the 

shields. Therefore, I find that the accumulations on the shields 

on January 31, 1989, were not combustible. 

III 

In the tailgate entry on January 31, 1989, there was a 

wind-row of coal approximately 37 inches deep, 7 feet wide, 

extending 18 feet from the longwall face inby to the yielding 

point of the shield anq 40 feet back into the gob line. Rock 

dust had been applied since the inspection of January 30. The 

inspector testified that a small amount of rock dust had been 

scattered over the accumulation, perhaps one bag. SOCCO's 

witnesses testified that the area was heavily rockdusted and that 

2020 
five bags of rock dust had been applied, the same amount 

normally applied after a pass of the longwall. The inspector 

took a sample· from the accumulation. The sample was analyzed at 

an MSHA laboratory and found to be 20.8 percent incombustible. 

(Govt. Ex. 3). Based on the sample, on the testimony of 

Inspector Allen and UMWA walkaround miner Grimes, and on the 

photographs of the area (SOCCO Ex. 4-9), I find as a fact that 

the accumulation in the tailgate entry consisted largely of loose 

coal and was combustible. 

IV 

The tailgate entry outby the longwall shields is a return 

air entry and an alternate escapeway from the longwall face. A 

fireboss must examine this area weekly. On January 31, 1989, two 

miners were cutting at the No. 10 shield with an open flame torch. 

An electrical cable travels the length of the longwall face 

during production. The loader on the tailgate is an electrically 

operated motor. 

REGULATIONS 

30 C.F.R. § 75.400 provides as follows: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

30 C.F.R. § 75.2(g)(4) provides as follows: 

'Active workings' means any place in a coal mine where 

miners are normally required to work or travel. 

ISSUES 

1. Whether on January 31, 1989, there was loose coal and 

other combustible materials on the longwall shield pontoons, or 

in the tailgate entry of the E-3 longwall section of the subject 

mine? 

2. Whether the tailgate entry of the longwall section 

constitutes active workings? 

3. If a violation is established, was it significant and 

substantial? 

4. If a violation is established, was it caused by SOCCO's 

unwarrantable failure to comply with the standard? 

2021 
5. If a violation is established, what is the appropriate 

penalty. 

CONCLUSIONS OF LAW 

I 

SOCCO is subject to the provisions of the Act in the 

operation of the Martinka No. 1 Mine and I have jurisdiction over 

the parties and subject matter of this proceeding. SOCCO is a 

large operator. 

II 

The Secretary has failed to establish that the accumulations 

on the longwall shield pontoons on January 31, 1989, consisted of 

combustible material. Therefore, she has failed to establish 

that this condition was violative of 30 C.F.R. § 75.400. 

III 

The evidence does establish that the loose coal in the 

tailgate entry of the E-3 longwall section was combustible. It 

was not cleaned up and was permitted to accumulate. The evidence 

further establishes that the 18 feet of such accumulations outby 

the longwall shield line existed in an area where miners are 

normally required to travel. Therefore it was in active workings. 

A violation of 30 C.F.~. § 75.400 is established. 

IV 

A violation is properly designated as significant and 

substantial if there is a reasonable likelihood that the hazard 

contributed to would result in serious injury. Cement Division, 

National Gypsum Co., 3 FMSHRC 822 (1981); Florence Mining Co., 11 

FMSHRC 74 7 (1989). Although the accumulation could provide fuel 

for a fire, and although there are potential ignition sources on 

the longwall, there is no evidence as to the "likelihood" of a 

fire, nor is there evidence from which I reasonably could infer 

that a fire is reasonably likely. The Secretary has failed to 

carry her burden of establishing that the violation was 

significant and substantial. 

v 

A violation is caused by unwarrantable failure if it results 

from aggravated conduct, constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997 (1987). The 

accl,lffiulation in the tailgate entry existed and was pointed out to 

2022 
SOCCO on January 30, and had obviously existed for some time 

prior thereto. Despite these facts, SOCCO failed to clean up or 

inert the accumulations be.fore the inspection on January 31. I 

conclude that this establishes aggravated conduct, constituting 

more than ordinary negligence. The violation was the result of 

SOCCO's unwarrantable failure to comply with the standard. 

VI 

SOCCO is a large operator; its history of prior violations 

will have no effect on the penalty. The violation was moderately 

serious, and resulted from SOCCO's unwarrantable failure. The 

violation was abated in a timely fashion. I conclude that $700 

is an appropriate penalty. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 3117373 issued January 31, 1989, is MODIFIED 

to remove the designation of significant and substantial and, as 

modified, is AFFIRMED. 

2. The Notice of Contest is GRANTED in part and DENIED in 

part. 

3. SOCCO shall within 30 days of the date of this order pay 

the sum of $700 as a civil penalty for the violation found 

herein. 

1

, I J) I . //_ 

fl ·ilt'..LA •. lf//.../i?:-di>fi:t:,'L-- •v 

James A. Broderick 

1 Aclllinistrative Law Judge 

Distribution: 

David M. Cohen, Esq., American Electric Power Service Corp., 161 

W. Main Street, P.O. Box 700, Lancaster, OH 43130 (Certified 

Mail) 

Mark R. Malecki, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

slk 

2023 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OCT 18 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GALLUP SAND & GRAVEL COMP ANY, 

Respondent 

DECISION 

Docket No. CENT 89-64-M 

A.C. No. 29-00917-05504 

San Antone Pit 

Appearances: Brian L. Pudenz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

Before: 

For Petitioner; 

Frank A. Kozeliski, Materials Engineer, Gallup Sand 

Sand and Gravel Co., Gallup, New Mexico, 

For Respondent. 

Judge Lasher 

This matter was commenced by the filing of a Complaint 

Proposing Penalty by the Petitioner on April 17, 1989, seeking 

penalties for 6 violative conditions described in 6 Citations 

issued on October 19, 1988, by MSHA Inspector William Tanner, Jr. 

Respondent concedes the occurrence of the violations CT. 5, 

6), but primarily questions the appropriateness of the amount of 

penalties (totalling $188) sought by Petitioner. 

Respondent also pointed out that it had not been previously 

cited during prior MSHA inspections for the same or similar violations (T. 6, 7; Letter dated May 9, 1989). Taking this question 

first and viewing the allegations in this connection and the 

evidence presented most generously in favor of Respondent, a New 

Mexico corporation which was not represented by legal counsel, 

the question of the applicability of the doctrine of equitable 

estoppel will be deemed raised and briefly considered. The 

Respondent made out no credible case factually that the conditions 

cited in any of the 6 Citations involved here had been specifically 

evaluated by the Secretary's representative at any prior time and 

determined to be within the boundaries of the pertinent regulations. 

In other words, a factual foundation of the precision which would 

be required to cause one to conclude that there was a clear-cut or 

enlightened prior "non-enforcement" by MSHA inspectors previously 

was not presented. In any event, in Secretary of Labor v. King 

Knob Coal Company, Inc., 3 FMSHRC 1417 (1981), the Commission 

has generally rejected the doctrine of equitable estoppel. 

2024 
However, it also viewed the erroneous action of the Secretary 

(mistaken interpretation of the law leading to prior nonenf orcement) as a factor which can be considered in mitigation 

of penalty, stating: 

"The Supreme Court has held that equitable estoppel 

generally does not apply against the federal government. Federal Crop Insurance Corp. v. Merrill, 332 

U.S. 380, 383-386 (1947); Utah Power & Light Co. v. 

United States, 243 U.S. 389, 408-411 (1917). The 

Court has not expressly overruled these opinions, 

although in recent years lower federal courts have 

undermined the Merrill/Utah Power doctrine by permitting estoppel against the government in some 

circumstances. See, for example, United States v. 

Georgia-Pacific Co., 421 F.2d 92, 95-103 (9th Cir. 

1970). Absent the Supreme Court's expressed approval 

of that decisional trend, we think that fidelity to 

precedent requires us to deal conservatively with 

this area of the law. This restrained approach is 

buttressed by the consideration that approving an 

estoppel defense would be inconsistent with the 

liability without fault structure of the 1977 Mine 

Act. See El Paso Rock Quarries, Inc., 3 FMSHRC 35, 

38-39 (1981). Such a defense is really a claim that 

although a violation occurred, the operator was not 

to blame for it. 

Furthermore, under the 1977 Mine Act, an equitable 

consideration, such as the confusion engendered by 

conflicting MSHA pronouncements, can be appropriately 

weighed in determining the appropriate penalty ••• " 

Accordingly, the doctrine of equitable estoppel will not be 

applied to the enforcement actions of the Secretary here. However, 

the Respondent's evidence in this connection will be considered 

in determining penalties. 

Preliminary Penalty Assessment Factors 

The parties stipulated that Respondent, which operates a 

readi-mix crushed-stone operation CT. 28, 51) in the vicinity of 

Albuquerque, New Mexico, is a small mine operator CT. 73). It 

had a history of 2 prior violations prior to the occurrence of 

the violations in question. Petitioner conceded that Respondent, 

after notification of the violations, proceeded in good faith to 

promptly abate the same CT. 17). Respondent made no claim that 

payment of reasonable penalties or penalties at some given monetary 

level would jeopardize its ability to continue in business. 

2025 
Penalty Assessment 

Two of the six Citations (Nos. 3274946 and 3274948) involved 

so-called "significant and substantial" violations. rt w!i.s the 

inspector's unrebutted opinion, and the record clearly substantiates such, that both of these violations were the result of 

a "moderate" degree of negligence on Respondent's part and were 

serious in nature since it was reasonably likely that the hazards 

posed by the violations could have occurred and that injuries 

resulting therefrom could have been permanently disabling, and, 

in the case of Citation No. 3274946, even fatal. These penalties 

will not be increased in view of Respondent's apparent belief 

that it was proceeding in compliance with the regulations involved 

CT. 6, 42). MSHA's assessment of $54 each for these two violations 

is found appropriate and here assessed. 

The four remaining Citations (Nos. 3274949, 3274950, 3274951 

and 3274952) were all considered by MSHA to not be "significant 

and substantial" and were given routine $20.00 single penalty 

assessments. The inspector who issued these Citations attributed 

the violations to have occurred as a result of but "moderate" 

negligence on the part of Respondent. These are modest penalties 

and I find no basis to disturb the Secretary's assessments. 

ORDER 

Cl) The six subject Citations are affirmed. 

(2) Respondent is ordered to pay the Secretary of Labor 

within 30 days from the date hereof the total sum of $188 as and 

for the civil penalties above assessed. 

Distribution: 

7?,A;·k,/··~-r: ;~':/i:f /},. 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Brian L. Pudenz, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 (Certified 

Mail) 

Mr. Frank A. Kozeliski, Gallup Sand & Gravel Company, 601 West 

Roundhouse Road, P.O. Drawer 1119, Gallup, NM 87301 (Certified 

Mail) 

/ot 

2026 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WINSTON MADDEN, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 18 1989 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 89-62-D 

RONALD SUMMERS AND SUMCO, 

Respondents 

BARB CD 88-46 

DEFAULT DECISION 

Before: Judge Maurer 

On December 28, 1988, complainant filed a Complaint, 

alleging a violation of section 105(c}(l} of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(c}(l}. There was 

no response from the respondents, so on February 13, 1989, Chief 

Judge Merlin issued an Order directing the operator to answer or 

show cause within 30 days. On March 13, 1989,~ an Answer was 

received and on March 17, 1989, the case was assigned to this 

administrative law judge. 

On April 26, 1989, complainant, by counsel, filed a set of 

interrogatories and requests for production. When no responses 

were received, complainant filed a motion to compel discovery and 

for attorney fees with me on June 5, 1989. No responsive 

pleading to this motion was filed. On July 20, 1989, I issued an 

Order granting complainant's motion to compel discovery and 

awarding complainant $156.25 as attorney fees for the time spent 

by his lawyer in obtaining this order. That order directed the 

respondents to answer complainant's interrogatories, produce the 

documents sought and pay the attorney fees awarded within the 

following 15 days, or by August 4, 1989. 

On August 18, 1989, complainant filed a motion for default 

decision, alleging that the respondents had &till not responded 

in any manner to complainant's discovery requests and had not 

paid the awarded attorney fees, as ordered on July 20. 

On September 6, 1989, a response to this latest motion was 

received from counsel of record for respondents. He asserted 

that since May of 1989, he has not been able to contact the 

respondents herein and has been informed that they are no longer 

living at their former address. He was unable to obtain any 

forwarding address for them and has likewise been unable to 

contact them by telephone. 

2027 
On September 12, 1989, I issued an Order to respondents to 

show cause within 10 days why they should not be held in default 

for failure. to comply with my order of July 20, 1989. There has 

been no response to date. 

After reviewing the entire file of this proceeding once 

again, I am of the opinion that because of the respondents' 

extremely lackadaisical approach to the defense of this case, 

outlined above, they have waived any further right to a hearing. 

Therefore, complainant's motion for default decision IS GRANTED. 

Accordingly, I find that as alleged in the Complaint: 

1. Complainant Madden was employed by Sumco and Summers for 

approximately 4 months prior to his discharge on June 14, 1988, 

as a welder and general laborer. 

2. On June 14, 1988, Madden was assigned to cut out 

(remove) a section of an abandoned coal tipple located at the 

mine site operated by Sum.~ers and Sumco. 

3. Complainant Madden was discharged by Summers on June 14, 

1988, because of his refusal to continue working on the tipple 

unless safety precautions were taken; and because he had pulled 

down part of the tipple with an endloader in order to abate a 

hazardoua condition. 

4. The discharge of Madden by Sμmmers on June 14, 1988, 

violated section 105(c)(l) of the Federal Mine Safety & Health 

Act of 1977. 

ORD;ER 

It is ORDERED that: 

1. Complainant shall file a statement within twenty (20) 

days of this Decision, indicating the specific relief requested. 

The statement shall be served on the respondents who shall have 

twenty (20) days from the date service is attempted to reply 

thereto. 

2. This Decision is not final until a further Order is 

issued with respect to complainant's relief. In the event that a 

contested issue of fact arises as to the proper type or quantum 

of damages due the complainant, a hearing on that issue or issues 

will be required. 

2028 

·1 I 4 f/ ,/ ' I ! ' I\_~~/~-· ~,. t ;.t t.\,l\..: V\I 

Roy J. Maurer Admini;str~tive Law Judge ... _-· 
Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 {Certified Mail) 

Rodney E. Buttermore, Esq., Forester, Buttermore, Turner & 

Lawson, P.O. Box 935, Harlan, KY 40831 {Certified Mail) 

/ml 

2029 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 18 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF FRED BARTLEY, 

Complainant 

v. 

ADAMS STONE CORPORATION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KEN·r 89-102-DM 

Jenkins Quarry 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Complainant; David Adams, Esq., Vice-President, 

Adams Stone Corporation, Pikeville, Kentucky, for 

Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary brings this case on behalf of Fred· Bartley, 

and claims that on March 29, 1988, Bartley was discharged from 

his job with Respondent because he complained to MSHA about 

unsafe conditions at Respondent's limestone quarry. Respondent 

contends that Complainant was suspended for three days for 

insubordination, and was thereafter laid off in accordance with 

the seniority provisions of the uniori contract. Following a 

hearing before an arbitrator, Complainant was reinstated to his 

position as crusher operator. He was awarded and received back 

wages and other benefits to the date of his layoff. The three 

day suspension was upheld by the arbitrator. When Complainant 

returned to work, he was assigned to the job of plant walker. &e 

was told not to run the crusher and was limited to working eight 

hours per day. the plant was on strike from January 15, 1989 to 

July 13, 1989. Complainant has been working since July 13, 1989. 

Pursuant to Notice, the case was called for hearing in Wise, 

Virginia, on July 20, 1989. Fred Bartley, James G. Roberts, 

Jimmy Ray Woods, Vernon Denton, William R. Talley and 

Ernest R. Thompson testified on behalf of Complainant. 

Stuart H. Adams and Darrell Webb testified on behalf of 

Respondent. Both parties were given the opportunity to file 

2030 
post-hearing briefs. The Secretary filed such a brief; 

Respondent did not. I have considered the entire record and the 

contentions of the parties and make the following decision. 

FINDINGS OF FACT 

Respondent operates a limestone quarry in Letcher County, 

Kentucky, known as Jenkins Quarry. The operation includes open 

pit mining of stone, a primary crusher plant, a secondary crusher 

plant, a blacktop plant, a block plant and a "ford shop" where 

mechanical work is performed on equipment. the crushed limestone 

is used in highway and building construction. The mining 

operation is normally discontinued in the winter months, although 

some of the employees are retained to do maintenance and repair 

work. 

Complainant Bartley has been employed by Adams Stone 

since September 1977. In 1987 and for five or six years prior 

thereto, Bartley operated the gyrodisc crusher on the night shift. 

The gyrodisc crusher crushed stone into limestone dust, which was 

used in asphalt making. He worked with limited supervision. The 

Superintendent, Darrell Webb, complained in September 1987, that 

Bartley was not operating the crusher at full capacity and not 

enough dust was being produced. Bartley testified that Webb was 

intoxicated and abusive. For these reasons, Bartley shut down 

his machine and went home. He returned to work the next day. 

He underwent eye surgery in Dec~nber 1987, and was off work until 

about March 20, 1988. Between March 20 and March 28, he was 

doing labor work and repair work. On March 28, he was doing 

repair work on the gyrodisc crushers, taking hoses off and 

repairing or replacing the hoses which were leaking. Stuart 

Adams, President of 1Adams Stone, who had a short time before 

assumed active supervision of the quarry, angrily questioned 

Complainant about why he was removing the hoses. He seemed 

satisfied after Complainant explained what he was doing. Later 

the same day Bartley was taking a short break after pumping 55 

gallons of oil into a tank with a hand pump and lifting several 5 

gallon buckets of oil onto to a beltline. Adams walked by and 

told Bartley to get a shovel and get back to work. Subsequently 

Adams asked Bartley to place some 4x4 pieces of wood under the 

secondary crusher which was being lowered to the ground by a 

crane. The crusher weighed about eight tons. Bartley was 

concerned because the crane was known to slip and fall free and 

he told Adams he would place the 4x4s under the crusher after it 

was lowered closer to the ground. Adams became angry. He cursed 

and told Bartley to put the boards under the crusher now. 

Bartley also became angry and told Adams he would put them down 

when he got "damn ready." After the crane lowered the crusher 

close to the ground, Bartley put the boards under it and the 

crusher was lowered on top of the boards. At that point Bartley 

2031 
told .Adams he was tired of hearing his big mouth. Adams told him 

if he did not want to work, he could go home. However, Bartley 

continued working until the end of his shift. 

The following day Adams told Bartley that he was suspended 

for three days for insubordination. Bartley replied that he 

would call the OSHA inspector who would be at the plant the next 

day. The following day an MSHA inspector came to the plant, 

having received a 103Cg) complaint alleging a loader without 

brakes, a crane subject to free falls, drinking on the job, and 

failure to wear hard hats. When the Inspector contacted Adams, 

Adams was very angry and initially refused to permit the 

inspector to go on the premises. He later cooled down and the 

inspection proceeded. A loader was inspected and found to have 

adequate brakes. The crane had no load on it, so the inspector 

took the crane operator's word that the crane was operating 

properly. The inspector did not find any evidence of drinking, 

nor did he see anyone not wearing a hard hat who would be 

required to wear one. He notified the operator of his negative 

findings. 

During the three day suspension, the operator notified 

Bartley that he was laid off because the night shift was being 

discontinued. Adams subsequently told an MSHA investigator that 

one reason for the "layoff" was the fact that Bartley called MSHA 

with a 103Cg) complaint. I find as a fact that Bartley was laid 

off in part because he made safety complaints to MSHA which 

resulted in an MSHA inspection. Bartley filed a grievance under 

the collective bargaining contract. The grievance went to 

arbitration. The arbitrator decided that Cl) the three day 

suspension was for just cause and (2) Bartley's layoff was not in 

accordance with the provisions of .the contract. She ordered the 

company to reinstate Bartley to his classification of crusher 

operator and to pay all back wages and other benefits which he 

lost because of the improper layoff. He returned to work and was 

paid 40 hours per week straight time for the period of time that 

he was off. 

During the time Bartley was off on his suspension, the 

company learned that the rock which had been ordered for a 

highway project in East Kentucky would not be needed until August. 

Adams then directed his superintendent to cut the work crew back 

to 8 hours per shift with no overtime and to eliminate the 

operation of the gyrodisc crusher for the time being. 

In the winter 1987-88, Respondent essentially rebuilt its 

plant: each of the crushers was torn down and rebuilt; new 

monitoring devices and a computer system were installed, as well 

as new feed systems and new belt scales. 

2032 
ISSUES 

1. Whether the three day suspension of Complainant on 

March 28, 1988, was adverse action for activity protected under 

the Mine Act? 

2. Whether the layoff or discharge of Complainant on March 

29, 1988, was adverse action for activity protected under the 

Act? 

3. If either issue No. 1 or issue No. 2 is answered in the 

affirmative, what remedies should be awarded and assessed? 

CONCLUSIONS OF LAW 

I 

Complainant Bartley and Respondent are subject to and 

protected by the provisions of the Act, Complainant as a miner 

and Respondent as a mine operator. I have jurisdiction over the 

parties and the subject matter of this proceeding. 

Under the Act, a miner establishes a prima facie case of 

discrimination if he proves that he was engaged in protected 

activity and was subjected to adverse action which was motivated 

in any part by the protected activity. Secretary/Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other 

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3rd Cir. 1981)~ Secretary/Robinette v. United Castle Coal 

Co., 3 FMSHRC 803 (1981>. The mine operator may rebut the prima 

facie case by showing either that no protected activity occurred 

or that the adverse action was no~ motivated in any part by the 

protected activity. If the operator cannot rebut the prima facie 

case in this manner, it may defend affirmatively by proving that 

it was also motivated by the miner's unprotected activity, and 

would have taken the adverse action for that activity in any 

event. 

II 

Bartley's three day suspension resulted in part from his 

refusal to place boards under the crusher being lowered by a 

crane. Bartley testified that he believed it was dangerous to 

approach the crusher until it was close to the ground. I 

conclude that this was a good faith, reason~ble refusal to 

perform work which he considered dangerous. Therefore, the work 

refusal was activity piotected under the Act. Because the 

suspension was motivated in part by the protected activity, 

Complainant has established a prima facie case of discrimination 

for the suspension. Respondent, however, has shown that the 

2033 
suspension was also motivated by unprotected activity, namely by 

Bartley's statement to Adams that he was tired of hearing Adams' 

big mouth. I am persuaded by Adams' testimony that this was the 

primary reason for the suspension, and I conclude that Respondent 

would have taken the adverse action for that reason alone. 

III 

Although Stuart Adams denied that he told the MSHA 

investigator that one of the reasons he laid off Bartley was 

because of his safety complaints to MSHA (Tr. 243-4), I conclude, 

based on the statement made to the investigator, that he did so. 

I further conclude that in fact he laid off Bartley primarily 

because of his safety complaints to MSHA. Therefore Complainant 

has made out a prima facie case under the Pasula test. 

Respondent contends that it would have laid Bartley off in any 

event for reasons not related to protected activity, namely 

because the night shift gyrodisc crusher was not being operated. 

I conclude that Respondent has not met its burden of proving that 

it would have laid off Bartley in any event for unprotected 

activity. Bartley was classified as a crusher operator. The 

arbitration proceeding established that he had seniority over 

another employee who was retained. I conclude that the layoff 

was motivated by protected activities, and the alleged business 

motive was a pretext. The evidence establishes that the lay off 

was in violation of section lOSCc) of the Act. 

IV 

The Secretary contends that Complainant is entitled to back 

pay measured by the number of hours worked by Tommy Roberts, the 

other crusher operator, including·the overtime hours worked by 

Roberts. The evidence does not establish that Bartley would have 

worked the same number of hours as Roberts or that he would have 

worked overtime. t conclude that Bartley is entitled only to 

regular time wages for forty hours per week during the time he 

was laid off until he was ordered back to work in September 1988 

and worked until the plant was shut down for the season. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. The three day suspension of Bartley on March 29, 1988 

was not in violation of section 105(c) of the Act. 

2. The "layoff" of Bartley on March 29, 1988, was in 

violation of section 105Cc> of the Act. 

2034 
3. Complainant was reinstated to his position of crusher 

operator by an arbitrator under the union contract. Respondent 

shall pay Complainant back wages, based on a 40 hour week, from 

the date of the layoff until the date of his reinstatement, with 

interest thereon computed in accordance with the Commission 

decision in UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988). 

Respondent shall have credit for the amount paid as back wages 

following the arbitration decision. Respondent shall also pay 

complainant other benefits to which he was entitled and which 

were withheld during the time of his layoff. 

4. The parties shall attempt to agree on the amount due 

Complainant under the above order. If they cannot agree, the 

Secretary shall within 20 days of the date of this decision, 

submit a statement of the amount she believes is due. Respondent 

shall have 10 days thereafter to reply. 

5. Respondent and its officers and agents shall CEASE and 

DESIST from discriminatory acts against its employees for making 

safety complaints to the Secretary. 

6. Respondent shall expunge from its employment records all 

references to the unlawful layoff or discharge of Bartley. 

7. Respondent shall, within 30 days of the date this 

decision becomes final, pay to the Secretary a civil penalty in 

the amount of $1000 for the violation found herein. 

8. This decision is not final until the amount due 

Complainant under No. 3, above, is determined. 

A I /b/,7 j I fa 

t

. F'• < .. s ~{!;t:.J ;.-pl/{.: -:-t e' £. l'l'....t'..- ~, 

James A. Broderick 

'- Administrative Law Judge 

Distribution: 

Thomas A. Groans, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Mr. David Adams, Vice President, Adams Stone Corp., P.O. Box 

2320, Pikeville, KY 41501 (Certified Mail) 

slk 

2035 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 0 19.89 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREEN RIVER COAL CO., INC., 

Respondent 

. . 

. . 

. 

. 

. . 

. . 

CIVIL PF.NALTY PROCEEDING 

Docket No. KENT 89-126 

A.C. No. 15-13469-03699 

Mine l\Jo. 9 

DECISION 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Secretary of Labor (Secretary); 

B. R. Paxton, Esq., Paxton & Kusch, Central City, 

Kentucky, for Respondent Green River Coal Co., Inc. 

(Green River). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for a violation of 30 

C.F.R. § 75.200 charged in a section 104(d)(2) order of 

withdrawal issued November 21, 1988. Pursuant to notice, the 

case was called for hearing in Owensboro, Kentucky, on 

September 12, 1989. George L. Newlin testified on behalf of the 

Secretary; Michael McGregor testified on behalf of Green River. 

The record was kept open to allow the Secretary to file a 

computer print out of prior violations by Green River at the 

subject mine. Green River contends that the history is not 

relevant because of a change in management of the mine. Both 

parties have filed posthearing briefs on this issue and I will 

discuss and decide that question in this decision. I have 

considered the entire record and the contentions of the parties 

in making this decision. 

FINDINGS OF FACT 

Green River is the owner and operator of an underground coal 

mine in Hopkins County, Kentucky, known as the Green River No. 9 

Mine. The management of the mine changed in November 1988. MSHA 

agrees that the new management has a new attitude toward safety: 

2036 
it is aware of safety problems and is trying to correct them. 

Weekly safety meetings are held involving all employees. 

On November 21, 1988, Federal mine inspector George Newlin 

was engaged in an on-going gene.raJ.. inspection ("AAA inspection") 

of the subject mine. tn the Northwest B return aircourses, he 

observed that one row (on the left side) of timbers had been 

knocked down and not replaced. Some of the timbers on the right 

side were down and the right side was covered with gob. The area 

was passible, but with difficulty. At least 30 days prior to 

November 21, the gob, resulting from rock falls, had been cleaned 

out of an adjacent entry and deposited in the entry in question. 

At the same time the timbers had been knocked down. The fireboss 

book had referred to the condition for seven weeks. The roof was 

bolted and supported and was in stable condition. The area where 

the timbers were down extended for a distance of 120 to 300 feet. 

Timbers were missing on both sides for about 50 feet, and on the 

left side for more than 120 feet. The entire entry was about 910 

feet long. 

Inspector ~ewlin issued a section 104(d)(2J withdrawal order 

alleging a violation of 30 C.F.R. § 75.220 because the timber 

line was not continuous in the return from crosscut No. 65 to 

crosscut ~o. 52 as required in the approved roof control plan. 

The approved roof control plan in effect at the mine 

required one return aircourse to be timbered. A double row of 

timbers is required, six feet apart, with five foot centers on 

the advance. The area is required to be travelled every seven 

days by the fireboss. Otherwise, miners are not normally in the 

entry. 

Respondent has about 200 employees. It produces more than 

one million tons of coal annually. The history of prior 

violations shows that 1,074 paid violations were cited during the 

24 months prior to the order involved herein, of which 139 were 

roof control violations. Since the new management took over 

about November 15, 1988, only one (d) order has been issued to 

Green Kiver, the one involved here. 

The order was terminated December 12, 1988, when timbers 

were set in the entry as required by the roof control plan. The 

abatement was effected promptly and in good faith. 

"REGULATION 

30 C.F.R. § 75.200 provides in part as follows: 

(aJ(l) Each mine operator shall develop and follow a 

roof control plan, approved by the District Manager, 

20~7 
that is suitable to the prevailing geological 

conditions, and the mining system to be used at the 

mine. Additional measures shall be taken to protect 

persons if unusual hazards are encountered. 

ISSUES 

1. Whether the evidence establishes a violation of 30 

C.F.R. § 75.220 on November 21, 1988? 

2. If so, whether the violation resulted from Green River's 

unwarrantable failure to comply with the standard? 

3. If a violation is established what is the proper 

penalty? 

a. In view of the change in mine manag~nent, is it 

proper to use the two year history of prior 

violations as a criterion in determining the 

appropriate penalty? 

CONCLUSIONS OF LA.W 

Green River is subject to the provisions of the Federal Mine 

Safety and Health ~ct (the Act) in the operation of the subject 

mine, and I have jurisdiction over the parties and subject matter 

of this proceeding. 

The evidence clearly establishes that Green River was not in 

compliance with its approved roof control plan in the ~orthwest B 

return aircourse o.n November 21, 1988. A substantial number of 

posts required by the plan were dislodged, and had been dislodged 

.Eor many weeks. The inspector believed the condition was not 

significant and substantial because it was unlikely to result in 

injury: the roof was in stable condition and was adequately 

bolted. 

However, the condition had existed for a substantial period 

of time and had been noted in the f ireboss book for seven weeks. 

The company must have been aware of the condition and, until the 

order was issued, it made no attempt to correct it. The 

Commission has held that unwarrantable failure is established by 

a showing of aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997 (1987). The 

circumstances here clearly point to aggravated conduct 

constituting more than ordinary negligence: the repeated 

cefecences in the fireboss book which were ignored establish 

moce than ordinary negligence. Green River's atte1npt to show 

that the Eiceboss was attempting to persuade the company to 

timber the adjacent entry which had a higher roof is a lame 

2038 
excuse. The order including the unwarrantable failure finding 

should be affirmed. 

At the hearing, it was agreed that the computer printout of 

Green River's violation history_cpuld be offered post-hearing. 

Respondent objected on the ground of relevance, arguing that the 

change in management of the mine on November 15, 1988, renders 

any prior history of violations irrelevant and immaterial. Green 

River Coal Co., Inc., is a corporation ~nd has been the operator 

of the subject mine during the entire period in question. 

Section llOCi> of the Act obliges me to consider "the operator's 

history of previous violations" as one criterion in determining 

an appropriate penalty. See Secretary v. Peabody Coal Co., 1 

FMSHRC 28 (1979). 

Although the history of prior violations is therefore a 

statutorily mandated criterion to be considered in fixing the 

amount of the penalty, the improved safety record and safety 

outlook of the new management should also be taken into 

consideration. The purpose of the civil penalty provisions of 

the A.ct is to promote safety in the mines, not to collect money 

for the Federal Government. 

I conclude that under all the circumstances of this case an 

appropriate penalty is $300. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 3296525 issued November 21, 1988, is AFFIRMED. 

2. Respondent shall, within 30 days of the date of this 

decision, pay the sum of $300 as a civil penalty for the 

violation found herein. 

2039 
Distribution: 

Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 CCertif ied Mail) 

B. ~. Paxton, Esq., P.S.C. 213 E. Broad Street, P.O. Box 655, 

Central City, KY 42330 (Certified Mail) 

slk 

2840 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

FMC WYOMING CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Petitioner 

v. 

FMC WYOMING CORPORATION, 

Respondent 

OCT 2 O 1989 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 89-170-RM 

Order No. 2647760; 2/28/89 

Docket No. WEST 89-171-RM 

Order No. 2648041; 2/28/89 

Docket No. WEST 89-179-RM 

Order No. 2647759; 2/28/89 

FMC Trona Mine 

Mine I.D. No. 48-00152 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-355-M 

A.O. No. 48-00152-05572 

FMC Trona Mine 

DECISION APPROVING PARTIAL SETTLEMENT 

Before: Judge Lasher 

Three of the four enforcement documents in the above 

penalty docket are the subject of an agreement reached by the 

parties. One of the enforcement documents resolved, Order 

No. 2647758, is not related to any contest docket. The remaining (fourth enforcement document, Order No. 2647760, is 

related to Contest Docket No. WEST 89-170-RM, and the parties 

have Cl) reached a contingency agreement thereto depending on 

the determination by the D.C. Circuit Court of Appeals of the 

Secretary's appeal of a Commission decision in an unrelated 

case (Western Fuels-Utah, Inc., Docket Nos. WEST 86-113-R and 

WEST 86-114-R). Thus, by separate Order, this penalty docket, 

WEST 89-355-M (since it is not entirely resolved) and related 

Contest Docket WEST 89-170-RM are being stayed pending the 

aforesaid decision by the D.C. Circuit Court. 

2041 
In summary, the partial settlement reached by the parties 

is as follows: 

Related Contest Citation/ Proposed 

Docket No. Order No. Penalty Settlement 

WEST 89-170-RM 2647760 (Stayed) 

WEST 89-171-RM 2648041 $1,000 $ 500 

WEST 89-179-RM 2647759 1,000 500 

(None) 2647758 3,000 2,000 

$5,000 $3,000 

As to Citation No. 2647759 in Docket No. WEST 89-179-RM, the 

parties have also agreed that the "unwarrantable failure" aspect 

of this enforcement should be deleted by the modification of the 

Citation to reflect its issuance under Section 104(a) of the Act 

rather than under Section 104(d) thereof. 

The settlement is well-supported in the stipulation signed 

by both parties and, in the premises, is found reasonable and 

here approved. 

ORDER 

Citation No. 2647759 is MODIFIED to reflect its issuance 

under Section 104(a) of the Act rather than Section 104(d) 

thereof, and is otherwise AFFIRMED. 

Withdrawal Order No. 2648041 is AFFIRMED. 

Contestant/Respondent, if it has not previously done so, 

is ordered to pay to the Secretary of Labor within 50 days from 

the date hereof the total sum of $3,000.00 as and for the civil 

penalties agreed on and here assessed. 

Contest Proceedings numbered WEST 89-171-RM and WEST 

89-179-RM are DISMISSED. 

~J;b/Lr-,(7 ?(, ~£t1 ft 

Michael A. Lasher, Jr. 

Administrative Law Judge 

2042 
Distribution: 

Matthew F. McNulty, III, Esq., Vancott, Bagley, Cornwell & 

McCarthy, 50 South Main Street, Suite 1600, Salt Lake City, 

UT 84144 (Certified Mail) 

Edward Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

/ot 

2043 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

OCT 2 3 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION, CMSHA) 

Petitioner 

. . 

. . 

. . Docket No. WEVA 89-20 

A. C. No. 46-01433-03848 

v. . 

. 

. . Loveridge No. 22 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent : 

DECISION 

Appearances: Ronald Gurka, Esq., Office of the Solicitor 

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

for Petitioner1 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Before: Judge Merlin 

This case is a petition for the assessment of a civil 

penalty for an alleged violation filed by the Secretary of 

Labor against Consolidation coal Company, under the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820. An evidentiary hearing was held on September 12, 1989. The parties 

have filed post-hearing briefs. 

Citation No. 3106116 dated August 29, 1988, charges a 

violation of 30 C.F.R. § 75.401 for the following condition 

or practice: 

"Excessive coal dust (visual) can be 

seen during mining operations in the air over 

the continuous mining machine, the dust is 

coming back to the operators compartment, 

through the miner boom and out both side's 

where the mounted roof bolters are located. 

Tom Chickerell is the foreman in charge." 

30 C.F.R. § 75.401 which is a restatement of section 304(b) 

of the Act, 30 u.s.c. § 864Cb), provides as follows: 

§ 75.401 Abatement of dust1 water or 

water with a wetting agent. 

2044 
Where underground mining operations in 

active workings create or raise excessive 

amounts of dust, water or water with a 

wetting agent added to it, or other no less 

effective methods approved by the Secretary 

or his authorized representative shall be 

used to abate such dust. In working places, 

particularly in distances less than 40 feet 

from the face, water, with or without a 

wetting agent, or other no less effective 

methods approved by the Secretary or his 

authorized representative, shall be applied 

to coal dust on the ribs, roof, and floor to 

reduce dispersibility and to minimize the 

explosion hazard. 

30 C.F.R. § 75.401-1 defines "excessive amounts of dust" as 

follows: 

The term "excessive amounts of dust" 

means coal and float coal dust in the air in 

such amounts as to create the potential of an 

explosion hazard. 

At the prehearing conference prior to going on the record 

counsel for both parties agreed to several stipulations which 

were placed on the record at the hearing (Tr. 4). These 

stipulations are as follows: 

1. The operator is the owner and operator of the subject 

mine. 

2. The operator and the mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. I have jurisdiction in this case. 

4. The inspector who issued the subject citation was a duly 

authorized representative of the Secretary. 

5. A true and correct copy of the subject citation was 

properly served upon the operator. 

6. Copies of the subject citation and termination are 

authentic and may be admitted in evidence for purpose of establishing their issuance but not for the purpose establishing 

the truthfulness or relevancy of any statements asserted therein. 

7. Imposition of a penalty will not affect the operator's 

ability to continue in business. 

8. The alleged violation was abated in good faith. 

20_45 
9. The operator's history of violations reveals 999 

assessed violations and 978 inspection days in the 24-month 

period preceding the subject violation, which is an average of 

1.02 violations per inspection day. 

10. The operator's size is large. 

The MSHA insoector testified he was at the mine on the day 

in question to conduct a regular inspection (Tr. 11). Upon 

arrival on the six left section he checked a new conveyor system 

(Tr. 12). He then proceeded to a continuous miner which was 

being operated in a cross-cut (Tr. 12). According to the inspector alot of coal dust was being generated from the cutting bits 

of this continuous miner (Tr. 12). He determined there was 

one-half inch of dust on the right side of the continuous miner 

near the roof bolter (Tr. 16). The inspector described how the 

dust was coming off the front of the miner, the right and left 

sides, and the hinge points (Tr. 18). The dust rolled back from 

the face to the point where the roof bolter was located and then 

further back past the cab of the continuous miner operator (Tr. 

16). The coal was soft and because it was not virgin coal, it 

was dry (Tr. 28). These characteristics created more dust (Tr. 

59). The inspector said the dust was so thick it was like a 

sandstorm CTr. 62). 

Contrary to the inspector's testimony, the operator's safety 

escort who accompanied him stated the dust was normal (Tr. 98). 

He agreed the dust rolled back to where the roof bolter was, but 

said this was normal (Tr. 103). He could not remember whether 

the dust went as far back as the continuous miner operator (Tr. 

105). The operator's respirable dust supervisor who did not 

visit the scene until the day after the citation was issued, did 

not see much difference between the cited continuous miner and 

other machines that were in operation elsewhere (Tr. 75}. He 

agreed that the coal was extremely soft, but said that because 

of this it produced less dust (Tr. 70-71). 

This case therefore, presents the not unusual situation of a 

conflict between the inspector and the operator's witnesses 

regarding the cited condition. After a review of all the evidence I find the inspector's testimony more persuasive. As set 

forth above, his description regarding depth, location, and movement of the dust was more precise and detailed than that of the 

operator's witnesses. The operator's safety escort did not offer 

any specifics to support his conclusion that the dust was normal. 

In fact, his statement written at the time the citation was 

issued contradicted his testimony at the hearing by reporting the 

condition of the area as 11 excessive accumulations of visual dust 

on the miner. 11 (Resp. Exh. No. 2). On the crucial point of 

whether the dust was carried as far back as the continuous miner 

operator, the escort testified he could not remember (Tr. 105i. 

The operator's dust supervisor was not present on the day the 

citation was issued and he offered nothing concrete to support 

2046 
his statement that on the next day he saw nothing unusual CTr. 

75). Then too, conditions in a mine change from day to day and 

shift to shift (Tr. 106). Accordingly, the inspector's 

description of the cited situation is accepted. 

As set forth above, "excessive dust" is defined as 

coal dust in such amounts as to create the potential of an 

explosion hazard. In this connection I accept the inspector's 

testimony that the dust in suspension in the face area was 

sufficient to ignite and that friction from the bits on the 

continuous miner as well as electrical components on the miner 

constituted ignition sources (Tr. 25, 39). In addition, heat 

itself could ignite the dust (Tr. 25, 73). Mining was going on 

while the inspector was present (Tr. 15-16). In light of these 

circumstances, I conclude the dust created the potential of an 

explosion hazard and that therefore, a violation has been 

proved. See Black Diamond Coal Mining Company, 7 FMSHRC 1117, 

1120-1121 (August 1985). 

I have not overlooked the fact that in attempting to abate, 

a second set of extra sprays installed by the operator did not 

help and were removed CTr. 47, 79). This circumstance does not 

affect the existence of a violation as found herein and it does 

not alter the fact that as the inspector stated, the first set of 

additional sprays made the situation alot better (Tr. 45, 47-49). 

I also take note of the operator's argument that no violation 

existed because it was in compliance with its respirable dust 

plan. This assertion cannot be accepted. The record shows only 

that no citation was issued for respirable dust, not that there 

was compliance (Tr. 55). In fact, the respirable dust records 

submitted by the operator were for different dates and places 

than those involved in this case (Resp. Exh. No. 1, Tr. 89-91). 

Finally, although respirable dust and excessive dust violations 

may involve consideration of the same or similar facts they are 

by no means synonymous and one can exist without the other. 

The next issue is whether the violation was significant and 

substantial. The Commission has held that a violation is 

properly designated significant and substantial if, based on the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in 

an injury or illness of a reasonably serious nature. Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained. 

In order to establish that a violation 

of a mandatory safety standard is signif icant and substantial under National Gypsum, 

the Secretary of Labor must prove: Cl) the 

underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard--that 

is, a measure of danger to safety--contri2047 
buted to by the violation; (3) ~ reasonable 

likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

The Commission subsequently explained that the third element 

of the Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury" U. S. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984). 

As set forth above, a violation existed. As explained 

herein the evidence establishes the potential of an explosion 

hazard. Potential means possible. See Websters Third International Dictionary (1986) and Random House Dictionary, Second 

Edition (1987). The possibility of a frictional dust ignition 

presented a discrete safety hazard. However, the evidence does 

not rise to the level of establishing a reasonable likelihood 

that the dust hazard would result in an event in which there 

would be an injury. The inspector described possible ignition 

sources and dust ignition from heat but he did not explain why an 

ignition would be reasonably likely. The inspector said an 

ignition was "highly probable" with this type of equipment but he 

failed to support this assertion (Tr. 39). Finally, although the 

inspector estimated ignition as probable or "highly probable" he 

also portrayed it as "possible" (Tr. 25, 39, 55). In light of 

the foregoing, the finding of significant and substantial is 

vacated. 

As I have previously held, significant and substantial is 

not synonymous with gravity. Secretary of Labor v. A. H. Smith 

Stone Comoany, 11 FMSHRC 1203 (1989). A violation may not rise 

to the level demanded by the Commission for significant and substantial, but still possess a degree of gravity. This is such a 

case. The amount of dust was serious because it presented the 

possibility of explosion or fire. I find gravity was moderate. 

The operator was guilty of ordinary negligence. I accept 

the inspector's testimony that the foreman was in a position to 

see what the inspector saw (Tr. 42). Although the sprays had 

been cleared at the start of the shift it was obvious they were 

not doing the job when the inspector arrived (Tr. 32-33). 

In assessing an appropriate civil penalty good faith abatement is one of the factors to be considered under section llO(i) 

of the Act. 30 u.s.c. § 820Ci). As set out above, the parties 

stipulated to good faith abatement. But particular note is taken 

of the great effort expended by the operator in this respect. 

The remaining llO(i) criteria are covered by the 

stipulations. 

2048 
In light of the foregoing, I determine a penalty of $175 is 

appropriate. 

The post hearing briefs of the parties have been reviewed 

and were very helpful in reaching a decision. The efforts of 

counsel are much appreciated. To the extent the briefs are 

inconsistent with the decision, they are rejected. 

ORDER 

It is ORDERED that the finding of a violation in Citation 

No. 3106116 be AFFIRMED and that the Citation be AFFIRMED. 

It is further ORDERED that the finding of significant and 

substantial be VACATED. 

It is further ORDERED that a penalty of $175 be ASSESSED. 

It is further ORDERED that the operator PAY $175 within 30 

days from the date of this decision. 

- Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Ronald Gurka, Esq., Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Robert Stropp, Esq., UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail> 

/gl 

2049 
BUFORD 

R.J.F. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SMITH, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 4 1989 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 88-201-D 

COAL COMPANY, INC., BARB CD 88-45 

Respondent 

DECISION 

Appearances: Mr. Buford Smith, Hazard, Kentucky, for Complainant~ 

Leon Hollon, Esq., Hollon & Hollon, Hazard, 

Kentucky, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This is before me based upon a Complaint filed by Buford 

Smith (Complainant) on September 14, 1988, alleging discrimination by R.J.F. Coal Company (Respondent) under section 105(c) of 

the Federal Mine Safety and Health Act of 1977 (the Act). On 

April 5, 1989, an Order was issued directing the Respondent,· 

within 30 days of the Order, to file an Answer to the Complaint 

or show good cause for the failure to do so. On June 27, 1989, 

Respondent filed a response to the Show Cause Order, and a Motion 

to Permit Late Filing of the Answer. This response established 

good cause to permit the late filing of the Answer, and the 

Answer is considered as being filed as of June 27, 1989. Pursuant to notice, the case was heard in Johnson City, Tennessee, on 

September 21, 1989. At the hearing Irvin Neace, Claude Branson, 

Gary Goodson, Shade Neace, and Buford Smith testified for 

Complainant. Kevin Moore, Braxton Mullins, Boyd.Wilson testified 

for Respondent. 

Issues 

1. Whether the Complainant has established that he was 

engaged in an activity protected by the Act. 

2. If so, whether the Complainant suffered adverse action 

as the result of the protected activity. 

2050 
3. If so, to what relief is he entitled. 

Stipulations . 

1. At all relevant times iq this action, including 

February 11, 1988 (the date of.layoff), the Respondent, RJF Coal 

Company, operated surface mines located at Vicco in Perr1 and 

Knott Counties, Kentucky, and at Red Oak in Knott County, 

Kentucky. The pcoducts of these coal mines enter the stream of 

commerce ..vithin the meaning of the Act. 

2. Buford Smith, Complainant, first became employed by a 

company known as River Processing, Inc. on August 6, 1981. River 

Processing, Inc. was subsequently acquired by and became a subsidiary of Coal Ridge Fuel, Inc. on Dece~ber 22, 1983. Thereafter, 

the surface coal mining operations of the companies were conducted by an affiliated general partnership, RJF Coal Company. 

Buford Smith was hired by Respondent, RJF.Coal Company, on 

December 23, 1983, and was a "miner" within the meaning of the 

Act. RJF Coal Company was later incorporated and also became a 

subsidiary of Coal Ridge Fuel, Inc. 

3. At the time of the layoff at issue in this case, 

Respondent, RJF Coal Company, employed approximately 130 persons 

at its various operations and at its offices. Of these, approximately 70 were em9loyed in the surface mining operations. 

4. At the time of the layoff on February 11, 1988, 

Complainant, Buford Smith, was earning $10.50 per hour for a 

40-hour week. In addition, he earned $15.75 per hour for any 

hours worked in addition to 40 hours per week. Employees 

recalled from the layoff accepted a 10 percent pay reduction upon 

their return on March 12, 1988. 

5. In late November or early December, 1988, the Board of 

Directors of the Respondent voted to dissolve Respondent, 

RJF Coal Company, in conjunction with negotiations for the acquisition of approximately 50 percent of the outstanding corporate 

stock of Respondent's parent corporation, Coal Ridge Fuel, Inc. 

Articles of Dissolution for Reclpondent were filed with the 

Secretary of State on November 26, 1988. After the sale of the 

stock was consummated on February 1, 1989, the name of RJF's 

cocpocate parent was subsequently changed to Diamond May Coal 

Company·. 

6. Diamond May Coal Company laid off all remaining surface 

coal mining employees of the company at the Red Oak and/or Vicco 

surface mines on July 14, 1989, and has now entered into contract 

mining arrangements for the operation of both mines. The only 

.remaining company employees are employed in its off ice as 

clerical staff or in the field as part of its tipple or reclamation crew. 

2051 
Findings of Fact and conclusions of Law 

Cornpla.inant first became employed by a company knm•m as 

River Processing, Inc. on August 6, 1981. River Processing, Inc. 

was subsequently acquired by and became a subsidiary of Coal Ridge 

Fuel, Inc. on December 22, 1983. , Thereafter, the surface coal 

mining operations of the companies were conducted by an affiliated 

general partnership, RJF Coal Company. Complainant was hired by 

Respondent, RJF Coal Company, on December 23, 1983, and was a 

"miner" within the meaning of the Act. RJF Coal Company was later 

incorporated and also became a subsidiary of Coal Ridge Fuel, Inc. 

Irwin Neace, who worked for Respondent, RJF Coal Company for 

approximately 1 1/2 years commencing in January 1984, indicated 

that during that time he replaced the brake chambers on the 

lowboy that Buford Smith drove for Respondent. Buford Smith indicated that the brakes on his Birmingham Lowboy had been repaired 

by mechanic Irvin Neace, sometime in 1986, but th~~ after that 

time the brakes began to deteriorate. He indicated that he was 

scared to drive the lowboy, but he had to work to support his 

family and send his children to college. He indicated that in 

early 1987 and on several occasions thereafter, he told Jimmy 

Ambergey and Glenn Sharpe, Respondent's mechanics, to work on the 

brakes, as he knew that the lining was gone and that new brakes 

were needed. He indicated that Sharpe told him that he.did not 

have time to work on the bcakes, and Ambergey told him to see the 

foreman Bill O'Donnell. He said that O'Donnell or another supervisor would tell him that he needed to do production work first. 

Specifically, he indicated that when he told O'Donnell in the 

spring of 1987, that he needed to have the orakes fixed on the 

lowboy, O'Donnell said that he would do the best that he could. 

He indicated that whenever he had_ to mo~e a dangerous piece of 

equipment, which occurred daily, he "probably" talked to O'Donnell 

about the brakes (Tr. 78). He said that "several dozen times" he 

mentioned to O'Donnell about the brakes (Tr. 78). He said that 

O'Donnell sometimes said he'll fix it and sometimes he said for 

Smith to see the mechanics. Smith indicaced that on the few 

occasions when he did go to the mechanics, he did not get any 

"action" from the mechanics (Tr. 79). Smith also indicated that 

on "several occasions" over a 2-yeac period prior to his layoff 

in February 1988, he told Lloyd Harvey, Respondent's purchasing 

agent, that the lowboy did not have any brakes, but does not 

recall Harvey's response <Tr. h6). He also indicated that in 

1987, he received a total of a half a dozen citations from the 

Tennessee Department of Transportation ·for faulty brakes. He 

said that when this occurred, he called into Respondent's Office 

2052 
on a CB Radio, but did not receive any response with cegard to 

the citations. He said that when he arrived in the office he 

presented the citations to Harvey who did not say anything. 

Smith also indicated, in essence, that in the summer of 1987, 

after he had an incident where brakes did not work, he spoke to 

Chesten Wooton and told him th~t~the brakes were "out" on the 

lowboy and that it was unsafe (Tr. 95). 

Gary Goodson, one of Respondent's foremen, indicated that 

probably in the fall of 1986, he observed that while Smith was 

driving the lowboy down a wet hill, the brakes locked up and 

agreed that the lowboy slid "quite a ways" (Tr. 48). He indicated that he told Smith the same thing he told other persons, 

i.e., that if he is afraid to operate a piece of equipment he 

should not do so.~/ 

The Commission, in a recent deci3ion, Goff v. Youghiogheny & 

Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reitecated the 

legal standards to be applied in a case wnere a miner has alleged 

acts of discrimination. The Co1nmission, Goff, supra, at 1863, 

stated as follows: 

A complaining miner establishes a prima facie case of 

prohibited discri1nindtion under the Maine Act by proving 

that he engaged in protected activity and that the 

adverse action complained of was motivated in any part 

by that activity. Pasula, 2 FMSHRC at 2797-2800; 

Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The Operator 

may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected 

activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 

(D.C. Cir 1984)~ Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (Specifically approving the Commission's 

Pasula-Robinette test). 

~/ Smith indicated that Goodson told him "if it was me I would 

not drive." Having observed the demeanor of the witnesses I find 

Goodson's version more credible.) Shade Neace was asked whether 

Smith had problems with the brakes on the lowboy and said "you 

better believe it"(Tr. 53). He indicated that in the latter pact 

of 1986, or early 1987, he was driving with Smith on a real steep 

incline and indicated that there were no tractor brakes and the 

tractoc was being pushed by the trailer and the drill. 

2053 
I firid, based upon the above testimony, that Smith did perceive that there was a problem with brakes on the Birmingnarn 

Lowboy, and did communicate this concern to Respondent. As such 

I find that he did engage in protected activities. 

In order for the Complainant to prevail herein, he must 

establish not only that he engaged in protected activities, but 

that adverse action taken against him by Respondent was motivated 

in any part by the protected activities (Secretary on behalf of 

Robinette v. United castle Coal Co., 3 FMSHRC 803, 817-18 (1981)). 

According to Smith, when he spoke with Wooton in the summer of 

1987, and informed him that the brakes were out on the lowboy, 

and that it was unsafe to haul it, the latter told him "you will 

do it if you stay here" (Tr. 94). He also indicated that in the 

summer or fall of 1987, when he was hauling a wide load, he was 

concerned that he might be given a citation by the Tennessee 

Department of Transportation and so informed Howard Woolum (check 

spelling) who told him "~e'll get you out if it takes us 5 years" 

(Tr. 98). He also indicated that O'Donnell threatened him four 

or five times in the summer of 1987 and 1988, and that they 

argued a few times concerning hauling on the steep grade. He 

indicate<l that on one occasion O'Donnell told him that the same 

road that brought him in will take him out. Smith indicated that 

approximately 1 1/2 to 2 weeks before he was laid off in 

February 11, 1988, he turned the Birmingham Lowboy upside down. 

He indicated that when O'Donnell asked him why he did it, he told 

him that he was not going to drive it again as it did not have 

any brakes. He indicated that it had only one good spring out of 

four. He said that O'Donnell told him "it looked like thit was 

about it for me (you)" (Tr. 81, sic). 

Smith indicated that on February 11, 1988, at quitting time, 

35 to 40 employees at Respondent'·s Red Oak location, including 

himself, received a paper indicating that they were laid off 

until further notice due to a slowdown of work. Smith indicated 

that he took it for grant?d that he was fired, and concluded that 

O'Donnell's previous comments in response to his turning the 

Birmingham Lowboy upside down, were to be interpreted as his 

being fired. However, according to the uncontradicted testimony 

of Kevin Moore, the assistant secretary/treasure of Diamond May 

Coal Company, the successor to RJF, the latter was operating at a 

loss for a number of years, and in the mo::lth of January 1988, had 

lost $303,000. He indicated that on February 11, 1988, 

120 employees were laid off, including 70 at the surface and 

reclamation locations. 

2054 
I thus find that Smith's lay off was motivated by 

Respondent's economic conditions. The evidence is insufficient 

to establish. that the lay off of Smith was motivated in any part 

by protected activities.2 

Braxton Mullins indicated.that he, Boyd Wilson, and Lou 

Warrix were asked by Edward L. Clemens, in essence, to act as 

consultants to manage Respondent's above ground operations. 

Mullins, Wilson, and Warrix decided to rehire various categories 

of employees who had been laid off on February 11, and to rehire 

them based upon seniority within the various job categories. 

Mullins obtained a list from Respondent's personnel office 

listing all previously laid off employees and their job titles. 

Mullins had the off ice staff aiso indicate the dates that 

employees were hired by RJF. He then fed this information into a 

computer ana obtained a printout whereby, for each job category, 

the employees were listed in order of seniority. According to 

Braxton and Wilson no other persons were involved in this process 

aside from the two of them and Warrix. In order to reduce mining 

cost, not all employees were called back. Indeed, 20 employees, 

including Smith, who had been laid off on February 11, 1988, were 

not recalled. Those who were rGcalLed were recalled on the basis 

seniority.~/ 

2/ Claude Branson indicated on direct examination that maybe 

5 ionths prior to Smith's dismissal he (Smith) was threatened by 

Larry Bowling, over "thls safety thing" and about "braKes" 

c·rr. 35). Bowling was an owner of Coal Ridge Fuels for whom 

Respondent operated the facility and in which Smith was employed. 

However, I did not place much weight on Branson's testimony in 

this regard as on cross-examination he indicated that the 

incident occurred back in the middle of the summer of 1987, and 

that he did not over hear any conversation between Smith and 

Bowling in which brakes were discussed. 

~/ There were only two exceptions. In one situation, Bowling 

was unable to fill all of the necessary dozer positions. As most 

of of the previous employees, who were dozer operators, already 

had other jobs. Accordingly, Mullins consulted with Foreman 

Donald Hilton, who indicated that another employee had dozer 

experience and he was hired. According to the uncontradicted 

testimony of Mullins, he and Hilton did not discuss Smith in this 

connection. In addition, a decision was made to rehire two day 

shift oilers rather than the night shift oiler who was more 

senior, as there was no need for a night oiler, and the latter 

(day shift oilers) had better experience. 

2055 
Wilson and Mullins indicated with regard to rehiring those 

who were laid off on February 11, 1988, that they had not 

discussed their decision with any of Respondent's foreman or 

supervisors and the decision was made solely by the two of them 

and Warrix:. In contrast, Respondent testified that O'Donnell had 

threatened him, and that O'Donnell was friendly on a social bases 

with Cl~mens, one of the principles of RJF. I find that it is 

mere speculation, and totally without foundation, that O'Donnell 

had discussed the firing of Smith with Clemens. Also I did not 

place much weight on Branson's testimony, that Bowling, a principle in Coal Ridge Fuels, had threatened to dismiss Smith with 

regard to safety of the brakes, as Branson indicated in crossexamination that he did not hear any conversation between the two 

in which the issue of the brakes was discussed. Thus, I find, 

based on the testimony of Mullins and Wilson, that the decision 

not to rehire Smith was based solely on business reasons, and not 

motivated in any part by Smith's protected activities. Hence I 

£ind that Respondent did not discriminate against Smith in violation of section 105(c) of the Act. (See, Secretary on behalf of 

Robinette, supra). 

ORDER 

It is hereby ORDERED that the complaint herein be DISMISSED 

and this case be DISMISSED. 

AL 

Administrative 

is~ Law Judge 

Mr. Buford Smith, Route 2, Box 329, Hazard, KY 41701 (Certified 

Mail) 

Leon Hollon, Esq., Hollon, Hollon, & Hollon, P. O. Box 779, 

Hazard, KY 41701 (Certified Mail) 

dcp 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT241989 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL'rH 

ADMINISTRA'rION CMSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA 

ON BEHALF OF EDWARD BANDISH, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 88-252-R 

Citation No. 3096663; 6/14/88 

Dilworth Mine 

Mine ID 36-04281 

DISCRIMINATION PROCEEDING 

PENN 89-43-D 

PITT CD 88:-21 

Dilworth Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-76 

A. C. No. 36-04281-03652 

Dilworth Mine 

Appearances: Michael J. Healey, Esq., Healey, Davidson & Hornack, 

Pittsburgh, Pennsylvania, for Edward Bandish; 

David J. Laurent, Esq., Polito and Smock, P.C., 

Pittsburgh, Pennsylvania, for Respondent; 

Covette Rooney, Esq., Office of the Solicitor, U. s. 

Department of Labor, Philadelphia, Pennsylvania, for 

the Secretary. 

Before: Judge Weisberger 

Statement of the Cases 

In these consolidated cases, the Operator (Respondent), 

contests a finding by the Secretary (Petitioner), that it violated 

section 103(f) of the Federal Mine Safety and Health Act of 1977, 

2057 
and the Petitioner seeks a civil penalty alleging a violation of 

section 103Cf), supra. In addition, the Complainant seeks various 

declaratory ~elief, alleging that Respondent discriminated against 

him in violation of section 105(c) of the Act, by denying him his 

rights under section 103Cf) to accompany an inspector during an 

inspection of Respondent's mine.· Subsequent to discovery, and 

pursuant to notice, the cases were heard in Pittsburgh, 

Pennsylvania, on July 11, 1989. James Samuel Conrad, Jr. testified 

for Petitioner, Paul Edward Bandish and Larry E. Swift testified 

for Complainant, and Phillip Mark Rebottini, Louis Barletta, Jr., 

and Mark Schultz testified for Respondent. At the hearing, at the 

conclusion of the Petitioner's case, Respondent made a Motion for 

Directed Verdict, and decision was reserved. Post Hearing Briefs 

were submitted by Complainant and Respondent on September 28, 1989. 

Petitioner filed Proposed Findings and Facts and a Memorandum on 

October 1, 1989. 

Stipulations 

1. The Dilworth Mine is owned and operated by the Respondent, 

Consolidation Coal Company. 

2. The Dilworth Mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over these 

proceedings. 

4. The subject Citation and order were properly served by a 

duly authorized representative of the Secretary of Labor, upon an 

agent of the Respondent at the dates, times and places stated 

therein, and may be admitted into evidence for the purpose of 

establishing their issuance, and riot for the truthfulness or 

relevancy of any statements assesued therein. 

5. The assessment of a civil penalty in this proceeding will 

not affect the Respondent's abilit~ to continue in business. 

6. The appropriateness of a penalty, if any, to the size of 

the Respondent's business should be based upon the fact that the 

Respondent's company and mine size are large. 

7. The Dilworth Mine was assessed a total of 368 violations 

over 513 inspection days. 

8. The Parties stipulate to the authenticity of their 

exhibits, but not to their relevance or the truth of the matters 

asserted therein. 

2058 
Findings of Fact and Discussion 

At approximately 11:30 p.m. on June 2, 1988, MSHA Inspector 

James Samuel Conrad, Jr. arrived at Respondent's Dilworth Mine to 

continue a Triple A Inspection during the midnight shift commencing 

12:01 a.m., June 3, 1988. Larry E. Swift, a Safety Committee 

member of the Local Union, was scheduled to work the midnight 

shift, and was the designated wal.l(around to accompany Conrad, and 

Conrad was so informed. Prior to the commencement of the 

inspection, Conrad ran into Paul F.dward Bandish, a miner employed 

by Respondent on its day shift. Bandish, who was not scheduled to 

work the midnight shift, was at the mine to give a section 103(g) 

complaint, concerning certain meetings, to Swift. Banuish, in his 

capacity as Chairman of the Local Safety Committee, requested of 

Conrad to accoinpany him and Swift on the inspection. Neither 

Bandish nor Conrad indicated that Bandish presented any specific 

reason in support of his request. Bandish indicated that he did 

not know that Conrad was going to be conducting an inspection on 

the midnight shift, and Conrad indicated that prior to Bandish's 

request, he had not intended to ask for an additional walkaround. 

In response to Bandish's request, Conrad indicated that he did not 

have any problem with the request, and so informed Bandish. In 

addition Conrad suggested that Bandish in turn check with 

management. Bandish then made his request of the shift foreman, 

-Phillip Mark Rebottini, who in turn conferred with his supervisor 

Mine Superintendent Louis Barletta, Jr. Barletta in turn called 

his supervisor Bill Porter, Respondent's Vice President, who 

checked with legal counsel. Barletta was advised that Respondent 

had the right to deny Bandish access, and Barletta so 'informed 

~ebottini. According to Rebottini, he was informed by Barletta to 

deny Bandish the right to accompany the inspector, inasmuch, as the 

inspector already had a paid walkaround, from the night shift, to 

accompany him and Bandish was a day shift employee. According to 

Conrad he met with Rebottini, Steven Wolf, Bandish, and Swift, in 

the maintenance office, and informed Robottini that "an extra set 

of eyes has always been beneficial in the conducting of my 

inspections," CTr. 43). He also told them that in the past an 

additional walkaround has brought matters to his attention.In this 

connection, Conrad indicated that the belt line was one of the 

items that had not yet been inspected, and there would be a more 

thorough examination with him on one side of the belt line, and the 

additional walkaround (Bandish) on the other side, along with the 

miner's original wal~around and ~espondent's representative. In 

this cortnection he said that he believed that Bandish was 

~nowledgeable and had experience as a ~alkaround. Bandish, in 

essence, corroborated the testimony of Conrad that the latter s~id 

soinething about "his eyes and everybody eyes" (Tr. 109, sic), and 

informed Wolf, Swift, and Rebottini that, in essence, with :nore 

persons present at an inspection, there is a better chance of 

observing conditions. 
Rebottini indicated, on two occasions in his testimony, that 

Conrad said that he had the authority to take as many walkarounds 

as were needed. However, Rebottini indicated specifically that 

Conrad did not use the word "need," and that he did not say that an 

extra set of eyes would aid the inspection. He indicated that 

Conrad did not say anything about needing Bandish, or that having 

Bandish accompany him would aid the inspection. It is significant 

to note that Swift, who was present when Conrad allegedly made a 

statement to the effect that an extra set of eyes would be helpful, 

did not corroborate Conrad's version. According to Swift, Conrad 

merely indicated that if Bandish was not allowed as an additional 

walkaround, he would issue a citation, and that if the Company 

wanted another walkaround, it was acceptable. Also, although 

Bandish corroborated Conrad's version and stated, in essence, 

that, when testifying, he r~nembered all the items he testified to, 

he indicated that, in January 1989, he suffered a head injury which 

affects his memory. Further, it is significant to note that in 

notes contemporaneous to the events at issue, Conrad indicated, in 

essence, that in response to Bandish's request, he had "no trouble" 

with Bandish traveling with him (Goverrunent Exhibit 2). There is 

no reference to an "extra set of eyes" as being helpful, nor is 

there any statement indicating specifically that Bandish would aid 

in the inspection. In the same fashion, in a statement signed by 

Conrad on June 27, 1988, less than 4 weeks after the incidents in 

question occurred, he indicated that "there was no special reason 

for Bandish to travel with me as far as I know." (Respondent's 

Exhibit 1). Further, on cross-examination, Conrad indicated that 

prior to the time Bandish requested to serve as an additional 

walkaround he (Conrad) had no intention to have an additional 

walkaround, and had not determined which areas of the mine to 

inspect. He indicated that there were several areas to inspect, 

including the belt line. Although Bandish had experience as a 

walkaround, and in Conrad's opinion was "knowledgeable," and could 

have observed conditions on the side of the belt line opposite 

where Conrad would walk, it is clear that the regular walkaround, 

Swift, could function in the same manner. Further, it should be 

noted that Bandish did not know that Conrad was to be at the mine 

on the midnight shift, and did not express any intention of going 

to the mine on June 2, to bring any matters to the attention of 

Conrad concerning any underground conditions. (According to 

Bandish, his only reason for being on the premises was to present 

to Swift a 103(g) complaint concerning some meetings). Thus, I 

conclude that there is not sufficient evidence to support a finding 

that Conrad, on June 2, 1988, made any determination that Bandish 

would further aid his inspection. 

In order for the Complainant to prevail in his 105(c) action, 

he must first establish a violation of section 103(f), suora. 

Similarly, Petitioner's petition for assessment of civil penalty is 

predicated upon a violation of section 103(f), supra. As 

2060 
pertinent, section 103(f), supra provides as follows: " ••• To 

the extent that the Secretary or an authorized representative of 

the Secretary determines that more than one cepresentative from 

each Party would further aid the inspection, he can permit each 

Party to have an equal number of such additional representatives." 

Thus, based upon dreading of section 103(f), supra, and giving a 

plain meaning to its terms, it is clear that Respondent has a duty 

to allow an additional walkaround Cand tne Complainant has a right 

to be the additional walkaround), only if the Inspector 

"determines" tnat such additional walKaround "would further aid the 

inspection." In the in~tant case as analyzed above, the evidence 

fails to establish that such a determination was made. 

Accordingly, it is concLuded that Complainant has not established 

that he has been denied the exercise of any rights under section 

103Cf), supra, and has not been aiscriminated against under section 

105(c)(l) of the Act. Similarly, inasmuch as there has not been a 

violation of section 103(f), supra, the petition for assessment of 

civil penalty herein shall be dismissed and the Respondent's Notice 

of Contest shall be sustained. 

ORDER 

1. It is hereby ORDERED that Docket No. PENN 89-43-D be 

DISMISSED. 

2. Docket No. PENN 89-76 be DISMISSED. 

3. The Notice of Contest, Docket No. PENN 88-252-R, is 

SUSTAINED. 

Avram 

·Ll~ Weisberger 

Administrative Law Judge 

Distribution: 

Michael Healey, Esq., Healey, Davidson & Hornack, 1906 Law and 

Finance Boulevard, Pittsburgh, PA 19219 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Covette Rooney, Esq., Office of the Solicitor, u. s. Depactment of 

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

Philadelphia, PA 19104 (Certified Mail) 

dcp 

2061 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

TUNNEL'rON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TUNNELTON MINING COMPANY, 

Respondent 

OCT 2 4 1989 . ... 

. . 

. . 

: 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 88-258-R 

Citation No. 2888637; 6/21/88 

Marion Mine 

Mine ID 36-00929 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-333 

A. C. No. 36-00929-03638 

Marion Mine 

Appearances: Joseph Yuhas, Esq., Tunnelton Mining Company, 

Ebensburg, Pennsylvania, for the Respondent; 

Thomas A. Brown, Esq., Office of the Solicitor, 

U. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary. 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated cases, the Secretary (Petitioner) 

seeks a civil penalty for an alleged violation by the Operator 

(Respondent) of 30 C.F.R. § 77.1710Ch). Pursuant to notice, these 

cases were heard in Bellefonte, Pennsylvania on June 19, 1989. Rex 

Margart and Kenneth Dice testified for· Petitioner, and Harold 

Kirru~el and Darryl Hanna testified for Respondent. Proposed 

Findings of Fact and Memorandum of Law were filed by Respondent and 

Petitioner on September 21 and 25, 1989, respectively. A Reply 

Brief was filed by Respondent on October 1, 1989. 

2062 
Stipulations 

1. The Marion Mine is owned and operated by Respondent, 

Tunnelton Mining Company. Tunnelton Mining Company is a subsidiary of the Pennsylvania Mines Corporation. 

2. Tunnelton Mining Company and the Marion Mine are subject 

to the jurisdiction of the Federal Mine Safety and Health Act of 

1977. 

3. The Administrative Law Judge has jurisdiction over this 

proceeding, pursuant to Section 105 of the 1977 Act. 

4. The inspector who issued the subject citation was a duly 

authorized representative of the Secretary of Labor. 

5. A true and correct copy of the subject citation was 

properly served upon the Operator in accordance ~ith Section 104 

of the 1977 Act. 

6. Copies of the subject citation and termination may be 

admitted into evidence for the purposes of establishing their 

issuance, and not for truthfulness or relevance of any statements 

asserted therein. 

7. Respondent demonstrated good faith in the abatement of 

the citation. 

8. The assessment of a civil penalty will not affect 

Respondent's ability to continue in business. 

9. The Respondent's annual production tonnage is 

1,435,690 tons. 

10. The Marion Mine produces an annual production of 

773,668 tons. 

11. Tunnelton Mining Company was assessed 327 violations 

over 522 inspection days during the 24 months pl:'.'eceding the 

issuance of the subject citation. 

12. 'l?he printout of the civil penalty complaint reflects the 

Secretacy of Labor's history of violations at the Marion Mine. 

Findings of Fact and Discussion 

I. 

On June 21, 1988, Respondent's employees Harold Kimmel and 

Darryl Hanna, W·8re in the process of reil\oving a pump from a. "'1ater 

clariEier bin in order to reoaic it. Hanna stood on a catwalk 

alongside a boom post and wa~ catcheting a chain in order to 

2063 
raise the pump which was submerged in the bin. Kimmel was 

approximately 4 feet below Hanna, and had his left foot on a 

4 inch angle iron and his right foot on a pipe. He had his knee 

on a pipe and was leaning over the bin in order to attach a chain 

to the pump. (See, Government Exhibits 3-A, 6, 7, and 8 for a 

depiction of the position of Kimniel's right leg CR) and left 

leg CL), as testified to by Rex Morgart, an MSHA Inspector.) 

Although the testimony of Kimmel and Hanna was at variance with 

that of Morgart with regard to where the former had positioned 

his left foot, I accept the version testified to by Morgart, due 

to my observations of the witness' demeanor on this point, and 

also due to the fact that Morgart's testimony related specifically to what was observed by him, whereas the testimony of 

Kimmel did not specifically describe the placement of his left 

foot when he was observed by Morgart.l/ Kimmel thus was 

positioned in a leaning over position-facing away from the 

catwalk and above the water. He was approximately 2 to 3 feet 

from the top of the water, and the water was approximately 

12 feet deep. Kimmel had his left hand either on the structure 

or the chain, and was using his right hand to unhook the chain 

from the pump. According to Kimmel, the pump, which was 

approximately 18 inches in diameter, was located a couple of feet 

in front of him when he reached for the chain. 

Kenneth Dice, a mechanic for Respondent who accompanied 

Morgart on his inspection, indicated that the pump was directly 

below Kimmel, and that Kimmel was probably "a wee bit" to the 

right. I accepted the testimony of Kimmel with regard to the 

position of the pump, relative to where he was working, as he was 

directly involved in the operation, and the record does not indicate where Dice was standing in relation to Kimmel. Thus, 

inasmuch as Ki1~~el was straddling a structure, had his left foot 

on an angle-iron that was only 4 inches wide, was holding on with 

only his left hand, leaning over water located about 2 feet. below 

him, and reaching below him, I conclude that a reasonably prudent 

person would have recognized a danger of falling, and would have 

worn a lift jacket or belt. Accordingly, I find that Respondent 

herein did violate section 77.1710Ch). (See Austin Power, Inc., 

9 FMSHRC 2015 (December 1937). 

,!/ Hanna testified in general as to where Kimmel stood, but did 

not specifically contradict Morgart's testimony with regard to 

the placemeni: of Kimmel's feet as Jepicted in Government 

Exhibit 3A, 6, 7, and 8. 

2064 
II. 

Morgart indicated that in his opinion the violation herein 

was significant and substantial in tnat, if a worker would be _ 

without a belr. or life jacket every time ti.1e pump was brought up, 

then there would be "a chance 11 ·of a fatality or a serious injury 

(Tr. 38). He said that there have been serious injuries in 

falling over the top of a bin including fatalities. He said, in 

essence, over a period of time there would be a reasonably likelihood for one to drown or lose one's balance, and strike one's 

head against two or three objects which were present. Dice 

opined that there was a "very good chance" of slipping and 

hitting one's head on a railing (Tr. 61) He said that in such an 

event a person" ••• could have knocked himself out or drowned." 

(Tr. 61, emphasis added.) 

In order for a violation to be significant and substantial, 

in addition to establishing a violation of a illandatory safety 

standard and a discrete safety hazard, it must be established 

that there was a reasonable likelihood that the hazard contributed to would result in an injury-producing event. (See, 

Mathies Coal Company 6 FMSHRC at 3-4 (January 1984); Austin Power 

Inc., supra.) The discrete safety hazard contributed to by the 

violation herein,k was the danger of falling into the water. 

However, Kinunel was supported by the placement of his legs. In 

addition, he was being supported by his left hand by holding onto 

the chain or structure, and all stationary obstructions were to 

his rear, the opposite direction in which he was facing. 

Further, the pump was approximately 5 feet below the surface, 

according to the uncondraticted testimony of Hanna, and Kimmel 

was only approximately 2 feet above the surface of the water. 

Also, although Kem.~el was fully clothed and had on shoes with 

steel toes, he knew how to swim, and was working approximately 

4 feet away, and in the view of Hanna throughout the time he was 

working. Hanna, although also wearing shoes with steel toes, was 

able to swim, and had at his feet a 1 inch aluminum pipe, approxi1nately 8 to 10 feet long, which collld have been used to save 

Kimmel had he fallen in. Also, a rope and an inflated rubber 

tube was approximately 20 to 25 feet away, and down a ladder. 

For all these reasons I conclude that it has not been established 

that there was a reasonable likelihood of the occurrence of an 

injury of a reasonably serious nature. Hence, I conclude that it 

has not been established that the violation herein was signif icant and substantial (See, Mathies Coal Company, supra). CC.F. 

Austin Power, Inc., supra.) 

III. 

Both Hanna and Kirrunel knew that Kimmel wa.s working straddling two structures, and leaning over the bin containing water. 

Kimmel's testimony was to the effect that approximately once a 

year or less he has had to perform similar work pulling up a pump. 

2065 
As outlined above, I., infra, a reasonably prudent person would 

have realized that there was some danger to Kimmel of falling 

into the water. Safety belts were avaiiable at the office of 

Kimmel's supervisor, Kirk McKnight, but neither a belt nor a life 

jacket was provided to Kimmel. Accordingly, I find that the 

violation herein resulted from Respondent's aggravated conduct 

and as such constitutes unwarrantable failure. (See, Emery 

Mining Corp., 9 FMSHRC 1997 (1987))~/ 

IV 

I find that the gravity of the violation herein to be less 

then moderate, taking into account the factors discuss in II, 

infra. Inasmuch as Respondent failed to act as a reasonable 

prudent person as set forth in I., infra, I conclude that 

Respondent's negligence herein was of a moderately high degree. 

Considering these factors, as well as the remaining factors set 

forth in section llO(i) of the Act, I find that a penalty herein 

of $75 is appropriate for the violation of section 77.1710Ch), 

supra. 

ORDER 

It is ORDERED that Order 2888637 be amended to reflect the 

fact that the violation herein is not significant and substantial. 

It is further ORDERED that Respondent shall, within 30 days of 

this Decision, pay $75 as a civil penalty for the violation found 

herein. 

i!weis~ Administrative Law Judge 

2/ I find that the cases relied on by Respondent at Pages 14-15 

~f its Brief are not dispositive of the issues presented herein. 

In Secretary v. Florence Mining Co., 11 FMSHRC 747 (1989), the 

Commission held that the Operator's conduct did not constitute an 

unwarrantaole failure as it was based on its good faith 

interpretation of the requirements of an approved emergency 

escape facilities plan. In Secretary v. Rochester and Pittsburgh 

Coal Co., 9 FMSHRC 2069 (1987), Judge Koutras held that the 

Operator's negligence was to be mitigated as it was based upon an 

interpretation of provision~ of a ventilation plan. Reasonable 

persons can differ with regard to the interpretation of various 

terms of ventilation plans. In contrast, in the case at bar, 

Respondent's conduct was as a consequence of failing to act as a 

reasonably prudent person. (Infra, I). 

2066 
Distribution: 

Joseph A. Yuhas, Esq., Tunnelton Mining Company, P. O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

Thomas A. Brown, Esq., Office of~the Solicitor, U. s. Department 

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

Philadelphia, PA 19140 (Certified Mail) 

dcp 

2067 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 7 1989 

PEABODY COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. Docket No. WEVA 88-239-R 

Order No. 3141311; 4/19/88 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Robinhood No. 9 Mine 

Mine ID 46-02143 

Appearances: 

Before: 

DECISION 

Thomas L. Clarke, Esq., Peabody Coal Company, 

Charleston, West Virginia, for the Contestant; 

Ronald E. Gurka, Esq., Office of the Solicitor, 

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

the Respondent. 

Judge Koutras 

statement of the Case 

This proceeding concerns a Notice of Contest filed by the 

contestant against the respondent challenging the validity of a 

withdrawal order issued pursuant.to section 104(b) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 814(b) ~ The 

contestant also seeks to challenge the underlying section 104(a) 

citation. The respondent filed a timely answer to the contest, 

and asserted that the order was properly issued and that a 

violation of the cited mandatory standard did in fact occur. A 

hearing was held in Charleston, West Virginia, and the parties 

appeared and participated fully therein. The parties filed 

posthearing briefs, and I have considered their respective 

arguments in the course of my adjudication of this matter. 

Issues 

The issues in this case are (1) whether the contestant 

violated the provisions of mandatory respirable dust health 

standard 30 C.F.R. § 70.101, as stated in the contested section 

104(a) citation, and (2) whether the inspector who issued the 

section 104(b) order properly determined that the violation had 

2068 
not been timely abated and that the period of time for abatement 

should not be further extended. 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, 

30 u.s.c. § 301, et seq. 

2. Sections 104(a) and 104(b) of the Act. 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

4. Mandatory respirable dust standard 30 C.F.R. § 70.101. 

Discussion 

During opening statements at the hearing, MSHA's counsel 

stated that on March 22, 1988, a section 104(a) citation was 

served on the contestant citing it with a violation of mandatory 

respirable dust standard 30 C.F.R. § 70.101. The contestant did 

not contest the citation, and it paid the civil penalty assessment for the violation. Although counsel recognizes the fact 

that the contestant takes the position that the penalty was 

inadvertently paid, he nonetheless asserted that pursuant to 

section 105(a) of the Act, since the contestant did not contest 

the citation or the penalty, the citation has become final and 

not subject to further review (Tr. 6, 13). 

MSHA's counsel stated that after the issuance of the citation, the contestant was afforded time to abate the condition and 

to come into compliance with the .respirable dust requirements. 

The abatement time was extended, and the contestant submitted 

dust samples which it had collected on or about April 12-14, 

1988. Since these samples exceeded the required dust levels 

mandated by section 75.101, MSHA Inspector Orville Boggs issued a 

section 104(b) Order on April 19, 1988, and this order is the 

subject of the instant proceeding. Counsel stated that the 

issues presented with respect to the order are (1) whether or not 

the initial citation was abated within the time fixed by the 

inspector, and if not (2) whether the failure of the inspector to 

further extend the abatement time was reasonable or unreasonable 

in the circumstances (Tr. 7). 

Contestant's counsel agreed that the issue presented in this 

case is whether or not the abatement time for compliance should 

have been extended further, and whether or not the contested 

order was appropriate under the circumstances. Counsel asserted 

that the contestant made every reasonable effort to abate the 

violation in light of the dust control system in use at the mine, 

2069 
that MSHA was basically aware of these efforts, and that the time 

for abatement should have been extended (Tr. 8). 

With regard to the payment of the civil penalty assessment 

for the citation which preceded the contested order, contestant's 

counsel asserted that payment was made through an inadvertent 

mistake after MSHA informed the contestant that it would 

institute a formal collection action for payment of the penalty 

(Tr. 9). 

During a bench colloquy, contestant's counsel confirmed that 

while the contestant may have doubted the cited respirable dust 

level of 3.5, that resulted in the issuance of the citation, it 

did not contest the citation (Tr. 10). Counsel agreed that the 

order was issued after the contestant submitted additional 

samples which reflected sample results of 2.6 when tested by 

MSHA. Counsel asserted that the contestant disagrees with MSHA's 

test results, and that its own independent weighing of the 

sampling cassettes at its laboratory reflects compliance with the 

required MSHA dust standards. Further, counsel asserted that the 

contestant was making every effort to obtain compliance, and was 

attempting to isolate any dust problem which resulted in the high 

sampling results being received by MSHA, but had been unable to 

do so at the time the order was issued. Counsel asserted that 

"the inspector knew about this and perhaps even sympathized with 

our problems" (Tr. 12) . Counsel identified the "mechanized · 

mining unit" which was out of compliance as a continuous-mining 

machine equipped with a scrubbing device which is used for dust 

control purposes (Tr. 13). 

The initial section 104(a) "S&S" Citation No. 9959601, was 

served on the contestant by certified mail on March 22, 1988, and 

it cites a violation of mandatory respirable dust health standard 

30 C.F.R. § 70.101, for the following condition or practice: 

Based 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 o~cupation in mechanized mining unit 017-0 

was 3.5 ~g/m which exceeded the applicable limit of 

1.5 mg/m . Management shall take corrective actions to 

lower the respirable dust and then sample each production shift until five valid samples are taken and 

submitted to the Pittsburgh Dust Processing Laboratory. 

The citation was signed by MSHA Inspector Billy G. Wiley, 

and he established April 13, 1988, as the abatement time for the 

violation. Inspector Wiley modified the citation on April 11, 

1988, "to allow the operator to send respirable dust samples to 

the Mt. Hope Respirable Dust Processing Laboratory." The citation was modified again on April 13, 1988, by MSHA Inspector 

Orville E. Boggs, and the abatement time was extended to 
April 18, 1988, "to allow the operator more time to collect the 

needed respirable dust samples on the MMU 017." 

On April 19, 1988, Inspector Boggs issued a section 104(b) 

Order No. 3141311, withdrawing the 3 North 017-0 section from 

production, and his reasons for this action are stated as follows 

in the order: 

Based on the results of five (5) respirable dust 

samples collected and submitted by the operator on 

April 13, 14, and 15, 1988, on the designated occupation 036 in MMU 017-0, the average conce~tration of 

respirable dust was 2.6 milligrams (mg/m ~ which 

exceeded the applicable limit of 1.5 mg/m . 

The operator has failed to adequately control the 

respirable dust in the working environment of designated occupation 036 continuous miner operators in the 

3 North 017-0 section. 

On 2:30 p.m., on April 19, 1988, Inspector Boggs modified 

the order, and the modification states as follows: 

The operator has submitted and implemented a 

revised respirable dust-control plan. Therefore, this 

order is modified to permit the operator to collect 

respirable dust samples on MMU 017-0 to determine if 

compliance is attained. 

The order was terminated by Mr. Boggs on April 21, 1988, and 

the reason for this is stated as follows on the face of the 

notification notice: 

Based on the results of six (6) valid samples 

collected during an MSHA inspection, the respirable 

dust concentrations on the designated occupation 

(continuous miner oper~tor -036) in mechanized mining 

unit 017-0 is o.7 mg/m which is within applicable 

limit of 1.5 mg/m3 . The section average was 0.4 mg/m3 . 

MSHA's Testimony and Evidence 

Donald L. Jennings, MSHA Physical Science Technician, 

Mt. Hope, West Virginia, testified as to her experience and 

training, and she stated that her duties include the testing and 

weighing of respirable dust samples submitted by mine operators 

and MSHA inspectors for analysis to insure compliance with MSHA's 

Part 70 respirable dust standards. In addition to the testing of 

these samples, she is also involved in the calibration and maintenance of the laboratory test equipment. She stated that she is 

familiar with the dust samples submitted by the contestant on 

April 12 and 14, 1988, and she confirmed that she weighed and 

2071 
tested the samples, and she explained the laboratory procedures 

which she followed, including the use of an air sampling pump, 

and a balance device. She demonstrated the testing procedures 

she followed by references to two dust sampling cassettes, and 

she explained the calibration procedures she followed, and the 

recording of her test results on certain records which she maintained in the course of her duties. (Exhibits G-1, G-2, G-3 

Joint Exhibits 1 and 2). 

Mrs. Jennings confirmed that all dust samples received at 

the laboratory are weighed on the same day they are received, and 

she explained how she determines and documents the initial weight 

of the dust sample cassette, the final weight as determined by 

her laboratory procedures, and the method by which she determines 

the concentrations of respirable dust as converted to an equivalent MRE concentration as measured with the approved MSHA 

sampling devices and instruments. 

Mrs. Jennings stated that some of the dust cassettes 

received in the laboratory are scratched and scuffed up, contain 

holes, and sometimes are broken. She confirmed that appropriate 

steps are taken to insure against contaminated cassettes (Tr. 

15-35). 

On cross-examination, Mrs. Jennings stated that she sometimes receives over-sized particles in the samples she receives, 

and she indicated the cyclonic action of the air pumping device 

used to test the samples is designed to take up these particles. 

Although such oversized samples are not considered to be respirable dust, they will be weighed if they are inside the cassette. 

She also explained the use of a balance and desiccator which is 

located on a heavy "brinkman table" located in the laboratory, 

and she did not believe that she .made any mistakes in the procedures she follows in weighing and testing the samples and in 

calculating the results of her weighing and sampling (Tr. 35-45). 

Ambrose Kokoski, MSHA mining engineering technician, 

Mt. Hope, West Virginia, testified as to his background and 

experience, and he confirmed that he was familiar with the respirable dust samples processed by Mrs. Jennings. He stated that he 

trained Mrs. Jennings when she was first employed in the Mt. Hope 

office, and he agreed that the laboratory procedures she followed 

in weighing and testing the samples in question were correct, and 

that she routinely follows these procedures for every sample 

which she processes. 

Mr. Kokoski stated he "checked weighed" two of the samples 

processed by Mrs. Jennings as shown in exhibit G-2, to verify the 

accuracy of her weighing procedures and documentation, and that 

he initialed the record verifying the accuracy of her weighing of 

the samples, and placed a check mark next to the samples which he 

verified. He stated that he used a different sampling balance 

2072 
machine in checking her sample weighing results, and that he also 

initialed the back of the cassette sampling card verifying the 

results of his weighing of the samples, as shown in exhibit G-1 

(Tr. 45-51). 

Robert A. Thaxton, supervisory industrial hygienist, MSHA, 

Mt. Hope, West Virginia, testified as to his background, experience, and education, and stated that he holds a BS degree in 

Chemistry, with a minor in math, and a Master's degree in 

Occupational Health and Safety Engineering. He confirmed that 

the laboratory technicians at Mt. Hope, including Ms. Jennings 

and Mr. Kokoski, .work directly under his supervision. 

Mr. Thaxton stated that he was familiar with the dust conditions at the mine in question through his review of respirable 

dust samples and compliance problems that come to his attention 

with respect to the mine. He identified exhibit G-4 as a copy of 

pages from a log book maintained at the lab showing the results 

of respirable dust sampling for various mining units at the mine, 

and he confirmed that on the basis of the collected samples for 

the cited MMU 017 section, the respirable dust standard for this 

unit was computed at 1.5 milligrams of respirable dust per cubic 

meter of air, as of August, 1987 (Tr. 51-61). 

Mr. Thaxton also identified certain MSHA records concerning 

respirable dust citations issued at the mine, and he confirmed 

that he reviewed the FY 1987 compliance records in 1988 to identify the mines which are to be placed under MSHA's "increased 

awareness" because of a repeat respirable dust non-compliance 

history. He confirmed that a mine which has two citations in any 

one year on any one mining entity is targeted by MSHA for 

increased attention under its "target mine program" for repeat 

non-compliance (Tr. 64). 

Mr. Thaxton stated that dust samples submitted by mine 

operators are usually weighed at MSHA's laboratory in Pittsburgh, 

and that targeted mine samples may also be sent to the Mt. Hope 

laboratory because that lab has a quicker "turnaround" time for 

weighing and processing samples (Tr. 66). Mr. Thaxton explained 

MSHA's target mine program, and he confirmed that he developed 

the program for MSHA District No. 4. He also confirmed that the 

contestant's mine was under this program in 1988 and 1989, and 

that some of its employees who were in attendance at the hearing 

attended some of the MSHA meeting under this program (Tr. 67-69). 

Mr. Thaxton confirmed that the compliance information he 

reviewed indicates that in FY 1987, the mine received two citations for violations of section 70.101, on the 015 MMU unit. He 

explained that an MMU, or mechanized mining unit, consists of a 

continuous-mining machine, shuttle cars, and a roof bolter, and 

that the dust samples taken and submitted by the contestant are 

taken only of the designated occupation, which in this case is 

2073 
the continuous-miner operator. The roof bolter and scoop operator are not sampled because the designated occupation (miner 

operator) is representative of the "worse case situation" on the 

entire MMU because the miner operator would be in the highest 

concentration of dust generated on the unit. Mr. Thaxton concluded that based on the two citations in question, the mine, in 

1987, had a problem with respirable dust, and that the two citations represent the amount of high dust levels to which the men 

on the MMU unit in question were exposed for a 4-month period out 

of the total 12 months in the year (Tr. 73-74). 

Mr. Thaxton identified exhibit G-5, as a compilation of the 

respirable dust sampling reports concerning the 017 MMU unit at 

the mine, and he explained that five valid dust samples are 

required to be collected bi-monthly for the designated occupation, and that an average of five samples taken together will 

establish an average concentration of dust which is then compared 

against the actual standard established for the particular MMU in 

question. He explained the laboratory procedures, including the 

handling of oversized particles, and he identified the dust 

sample results used to support the citation issued on March 22, 

1988 (Tr. 78). He also identified the samples taken on April 7 

and 19, 1988, which indicate average concentrations of respirable 

dust of 2.5 and 2.6 respectively, both of which still exceeded 

the 1.5 standard established for the cited MMU in question (Tr. 

80) • 

When asked to comment about the significance of the aforementioned sample results on the 017 MMU, and the contestant's 

compliance efforts, Mr. Thaxton stated as follows (Tr. 81-82): 

A. The samples of all three groups of samples submitted by the operator all exceeded the standard. Some 

of the samples did have some variation to them, some 

being low, some being higher than others. This indicated to us, looking at the reports of the three sets 

of samples collected by the operator that sufficient 

action had not been taken to reduce the dust below the 

standard and the last two surveys were about the same 

thing, and therefore we had a time period there that I 

am not sure what would have been done to reduce the 

dust. Whatever action was taken was significant enough 

to reduce the dust levels. 

* * * * * * * 

A. By them all being above the standards then that 

indicates to me that the planned parameters for the 

dust controls that are actually in place on this MMU 

are probably inadequate or are not being followed on a 

routine basis. If we had samples that fluctuated 

dramatically up and down, some being extremely low and 

2074 
some being extremely high, then that resulted in an 

average concentration that exceeded the standard, then 

we might say that there are some isolated problems in 

the way that the mine is being operated, the miner is 

being operated. It may contribute to the dust problem, 

but with consistent results showing over ten samples, 

which was ten shifts or ten different days, that the 

dust concentrations were very uniform, that they were 

never below the 1.5 standard. 

Mr. Thaxton confirmed that he has never been in the 

Robinhood No. 9 Mine. He stated that the measures taken on an 

MMU continuous miner to control dust would include ventilation 

controls around the miner, use of water sprays or wetting agents, 

and the use of a scrubbing unit. He stated that a complete 

change over to a scrubbing system on a machine may take 3 weeks, 

and that simply altering the water sprays may take as little as 

one or 2 days. If an operator is under MSHA's target program 

with respect to a non-compliance problem, MSHA would expect it to 

take stronger action once it is out of compliance and to insure 

the use of necessary dust controls (Tr. 84). 

On cross-examination, Mr. Thaxton confirmed that the MMU 

unit which was cited in both the disputed citation and order is 

the 017 unit, and the applicable respirable dust standard 

established by the appropriate sampling cycles for this unit is 

1.5 (Tr. 84). Mr. Thaxton confirmed that the 017 MMU was cited 

one time in FY 1989 for a violation of section 70.101, and that 

the citation was terminated when the unit was abandoned and 

removed from the mine on March 1, 1989. He also confirmed that 

the unit was cited two times in 1988 for violations of section 

70.101 (Tr. 85), and that for the past three fiscal years, the 

unit has been cited a total of three times for violations of 

70.101 (Tr. 90). 

Mr. Thaxton confirmed that he had no personal knowledge of 

the actions taken by the contestant in this case after receiving 

the citation, and that the basis for any conclusion on his part 

that the mine might have a particular dust problem is based on 

the "historical data" from the mine which indicates "that they 

possibly have problems with this particular MMU because of the 

repeat non-compliance." In support of his conclusions that there 

is a "problem," Mr. Thaxton stated that "two violations in any 

one fiscal year in any one entity indicates a potential for 

problems on that particular entity" (Tr. 91). He conceded that 

he does not know what may be the "cause" of any "problem," and he 

conceded that in order to abate a dust violation, the operator 

must have some knowledge as to what caused it, and that in order 

to effectively abate a violation, the operator must have enough 

time to discover what is causing it (Tr. 91). 

2075 
Mr. Thaxton stated that when an inspector modifies a citation to permit an operator to take additional samples, he does so 

because an operator usually indicates that he has adopted some 

additional dust controls and needs time to obtain and submit 

additional samples to the laboratory for analyses (Tr. 93). 

Mr. Thaxton stated that it is normal procedure for an inspector 

to issue a withdrawal order if he determines that there has been 

an insufficient effort made to control the dust. In the instant 

case, he pointed out that the contestant took two sets of samples 

after being initially cited, and that after the second extension 

of the citation, which still reflected non-compliance based on 

the additional $ampling, Inspector Boggs determined that the 

contestant had made an insufficient effort to control the dust 

(Tr.94). 

Mr. Thaxton confirmed that he did not discuss the violation 

with Inspector Boggs, and that he (Thaxton) received no information with respect to any particular dust problem which may have 

caused the contestant to be out of compliance. He confirmed that 

the only information available to him is the methane dust-control 

plans that are submitted by the contestant for the MMU in question, including any changes made after a citation is issued, and 

any new plans which may be submitted (Tr. 95). Mr. Thaxton 

stated that an operator is required to make some changes in its 

dust-control plan and sample again, or else they are not given an 

extension. He confirmed that he saw no meaningful changes made 

by the contestant in this case, and that the MMU went back out of 

compliance at the end of the fiscal year, and was abandoned and 

is no longer available (Tr. 96). 

Mr. Thaxton stated that the "target" mine in question is 

assigned to Madison sub-district office supervisor Henry Keith, 

and he confirmed that he has memos from Mr. Keith indicating that 

"he has made contacts with the operator," but has no information 

as what the problem may be (Tr. 98). When asked whether anyone 

has ever identified the respirable dust problem in question, 

Mr. Thaxton responded as follows (Tr. 98): 

THE WITNESS: In some cases. This miner is a continuous miner with a scrubber on it, deep cut. Those 

miners typically have no problem in maintaining dust 

compliance. It usually relates to, in this case, this 

miner having reduced standards, I expect that they are 

cutting rock. Scrubbers have a harder time being 

maintained when you are cutting rock. They tend to 

clog up, they lose their efficiency faster. The fact 

that they are cutting rock and having the quartz it 

also reduces the standard and they have less room to 

work with. Those things are what basically if we are 

getting citations on that one particular entity. 

2076 
Mr. Thaxton stated that in the event Inspector Boggs was not 

aware of any action taken by the contestant to abate the violation, and that if all that was done by the contestant was to take 

additional samples, the inspector would be justified in issuing a 

section 104(b) withdrawal order. Mr. Thaxton stated further that 

MSHA's policy is that if an inspector determines that an operator 

has made no effort to control dust, and simply submits additional 

samples, and the samples show continued noncompliance, the 

inspector is instructed not to extend the abatement time further 

and to issue a section 104(b) order (Tr. 99). 

Gary Turley; MSHA physical science technician, Madison, 

West Virginia, testified as to his experience and training, and 

he confirmed that he holds certifications in dust sampling, 

maintenance, calibration, and noise sampling, and that his duties 

include the weighing and testing of respirable dust samples 

submitted to his office laboratory. He confirmed that he is 

familiar with MSHA's Mt. Hope laboratory and that the Madison 

facility is essentially the same. He also confirmed that the 

dust sampling testing procedures which he follows are the same as 

those performed by Mrs. Jennings at the Mt. Hope Office, that the 

same type of balance machines are used, and that his testing 

procedures are routinely made for all of the samples which he 

tests, processes, and documents. 

Mr. Turley stated that he was familiar with the dust samples 

processed in this case, and he confirmed that the samples taken 

by Inspector Boggs to abate the contested order were submitted to 

him for testing and analysis, and that they show compliance with 

the respirable dust requirements of section 70.101, for the 

continuous miner occupation on the 017 mechanized mining unit 

(exhibits G-6, G-7; Tr. 100-103). 

Mr. Turley explained that the prior samples were taken to 

the Mt. Hope laboratory because they were samples submitted by 

the operator, and that Mr. Boggs' samples were submitted to the 

Madison laboratory because they were samples taken by Mr. Boggs 

(Tr. 103) . 

On cross-examination, Mr. Turley stated that MSHA purchases 

its dust sampling cassette devices from the MSA Manufacturing 

Company, and that the cassettes used by Inspector Boggs were 

obtained from MSHA's Madison Office (Tr. 106). 

The parties agreed to the taking of the posthearing deposition of MSHA Inspector Orville E. Boggs, who was unavailable at 

the hearing. 

Inspector Boggs testified as to his experience and training, 

and he confirmed that he was familiar with the subject mine, has 

inspected it several times since 1980, and that he was assigned 

to conduct an inspection at the mine during the spring of 1988. 

2077 
He stated that the March 22, 1988, respirable dust citation was 

issued on the basis of computerized information reflecting noncompliance with the respirable dust standard. Mr. Boggs stated 

that Inspector Wiley informed him of the citation, and that he 

and Mr. Wiley issued two extensions of the abatement times to 

allow for more samples to be sent to MSHA's labs (Tr. 3-8). 

Mr. Boggs could not specifically recall the reason for his 

extending the abatement time with respect to the citation, and he 

speculated that the contestant may have had an equipment breakdown on the section, and if this occurs, the production cycle is 

stopped, and mining moves to another spare production section. 

He confirmed that he would not have extended the abatement time 

if the contestant were not attempting to abate the violation in 

good faith (Tr. 9). 

With regard to the issuance of the contested section 104(b) 

order, Mr. Boggs stated that he based the order on the fact that 

the dust samples submitted by the contestant for April 13, 14, 

and 15, 1988, reflected that the cited section was out of compliance. He stated that he "had no choice but to issue the 

order" for the failure by the contestant to abate the violation, 

and he explained as follows (Tr. 10-11): 

Q. Why do you say you had no choice? 

A. Well, we gave a reasonable time. We gave them a 

full second cycle. See, they got in trouble in March 

on their cycle. On their normal cycles, they sampled 

and they were out of compliance. Something's wrong. 

So we gave them -- they got the (a) citation, giving 

them a reasonable time to sample again and get into 

compliance. 

Q. Why do you think that that was a reasonable time? 

A. What did they need? They needed five samples, five 

valid samples. They had a reasonable time to get it if 

they would run five sections. If they run five production shifts, they would take those five continuous. 

Mr. Boggs could not recall whether or not the contestant 

ever discussed any equipment problems with him, or informed him 

that additional time was required to abate the condition. He 

recalled that the contestant discussed the matter with his supervisor Henry Keith, but he could not recall being present during 

this discussion. Mr. Boggs confirmed that he was at the mine 

between the time the citation and the order were issued, but he 

was not sure whether he was on the cited section, could not 

recall discussing the problem with the contestant during this 

time, and could not recall the contestant ever seeking his advice 

on the dust problem (Tr. 13). 

2078 
Mr. Boggs confirmed that he discussed the matter with 

Mr. Keith, but could not recall Mr. Keith mentioning anything to 

him about any of his discussions with the contestant. Mr. Boggs 

stated that he did not inform Mr. Keith that he was going to 

issue the order, but did discuss it with him after he had issued 

it (Tr. 14). Mr. Boggs believed that he gave the contestant a 

reasonable time to take additional samples and obtain the 

results, and in response to a hypothetical question stated as 

follows (Tr. 15-16): 

Q. Let me ask you a hypothetical question here. 

Suppose the company said, "Well, look, something has 

come up or we are having problems with the machinery. 

We need an extra week. We want to change the 

machinery. It takes about a week, and then we want to 

take our samples after that." Would your normal practice have been to give them that additional time, or 

would you just have given them the time to take the 

samples? 

A. If they could justify it, they would have got an 

extension. Equipment break down, strikes, whatever, if 

it's beyond the company's control, it's something that 

they don't do intentionally, then that justifies more 

time, an extension. 

Q. You had already given them more time before the 

B-Order was issued? 

A. Yes, I had. It could have been extended again if 

they had justified it. 

Q. You cannot recall their justifying it or saying 

anything? 

A. No. 

Mr. Boggs confirmed that after a tespirable dust inspection 

on April 20, 1988, and the results of a laboratory report of 

April 21, 1988, the cited section came into compliance with an 

average dust concentration of .4 for the section (Tr. 18). He 

identified a copy of a report of a respirable dust conference 

held with his supervisor and other MSHA officials, and he confirmed that MSHA must approve dust-control plan changes submitted 

by the operator to control respirable dust on the section. In 

this case, he confirmed that the PSI for each water spray was 

changed from 50 PSI to 60 PSI, and that someone was assigned to 

monitor the dust samples (Tr. 19-20). 

Mr. Boggs stated that pursuant to MSHA's criteria with 

respect to respirable dust orders, the issuance of a section 

2079 
104(b) order requires an operator to make dust control changes, 

and once an order is issued, the operator's dust-control plan 

must be improved. After changes are made, additional dust 

samples must be taken, and the operator must show that it is 

making changes and improvements to bring it into compliance. 

After the changes are made and approved by MSHA, the order is 

modified to permit coal production to continue, and dust samples 

are taken. The sampling is conducted by MSHA, and Mr. Boggs 

confirmed that he took the samples which resulted in the abatement of the order (Tr. 22). Other than the two changes he testified to, he could not recall any other changes made by the 

contestant in t.his case which may have affected the respirable 

dust on the section (Tr. 23). 

On cross-examination, Mr. Boggs stated that if he were the 

contestant and received a section 104(a) citation for noncompliance with the respirable dust standards, he would have 

assigned someone to the sampling pumps to make sure that they 

were properly taken care of. He would also pay close attention 

to the ventilation on the section, and the mining machine water 

pressure and spray operation, and would check the water pressure 

and monitor the ventilation air and make adjustments as necessary 

(Tr. 2 4 -2 6) . 

Mr. Boggs did not believe that the contestant assigned 

anyone other than the section boss to do the things he would have 

done. He confirmed that the checking of the dust pumps would not 

affect the amount of respirable dust in the air, and would only 

affect the measurement read-out of the instrument. Although 

MSHA's dust standards allow two milligrams of dust in· the air, in 

this case where quartz is present, the allowable dust limit is 

1.5 milligrams (Tr. 29). 

Mr. Boggs stated that there were three working sections in 

the mine, and although a working section is one of the places 

that he would be concerned about as an inspector, he doubted that 

he was on the 017 Three North Section from March 7, through 

April 29, 1988 (Tr. 23). He could not recall discussing any dust 

control problems on the section with the contestant, and he did 

not believe that anyone asked him for any assistance because the 

contestant has an experienced safety department and does not 

necessarily ask for a lot of advice (Tr. 35). 

Mr. Boggs could not recall making any comments about the 

reliability of the dust sampling results from MSHA's Pittsburgh 

laboratory, but he did recall hearing comments from contestant's 

employees Dennis Jarrell and Denver Carter, who complained that 

"they didn't think that they were being done right by Pittsburgh" 

(Tr. 36). Mr. Boggs recalled that these individuals were complaining because the MSHA individual doing the weighing of the 

samples was new "or something to that effect." Mr. Boggs could 

2080 
not recall the specific complaint, but confirmed that the contestant requested that someone weigh the samples, and that is why 

his office sent them to the Mt. Hope laboratory (Tr. 37). 

Mr. Boggs stated that prior to the issuance of the order, he 

could not recall discussing with Mr. Carter or Mr. Jarrell, or 

anyone else at the mine, any efforts by the contestant to come 

into compliance. He confirmed that he issues four or five 

section 104(b) orders annually, and only if they are justified. 

He stated that before issuing such an order, he considers whether 

the operator made a diligent effort to abate the violation in a 

reasonable time, taking into account the availability of manpower 

(Tr. 38) • 

Mr. Boggs confirmed that the modification of the order 

allowed mining to continue, and he believed that in order to lift 

a section 104(b) order, or to modify it to allow mining to continue, the Act requires the mine operator to submit a modification to its dust-control plan (Tr. 40). When asked whether or 

not it is standard MSHA procedure for an inspector to issue a 

section 104(b) order if an operator fails to come into compliance 

after he submits dust samples taken subsequent to the issuance of 

the initial section 104(a) citation, Mr. Boggs responded as 

follows (Tr. 42-43): 

A. I'm not sure where it's written. It's standard 

operating procedure, though, for us. It's just like 

any other violation. If you write a violation, give a 

company a reasonable time to abate the violation. Then 

if he does not take a reasonable effort to abate· that 

violation in the reasonable time given, that is known 

as failure to abate, which results in a B-Order, which 

ceases operations until the violation is corrected. It 

applies to any violation we write. 

Q. Is that standard operating procedure the reason why 

you said, and I think these were your words, "I have no 

choice?" 

A. No, I was going by the law. If I had the Act and 

my Notice and Order Abiding Manual and my CFR 30 with 

me, I could read it out as Congress wrote it. But I 

don't have it with me. That's what Congress stated 

when they wrote the Act in 1977, revised it. 

Mr. Boggs confirmed that after the citation was issued, he 

did not return to the cited section because he was apparently 

working in another section of the mine. He could not recall 

anyone asking him to return to the cited section to determine if 

there were any problems, and if he had been asked, he would have 

done so. If he had observed anything that would have helped 

abate the violation, he would have probably offered his advice, 

2081 
even though "they don't always take our advice" (Tr. 44). 

Mr.· Boggs stated that as long as an operator is making a reasonable effort. to abate a cited condition, he would grant an extension of the abatement time, even though the condition may not be 

completely abated. In the case at hand, he knew of no efforts 

made by the contestant to change the conditions that would have 

resulted in the abatement of the citation (Tr. 45). 

Contestant's Testimony and Evidence 

Steohen W. Richards, Safety Supervisor, testified as to his 

background and experience. He confirmed that the principal point 

of production of dust is at the face where coal is being 

extracted. He stated that the mining machine used on the 017 

unit was a Joy 12-CM-7 equipped with a flooded bed scrubber, and 

he explained the probable dust sources and methods of controlling 

it with the scrubber which he characterized as "the state of the 

art dust collecting system" (Tr. 108-119). 

Mr. Richards stated that respirable dust non-compliance 

associated with the machine scrubber system is a cause for concern and is not taken lightly. In such instances, the scrubber 

is checked in its entirety, and the ventilation system and 

individual administrative controls are examined in order to 

identify and correct the problem (Tr. 120). 

Mr. Richards stated that with the use of the scrubber 

system, and based on samples taken by the contestant and MSHA, it 

is not uncommon to have dust samples ranging from .5 to 1.5 milligrams. Without the scrubber system, past samples have shown 

over 3.0 milligrams of dust (Tr. 121). 

Mr. Richards "suspected" that the non-compliance problem may 

have been caused by the use of old dust cassettes which were 

stored for approximately a year at the Robinson No. 8 Mine which 

had worked out and was shut down. He speculated that the age of 

the cassettes may have affected the accuracy of the weight of the 

dust samples used to determine compliance (Tr. 123). 

Mr. Richards explained the changes made to come into compliance, including the increase of the water supply line to the 

mining machine, and increasing the water pressure from 50 to 

60 PSI, examining the different components of the scrubber 

system, and reviewing the dust-control plan with appropriate mine 

personnel to insure that they were aware of their dust monitoring 

responsibilities (Tr. 124). 

Mr. Richards confirmed that after the abatement of the 

order, the mining machine was again out of compliance, and it was 

replaced with a .rebuilt one. He also confirmed that the 

scrubbers were installed on the machines when they were out of 

compliance (Tr. 125). He stated that personal respirable dust 

2082 
protective respirator devices are available to miner's working on 

the MMU, but they are not required to wear them (Tr. 128). 

On cross-examination, Mr. Richards stated that the old dust 

cassettes were approximately a year old, but he had no personal 

knowledge as to whether or not the cassettes used for the dust 

samples taken by the contestant on March 22 and April 7, were the 

old ones or new ones. It was his understanding that the old 

cassettes were used to sample the dust, but he was not the 

individual who picked out the cassettes or assembled the cassette 

samplers used to sample the dust (Tr. 130). Mr. Richards 

explained what was done after the order was issued, including the 

change of water pressure in the machine, and changing the dustcontrol plan to reflect the changes in the water pressure being 

used to control the dust. He confirmed that no changes were made 

to the machinery because the water pressure already exceeded the 

minimum dust plan requirements and no machine changes were 

required (Tr. 132). 

Mr. Richards could offer no explanation as to the precise 

problems which resulted in non-compliance, and he confirmed that 

after the order was issued, the mining machine was replaced, and 

to his knowledge, abatement was achieved, and no further problems 

were encountered (Tr. 135). 

Mr. Richards explained that as part of the efforts to determine whether the old cassette sampling devices were the cause of 

the high dust sample readings, the contestant started weighing 

the cassettes in its coal laboratory but they were criticized by 

MSHA for doing this. He stated that the cassettes were being 

pre-weighed and post-weighed on scales which were representative 

of the scales used by MSHA, and a qualified person was performing 

the weighing. However, MSHA refused the contestant's requests to 

verify the questionable dust samples which were being tested and 

processed during the month or so that the contestant was 

attempting to come in compliance and abate the citation (Tr. 

137) . 

Mr. Richards stated that he and two other individuals who 

worked with him had one or two conferences at MSHA's sub-district 

office, and on one occasion visited Mr. Thaxton at MSHA's laboratory building in an effort to look at the lab and to weigh the 

contestant's samples, but received no help or assistance from 

MSHA (Tr. 138). 

Mr. Richards was of the opinion that Inspector Boggs issued 

the order as a "procedural and prudent thing to do," and did not 

consider the contestant's abatement efforts, or the amount of 

resources being used to abate the citation (Tr. 139). 

2083 
Mr. Richards stated that after exhausting all efforts to 

dismantle the mining machine, insuring that it met the manufacturer's .specifications, reviewing the dust-control plan with 

appropriate personnel, and assigning a crew to periodically 

monitor the situation, the contestant sought assistance from 

Mr. Thaxton to help them in looking at the samples and correcting 

the problem (Tr. 140). 

Dennis Jarrell, mine safety supervisor, stated that he 

reports to Mr. Richards. He stated that after sampling the 017 

unit during the bi-monthly period of March and April, 1988, 

Inspector Henry Keith called him on March 22, and advised him 

that the unit was out of compliance and that he was to resample 

the unit. Upon receipt of the call, Mr. Jarrell met with the 

mine manager, and special attention was given to the machine 

scrubber system. In addition, management decided to pre-weigh 

and post-weigh the sampling devices, and meetings were held with 

the section foreman and miners working on the unit in an effort 

to determine the reasons for being out of compliance (Tr. 

146-151) • 

Mr. Jarrell stated that before taking the second set of 

samples from March 28 through 31, the 017 MMU was checked out, 

and no visual or mechanical problems were found. He explained 

what was done in an attempt to find the problem, including the 

weighing of the sample cassettes in order to obtain a representative sample (Tr. 157). 

Mr. Jarrell stated that based on the pre-weighing and postweighing of the second March-April samples submitted to MSHA to 

abate the citation, it was determined that the average set of 

samples indicated .6 milligrams of dust (Tr. 157). Contestant's 

counsel confirmed that these same samples were submitted to MSHA, 

and MSHA's test results indicated an average concentration of 

2.5 milligrams of dust (exhibit G-5, Tr. 158). Mr. Jarrell 

explained the method used to weigh the sampling devices in question in an effort to find out the overall weight gain (Tr. 

158-161). 

Mr. Jarrell stated that after calculating the weight gain 

for the second set of samples in question, the contestant calculated an average respirable dust concentration of 1.5 milligrams. 

He stated that "I'm thinking at that point in time had our 

records been valid we would have been in compliance, we don't 

know" (Tr. 164) . 

Mr. Jarrell stated that Mr. Keith called him again on 

April 7, and advised him that the second set of samples still 

indicated non-compliance. Further management meetings were held, 

and on April 8, Mr. Jarrell and Mr. Richards went to Mt. Hope to 

meet with Mr. Thaxton. Mr. Jarrell took 12 dust sample cassettes 

with him, and five additional cassettes were weighed at the 

2084 
contestant's lab and at MSHA's Mt. Hope lab. All of these 

samples were of the same weight. Once they were pre-weighed, 

Mr. Jarrell requested MSHA to post-weigh them, but MSHA would not 

do it. After the five samples were taken on April 12 through 14, 

using the five pre-weighed cassettes, MSHA did not post-weigh 

them as Mr. Jarrell thought they would, and on April 18, 

Mr. Keith called him again and advised him that the unit was 

still out of compliance (Tr. 168). 

Mr. Jarrell stated that on April 19, he went to MSHA's 

office and agreed under protest to revise the dust-control plan, 

to increase the water pressure from 50 PSI to 60 PSI, to assign 

someone to monitor the samples spontaneously on the continuous 

miner, and to weigh all samples (Tr. 168). 

Mr. Jarrell stated that Inspector Boggs came to the mine on 

April 20 and sampled the unit, and that his sampler weighing 

method was the same one used by the contestant, with similar 

results (Tr. 169). Mr. Jarrell confirmed that the old sampler 

cassettes were discarded, and that the contestant still does not 

know what caused the high dust readings (Tr. 170). Mr. Jarrell 

stated that he discussed the problem with Inspector Boggs, and 

that he (Boggs) could not see any problem and speculated that the 

samples may have been "miss-weighed in Pittsburgh" (Tr. 174). 

Mr. Jarrell stated that if the order had not been issued, 

and the abatement time extended, the old sample cassettes would 

have been discarded and different cassettes would have been used 

(Tr. 179). He confirmed that he first suspected that there may 

have been a problem with the cassettes in mid-March, ·1988, after 

the citation was issued, and after the first sampling cycle 

results were received. Mr. Jarrell also "suspected" that MSHA's 

Pittsburgh laboratory may have had some erratic weighing results, 

but he was not certain that this was the case (Tr. 180-181). 

Mr. Jarrell stated that Mr. Boggs issued the order upon 

instructions from his supervisor Henry Keith, and that he was 

present when Mr. Keith instructed Mr. Boggs to issue the order 

and to abate it because the contestant was going to upgrade the 

dust-control plan to increase the water pressure from 50 PSI to 

60 PSI. Mr. Jarrell stated that Mr. Keith did not suspect there 

was a water spray problem, but focused on that part of the dust 

plan "because it was the simplest thing to do" (Tr. 185). 

Mr. Jarrell stated that Inspector Boggs and Mr. Keith said 

nothing to him to indicate that they were not satisfied with his 

efforts to abate the citation (Tr. 185). Mr. Jarrell believed 

there was a problem with the sampling, and he also believed that 

Mr. Keith also believed it (Tr. 186). 

Rodney Barker, day shift maintenance foreman, testified that 

he has 17 to 18 years of experience, and has worked at the mine 

2085 
for 9 years. He stated that the 017 mechanized mining unit 

operated on the afternoon and evening production shifts, and that 

it was idle during the day shift. Mr. Barker confirmed that he 

was responsible for the maintenance of the unit, which consisted 

of a continuous-mining machine, roof bolter, and scoop or shuttle 

car. He stated that prior to the respirable dust sampling cycle, 

and for the first 5 days of sampling, the continuous-mining 

machine was cleaned and maintained on a daily basis. Maintenance 

work was performed on the miner dust scrubber unit, and the 

machine water sprays were cleaned and serviced on a daily basis. 

Mr. Barker stated that he did not speak with any of the MSHA 

inspectors who issued the citation and order in this case (Tr. 

198-204). 

Timothy Bailey, laboratory technician confirmed that he preweighed and post-weighed some of the dust sampling cassettes used 

by the contestant to sample dust from April 12 to 14, 1988. 

These were the samples which were pre-weighed at the MSHA lab, 

but not post-weighed by MSHA, and they were the samples which 

resulted _in the issuance of the order (Tr. 205-208). 

On cross-examination, Mr. Bailey confirmed that the sample 

cassettes were weighed with the red plugs removed, and the 

cassettes were not passed through a desiccator. Mr. Bailey 

identified the balance which he used to weigh the cassettes in 

question, and he confirmed that it is accurate to four decimal 

points, and reads out in milligrams (Tr. 210-211). 

Robert Thaxton was recalled by MSHA, and he stated that the 

balance described by Mr. Bailey was similar in design- to the MSHA 

balance used at the Mt. Hope laboratory. MSHA's balance is a 

different model which weighs to the nearest thousands of a milligram, while the contestant's balance weighs to the nearest tenth 

of a milligram (Tr. 213). Mr. Thaxton observed that the balance 

used by Mr. Thaxton did not have a calibration sticker reflecting 

when it was last calibrated, and it appeared to have been used 

for other dust sampling, which creates dust and dirt which might 

produce erroneous dust samples. He also observed Mr. Bailey 

carrying the balance into the courtroom under his arm, and he 

stated that the balances used by MSHA are never transported in 

this manner because it may destroy the internal weights and 

calibration of the unit. Although the removal of the plug prior 

to weighing the cassette is not prohibited, its possible that 

Mr. Bailey may have inadvertently contaminated the dust inside 

the cassette (Tr. 215) . 

Mr. Thaxton stated that at the time Mr. Jarrell and 

Mr. Richards brought their samples to the MSHA lab to pre-weigh 

the cassettes, he advised them that this was an inadequate method 

of determining whether respirable dust was on the cassette. 

Mr. Thaxton confirmed that when Mr. Jarrell and Mr. Richards 

mentioned the fact that the old cassettes may have had erroneous 

2086 
initial weights, the seven cassettes which they brought to the 

lab were opened up and the filters were weighed to determine 

whether the initial weights were correct. The results showed 

little to no difference in the initial weights, and Mr. Thaxton 

stated that the cassettes "were o.k." (Tr. 216). 

Mr. Thaxton explained further that the Mt. Hope lab was not 

permitted to certify all of the old cassettes which may have been 

used by the contestant. On advice of the Pittsburgh lab, the 

Mt. Hope laboratory could not weigh the samples exposed to mine 

dust because the balances would have been exposed to dust contamination resulting in erroneous balance readings. Accordingly, 

Mr. Jarrell and Mr. Richards were not permitted to weigh the 

entire cassettes, but the internal filter packages were weighed 

as usual. Mr. Thaxton stated that persons other than authorized 

lab personnel were not permitted in the lab while dust samples 

were being processed because body temperatures will affect the 

balance readings, people moving around will cause air currents, 

and unauthorized people in the lab can detract from the lab 

technician's concentration (Tr. 217-218). 

Mr. Thaxton questioned the method used by the contestant to 

establish the gross weight of the filter cassette in its 

entirety, and he believed it was an inappropriate method of 

trying to determine respirable dust (Tr. 220). 

With regard to MSHA's policy concerning the necessary action 

required of a mine operator to prevent a mine closure and withdrawal of miner's, Mr. Thaxton stated as follows (Tr. 232-233): 

JUDGE KOUTRAS: Do you know whether there is any policy 

in the district office with regard to respirable dust 

with regard to what an operator has to do as a minimum 

before--to prevent the actual shut-down and withdrawal 

of miners? 

THE WITNESS: In response to the order the policy is 

that they obtain an updated plan which would result in 

compliance or the inspector must detail in this modification of the order controls that are changed in order 

to obtain compliance. 

In our district with the relatively closeness of 

each field office and subdistrict offices to the mines, 

we- opt to use the plan route as opposed to writing all 

that on the modification of the order. 

JUDGE KOUTRAS: The inspector is not here to defend 

himself. I will still ask you, does it make sense just 

to say, "Well, pick something out in your plan. I need 

something, some modification and that way we won't have 

to close you down." Does that make sense? 

2087 
THE WITNESS: They had already been closed down. The 

only thing that was doing was allowing MSHA to modify 

the order to take samples. The order was issued and 

the se.ction was closed. 

With regard to the reasonableness of the actions taken by 

the contestant to abate the citation, Mr. Thaxton stated as 

follows (Tr. 233-235): 

JUDGE KOUTRAS: You understand the issue in this case. 

I've got to make a judgment here as to whether the 

operator took reasonable action to abate the original 

citation. After hearing all of the testimony, do you 

have an opinion on that? 

THE WITNESS: The only opinion that I can draw from the 

information that we have available from respirable dust 

samples and from hearing what was said is whatever 

action was taken when MSHA was there resulted in compliance, why couldn't it have been done when the citation was issued to start with. 

It may have been in the past maybe the plan 

parameters weren't being followed exactly. Maybe 

somebody was putting too much air up there that it 

overcame the scrubbers. Maybe the people weren't 

standing exactly where there were -- we don't know. 

When the operator is taking his samples, it is up 

to him to see that the plan parameters are being 

followed. When our inspector is there, he is supposed 

to see that the plan parameters are being followed. 

Mr. Boggs would have to tell you what he actually 

observed. 

MR. GURKA: I'd like to ask Mr. Thaxton, before the 

order was issued, the company said they had done everything, there was nothing else possible they could do. 

In your opinion, given that set of circumstances, would 

it still be reasonable to go ahead and issue the (B) 

order or do you think they should have been given 

additional time? 

THE WITNESS: Given the results of the samples that had 

been submitted by the operator we didn't see where a 

significant effort was being made on the operator's 

part to come back into compliance. 

Mr. Richards was recalled by the contestant and he denied 

that Mr. Thaxton said anything about the Pittsburgh laboratory 

advising Mr. Thaxton not to post-weigh the contestants cassettes. 

2088 
Mr. Richards stated that he was under the impression that 

Mr. Thaxton's staff would cooperate and help solve the suspicion 

that the cassettes may have been contaminated and post-weigh the 

cassettes (Tr. 236). Mr. Richards confirmed that he was not 

aware of the fact that MSHA conducted tours of the Mt. Hope 

laboratory, and that he was simply told he could not see the lab, 

and it was his understanding that he was not allowed in under any 

circumstances (Tr. 236-238). 

Mr. Thaxton was recalled by the court, and he confirmed that 

the Mt. Hope laboratory is a "controlled environment" and that 

only "authorized. personnel" are permitted to enter the lab. He 

also confirmed that he informed Mr. Richards that he would try to 

post-weigh sam~les, but after subsequently speaking to the 

Pittsburgh lab, he was informed not to post-weigh the full 

cassette capsule by placing them in the balance with dirt on 

them. Mr. Thaxton stated that he had no weighing problem with 

the samples the contestant was using for its own benefit because 

they were clean. He confirmed that he may not have informed 

Mr. Richards that he could have a tour of the lab (Tr. 241). 

In response to further questions, Mr. Thaxton stated as 

follows (Tr. 241-243): 

JUDGE KOUTRAS: Do you have an opinion as to whether 

the testimony that you've heard today about Peabody's 

concern with regard to the possible problem with the 

cassette to be reasonable or valid, or do you think it 

is just something they are trying to conjure up here? 

Try to beat the rap so to speak? 

THE WITNESS: I purchase cassettes for our entire 

district. I buy cassettes and have used them for two 

or three years. They are that old. We have never had 

a problem with any of our cassettes. They are checked 

by manufacturers through our Pittsburgh lab. Eight 

percent of the cassettes are sent in for verification 

of the initial weights. We have never had any problem 

with MSA cassettes in the past. 

JUDGE KOUTRAS: Were they using MSA cassettes? 

THE WITNESS: Yes, sir. It is the only approved 

cassette assembly at this time. 

JUDGE KOUTRAS: You've heard their testimony that they 

explored every reasonable possibility: the scrubbers, 

the machines, the men, everything. They thought it 

might be possible that there was something wrong with 

the cassettes. They went to MSHA for some assistance 

and they were turned away and that made them feel 

pretty bad. 

2089 
Now they are def ending this thing on the basis 

that MSHA wouldn't help them and they didn't get any 

cooperation. They say, "we did everything that we 

thought was reasonable and we don't understand why this 

guy dropped an order on us." 

THE WITNESS: Like they stated, they brought 12 

cassettes into us when they thought the cassettes were 

a problem. We did open up seven of the cassettes, 

weighed the internal package and did not find a significant difference between the initial weights of those 

cassettes. From that we gathered that the filters were 

indeed • . · . 

JUDGE KOUTRAS: Let me ask you this one more time. Do 

you know of any policy in the district off ice with 

regard to the enforcement of respirable dust samples, 

and whether the inspectors are instructed if the 

samples show non-compliance after the initial citation, 

they are to issue an order. 

THE WITNESS: Only if they determine that significant 

action is not being taken by the operator to be in 

compliance. 

JUDGE KOUTRAS: Here you have a case where the inspector was on scene and the mine operator both agree that 

there is no problem. They can't find a problem. 

THE WITNESS: That is quite possible. The inspector is 

not trained actually to go in and take the system 

apart. He may or may not be able to see anything. 

Findings and conclusions 

The undisputed facts in this case establish that a section 

104(a) "S&S" Citation No. 9959601, was issued by MSHA Inspector 

Billy G. Wiley on March 22, 1988. The citation was served on the 

contestant by mail, and it was based on the fact that five valid 

dust samples collected by the contestant for the designated 

occupation in mechanized mining unit 017-0, exceeded the requirements of mandatory health standard 70.101. As a result of the 

citation, the contestant was required to "take corrective actions 

to lowe.r the respirable dust and then sample each production 

shift until five valid samples are taken and submitted to the 

Pittsburgh Respirable Dust Processing Laboratory.'' Inspector 

Wiley fixed the abatement time as April 13, 1988. 

The contestant concedes that it did not contest the citation 

or the proposed civil penalty assessment for the violation, and 

that the penalty was paid. However, contestant asserts that the 

2090 
payment of the penalty was an inadvertent mistake, and that it 

was paid when it received a collection letter from MSHA in which 

legal action to collect the penalty was threatened. Citing the 

Commission's decisions in Old Ben Coal Company, 7 FMSHRC 205 

(February 1985) (footnotes 4 and 6), and Rivco Dredging Corp., 

10 FMSHRC 624 (May 1988), contestant takes the position that an 

inadvertent or mistaken payment of a civil penalty assessment 

should not pose a technical obstacle to a decision on the merits 

of a contested withdrawal order. 

In support of its contention that the civil penalty assessment for the citation was paid by mistake, contestant submitted 

an affidavit executed by its counsel Eugene P. Schmittgens, Jr. 

Mr. Schmittgens explains that a review of his file with regard to 

the civil penalty mine identification assessment control number 

46-012143-03580, dated June 13, 1988, reflects a notation that 

Order Number 09959601 was marked DNP (Do not pay), and that the 

proposed civil penalty amount of $620 was deducted from the total 

proposed penalty for the order and underlying citation. 

Mr. Schmittgens explains further that upon receipt of a letter 

from MSHA's collections office September 8, 1988, advising the 

contestant that MSHA had received a partial payment for the case, 

and that it was to remit an additional $620 under threat of a 

collection action if it did not do so, payment was made. 

Mr. Schmittgens asserted that the payment was the result of an 

administrative error, oversight or mistake, and that at no time 

was any action contemplated by the contestant which would be 

inconsistent with its right to contest the section 104(b) order 

which is in issue in this case. 

MSHA concedes that the Notice of Contest filed by the contestant preserved its right to contest the section 104(b) order. 

However, MSHA takes the position .that the contest filed by the 

contestant was filed too late to preserve its right to contest 

the section 104(a) citation. MSHA points out that the contestant 

failed to timely contest the section 104(a) citation which was 

issued on March 22, 1988, and that when it filed its Notice of 

Contest on May 19, 1988, while it preserved its right to contest 

the section 104(b) order, the contest was too late to preserve 

its right to contest the citation. MSHA further points out that 

the contestant had a second chance to contest the citation when 

the civil penalty proceeding was initiated, but that it failed to 

request a hearing on the merits of the violation, and subsequently paid the civil penalty assessment for the violation in 

question. · 

Recognizing the fact that the Commission has held that an 

operator's right to contest a violation is not extinguished when 

a civil penalty is paid by genuine mistake, MSHA concludes that 

on the facts of .this case, there was no such mistake on the part 

of the contestant. Citing the decisions in Coal Junction Coal 

Company, 11 FMSHRC 502 (April 1989) , Camp Fork Fuel Company, 

2091 
11 FMSHRC 496 (April 1989), and Westmoreland Coal Company, 

11 FMSHRC 275 (March 1989), MSHA point out that in each of these 

cases, the.operator paid the penalty after it had timely 

requested a hearing on the violations in question. In. the 

instant case, MSHA argues that the contestant did not timely 

request a hearing on the violation described in the section 

104(a) citation, and that it would be absurd to allow it to 

resurrect its right to contest the violation simply because it 

"mistakenly" paid the assessed penalty after its right to contest 

the violation had expired. MSHA concludes that the contestant's 

mistake was not in paying the penalty, but in not requesting a 

hearing in the first place, and that since neither the citation 

or the penalty were contested, the citation has become a final 

order of the commission pursuant to section 105(a) of the Act, 

and it is not subject to further review. 

Section 105 of the Act provides an operator with two opportunities to contest and request a hearing concerning the issuance 

of a section 104(a) citation. It may seek review of an abated 

citation pursuant to section 105(d) before a civil penalty 

assessment is proposed by MSHA, and it may seek review pursuant 

to section 105(a) by contestirtg the proposed civil penalty 

assessment when such a proceeding is filed by MSHA. However, if 

an operator fails to contest a civil penalty proposed for' a 

citation, section 105(a) expressly provides that both "the citation and the proposed assessment of penalty shall be deemed the 

final order of the Commission and not subject to review by any 

court or agency." Further, an operator's payment of a proposed 

penalty constitutes an admission of the underlying violation and 

precludes the operator from continuing a pending section 105(d) 

contest of the violation. Old Ben Coal Company, supra, 7 FMSHRC 

at 209. "For purposes of the Act, paid penalties that have 

become final orders pursuant to section 105(a) reflect violations 

of the Act and the assertion of violation contained in the cita~ 

tion is regarded as true" Id. See also Amax Coal Co. of 

Missouri, 4 FMSHRC 975, 978-79 (June 1982); Ranger Fuel 

Corporation, 10 FMSHRC 612 (May 1988). 

On the facts of the instant proceeding, it seems abundantly 

clear to me that the contestant failed to avail itself of two 

opportunities granted by the Act to contest the allegation of 

violation made in the section 104(a) citation in question. 

Instead, it paid the civil penalty proposed for the violation, 

and I cannot conclude that such payment was inadvertently or 

mistakenly made. The facts here show that the contestant never 

requested to be heard on the citation, and information provided 

by the affidavit executed by Mr. Schmittgens leads me to conclude 

and find that the "DNP (Do not pay)" notation referred to therein 

makes specific reference to the order and not the citation. In 

any event, I agree with MSHA's position on this issue, and I 

conclude and find that while the contestant has preserved its 

right to challenge the legality of the section 104(b) order, both 

2092 
the validity of the citation and the civil penalty proposal for 

the violation stated therein are final under section 105(a) of 

the Act and not subject to review. Accordingly, the contestant's 

arguments to the contrary ARE REJECTED. 

The Section 104(b) Order 

The principal issue presented in this case is whether or not 

Inspector Boggs acted reasonably in issuing section 104(b) Order 

No. 3141311, and declining to further extend the period of time 

for abatement of the conditions cited in the section 104(a) 

Citation No. 9959601. 

Section 104(a) of the Act, 30 u.s.c. § 814(a), provides in 

part as follows: 

Each citation shall be in writing and shall describe 

with particularity the nature of the violation, including a reference to the provision of the Act, standard, 

rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for abatement of the violation. 

Section 104(b) of the Act, 30 u.s.c. § 814(b), provides as 

follows: 

If, upon any follow-up inspection of a ••. mine, 

an authorized representative of the Secretary finds (1) 

that a violation described in a citation issued pursuant to [section 104] ••. has not been totally 

abated within the period of time as originally fixed 

therein or as subsequently extended, and (2) that the 

period of time for the abatement should not be further 

extended, he shall determine the extent of the area 

affected by the violation and shall promptly issue an 

order requiring the operator of such mine or his agent 

to immediately cause all persons, except those persons 

referred to in subsection (c) of this section, 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. 

In this case, the section 104(a) citation was issued on 

March 22, 1988, and Inspector Wiley fixed the initial abatement 

time as April 13, 1988. He required the contestant to take the 

necessary corrective action to lower the respirable dust exposure, and to sample each production shift until five valid dust 

samples were taken and submitted to MSHA's Pittsburgh laboratory. 

Mr. Wiley subsequently modified the citation to permit the contestant to submit the samples to MSHA's Mt. Hope laboratory, and 

this mo.dif ication was served on the contestant by mail on 

2093 
April 11, 1988, 2 days before the abatement period was due to 

expire. The original abatement date remained unaffected by this 

modification. 

On April 13, 1988, the date fixed for abatement of the 

citation, Inspector Boggs modified the citation in order to allow 

the contestant more time to collect the respirable dust samples 

for the cited MMU 017-0 unit, and he extended the abatement time 

five (5) additional days to April 18, 1988. Thereafter, on 

April 19, 1988, at 9:55 a.m., Inspector Boggs issued the contested section 104(b) withdrawal order, and the reason stated for 

this action is that "the operator failed to adequately control 

the respirable dust in the working environment of designated 

occupation 036 continuous miner in the 3 North 017-0 section." 

At 2:00 p.m. that same day, Inspector Boggs modified the order in 

view of the contestant's submission and implementation of a 

revised respirable dust-control plan, and the modified order 

allowed the contestant to continue to operate in order to collect 

dust samples on the cited unit to determine whether compliance 

had been attained. Mr. Boggs subsequently terminated the order 

at 4:50 p.m., on April 21, 1988, after the sample results for six 

valid samples collected during an MSHA inspection confirmed that 

the cited unit was in compliance. 

The contestant argues that an inspector's determination to 

issue a section 104(b) withdrawal order must be based upon the 

facts confronting him at the time regarding whether an additional 

abatement period should be allowed, Old Ben Coal Company, 

6 IBMA 294, 1 MSHC 1452 (1976). In making such a decision, . 

contestant asserts that the inspector must exercise his discretion in a reasonable manner, and that any decision not to extend 

the abatement time must be reasonably made, and it cannot be 

arbitrary or capricious, United States Steel Corporation, 7 IBMA 

109, 1 MSHC 1490 (1976); Peter White Coal Mining Corporation, 

1 FMSHRC 255, 1 MSHC 2086 (1979). 

The contestant asserts that on the facts of this case, 

Inspector Boggs abrogated his responsibility to make an informed 

judgment of all of the facts and circumstances necessary to any 

reasonable determination as to whether or not the time for abatement should be extended. Contestant asserts that Mr. Boggs' own 

testimony clearly shows that while he had an opportunity to 

acquaint himself with the facts, he neglected to do so. In 

support of this argument, contestant points out that Inspector 

Boggs was present at the mine on 8 of the 20-work days between 

the issuance of the citation and the order, and despite the fact 

that he knew that the mine had only three working sections, and 

that a working section is one of the places with which he was 

concerned, he did not visit the cited 017 unit in March or April, 

1988, until after he issued the order. The contestant further 

points out that Mr. Boggs never discussed with the contestant a 

2094 
respirable dust problem on the section, or efforts being made by 

the contestant to abate such a problem during this time. 

Contestant concludes that at the time he issued the order, 

Inspector Boggs, by his own testimony, had no facts upon which to 

make a finding that the period for abatement of the citation 

should not be extended. Despite being present at the mine and 

having the information at his fingertips, contestant maintains 

that Mr. Boggs made no effort to inform himself of the nature of 

the problem on the 017 unit, or the efforts being made to control 

respirable dust there. Instead, without even discussing the 

matter with his supervisor, contestant concludes that Mr. Boggs 

cavalierly issued the order upon the bare knowledge that measurement of the dUst samples taken on April 11 through 15, 1988, did 

not show compliance with the applicable dust standard. 

Contestant further concludes that Mr. Boggs gave no consideration 

to the second part of section 104(a), whether the time to abate 

should be extended, and because he ignored the facts which confronted him and acted in an arbitrary and capricious manner, the 

order must be vacated. 

Contestant argues that the time for abatement of the violation should have been extended. In support of this conclusion, 

contestant argues that where the action that is required of an 

operator to achieve abatement is known, sufficient time to 

accomplish abatement may be considered to be reasonable abatement. However, in a case where the operator must first determine 

what action is necessary to achieve abatement, reasonable time 

must necessarily include both sufficient time for the operator to 

determine what action is necessary and sufficient time to 

accomplish that action. Additionally, in the case of a citation 

issued for an average concentration of respirable dust that 

exceeds the applicable standard, _contestant suggests that the 

abatement time must also include sufficient time to take the 

required number of samples and have them processed by MSHA. In 

the present case, contestant maintains that even if Inspector 

Boggs had attempted to inform himself of the facts pertinent to 

the decision of whether to extend the abatement time, he considered only the time necessary to take five valid samples to be 

reasonable, and completely disregarded other factors. 

Contestant argues that the cited MMU 107 represented a state 

of the art dust control system, and that at the time the citation 

was issued, it was already taking extraordinary measures to 

insure that this system was working properly. Because there 

appeared to be no problem in the actual control of respirable 

dust, contestant suspected that the violation arose from a 

problem in the testing or measurement of respirable dust, and· 

while continuing its efforts to maintain MMU 017 in top operating 

condition as it .had before receiving the citation, it directed 

its abatement efforts toward determining the cause of the problem 

in the testing and measurement area. Specifically, it considered 

2095 
whether the problem had been caused by inaccuracies in the manufacturer's initial weights for the dust sampling cassettes used 

in determining weight gain and dust concentration; whether a 

physical change or deterioration in the cassettes had occurred 

due to their age; and whether MSHA had possibly made errors in 

its processing of samples. 

Contestant maintains that all of its abatement efforts, 

including the meetings with mine personnel, the review of the 

ventilation and dust-control plan with the employees involved, 

the ~fforts at maintaining the dust control system, and the 

efforts to determine where a problem existed in the testing and 

measurement of dust, were all communicated to MSHA, and according 

to the testimony of the contestant's safety manager, Inspector 

Boggs was kept informed of these efforts. Contestant points out 

that it also met with Mr. Thaxton and with MSHA's subdistrict 

manager for the specific purpose of discussing the cause of the 

problems on the cited unit. 

Contestant argues that despite its good faith efforts in 

attempting to abate the violation, Inspector Boggs followed 

MSHA's "standard operating procedure" in issuing the order, 

claiming that he had "no choice" but to issue the order by simply 

relying on his determination that a reasonable time for the 

contestant to abate the violation was merely the time required to 

take five valid samples over five continuous shifts. Contestant 

maintains that in complete disregard of the circumstances, and 

its abatement efforts, MSHA's "standard operating procedure" 

requiring the issuance of an order when an operator does not come 

back into compliance with the respirable dust standard and that a 

change be made in the ventilation and dust-control plan, regardless of the effect of such a change on dust control, gave the 

inspector "no choice" but to issue the order. 

Finally, contestant argues that in addition to the reasonableness of the abatement time, and the operator's abatement 

efforts, another factor which should be considered in this case 

is the relative hazard to which the contestant's employees on the 

cited 017 unit were exposed, Eastern Associated Coal Corp., 

1 MSHC 1165 (June 22, 1978); Youghiogheny & Ohio Coal Company, 

8 FMSHRC 330, 3 MSHC 2179 (1986). Contestant asserts that there 

was little or no hazard posed by an extension of the abatement 

time, and although the figures for respirable dust that MSHA 

measured were in excess of the standard, there is no evidence 

that these figures actually resulted from excessive levels of 

respirable dust in the air on the 017 unit. To the contrary, 

contestant concludes that all of the evidence in the record 

points toward a problem in measurement of respirable dust, and 

that the only thing that Mr. Boggs testified that contestant had 

not done that it might have tried in order to abate the violation 

was to assign a person other than the section foreman to monitor 

the dust sampling pumps. Contestant points out that Mr. Boggs 

2096 
conceded this would only have had a possible effect on testing 

and measurement and not on the actual levels of dust (Tr. 28). 

Therefore, contestant concludes that the employees on the 017 

unit would suffer no harm by an extension of abatement time to 

enable the contestant to determine how to effectively measure 

levels of respirable dust to achieve compliance with the applicable standard. 

Contestant concludes that it made diligent, good faith 

efforts to control respirable dust and to abate the respirable 

dust violation on the cited 017 MMU, and that the order was 

issued by MSHA in accordance with some "standard operating procedure" which considers only failure to attain compliance, and 

ignores the operator's abatement efforts, the real nature of the 

problem that led to the violation, and the fact that minimal or 

no harm was posed to the miners. Contestant concludes that such 

rigid inflexibility in enforcement is not contemplated by the Act 

and should not be permitted in this case, and that a reasonable 

time to abate a violation should include sufficient time for the 

operator to determine what action is necessary to achieve abatement and to perform that action, not just the amount of time 

necessary to take the required samples and to have them processed 

by MSHA. The nature of the problem in this case and the diligent, good faith efforts of the contestant make it reasonable for 

an extension of time to abate to have been given, especially when 

the extension poses little or no hazard to miners. 

MSHA takes the position that Inspector Boggs acted reasonably in not extending the time for abatement of the citation. 

Citing United States Steel Corporation, 7 IBMA 109 (1976); 

Youghiogheny and Ohio Coal Company, 8 FMSHRC 330, 339 (1986); and 

Consolidation Coal Company, 3 FMSHRC 2201, 2204 (1981), MSHA 

states that three factors are generally considered in determining 

whether the decision not to extend the abatement time was reasonable, and it takes the position that these factors indicate that 

Inspector Boggs acted reasonably in this case. The factors cited 

are as follows: 

1. The degree of danger that any extension would 

have caused to miners; 

2. The diligence of the operator in attempting to 

meet the time originally set for abatement; and 

3. The disruptive effect an extension would have 

had upon operating shifts. 

MSHA argues that ·any extension of the abatement period would 

have increased the miners' exposure to the hazards of excessive 

concentrations of respirable dust. Although recognizing the fact 

that the harmful effect of any one incident of exposure to 

excessive concentrations of respirable dust is negligible, MSHA 

2097 
points out that such exposure nonetheless is presumed to be a 

significant and substantial hazard. The miners on the cited 

017-0 unit were not wearing protective equipment, and there is no 

other evidence indicating that their exposure would not significantly and substantially contribute to respiratory disease. 

MSHA asserts that the subject mine, and the cited 017-0 unit 

in particular, have a history of excessive levels of respirable 

dust, and extending the abatement period would have increased the 

miners' cumulative exposure to this hazard (exhibit G-4, Tr. 64, 

90-91). MSHA agrees that if the. dust samples submitted by the 

contestant reflected inaccurate measurements, rather than 

excessive concentrations of respirable dust, and the respirable 

dust on the cited unit had in fact been below the applicable 

limit, there would have been no harm in extending the abatement 

period. MSHA states that there is no credible evidence to 

support any assertion that the dust samples were inaccurate, and 

it points out that the contestant has not contested numerous 

prior citation for excessive dust at the mine and the cited 017-0 

unit. 

With regard to the contestant's diligence in attempting to 

abate the citation, MSHA agrees that immediately after the citation was issued, the contestant attempted to abate the violation 

by thoroughly inspecting and repairing its mining equipment, dust 

scrubbers, and ventilation system on the cited unit, and that the 

abatement time was extended to allow the contestant to take 

additional samples. MSHA states further that by April 19, 1988, 

the contestant had determined that there was nothing more it 

could do underground to abate the violation, and MSHA· suggests 

that it does not appear that the contestant had done everything 

possible to achieve abatement. In support of this conclusion, 

MSHA points out that Inspector Boggs suggested the assignment of 

a miner to monitor the pumps, and that Mr. Thaxton observed that 

the contestant did not balance its scrubber system (Dep. Tr. 

27-28; Hrg. Tr. 228-29). MSHA also points out that the 

contestant had no problem coming into compliance once the order 

was issued (Tr. 233-34). 

MSHA asserts that while the contestant may have been diligent in inspecting its mining equipment, it was lax in checking 

its sampling cassettes. MSHA points out that within an hour of 

the issuance of the citation, the contestant had suspected that 

the cassettes it was using had deteriorated due to age, and 

instead· of using newer cassettes, or submitting the suspected 

ones to MSHA or an independent lab for analysis, it pursued an 

amateurish and inadequate investigation into the reliability of 

its old cassettes. Further, although the contestant's safety 

supervisor admitted that the contestant had suspected the filters 

to be defective, he did not really check them. MSHA concludes 

that had Inspector Boggs extended the abatement time, the only 

action the contestant would have taken would have been to use new 

2098 
cassettes, and there is no credible excuse for its not having 

done so previously. MSHA further states that the pattern of dust 

concentrations analyzed during the abatement period supports the 

conclusion that the contestant was not making any progress in 

abating the violation (Tr. 81-82; 234-235). 

With regard to the disruptive effect of the order, MSHA 

argues that the issuance of the order did not disrupt production 

on the cited unit because the unit was normally idle for maintenance during the day shift, and the order was modified 5 hours 

later the same day to allow mining and sampling to continue. 

In response to the contestant's assertions that it received 

little or no cooperation from MSHA during its efforts to determine whether or not its sampling cassettes were defective, MSHA 

states that the contestant never expressed any dissatisfaction 

with the assistance provided by MSHA regarding its mining equipment, dust scrubbers, or ventilation system. MSHA asserts that 

Inspector Boggs made numerous visits to the mine during the 

period set for abatement, and although he did not inspect the 017 

unit, he went out of his way to visit this area in an attempt to 

assist in abating the violation (Tr. 183). MSHA concludes that 

Mr. Boggs was no more successful at trouble-shooting than contestant• s experts were, and that it does not appear that the 

contestant requested very much help with its underground mining 

operations (Dep. Tr. 35). MSHA further concludes that its 

failure to come up with a solution to the dust problem does not 

mean that it was not being cooperative or unreasonable. 

In response to the contestant's dissatisfaction with the 

response it received from MSHA's laboratory personnel, MSHA 

points out that it agreed to weigh some filters from old 

cassettes to see if the weights reported by the manufacturer were 

accurate, and it pre-weighed some cassettes for use in subsequent 

samplings. MSHA admits that it refused to weigh these cassettes 

after sampling, and refused to allow the contestant's representatives to witness its laboratory analysis of the filters, but it 

maintains that given the sensitivity of its laboratory equipment, 

and the fear of contamination, its refusals were reasonable in 

the circumstances. Conceding that there may have been some 

misunderstanding over what could be done at its Mt. Hope 

Laboratory, MSHA states that it cooperated and assisted with the 

contestant's officials as much as possible. 

Contrary to the contestant's assertions, MSHA argues that it 

was more than reasonable in giving the contestant the opportunity 

to abate the violation, and that the contestant was given a 

second chance when MSHA extended the time for abatement on 

April 13, even though a set of samples that exceeded the applicable standard nad already been submitted during the original 

abatement period. Furthermore, MSHA states that it was quite 

lenient with the contestant after the order had been issued in 

2099 
that knowing that the contestant had already reviewed the conditions on the cited unit, and that any defect in its sampling 

procedure would be eliminated because MSHA would be collecting 

the samples to determine whether the order should be lifted, MSHA 

accepted minor changes in the dust-control plan and promptly 

modified the order to allow mining to continue. 

MSHA agrees that neither party in this case has been able to 

identify the problem that caused excessive concentrations of 

respirable dust in the sampling taken prior to April 20, 1988. 

In response to the contestant's insistence that the condition on 

the cited unit were the same on April 20 as they were when the 

previous samples were taken, and that the only difference was 

that the samples of April 20 were taken by MSHA personnel using 

cassettes supplied by MSHA, MSHA points out that Inspector Boggs 

recalled that the contestant may have installed a larger hose 

between the water supply and the continuous-mining machine (Dep. 

Tr. 39). MSHA concludes that unless the contestant made some 

other undisclosed changes, it is likely that the violation was 

caused by the contestant's improper sampling methods, its defective cassettes, or decreased production at the time of MSHA's 

sampling (Hrg. Tr. 78-79, 96). MSHA points out that because the 

serial numbers on the cassettes used by MSHA on April 20, 1988 

are lower than the serial numbers on the cassettes the contestant 

had been using, the cassettes used by MSHA were probably older 

than the ones being used by the contestant (Tr. 243, exhibits 

G-1, G-5, G-6). MSHA concludes that any defects in the contestant's cassettes would have been caused by its storage and 

handling, rather than just the age of the cassettes. 

MSHA further points out that subsequent to the termination 

of the contested order, the contestant was again cited for 

several violations of the respirable dust standards on its 017-0 

unit (Tr. 84-85; exhibit G-4, pg. 3), and that the last citation 

was abated by the abandoning of its "state of the art" equipment 

(Tr. 112, 124-125). Since the contestant had already done everything it planned to do in regards to the dust concentrations on 

the cited unit, and since there is no credible excuse for continuing to use suspect sampling cassettes, MSHA concludes that 

the decision not to extend the time for abatement any further was 

more than reasonable. 

There is no dispute that the cited respirable dust violation 

was not abated at the time Inspector Boggs issued the contested 

order, and the parties are in agreement that the cause of the 

high sampling results obtained by the contestant was never discovered. The critical issue is whether or not the inspector 

acted unreasonably in not extending the time for abatement, and 

whether the issuance of the order was arbitrary. Although MSHA 

is correct that .the three factors stated in the Youghiogheny and 

Ohio Coal Company case, supra, namely (1) the degree of danger 

that any extension in the abatement time would have caused to 

2100 
miners, (2) the operator's diligence in attempting to meet the 

initial abatement time, and (3) the disruptive effect that an 

extension of .time would have had upon operating shifts, are 

factors to be considered in determining whether any decision not 

to extend the abatement time was reasonable, the threshold question in this case is whether or not Inspector Boggs made more 

than a cursory decision not to extend the time, or simply 

arbitrarily decided to issue the order without consideration of 

these or other factors. 

In Peter White Coal Mining Corporation, 1 FMSHRC 255 

(April 24, 1979), Judge Fauver vacated a section 104(b) order on 

the ground that the inspector failed to give any consideration to 

the extension of time allowed for abatement of the citation. The 

judge found that such consideration was a basic requirement for 

the issuance of such an order. 

United States Steel Corporation, 7 IBMA 109 (November 29, 

1976, 1 MSHC 1490 (1976)), -involved a citation for a violation of 

respirable dust standard 30 C.F.R. § 70.250. It was held that as 

a matter of law, an inspector's authority under section 104(b) in 

determining whether the abatement time for the violation should 

be extended, or an order of withdrawal issued, carries the 

implication that it will be exercised reasonably, not arbitrarily 

or capriciously. In that case, although the inspector made 

inquiries into the operator's abatement efforts, and was aware of 

certain mitigating circumstances, he nonetheless issued a withdrawal order. The presiding judge held that the inspector's 

issuance of the order was unreasonable and he vacated it. On 

appeal, his decision was affirmed. 

In Consolidation Coal Company, 1 FMSHRC 2638 (October 1979) 

Judge Broderick vacated a section 104(b) order after finding that 

the operator had done substantial work to abate the cited condition and that the work was ongoing when the inspector next 

returned to the mine to check on the abatement. Under these 

circumstances, Judge Broderick concluded that the abatement time 

should have been extended. 

Eastern Associated coal Corporation, 1 MSHC 1665 (June 22, 

1978), decided by former Commission Judge Forrest Stewart, concerned an operator's challenge to the initial abatement time 

fixed by an inspector to abate a respirable dust violation of 

30 C.F.R. § 70.lOO(b), and a challenge to the inspector's failure 

to further extend the abatement time, which resulted in the 

issuance of a section 104(b) order. Judge Stewart held that such 

an order should be based on the prevailing circumstances including the initial sampling processing time; the time required to 

evaluate the samples and make changes; the time to review the 

results of additional samples; and the degree of hazard 

presented. Judge Stewart noted that the citation was issued 

2101 
solely on the basis of an MSHA computer print-out reflecting noncompliance with the applicable dust standard; that there was no 

communication between the operator and MSHA concerning whether 

the time set for abatement was sufficient considering the 

existing circumstances, that no inspection was made, and that the 

initial abatement time was the "standard" amount of time set in 

all respirable dust cases, i.g., the time determined by the 

inspector to sufficiently allow for the taking and receipt of 

results of post-notice respirable dust samples taken by the 

inspector. 

on the facts of the Eastern Associated case, which indicated 

that the operator was experiencing adverse mining conditions, was 

shut down for a period of time due to a strike, experienced 

difficulties in obtaining repair items for its equipment, needed 

additional time to evaluate the results of its dust sampling in 

order to decide where the corrective action was needed, and the 

short term dust exposure hazard to miners, Judge Stewart found 

that the inspector failed to give adequate consideration to all 

of these circumstances, and he vacated the order based on his 

finding that the inspector should have allowed additional abatement time and extended the time rather than issuing a withdrawal 

order. 

Mr. Boggs' belief that the contestant was given a reasonable 

time to abate the violation was based solely on his view that the 

time allowed for additional sampling and the receipt of the 

results was ample and reasonable. He confirmed that his normal 

practice in deciding whether or not to extend the abatement time 

is based on whether or not an operator can justify the additional 

time because of equipment breakdowns, strikes, or other circumstances beyond the operator's control, and that in this case, he 

would have extended the time if it were justified. I fail to 

understand how Mr. Boggs could have made any informed judgment as 

to whether or not the abatement time should have been further 

extended when he made no further inquiries as to the contestant's 

abatement efforts, made no effort to determine what the contestant was doing in its attempts to abate the violation, and simply 

concluded that no further time would be permitted because MSHA's 

"standard operating procedure" left him no choice but to issue 

the order simply because the additional sampling showed noncompliance. I find no rational basis for an inspector to automatically issue a section 104(b) withdrawal order simply because 

an operator's sampling results reflects continued non-compliance 

with the dust standards. If this were the case, an inspector 

could refuse to further extend any abatement time for any violation simply because an operator has not abated the condition 

within the initial time fixed for abatement, completely ignoring 

the circumstances presented, or the three factors alluded to by 

the aforementioned case law. 

2102 
When asked what he would have done to achieve abatement, 

Inspector Boggs stated that he would have assigned someone to 

make sure the· dust sampling pumps were properly taken care of, 

that he would have paid close attention to the ventilation on the 

section and the continuous-mining machine water spraying operations, and that he would have checked the water pressures on the 

machines, and monitored the ventilation for any necessary adjustments. However, since Mr. Boggs did not communicate further with 

anyone at the mine, and did not visit the working section where 

the cited unit was operating, even though he was in the mine 

conducting inspections during the abatement period, he obviously 

had no information as to whether or not the contestant was doing 

any of the things that he suggested. Any involvement by 

Mr. Boggs came after the order was issued. I can only conclude 

that his decision that a further extension of time was not justified was based solely on his belief that he was required to issue 

an order, regardless of any abatement efforts by the contestant, 

if the additional sampling showed non-compliance. I find such a 

procedure to be arbitrary on its face. 

On the facts of this case, I agree with the contestant's 

assertion that Inspector Boggs did little or nothing to ascertain 

all of the facts and circumstances before issuing the order. By 

his own admission, Mr. Boggs confirmed that he had "no choice" 

but to issue the order, and his decision to do so was based 

solely on the fact that the dust samples submitted by the contestant for April 13 through 15, 1988, reflected that the cited unit 

was still out of compliance. Mr. Boggs believed that the contestant was given a reasonable time to abate the violation because 

it was allowed additional time to collect and submit dust samples 

to MSHA, and he confirmed that he would not have extended the 

citation abatement time if the contestant were not attempting to 

abate the violation in good faith. He further confirmed that it 

was MSHA "standard operating procedure" for an inspector to issue 

a section 104(b) order after additional sampling reflects 

non-compliance, and that after an order is issued, an operator is 

required to make changes in its ventilation and dust-control 

plan, in addition to further sampling. 

I take note of the fact that the inspector who issued the 

initial citation and fixed the abatement time for April 13, 1988, 

subsequently modified it to permit the contestant to submit dust 

samples to MSHA's Mt. Hope Laboratory rather than to its 

Pittsburgh laboratory. This modification was made on April 11, 

1988, 2 days before the expiration of the initial abatement time. 

Since the contestant had to sample over five consecutive working 

shifts, and since it was sampling during the period April 11 

through 15, 1988, it had 3 days subsequent to the taking of the 

last sample to receive and consider the sampling results before 

the expiration of the extended abatement time on April 18, 1988, 

which was given by Mr. Boggs. Mr. Boggs concluded that this was 

ample and reasonable time to abate, and his conclusion in this 

2103 
regard was obviously made without any knowledge of the contestant's abatement efforts, and was based solely on the results of 

the sampling. 

MSHA's Supervisory Industrial Hygienist Thaxton confirmed 

that he did not discuss the violation with Inspector Boggs. 

Mr. Thaxton also confirmed that pursuant to MSHA's policy, if an 

inspector determines that a mine operator has made no effort to 

control dust, and simply submits additional samples, the inspector is instructed not to extend the abatement time further and to 

issue a section 104(b) order. In the instant case, Mr. Thaxton 

further confirmed that if Inspector Boggs was unaware of any 

action by the contestant to abate the violation and come into 

compliance, he would be justified in issuing a section 104(b) 

order if the only action taken by the contestant was to take 

additional samples. 

Mr. Thaxton took the position that since the contestant took 

"whatever action" was necessary to abate the order, it could have 

done so when the citation was issued. Like Mr. Boggs, 

Mr. Thaxton's belief that the contestant made no significant 

compliance effort was based on the samples which it had submitted. However, Mr. Thaxton conceded that he had never been in 

the mine, never discussed the violation with Mr. Boggs, and had 

no idea what was causing the problem. He speculated that the 

contestant may not have been following its dust-control plan, may 

have introduced too much ventilation which may have reduced the 

efficiency of the scrubbers, and that the individuals being 

monitored for dust may not have been positioned properly. He 

stated that "when our inspector is there, he is supposed to see 

that the plan parameters are being followed. Mr. Boggs would 

have to tell you what he actually observed." Based on the record 

in this case, I cannot conclude that Mr. Boggs saw anything 

relating to the contestant's abatement efforts until after the 

order was issued. Mr. Thaxton agreed that in order to cure a 

dust problem, the operator must kr.ow what caused it, and that it 

must have enough time to discover the cause. 

The credible testimony of contestant's safety supervisors 

Richards and Jarrell reflect that during the abatement period the 

contestant was making an effort to ascertain the cause of the 

dust problem, including the dismantling of the mining machine, 

reviewing and discussing its ventilation and dust-control plan 

with its employees, monitoring its operations, and meetings with 

MSHA officials. Maintenance foreman Barker testified that he had 

four maintenance people working on the cited unit on a daily 

basis cleaning and servicing the miner machine scrubber system 

prior to the sampling in March, 1988, and during the sampling of 

April 12 and 14, 1988. Laboratory technician Bailey confirmed 

that he preweighed and post weighed some of the sampling 

cassettes used during the April, 1988 sampling. 

2104 
The record establishes that after exhausting all of its 

efforts to isolate the possible cause of the high dust sampling 

results, the ·contestant focused its efforts on pursuing its 

belief that one of MSHA's Pittsburgh laboratory technician's may 

have miscalculated the sampling results, or that the sampling 

cassettes used in the sampling by the contestant were either 

defective or contaminated. Inspector Boggs recalled that he 

heard some comments by contestant's personnel complaining about 

their belief that a new employee at the MSHA Pittsburgh laboratory may have made a mistake in the sampling, and that at the 

request of the contestant, some of the samples were allowed to be 

submitted to the Mt. Hope laboratory. At page 21 of its posthearing brief, MSHA conceded that "it is likely that the violation was caused by Peabody's improper sampling methods, its 

defective cassettes, or decreased production at the time of 

MSHA's sampling." Under all of these circumstances, the contestant's suspicions that the defective sampling cassettes may have 

caused the high sampling results from its testing is plausible 

and reasonable, and I find no basis for concluding that the 

contestant advanced this theory as a delaying tactic or to avoid 

compliance. 

Although it is true that the contestant suspected that its 

cassettes may have been defective after the citation was issued 

in March, 1988, the fact that it did not discard them because it 

had a large supply and they were expensive cannot detract from 

its good faith effort to ascertain whether the cassettes were in 

fact defective. Although one may agree that the contestant's 

methodology in attempting to determine whether the cassettes were 

defective was somewhat amateurish and inadequate, I cannot conclude that its efforts in this regard were less than reasonable 

or lacking in good faith. 

Mr. Richards testified that he made one or two trips for 

conferences at MSHA's sub-district office, and also visited the 

Mt. Hope laboratory in an effort to have the sample cassettes 

weighed to determine whether they were defective. Mr. Jarrell 

confirmed that he and Mr. Richards visited the Mt. Hope laboratory on April 8, 1988, to weigh some dust samples. He also 

confirmed that after the five samples taken on April 12 through 

14, 1988, were taken with the pre-weighed cassettes weighed at 

the Mt. Hope laboratory and the contestant's laboratory, he 

believed that MSHA's Mt. Hope laboratory would post-weigh them as 

a means of confirming whether they were contaminated or def ecti ve, but it did not do so. Mr. Thaxton confirmed that he 

informed Mr. Richards that he would try to post-weigh the 

samples, but subsequently declined to do so on advice of the 

Pittsburgh laboratory, and MSHA concedes that there may have been 

some misunderstanding over what could be done at the Mt. Hope 

facility (Brief,. pg. 20). Mr. Jarrell confirmed that if the 

order had not been issued, the old sample cassettes would have 

been discarded (Tr. 179). 

2105 
Under all of the aforementioned circumstances, I conclude 

and find that the contestant was making a diligent effort in its 

attempts to· ascertain the cause of its dust sampling results 

which placed the cited unit out of compliance, and was attempting 

in good faith to meet the April 18, 1988, abatement time fixed by 

Inspector Boggs. While it may be true that the only action that 

the contestant would have taken would have been to discard the 

old cassettes and use new ones, I cannot conclude that the fact 

that it did not do so was unreasonable or inexcusable. 

With regard to the degree of danger that any extension of 

the abatement time would have caused the miners, MSHA takes the 

position that the mine and the cited 017-0 unit in particular, 

have a history of excessive levels of respirable dust, and that 

the contestant has not contested numerous prior citations issued 

for excessive dust levels of respirable dust on the cited unit in 

question. The fact is that MSHA's evidence establishes that the 

cited 017-0 unit was previously cited on November 17, 1987, for a 

violation of section 70.207(a), for failing to take bimonthly 

samples, and was again cited on December 17, 1987, and 

February 1, 1989, for violations of section 70.101, for being out 

of compliance with the applicable respirable dust standard established for the particular work shifts cited (exhibit G-4). Thus, 

with the exception of the uncontested citation which preceded the 

order issued in this case, the contestant has been cited with two 

violations for exceeding the dust limits on the 017-0 unit. I 

cannot conclude that the cited 017-0 unit has "a history" of 

"numerous" violations on this unit. 

With regard to the overall respirable dust record for the 

entire mine, the information which appears on exhibit G-4, shows 

that with the exception 05 sampling which occurred on March 11, 

1988, reflecting 1.7 mg/m for the 019-0 MMU unit for designated 

occupation 046, seven additional units which were sampled during 

various times in 1987 and 1988, including the 0~7-0 unit, were 

all in compliance with the established 1.5 mg/m standard. The 

information also reflects that prior to March 22, 1988, MMU 015-0 

was cited three times in 1987 for violations of section 70.101. 

MSHA agrees that if the dust samples submitted by the contestant in this case reflected inaccurate measurements rather 

than excessive concentrations of respirable dust, there would 

have been no harm in extending the abatement period. MSHA also 

agreed that it was likely that the violation was caused by the 

contestant's improper sampling methods or defective cassettes, 

and this lends credence to the contestant's arguments that there 

may have been a problem in the measurement of respirable dust, 

rather than excessive levels of respirable dust in the air on the 

017-0 unit, and.that an extension of the abatement time to enable 

the contestant to determine how to effectively measure levels of 

2106 
respirable dust to achieve compliance would not have exposed the 

employees on the unit to any harm. 

After careful consideration of all of the evidence in this 

case, I cannot conclude that MSHA has advanced any probative or 

reliable evidence to establish that the extension of the abatement time would have adversely affected the safety of the miners 

on the unit in question, or that the contestant failed to diligently pursue the abatement of the violation. I further conclude 

and find that the failure by the inspector who issued the order 

to give any consideration to the contestant's abatement efforts, 

or to consider any hazard resulting from the extension of the 

abatement time, renders the order invalid. Under all of these 

circumstances, the contested order IS VACATED. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED THAT: 

1. Contestant's Contest IS GRANTED. 

2. The contested section 104(b) Order 

No. 3141311, April 19, 1989, IS VACATED. 

Distribution: 

Thomas L. Clarke, Peabody Coal Company, P.O. Box 1233, 

Charleston, WV 25324 (Certified Mail) 

Ronald E. Gurka, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

/fb 

2107 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, 

INC., 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-123 

A.C. No. 05-00469-03642 

Dutch Creek No. 2 Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Peti tioner1 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, 

Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Lasher 

This matter arose pursuant to Section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. Section 820(a) 

(herein the Act). Petitioner originally sought assessment of 

penalties for 20 alleged violations cited in 20 enforcement 

documents (Orders and Citations) involved in this docket. 

A prehearing conference was held in this matter and in 

related dockets WEST 88-121, 122 and 124 on November 2, 1988, 

in Denver, Colorado. Thereafter, hearings were held in various 

of these latter dockets and prior to decision the parties reached 

amicable resolution thereof. 

In this docket, pursuant to my Decision Approving Partial 

Settlement in August, 1989, the parties' settlement of 18 of 

the 20 enforcement documents involved was approved, leaving 

Order No. 3044101 and Citation No. 3044102 to be resolved. .On 

October 28, 1989, the parties submitted their Joint Motion to 

Approve Settlement and Order Payment as to these last two violations involved, the terms of which are: 

Citation/Order No. Proposed Penalty 

3044101 - 104(d)(l) $1,500.00 

3044102 - 104(a) 1,300.00 

2108 

Amended 

Proposed Penalty 

(Amended to 

104(a) Citation) 

$900.00 

780.00 
It is noted that this agreement is part of an overall 

agreement by the parties involving approximately 2,000 Citations 

and Orders issued from September, 1987, through March 31, 1989. 

The Joint Motion of the parties appears proper and is strongly 

supported in the record on the basis of policy and enf orcenent 

considerations, and economic factors relevant to both parties. 

Accordingly, the Joint Motion is approved and the agreed-on 

penalties here assessed. 

ORDER 

1. Order No. 3044101 is MODIFIED to reflect its nature and 

issuance authority from a Section 104(d) Withdrawal Order to a 

Section 104(a) Citation. 

2. Respondent is ordered to pay to the Secretary of Labor 

on or before January 1, 1991, the total sum of $1,680 as and for 

the civil penalties above assessed. 

3. This proceeding is DISMISSED. 

Distribution: 

,/7/P~/7 /, 'f~:e4cY A r 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 790, 

818 Colorado Avenue, Glenwood Springs, CO 81602 (Certified Mail) 

/ot 

2109 
2110 
ADMINISTRATIVE LAW JUDGE ORDERS 

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 

OCT OS 1989 

. 

. CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CBNT 89-81-M 

A.C. No. 23-01785-05511 

v. 

MOBERLY STONE COMPANY, 

Respondent 

. . Docket No. CENT 89-82-M 

A.C. No. 23-01785-05512 

Moberly Stone Company Quarry 

ORDER DENYING MOTION TO 

APPROVE SETTLEMENT 

On September 29, 1989, the Secretary filed a Motion to 

Approve Settlement and Dismiss Petition for Assessment of Civil 

Penalties. 

Docket No. CENT 89-81-M contains seven alleged violations, 

each assessed at $98 for a total of $686. Docket No. 

CENT 89-82-M contains five alleged violations, assessed at a 

total of $294. The motion states that with respect to four of 

the citations in Docket No. CENT 89-81-M and two in Docket No. 

CENT 89-82-M (each assessed at $20), Respondent will pay the 

penalties originally assessed. With respect to the remaining 

three citations in Docket No. CENT 89-81-M, the motion proposes 

that they be reduced from $140 each to $20 each. The motion 

states with respect to each of these violations that "although 

any injury caused by an accident could be fatal," it is unlikely 

that the injury would occur, and the violation should be 

reclassified as "nonsignificant and substantial." The three 

remaining citations in Docket No. CENT 89-82-M are reudced from 

$14Q to $20, $84 to $20 and $140 to $20. The same reasoning is 

advanced in support of the reduction sought. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act and conclude that the reduction in 

penalties proposed is not consistent with those criteria. 

Therefore IT IS ORDERED that the Motion to Approve 

Settlement is OF.NIED. 

IT IS FURTHER ORDERED that the parties respond to 

paragraph 2 of the Prehearing Order of July 11, 1989, on or 

2111 
before October 16, 1989, and inform me of any dates in January or 

February 1990 which would cause scheduling conflicts. 

Distribution: 

_ 

1

;l'/1 11_g· _/i/:J~ zi Ltz~~,( James A. Broderick 

Administrative Law Judge 

Dewey P. Sloan,_ Jr., Esq., U.S. Department of Labor, Office of 

the Solicitor, 911 Walnut Street, Kansas City, MO 64106 

(Certified Mail) 

Mr. Paul R. Orr, President, Moberly Stone Co., P.O. Box 582, 

Moberly, MO 65270 (Certified Mail) 

slk 

2112 
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 

ADMINIS'rRATION. ( MSHA), 

Petitioner 

v. 

EASTERN ASSOCIATED COAL 

CORPORATION, 

Respondent 

oc r 2 'I 1s~s 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-198 

A. C. No. 46-01456-03826 

Docket No. WEVA 89-199 

A. C. No. 46-i456-03824 

Federal No. 2 Mine 

ORDER OF CONSOLIDATION 

AND ORDER 

It is ORDERED that WEVA 89-199 be consolidated with 

WEVA 89-198. 

On October 16, 1989, Petitioner filed a First Request for 

Production of Documents and a Motion to Compel Responses to the 

Request for Production of Documents. The Request seeks, inter 

alia, notes taken by Respondent's agent during a MSHA inspection. 

Respondent, in a Response, and a Motion to Strike Petitioner's 

Request for Production of Documents filed October 23, 1989, 

essentially argues that the Motion should be denied as formal 

discovery was not initiated until October 13, 1989, and informal 

discovery was agreed to July 24, l989, both dates being more than 

20 days subsequent to the filing of the Proposal for Penalty on 

July 3, 1989. 

Although formal discovery was not initiated within 20 days 

after the Pcoposal for Penalty was filed, and more than 60 days 

have elapsed since the Proposal was filed, Respondent has not 

established any legal prejudice should Petitioner's request be 

allowed. Accordingly, in the interest of justice, and in order 

to narrow the evidentiary issues, I find that the discovery rules 

in 29 C.F.R. § 2700.,55 should be liberally construed. (S~e, 

Hickman v. Taylor 329 U.S. 495 (1947)). Accordingly, 

Respondent's Motion to Strike is DENIED. 

Respondent, also argues, in essence, that notes taken at the 

inspection be not discoverable inasmuch as Petitioner can obtain 

the equivalent o.£ the materials without "undue hardship" as its 

representative was at the scene of the alleged violation. (See, 

2113 
Rule 26(b)(3), Fed. R. Civ. P.). I do not find merit to 

Respondent's argument. Clearly written statements of 

Respondent's agents that are contemporaneous with the cited 

condition, are unique and thus are discoverable (See, Galambus v. 

Consol. Freightways Corp. 64 FRO 46& (ND Ind (1974); Gillman v. 

United States 53 FRO 316 (DC NY (1979)). 

Respondent also asserts that the practice of taking notes at 

inspections "were implemented to aid in the preparation of cases 

for trial." Csic). Respondent further asserts that if notes 

were in fact taken, they were taken "to prepare a defense should 

litigation be required to resolve violations." As such, 

Respondent argues, that the notes are not discoverable as they 

are covered by the work product protection. Rule 26Cb), supra, 

protects from discovery materials " •.• prepared in anticipation 

of litigation for trial • • • " I find that Respondent has not 

established that the particular notes in question were prepared 

specifically in anticipation of litigation. It ha8 not been 

established by Respondent that at the time the notes were taken, 

there was nay substantial anticipation that the subject citation 

would be likely to be litigated. Rather, it appear form 

Respondent's assertion, that the notes were taken as a standard 

procedure at inspections, and as such were taken in the regular 

course of business. Accordingly, I conclude that they are 

outside the scope of the work product protection. (See, Moore's 

Federal Practice at 26-354, and cases cited therein). 

Based on the above, Petitioner's Motion to Compel Responses 

is GRAN·rED. 

It is ORDERED that, no later than 10 days after the date of 

this Order, Respondent shall produce and serve Petitioner with 

all materials requested in Petitioner's Request for Production of 

Documents filed October 16, 1989. 

Distribution: 

~soerger /i7 .~ Administrati~e Law Judge 

(703) 756-6210 

Glenn M. Loos, Esq., Office of tne Solicitor, u. s. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., Michael A. Kafoury, Esq., 

Eastern Associated Coal Corporation, P. o. Box 373, St. Louis, MO 

63166 {Certified Mail) 

dcp 

2114 
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. 

HASKELL COUNTY GRAVEL 

CO., INC., 

Respondent 

(703) 756-6220 

O_ctober 30, 1989 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-69-M 

A.C. No. 34-01287-05507 

Haskell County Pit & Plant 

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

On October 30, 1989, the Secretary filed a settlement 

agreement of the parties to this proceeding and a motion to 

approve the settlement agreement. The violations were 

originally assessed at $10,000, and the parties propose to 

settle for $5000. 

Four citations were issued to Respondent on November 2 

and 3, 1988, growing out of an investigation of a fatal 

accident occurring on November 1, 1988. According to the 

107(a)/104(a) order/citation issued November 2, a front end 

loader crossed over a bumper block into a feeder hopper and 

over the crusher. It turned over and fell 14 feet to the 

ground below killing the loader operator. 

The citations charged first that Respondent failed to 

maintain an adequate bumper block at the jaw crusher feeder 

hopper where trucks and front end loaders dumped. This 

violation was assessed at $5000. Second, Respondent was 

cited for failure to equip the front end loader with roll 

over protection and a seat belt. This violation was assessed 

at $3,000. The third citation charged Respondent with a 

defect in the airline on the loader which could materially 

reduce the efficiency of the service brakes. This violation 

was assessed at $1000. Finally, Respondent was cited because 

the braking system on the front end loader was defective in 

that the front service brakes were inoperable. This citation 

was assessed at $1000. 

2115 
The motion states that penalties in the total amount of 

$10,000 will have an adverse effect on the ability of Respondent 

to continue in business, but no factual justification for 

this conclusion is given in the motion. The motion states 

that each of the allegea violations was considered to be of 

very high gravity and causeo by Respondent's negligence. 

Respondent is a small operator and has a favorable history 

of prior violations, but these facts were presumably considered 

in the original assessments. Based on the information provided 

with the motion, the settlement agreement, reducing the penalties 

by 50%, does not conform to the criteria in section llO(i) of 

the Act. ~-~ 

Therefore, the motion to approve the settlement agreement 

is DENIED. 

Distribution: 

j A i?i I '_/!. '4./t:t-i-s /rlvvvat{/icfc 

James A. Broderick 

Administrative Law Judge 

Robert A. Fitz, Esq., U.S. Department of Labor, Office of the 

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

(Certified. Mail) 

Jerry Dick, Esq., 6700 w. Western, Oklahoma City, OK 73139 

(Certified Mail) 

slk 

2116 

-ti U.S. GOVERNMENT PRINTING OFFICE: 1989- 2 6 l - i·o 2 I a 4 7 6 l